B-52287 IFB Contract Non-VOIP Telephone System Maintenance.docx

The following information will become the contract between the awarded vendor and the Department of Innovation and Technology. Instructions and requirements to submit a bid response are found in the attachment titled “Invitation for Bid Vendor Instructions and Requirements.”

Department of Innovation and Technology

CONTRACT

Non VOIP Telephone System Maintenance IFB

26-448DOIT-ADMIN-B-52287

The Parties to this contract are the State of Illinois acting through the undersigned Agency (collectively the State) and the Vendor. This contract, consisting of the signature page and numbered sections listed below and any attachments referenced in this contract, constitute the entire contract between the Parties concerning the subject matter of the contract, and in signing the contract, the Vendor affirms that the Certifications and Financial Disclosures and Conflicts of Interest attached hereto are true and accurate as of the date of the Vendor’s execution of the contract. This contract supersedes all prior proposals, contracts and understandings between the Parties concerning the subject matter of the contract. This contract can be signed in multiple counterparts upon agreement of the Parties.

1. SCOPE OF WORK

1.1. OVERVIEW AND PURPOSE:

The Illinois Department of Innovation and Technology (“DoIT,” “Agency” or “State”), is establishing a contract with the vendor to provide procurement, installation, Move, Add and Change (MAC) activity, preventive maintenance (e.g., ordinary upkeep of installed systems and ancillary equipment), and remedial maintenance (e.g., isolation and resolution of troubles and failures) Statewide for telephone systems, Interactive Voice Response (IVR) systems, Automatic Call Distribution (ACD) systems, Call Recording systems, Voice Mail/Automated Attendant (VM/AA) systems, embedded base equipment and/or current list of known site locations in Attachment A, and copper/fiber optics (both inside and outside). Additionally, at the State's request, the Vendor will provide coordination of those services provided by other local carrier telephone companies at these sites. The Vendor must accept all equipment on an "as is" basis and shall service all analog phone sites identified in Attachment A.

1.2. SUPPLIES AND/OR SERVICES REQUIRED:

1.2.1. Station Equipment: All telephones shall be commercial grade equipment, hearing aid compatible, meet minimum standards as outlined in Electronic Industries Alliance (EIA) Standard RS-470, and registered under Part 68 of the Federal Communications Commission (FCC) Rules and Regulations; handset cords to be fully modular, approximately 6 feet in length on desk sets and 12 feet in length on wall sets; mounting (base) cords on desk sets to be fully modular at both ends except where specialized applications prevent compliance; and wall sets to utilize RJ11W connectors.

1.2.2. Warranty Support: Vendor shall provide a warranty on all new hardware and software for a minimum of one (1) year from the date of installation or purchase for drop ship equipment including labor, materials, and parts. If any defects occur within the warranty period, Vendor shall repair the equipment on-site or return the equipment to other premises for repair (in which the Vendor will replace the equipment being repaired with like equipment with no detriment in service to the State). Vendor shall provide the same level of service on any manufacturer warranty longer than one year, for the extent of the warranty period.

1.2.3. Manufacturer Discontinued Equipment: If the Manufacturer discontinues production of a specific item, Vendor shall provide, within 180 days, the supporting documentation from manufacturer that the item and/or technical support is no longer available.

1.2.4. Administration: For all systems maintained under this contract and any renewal options, the Vendor must provide all administration passwords to DoIT upon request.

1.2.5. Software Updates: Vendor shall keep a spreadsheet with all logins and passwords and shall be available to DoIT upon request. The Vendor shall keep all systems, excluding manufacturer discontinued systems, current with any new and/or service pack releases. Service pack or dot(.) releases shall be installed on an as needed basis.

MAC Requirements

1.2.6. Installation and Services: Vendor shall provide services, including labor and equipment in accordance with the MAC Process detailed in this contract and in the Operations Manual (Attachment B) and assume end-to-end responsibility for provided services. That responsibility includes, but is not limited to:

· Coordination of ordering, provisioning, installation, acceptance testing/turn-up

· Providing a single point of contact for ordering service

1.2.7. Upon request from DoIT, the Vendor shall provide a Non-Routine Maintenance Quote Request (NMQR) detailing the proposed work, including a breakdown of services, time and materials pricing, and any associated maintenance costs. This quote shall be submitted within five (5) business days of receiving the request, at no charge, using the pricing established in this contract.

The Vendor shall not perform any non-routine maintenance without prior written approval from DoIT. Any changes or additional costs beyond the scope of the original approved request must be itemized and submitted to DoIT for review. No changes shall proceed without explicit written authorization from DoIT.

The final invoice shall be adjusted accordingly based on the actual work performed. The Vendor shall provide a detailed summary of hours worked and materials used with the invoice. If the final costs are lower than the quoted amount in the NMQR, the invoice shall be reduced accordingly.

1.2.8. Ongoing Training and Support: All ongoing training for all equipment covered under this contract must be provided to users, attendants, operators, site coordinators, and Telecommunications Division staff.

