ATT Mobility Contract_Fully Executed_Redacted with Exh D.pdf

CONTRACT FOR

WIRELESS TELEPHONY AND

BROADBAND PLANS,

EQUIPMENT AND SUPPORT

(Contract #505ENT-M17-WIRELESSPH-02)

BETWEEN

THE STATE OF WISCONSIN,

Department of Administration

AND

AT&T Mobility National Accounts LLC (Contractor)

This Contract is between the State of Wisconsin ("State") as represented by its Department of Administration, ("State") and AT&T Mobility National Accounts LLC, ("Contractor").

This Contract and the following documents incorporated by reference into the Contract constitute 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. Any conflict or inconsistency will be resolved by giving precedence in the following descending order:

a. The terms of this Contract, including all exhibits and attachments hereto, which are incorporated herein by this reference.

b. The terms of Contractor's Proposal, including any exceptions to the RFB if accepted by the State in writing.

c. The terms of RFB # 28258-SR, including any amendments thereto.

The State of Wisconsin's requirements are provided in its Request for Bid (RFB)#28258-SR including any amendments thereto, and Contractor's response, as, accepted by the State.

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.

Name: Cate Zeuske

Title: Depup srcretary!

Date: l£'. _ ?; D 1-f 1

Contractor

Signature:

AT&T Mobility National Accounts LLC

Name: Linda J. Cottingham

Title: Sr. Contract Manager

Date: 06/27/2017

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 of the words and terms.

"Acceptance" means a manifestation of assent by the State to the terms, Services, Goods 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).

"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 without regard to whether the information is owned by the State or by a third party, which satisfies at least one of the following criteria: (i) Personally Identifiable Information; (ii) Proprietary Information; (iii) non-public information related to the State'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. Confidential Information includes all information that is restricted or prohibited from disclosure by state or federal law.

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

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

"Day" means calendar day unless otherwise specified in this Contract.

"Default" means the omission or failure to perform a contractual duty or provide Goods or Services as contractually required as set forth in Section 4 of this Contract.

"Goods" means devices, products, and may also include incidental or related Services as the situation may require.

"Inspection" means an examination of Goods provided under this Contract in order to determine their fitness for use

"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, ifthat 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 tbat 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.

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 Goods or Services.

"Services" means all work performed, and 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 this Contract.

"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 Goods or rendering Services to the State.

"Work Center" means a charitable organization or nonprofit institution which is licensed under s. 104.07 and incorporated in this State or a unit of county government which is operated for the purpose of carrying out a program of rehabilitation for severely handicapped individuals and for providing the individuals with remunerative employment or other occupational rehabilitating activity of an educational or therapeutic nature, and which is engaged in the production of materials, supplies or equipment or the performance of contractual services in connection with which not less than 75% of the total hours of direct labor are performed by severely handicapped individuals.

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 state court in Madison, Dane County, Wisconsin or Federal District Court for the Western District of Wisconsin.

3. TERM. The initial term of this Contract shall be for three year(s) (3) from the effective date.

This Contract is eligible for two (2) mutually agreed upon one (1) year renewals, unless terminated as provided herein.

4. 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 failure of the Contractor to perform under the terms of this Contract.

The Contractor may terminate this Contract after providing the State with one hundred and twenty (120) Days written notice of the State's right to cure a failure of the State to perform under the terms of this Contract.

5. 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 one hundred and twenty (120) 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 Goods 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. 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 Goods or Services paid for but not received or implemented, such refund to be paid within 30 Days of written notice to the Contractor requesting the refund.

6. CONTRACT CANCELLATION:

(a) The State reserves the right to cancel this Contract in whole or in part without penalty, and without prior notice, ifthe 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.

(b J The State reserves the rightto cancel this Contract in whole or in part without penalty, with 30 days' 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.

7. 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.

8. 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. Neither the Contractor nor any of the foregoing parties has authority to act or speak on behalf of the State.

