Attachment+2+Data+Migration+Contract.docx

ATTACHMENT 2 TECHNOLOGY CONTRACT: School Data Migration

Instructions to Offerors: Offeror should review RFP SECTION SIX – CONTRACT INFORMATION for information related to STATE’s contracting requirements.

The copy of the Contract to be included in the proposal must be completed as follows:

1. State “Agree” or “Propose Alternate Language” for each section.

2. If proposing alternate language, include the proposed language through edits in the body of the section by using track changes. Offerors may provide comments related to any proposed alternate language.

3. If applicable, Exhibit C Software as a Service (SaaS) Service Level Agreement (SLA) must be completed and submitted along with the proposal as part of the Technology Contract Attachment.

4. Please strike terms or conditions that are not applicable to an Offeror’s proposed solution/methodology. Include a description to clarify why the terms or conditions would not apply to this project. **DO NOT STRIKE A WHOLE SECTION WITHOUT INCLUDING A COMMENT TO CLARIFY WHY** Parties The parties to this contract (Contract) are the state of North Dakota, acting through its Department of Public Instruction (STATE), and Name of Business, a type of business (e.g. legal name, a Delaware corporation) having its principal place of business at principal business address (CONTRACTOR).

Offeror Response:

Agree or Provide Alternate Language/Comments via Redline Above

Definitions Note: Update as required.

a) Control Environment - is the set of standards, processes, and structures that provide the basis for carrying out internal control across the organization.

b) Data - means any information provided to, or collected, generated, stored, or processed by CONTRACTOR in connection with the Services provided under this Contract. Data includes user identification information and metadata which may contain Data or from which the STATE’s Data may be ascertainable, as well as any proprietary information related to the systems of data removal or schemas for data import.

c) Data Breach - means any access, destruction, loss, theft, use, modification or disclosure of Data by an unauthorized party or that is in violation of Contract terms and/or applicable state or federal law.

d) Data Classification - means the process of defining data into relevant categories so the information has the appropriate controls in place to protect confidentiality, integrity, and availability based on the type of information.

e) Personally Identifiable Information (PII) - information about an individual maintained by an agency, including that 1) can be used to distinguish or trace an individual’s identity, such as name, social security number, date and place of birth, mother’s maiden name, or biometric records; or (2) is linked or linkable to an individual, such as medical, educational, financial, and employment information.

f) Recovery Point Objective (RPO) - means the point in time to which Data can be recovered and/or systems restored when service is restored after an interruption. The Recovery Point Objective is expressed as a length of time between the interruption and the most proximate backup of Data immediately preceding the interruption. The RPO is detailed in the SLA.

g) Recovery Time Objective (RTO) - means the period within which information technology services, systems, applications and functions must be recovered following an unplanned interruption. The RTO is detailed in the SLA.

h) Retention and Deletion - CONTRACTOR shall permanently destroy or render inaccessible any portion of the Data in CONTRACTOR’s and/or subcontractor’s possession or control following the expiration or termination of the Contract. Within thirty (30) days, CONTRACTOR shall issue a written statement to the STATE confirming the destruction or inaccessibility of the STATE’s Data.

i) Software as a Service (SaaS). Any software or infrastructure hosted outside the State of North Dakota’s environment.

j) Users – means contractors, subcontractors, outsourcing vendors, consultants and others who have a need to use the software for the benefit of STATE.

Offeror Response:

Agree or Provide Alternate Language/Comments via Redline Above

Scope of Work CONTRACTOR, in exchange for the compensation paid by STATE under this Contract, shall provide deliverables and services as described in the Statement of Work, and in the documents listed in the Merger and Modification, Conflict in Documents Section.

Vendors will assist all North Dakota Local Education Agencies with their PowerSchool/TieNet data extraction and data cleansing activities to ensure successful data import to their new Infinite Campus instance.

Deliverables and expanded scope of work description will be updated based upon awarded Vendor’s proposed solution and methodology. The deliverables will align with proposed Contract Deliverables and Estimated Schedule.

1. Coordinate meetings with individual stakeholders (DPI, NDIT, EduTech, District, REA, Special Education Units, CTE)

2. Data analysis/design determination

3. Export Data from existing system

4. “Clean” data with assistance from ITD’s EduTech department and school staff

5. Provide upload file based on template from Infinite Campus

6. Report status and progress of migration

7. Confirm data transferred correctly

8. Make corrections if necessary

9. Report completed to state Offeror Response:

Agree or Provide Alternate Language/Comments via Redline Above

Compensation-payments Contractual Amount STATE shall pay for the accepted services provided by CONTRACTOR under this Contract an amount not to exceed [Amount] (Contractual Amount). The Contractual Amount shall be paid according to the Compensation Details document attached as Exhibit B. Awarded Vendor’s accepted Cost Proposal becomes Exhibit B.

The Contractual Amount is firm for the duration of this Contract and constitutes the entire compensation due CONTRACTOR for performance of its obligations under this Contract regardless of the difficulty, materials or equipment required, including fees, licenses, overhead, profit and all other direct and indirect costs or expenses incurred by CONTRACTOR except as provided by an amendment to this Contract.

