KK+Bold+Contract.pdf

INFORMATION TECHNOLOGY PROFESSIONAL SERVICES CONTRACT

The parties to this contract (Contract) are the state of North Dakota, acting through its Office of Management and Budget, State Procurement Office (STATE), and KK BOLD, having its principal place of business at 505 East Main Ave, Suite 250 (CONTRACTOR);

1. SCOPE OF WORK

CONTRACTOR, in exchange for the compensation paid by STATE under this Contract, shall provide the following services:

• Web Designer

2. COOPERATIVE PURCHASING STATE TERM CONTRACT

This contract is a cooperative purchasing contract established pursuant to North Dakota Century Code (NDCC) sections 54-44.4-13. This contract is made available to state entities, institutions under the jurisdiction of the State Board of Higher Education, other government entities (including counties, cities, townships, public primary and secondary educational entities, governmental boards and commissions), nonprofit entities established on behalf of public entities, tribal agencies, transportation providers under N.D.C.C chapter 39-04.2, and the International Peace Garden.

3. COMPENSATION

a. Contractual Amount

STATE shall pay for the accepted services provided by CONTRACTOR under this Contract for each IT Contract Pool Category an hourly amount not to exceed:

Category Time Period Programmer I Analyst Senior Programmer I Analyst

Maximum Maximum Maximum Maximum Onsite Offsite Onsite Offsite Hourly Hourly Hourly Hourly Rate Rate Rate Rate

Web Designer 7/1/2021 - 9/30/2023 $100.00 $100.00 N/A N/A

10/1/2023 - 9/30/2025 $100.00 $100.00 N/A N/A

The Contractual Amount is firm for the duration of this Contract and constitutes the entire compensation due CONTRACTOR for performance of its obligations under this Contract regardless of the difficulty, materials or equipment required, including fees, licenses, overhead, profit and all other direct and indirect costs incurred by CONTRACTOR, except as provided by an amendment to this Contract. For Work Orders being requested as Time and Materials, overtime will be paid at a rate of 1.5 times the agreed upon hourly rate. Overtime must be approved in advance by STATE and will not apply to Fixed Bid projects.

The cost of each Work Order is firm for the duration of the Contract and is not subject to escalation for any reason, unless this Contract is amended, or a valid change order is processed in accordance with this Contract.

b. Retainage

Payments may be subject to retainage. Retained amounts due to CONTRACTOR shall be paid upon Final Acceptance.

c. Invoicing

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

d. Payment

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

2) · STATE shall make payment under this Contract within forty-five (45) calendar days after receipt of a correct invoice.

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

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

e. Travel

CONTRACTOR acknowledges travel costs are covered by the Contractual Amount and shall not invoice STATE for travel costs, except for "Short Notice" Work Order Requests. Short Notice requests are those issued to Vendors with less than 14 calendar days to project start date. In such cases, Vendors may be allowed, with the approval of the agency issuing the work order, to bill supplemental travel expenses caused by the short notice. CONTRACTOR must provide documentation justifying the supplemental travel expense billing.

"Short Notice" Work Order and Information Technology Training Requests - STATE shall reimburse CONTRACTOR for expenses related to travel at amounts not to exceed the then current, published United States General Services Administration ("GSA") per diem rates. Travel expenses in excess of the then-current GSA rates require prior approval by STATE or STATE shall not reimburse CONTRACTOR for such excess costs.

1) Lodging: Reimbursement shall not exceed the then current, published GSA rate for the travel location. Copies of receipts are required for lodging reimbursement. STATE shall not reimburse for incidental and miscellaneous expenses charged to the room, including:

alcohol, telephone charges, or entertainment (e.g., movies).

2) Transportation. Air travel shall be reimbursed by STATE at the actual cost of air fare for coach class travel only. CONTRACTOR shall make air travel arrangements at least fourteen

(14) days in advance whenever possible. Reimbursement for rented, chartered, or contracted vehicle transportation shall be limited to reasonable rates as determined by

STATE

3) Meals: Meals shall be paid on a per diem basis for each day of travel at then current, published GSA per diem rate for the travel location. Per diem for the first and last day of travel shall be paid at seventy five percent (75%) of the GSA per diem rate. Requests for per diem payments must include the start and end dates of travel, the location where the services are performed, and the allowable per diem amount for each trip on the billing/invoice.

