B-53292 DoIT Consortium Internet Egress IFB Contract Template v.25.2 FINAL~2.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 E-rate Internet Egress – related to the E-rate Program - IFB

27-448DOIT-ADMIN-B-53292

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 executing an agency specific contract with a vendor to purchase high speed (10Gbps – 200Gbps) Internet Egress services. This contract provides a purchasing mechanism for DoIT to purchase high speed Egress services and the ability for DoIT to purchase additional bandwidth in the future, as needed, if needed. This contract is in conjunction with a Universal Service Fund Schools and Libraries Program E-rate Form 470 pursuant to the DoIT Consortium, and Vendor is required to have a valid Service Provider Identification Number (“SPIN”) from the Universal Service Fund’s Schools and Libraries Program. As part of this contract, Vendors are required to complete and adhere to the E-Rate Supplemental Terms and Conditions included as Attachment A.

1.2. SUPPLIES AND/OR SERVICES REQUIRED:

Vendor shall comply with the following for high speed (10Gbps to 200Gbps) Internet Egress services:

1.2.1 Backbone: Vendor must maintain a global network with multiple Points of Presence (POP) and/or Network Access Points (NAP). A global network means there is high speed connectivity to East Coast, West Coast and Central POPs/NAPs.

1.2.2 Support Capabilities

1.2.2.1 The Vendor must be able to provide 24/7/365 in house, dedicated support

1.2.2.2 The Vendor must have at least one Call Center

1.2.2.3 The Vendor must support an escalation process for

emergency tickets

1.2.2.4 The Vendor must provide a toll-free trouble line or direct access to an electronic portal or helpdesk for DoIT’s use in reporting and communication during trouble and/or outages.

1.2.3 Service Credits: Vendor must provide service credits to compensate DoIT for any service failures per Service Level Agreement (SLA) that will become part of the contract.

1.2.3.1 Vendors must provide SLA documentation addressing, at a minimum, the following service elements as part of the procurement agreement.

A. Network Latency Guarantee: For Dedicated Internet Access only, the monthly average Network Latency for packets carried over the Vendor Network between Backbone Hubs for the following regions is as specified below:

a) Intra-North America – 45 milliseconds or less

b) Intra-Europe – 35 milliseconds or less

c) New York to London (Transatlantic) – 85 milliseconds or less

d) Los Angeles to Tokyo (Transpacific) – 120 milliseconds or less Network Latency (or Round-trip time) is defined as the average time taken for an IP packet to make a round-trip between Backbone Hub within the regions specified above on the Vendor Network. Vendor monitors aggregate latency within the Vendor Network by monitoring round-trip times between a sample of Backbone Hub on an ongoing basis, After being notified by Agency of Network Latency in excess of the rates specified above Vendor will use commercially reasonable efforts to determine the source of such excess Network Latency and to correct such problem to the extent that the source of the problem is on the Vendor Network.

If Vendor fails to remedy such Network Latency within two (2) hours of being notified of any excess Network Latency and average Network Latency for the preceding thirty (30) days has exceeded the rates above, the Agency will receive, at Agency’s request, a Service Credit for the period from the time of notification by the Agency until the average Network Latency for the preceding thirty (30) days is less than the rates specified above. The Agency may obtain no more than one (1) month Service Credit for any given month.

B. Packet Delivery Guarantee: For Dedicated Internet Access only, the Vendor Network has an average monthly Packet Loss no greater than 0.1% (or successful delivery of 99.9% packets). Packet Loss is defined as the percentage of packets that are dropped between Backbone Hubs on the Vendor Network. The Vendor monitors this aggregate packet loss on an ongoing basis and compiles the collected data into a monthly average packet loss measurement for the Vendor Network.

After being notified by Agency of Packet Loss in excess of 0.1% Vendor will use commercially reasonable efforts to determine the source of such excess Packet Loss and to correct such problems to the extent that the source of the problem is on the Vendor Network.