Invoicing The final cost set forth on each invoice shall be equivalent to the cost for each deliverable or service as specified in the Scope of Work. CONTRACTOR shall not submit an invoice for any deliverable or service specified in the Scope of Work that STATE has not fully accepted.

Payment Payment made in accordance with this Compensation section shall constitute payment in full for the services and work performed and the deliverables provided under this Contract and CONTRACTOR shall not receive any additional compensation hereunder.

STATE shall make payment under this Contract within forty-five (45) calendar days after receipt of an approved invoice.

Payment of an invoice by STATE will not prejudice STATE’s right to object to or question that or any other invoice or matter in relation thereto. CONTRACTOR's invoice will be subject to reduction for amounts included in any invoice or payment made which are determined by STATE not to constitute allowable costs, on the basis of audits conducted in accordance with the terms of this Contract. At STATE’s sole discretion, all payments shall be subject to reduction for amounts equal to prior overpayments to CONTRACTOR.

For any amounts that are or will become due and payable to STATE by CONTRACTOR, STATE reserves the right to deduct the amount owed from payments that are or will become due and payable to CONTRACTOR under this Contract.

Prepayment STATE will not make any advance payments before performance or delivery by CONTRACTOR under this Contract.

Payment of Taxes by State STATE is not responsible for and will not pay local, state, or federal taxes. STATE sales tax exemption number is E-2001. STATE will furnish certificates of exemption upon request by CONTRACTOR.

Taxpayer ID CONTRACTOR’s federal employer ID number is: [Insert FEIN].

Purchasing Card STATE may make payment using a government credit card. CONTRACTOR will accept a government credit card without passing the processing fees for the government credit card back to STATE.

Offeror Response:

Agree or Provide Alternate Language/Comments via Redline Above

Term of Contract This Contract term (Term or Initial Term) begins on [Month, Day], 20[Year] or its Effective Date, and ends on [Month, Day], 20[Year].

1. No Automatic Renewal This Contract will not automatically renew.

Extension Option STATE reserves the right to extend this Contract for an additional period, not to exceed twelve (12) months, beyond the current termination date of this Contract.

Offeror Response:

Agree or Provide Alternate Language/Comments via Redline Above

Termination

1. Termination for Convenience or by Mutual Agreement This Contract may be terminated by STATE upon thirty (30) days’ written notice to CONTRACTOR. This Contract may be terminated by mutual consent of both Parties executed in writing.

Early Termination in the Public Interest STATE is entering this Contract for the purpose of carrying out the public policy of the State of North Dakota, as determined by its Governor, Legislative Assembly, Agencies, and Courts. If this Contract ceases to further the public policy of the State of North Dakota, STATE, in its sole discretion, by written notice to CONTRACTOR, may terminate this Contract in whole or in part.

Termination for Lack of Funding or Authority STATE, by written notice to CONTRACTOR, may terminate the whole or any part of this Contract under any of the following conditions:

0. If funding from federal, state, or other sources is not obtained or continued at levels sufficient to allow for purchase of the services or goods in the indicated quantities or term.

If federal or state laws or rules are modified or interpreted in a way that the services or goods are no longer allowable or appropriate for purchase under this Contract or are no longer eligible for the funding proposed for payments authorized by this Contract.

If any license, permit, or certificate required by law or rule, or by the terms of this Contract, is for any reason denied, revoked, suspended, or not renewed.

Termination of this Contract under this subsection is without prejudice to any obligations or liabilities of either Party already accrued prior to termination.

Termination for Cause.

STATE may terminate this Contract effective upon delivery of written notice to CONTRACTOR, or any later date stated in the notice:

0. If CONTRACTOR fails to provide services or goods required by this Contract within the time specified or any extension agreed to in writing by STATE; or If CONTRACTOR fails to perform any of the other provisions of this Contract, or so fails to pursue the work as to endanger performance of this Contract in accordance with its terms.

The rights and remedies of STATE provided in this subsection are not exclusive and are in addition to any other rights and remedies provided by law or under this Contract.

Upon termination or expiration of the Contract for any reason, each Party shall immediately cease use of all Confidential Information belonging to the other Party and shall irretrievably delete and/or remove such items from all computer hardware and storage media, including backups.

Offeror Response:

Agree or Provide Alternate Language/Comments via Redline Above

Suspension for Convenience STATE shall have the right at any time to order the services of CONTRACTOR fully or partially stopped for STATE’s own convenience. STATE shall provide CONTRACTOR written notice of the reason for and duration of the suspension. The schedule shall be delayed on a day-for-day basis to the extent STATE has issued a stop work order to CONTRACTOR and such stop work order is causing delays in completing services in accordance with the schedule. CONTRACTOR shall have the right to submit claims in accordance with the terms of this Contract as a result of stop work orders issued under this section.

Offeror Response:

Agree or Provide Alternate Language/Comments via Redline Above

Force Majeure Neither Party shall be held responsible for delay or default caused by fire, riot, terrorism, pandemic (excluding COVID-19), acts of God, or war if the event was not foreseeable through the exercise of reasonable diligence by the affected Party, the event is beyond the Party’s reasonable control, and the affected Party gives notice to the other Party promptly upon occurrence of the event causing the delay or default or that is reasonably expected to cause a delay or default. If CONTRACTOR is the affected Party and does not resume performance within fifteen (15) days or another period agreed between the Parties, then STATE may seek all available remedies, up to and including termination of this Contract pursuant to its Termination Section, and STATE shall be entitled to a pro-rata refund of any amounts paid for which the full value has not been realized, including amounts paid toward software subscriptions, maintenance, or licenses.