Payment for any travel expenses that exceed the travel budget as agreed upon by the parties must be approved by STATE.

f. Prepayment

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

g. Payment of Taxes by STATE

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

CONTRACTOR.

h. Taxpayer ID

CONTRACTOR'S federal employer ID number is: 45-0383893.

i. Purchasing Card

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

4. EQUIPMENT, MATERIALS, AND WORKSPACE - RESOURCES PROVIDED BY PARTIES

For periods during which the parties mutually agree that CONTRACTOR's assigned staff is on site:

a. On site means any agency location in the State of North Dakota. "Offsite" is work that is done at the Vendor's business location.

b. Agencies will indicate in the executed Work Order Request whether the State will furnish office space, network access, equipment (such as PC workstation), and software licenses for Vendor staff.

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

5. TERM OF CONTRACT

This Contract term (Term) begins on its effective date and ends on September 30, 2025.

Extension Option

STA TE reserves the right to extend this Contract for an additional period of time, not to exceed twenty-four (24) months, beyond the current termination date of this Contract.

6. TERMINATION

a. Termination by Mutual Agreement

This Contract may be terminated by mutual consent of both parties executed in writing.

b. Early Termination in the Public Interest

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

c. Termination for Lack of Funding or Authority

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

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

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

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

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

d. Termination for Cause

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

1) If CONTRACTOR fails to provide services required by this Contract within the time specified or any extension agreed to by STATE; or

2) If CONTRACTOR fails to perform any of the other provisions of this Contract, or so fails to pursue the work as to endanger performance of this Contract in accordance with its terms.

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

7. SURVIVAL BEYOND TERMINATION

a. Termination without Cause.

In the event the Contract term ends under Section 5 (Term of Contract) or in accordance with Section 6a (Termination by Mutual Agreement), Section 6b (Termination in the Public Interest), or Section 6c (Termination for Lack of Funding or Authority), and no renewals or extensions are executed, any outstanding Work Order shall remain in effect and the terms and conditions of the

Contract shall continue to extend to that Work Order until the Work Order is complete or otherwise terminated under the Contract.

b. Termination for Cause.

In the event the Contract is terminated for cause in accordance with Section 6d (Termination for Cause), any outstanding Work Order may remain in effect at the sole discretion of the Purchasing Agency. Should the Purchasing Agency elect to complete the Work Order, the terms and conditions of the Contract shall continue to extend to that Work Order until such time the Work Order is complete or otherwise terminated under the Contract.

8. SUSPENSION FOR CONVENIENCE

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

9. FORCE MAJEURE

Neither party shall be held responsible for delay or default caused by fire, riot, terrorism, acts of God or war if the event is beyond the party's reasonable control and the affected party gives notice to the other party promptly upon occurrence of the event causing the delay or default or that is reasonably expected to cause a delay or default.

10. INJUNCTIVE RELIEF

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

11. RIGHT OF SETOFF DAMAGES

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

12. RIGHT TO WITHHOLD AMOUNTS OTHERWISE DUE IF THE CONTRACTOR IS IN BREACH

If CONTRACTOR fails to deliver Deliverables or to provide Services which satisfy CONTRACTOR's obligations under this Contract, STATE shall have the right to withhold any and all payments due under this Contract. STATE may withhold any and all such payments due under this Contract to CONTRACTOR without penalty or work stoppage by CONTRACTOR, until such failure to perform is cured.

13. RIGHT TO REMEDIES AND CUMULATION OF RIGHTS

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

14. NON-WAIVER

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

15. INDEMNIFICATION

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

16. REPRESENTATIONS AND WARRANTIES

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

CONTRACTOR further represents and warrants to STATE that neither CONTRACTOR nor any other company or individual performing services pursuant to this Contract is under any obligation to assign or give any work done under this Contract to any third party.