1.2.9. MAC Support: The Vendor shall ensure flexibility and efficiency in its maintenance processes, allowing for routine system upkeep and necessary adjustments without requiring direct Vendor involvement, while ensuring uninterrupted service. Service will be billed at the standard time and material cost established within this contract.

1.2.10. MAC service requests shall be completed within the following timeframes unless otherwise stated:

· Orders affecting one (1) to five (5) stations/vm boxes/agent positions/wiring locations: Completion time to be negotiated

· Orders affecting six (6) to fifty (50) stations/vm boxes/agent positions/wiring locations: Completion time to be negotiated

· Orders affecting fifty-one (51) to one hundred (100) stations/vm boxes/agent positions/wiring locations: Completion time to be negotiated

· Orders affecting more than one hundred (100) stations/vm boxes/agent positions/wiring locations: Completion time to be negotiated

ACD Order Intervals

IVR Order Intervals

1.2.11. Additionally, the Vendor shall provide the capability to implement real-time maintenance-related changes, including but not limited to adjustments affecting system performance, service availability, and call routing configurations. These changes must be executed in a way that supports optimal system functionality without downtime or negatively impacting ongoing operations. To maintain security and proper oversight, the State shall have the ability to define different security levels and user roles, ensuring that only authorized personnel can perform maintenance activities. This role-based access control structure will allow the State to establish appropriate access permissions for system modifications, providing a secure and controlled environment for all maintenance operations.

1.2.12. Vendor Customer Service Notification Center: Vendor shall be accessible via a toll-free number and respond to maintenance calls 24 hours a day, 7 days per week, 365 days per year, including weekends and all holidays. Vendor shall provide a two (2) hour response time for requests deemed emergencies by the State. This response time includes a technician on-site within this window.

Vendor shall provide maintenance and support services, including labor and equipment, in accordance with this contract and the maintenance process detailed in Attachment B Operations Manual. The Vendor shall also assume end-to-end responsibility for provided services as follows:

· Providing a single point of contact for reporting incidents

· Coordination of Testing and Troubleshooting

· Help Desk Responsibilities

1.2.13. Maintenance Support: Vendor shall provide maintenance support which includes all labor and parts necessary to keep all telecommunications equipment, ancillary equipment (including without limitation to call accounting systems, call recording, SMDR units), at each site in good operating condition and to preserve its operating efficiency in accordance with its technical specifications. Details of steps taken and results shall be provided to the State.

1.2.14. Single Point of Contact (SPOC): If trouble is found to exist beyond the Dmarc toward the telephone company or common (or other) carrier providing service to the site, Vendor shall refer the trouble to said telephone company or common carrier's repair center and act as the State's Agent (SPOC) throughout the resolution of the incident. Vendor shall be assessed for any and all charges incurred by the State that are the result of trouble reported to telephone company or common carrier but are found to exist within the responsibilities of the Vendor.

1.2.15. Repair Intervals: Vendor shall respond with notice of a technician in route or on site to all major alarms (high/urgent) within two (2) hours of notification at the Vendor's Service Center of a major alarm or service interruption. High/Urgent service interruptions include, but are not limited to, the following:

· Main site number is out of service

· Total service failure

· Attendant/operator's position is out of service

· Stations can't complete external calls

· Attendant/operator can't receive and/or extend incoming calls

· No station-to-station calls can be made

· User-defined on demand critical locations are out of service

· System is not allowing internal or outgoing calls

· Contact Center system is not routing calls

· A major alarm is displayed

Response for priority alarms (medium) shall be within twenty-four (24) business hours and response for non-major alarms (low) shall be within forty-eight (48) consecutive hours of notification at the Vendor's Service Center (excluding weekends and State holidays for sites that are not operating 24 hours a day, seven days a week).

Regardless of severity, restoral shall be completed within four (4) hours of initial notification if trouble exists within responsibility of Vendor. Should Vendor be unable to make a repair within the four (4) hour period for any reason, Vendor shall contact DoIT prior to the expiration of the four (4) hour period and explain the situation. Service liabilities shall be applied unless mutually agreed upon by State and Vendor. Restoral time is initially met if Vendor restores remotely or provides a temporary fix within the established restoral period and DoIT agrees the fix satisfies operational needs. Permanent fix is then desired within 48 hours or by mutual agreement between DoIT and Vendor. If the Vendor technicians are unable to obtain access to a State site or its equipment, maintenance delinquency times will be adjusted accordingly.

1.2.16. Special Needs Agencies: At DoIT's discretion, Vendor shall provide twenty-four (24) hours per day, seven (7) days per week repair service to state agencies whose continuous uninterrupted operation is critical to the health and safety of the residents of the State of Illinois. Vendor shall respond with an on-site technician to all repair calls within two (2) hours of the trouble report to Vendor's Service Notification Center or fix remotely. Additionally, particularly relating to prisons or mental health facilities, it is possible that an outage under normal circumstances would be categorized as a "low" incident may be considered critical to the health and safety of staff/residents by the site. In such cases, the trouble report to Vendor will specify that it is a "high/urgent" incident, and it shall be handled as such by Vendor. If Vendor cannot adhere with this specification, the State reserves the right to contract services with another vendor via a separate procurement.