If Vendor fails to remedy such excess Packet Loss within two (2) hours of being notified of any excess Packet Loss and average Packet Loss for the preceding thirty (30) days has exceeded 0.1% the Agency will receive, at Agency’s request, a Service Credit for the period from the time of notification by the Agency until the average Packet Loss for the preceding thirty (30) days is less than 0.1%. The Agency may obtain no more than one (1) month Service Credit for any given month.

C. Additional Definitions:

a) Dedicated Internet Access or Internet refers to Vendor’s Layer 3 service that provides Agency access to the public Internet.

b) Backbone Hub means a major network facility owned, operated and controlled by Vendor which is directly connected to the Vendor fiber backbone network and which contains at least one (1) core router and is in a large metropolitan market. One (1) facility in the market will be designated as a Backbone Hub for the purpose of calculating the monthly average Network Latency or packet Loss statistics.

c) Vendor Network means the telecommunications/ data communications network and network components owned, operated, or controlled by the Vendor, including the Vendor’s national fiber backbone, its metropolitan fiber networks, any equipment connected to such fiber, and the software data and know-how used by the Vendor in the provision of Services. Where the Vendor provides Service to a building through its own facilities, the Vendor Network includes those facilities. The Vendor Network does not include Agency premises equipment, customer-ordered telephony circuits, and any networks or network equipment not operated and controlled by the Vendor.

d) Service Credits mean:

· One (1) day Service Credit = 1/30th of Agency’s Monthly Recurring Charge

· One (1) week Service Credit = 7/30th of Agency’s Monthly Recurring Charge

· One (1) month Service Credit = Full amount of Agency’s monthly Recurring Charge

1.2.4 Maintenance Procedures: Vendor must plan downtime for networks when it least affects DoIT customers’ service. Vendor shall schedule maintenance identified as “potentially customer impacting” during non-prime time hours (from 12:00 AM to 5:00 AM Central Time). For clarity, “customer impacting” means anything that impacts customer traffic.

1.2.5 Outage Procedures

1.2.5.1 Vendor is required to notify DoIT immediately, and no later than 60 minutes, upon realizing a network outage has occurred. This message shall include outage type, start time, areas and platforms affected, and DoIT impact. During the outage, Vendor agrees to provide details on the corrective action required from Vendor, an estimated time-frame for service restoration as well as periodic updates during outage on service restoration progress.

1.2.5.2 Vendor agrees to provide advance notice of at least 10 calendar days on nonemergency work.

1.2.5.3 Vendor agrees to provide advance notice of at least 10 calendar days or as soon as practical on emergency work.

1.2.5.4 Vendor must close tickets after DoIT confirmation of

resolution.

1.2.5.5 For any emergency activity considered “customer

impacting”, Vendor shall notify the State by phone (1-800-366-8768/ NOC 312-814-3648 (DoIT), option 2) not less than sixty (60) minutes prior to start of maintenance activity. Updates shall be provided at no greater than sixty (60) minutes intervals until resolution of the outage. Prior to closing any trouble ticket, Vendor agrees they must receive confirmation from customer that all components relating to the trouble call have been resolved.

Louis, MO OR 210 N. Tucker, St. Louis, MO)

1.2.8 Service Offerings:

1.2.8.1 Vendor must provide a minimum of one hundred Gigabit Ethernet ports (i.e. 100G ports).

1.2.8.2 Vendor must have the capacity to provide, at a minimum, Internet Egress services at bandwidth levels: 10 Gbps, 20 Gbps, 40 Gbps, 60 Gbps, 80 Gbps, 100 Gbps and 200 Gbps. Rates below 200 Gbps should be burstable. The 200 Gbps bandwidth level can be provided via 2 one hundred Gigabit Ethernet ports.

1.2.8.3 Vendor must support both IPv4 as well as IPv6 routing/transport Any Vendor terms and conditions on the Vendor’s ordering document(s) shall not apply to the contract or any Orders against it. Orders written through and including the last day of the contract shall be honored. Each individual order shall have its own ship to/bill to information. For procurements conducted in BidBuy, the State may include in this contract the BidBuy Purchase Order as it contains the agreed Supplies and/or Services.