9. DELAY AND REMEDY. In case of Contractor's failure to deliver Goods or Services in accordance with this Contract, which is not cured upon at least thirty (30) days prior written notice to the Contractor, the State, upon written notice to the Contractor, may procure such Goods or Services with comparable functionality from other sources as necessary, at the prevailing market rate and the Contractor shall be responsible for the additional cost, including the [cost of re-procurement], purchase price and[administrative fees] upon presentation to Contractor of documentation evidencing such costs .. This remedy shall be in addition to any other legal remedies available to the State

10. WORK CENTER CRITERIA. The Contractor shall implement processes that allow Agencies to satisfy the State's obligation to purchase goods and services produced by Work Centers certified under the State's Work Center Law, §16.752, Wis. Stat. The Contractor shall include goods provided by Work Centers in its catalog for Agencies and block the sale of comparable items to Agencies.

11. 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.

12. CONTRACTOR'S INSURANCE RESPONSIBILITY. The Contractor shall maintain the following insurance coverage:

Worker's compensation insurance, as required under Chapter 102 of the Wisconsin Statutes, for all of the Contractor's employees and Contracted Personnel engaged in the work performed under this Contract;

Commercial general liability insurance, bodily injury and property damage injuries, loss or damage against claim(s) that may occur in carrying out the terms of this Contract, with a minimum coverage of one million dollars ($1,000,000) per occurrence and in the aggregate for bodily injury and property damage including products liability and completed operations; and

Motor vehicle insurance for all owned, non-owned and hired vehicles that are used in carrying out the terms of this Contract, with a minimum coverage of one million dollars ($1,000,000) per occurrence combined single limit for bodily injury and property damage.

Certificate of Insurance, showing up-to-date required coverage, shall be on file in the Contracting Agency before the Contract may commence.

The State reserves the right to require higher or lower insurance limits where warranted.

13. 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§ lll.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. Unless exempted by workforce size (SO or fewer employees) or Contract amount ($50,000 or less), the Contractor must submit a written affirmative action plan to the State.

The Contractor shall post the notice provided by the State, setting forth the provisions of the State's nondiscrimination laws, in its workplace, 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 bidder or proposer for State contracts, or

• withholding of a payment due under the Contract until the Contractor is in compliance

14. STATE PAYMENT OFFSETS FOR CONTRACTOR'S DELINQUENCY. In accordance with Wis. Stat. 16.767 and 73.12, the State may 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. 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.

15. INDEMNIFICATION and LIMITATION OF LIABILITY.

a. General Indemnity. Subject to the Notice and Cooperation provisions of Section 17(c) hereof, Contractor shall hold the State harmless and shall defend and indemnify the State, its Agencies, officers and employees against any and all third party claims, suits, actions, liabilities and costs of any kind, including attorney's fees, for personal injury or damage to real or tangible personal property, to the extent that such liability, loss, damage or expense was proximately caused by the negligent acts or omissions or the willful misconduct of the Contractor, its agents, officers, employees or Subcontractors in performing Services or providing Goods under this Contract. Contractor shall not be liable under this Section 15 (a) (General Indemnity) for damages caused by services or goods that are not furnished by Contractor or its Subcontractors under this Contract.

b.. Limitation of Liability. Contractor's entire liability to the State for claims or damages arising under this Contract shall be limited to proven direct damages and shall not exceed, during any twelve (12) month period, an amount equal to the total net charges incurred by the State for Services and Goods during the twelve (12) month period preceding the month in which the claim arose. IN FURTHERANCE OF THE FOREGOING, CONTRACTOR WILL NOT BE

LIABLE TO THE STATE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, RELIANCE OR

SPECIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS,

ADVANTAGE, SAVINGS OR REVENUES OR FOR INCREASED COSTS OF OPERATIONS.