1.2.17. Chronic Failure: Vendor shall provide no-cost replacement of equipment experiencing chronic failures, if covered under a warranty or maintenance agreement, only on vendor installed equipment. Chronic failure is defined as three or more maintenance calls on the same device, for the same problem, over a three-month period.

Account Management & Consultation Services

1.2.18. Account Management: Vendor's Account Manager, or equivalent title, shall serve as the SPOC to appropriately handle any issues that may arise from the State and be fully empowered and have complete management responsibility for all services and support activities (including, but not limited to, ordering and provisioning, installation, engineering, maintenance/repair, and billing). This service shall be provided as a flat monthly fee to the State.

1.2.19. Account Teams: Vendor shall have knowledgeable account teams and subject-matter experts upon request to support the services being procured. Vendor shall provide an account team roster that provides a minimum of three (3) levels escalation to include team member name, title, office location and phone number, mobile number, and email address. Vendor shall routinely provide updated account team roster prior to the occurrence of personnel changes that affect the direct account team and/or the escalation process.

1.3. MILESTONES AND DELIVERABLES: Milestones and deliverables will be negotiated between vendor and agency per transaction once contracts are in place.

1.4. VENDOR/STAFF SPECIFICATIONS:

1.4.1. Technician Qualifications: Vendor shall provide installation, MAC, and maintenance services. Vendor shall keep a list of technicians and their qualifications current throughout the term of the contract. Vendor's and/or Subcontractor’s technicians shall be proficient in all technologies, including but not limited to, installing, maintaining, and testing voice, analog, digital, fiber, Integrated Services Digital Network (ISDN), Digital Signal 0 (DS0) and Digital Signal 1 (DS1) services.

1.4.2. Vendor shall remove and replace any service technician at any site upon the State's request if, in the State's judgment, the technician has not performed his or her duties in a professional manner or the technician has engaged in unauthorized or prohibited conduct. DoIT will notify Vendor in writing of any request to remove a technician. Vendor shall replace the technician within 7 days.

1.4.3. Third Party Vendor/Subcontracting: Vendor shall manage and coordinate the activities of all third-party vendors/subcontractors involved who may provide services for installation, testing, supporting, maintaining, and repairing all hardware and software components to maintain the sites covered under this contract.

1.4.4. Vendor shall adhere to the State's security and access requirements that may vary from site to site.

1.4.5. Access to Correctional Facilities: Vendor shall adhere to special access requirements that exist for entry to Department of Corrections (DOC) and Illinois Department of Juvenile Justice (IDJJ) facilities. These requirements include, but are not limited to, prior screening and drug testing of Vendor personnel. Screening and drug testing of Vendor personnel will be the responsibility of the vendor. Arrangements for entry into any Corrections facility must be accomplished prior to arrival on-site. All tools must be accounted for prior to departure from the site.

1.5. TRANSPORTATION AND DELIVERY: N/A

1.6. SUBCONTRACTING:

Subcontractors are allowed.

1.6.1. Will subcontractors be utilized? |_| Yes |_| No

A subcontractor is a person or entity that enters into a contractual agreement with a total value of $100,000 or more with a person or entity who has a contract subject to the Illinois Procurement Code pursuant to which the person or entity provides some or all of the goods, services, real property, remuneration, or other monetary forms of consideration that are the subject of the primary State contract, including subleases from a lessee of a State contract.

All contracts with subcontractors where the annual value of the subcontract is greater than $50,000 must include Illinois Standard Certifications completed by the subcontractor.

1.6.2. Please identify below subcontracts with an annual value of $100,000 or more that will be utilized in the performance of the contract, the names and addresses of the subcontractors, and a description of the work to be performed by each.

· Subcontractor Name: Click here to enter text Amount to Be Paid: Click here to enter text Address: Click here to enter text Description of Work: Click here to enter text

· Subcontractor Name: Click here to enter text Amount to Be Paid: Click here to enter text Address: Click here to enter text Description of Work: Click here to enter text

If additional space is necessary to provide subcontractor information, please attach an additional page.

1.6.3. If the annual value of any subcontracts is more than $100,000, then the Vendor must provide to the State the Financial Disclosures and Conflicts of Interest for that subcontractor.

1.6.4. If at any time during the term of the Contract, Vendor adds or changes any subcontractors, Vendor is required to promptly notify, in writing, the State Purchasing Officer or the Chief Procurement Officer of the names and addresses and the expected amount of money that each new or replaced subcontractor will receive pursuant to this Contract. Any subcontracts entered prior to award of this Contract are done at the sole risk of the Vendor and subcontractor(s).

1.7. WHERE SERVICES ARE TO BE PERFORMED: Unless otherwise disclosed in this section all services shall be performed in the United States. If the Vendor performs the services purchased hereunder in another country in violation of this provision, such action may be deemed by the State as a breach of the contract by Vendor.

