CE+Broker+-+signed.pdf

CONTRACT #178

TECHNOLOGY CONTRACT: Continuing Education Tracking System

1. PARTIES

The parties to this contract (Contract) are the state of North Dakota, acting through its State Procurement Office (STATE), and CE Broker, Inc., a Florida corporation, having its principal place of business at 525 3rd St N #100, Jacksonville Beach, FL 32250 (“CE Broker”).

2. DEFINITIONS

a) Confidential Information Is that information or material that is protected from mandatory public disclosure pursuant to North Dakota Century Code (N.D.C.C.) ch. 44-04. Neither Party shall have any confidentiality obligation with respect to information which: (i) is known or used by the receiving Party prior to disclosure by the disclosing Party; (ii) either before or after the date of the disclosure by the disclosing Party is disclosed to the receiving Party by a third party under no obligation of confidentiality to the disclosing Party; (iii) either before or after the date of the disclosure to the receiving Party becomes published or generally known to the public through no fault of the receiving Party; (iv) is independently developed by the receiving Party; (v) is required to be disclosed by a final order of a court of competent jurisdiction; or (vi) is otherwise required to be disclosed by applicable law following reasonable notice, if permitted by law, to the disclosing Party.

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

c) Data - means any information provided to, or collected, generated, stored, or processed by the system. Data includes user identification information and metadata which may contain Data or from which the STATE’s Data may be ascertainable.

d) Data Breach - means any access, destruction, loss, theft, use, modification or disclosure of Confidential Information by an unauthorized party or that is in violation of NDCC 51-30-01 or federal law.

e) Data Classification - means the process of defining data into relevant categories so the information has the appropriate controls in place to protect confidentiality, integrity, and availability based on the type of information.

f) Personally Identifiable Information (PII) - information about an individual maintained by an agency, including that 1) can be used to distinguish or trace an individual‘s identity, such as name, social security number, date and place of birth, mother‘s maiden name, or biometric records; or (2) is linked or linkable to an individual, such as medical, educational, financial, and employment information. PII does not include publicly available information that is lawfully made available to the general public from federal, state, or local government records. N.D.C.C. § 51- 30-01.

g) Software as a Service (SaaS). The capability provided to the consumer is to use the provider’s services running on a provider’s infrastructure. The services are accessible from various client devices through interfaces such as a web browser (e.g., web-based email), or a program interface. The consumer does not manage or control the underlying infrastructure including network, servers, operating systems, storage, or even individual application capabilities, with the possible exception of limited user-specific application configuration settings. This definition is based on and consistent with National Institute of Standards and Technology (NIST) Special Publication 800-145.

h) Users – means contractors, subcontractors, outsourcing vendors, consultants and others who have a need to use the services for the benefit of STATE.

3. SCOPE OF WORK

CONTRACTOR, in exchange for the compensation paid by STATE under this Contract, shall provide only the Services listed in Section 3.3 - Strategy of Scope of Work Requirements of the RFP. While Contractor reserves the right to change, add or remove functionalities, features or the appearance of the Services at any time, Contractor will not make any such changes which would result in the Services failing to meet the requirements of Section 3.3 Scope of Work.

4. COMPENSATION-PAYMENTS

a. Contractual Amount

b. STATE shall pay for the accepted services provided by CONTRACTOR under this Contract an amount not to exceed zero dollars ($0.00). There are no setup, transaction or ongoing service fees charged to the STATE, boards, and commissions.

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 Scope of Work. CONTRACTOR shall not submit an invoice for any deliverable or service specified in the Scope of Work that STATE has not fully accepted.

d. Payment Payment made in accordance with this Compensation section shall constitute payment in full for the services and work performed and the deliverables provided under this Contract and CONTRACTOR shall not receive any additional compensation hereunder, from the State;

provided, however, Contractor may offer certain value-add services or functions for purchase by individual users, which prices and offerings may change from time to time.