THE LIMITATIONS SET FORTH IN THIS SECTION lS(b) (LIMITATION OF LIABILITY)

ABOVE SHALL NOT APPLY TO PROVEN DAMAGES RESULTING FROM: (A) BODILY INJURY,

DEATH OR DAMAGE TO REAL OR TANGIBLE PERSONAL PROPERTY PROXIMATELY CAUSED BY

CONTRACTOR'S NEGLIGENCE; (B) LOSSES ARISING OUT OF THE GROSS NEGLIGENCE OR

WILLFUL MISCONDUCT OF CONTRACTOR; AND (C) LOSSES ARISING OUT OF CONTRACTOR'S

OBLIGATIONS TO INDEMNIFY, DEFEND AND HOLD HARMLESS THE STATE AGAINST THIRD

PARTY CLAIMS AS SET FORTH IN SECTIONS 15a (GENERAL INDEMNITY), AND SECTION 21 (Intellectual Property Infringement) OF THE CONTRACT.

C.. The limitations in this Section 15(b) (Limitation of Liability) shall not limit the State's responsibility for the payment of all properly due charges under this Contract or prevent either Party from seeking injunctive or other equitable relief.

d. Application and Survival. The disclaimer of warranties and limitations ofliability set forth in this Contract will apply regardless of the form of action, whether in contract, equity, tort, strict liability or otherwise, of whether damages were foreseeable and of whether a Party was advised of the possibility of such damages and will apply so as to limit the liability of each Party their respective employees, agents, directors, subcontractors and suppliers.

16. CONFIDENTIAL INFORMATION.

(a) Disclosures

In connection with the performance of work herennder, it may be necessary for the State to disclose to the Contractor Confidential Information. The Contractor 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 Contractor shall hold all such information in confidence, and shall not disclose such information to any persons other than its directors, officers, employees, and agents who have a business-related need to have access to such 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 institute and maintain such security procedures as are commercially reasonable to maintain the confidentiality of such information while in its possession or control including transportation, whether physically or electronically. If Contractor becomes aware of a data security breach for which it may be responsible, it shall notify the State as soon as practicable and cooperate with the State, regarding recovery, remediation, and the necessity to involve law enforcement, if any.

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

The Contractor shall maintain all such information for a period of three (3) years from the date of termination of this Contract, and shall thereafter return or destroy said information as directed by the State.

(bl Equitable Relief; Indemnification in Event of Contractor Breach

Indemnification: In the event of a breach of this Section by Contractor, Contractor shall indemnify, defend and hold harmless the State of Wisconsin and any of its officers, employees, or agents from any claims arising from the negligent acts or omissions of the Contractor, and its Subcontractors, employees and agents in performing under this Contract, including but not limited to disallowances or penalties from federal oversight agencies, and any court costs, expenses, and reasonable attorney fees, incurred by the State in the enforcement of this Section and, with respect to Personally Identifiable Information, the costs of monitoring the credit of all persons whose Personally Identifiable Information was disclosed.

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 will not be compensable by money damages and for which there is not 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, 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.

17. INTELLECTUAL PROPERTY INFRINGEMENT AND LABOR STANDARDS.

(a) The Contractor represents, to the best of its knowledge, that any items provided to the State hereunder were manufactured or produced in accordance with applicable state and federal labor laws, and that the sale or use of said items shall not infringe any United States patent, copyright, or other intellectual property rights of others. The Contractor shall at its own expense indemnify, defend and hold the State harmless and either settle any third party claims brought against the State or pay any damages that a court finally awards against the State for a claim by a third party alleging that a Service or a Deliverable provided to the State under this Contract infringes any alleged United States patent, copyright or other intellectual property right of such third party due to the sale or use of such items, provided that the Contractor is promptly notified of such suit, and is given all related documents .. The Contractor shall have no obligation under the immediately preceding sentence to the extent that the claimed infringement arises out of or results from: (i) the State's or an [end-user's content] content (excluding content generated by Contractor or its Subcontractors); (ii) modifications to the Service or Deliverable by the State [or an end-user], or combinations of the Service or Deliverable with any non Contractor services or products by State or an end-user (except when done at the request or suggestion of the Contractor or its Subcontractors); (iii) Contractor's adherence to State's or an authorized user's written requirements, other than this Contract.