Vendor shall disclose the locations where the services required shall be performed and the known or anticipated value of the services to be performed at each location. If the Vendor received additional consideration in the evaluation based on work being performed in the United States, it shall be a breach of contract if the Offeror shifts any such work outside the United States.

· Location where services will be performed: Click here to enter text Value of services performed at this location: Click here to enter text

· Location where services will be performed: Click here to enter text Value of services performed at this location: Click here to enter text

2. PRICING

2.1. TYPE OF PRICING: The Illinois Office of the Comptroller requires the State to indicate whether the contract price is firm or estimated at the time it is submitted for obligation. The total value of this contract is estimated.

2.2. VENDOR’S PRICING: Vendor’s pricing is located in the Items Tab in the BidBuy Purchase Order. Materials under this contract shall be at cost. Regions for pricing are in Attachment C.

2.3. ECONOMIC ADJUSTMENTS:

2.3.1. The prices in this Contract must remain firm for the first 12 months after the execution date of the Contract. Thereafter, one upward price adjustment may be applied no more frequently than once during any given one-year period. Such adjustment shall be based on the Consumer Price Index for All Urban Consumers as posted by the U.S. Bureau of Labor Statistics.

The below equation shall be used to calculate the allowable price increase:

A= B * (1 + ((C-D)/D))

A- New Price B- Base Price at Bid C- Published CPI at the time of requested adjustment D- CPI value at Bid Opening date

2.3.2. All adjustment requests shall be made in writing. Vendor shall not be entitled to apply an upward price adjustment without first obtaining approval of such request from the Department of Innovation and Technology Information Technology Procurement Office (ITPO).

2.3.3. In the event a downward adjustment is warranted, the State reserves the right to adjust once during any given twelve (12) month period for this decrease. It will be the responsibility of the vendor to notify ITPO of any such decrease.

2.3.4. No further adjustments will be made once the maximum allowable adjustment has been calculated for the given one year period.

2.3.5. An economic adjustment which is not based on the CPI may be requested by the Vendor or the State to the price of all Contract Line Items. The State may, in its sole discretion, accept an equitable adjustment in the Contract terms or pricing if pricing or availability of supply is affected by extreme and unforeseen volatility in the marketplace, that is, by circumstances that satisfy all the following criteria: (1) the volatility is due to causes wholly beyond the Vendor’s control, (2) the volatility affects the marketplace or industry, not just the particular Contract source of supply, (3) the effect on pricing or availability of supply is substantial, (4) the volatility so affects the Vendor that continued performance of the Contract would result in a substantial loss and (5) No price adjustment will be approved to compensate a vendor for inefficiency or for errors or omissions in judgment or for additional profit or overhead of any kind.

2.3.6. Requested adjustments shall include the contract number, item number, line number, bid price and requested price adjustment.

2.3.7. In all cases, the vendor must file a claim in writing for such adjustment prior to the services being performed or delivery of items. In any event, the claim for such adjustment will not apply to release orders provided prior to the date the ITPO approved the economic adjustment request.

2.3.8. If the Vendor has unresolved complaints filed against it for non-delivery of or poor-quality service, its request may be denied until such time as all past complaints are resolved to the satisfaction of the State.

2.4. MAXIMUM AMOUNT: This is an indefinite quantity contract.

3. TERM AND TERMINATION

3.1. TERM:

3.1.1. TERM OF THIS CONTRACT: The contract will have an initial term commencing upon execution for 36 months. In no event will the maximum total term of the contract, including the initial term, any renewal terms, and any extensions, exceed ten (10) years. Vendor shall not commence billable work in furtherance of the contract prior to final execution of the contract except when permitted pursuant to 30 ILCS 500/20-80.

3.2. TERMINATION FOR CAUSE: The State may terminate this Contract, in whole or in part, immediately upon notice to Vendor if: (a) the State determines that the actions or inactions of Vendor, its agents, employees, or subcontractors have caused, or reasonably could cause, jeopardy to health, safety, or property, or (b) Vendor has notified the State that it is unable or unwilling to perform the Contract.

If Vendor fails to perform to the State’s satisfaction any material requirement of this Contract, is in violation of a material provision of this Contract, or the State determines that Vendor lacks the financial resources to perform the Contract, the State shall provide written notice to Vendor to cure the problem identified within the period of time specified in the State’s written notice. If not cured by that date the State may either: (a) immediately terminate the Contract without additional written notice or (b) enforce the terms and conditions of the Contract.

For termination due to any of the causes contained in this Section, the State retains its rights to seek any available legal or equitable remedies and damages.

3.3. TERMINATION FOR CONVENIENCE: The State may, for its convenience and with thirty (30) days’ prior written notice to Vendor, terminate this Contract in whole or in part and without payment of any penalty or incurring any further obligation to Vendor. Upon submission of invoices and proof of claim, Vendor shall be entitled to compensation for supplies and services provided in compliance with this Contract up to and including the date of termination.

3.4. OTHER TERMINATION: The State may also terminate, in whole or in part, this Contract without advance notice pursuant to Section 3.6.