STATE shall make payment under this Contract within forty-five (45) calendar days after receipt of an approved invoice.

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

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

e. Prepayment STATE will not make any advance payments before performance or delivery by CONTRACTOR under this Contract.

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

CONTRACTOR.

g. Taxpayer ID CONTRACTOR’s federal employer ID number is: 830353592.

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

5. TERM OF CONTRACT

This Contract term (Term or Initial Term) begins on Effective Date and ends on September 30, 2024.

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

b. Renewal Option STATE may renew this Contract upon satisfactory completion of the Initial Term. STATE reserves the right to execute up to 4 options to renew this Contract under the same terms and conditions for a period of 12 months each (Renewal Term).

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

d. Renegotiation Option Because it is unknown how long the services will be used by STATE after completion of the Initial Term, renewals, and extensions, STATE and CONTRACTOR may renegotiate the pricing and Term of this Contract. New pricing and Term shall be mutually agreed upon by the Parties and executed in writing.

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

6. TERMINATION

a. Termination for Convenience

This Contract may be terminated by either Party upon at least thirty (30) days’ written notice to the other Party.

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

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 or continued at levels sufficient to allow for purchase of the services or goods in the indicated quantities or term.

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

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 or goods required by this Contract within the time specified or any extension agreed to in writing 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. FORCE MAJEURE

Neither Party shall be held responsible for delay or default caused by fire, riot, terrorism, pandemic (excluding COVID-19), acts of God, or war if the event was not foreseeable through the exercise of reasonable diligence by the affected Party, the event is beyond the Party’s reasonable control, and the affected Party gives notice to the other Party promptly upon occurrence of the event causing the delay or default or that is reasonably expected to cause a delay or default. If CONTRACTOR is the affected Party and does not resume performance within fifteen (15) days or another period agreed between the Parties, then STATE may seek all available remedies, up to and including termination of this Contract pursuant to its Termination Section, and STATE shall be entitled to a pro-rata refund of any amounts paid for which the full value has not been realized, including amounts paid toward software subscriptions, maintenance, or licenses.

8. 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.

9. 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.

10. 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.

11. 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.

12. 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.

13. 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. This obligation shall continue after the termination of this Contract.

14. LIMITATION OF LIABILITY

Except for claims or liability arising from negligence or willful misconduct of either party or its employees or agents, in no event shall either party be liable to the other for any incidental or consequential damages (including, without limitation, indirect, special, punitive, or exemplary damages for loss of business, loss of profits, business interruption, or loss of business information) arising out of or connected in any way with this contract or a party's performance hereunder, even if the party has been advised of the possibility of such damages.

Except for claims or liability arising from negligence or willful misconduct of either party or its employees or agents, each party’s total liability to the other for all damages, losses, and causes of action (whether in contract, tort, or otherwise), shall not exceed two million dollars. Notwithstanding the foregoing, pursuant to N.D.C.C. § 32-12.2-15, this limitation of liability shall not apply to any loss to the STATE resulting from fraud, breach of confidentiality obligations set forth in section 30 hereof, or loss resulting from tangible property damage or personal injury. In addition, this limitation of liability shall not apply to CONTRACTOR’s indemnification obligations under this Contract.

15. INTELLECTUAL PROPERTY INFRINGEMENT INDEMNIFICATION

a. CONTRACTOR, at its own expense, shall defend and indemnify STATE against claims that products furnished under this Contract infringe a United States patent or copyright or misappropriate trade secrets protected under United States law.

