Attachment+#3+Technology+Contract+(1).docx

ATTACHMENT #3

TECHNOLOGY CONTRACT: ND DOCR Client Management System

Instructions to Offerors: Offeror should review 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. Offerors may provide comments related to any proposed alternate language.

3. Give consideration if you want the Offeror to provide a draft of the Exhibit A Scope of Work as part of their proposal. Adjust as needed. Exhibit A Scope of Work and Exhibit B Compensation Details do not need to be completed as part of your proposal response. These exhibits will be completed during contract negotiations.

4. 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.

Parties The parties to this contract (Contract) are the state of North Dakota, acting through its Department/Office (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 Propose Alternate Language/Comments

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 the system. Data includes user identification information and metadata which may contain Data or from which the STATE’s Data may be ascertainable.

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

i) 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 Propose Alternate Language/Comments

Scope of Work Note: If the Scope of Work (SOW) is brief, insert your language into the sentence provided directly below. If the SOW is a lengthy document, you may consider referencing the SOW as a separate section at the end of the Contract. A sample SOW section is provided in Exhibit A.

CONTRACTOR, in exchange for the compensation paid by STATE under this Contract, shall provide SOW description as described in the Statement of Work (Exhibit A) and in the documents listed in the Merger and Modification, Conflict in Documents Section.

Offeror Response:

Agree or Propose Alternate Language/Comments

Compensation-payments Note: A sample Compensation Details section is provided in Exhibit B. The STATE and CONTRACTOR may negotiate payment terms for all commodities and services procured. If a date for payment is not specified in this Contract, payment must be made pursuant to section 13-01.1-01. (N.D.C.C. 54-44.4-13.1) 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.

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.

Retainage All deliverable payments shall be subject to 20% retainage. Retained amounts due to CONTRACTOR shall be paid upon Final Acceptance.

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.

Travel CONTRACTOR acknowledges travel expenses are covered by the Contractual Amount and shall not invoice STATE for travel expenses.

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 Propose Alternate Language/Comments

Equipment, Materials, and Workspace – Resources provided by Parties For periods during which the Parties mutually agree that CONTRACTOR’s assigned staff is on site:

1. On site means: North Dakota State Penitentiary, 3100 Railroad Avenue, Bismarck, ND 58506-5521

1. STATE agrees to provide an adequate working space, when required.

1. Equipment and software for on-site CONTRACTOR personnel is to be provided by CONTRACTOR.

1. When STATE and CONTRACTOR agree that remote access to systems is required, STATE shall provide the necessary supervised remote access security to enable CONTRACTOR access to the appropriate STATE systems.

Offeror Response:

Agree or Propose Alternate Language/Comments

Term of Contract Note: If you have a known date for Term of Contract you may include a date. The end date should be based on the length of the Contract based upon anticipated Final Acceptance. The contract schedule should be discussed in the RFP. Extension and Renewal Options, should not be include in the end date.

This Contract term (Term or Initial Term) begins on on its effective date and ends 24 months after GoLive.

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

Note: Any exercise of an Extension, Renewal, or Renegotiation requires a written contract amendment identifying the amended terms and conditions. Contract amendments should be drafted in consultation with assigned legal counsel.

Renewal Option Note: A Renewal provision is included when a multi-year contract is anticipated. The renewal provision allows the Contract to be renewed for additional terms after the completion of the initial Contract period. When identifying the number and length of renewals, keep in mind that the term of the Contract plus the renewal years are often calculated to cover implementation of the product plus a set number of years during which STATE may seek maintenance and support.

STATE may renew this Contract upon satisfactory completion of the Initial Term. STATE reserves the right to execute up to five options to renew this Contract under the same terms and conditions for a period of 12 months each (Renewal Term).

Extension Option Note: An Extension is a brief period of time used to wrap up ongoing work that could not be completed by the end of the Contract. It may also be used when all renewal options have been exercised and additional time is needed to close out the Contract.

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

Renegotiation Option Note: A Renegotiation option would normally be used for a strategic solution/product, for example a critical line-of-business application that is expected to be used for an extended period of time and where it is in STATE’s best interest to have the ability to renegotiate the Contract. Renegotiation occurs after completion of the initial term and any extensions and renewals.

Because it is unknown how long the solution and services will be used by STATE and ongoing maintenance and support are required for as long as the system is operational STATE and CONTRACTOR may renegotiate this Contract. After completion of the Initial Term, renewals, and extensions, STATE and CONTRACTOR may renegotiate the pricing and Term of this Contract. New pricing and Term shall be mutually agreed upon by the Parties and executed in writing.