3.5. SUSPENSION: The State may also suspend, in whole or in part, this Contract without advance notice pursuant to Section 3.6.

3.6. AVAILABILITY OF APPROPRIATION: This Contract is contingent upon and subject to the availability of funds. The State, at its sole option, may terminate or suspend this Contract, in whole or in part, without penalty or further payment being required, if (1) the Illinois General Assembly or the federal funding source fails to make an appropriation sufficient to pay such obligation, or if funds needed are insufficient for any reason (30 ILCS 500/20-60), (2) the Governor or the Agency reserves funds , or (3) the Agency determines, in its sole discretion or as directed by the Office of the Governor, that a reduction is necessary or advisable based upon actual or projected budgetary considerations or available funds for payment. Vendor will be notified in writing of the failure of appropriation or of a reduction or decrease and the Agency’s election to terminate or suspend, in whole or in part, as soon as practicable. Any suspension or termination pursuant to this section will be effective upon the date of the written notice unless otherwise indicated.

4. STANDARD BUSINESS TERMS AND CONDITIONS

4.1. PAYMENT TERMS AND CONDITIONS:

4.1.1. LATE PAYMENT: Payments, including late payment charges, will be paid in accordance with the State Prompt Payment Act and rules when applicable. 30 ILCS 540; 74 III. Adm. Code 900. This shall be Vendor’s sole remedy for late payments by the State. Payment terms contained in Vendor’s invoices shall have no force or effect.

4.1.2. MINORITY CONTRACTOR INITIATIVE: Any Vendor awarded a contract of $1,000 or more under Section 20-10, 20-15, 20-25 or 20-30 of the Illinois Procurement Code (30 ILCS 500) is required to pay a fee of $15. The Comptroller shall deduct the fee from the first check issued to the Vendor under the contract and deposit the fee in the Comptroller’s Administrative Fund. 15 ILCS 405/23.9.

4.1.3. EXPENSES: The State will not pay for supplies provided or services rendered, including related expenses, incurred prior to the execution of this Contract by the Parties even if the effective date of the Contract is prior to execution.

4.1.4. PREVAILING WAGE: As a condition of receiving payment Vendor must (i) be in compliance with the Contract, (ii) pay its employees prevailing wages when required by law, (iii) pay its suppliers and subcontractors according to the terms of their respective contracts, and (iv) provide lien waivers to the State upon request. Examples of prevailing wage categories include public works, printing, janitorial, window washing, building and grounds services, site technician services, natural resource services, security guard and food services. The prevailing wages are revised by the Illinois Department of Labor and are available on the Illinois Department of Labor’s official website, which shall be deemed proper notification of any rate changes under this subsection. Vendor is responsible for contacting the Illinois Department of Labor at 217-782-6206 or (http://labor.illinois.gov) to ensure understanding of prevailing wage requirements.

4.1.5. FEDERAL FUNDING: This Contract may be partially or totally funded with Federal funds. If Federal funds are expected to be used, then the percentage of the good/service paid using Federal funds and the total Federal funds expected to be used will be provided to the awarded Vendor in the notice of intent to award.

4.1.6. INVOICING: By submitting an invoice, Vendor certifies that the supplies or services provided meet all requirements of this Contract, and the amount billed and expenses incurred are as allowed in this Contract. Invoices for supplies purchased, services performed, and expenses incurred through June 30 of any year must be submitted to the State no later than July 31 of that year; otherwise, Vendor may have to seek payment through the Illinois Court of Claims. 30 ILCS 105/25. All invoices are subject to statutory offset. 30 ILCS 210.

4.1.6.1. Vendor shall not bill for any taxes unless accompanied by proof that the State is subject to the tax. If necessary, Vendor may request the applicable agency’s Illinois tax exemption number and Federal tax exemption information.

4.1.6.2. Vendor shall invoice at the completion of the contract unless invoicing is tied in this contract to milestones, deliverables, or other invoicing requirements agreed to in the contract.

Send invoices to:

For procurements conducted in BidBuy, the Agency may include in this contract the BidBuy Purchase Order as it contains the Bill To address.

4.2. ASSIGNMENT: This contract may not be assigned or transferred in whole or in part by Vendor without the prior written consent of the State.

4.3. SUBCONTRACTING: For purposes of this section, subcontractors are those with contracts with an annual value exceeding $100,000 and who are specifically hired to perform all or part of the work covered by this contract. Vendor must receive prior written approval before use of any subcontractors in the performance of this contract. Vendor shall describe, in an attachment if not already provided, the names and addresses of all authorized subcontractors to be utilized by Vendor in the performance of this contract, together with a description of the work to be performed by the subcontractor and the anticipated amount of money that each subcontractor is expected to receive pursuant to this contract. If required, Vendor shall provide a copy of any subcontracts within fifteen (15) days after execution of this contract. All subcontracts must include the same certifications that Vendor must make as a condition of this contract. Vendor shall include in each subcontract the Standard Illinois Certification form available from the State. If at any time during the term of the Contract, Vendor adds or changes any subcontractors, then Vendor must promptly notify, by written amendment to the Contract, the State Purchasing Officer or the Chief Procurement Officer of the names and addresses, the expected amount of money that each new or replaced subcontractor will receive pursuant to the Contract, and the general type of work to be performed. 30 ILCS 500/20-120.