CONTRACTOR’S obligation shall not extend to a claim based on any alleged infringement arising from any: (a) additions, changes, or modifications to the services by or on behalf of STATE; (b) incorporation of the services or any component thereof into any other product or process; or (c) use of the services other than as permitted by this Contract.

b. As to any product which is subject to a claim of infringement or misappropriation, CONTRACTOR may (a) obtain the right of continued use of the product for STATE or (b) replace or modify the product to avoid the claim. If neither alternative is available on commercially reasonable terms then, at the request of CONTRACTOR, any applicable Software license and its charges will end, STATE will stop using the product, and will return the product to CONTRACTOR. Upon return of the product, CONTRACTOR will give STATE a credit for the price paid to CONTRACTOR, less a reasonable offset for use and obsolescence

16. REPRESENTATIONS AND WARRANTIES

CONTRACTOR represents and warrants to STATE that neither CONTRACTOR, in connection with performing the services in performance of this Contract, 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. STATE represents it has full authority to transmit STATE’s Data to CONTRACTOR under this Contract. STATE represents that in providing STATE’s Data to CONTRACTOR, it has and will comply with all applicable state and federal privacy and data security laws and has obtained all required authorizations and approvals for CONTRACTOR’s receipt and use of STATE Data. Except as provided in this section, the services are provided “as is” with all faults, and without warranty of any kind, and CONTRACTOR disclaims all warranties, express and implied, including, but not limited to, the implied warranties of merchantability and fitness for a particular purpose. STATE expressly agrees and acknowledges that use of the services is at STATE’S risk, and that CONTRACTOR is not responsible for outages of, or interruptions to, the services due to the unavailability or limited availability of third-party data, referential databases, or third-party vendor/contractor services. STATE expressly agrees and acknowledges that CONTRACTOR does not warrant the accuracy of any third-party data, including STATE Data, used to render its services, and that any inaccuracies or discrepancies in the services resulting, in part or in whole, from such third-party data is not chargeable against CONTRACTOR.

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 $2,000,000 per occurrence

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

c. Employer’s liability or “stop gap” insurance of not less than $500,000 as an endorsement on the workers compensation or commercial general liability insurance

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

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

b. 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.

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

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

CONTRACTOR.

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

f. 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.

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

h. CONTRACTOR shall provide at least 30 day notice of any cancellation or decrease in coverage below the limits specified in this section to the policies or endorsements. CONTRACTOR shall provide on an ongoing basis, current certificates of insurance during the term of the Contract. A renewal certificate will be provided 10 days prior to coverage expiration. An updated, current certificate of insurance shall be provided in the event of any change to a policy.

18. CYBER LIABILITY AND SECURITY INSURANCE

In the event CONTRACTOR will host data, or provide for the hosting of data through a third-party entity, CONTRACTOR shall secure and maintain Cyber Liability and Security Insurance or equivalent insurance product(s), with minimum liability limits of not less than $5,000,000 and first party limits of not less than $1,000,000, that will provide, without cost to the CONTRACTOR or STATE, an immediate response in the event of a data breach, including meeting all notification obligations of CONTRACTOR and STATE and in the event the data breach involves personal information as defined by N.D.C.C. § 51-30-1(4), the insurance policy shall also make available free credit monitoring for any affected individual for a minimum period of one year. CONTRACTOR will maintain and enforce security safeguards and procedures with respect to the Services and proprietary information or confidential information that are: (a) at least equal to industry standards for such types of locations, and (b) which provide reasonably appropriate technical and organizational safeguards against accidental or unlawful destruction, loss, alteration or unauthorized disclosure of or access to proprietary information or confidential information. shall defend, indemnify, save and hold harmless, the STATE, its officers, agents and employees from liability of any nature or kind, including costs and expenses, on account of a data breach arising from CONTRACTOR’s breach of the requirements of this section.

19. PROPRIETARY RIGHTS

The state of North Dakota acknowledges and agrees CONTRACTOR is and shall be the sole and exclusive owner of all software, including without limitation all files, file structures, and source code (collectively, the “Software”), used to perform the Services, and nothing in this Agreement shall transfer any right, title, claim or ownership in, to, or of the Software to the state of North Dakota.