Offeror Response:

Agree or Provide Alternate Language/Comments via Redline Above

Injunctive Relief CONTRACTOR shall immediately report to STATE any and all unauthorized disclosures or uses of STATE’s confidential information or proprietary information of which CONTRACTOR or its staff is aware or has knowledge. CONTRACTOR acknowledges that any unauthorized publication or disclosure of STATE’s confidential information or proprietary information to others may cause immediate and irreparable harm to STATE. If CONTRACTOR should publish or disclose such confidential information or proprietary information without authorization, STATE shall immediately be entitled to injunctive relief or any other remedies to which it is entitled under law or equity without requiring a cure period. CONTRACTOR shall indemnify, defend, and hold harmless STATE from all damages, costs, liabilities, and expenses (including without limitation reasonable attorneys’ fees) caused by or arising from CONTRACTOR’s unauthorized use or disclosure of STATE’s confidential information or proprietary information. As a condition to these indemnity obligations, STATE will provide CONTRACTOR with prompt notice of any claim of which STATE is aware and for which indemnification shall be sought under this Contract and shall cooperate in all reasonable respects with CONTRACTOR in connection with any such claim.

Offeror Response:

Agree or Provide Alternate Language/Comments via Redline Above

Right to Withhold Amounts Otherwise Due if the Contractor is in Breach If CONTRACTOR fails to deliver Deliverables or to provide Services which satisfy CONTRACTOR’s obligations under this Contract, STATE shall have the right to withhold any and all payments due under this Contract. STATE may withhold any and all such payments due under this Contract to CONTRACTOR without penalty or work stoppage by CONTRACTOR, until such failure to perform is cured.

Offeror Response:

Agree or Provide Alternate Language/Comments via Redline Above

Right to Remedies AND CUMULATION OF RIGHTS No remedy conferred by any of the specific provisions of this Contract is intended to be exclusive of any other remedy, and each and every remedy shall be cumulative and shall be in addition to every other remedy given under this Contract, now or in the future existing at law or in equity or by statute or otherwise.

Offeror Response:

Agree or Provide Alternate Language/Comments via Redline Above

Non-Waiver Either party’s failure to exercise any of its rights under this Contract, its delay in enforcing any right, or its waiver of its rights on any occasion, shall not constitute a waiver of such rights on any other occasion. No course of dealing by either party in exercising any of its rights shall constitute a waiver thereof. No waiver of any provision of this Contract shall be effective unless it is in writing and signed by the party against whom the waiver is sought to be enforced.

Offeror Response:

Agree or Provide Alternate Language/Comments via Redline Above

Indemnification CONTRACTOR agrees to defend, indemnify, and hold harmless the state of North Dakota, its agencies, officers and employees (State), from and against claims based on the vicarious liability of the State or its agents, but not against claims based on the State’s contributory negligence, comparative and/or contributory negligence or fault, sole negligence, or intentional misconduct. This obligation to defend, indemnify, and hold harmless does not extend to professional liability claims arising from professional errors and omissions. The legal defense provided by CONTRACTOR to the State under this provision must be free of any conflicts of interest, even if retention of separate legal counsel for the State is necessary. Any attorney appointed to represent the State must first qualify as and be appointed by the North Dakota Attorney General as a Special Assistant Attorney General as required under N.D.C.C. § 54-12-08. CONTRACTOR also agrees to reimburse the State for all costs, expenses and attorneys' fees incurred if the State prevails in an action against CONTRACTOR in establishing and litigating the indemnification coverage provided herein. This obligation shall continue after the termination of this Contract.

Offeror Response:

Agree or Provide Alternate Language/Comments via Redline Above

Intellectual Property Infringement Indemnification

a. CONTRACTOR, at its own expense, shall defend and indemnify STATE against claims that products furnished under this Contract infringe a United States patent or copyright or misappropriate trade secrets protected under United States law.

CONTRACTOR’S obligation shall not extend to a claim based on any alleged infringement arising from any: (a) additions, changes, or modifications to the services by or on behalf of STATE; (b) incorporation of the services or any component thereof into any other product or process; or (c) use of the services other than as permitted by this Contract.

b. As to any product which is subject to a claim of infringement or misappropriation, CONTRACTOR may (a) obtain the right of continued use of the product for STATE or (b) replace or modify the product to avoid the claim. If neither alternative is available on commercially reasonable terms then, at the request of CONTRACTOR, any applicable Software license and its charges will end, STATE will stop using the product, and will return the product to CONTRACTOR. Upon return of the product, CONTRACTOR will give STATE a credit for the price paid to CONTRACTOR, less a reasonable offset for use and obsolescence.