4.4. AUDIT/RETENTION OF RECORDS: Vendor and its subcontractors shall maintain books and records relating to the performance of the Contract or subcontract and necessary to support amounts charged to the State pursuant the Contract or subcontract. Books and records, including information stored in databases or other computer systems, shall be maintained by Vendor for a period of three (3) years from the later of the date of final payment under the Contract or completion of the Contract, and by the subcontractor for a period of three (3) years from the later of final payment under the term or completion of the subcontract. If Federal funds are used to pay Contract costs, Vendor and its subcontractors must retain their respective records for five (5) years. Books and records required to be maintained under this section shall be available for review or audit by representatives of the procuring Agency, the Auditor General, the Executive Inspector General, the Chief Procurement Officer, State of Illinois internal auditors or other governmental entities with monitoring authority, upon reasonable notice and during normal business hours. Vendor and its subcontractors shall cooperate fully with any such audit and with any investigation conducted by any of these entities. Failure to maintain books and records required by this section shall establish a presumption in favor of the State for the recovery of any funds paid by the State under this Contract or any subcontract for which adequate books and records are not available to support the purported disbursement. Vendor or subcontractors shall not impose a charge for audit or examination of Vendor’s or subcontractors’ books and records. 30 ILCS 500/20-65. Vendor and its subcontractors shall upon reasonable notice appear before and respond to requests for information from the Illinois Works Review Panel. 30 ILCS 559/20-25(d).

4.5. TIME IS OF THE ESSENCE: Time is of the essence with respect to Vendor’s performance of this Contract. Vendor shall continue to perform its obligations while any dispute concerning the Contract is being resolved unless otherwise directed by the State.

4.6. NO WAIVER OF RIGHTS: Except as specifically waived in writing, failure by a Party to exercise or enforce a right does not waive that Party’s right to exercise or enforce that or other rights in the future.

4.7. FORCE MAJEURE: Failure by either Party to perform its duties and obligations will be excused by unforeseeable circumstances beyond its reasonable control and not due to its negligence, including acts of nature, acts of terrorism, riots, labor disputes, fire, flood, explosion, and governmental prohibition. The non-declaring Party may cancel this Contract without penalty if performance does not resume within thirty (30) days of the declaration.

4.8. CONFIDENTIAL INFORMATION: Each Party to this Contract, including its agents and subcontractors, may have or gain access to confidential data or information owned or maintained by the other Party in the course of carrying out its responsibilities under this Contract. Vendor shall presume all information received from the State or to which it gains access pursuant to this Contract is confidential. Vendor information, unless clearly marked as confidential and exempt from disclosure under the Illinois Freedom of Information Act (“FOIA”) (5 ILCS 140), shall be considered public. Unless otherwise agreed by the Parties, and then only upon receipt of the State’s prior written consent, Vendor and its subcontractors shall not access or attain any personally identifiable information or sensitive information on or from the State’s systems, and Vendor agrees that any such information is the confidential information of the State. In any event, Vendor shall implement and maintain reasonable security measures to protect any and all data, information, and records disclosed by the State under this Contract from unauthorized access, acquisition, destruction, use, modification, or disclosure. No confidential data collected, maintained, or used in the course of performance of this Contract shall be disseminated except as authorized by law and with the written consent of the disclosing Party, either during the period of this Contract or thereafter. The receiving Party must return any and all data collected, maintained, created or used in the course of the performance of this Contract, in a non-proprietary, readily usable format, promptly at the end of this Contract, or earlier at the request of the disclosing Party, or notify the disclosing Party in writing of its destruction. The foregoing obligations shall not apply to confidential data or information lawfully in the receiving Party’s possession prior to its acquisition from the disclosing Party; received in good faith from a third Party not subject to any confidentiality obligation to the disclosing Party; now is or later becomes publicly known through no breach of confidentiality obligation by the receiving Party; or that is independently developed by the receiving Party without the use or benefit of the disclosing Party’s confidential information.

4.9. USE AND OWNERSHIP: All work performed or supplies created by Vendor under this Contract, whether written documents or data, goods, or deliverables of any kind, shall be deemed work for hire under copyright law and all intellectual property and other laws, and the State of Illinois is granted sole and exclusive ownership to all such work, unless otherwise agreed in writing. Vendor hereby assigns to the State all right, title, and interest in and to such work including any related intellectual property rights, and/or waives any and all claims that Vendor may have to such work including any so-called "moral rights" in connection with the work. Vendor acknowledges the State may use the work product for any purpose. Confidential data or information contained in such work shall be subject to the confidentiality provisions of this Contract.