20. PERSONNEL

a. STATE will designate a Project Manager to serve as the primary project manager for this

Contract. If, during the course of this Contract, it becomes necessary for STATE to change the person assigned as STATE’s Project Manager, STATE will notify CONTRACTOR in writing, pursuant to Notice section of this Contract.

b. 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.

c. 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.

d. CONTRACTOR agrees and understands that STATE’s execution of this Contract is predicated, in part and among other considerations, on the utilization of the specific individuals and personnel qualifications as identified; primary being Meg Smith. Therefore, CONTRACTOR agrees that:

1) Prior to assignment of personnel, CONTRACTOR shall obtain written approval from STATE for primary 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 will attempt in good faith to ensure all personnel assigned to perform tasks in response to this Contract will remain assigned for the agreed-upon length of time.

4) Any 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. STATE agrees that an approval of a substitution will not be unreasonably withheld.

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 this Contract acceptably, e.g., inappropriate or unprofessional personal conduct, professional inabilities, etc.

f. 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.

g. 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.

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

a. CONTRACTOR agrees that STATE may require any personnel CONTRACTOR assigns to perform work under this Contract, including employees, contracted staff, subcontractors, or other individuals, to submit to a criminal history record check in accordance with N.D.C.C. §12- 60-24, through the authority granted to the chief information officer of the STATE pursuant to N.D.C.C. § 54-59-20. STATE shall have the right to reject any individual CONTRACTOR assigns to perform work under this Contract if, in STATE’s sole discretion, it determines that the results of the criminal history record check make the individual unacceptable. STATE agrees to be responsible for all costs associated with criminal history record checks carried out pursuant to this paragraph.

21. SOFTWARE

All ownership rights to CONTRACTOR’s software access to which is provided to STATE under this Contract (intellectual property owned by CONTRACTOR prior to performance of this Contract) shall remain with CONTRACTOR.

22. SCOPE OF USE

a. Software Functionality and Replacement

The services provided by CONTRACTOR to STATE provides the following functionality to individual licensee users, at no cost. While CONTRACTOR may change service offerings and functionalities from time to time, it will always maintain a free account option which, at a minimum, allows an individual licensee user the following functionalities:

http://www.legis.nd.gov/cencode/t54c59.pdf http://www.legis.nd.gov/cencode/t12c60.pdf http://www.legis.nd.gov/cencode/t12c60.pdf

● Ability to report continuing education completions to the tracking system

● Ability to view course history

● Ability to view current compliance status

● Ability to respond to an audit

● Ability to access Mobile apps (free download on iOS or Android Devices)

● Ability to access dedicated CE Broker Support (via email, live chat, or phone)

● Ability to access/search Course Catalogue of Approved Educational Activities

● Ability to upload & store electronic documentation of course completion

23. SOFTWARE AS A SERVICE (SAAS) AND SERVICE LEVEL AGREEMENT (SLA)

The terms and service level obligations are set forth in Exhibit C Software as a Service (SaaS) Service Level Agreement (SLA) are made a part of this Contract through its reference here.

CONTRACTOR shall provide Subscription Services, as described in RFP Scope of Work.

a. Subscription Services:

See the Scope of Work in the RFP.

1) Service shall be extended to any Users who have a need to use the SaaS for the benefit of STATE.

2) There shall be no limit on the number of machines, number of locations, or size of processors on which STATE can access the service.

3) If CONTRACTOR reduces or replaces the functionality contained in the services and provides this functionality as a separate or renamed service, then STATE shall be entitled to usage of such service at no additional fees.

24. SAAS AND DATA SECURITY

STATE acknowledges that CONTRACTOR’s servers are located within the United States, however, CONTRACTOR does employee development team members in the country of Columbia. Remote access to Confidential Information from outside the continental United States, including remote access to Confidential Information by authorized SaaS support staff in identified support centers, is prohibited unless approved in advance by Chief Information Officer of the State. CONTRACTOR shall ensure that development team members or employees located outside the United States do not access STATE’s Confidential Information hosted on CONTRACTOR’s servers unless access is done from within the United States or in the event of an emergency or urgent threat requiring access to mitigate loss of data or access to or availability of the Services or prevent, investigate or respond to a cybersecurity incident or threat thereof.