17. INSURANCE

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

a. Commercial general liability, including premises or operations, contractual, and products or completed operations coverages (if applicable}, with minimum liability limits of $250,000 per person and $1,000,000 per occurrence.

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

c. Employer's liability or "stop gap" insurance of not less than $1,000,000 as an endorsement on the workers compensation or commercial general liability insurance.

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

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

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

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

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

h. Waiver of Subrogation" waiving any right to recovery the insurance company may have against the State

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

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

k. CONTRACTOR shall provide at least 30 day notice of any cancellation or material change to the policies or endorsements.

18. WORKS FOR HIRE

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

CONTRACTOR shall execute all necessary documents to enable STATE to protect STATE's intellectual property rights under this section.

19. WORK PRODUCT

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

20. TECHNOLOGY STANDARDS

CONTRACTOR shall comply with applicable STATE enterprise architecture technology standards.

These standards can be found on STATE's website at http://www.nd.gov/itd/standards. If CONTRACTOR is unable to comply with any applicable standard, CONTRACTOR shall request a waiver from that requirement by submitting a Request for Exemption from Information Technology Standards or Statutory Policies (SFN 51687) form in coordination with STATE's procurement officer for the STATE's review and approval or disapproval.

21. PERSONNEL

a. CONTRACTOR shall provide individuals to complete work as described in the Statement of Work in the Work Order Request issued by the State.

b. STATE will designate a Project Manager in each Work Order Request to act as the States representative for communications and coordination with Vendor staff for work performed under the executed Work. If, during the course of the Contract, it becomes necessary for STATE to change the person assigned as STATE's Project Manager, STATE will notify CONTRACTOR in writing, pursuant to Notice section of this Contract.

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

CONTRACTOR.

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

e. CONTRACTOR agrees and understands that STATE's execution of this Contract is predicated, in part and among other considerations, on the utilization of the specific individuals and personnel qualifications as identified in the executed Work Order Request. Therefore, CONTRACTOR agrees that:

1) Prior to assignment of personnel, CONTRACTOR shall obtain written approval from STATE for all personnel to be assigned to this project.

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

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

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

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

6) CONTRACTOR shall assign personnel on a full-time basis. In the event that a work assignment does not justify full-time participation, CONTRACTOR shall assign personnel on a part-time basis with prior written approval of STA TE's Project Manager. However, if the part-time assignments are specified in this Contract, no written approval from STA TE's Project Manager is necessary except for substitution of CONTRACTOR personnel.

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

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

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

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

j. CONTRACTOR agrees that STATE may require contracted staff and subcontractors assigned by CONTRACTOR to perform work under this Contract to submit to a criminal history record check in accordance with N.D.C.C. § 54-59-20 and §12-60-24. STATE shall have the right to reject any individual assigned to perform work under this Contract if, in its sole discretion, it determines that the results of the criminal history record check make the individual unacceptable. The agency shall specify in the Work Order Request if the STATE or CONTRACTOR will pay for the requested check.

22. PROJECT MANAGEMENT

a. Reporting

1) CONTRACTOR personnel will be responsible for providing written time utilizations, at the frequency identified in the Work Order Request, for each individual, to STATE's Project Manager, or STATE's project staff, as STATE's Project Manager may assign.

2) CONTRACTOR's Project Manager shall deliver to STATE's Project Manager, reports, at the frequency identified in the Work Order Request, of CONTRACTOR's progress on the project and meeting the objective/deliverables as stated in the Scope of Work. Each report must contain a description of the current status of the project, the tasks on which time was spent, the estimated progress to be made in the next reporting period, and the problems encountered the proposed solutions to them and their effect, if any, on the project budget/schedule.

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

b. Integrated Change Control Process

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

1) A change request must be in writing to document the potential change. The write-up for the proposed change must be submitted to CONTRACTOR and STA TE's project manager who will in turn provide it to relevant parties for assessment.