b. If Contractor's provision of or the State's use of any Service or Deliverable is enjoined or likely to be enjoined as a consequence of a third-party claim or action Contractor shall promptly at its own expense take one of the following actions: (i) procure the right for the State to continue using the Service or Deliverable; (ii) modify the alleged infringing Service or Deliverable so that it becomes non-infringing, provided that any such modification does not materially impair the intended use of the Service or Deliverable as contemplated hereunder; or (iii) substitute for such Service or Deliverable a functionally equivalent, non infringing Service or Deliverable at no increase in cost to the State. If those alternatives are not feasible, the State may terminate the affected Service or Deliverable without liability or penalty.

c. Notice and Cooperation. The State shall provide notice to the Contractor promptly upon learning of any claim for which a defense or settlement may be sought under Section 15 (General Indemnity) or Section 17 (Intellectual Property Infringement) provided that failure to do so shall not affect the obligations of Contractor, except to the extent Contractor is prejudiced thereby. The State will allow the Contractor to control the defense and settlement of the claim and cooperate with the defense.

18. SHIPPING. Except as otherwise specified herein, Goods shall be shipped, F.O.B.

Destination, and the State shall accept legal title of Goods at the point of delivery. Freight charges shall not be paid by the 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

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

20. IDENTIFICATION. All invoices, packing lists, packages, shipping notices, instruction manuals, and other written documents affecting an order hereunder shall contain the applicable State 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 State, all shipping containers shall be legibly marked or labeled on the outside with State Purchase Order number, product description, and quantity, or as otherwise directed by the State.

21. LIENS, CLAIMS AND ENCUMBRANCES. The Contractor warrants and represents that all Goods ordered hereunder are free and clear of all liens, claims or encumbrances of any kind.

22. WARRANTY OF ITEMS OFFERED.

Goods delivered and Services rendered shall be strictly in accordance with the order placed and may not deviate in any way from the terms, conditions or specifications of this Contract, without the prior written approval of the State. Equipment, materials, or supplies delivered under this Contract are subject to Inspection and testing upon receipt.

The Contractor warrants that the Goods provided shall conform to the specifications in this Contract, are fit and sufficient for the purpose manufactured, of good material and workmanship, and free from defect. Goods offered must be new and unused and the model or manufacture, specified by the State. Items shall be equal in quality and performance to the standards indicated herein. Goods delivered that do not conform to the Contract terms, conditions, and specifications may be rejected and returned at the Contractor's expense. The Contractor shall assign to the State its right to recover under any warranties applicable to the Goods offered. Descriptions used herein are specified solely for the purpose of indicating standards of quality, performance, and/or use desired.

23. RECEIPT OF GOODS.

The State's receipt of Goods upon delivery is for the sole purpose of identification. Such identification shall not be construed as Acceptance of the Goods if they do not conform to contractual requirements. If there are any apparent defects in the Goods at the time of delivery, the State shall promptly notify the Contractor of its rejection of said Goods. Without limiting any other rights, the State, at its option, may require the Contractor to:

a. Repair or replace any or all of the defective and rejected Goods at Contractor's expense,

b. Refund the price of any or all of the defective and rejected Goods, and

c. Accept the return ofany or all of the defective and rejected Goods.

If rejected, the Goods shall remain the property of the Contractor.

24. INDEPENDENT CONTRACTOR. The Contractor shall act as an independent contractor in providing any and all Goods and Services under this Contract and, except as otherwise outlined herein, shall maintain complete control over its employees, Contracted Personnel, and Subcontractors, if any.

25. STATE EMPLOYEES. The Contractor may not contract with or employ a State employee or an individual retained as a full-time contractor by the State during the term of this Contract, to the extent that such State employee or full time contractor had direct contact with the Contractor Personnel performing Services under this Contract. The foregoing shall not restrict the Contractor from contracting with or employing a State employee or a full-time contractor through a general solicitation, not involving Contractor Personnel.