Offeror Response:

Agree or Provide Alternate Language/Comments via Redline Above

Representations and Warranties CONTRACTOR represents and warrants to STATE that neither CONTRACTOR, in connection with performing the services in performance of this Contract, nor the completed product delivered by CONTRACTOR, will infringe any patent, copyright, trademark, trade secret or other proprietary right of any person. CONTRACTOR further represents and warrants to STATE that it will not use any trade secrets or confidential or proprietary information owned by any third party in performing the services related to this Contract or in delivery of the completed product unless CONTRACTOR has the authority to license, use or provide those trade secrets or confidential or proprietary information to STATE. CONTRACTOR further represents and warrants to STATE that neither CONTRACTOR nor any other company or individual performing services pursuant to this Contract is under any obligation to assign or give any work done under this Contract to any third party.

Offeror Response:

Agree or Provide Alternate Language/Comments via Redline Above

Insurance

a. CONTRACTOR shall provide certificate of insurance and any endorsements to STATE electronically via to:

Name: INSERT NAME Email Address: INSERT EMAIL ADDRESS (email should be an agency contact or agency info account) Email Subject Line: Certificate of Insurance - INSERT CONTRACT NUMBER/NAME

b. CONTRACTOR shall secure and keep in force during the term of this Contract and CONTRACTOR shall require all subcontractors, prior to commencement of an agreement between CONTRACTOR and the subcontractor, to secure and keep in force during the term of this CONTRACT, from insurance companies, government self-insurance pools or government self-retention funds, authorized to do business in North Dakota, the following insurance coverages:

1) Commercial general liability, including premises or operations, contractual, and products or completed operations coverages (if applicable), with minimum liability limits of $2,000,000 per occurrence.

2) Workers compensation coverage meeting all statutory requirements. The policy shall provide coverage for all states of operation that apply to the performance of this Contract.

3) Professional errors and omissions with minimum limits of $1,000,000 per claim and in the aggregate, CONTRACTOR shall continuously maintain such coverage during the Contract period and for three years thereafter. In the event of a change or cancellation of coverage, CONTRACTOR shall purchase an extended reporting period to meet the time periods required in this section.

c. The insurance coverages listed above must meet the following additional requirements:

1) Any deductible or self-insured retention amount or other similar obligation under the policies shall be the sole responsibility of the CONTRACTOR.

2) This insurance may be in policy or policies of insurance, primary and excess, including the so-called umbrella or catastrophe form and must be placed with insurers rated “A-” or better by A.M. Best Company, Inc., provided any excess policy follows form for coverage. Less than an “A-” rating must be approved by the State. The policies shall be in form and terms approved by the State.

3) The duty to defend, indemnify, and hold harmless the State under this agreement shall not be limited by the insurance required in this agreement.

4) The state of North Dakota and its agencies, officers, and employees (State) shall be endorsed on the commercial general liability policy, including any excess policies (to the extent applicable), as additional insured. The State shall have all the benefits, rights and coverages of an additional insured under these policies that shall not be limited to the minimum limits of insurance required by this agreement or by the contractual indemnity obligations of the CONTRACTOR.

5) A Waiver of Subrogation” waiving any right to recovery the insurance company may have against the State.

6) CONTRACTOR shall furnish a certificate of insurance to the undersigned STATE representative electronically prior to commencement of this agreement. All endorsements shall be provided as soon as practicable.

7) Failure to provide insurance as required in this agreement is a material breach of contract entitling STATE to terminate this agreement immediately.

8) CONTRACTOR shall provide at least 30-day notice of any cancellation or material change to the policies or endorsements. CONTRACTOR shall provide on an ongoing basis, current certificates of insurance during the term of the Contract. A renewal certificate will be provided electronically 10 days prior to coverage expiration.

Offeror Response:

Agree or Provide Alternate Language/Comments via Redline Above

Cyber liability and security insurance In the event CONTRACTOR will host data, or provide for the hosting of data through a third-party entity, CONTRACTOR shall secure and maintain Cyber Liability and Security Insurance or equivalent insurance product(s), with minimum liability limits of not less than $5,000,000 and first party limits of not less than $1,000,000, that will provide, without cost to the CONTRACTOR or STATE, an immediate response in the event of a data breach, including meeting all notification obligations of CONTRACTOR and STATE and in the event the data breach involves personal information as defined by N.D.C.C. § 51-30-1(4), the insurance policy shall also make available free credit monitoring for any affected individual for a minimum period of one year. CONTRACTOR shall defend, indemnify, save and hold harmless, the STATE, its officers, agents and employees from liability of any nature or kind, including costs and expenses, on account of a data breach arising from CONTRACTOR hosting, transmission, or control of data, any and all suits, claims, or damages of any character whatsoever, resulting from injuries or damages sustained by any person or persons or property by virtue of performance of this Contract.

CONTRACTOR shall require any Subcontractor(s), prior to commencement of any agreement between CONTRACTOR and Subcontractor(s), to secure and keep in force during the Term of this Contract, Cyber Security and Liability Insurance coverage that meets the minimum liability limits of not less than $5,000,000 and first party limits of not less than $1,000,000, that will provide an immediate response in the event of a data breach, including meeting the same notification obligations of STATE and CONTRACTOR.