25. DATA PROCESSING AND LOCATION:

a) CONTRACTOR shall transmit, process, and store STATE Data within the continental United

States.

b) CONTRACTOR shall notify STATE at least 90 days prior to any relocation of STATE’s Data to a different hosting facility, however, this provision shall not apply to Data hosted on a third-party cloud-based storage solution, such as Amazon Web Service. STATE reserves the right to terminate the Contract without penalty if STATE does not approve of the new hosting facility.

26. NOTICE

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

STATE CONTRACTOR

Name: Abigail Dschaak Name: Meg Smith Title: Procurement Officer Title: Director of Operations Address: Office of Management and Budget, State Procurement Office 4th Floor Capitol Tower 600 East Boulevard Ave Dept 012

Address: 2400 Spruce St. Suite 100A

City, State, Zip: Bismarck, ND 58505 City, State, Zip: Boulder, CO 80302 Email: aadschaak@nd.gov Email: meg@cebroker.com

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

27. CONFIDENTIALITY

CONTRACTOR shall not use or disclose any information it receives from STATE under this Contract that STATE has previously identified as Confidential Information 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 STATE determines in its sole discretion is protected from mandatory public disclosure under a specific exception to the North Dakota public records law, N.D.C.C. ch. 44-04. The duty of STATE and CONTRACTOR to maintain confidentiality of information under this section continues beyond the Term of this Contract.

28. 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 provided, however, STATE shall reimburse CONTRACTOR for reasonable, actual expenses incurred in responding to such request.

29. 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 http://www.legis.nd.gov/cencode/t32c12-2.pdf http://www.legis.nd.gov/cencode/t44c04.pdf

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.

30. ASSIGNMENT AND SUBCONTRACTS

CONTRACTOR may not assign or otherwise transfer or delegate any right or duty without STATE’s express written consent, provided, however, that CONTRACTOR may assign its rights and obligations under this Contract in the event of a change of control or sale of all or substantially all of 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 in accordance with the Termination for Cause section of this Contract.

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

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

31. SPOLIATION – NOTICE OF POTENTIAL CLAIMS

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.

32. 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 #1 to Request for Proposal (“RFP”) number 110.7-22-055 dated August 18th, 2022;

c. STATE’s Request for Proposal (“RFP”) number 110.7-22-055, dated August 11, 2022;

d. CONTRACTOR’s proposal dated August 31st, 2022 in response to RFP number 110.7-22-055.

All automated end-user agreements (e.g., click-through, shrink-wrap, or browse-wrap) are specifically excluded and null and void. Clicking by an employee of STATE acting in their official capacity shall not represent acknowledgement or agreement to any terms and conditions contained in those agreements.

33. UNANTICIPATED AMENDMENTS

If additional work is required within the scope of this Contract due to a legitimate unforeseen circumstance, STATE shall provide CONTRACTOR a written description of the additional work and request CONTRACTOR to submit a proposal for accomplishing the scope of work. CONTRACTOR will not commence additional work until all Parties agree in writing.

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 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. NONDISCRIMINATION - 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 all licenses and permits required by law 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

38. STATE AUDIT

Pursuant to N.D.C.C. § 54-10-19, 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 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.

http://www.legis.nd.gov/cencode/t34c01.pdf http://www.legis.nd.gov/cencode/t34c01.pdf http://www.legis.nd.gov/cencode/t34c06-1.pdf

39. COUNTERPARTS

This Contract may be executed in multiple, identical counterparts, each of which is be deemed an original, and all of which taken together shall constitute one and the same Contract.

40. 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 the Effective Date.