4.10. INDEMNIFICATION AND LIABILITY: Vendor shall indemnify and hold harmless the State, its agencies, officers, employees, agents, and volunteers from any and all costs, demands, expenses, losses, claims, damages, liabilities, settlements, and judgments, including in-house and Contracted attorneys’ fees and expenses, related to: (a) any breach or violation by Vendor of any of its certifications, representations, warranties, covenants, or agreements; (b) any actual or alleged death or injury to any person, damage to any real or personal property, or any other damage or loss claimed to result in whole or in part from Vendor’s negligent performance; (c) any act, activity, or omission of Vendor or any of its employees, representatives, subcontractors, or agents; or (d) any actual or alleged claim that the products or services provided under this Contract infringe, misappropriate, or otherwise violate any intellectual property rights (including but not limited to patent, copyright, trade secret, or trademark rights) of a third party. Vendor shall also defend (subject to the consent of the Office of the Attorney General (“OAG”)) the State against any and all third-party claims related to this Contract. In accordance with Article VIII, Section 1(a) and (b) of the Constitution of the State of Illinois and 1973 Illinois Attorney General Opinion 78, the State may not indemnify private parties absent express statutory authority permitting the indemnification. The State shall not be liable for indirect, special, consequential, or punitive damages.

4.10.1. DATA BREACH PREVENTION, NOTICE, AND REMEDIATION: Vendor shall ensure the security, storage, and integrity of the State’s content, data, computers, networks, and systems (which may include the use of encryption technology to protect the State’s content and data from unauthorized access). Notwithstanding anything to the contrary in this Contract, to the extent that Vendor experiences or causes an information breach or security incident that impacts the State’s data, content, computers, systems, or networks, Vendor shall immediately notify the State and will use best efforts to immediately remedy any such breach or incident, and to prevent any further breach or incident, at Vendor’s expense, in accordance with applicable privacy rights, laws, regulations, policies, and standards, including but not limited to the Illinois Personal Information Protection Act (815 ILCS 530). Vendor shall reimburse the State for any and all costs incurred by the State in responding to, and mitigating damages caused by, any such breach or security incident, including all costs of notice and/or remediation.

4.10.2. D ATA LOSS AND DAMAGE TO STATE COMPUTER SYSTEMS: Vendor shall adhere to all indemnification and liability obligations stated in this Contract and will remain liable where any damage or impairment to the State’s computers, systems, and networks, or any loss or corruption of the State’s data or content, is due to Vendor’s negligent or intentional acts and omissions. Further, Vendor shall reimburse the State for any and all costs incurred by the State in restoring such data, content, computers, systems, or networks.

4.11. INSURANCE: Vendor shall, at all times during the term of this Contract and any renewals or extensions, maintain and provide a Certificate of Insurance naming the State as an additionally insured for all required bonds and insurance. Certificates may not be modified or canceled until at least thirty (30) days’ notice has been provided to the State. Vendor shall provide: (a) General Commercial Liability insurance in the amount of $1,000,000 per occurrence (Combined Single Limit Bodily Injury and Property Damage) and $2,000,000 Annual Aggregate; (b) Auto Liability, including Hired Auto and Non-owned Auto (Combined Single Limit Bodily Injury and Property Damage), in amount of $1,000,000 per occurrence; and (c) Worker’s Compensation Insurance in the amount required by law. Insurance shall not limit Vendor’s obligation to indemnify, defend, or settle any claims.

4.12. INDEPENDENT CONTRACTOR: Vendor shall act as an independent contractor and not an agent or employee of, or joint venturer with the State. All payments by the State shall be made on that basis.

4.13. SOLICITATION AND EMPLOYMENT: Vendor shall not employ any person employed by the State during the term of this Contract to perform any work under this Contract. Vendor shall give notice immediately to the Agency’s director if Vendor solicits or intends to solicit State employees to perform any work under this Contract.

4.14. COMPLIANCE WITH THE LAW: Vendor, its employees, agents, and subcontractors shall comply with all applicable federal, state, and local laws, rules, ordinances, regulations, orders, federal circulars and all license and permit requirements in the performance of this Contract. Vendor shall be in compliance with applicable tax requirements and shall be current in payment of such taxes. Vendor shall obtain at its own expense, all licenses and permissions necessary for the performance of this Contract.

4.15. BACKGROUND CHECK: Vendor affirms that it checks the criminal records of all applicants for felony convictions and misdemeanor convictions involving a violent act or threat of violence within five (5) years prior to employment, where permitted by law.

Whenever the State deems it reasonably necessary for security reasons, the State may conduct, at its expense, criminal and driver history background checks of Vendors and subcontractors, officers, employees, or agents performing services on State owned, leased, or controlled property. Vendor or subcontractor shall reassign immediately any such individual who, in the reasonable opinion of the State, does not pass the background checks. The background checks shall be in compliance with all federal laws. The State further agrees as follows:

· Use of the information collected will be for the specific purpose of facilitating a background check;

· All information collected will be treated as confidential;

· The State will limit access to the information received and will properly store it in a reasonably secure manner;

· The State will promptly dispose in an appropriate manner all collected information when the purpose for which it was originally collected is no longer valid; and

· State must provide notice and consent forms. Vendor's and subcontractor’s officers, employees, or agents performing services on state owned, leased, or controlled property not consenting shall be reassigned.