Offeror Response:

Agree or Provide Alternate Language/Comments via Redline Above

Works for Hire CONTRACTOR acknowledges that all work(s) under this Contract is "work(s) for hire" within the meaning of the United States Copyright Act (Title 17 United States Code) and hereby assigns to STATE all rights and interests CONTRACTOR may have in the work(s) it prepares under this Contract, including any right to derivative use of the work(s). All software and related materials developed by CONTRACTOR in performance of this Contract for STATE shall be the sole property of STATE, and CONTRACTOR hereby assigns and transfers all its right, title, and interest therein to STATE. CONTRACTOR shall execute all necessary documents to enable STATE to protect STATE’s intellectual property rights under this section.

Offeror Response:

Agree or Provide Alternate Language/Comments via Redline Above

Work Product All work product, equipment or materials created for STATE or purchased by STATE under this Contract belong to STATE and must be immediately delivered to STATE at STATE's request upon termination of this Contract.

Offeror Response:

Agree or Provide Alternate Language/Comments via Redline Above

Personnel

1. STATE will designate a Project Manager to serve as the primary project manager for this Contract. If, during the course of this Contract, it becomes necessary for STATE to change the person assigned as STATE’s Project Manager, STATE will notify CONTRACTOR in writing, pursuant to Notice section of this Contract.

1. Unless STATE otherwise notifies CONTRACTOR, STATE’s Project Manager shall carry out STATE’s administrative and management functions under this Contract, shall be responsible for acceptance of the Contract deliverables, and shall provide support and overall direction to CONTRACTOR.

1. CONTRACTOR will designate a Project Manager and provide individuals to meet the requirements and accomplish the work as stated in this Contract including any mutually agreed upon Scope of Work.

1. CONTRACTOR agrees and understands that STATE’s execution of this Contract is predicated, in part and among other considerations, on the utilization of the specific individuals and personnel qualifications as identified; primary being name of appropriate personnel, if applicable. Therefore, CONTRACTOR agrees that:

0. Prior to reassignment of personnel, CONTRACTOR shall obtain written approval from STATE for all personnel to be assigned to this project.

The personnel assigned must have the knowledge necessary to complete requirements as defined in this Contract.

CONTRACTOR shall warrant that all personnel assigned to perform tasks in response to this Contract will remain assigned for the agreed-upon length of time.

No replacement, reassignment or substitution of any assigned individuals and personnel qualifications shall be made without the prior written approval of STATE and that such replacement, reassignment or substitution shall be made at no additional cost to STATE.

Any substitution made pursuant to this paragraph must be of equal or higher skills, knowledge, and abilities than those personnel originally proposed, and that STATE’s approval of a substitution is not construed as an acceptance of the substitution’s performance potential. STATE agrees that an approval of a substitution will not be unreasonably withheld.

1. Upon request by STATE, CONTRACTOR shall replace any CONTRACTOR personnel that STATE determines, in its sole discretion, to be unable to perform the responsibilities of this Contract acceptably, e.g., inappropriate or unprofessional personal conduct, professional inabilities, etc.

1. STATE's working hours are Monday through Friday from 8:00 AM until 5:00 PM (CST or CDT) with one hour for lunch. STATE Project Manager may approve alternate work schedules.

1. According to STATE policy, STATE personnel are only obligated to work a forty-hour workweek, Monday through Friday, and are allowed reasonable vacation, sick and educational absences.

1. CONTRACTOR’s personnel are not expected to work on State holidays or other mandatory leave days.

1. CONTRACTOR agrees that STATE may require any personnel CONTRACTOR assigns to perform work under this Contract, including employees, contracted staff, subcontractors, or other individuals, to submit to a criminal history record check in accordance with N.D.C.C. §12-60-24, through the authority granted to the chief information officer of the STATE pursuant to N.D.C.C. § 54-59-20. STATE shall have the right to reject any individual CONTRACTOR assigns to perform work under this Contract if, in STATE’s sole discretion, it determines that the results of the criminal history record check make the individual unacceptable. CONTRACTOR agrees to be responsible for all costs associated with criminal history record checks carried out pursuant to this paragraph.

Offeror Response:

Agree or Provide Alternate Language/Comments via Redline Above

Project Management

1. Reporting

0. CONTRACTOR personnel will be responsible for providing written, weekly/every other week/monthly time utilization, for each individual, to STATE’s Project Manager, or STATE’s project staff, as STATE’s Project Manager may assign.

CONTRACTOR’s Project Manager shall deliver to STATE’s Project Manager, weekly/every other week/monthly report of CONTRACTOR’s progress on the project and meeting the objective/deliverables as stated in the Scope of Work. Each report must contain a description of the current status of the project, the tasks on which time was spent, the estimated progress to be made in the next reporting period, and the problems encountered the proposed solutions to them and their effect, if any, on the project budget/schedule.

Project Variance Reporting – CONTRACTOR must provide data to allow STATE’s project manager to calculate cost and schedule variance in accordance with N.D.C.C. § 54-59-23 as determined by STATE. If STATE’s analysis shows a negative cost or schedule variance exceeding 20%, a subsequent report must also provide proposed corrective measures to address the issues.

Integrated Change Control Process CONTRACTOR and STATE will utilize an integrated change control process to manage changes during the life of a project.