CONTRACTOR STATE OF NORTH DAKOTA

CE Broker, Inc Acting through its State Procurement Office

BY: BY:

Printed Name: Aaron Prom Printed Name: Abigail Dschaak

Title: Chief Administrative Officer & Counsel Title: Procurement Officer

Date: Date:

10/19/22 10/19/22

EXHIBIT A – Compensation Details

Subscription Plan

Subscription Type Subscription Description Annual Fee

Basic

Approximately 73% of our users elect to use the Free Basic account, which includes all necessary functionality to successfully demonstrate compliance to the state. This includes the ability to report & upload CEU’s, submit exemption requests, view your current status, view your detailed course history, download a PDF Copy of your history

& export records, browse the approved course search, use our free Mobile apps, contact support, track multiple licenses, and more.

$0

Professional

Our professional account is a voluntary subscription centered around convenience features. It includes all of the functionality of our basic account, but with added features such as a personalized compliance transcript that essentially holds the user's hand & provides a guided experience of reaching compliance through each individual requirement, with seamless navigation to approved courses for each category. This is primarily a User-Interface (UI) based upgrade and core functionality remains virtually identical to the Basic Account.

$39.99

Concierge

Our concierge account represents another voluntary subscription, centered around providing the highest level of convenience to the licensee, with the least amount of manual effort required. While individuals are still responsible for completing their own CE, we can handle every other aspect of their account for them. This includes uploading their documents, registering them for courses / events, handling disputes with providers, supplying documentation needed for an audit, and ensuring they reflect as 100% compliant prior to license renewal. This account includes all of the features of our Basic, and Professional Account, with the key difference being a human element and attention to detail, as Concierge Users are assigned a personal account manager who they know on a first-name basis.

$124.99

Please include any additional value adds in the box below.

Value Added Options Option with Description Cost

CE Broker’s Learning Management System (LMS), Course Search, and Simple CE Compliance API - are all detailed further within both our Technical & Cost Proposal.

There is no cost to the state for these value added options.

EXHIBIT B – Software as a Service (SaaS) Service Level Agreement (SLA)

CONTRACTOR represents and warrants that the services will be performed in a professional manner consistent with industry standards reasonably applicable to such services.

1. SAAS AVAILABILITY:

The SaaS shall be available twenty-four (24) hours per day, 365 days per year with an uptime SLA of 99% (excluding agreed-upon scheduled maintenance downtime).

2. SUPPORT AND ERROR RESOLUTION:

CONTRACTOR will respond to STATE requests for support services regarding the services. In each case, STATE may describe and submit the problem by telephone, email or online helpdesk/service desk tool.

3. SCHEDULED MAINTENANCE AND NOTIFICATIONS

1) Standard Maintenance Windows

The architecture leverages active-passive configurations for high availability clusters across datacenters which allows for zero-downtime standard maintenance windows. Any maintenance that requires downtime would be announced.

2) Notification of Scheduled Maintenance Downtime CONTRACTOR shall provide 48 hours advance notice to the STATE of any scheduled maintenance downtime which will cause the total scheduled maintenance downtime for the month to exceed 1 hour or will occur outside of the Standard Maintenance Windows outlined above. In cases of emergency, CONTRACTOR shall use its best efforts to notify STATE of a planned downtime as soon as practicable.

4. DATA RECOVERY

CONTRACTOR runs two redundant server locations to operate the services, such that in the event of a failure of one server location all traffic is routed through the other facility to ensure continuity of the services.

5. SAAS AND DATA SECURITY:

a) CONTRACTOR shall:

1) Certify the sufficiency of its security standards, tools, technologies and procedures in providing SaaS under this Contract;

2) Compliance with the following:

i. Undergo an annual Statement on Standards for Attestation Engagements (SSAE)

Service Organization Control (SOC) 2 Type II audit or equivalent such as ISO 27001 for the CONTRACTOR’s Control Environment. Audit results and CONTRACTOR’s plan to correct any negative findings shall be provided to the STATE within seven (7) calendar days upon CONTRACTOR’s receipt of such;

ii. Provide STATE with a detailed description of the audited Control Environment. If STATE determines the Control Environment is not satisfactory, the STATE may request CONTRACTOR to correct any deficiencies;