26. ANTITRUST ASSIGNMENT. By entering into this Contract, the Contractor conveys, sells, assigns and transfers to the State all rights, title and interest in and to all causes of action, claims and demands of whatever nature it may now have or hereafter acquire under the antitrust laws of the United States and the State, relating specifically to that proportionate amount of the particular Goods or Services purchased or acquired by the State under this Contract.

27. REFUND OF CREDITS. Within sixty (60) Days of the State's request, the Contractor shall pay to the State any credits resulting from an order that the State determines cannot be applied to future invoices.

28. OWNERSHIP RIGHTS. Unless an ownership interest is granted or reserved in this Contract, a State Purchase Order issued under this Contract shall allow the State unrestricted authority to reproduce, distribute, and use any submitted report, that is designed or developed and delivered to the State as part of the performance of the Contract

29. PROMPT PAYMENT. The State shall pay the Contractor Properly-submitted Invoices within forty-five ( 45) days of the date of the invoice, provided that the Goods or Services to be provided to the State have been delivered, rendered, or installed, and accepted as specified in the solicitation document or this Contract.

If the State fails to pay a Properly-submitted Invoice within forty-five ( 45) Days of receipt, it shall pay a late payment penalty as provided in §16.528, Wis. Stats. However, if the State declares a good faith dispute in regard to an invoice pursuant to § 16.5 28 (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.

Delayed Billing; Disputed Charges. If the State disputes a charge, the State will provide notice to Contractor specifically identifying the charge and the reason it is disputed within six ( 6) months after the date of the invoice in which the disputed charge initially appears, or the State waives the right to dispute the charge. The State may incur late payment fees pursuant to Section 29 (a) above. Following Contractor's notice of the results of its investigation to the State, payment of all properly due charges and properly accrued late payment fees must be made within ten (10) business days. Contractor will reverse any late payment fees that were invoiced in error. The State will not be required to pay charges for Services initially invoiced more than six (6) months after close of the billing period in which the charges were incurred, except for calls assisted by an automated or live operator

30. State is exempt from payment of Wisconsin sales or use tax on all purchases and will provide to the Contractor tax exemption certificates documenting such tax-exempt status.

However, the State will remain responsible for regulatory fees, taxes and surcharges for which the State is not tax exempt, including (as limited to the Contractor's Appendix A: Cost Sheets), submitted in response to the RFB and increases to the fees and surcharges identified thereto or for new fees and surcharges that are mandated by a governmental or regulatory entity.

31. PROMOTIONAL ADVERTISING AND NEWS RELEASES. Reference to or use of the State of Wisconsin, the Great Seal of the State, the Wisconsin Coat of Arms, any Agency or other subunits of the State government, or any State official or employee, for commercial promotion is strictly prohibited. News releases or release of broadcast e-mails pertaining to this Contract shall not be made without prior written approval of the State.

32. NOTICE AND CHANGE OF CONTACT INFORMATION. Any notice required or permitted to be given hereunder shall be deemed to have been given on the date of delivery or three (3) Business Days after mailing by postal service, certified or registered mail-receipt requested.

In the event the Contractor moves or updates contact information, the Contractor shall inform the State of such changes in writing within ten (10) Business Days. The State shall not be held responsible for payments on Purchase Orders delayed due to the Contractor's failure to provide such notice

33. RECORDS, RECORD KEEPING AND RECORD RETENTION. Pursuant to §19.36 (3) of the Wisconsin Statutes, all records of the Contractor that are produced or collected under this Contract are subject to disclosure pursuant to a public records request. The Contractor shall establish and maintain adequate records of all documentation developed or compiled and expenditures incurred under this Contract. All expenditure records shall be kept in accordance with Generally Accepted Accounting Procedures (GAAP). All procedures shall be in accordance with federal, state and local laws or ordinances. The Contractor, following final payment, shall retain all records produced or collected under this Contract for six (6) years.