0. A change request must be in writing to document the potential change. The write-up for the proposed change must be submitted to CONTRACTOR and STATE’s project managers who will in turn provide it to relevant Parties for assessment.

0. All change requests will be logged and tracked. STATE’s project manager will record the request in the project repository and will update the repository throughout the process.

0. The change will be reviewed and, if acceptable to STATE, CONTRACTOR will submit to STATE an estimate of the impact to cost, schedule, scope, and quality.

0. CONTRACTOR will continue performing the services in accordance with the original Contract unless otherwise agreed upon by STATE’s project manager. Work shall not commence on any new activities related to the change request until all Parties agree in writing.

0. CONTRACTOR’s project manager and STATE’s project manager will adapt the Project Management Plan to incorporate approved changes.

0. Each change request duly authorized in writing by the Parties shall be incorporated into and considered part of this Contract.

0. During the course of this Contract, if CONTRACTOR determines or could reasonably determine any STATE actions or directions constitute a requirement to perform additional work, CONTRACTOR shall notify STATE within thirty (30) calendar days that STATE has requested CONTRACTOR to perform additional work in the form of a change request utilizing the process above. CONTRACTOR understands that it waives the right to request additional time and reimbursable costs if CONTRACTOR fails to notify STATE within thirty (30) calendar days of determining or reasonably being able to determine that any STATE actions or directions constitute a requirement to perform additional work under this Contract.

Deliverable Acceptance

0. Upon completion of a deliverable, CONTRACTOR will furnish STATE with the deliverable and associated documentation, the expected performance, and agreed upon Acceptance Criteria.

After receipt of items in Paragraph 25(c)(1), STATE will have five (5) working days or a different period of time as is agreed to by the Parties in the Project Schedule, in which to accept or reject each item in writing. STATE will accept by signature. If STATE rejects it, STATE will specify in writing its grounds for rejection and CONTRACTOR shall use its best efforts to revise any issues for the deliverables to be acceptable to STATE within the following five (5) working days. If STATE rejects it a second time, STATE will have the option of repeating the procedure as described in this acceptance statement above, escalating the issue to Agency Head, or terminating this Contract upon written notice to CONTRACTOR.

Final Acceptance

0. The successful completion of all deliverables as stated in the Scope of Work in accordance with the deliverable acceptance process AND The final delivered product fully implemented in STATE’s live production environment AND STATE has sixty (60) calendar days thereafter in which to accept or reject it in writing. If STATE rejects it, STATE shall specify in writing its grounds for rejection and CONTRACTOR shall use its best efforts to make the product conform to the requirements of this Contract as soon as possible and at no additional cost to STATE. CONTRACTOR shall continue to use its best efforts to make the product conform to the requirements of this Contract until STATE accepts the product or terminates this Contract upon written notice to CONTRACTOR.

Offeror Response:

Agree or Provide Alternate Language/Comments via Redline Above

Product Conformity STATE has twelve (12) months following Final Acceptance of the product(s) delivered by CONTRACTOR pursuant to this Contract to verify that the product(s) conform to the requirements of this Contract and perform according to CONTRACTOR system design specifications. Upon recognition of an error, deficiency, or defect, by STATE, CONTRACTOR shall be notified by STATE citing any specific deficiency (deficiency being defined as CONTRACTOR having performed incorrectly with the information provided by STATE, not CONTRACTOR having to modify a previous action due to additional and/or corrected information from STATE). CONTRACTOR, at no additional charge to STATE, shall provide a correction or provide a mutually acceptable plan for correction within thirty (30) calendar days following the receipt of STATE’s notice to CONTRACTOR. If CONTRACTOR’s correction is inadequate to correct the deficiency, or defect, or the error recurs, STATE may, at its option, act to correct the problem. CONTRACTOR shall be required to reimburse STATE for any such costs incurred or STATE may consider this to be cause for breach of contract.

Offeror Response:

Agree or Provide Alternate Language/Comments via Redline Above

Warranty CONTRACTOR shall provide a # day warranty upon Final Acceptance.

Offeror Response:

Agree or Provide Alternate Language/Comments via Redline Above

Software License Note: OPTIONAL SOFTWARE LICENSE, SUPPORT, HOSTING CLAUSES - Often the Contractor will provide separate software license and software support/maintenance agreements. Insert the following clauses as necessary in the license agreement. Delete these sections if not applicable.

All ownership rights to CONTRACTOR’s software provided to STATE under this Contract (intellectual property owned by CONTRACTOR prior to performance of this Contract) shall remain with CONTRACTOR. If CONTRACTOR incorporates any of CONTRACTOR’s Software in any work product provided to STATE, CONTRACTOR agrees to provide written notice to STATE of its incorporation in the work product and to convey to STATE a non-exclusive, perpetual, cost-free license, and patent and copyright indemnity, for STATE to use that software for its intended purpose.

Offeror Response:

Agree or Provide Alternate Language/Comments via Redline Above

License Grant and Scope of Use Note: The Contract should include the broadest usage for the agency that is entering the Contract. If this is a statewide Contract used by multiple agencies, be sure that is clearly conveyed in the scope of the license use language. If this is a critical application that will be using STATE’s disaster recovery location, ensure that the Contract allows the application to be installed in a disaster recovery high availability environment.

