Attachment+4+-+Technology+Contract.docx

ATTACHMENT 4

TECHNOLOGY CONTRACT: DAYS OF OUR LEGACY

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 complete 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 by clearly identifying the category to which the proposed language pertains.

3. Exhibit A Scope of Work needs to be completed as part of your proposal response. If an Offeror elects to submit a proposal for one or both categories, the Offeror shall clearly identify the specific category. Example: Exhibit A Scope of work – Category A

4. Do not complete Exhibit B Compensation Details as part of your proposal response. This exhibit will be completed during contract negotiations.

5. If applicable, Exhibit C Software as a Service (SaaS) Service Level Agreement (SLA) must be complete 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 provide Alternate Language/Comments via Redline Above

DEFINITIONS

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

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 STATE’s Data may be ascertainable.

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.

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.

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.

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.

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.

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

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 create and manage a website for the North Dakota Legacy Fund and/or provide data management (This will be modified based on the evaluation) as described in the Scope of Work (Exhibit A) and in the documents listed in the Merger and Modification, Conflict in Documents Section.

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.

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 15 % retainage. Retained amounts due to CONTRACTOR shall be paid upon Final Acceptance, minus any amount(s), including withholdings or setoffs, due to STATE under 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.

CONTRACTOR shall invoice STATE within seven (7) days for any accepted deliverable, service, or goods.

STATE may only expend public funds for any deliverable, service, or goods accepted within the Fiscal Year for which the funds are appropriated. STATE’s Fiscal Year is July 1 through June 30. An invoice for any deliverable, service, or goods accepted within the Fiscal Year must be dated prior to July 1 and received by STATE no later than July 7 of each Fiscal Year.

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

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 to the Contract. STATE may reduce CONTRACTOR's invoice 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. STATE may reduce any payments for amounts equal to prior overpayments to CONTRACTOR.

STATE may deduct the amount owed or that will be owed to STATE by CONTRACTOR from payments that are or will become due and payable to CONTRACTOR under this Contract.

Travel Travel expenses are covered by the Contractual Amount and CONTRACTOR may 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].

Payment Methods STATE may make payment using a government credit card. CONTRACTOR shall accept a government credit card without passing the processing fees for the government credit card back to STATE.

STATE may make payment using an ACH transfer, wire transfer, or by issuing a check to CONTRACTOR.

Offeror Response:

Agree or provide Alternate Language/Comments via Redline Above equipment, materials, and workspace – resources provided by parties For periods during which the Parties mutually agree that CONTRACTOR’s assigned staff is on site:

On site means Bismarck, ND.

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

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

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 provide Alternate Language/Comments via Redline Above term of contract This Contract term (Term or Initial Term) begins on its Effective Date, and shall continue for a period of one (1) year thereafter.

No Automatic Renewal This Contract will not automatically renew.

Renewal Option STATE may renew this Contract upon satisfactory completion of the Initial Term. STATE may execute up to three (3) options to renew this Contract under the same terms and conditions for a period of twelve (12) months each (Renewal Term).

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

Renegotiation Option 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. STATE and CONTRACTOR shall agree on new pricing and Term as set forth 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 Provide Alternate Language/Comments via Redline Above termination Termination for Convenience or by Agreement STATE may terminate this Contract upon thirty (30) days’ written notice to CONTRACTOR. This Contract may be terminated by consent of both Parties executed in writing.

Early Termination in the Public Interest STATE is entering this Contract to carry 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, 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:

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 CONTRACTOR 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:

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 so 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 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 will be held responsible for delay or default caused by fire, riot, terrorism, pandemic (excluding COVID-19), acts of God, executive orders issued by the governor or U.S. President, 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, STATE may seek all available remedies, up to and including termination of this Contract pursuant to its Termination Section, and STATE is 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 liquidated damages 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.

Failure to Complete Deliverable on Schedule If CONTRACTOR fails to complete a Deliverable identified in SOW 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 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 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 Provide Alternate Language/Comments via Redline Above right to withhold amounts otherwise due if 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 State or its agents, but not against claims based on 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 State under this provision must be free of any conflicts of interest, even if retention of separate legal counsel for State is necessary. Any attorney appointed to represent 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 State for all costs, expenses and attorneys' fees incurred if 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 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.

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

Name: Sowmya Karumanchi Email Address: skarumanchi@nd.gov Email Subject Line: Certificate of Insurance - [Insert Contract Number/Name] 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:

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.

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.

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.

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.

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 (3) 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.

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

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

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 State. The policies shall be in form and terms approved by State.

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

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. 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 Contract or by the contractual indemnity obligations of CONTRACTOR.

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

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

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

CONTRACTOR shall provide at least thirty-day (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 ten (10) days prior to coverage expiration. An updated, current certificate of insurance shall be provided in the event of any change to a policy.