If, during the Initial Term, any renewal, or extension STATE determines a realignment of the Term is needed (e.g., to align with STATE’s fiscal biennium, SaaS period), the Parties may mutually agree, in writing, to a new Term with a termination date not to exceed the total available length of Contract including its Initial Term, renewals, and extensions.

Offeror Response:

Agree or Propose Alternate Language/Comments

Time is of the Essence Note: Time is of the Essence is when a CONTRACTOR’s services must be performed within a specified time and that performance is essential requires the STATE to do its part.

The CONTRACTOR is generally not afforded any opportunity to cure a delay in performance and any delay may be a material breach of the contractual terms and conditions. If this clause is used the STATE must be prepared to terminate a Contract. By waiving “Time is of the Essence” for a CONTRACTOR’s delay in performance at any time during the Contract term could result in a waiver of all Time is of the Essence milestones unless otherwise agreed upon in writing by STATE and CONTRACTOR.

Generally, if this clause is not used, reasonable delay in performance would not constitute a material breach; unreasonable delay constitutes a material breach. Delete section if not required.

CONTRACTOR hereby acknowledges that time is of the essence for performance under this Contract unless otherwise agreed to in writing by the Parties.

Offeror Response:

Agree or Propose Alternate Language/Comments

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 good 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.

Offeror Response:

Agree or Propose Alternate Language/Comments

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 Propose Alternate Language/Comments

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.

NOTE: In the event a contractor requests force majeure exceptions for COVID-19, the OPTIONAL language from the Manual may be used.

Offeror Response:

Agree or Propose Alternate Language/Comments

Liquidated Damages Note: STATE may suffer damages if CONTRACTOR fails to perform on schedule. Liquidated damages clauses assist STATE in being made whole if this occurs. While it is impracticable to compute, at the time of contracting, the exact damages caused by a future delay, the Parties can agree on an amount that is a fair and reasonable estimate of damages due to STATE in the event of a delay by CONTRACTOR. An agency shall discuss liquidated damages clauses with assigned legal counsel.

The Parties agree that STATE may suffer damages due to a failure by CONTRACTOR to provide deliverables or services under this Contract. Because it is difficult to fix the actual damages sustained in the event of such delays, STATE and CONTRACTOR agree that the amount of damages shall be determined as per this section. In the event of any non-performance CONTRACTOR shall pay that amount as liquidated damages and not as a penalty. Amounts due to STATE as liquidated damages may be deducted by STATE from any amounts payable to CONTRACTOR, and any amount outstanding over and above the amounts deducted from the invoice shall be promptly tendered by check from CONTRACTOR to STATE.

Delays due to causes of Force Majeure or due to the responsibility of STATE shall extend the time for performance on a day-for-day basis. STATE shall not assess liquidated damages against CONTRACTOR when the delay in delivery or performance is beyond the control and without the fault or negligence of CONTRACTOR.

Note: The following are examples of liquidated damages provisions. One or both may be applicable. Assigned legal counsel should assist in selecting or drafting appropriate language for liquidated damages.

1. Failure to Complete Deliverable on Schedule:

If CONTRACTOR fails to complete a Deliverable identified in SOW or project schedule reference by the specified deadline (or revised deadline as agreed upon between the Parties through the Integrated Change Control Process), CONTRACTOR shall pay liquidated damages to STATE in the amount of $ [Amount] per calendar day for each day the Deliverable is delayed.

Failure to Complete Project on Schedule:

If CONTRACTOR fails to complete the project per the approved project schedule by the specified deadline (or revised deadline as agreed upon between the Parties through the Integrated Change Control Process), STATE shall deduct liquidated damages from amounts payable to CONTRACTOR in the amount of $ [Amount] per calendar day for each day the project is delayed.

Offeror Response:

Agree or Propose Alternate Language/Comments

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 Propose Alternate Language/Comments

Right of Setoff Damages Amounts due STATE by CONTRACTOR, including liquidated or other damages, or claims for damages, may be deducted or set-off by STATE from any money payable to CONTRACTOR pursuant to this Contract.

Offeror Response:

Agree or Propose Alternate Language/Comments

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 Propose Alternate Language/Comments

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 Propose Alternate Language/Comments

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 Propose Alternate Language/Comments

Indemnification Note: The following indemnification language is for contracts that include IT professional services requiring special intellectual ability to perform the contracted services, some of which will be performed on-site. If the Contract does not include this type of professional services, consult with the OMB Risk Management Division for appropriate indemnification language.