If this is a SaaS purchase, revise if applicable or delete entirety.

Offeror Note: If this is a SaaS offering, this section may not apply and could potentially be deleted. If this is not a SaaS offering, provide information in the Offeror Response to assist STATE in completing items in red font.

1. Licensing

0. CONTRACTOR grants to STATE a perpetual, nonexclusive license to use the software and associated documentation, plus any additional software which shall be added by mutual agreement of the Parties during the term of this Contract.

The license usage model is based on clearly describe license model, i.e., concurrent users, named users, total employees, etc.

The license grant shall be extended to any contractors, subcontractors, outsourcing vendors, consultants and others who have a need to use the software for the benefit of STATE.

There shall be no limit on the number of machines, number of locations, or size of processors on which STATE can operate the software.

Software Functionality and Replacement This software licensed by CONTRACTOR to STATE provides the following functionality:

Describe functionality of software product licensed Regarding this software functionality licensed by CONTRACTOR to STATE, CONTRACTOR agrees that:

0. CONTRACTOR shall provide software/hardware updates at no additional cost to the STATE, including any professional services needed.

0. If CONTRACTOR reduces or replaces the functionality contained in the licensed product and provides this functionality as a separate or renamed product, then STATE shall be entitled to license such software product at no additional license or maintenance fee.

If CONTRACTOR releases an option, future product or other release that has substantially the same functionality as the software product licensed to STATE, and it ceases to provide maintenance for the older software product, then STATE shall have the option to exchange licenses for such replacement product or function at no additional charge.

Purchase of Additional Licenses STATE may purchase additional software licenses during the term of this Contract at the same price offered by CONTRACTOR under the terms of this Contract.

Delivery of Authorized Software Only CONTRACTOR shall not ship any software to STATE that STATE is not authorized to use.

Authorized Software Platform STATE may transfer the software, at no additional cost, to any hardware platform, software operating system or database that CONTRACTOR supports for the software.

Offeror Response:

Agree or Provide Alternate Language/Comments via Redline Above

Software Maintenance Note: If the purchase is for a SaaS this section may be deleted if not applicable and section 32 is utilized based on a subscription model purchase.

Offeror Note: If this is a SaaS offering, this section may not apply and could potentially be deleted as SaaS maintenance is covered under SaaS SLA Agreement listed below. If this is not a SaaS offering, provide information in the Offeror Response to assist STATE in completing items in red font.

CONTRACTOR shall provide, and STATE may subscribe to, Maintenance Services, including software/hardware updates and technical support services as defined in Exhibit X, for the product(s) delivered pursuant to this Contract commencing at the end of the warranty period. CONTRACTOR and STATE shall negotiate the terms and price of such Maintenance Services. CONTRACTOR warrants that it will continue to offer Maintenance Services for the product(s) for a minimum of five (5) years from the date of final acceptance or installation date of any software/product update.

SELECT ONE OR REVISE AS NEEDED

Option 1 - DELETE IF NOT USED The maintenance period begins on [Month, Day], 20[Year], and continues on an annual basis for X years.

Option 2 - DELETE IF NOT USED The maintenance period begins with a prorated period on [Month, Day], 20[Year], and continues on an annual basis for X years.

1. Maintenance Fee Cap CONTRACTOR agrees that any change to the annual Maintenance Services fee may increase by not more than the lower of 3% or Consumer Price Index (CPI). The rates shall be adjusted in accordance with the index titled “All Urban Consumers (CPI-U). for the U.S. City Average. All Items 1982-84=100”, prepared by the U.S. Bureau of Labor Statistics.

Right to Change Support Plan Level STATE may choose to change its subscription to CONTRACTOR’s Maintenance Services plan to a higher or lower level plan that is offered by CONTRACTOR at this Contract’s next renewal date upon thirty (30) calendar days’ notice to CONTRACTOR.

Right to Modify or Cancel Support

0. STATE may choose to cancel Maintenance Services at this Contract’s next renewal date upon thirty (30) calendar days’ notice to CONTRACTOR.

STATE may delete a subset of licenses that are no longer in use from Maintenance Services at this Contract’s next renewal date upon thirty (30) calendar days’ notice to CONTRACTOR.

STATE may resume Maintenance Services for lapsed periods by paying CONTRACTOR an amount no greater than the amount that would have been due if maintenance services had been continued over the lapsed period. Upon payment of such amounts for lapsed periods, CONTRACTOR agrees to provide STATE with the right to any upgrades released during that period.

Offeror Response:

Agree or Provide Alternate Language/Comments via Redline Above

Software Support – Service Level Requirement Note: Modify the following according to meet agency business need. If this is a SaaS purchase remove this section to avoid duplication.

Offeror Note: If this is a SaaS offering, this section may not apply and could potentially be deleted as SaaS Service Level Requirements are covered under the SaaS Exhibit. If this is not a SaaS offering, provide information in the Offeror Response to assist STATE in completing items in red font.