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 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 (1) year. CONTRACTOR shall defend, indemnify, save and hold harmless, 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 Provide Alternate Language/Comments via Redline Above Works for hire 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 CONTRACTOR 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 exclusively for STATE are the sole property of STATE, and CONTRACTOR assigns and transfers all its right, title, and interest in the software and related materials 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 exclusively 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 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.

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.

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.

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:

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.

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 for reasons including inappropriate or unprofessional personal conduct, or professional inabilities STATE’s working hours are Monday through Friday from 8:00 AM until 5:00 PM (CT) with one hour for lunch. STATE Project Manager may approve alternate work schedules.

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

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

CONTRACTOR shall conduct background investigations on all contracted staff and subcontractors assigned by CONTRACTOR to perform work under this Contract and shall furnish the results of such background investigations to STATE, unless prohibited by law. STATE shall have the right to reject any individual assigned to perform work under this Contract if, in its sole discretion, it determines that the results of the background investigation make the individual unacceptable. The background investigations to be performed are:

Criminal and civil matters References Credit Offeror Response:

Agree or Provide Alternate Language/Comments via Redline Above project management Reporting CONTRACTOR personnel will be responsible for providing written, [weekly/every other week/] 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] report of CONTRACTOR’s progress on the project and meeting the objective/deliverables as stated in a SOW. 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 twenty percent (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.

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.

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.

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.

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.

CONTRACTOR’s Project Manager and STATE’s Project Manager will adapt the Project Plan to incorporate approved changes.

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

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 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 this Deliverable Acceptance Section, 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) business 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 Project Sponsor or Oversight Committee, or terminating this Contract upon written notice to CONTRACTOR.

Final Acceptance The successful completion of all deliverables as stated in the SOW 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 ninety (90) calendar day warranty upon Final Acceptance.

Offeror Response:

Agree or Provide Alternate Language/Comments via Redline Above data security Remote access to Data from outside the United States, including remote access to Data by authorized support staff in identified support centers, is prohibited.

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

CONTRACTOR shall notify STATE at least ninety (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 the North Dakota Information Technology Department (ITD) authentication standards requiring integration of State users with the ITD's managed instance of Microsoft Entra ID and/or Active Directory as the only method of authentication.

Offeror Response:

Agree or Provide Alternate Language/Comments via Redline Above

VULNERABILITY MANAGEMENT

CONTRACTOR shall apply all critical and high security patches to components of the solution within the requirements of the STATE. CONTRACTOR shall apply or make available all critical and high security patches to components of the solution within the requirements of STATE.

If a vulnerability has a Common Vulnerabilities and Exposures (CVE) score that will determine severity. Otherwise, STATE will determine the severity level based on the following. The severity level shall not be changed unless agreed to by STATE and CONTRACTOR.

Critical Zero-day Exploitable/Critical - Vulnerabilities that allow remote code execution, privilege escalation, or complete system compromise without user interaction. CVE Score 9.0-10.0

24 hours

High – Vulnerabilities that can cause significant damage but may require some user interaction or specific conditions, resulting in data loss, service disruption, or unauthorized access. CVE Score 7.0-8.9

14 days

Medium – Vulnerabilities that are harder to exploit or have limited impact, resulting in information disclosure or minor disruptions. CVE Score 4.0-6.9

60 days

Low – Vulnerabilities with minimal impact or low likelihood of exploitation. CVE Score 0.1-3.9

90 days

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 RELEASE MANAGMENT

The software under this Contract must be maintained on an N-1(previous version of a given major software release) version that is currently supported by the original software manufacturer, to maintain new feature sets or as mutually agreed upon by STATE and CONTRACTOR. CONTRACTOR shall work with the STATE to verify and test version upgrades and impacts to the STATE prior to upgrade The new version will be completed within ninety (90) days of its release unless mutually agreed upon by STATE and CONTRACTOR. End-of-life or unsupported software shall not be used in any part of the solution.

If updating outside of N-1 as described above due to a security vulnerability CONTRACTOR must notify STATE of the needed update to comply with the Vulnerability Management requirements. CONTRACTOR shall adhere to the resolution times based on criticality of vulnerability.

Offeror Response:

Agree or Provide Alternate Language/Comments via Redline Above use of artificial intelligence (ai) and machine learning (ML) STATE and CONTRACTOR agree CONTRACTOR may wish to use Artificial Intelligence (AI) and Machine Learning (ML) (together AI/ML) to complete CONTRACTOR’s obligations under this Contract. CONTRACTOR’s use of AI/ML is subject to prior, written approval by STATE. CONTRACTOR shall provide to STATE detailed information, in writing, on the use of AI/ML in CONTRACTOR’s obligations under this Contract. CONTRACTOR agrees to submit new information to STATE for approval any time CONTRACTOR substantially changes its use of AI/ML. STATE reserves the right to terminate the Contract for cause if CONTRACTOR uses AI/ML in a manner that STATE has not had the opportunity to approve or denied approval. Use of STATE Data for training, fine-tuning, or improving AI models is strictly prohibited unless expressly authorized in writing by STATE. In no event will CONTRACTOR share STATE data, in any form, with a third party without express written approval by STATE.