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

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

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

5) CONTRACTOR's project manager and STATE's project manager will adapt the Project Plan to incorporate approved changes.

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

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

(30) calendar days of determining or reasonably being able to determine that any STA TE actions or directions constitute a requirement to perform additional work under this Contract.

c. Deliverable Acceptance

1) Unless otherwise noted in this Contract or agreed upon in writing by both parties, acceptance testing will be performed on-site, on STATE's platform.

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

3) Upon completion of a deliverable or sub-deliverable, STATE will have five (5) working days or a different period of time as is agreed to by the parties, in which to accept or reject each item in writing. STATE will accept by signature. If STATE rejects it, STATE will specify in writing its grounds for rejection and CONTRACTOR shall use its best efforts to revise any issues for the deliverables to be acceptable to STATE within the following five (5) working days. If ST A TE rejects it a second time, STA TE will have the option of repeating the procedure as described in this acceptance statement above or terminating this Contract upon written notice to CONTRACTOR.

d. Final Acceptance

1) The successful completion of all deliverables as stated in the Scope of Work in accordance with the deliverable acceptance process AND

2) The final delivered product fully implemented in ST A TE's live production environment AND

3) STATE has sixty (60) calendar days thereafter in which to accept or reject it in writing. If STATE rejects it, STATE shall specify in writing its grounds for rejection and CONTRACTOR shall use its best efforts to make the product conform to the requirements of this Contract as soon as possible and at no additional cost to STATE. CONTRACTOR shall continue to use its best efforts to make the product conform to the requirements of this Contract until STA TE accepts the product or terminates this Contract upon written notice to CONTRACTOR.

23. PRODUCT CONFORMITY

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

24. WARRANTY

CONTRACTOR shall be responsible for correcting all problems, at no additional cost, for an initial warranty period of 30 days after final acceptance, stemming from incorrect, erroneous, negligent, nonprofessional, and/or incomplete work on the vendors' part.

25. NOTICE

All notices or other communications required under this Contract must be given by registered or certified mail and are complete on the date postmarked when addressed to the parties at the following addresses:

STATE CONTRACTOR

Tricia Opp Kalvin Kingsley

Procurement Officer II Vice President of Information Technology

600 East Boulevard Ave, Dept 012 505 East Main Ave, Suite 250

Bismarck, ND 58505 Bismarck, ND 58501

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

26. CONFIDENTIALITY

CONTRACTOR shall not use or disclose any information it receives from STATE under this Contract that STATE has previously identified as confidential or exempt from mandatory public disclosure except as necessary to carry out the purposes of this Contract or as authorized in advance by STATE. STATE shall not disclose any information it receives from CONTRACTOR that CONTRACTOR has previously identified as confidential and that STA TE determines in its sole discretion is protected from mandatory public disclosure under a specific exception to the North Dakota public records law, N.D.C.C. CH.

44-04. The duty of STATE and CONTRACTOR to maintain confidentiality of information under this section continues beyond the Term of this Contract.

27. COMPLIANCE WITH PUBLIC RECORDS LAWS

Under the North Dakota public records law and subject to the Confidentiality clause of this Contract, certain records may be open to the public upon request.

Public records may include: (a) records STATE receives from CONTRACTOR under this Contract, (b) records obtained by either Party under this Contract, and (c) records generated by either Party under this Contract.

CONTRACTOR agrees to contact STATE immediately upon receiving a request for information under the public records law and to comply with STATE's instructions on how to respond to such request.

28. DATA USE, SECURITY/LOCATION, AND RETENTION

a. Data Use

STATE's Confidential Information, of any kind, shall not be distributed or sold to any third party or used by Contractor, its Affiliates and Subcontractors, or their respective employees and agents in any manner, except as authorized by this Contract or a Work Order under which such Confidential Information is disclosed or approved in writing by the authorized representative of the Disclosing Party. Contractor shall provide and maintain a secure environment that ensures the confidentiality of all STATE Confidential Information wherever located.

b. Security I Location

STATE Confidential Information and Data of any kind shall be stored, processed, or transferred only in or to facilities located within the continental United States, including Alaska and Hawaii.

c. Retention

STATE Confidential Information shall not be retained in any files or otherwise by Contractor, its Affiliates and Subcontractors, or their respective employees and agents, except as permitted in this Contract or a Work Order under which such Confidential Information was disclosed or approved in writing by an authorized representative of the Disclosing Party.