34. EXAMINATION OF RECORDS.

Subject to Contractor's reasonable building security requirements and other legal and regulatory restrictions applicable with respect to third party access to Contractor's facilities and records, the State shall at any time during normal business hours, upon reasonable prior written notice to Contractor, have access to and the right to examine, audit, excerpt, transcribe, and copy, on Contractor's premises, any of the Contractor's records and computer data storage media involving transactions directly pertinent to the amounts expended by the State for Services or Goods under this Contract. If the material is on computer data storage media, the Contractor shall provide copies of the data storage media or a computer printout of such ifthe State so requests. Any charges for copies of books, documents, papers, records, computer data storage media or computer printouts provided by the Contractor shall not exceed the actual cost to the Contractor. This provision shall survive the termination, cancellation, or expiration of this Contract for a period of six ( 6) years.

35. BREACH NOT WAIVER. A failure to exercise any right, or a delay in exercising any right, power or remedy hereunder on the part of either party shall not operate as a waiver thereof.

Any express waiver shall be in writing and shall not affect any event or Default other than the event or Default specified in such waiver. A waiver of any covenant, term or condition contained herein shall not be construed as a waiver ofany subsequent breach of the same covenant, term or condition. The making of any payment to the Contractor under this Contract shall not constitute a waiver of Default, evidence of proper Contractor performance, or Acceptance of any defective item or work furnished by the Contractor.

36. ASSIGNMENT OF CONTRACT. The Contractor shall provide prior written notice to the State before assigning this Contract to another party provided, however, Contractor may, without the States prior consent, assign in whole or in relevant part its rights and obligations under this Contract to an Affiliate, so long as such affiliate is not on any debarment or non compliance list and Contractor will remain financially responsible for performance of such obligations. The State reserves the right to withhold approval of any such assignment to a non-Affiliate of the Contractor, so long as such approval is not unreasonably withheld or delayed. The terms and conditions of this Contract as well as any rights obligations and liabilities associated with such shall survive any and all assignments, mergers, or acquisitions by a third party until cancelled in writing by both parties.

37. SEVERABILITY. If any provision of this Contract is found by a court of competent jurisdiction to be invalid or unenforceable, the remainder of the Contract shall remain valid and in full force and effect. The invalid provision shall be replaced by a valid provision that comes closest in intent to the invalid provision.

38. CONTRACT DISPUTE RESOLUTION. In the event of any dispute or disagreement between the parties under this Contract other than with respect to billing disputes, whether with respect to the interpretation of any provision of this Contract, or with respect to the performance of either party hereto, each party shall appoint a representative to meet for the purpose of endeavoring to resolve such dispute or negotiate for an adjustment to such provision. No legal action ofany kind, except for the seeking of equitable relief in the case of the public's health, safety or welfare, may begin in regard to the dispute until this dispute resolution procedure has been elevated to the Contractor's highest executive authority and the equivalent executive authority within the Contracting Agency, and either of the representatives in good faith concludes, after a good faith attempt to resolve the dispute, that amicable resolution through continued negotiation of the matter at issue does not appear likely.

For other than billing disputes, prior to the initiation of any action or proceeding under this Agreement to resolve disputes between the parties, the parties shall make a good faith effort to resolve any such disputes by negotiations between their respective representatives having decision-making authority.

39. NO GUARANTEE OF QUANTITY. The State may obtain related Goods and Services from other sources during the term of this Contract. The State makes no express or implied warranties whatsoever that any particular quantity or dollar amount of Goods or Services will.

40. TERMINATION OF PURCHASE ORDER. The State may terminate a specific Purchase Order issued under this Contract if it determines that the Contractor is unable to deliver the Goods required in a timely manner, in order to meetthe business needs of the State.

41. FORCE MAJEURE. Neither party shall be in default by reason of any failure in performance of this Contract in accordance with reasonable control and without fault or negligence on their part. Such canses may include, but are not restricted to, acts of nature or the public enemy, acts of the government in either its sovereign or contractual capacity, fires, floods, epidemics, quarantine restrictions, strikes, freight embargoes and unusually severe weather, but in every case the failure to perform such must be beyond the reasonable control and without the fault or negligence of the party.