Offeror Response:

Agree or Provide Alternate Language/Comments via Redline Above software audit CONTRACTOR may, upon sixty (60) calendar days’ notice to STATE, but not more frequently than once per year, either request a signed certification by an officer of STATE verifying that the software is being used in accordance with the terms of this Contract or audit STATE’s use of the software to ensure compliance with the terms and conditions of this Contract. Any such audit shall be conducted at CONTRACTOR’s expense during regular business hours at STATE’s offices and shall not unreasonably interfere with STATE’s business activities. CONTRACTOR shall provide documentation to STATE defining the scope of the audit not less than thirty (30) calendar days prior to the audit. STATE shall have sixty (60) calendar days to review CONTRACTOR’s audit findings. If an audit reveals that STATE’s use of the Software exceeds the use permitted hereunder, then CONTRACTOR may invoice STATE for the applicable additional amounts based on the price agreement between the Parties as of the date of completion of the audit.

Offeror Response:

Agree or Provide Alternate Language/Comments via Redline Above Notice All notices or other communications required under this Contract must be given by email, registered or certified mail and are complete on the date postmarked when addressed to the Parties at the following addresses:

Notice provided under this provision does not meet the notice requirements for monetary claims against STATE found at N.D.C.C. § 32-12.2-04.

Offeror Response:

Agree or Provide Alternate Language/Comments via Redline Above confidentiality CONTRACTOR may not use or disclose any information it receives from STATE under this Contract that STATE has previously identified as confidential or exempt from mandatory public disclosure except as necessary to carry out the purposes of this Contract or as authorized in advance by STATE. STATE may not disclose any information it receives from CONTRACTOR that CONTRACTOR has previously identified as confidential and that STATE determines in its sole discretion is protected from mandatory public disclosure under a specific exception to the North Dakota public records law, N.D.C.C. ch. 44-04. The duty of STATE and CONTRACTOR to maintain confidentiality of information under this section continues beyond the Term of the Contract.

Offeror Response:

Agree or Provide Alternate Language/Comments via Redline Above

COMPLIANCE WITH PUBLIC RECORDS LAWS

Under the North Dakota public records law, certain records may be open to the public upon request.

Public records may include:

Records STATE receives from CONTRACTOR under this Contract Records obtained by either Party under this Contract Records generated by either Party under this Contract CONTRACTOR agrees to contact STATE immediately upon receiving a request for information under the public records law and to comply with STATE’s instructions on how to respond to such request.

Offeror Response:

Agree or Provide Alternate Language/Comments via Redline Above independent entity CONTRACTOR is an independent entity under this Contract and is not a STATE employee for any purpose, including the application of the Social Security Act, the Fair Labor Standards Act, the Federal Insurance Contribution Act, the North Dakota Unemployment Compensation Law and the North Dakota Workforce Safety and Insurance Act. CONTRACTOR retains sole and absolute discretion in the manner and means of carrying out CONTRACTOR’s activities and responsibilities under this Contract, except to the extent otherwise specified in this Contract.

Offeror Response:

Agree or Provide Alternate Language/Comments via Redline Above assignment and subcontracts CONTRACTOR may not assign or otherwise transfer or delegate any right or duty without STATE’s express written consent, provided, however, that CONTRACTOR may assign its rights and obligations under this Contract in the event of a change of control or sale of all or substantially all of CONTRACTOR’s assets related to this Contract, whether by merger, reorganization, operation of law, or otherwise. If Assignee is a business or entity with whom STATE is prohibited from conducting business, STATE may terminate this Contract in accordance with the Termination for Cause section of this Contract.

CONTRACTOR may enter subcontracts provided that any subcontract acknowledges the binding nature of this Contract and incorporates this Contract, including any attachments. CONTRACTOR is solely responsible for the performance of any subcontractor with whom CONTRACTOR contracts. CONTRACTOR may not contract for or incur obligations on behalf of STATE.

Offeror Response:

Agree or Provide Alternate Language/Comments via Redline Above spoilation – notice of potential claims CONTRACTOR shall promptly notify STATE of all potential claims that arise or result from this Contract. CONTRACTOR also shall take all reasonable steps to preserve all physical evidence and information that may be relevant to the circumstances surrounding a potential claim, while maintaining public safety, and grants to STATE the opportunity to review and inspect such evidence, including the scene of an accident.

Offeror Response:

Agree or Provide Alternate Language/Comments via…