29. CRIMINAL JUSTICE INFORMATION

a. CONTRACTOR shall comply with the FBI CJIS Security Policy and the FBI CJIS Security Addendum. This policy and addendum may be found on the FBI website at https://www.fbi.gov/about-us/cjis/cjis-security-policy-resource-center/view

b. For all personnel who have unescorted access to a location where STATE systems are accessed or criminal background checks are performed by ST A TE:

1) Personnel Screening - Prior to access, CONTRACTOR shall provide to STATE fingerprints of personnel and a consent form provided by STATE and signed by said personnel for a fingerprint-based background check to be performed by STATE.

2) Security Awareness Training - Within six (6) months of obtaining access and every two (2) years thereafter, CONTRACTOR shall ensure personnel receive security awareness training provided by STATE that is appropriate for the level of access, as defined in the CJIS Security Policy. CONTRACTOR shall maintain and annually submit a list of all personnel with access and the date the required training was completed. At any time, CONTRACTOR shall provide that list to STA TE within seven (7) days of request by STATE.

c. CJIS Security Addenda - In addition to the personnel screening and security awareness training, personnel with access to perform contracted services on state systems or information:

CONTRACTOR shall provide personnel with a copy of the FBI CJIS Security Policy and the FBI

CJIS Security Addendum. CONTRACTOR shall require personnel to sign the FBI CJIS Security Addendum Certification and provide the signed certification to STATE.

d. Security Incident Notification - CONTRACTOR shall report all security incidents to the STATE within twenty-four (24) hours of confirmation of a security incident, in accordance with the CJIS Security Policy. The report shall substantially conform to the Security Incident Response Form in Appendix F in the CJIS Security Policy.

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

30. INDEPENDENT ENTITY

CONTRACTOR is an independent entity under this Contract and is not a STATE employee for any purpose, including the application of the Social Security Act, the Fair Labor Standards Act, the Federal Insurance Contribution Act, the North Dakota Unemployment Compensation Law and the North Dakota Workforce Safety and Insurance Act. CONTRACTOR retains sole and absolute discretion in the manner and means of carrying out CONTRACTOR'S activities and responsibilities under this Contract, except to the extent specified in this Contract.

31. ASSIGNMENT AND SUBCONTRACTS

CONTRACTOR may not assign or otherwise transfer or delegate any right or duty without STATE's express written consent, provided, however, that CONTRACTOR may assign its rights and obligations hereunder in the event of a change of control or sale of all or substantially all of its assets related to this Contract, whether by merger, reorganization, operation of law, or otherwise. Should Assignee be a business or entity with whom STATE is prohibited from conducting business, STATE shall have the right to terminate without cause.

CONTRACTOR may enter into subcontracts provided that any subcontract acknowledges the binding nature of this Contract and incorporates this Contract, including any attachments. CONTRACTOR is solely responsible for the performance of any subcontractor with whom CONTRACTOR contracts.

CONTRACTOR does not have authority to contract for or incur obligations on behalf of STATE.

32. SPOLIATION-PRESERVATION OF EVIDENCE

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

33. MERGER AND MODIFICATION, CONFLICT IN DOCUMENTS

This Contract, including the following documents, constitutes the entire agreement between the parties.

There are no understandings, agreements, or representations, oral or written, not specified within this Contract. This Contract may not be modified, supplemented or amended, in any manner, except by written agreement signed by both parties.