42. TIME IS OF THE ESSENCE. Timely provision of the Goods or Services required under this Contract shall be of the essence of the Contract, including the provision of the Goods or Services within the time agreed or on a date specified.

43. NO AGENCY RELATIONSHIP. The Contractor shall not take any action, or make any omission, that may imply, or cause others reasonably to infer that the Contractor is acting as the State's agent in any matter or in any way not expressly authorized by this Contract.

44. DISCLOSURE. lfa state public official (as defined in §19.42 (14) of the Wisconsin Statutes) or an organization in which a state public official holds at least a 10% interest is or becomes a party to this Agreement, it shall be voidable by the State unless appropriate disclosure is made to the State of Wisconsin Government Accountability Board, 212 East Washington Avenue, Madison, Wisconsin 53703 (Telephone 608-266-8005).

45. OTHER DOCUMENTS. The parties to this Contract understand and agree that standard forms or templates may be used for various purposes, including but not limited to, purchase orders, invoices, quotes, 'Website Terms and/or Conditions' or 'click to accept' agreement(s), some of which may contain boilerplate or standard terms and conditions ("Other Documents"). However, any use of Other Documents are not a part of this Contract and are deemed to be for administrative convenience only and the terms therein are of no effect, have no force oflaw and do not modify the terms of this Contract.

The Parties acknowledge and agree that for purposes of this Contract, the following documents will not be deemed to be "Other Documents":

AT&T Acceptable Use Policy (Exhibit A)

AT&T Provisioning Terms (Exhibit BJ Contract Pricing (Exhibit CJ Revised Special Terms and Conditions (Exhibit DJ

AT&T Acceptable Use Policy (Exhibit_)

Introduction

AT&T is at all times committed to complying with the laws and regulations governing use of the Internet, e-mail transmission and text messaging and preserving for all of its Customers the ability to use AT& T's network and the

Internet without interference or harassment from other users. The AT&T Acceptable Use Policy ("AUP") is designed to help achieve these goals.

By using IP Service(s), as defined below, Customer(s) agrees to comply with this Acceptable Use Policy and to remain responsible for its users. AT&T reserves the right to change or modify the terms of the AUP at any time, effective when posted on AT&T's web site at www.att.com/aup. Customer"s use of the IP Service(s) after changes to the AUP are posted shall constitute acceptance of any changed or additional terms.

Scope of the AUP

The AUP applies to the AT&T services that provide (or include) access to the Internet, including hosting services

(software applications and hardware}, or are provided over the Internet or wireless data networks (collectively "IP

Services").

Prohibited Activities

General Prohibitions:

AT&T prohibits use of the IP Services in any way that is unlawful, harmful to or interferes with use of AT& T's network or systems, or the network of any other provider, interferes with the use or enjoyment of services received by others, infringes intellectual property rights, results in the publication of threatening or offensive material, or constitutes

Spam/E-mail/Usenet abuse, a security risk or a violation of privacy.

Failure to adhere to the rules, guidelines or agreements applicable to search engines, subscription Web services, chat areas, bulletin boards, Web pages, USENET, applications, or other services that are accessed via a link from the AT&T-branded website or from a website that contains AT&T-branded content is a violation of this AUP.

Unlawful Activities:

IP Services shall not be used in connection with any criminal, civil or administrative violation of any applicable local, state, provincial, federal, national or international law, treaty, court order, ordinance, regulation or administrative rule.

Violation of Intellectual Property Rights:

IP Service(s) shall not be used to publish, submitlreceive, upload/download, post, use, copy or otherwise reproduce, transmit, re-transmit, distribute or store any contenUmaterial or to engage in any activity that infringes, misappropriates or otherwise violates the intellectual property rights or privacy or publicity rights of AT&T or any individual, group or entity, including but not limited to any rights protected by any copyright, patent, trademark laws, trade secret, trade dress, right of privacy, right of publicity, moral rights or other intellectual property right now known or later recognized by statute, judicial decision or regulation.