[Please see the “Guidelines to Managing Contractual Risk Manual” of OMB’s Risk Management Division found at: https://ndgov.sharepoint.com/sites/TeamND] 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 Propose Alternate Language/Comments

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 Propose Alternate Language/Comments

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 Propose Alternate Language/Comments

Insurance Note: The following insurance language corresponds with the indemnification language above. If the Contract will use different indemnification language, consult with the OMB Risk Management Division for appropriate insurance language.

Pursuant to 2021 House Bill 1057, the statutory caps on State liability (N.D.C.C. § 32-12.2-02) will increase each year starting July 1, 2022 through July 1, 2026. This applies to the available insurance from a CONTRACTOR for Commercial General Liability, Automobile Liability and Employer’s Liability. OMB Risk Management recommends utilizing the Contract length with renewals/extensions to determine the level that should be required. The levels shown below reflect the max amount as IT contracts likely span long term.

Refer to the “Guidelines to Managing Contractual Risk Manual” for additional information.

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) Automobile liability, including Owned (if any), Hired, and Non-Owned automobiles, with minimum liability limits of $500,000 per person and $2,000,000 per occurrence.

3) 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.

Note: Optional clause (a4) employer’s liability. This coverage is recommended for CONTRACTOR’s domiciled outside the state of North Dakota. Delete (4) if contracting with a resident (North Dakota) CONTRACTOR.

OPTION: DELETE IF NOT REQUIRED

4) Employer’s liability or “stop gap” insurance of not less than $2,000,000 as an endorsement on the workers compensation or commercial general liability insurance.

5) 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:

Note: Optional sentence in b1) “the amount of any deductible or self-retention is subject to approval by the State.” This sentence is needed when there is a question about the financial wherewithal of CONTRACTOR to self-retain the exposure. This requirement does not pertain to large, financially viable potential CONTRACTORS.

1) Any deductible or self-insured retention amount or other similar obligation under the policies shall be the sole responsibility of the CONTRACTOR. OPTIONAL PROVISION: The amount of any deductible or self-retention is subject to approval by the State.

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. OPTIONAL PROVISION: An updated, current certificate of insurance shall be provided in the event of any change to a policy.

Offeror Response:

Agree or Propose Alternate Language/Comments

Cyber liability and security insurance Note: The following language should be considered when purchasing software that is hosted by the CONTRACTOR. It is of critical importance when information such as PHI or PII is involved. Consult with the OMB Risk Management Division and procuring agency’s assigned legal counsel before using this language.

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.

Offeror Response:

Agree or Propose Alternate Language/Comments

Works for Hire Note: If federal funds are used for this project, the CONTRACTOR may be prohibited from charging for an IT solution previously paid for by another state using federal funds. If so, you may need to add language from the applicable Federal guidelines.

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 Propose Alternate Language/Comments

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 Propose Alternate Language/Comments

Technology Standards Note: Include any additional technology standards or certifications that are specific to agency and business needs.

CONTRACTOR shall comply with applicable STATE enterprise architecture technology standards. These standards can be found on STATE’s website at https://www.ndit.nd.gov/standards. If CONTRACTOR is unable to comply with any applicable standard, a Request for Exemption from Information Technology Standards or Statutory Policies (SFN 51687) must be submitted in coordination with STATE and CONTRACTOR for the North Dakota Information Technology Department’s review and approval or disapproval.

Offeror Response:

Agree or Propose Alternate Language/Comments

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 Certified 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 Propose Alternate Language/Comments

Project Management

1. Reporting

0. CONTRACTOR personnel will be responsible for providing written, weekly 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 reports 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 26(c)(1), STATE will have five (5) working days or a different period of time as is agreed to by the Parties, 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 the Oversight Committee, 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 Propose Alternate Language/Comments

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 Propose Alternate Language/Comments

Warranty Note: Insert the warranty language negotiated between the STATE and CONTRACTOR. The following is a starting point, at a minimum a 30 day warranty is desired as some projects may require a different length of warranty based on requirements.

CONTRACTOR shall provide a # day warranty upon Final Acceptance.

Offeror Response:

Agree or Propose Alternate Language/Comments

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 Propose Alternate Language/Comments

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 Propose Alternate Language/Comments

Software Maintenance Note: If the purchase is for a SaaS this section may be deleted if not applicable and section 33 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.