Notwithstanding anything herein to the contrary, in the event of any inconsistency or conflict among the documents making up this Contract, the documents must control in this order of precedence:

a. The terms of this Contract as may be amended;

b. STATE's Solicitation Amendment #4 to Request for Proposal ("RFP") number 110.7-21-003 dated June 17, 2021;

c. STATE's Solicitation Amendment #3 to Request for Proposal ("RFP") number 110.7-21-003 dated May 3, 2021;

d. STATE's Solicitation Amendment #2 to Request for Proposal ("RFP") number 110.7-21-003 dated April 13, 2021;

e. STATE's Solicitation Amendment#1 to Request for Proposal ("RFP") number 110.7-21-003 dated April 12, 2021;

f. STATE's Request for Proposal ("RFP") number 110.7-21-003, dated March 24, 2021;

g. CONTRACTOR's proposal dated May 4, 2021 in response to RFP number 110.7-21-003.

h. All terms and conditions contained in any automated end-user agreements (e.g., click-throughs, shrink wrap, or browse wrap) are specifically excluded and null and void, and shall not alter the terms of this Contract.

34. SEVERABILITY

If any term of this Contract is declared to be illegal or unenforceable by a court having competent jurisdiction, the validity of the remaining terms is unaffected and, if possible, the rights and obligations of the parties are to be construed and enforced as if this Contract did not contain that term.

35. APPLICABLE LAW AND VENUE

This Contract is governed by and construed in accordance with the laws of the State of North Dakota.

Any action to enforce this Contract must be adjudicated exclusively in the state District Court of Burleigh County, North Dakota. Each party consents to the exclusive jurisdiction of such court and waives any claim of lack of jurisdiction or forum non conveniens.

36. ALTERNATIVE DISPUTE RESOLUTION - JURY TRIAL

By entering into this Contract, STATE does not agree to binding arbitration, mediation, or any other form of mandatory Alternative Dispute Resolution. The parties may enforce the rights and remedies in judicial proceedings. STATE does not waive any right to a jury trial.

37. ATTORNEY FEES

In the event a lawsuit is instituted by STATE to obtain performance due under this Contract, and STATE is the prevailing party, CONTRACTOR shall, except when prohibited by N.D.C.C. § 28 26 04, pay STATE's reasonable attorney fees and costs in connection with the lawsuit.

38. NONDISCRIMINATION AND COMPLIANCE WITH LAWS

CONTRACTOR agrees to comply with all applicable federal and state laws, rules, and policies, including those relating to nondiscrimination, accessibility and civil rights. (See N.D.C.C. Title 34 - Labor and Employment, specifically N.D.C.C. ch. 34-06.1 Equal Pay for Men and Women.)

CONTRACTOR agrees to timely file all required reports, make required payroll deductions, and timely pay all taxes and premiums owed, including sales and use taxes, unemployment compensation and workers' compensation premiums. CONTRACTOR shall have and keep current at all times during the Term of this Contract all licenses and permits required by law.

CONTRACTOR's failure to comply with this section may be deemed a material breach by CONTRACTOR entitling STATE to terminate in accordance with the Termination for Cause section of this Contract.

39. STATE AUDIT

All records, regardless of physical form, and the accounting practices and procedures of CONTRACTOR relevant to this Contract are subject to examination by the North Dakota State Auditor, the Auditor's designee, or Federal auditors, if required. CONTRACTOR shall maintain all of these records for at least three (3) years following completion of this Contract and be able to provide them upon reasonable notice. STATE, State Auditor, or Auditor's designee shall provide reasonable notice to CONTRACTOR prior to conducting examination.

40. RIGHT TO INSPECT PLACE OF BUSINESS

At reasonable times, STATE may inspect those areas of CONTRACTOR'S place of business that relate to the performance of this Contract. If STATE makes an inspection, CONTRACTOR must provide reasonable assistance.

41. EFFECTIVENESS OF CONTRACT

This Contract is not effective until fully executed by both parties. If no start date is specified in the Term of Contract, the most recent date of the signatures of the parties shall be deemed the Effective Date.

CONTRACTOR

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STATE OF NORTH DAKOTA

Acting through its State Procurement Office

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Tricia Opp

Procurement Officer II

7/27/2021