Threatening Material or Content:

IP Services shall not be used to host, post, transmit, or re-transmit any content or material (or to create a domain name or operate from a domain name), that harasses, or threatens the health or safety of others. In addition, for those IP Services that utilize AT&T provided web hosting, AT&T reserves the right to decline to provide such services if the content is determined by AT&T to be obscene, indecent, hateful, malicious, racist, defamatory, fraudulent, libelous, treasonous, excessively violent or promoting the use of violence or otherwise harmful to others.

Inappropriate Interaction with Minors:

AT&T complies with all applicable laws pertaining to the protection of minors, including when appropriate, reporting cases of child exploitation to the National Center for Missing and Exploited Children. For more information about on line safety, visit www.ncmec.org or www.att.com/safety.

Child Pornography:

IP Services shall not be used to publish, submit/receive, upload/download, post, use, copy or otherwise produce, transmit, distribute or store child pornography. Suspected violations of this prohibition may be reported to AT&T at the following e-mail address: cp@abuse-att.net. AT&T will report any discovered violation of this prohibition to the

National Center for Missing and Exploited Children and take steps to remove child pornography (or otherwise block access to the content determined to contain child pornography) from its servers.

Spam/E-mail/Usenet Abuse:

Violation of the CAN-SPAM Act of 2003, or any other applicable law regulating e-mail services, constitutes a violation of this AUP.

Spam/E-mail or Usenet abuse is prohibited using IP Services. Examples of Spam/E-mail or Usenet abuse include but are not limited to the following activities:

• sending multiple unsolicited electronic mail messages or "mail-bombing" - to one or more recipient;

• sending unsolicited commercial e-mail, or unsolicited electronic messages directed primarily at the advertising or promotion of products or services;

• sending unsolicited electronic messages with petitions for signatures or requests for charitable donations, or sending any chain mail related materials;

• sending bulk electronic messages without identifying, within the message, a reasonable means of opting out from receiving additional messages from the sender;

• sending electronic messages, files or other transmissions that exceed contracted for capacity or that create the potential for disruption of the AT&T network or of the networks with which AT&T interconnects, by virtue of quantity, size or otherwise;

• using another site's mail server to relay mail without the express permission of that site;

• using another computer, without authorization, to send multiple e-mail messages or to retransmit e-mail messages for the purpose of misleading recipients as to the origin or to conduct any of the activities prohibited by this AUP;

• using IP addresses that the Customer does not have a right to use;

• collecting the responses from uhsolicited electronic messages;

• maintaining a site that is advertised via unsolicited electronic messages, regardless of the origin of the unsolicited electronic messages;

• sending messages that are harassing or malicious, or otherwise could reasonably be predicted to interfere with another party's quiet enjoyment of the IP Services or the Internet (e.g., through language, frequency, size or otherwise);

• using distribution lists containing addresses that include those who have opted out;

• sending electronic messages that do not accurately identify the sender, the sender's return address, the e-mail address of origin, or other information contained in the subject line or header;

• falsifying packet header, sender, or user information whether in whole or in part to mask the identity of the sender, originator or point of origin;

• using redirect links in unsolicited commercial e-mail to advertise a website or service;

• posting a message to more than ten (10) online forums or newsgroups, that could reasonably be expected to generate complaints;

• intercepting, redirecting or otheiwise interfering or attempting to interfere with e-mail intended for third parties;

• knowingly deleting any author attributions, legal notices or proprietary designations or labels in a file that the user mails or sends;

• using, distributing, advertising, transmitting, or otheiwise making available any software program, product, or service that is designed to violate this AUP or the AUP of any other Internet Service Provider, including, but not limited to, the facilitation of the means to spam.

Security Violations

Customers are responsible for ensuring and maintaining security of their systems and the machines that connect to and use IP Service(s), including implementation of necessary patches and operating system updates.

IP Services may not be used to interfere with, gain unauthorized access to, or otheiwise violate the security of

AT& T's (or another party's) server, network, network access, personal computer or control devices, software or data, or other system, or to attempt to do any of the foregoing. Examples of system or network security violations include but are not limited to:

• unauthorized monitoring, scanning or probing of…