However, in no event can Vendor agree to waive the rights of its employees, nor can Vendor provide the State with any information protected by law, including but not limited to Vendor’s background check data.

4.16. APPLICABLE LAW:

4.16.1. PREVAILING LAW: This contract shall be construed in accordance with and is subject to the laws and rules of the State of Illinois.

4.16.2. EQUAL OPPORTUNITY: The Department of Human Rights’ Equal Opportunity requirements are incorporated by reference. 44 Ill. Adm. Code 750.

4.16.3. COURT OF CLAIMS; ARBITRATION; SOVEREIN IMMUNITY: Any claim against the State arising out of this contract must be filed exclusively with the Illinois Court of Claims. 705 ILCS 505. The State shall not enter into binding arbitration to resolve any dispute arising out of this contract. The State of Illinois does not waive sovereign immunity by entering into this contract.

4.16.4. OFFICIAL TEXT: The official text of the statutes cited herein is incorporated by reference. An unofficial version can be viewed at (www.ilga.gov/legislation/ilcs/ilcs.asp).

4.17. ANTI-TRUST ASSIGNMENT: If Vendor does not pursue any claim or cause of action it has arising under Federal or State antitrust laws relating to the subject matter of this Contract, then upon request of the Illinois Attorney General, Vendor shall assign to the State all of Vendor’s rights, title, and interest in and to the claim or cause of action.

4.18. CONTRACTUAL AUTHORITY: The Agency that signs this Contract on behalf of the State of Illinois shall be the only State entity responsible for performance and payment under this Contract. When the Chief Procurement Officer or authorized designee or State Purchasing Officer signs in addition to an Agency, he/she does so as approving officer and shall have no liability to Vendor. When the Chief Procurement Officer or authorized designee or State Purchasing Officer signs a master Contract on behalf of State agencies, only the Agency that places an order or orders with Vendor shall have any liability to Vendor for that order or orders.

4.19. EXPATRIATED ENTITIES: Except in limited circumstances, no business or member of a unitary business group, as defined in the Illinois Income Tax Act, shall submit a bid for or enter into a Contract with a State agency if that business or any member of the unitary business group is an expatriated entity.

4.20. NOTICES: Notices and other communications provided for herein shall be given in writing via electronic mail whenever possible. If transmission via electronic mail is not possible, then notices and other communications shall be given in writing via registered or certified mail with return receipt requested, via receipted hand delivery or via courier (UPS, Federal Express, or other similar and reliable carrier). Notices shall be sent to the individuals who signed this Contract using the contact information provided with the signatures. Each such notice shall be deemed to have been provided at the time it is actually received. By giving notice, either Party may change its contact information.

4.21. MODIFICATIONS AND SURVIVAL: Amendments, modifications, and waivers must be in writing and signed by authorized representatives of the Parties. Any provision of this Contract officially declared void, unenforceable, or against public policy, shall be ignored and the remaining provisions shall be interpreted, as far as possible, to give effect to the Parties’ intent. All provisions that by their nature would be expected to survive, shall survive termination. In the event of a conflict between the State’s and Vendor’s terms, conditions, and attachments, the State’s terms, conditions, and attachments shall prevail.

4.22. PERFORMANCE RECORD/SUSPENSION: Upon request of the State, Vendor shall meet to discuss performance or provide contract performance updates to help ensure proper performance of this Contract. The State may consider Vendor’s performance under this Contract and compliance with law and rule to determine whether to continue this Contract, suspend Vendor from doing future business with the State for a specified period of time, or whether Vendor can be considered responsible on specific future contract opportunities.

4.23. FREEDOM OF INFORMATION ACT: This Contract and all related public records maintained by, provided to or required to be provided to the State are subject to the Illinois Freedom of Information Act (“FOIA”) (5 ILCS 140) notwithstanding any provision to the contrary that may be found in this Contract.

4.24. SCHEDULE OF WORK: Any work performed on State premises shall be performed during the hours designated by the State and performed in a manner that does not interfere with the State and its personnel.

4.25. WARRANTIES FOR SUPPLIES AND SERVICES:

4.25.1. Vendor warrants that the supplies furnished under this Contract will: (a) conform to the standards, specifications, drawing, samples, or descriptions furnished by the State or furnished by Vendor and agreed to by the State, including but not limited to all specifications attached as exhibits hereto; (b) be merchantable, of good quality and workmanship, and free from defects for a period of twelve months or longer if so specified in writing, and fit and sufficient for the intended use; (c) comply with all federal and state laws, regulations, and ordinances pertaining to the manufacturing, packing, labeling, sale, and delivery of the supplies; (d) be of good title and be free and clear of all liens and encumbrances and; (e) not infringe any patent, copyright, or other intellectual property rights of any third party. Vendor agrees to reimburse the State for any losses, costs, damages, or expenses, including without limitations, reasonable attorney’s fees and expenses, arising from failure of the supplies to meet such warranties.

4.25.2. Vendor shall ensure…