3) Compliance with applicable industry standards, law, regulations and guidelines.

b) CONTRACTOR shall implement and maintain all appropriate administrative, physical, technical and procedural safeguards in accordance with section a) above at all times during the term of this Contract to secure such Data from Data Breach, protect the Data and the SaaS from hacks, introduction of viruses, disabling devices, malware and other forms of malicious or inadvertent acts that can disrupt the STATE’s access to its Data.

c) CONTRACTOR shall allow the STATE reasonable access to SaaS security logs, latency statistics, and other related SaaS security data that affect this Contract and the STATE’s Data, at no cost to the STATE.

d) CONTRACTOR assumes responsibility for the security and confidentiality of the Confidential Information under its control as set forth in the Contract.

e) No Confidential Information shall be copied, modified, destroyed or deleted by CONTRACTOR other than for normal operation or maintenance of SaaS during the Contract period without prior written notice to and written approval by the STATE.

6. SAAS AND ARCHITECTURE:

CONTRACTOR shall provide STATE with detailed architectural diagrams on an annual basis. The architectural diagrams are to include but not limited to servers, hardware, software solution (operating system, application servers, databases, identity repository), network architecture (dataflow diagram, firewalls, proxies, IDS/IPS). CONTRACTOR shall allow the STATE reasonable access to review the architecture.

7. ENCRYPTION:

Information designated as sensitive, including PII, shall be encrypted end-to-end while it is in transit and at rest. Data must be encrypted using the most current Federal Information Processing Standard (FIPS) 140-2 validated cryptographic modules and the current Advanced Encryption Standard algorithm.

8. RIGHTS TO DATA:

The Parties agree that as between them, all rights, including all intellectual property rights, in and to STATE’s Confidential Information shall remain the exclusive property of the STATE, and CONTRACTOR has a limited, non-exclusive license to access and use the Confidential Information as provided to CONTRACTOR solely for performing its obligations under the Contract. Nothing herein shall be construed to confer any license or right to the Confidential Information, including user tracking and exception Confidential Information within the system, by implication, estoppel or otherwise, under copyright or other intellectual property rights, to any third party. Unauthorized use of Confidential Information by CONTRACTOR or third parties is prohibited. For the purposes of this requirement, the phrase “unauthorized use” means the data mining or processing of data, stored or transmitted by the service, for unrelated commercial purposes, advertising or advertising-related purposes, or for any other purpose other than security or service delivery analysis that is not explicitly authorized.

Individual licensee users shall have the ability to export their own data in partial or in entirety at their discretion without interference from the CONTRACTOR.

9. DATA BACKUP:

a) CONTRACTOR shall provide geographical disparate storage on a daily basis of all backup disks, data, or materials of any type whatsoever produced in whole or in part in connection with or related to the performance by CONTRACTOR of its obligations under this Contract (including without limitations discs, tapes, other storage media, work papers and partial drafts of documentation code).

b) CONTRACTOR shall use appropriate and reliable storage media. CONTRACTOR shall regularly backup STATE Data and retain such backup copies for a minimum of twelve (12) months or timeframe required by applicable laws and regulations.

10. DATA RETENTION AND DISPOSAL:

a) CONTRACTOR shall retain STATE’s Data until the STATE deletes the STATE’s Data.

b) At the STATE’s election, CONTRACTOR will either securely destroy or transmit to STATE repository any backup copies of STATE Confidential Information.

c) CONTRACTOR shall supply STATE a certificate indicating the records disposed of, the date disposed of, and the method of disposition used.

d) CONTRACTOR shall retain logs associated with STATE activity for a minimum of twelve (12) months or timeframe required by applicable laws and regulations.

11. TRANSITION ASSISTANCE:

a) For ninety (90) days…