CONTRACTOR will respond to STATE requests for software support services regarding the licensed software in accordance with the procedures identified below. In each case, STATE may describe and submit the problem by telephone, email, or online helpdesk/service desk tool. STATE will determine the Severity level. The Severity level will not be changed unless agreed to by STATE and CONTRACTOR.

High Impact – software unusable

4 hours Describe escalation procedure

Medium Impact – software useable with severely restricted functionality or performance

8 hours (1 business day) Describe escalation procedure

Low Impact – software useable with minor impact on functionality or performance

40 hours (1 business week) Describe escalation procedure

CONTRACTOR’S failure to meet the above defined Response Times or Resolution Times in any given month during the term and any renewal term shall be deemed a service level default (“Service Level Default”) and STATE may obtain the non-exclusive remedies set forth below.

Response and Resolution Service Levels (calculated monthly on a per incident basis) Service Level Credit (Prorated Fees – Monthly)

In the event STATE is eligible for a 20% Service Level Credit under this section for any two (2) consecutive months of the term, STATE may terminate this Contract without penalty upon written notice to CONTRACTOR.

Credits shall be applied against the next invoice. In the event a Service Level Default occurs after a party has given notice of termination, or STATE has made final payment to CONTRACTOR for the software support services and no further invoices shall issue as a result, CONTRACTOR shall refund to STATE the amount of the appropriate Service Level Credit due for the period of default.

Offeror Response:

Agree or Provide Alternate Language/Comments via Redline Above

Software as a Service (SAAS) and Service Level Agreement (SLA) Note: This section is for SaaS Services (Hosting Services).

If SaaS services are provided by CONTRACTOR, the agency must first obtain a hosting waiver approved by ITD and OBM. N.D.C.C. § 54-59-22 requires ITD host all information technology systems unless a hosting exemption is granted. Insert the following clauses.

Offeror Note: If this is not a SaaS offering, this section does not apply and will be deleted. If this is a SaaS offering, provide information in the Offeror Response to assist STATE in completing items in red font.

The terms and service level obligations are set forth in Exhibit C Software as a Service (SaaS) Service Level Agreement (SLA) are made a part of this Contract through its reference here. CONTRACTOR shall provide Subscription Services, including software/hardware updates and technical support services for the Subscription Services pursuant to this Contract commencing at the end of the warranty period. CONTRACTOR and STATE shall negotiate the terms and price of such services. CONTRACTOR warrants that it will continue to offer Subscription Services for the product(s) for a minimum of five (5) years from the date of final acceptance of any software/product update.

1. Subscription Services:

Define what CONTRACTOR is providing to STATE – access to and use of what software, maintenance, upgrade protection, support, etc.

0. The service is based on (include how service is based upon such as users, total employees, etc.).

Service shall be extended to any Users who have a need to use the SaaS for the benefit of STATE.

There shall be no limit on the number of machines, number of locations, or size of processors on which STATE can operate the service.

CONTRACTOR shall provide software/hardware updates at no additional cost to the STATE, including any professional services needed.

If CONTRACTOR reduces or replaces the functionality contained in the software and provides this functionality as a separate or renamed product, then STATE shall be entitled to usage of such software product at no additional fees.

1. Subscription Period

SELECT ONE OR REVISE AS NEEDED

Option 1- DELETE IF NOT USED The subscription period begins on [Month, Day], 20[Year], and continues on an annual basis for X years.

Option 2 - DELETE IF NOT USED The subscription period begins with a prorated period on [Month, Day], 20[Year], and continues on an annual basis for X years.

Purchase of Additional Users STATE may purchase additional Users during the term of this Contract at the same price offered by CONTRACTOR under the terms of this Contract.

Subscription Fee Cap CONTRACTOR agrees that any change to the annual Services fee may increase by not more than the lower of 3% or Consumer Price Index (CPI). The rates shall be adjusted in accordance with the index titled “All Urban Consumers (CPI-U). for the U.S. City Average. All Items 1982-84=100”, prepared by the U.S. Bureau of Labor Statistics.

Right to Change Support Plan Level STATE may choose to change its subscription to CONTRACTOR’s Subscription Services plan to a higher or lower level plan that is offered by CONTRACTOR at the Contract’s next renewal date upon thirty (30) calendar days’ notice to CONTRACTOR.

Right to Modify or Cancel Services STATE may choose to cancel Subscription Services at this Contract’s next renewal date upon thirty (30) calendar days’ notice to CONTRACTOR.

Offeror Response:

Agree or Provide Alternate Language/Comments via Redline Above datA security

a) Remote access to Data from outside the United States, including remote access to Data by authorized support staff in identified support centers, is prohibited.

b) CONTRACTOR shall transmit, process, and store STATE Data within the continental United States.

c) CONTRACTOR shall notify STATE at least 90 days prior to any relocation of STATE’s Data to a different hosting facility. STATE reserves the right to terminate the Contract without penalty if STATE does not approve of the new hosting facility.

Offeror Response:

Agree or Provide Alternate Language/Comments via Redline Above single sign on CONTRACTOR shall comply with STATE authentication standards requiring integration of State users with the STATE's Azure Active Directory and/or Active Directory as the only method of authentication.

Offeror Response:

Agree or Provide Alternate Language/Comments via Redline Above use of artificial intelligence (ai) and machine…