1.3. MILESTONES AND DELIVERABLES:

An ordered service must be installed and fully operational on the Service Start Date specified in Attachment B unless the State agrees otherwise.

1.4. VENDOR/STAFF SPECIFICATIONS:

1.4.1. Vendor shall have a valid Service Provider Identification Number (SPIN) from the Universal Service Fund’s Schools and Libraries Program throughout the term of this Contract. Proof must be submitted prior to contract execution.

1.4.2. Vendor must be a Tier 1 or Tier 2 Internet provider. A Tier 1 Internet provider is a provider that has direct connections to all other networks on the internet, without having to pay for transit or access. Tier 1 Internet providers are considered to have a global network presence and are capable of providing at minimum 200 Gbps volume of Internet traffic. A Tier 2 Internet provider is a provider that has direct connections to some other networks on the internet, without having to pay for transit or access, but must still purchase transit from one or more Tier 1 providers to reach parts of the Internet they cannot reach through settlement free peering.

1.5. TRANSPORTATION AND DELIVERY:

Each individual order shall have its own ship to/bill to information.

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

· 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 price of this contract is firm.

2.2. VENDOR’S PRICING: Vendor’s pricing is located in Attachment B Internet Egress Pricing Table. The State includes in this contract the BidBuy Purchase Order as it contains the agreed pricing. Pricing shall be all-inclusive. No additional taxes, charges, surcharges, or fees of any kind shall be billed to the State after award, including but not limited to universal service fees, regulatory recovery fees, gross receipts taxes, 911 surcharges, or other telecommunications related charges.

2.3. RENEWAL COMPENSATION: If the contract is renewed, the price shall be at the same rate as for the initial contract term, unless a different compensation or formula for determining the renewal compensation is stated in this section.

2.3.1. Agency Formula for Determining Renewal Compensation: N/A.

2.3.2. Vendors renewal pricing is per the quote upon which the award was determined. Quote number TBD. The awarded quote number will be entered by the State prior to execution of the contract.

2.4. MAXIMUM AMOUNT: The total payments under the initial term of this contract shall not exceed $TBD without a formal amendment. The maximum amount will be entered by the State prior to execution of the contract.

3. TERM AND TERMINATION

3.1. TERM:

3.1.1 TERM OF THIS CONTRACT: The Contract will have an initial term commencing upon the last dated signature of the parties and ending seven (7) years from date of last execution. 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.

3.1.2 RENEWAL: Subject to the maximum total term identified above, the State has the option to renew for the following term(s):

3.1.2.1 Pricing for the renewal term(s), or the formula for determining price, is shown in the pricing section of this Contract.

3.1.2.2 The State reserves the right to renew for a total of month to month, 1, 2 or 3 years in any one of the following manners:

entire renewal allowance; or

3.1.2.2.3 Any combination of full or partial year renewals up to and including the entire renewal allowance.

Any renewal of the resulting contract is subject to the same terms and conditions that apply to the initial term of the contract unless otherwise provided. The State may renew the contract for any or all of the option periods specified, may exercise any of the renewal options early, and may exercise more than one option at a time based on continuing need and favorable market conditions, when in the best interest of the State. The contract may neither renew automatically nor renew solely at the Vendor’s option.

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 this 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; SOVEREIGN 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 that all manufacturers’ warranties are transferred to the State and shall provide to the State copies of such warranties. These warranties shall be in addition to all other warranties, express, implied, or statutory, and shall survive the State’s payment, acceptance, inspection, or failure to inspect the supplies.

4.25.3. Vendor warrants that all services will be performed to meet the requirements of this Contract in an efficient and effective manner by trained and competent personnel. Vendor shall monitor performances of each individual and shall immediately reassign any individual who does not perform in accordance with this Contract, who is disruptive or not respectful of others in the workplace, or who in any way violates the Contract or State policies.

4.26. REPORTING, STATUS AND MONITORING SPECIFICATIONS: Vendor shall immediately notify the State of any event that may have a material impact on Vendor’s ability to perform this Contract.

4.27. EMPLOYEMENT TAX CREDIT: Vendors who hire qualified veterans and certain ex-offenders may be eligible for tax credits. 35 ILCS 5/216, 5/217. Please contact the Illinois Department of Revenue (telephone #: 217-524-4772) for information about tax credits.

4.28. SUPPLEMENTAL TERMS: Notwithstanding any provision to the contrary in Vendor’s supplemental terms and conditions, or in any licensing agreement attached hereto:

4.28.1. The procuring Agency and the State do not waive sovereign immunity (including all rights provided in the State Lawsuit Immunity Act, 745 ILCS 5);

4.28.2. The procuring Agency and the State do not consent to be governed by the laws of any state other than Illinois;

4.28.3. The procuring Agency and the State do not consent to be represented in any legal proceeding by any person or entity other than the Illinois Attorney General or his or her designee;

4.28.4. The procuring Agency and the State shall not be bound by the terms and conditions contained in any click-wrap agreement, click-wrap license, click-through agreement, click-through license, end user license agreement, or any other agreement or license contained or referenced in the software or any quote provided by Vendor, except as attached to this Contract.

4.28.5. The procuring Agency and the State shall not indemnify Vendor or its subcontractors (including any equipment manufacturers or software companies);

4.28.6. Vendor shall indemnify the procuring Agency and State pursuant to the terms and conditions of the Indemnification and Liability clause of this Contract;

4.28.7. Vendor’s liability shall be governed by the terms and conditions contained in the Indemnification and Liability clause of this Contract; and

4.28.8. Vendor must ensure that all information technology, including electronic information, software, systems and equipment, developed or provided under this contract complies with the applicable requirements of the Illinois Information Technology Accessibility Act Standards as published at (www.dhs.state.il.us/iitaa). 30 ILCS 587.

4.29. SECURITY REQUIREMENTS: The State of Illinois has specific security requirements for information and systems. Vendor must ensure these requirements are fully understood and allocate sufficient project time and resources to address the security requirements.

An information security risk assessment, data classification and system categorization process, and the submission of a system security plan must be completed and submitted to the Department of Innovation & Technology, Division of Information Security prior to the commencement of system development or solution delivery activities. Vendor must participate with the risk assessment and data classification and system categorization process. The formal risk assessment and data classification and system categorization process will be administered by the Illinois Department of Innovation & Technology, Division of Information Security. Vendor program and project management personnel must ensure the coordination of these activities with State of Illinois program and project management personnel.

If not specifically addressed in other Vendor Information Technology Requirements, Vendor must adhere to State of Illinois and Illinois Department of Innovation & Technology technology and security Policies, Procedures, and Standards. https://www2.illinois.gov/sites/doit/support/policies/Pages/default.aspx Vendor must also adhere to a minimum-security baseline as identified in the National Institute of Standards and Technology (NIST) Special Publication 800-53, Revision 5, Security and Privacy Controls for Federal Systems and Organizations. https://doi.org/10.6028/NIST.SP.800-53r5. If not specifically addressed in other Vendor Information Technology Requirements, Vendors must assure the adoption of, at minimum, the low security control baselines. Exceptions to this requirement must be approved by the Illinois Department of Innovation & Technology, Division of Information Security.

Cloud solutions must adhere to recommendations of the Cloud Security Alliance. Vendors may find guidance and cross-referencing to the NIST 800-53, Revision 5 with the Cloud Security Alliance controls at CSA (cloudsecurityalliance.org).

State and Federal laws, rules, and regulations as well as industry-specific guidelines require specific and often enhanced security controls on information and systems. The State of Illinois is required to comply with the below laws, standards, and regulations. Vendors must ensure compliance with the below as appropriate based upon the formal risk assessment to include a data classification and system categorization process.

• Illinois Identity Protection Act (5 ILCS 179)

• Illinois Personal Information…