Correlation and Calibration of Skid System Instructions Vendor Questions Schedule A Schedule B Contract Terms RFQ 24-148.docx

Michigan.gov/MiProcurement BID instructions Michigan Department of Transportation (MDOT) Calibration and Correlation of MDOT’s Pavement Friction Test (Skid) System Request for Quote No. 240000000148 Solicitation Manager Name: Anna Swanson Direct Phone: 517-230-2063 Email: swansona1@michigan.gov Main Phone: 1-855-MI-PURCH 1-855-647-8724 This is a Request for Quote (RFQ) for:

Calibration and Correlation of MDOT’s Pavement Friction Test (Skid) System RFQ Timeline

*A bidder’s quote received at 3:00:01 p.m. Eastern is late and subject to disqualification.

This RFQ is subject to change. Check www.michigan.gov/SIGMAVSS for current information.

1. BID PREPARATION. The State recommends reading all RFQ materials prior to preparing a bid, particularly these Bid Instructions and the Vendor Questions Worksheet. Bidders must follow these Bid Instructions and provide a complete response to the items indicated in the RFQ Structure and Documentation table below. References and links to websites or external sources may not be used in lieu of providing the information requested in the RFQ within the bid. Include the bidder’s company name in the header of all documents submitted with your bid. Note that all documents and information submitted as part of a bid will become public record immediately upon receipt by the State. Bids received by the State may be posted on the State’s publicly available website after bidders are notified of the award recommendation.

RFQ Structure and Documentation

2. CONTACT INFORMATION FOR THE STATE. The sole point of contact for the State concerning this RFQ is listed on the Cover Page. Contacting any other State personnel, agent, consultant, or representative about this RFQ may result in bidder disqualification.

3. MODIFICATIONS. The State may modify this RFQ at any time. Modifications will be posted on www.michigan.gov/SIGMAVSS. This is the only method by which the RFQ may be modified.

4. QUESTIONS. Bidder questions about this RFQ must be emailed to the Solicitation Manager at swansona1@michigan.gov no later than the time and date specified on the Cover Page. In the interest of transparency, only written questions are accepted. Answers to questions will be posted on www.michigan.gov/SIGMAVSS. Submit questions using the format below; a Microsoft Excel format or similar is suggested.

5. DELIVERY OF BID.

Electronic – The bidder must submit its bid, all attachments, and any modifications or withdrawals electronically through www.michigan.gov/SIGMAVSS. The price bid should be saved separately from all other bid documents. The bidder should submit all documents in a modifiable (native) format (examples include but are not limited to Microsoft Word or Excel and Google Docs or Sheets). In addition to submitting documents in a modifiable format, the bidder may also submit copies of documents in PDF. Attachment file size is limited to 6 MB per document. Bidder’s failure to submit a bid as required may result in disqualification. The bid and attachments must be fully uploaded and submitted prior to the bid deadline. Do not wait until the last minute to submit a bid, as the SIGMA VSS system requires the creation of an account and entry of certain information, in addition to uploading and submitting the materials. The SIGMA VSS system will not allow a bid to be submitted after the bid deadline identified in the solicitation Closing On/Closing Date fields (Summary view/Detail view), even if a portion of the bid has been uploaded.

Questions on how to submit information or how to navigate in the SIGMA VSS system can be answered by calling (517) 284-0540 or (888) 734-9749. The Solicitation Manager will not provide assistance related to the submittal of the bid and all attachments on the day of the bid deadline. Responsibility for a complete submission lies with the bidder. Note that all documents and information submitted in any manner as part of a bid will become public record immediately upon receipt by the State. Bids received may be posted by the State on the State’s publicly available website after bidders are notified of the award recommendation.

6. EVALUATION PROCESS. The State will evaluate each bid based on a PASS/FAIL basis based on the following criteria:

The State may utilize all bidder information to determine fair market value for goods or services sought. If applicable, the State’s evaluation will include consideration of a bidder’s qualified disabled veterans/service-disabled veteran owned business(QDV/SDVOB) status under MCL 18.1261(8). Additional information on the SDVOB preference is available at: Michigan.gov/SDVOB.

The State strongly encourages strict adherence to the Contract Terms. The State reserves the right to deem a bid non-responsive for failure to accept the Contract Terms. Nevertheless, the bidder may submit proposed changes to the Contract Terms in track changes (i.e., visible edits) with an explanation of the bidder’s need for each proposed change. Failure to include track changes with an explanation of the bidder’s need for the proposed change constitutes the bidder’s acceptance of the Contract Terms. General statements, such as that the bidder reserves the right to negotiate the terms and conditions, may be considered non-responsive. Failure to respond timely to requests for proposed changes to Contract Terms during ongoing negotiations may be cause for disqualification.

The State may but is not required to conduct an on-site visit to tour and inspect the bidder’s facilities; require an oral presentation of the bidder's bid; conduct interviews, research, reference checks, and background checks; and request additional price concessions at any point during the evaluation process.

7. NOTICE OF DEFICIENCY. The State reserves the right to issue a Notice of Deficiency to bidders if the State determines after the bid deadline that a portion of the RFQ was deficient, unclear, or ambiguous. Failure to respond to a Notice of Deficiency timely may be cause for disqualification.

8. CLARIFICATION REQUEST. The State reserves the right to issue a Clarification Request to a bidder to clarify its bid if the State determines the bid is not clear. Failure to respond to a Clarification Request timely may be cause for disqualification.

9. RESERVATIONS. The State reserves the right to:

a. Disqualify a bidder for failure to follow these instructions.

b. Discontinue the RFQ process at any time for any or no reason. The issuance of an RFQ, your preparation and submission of a bid, and the State’s subsequent receipt and evaluation of your bid does not commit the State to award a contract to you or anyone, even if all the requirements in the RFQ are met.

c. Consider late bids if: (i) no other bids are received; (ii) no complete bids are received; (iii) the State received complete bids, but the bids did not meet mandatory minimum requirements or technical criteria; or (iv) the award process fails to result in an award.

d. Consider an otherwise disqualified bid if no other bids are received.

e. Disqualify a bid based on: (i) information provided by the bidder in response to this RFQ; (2) the bidder’s failure to complete registration on www.michigan.gov/SIGMAVSS ; or (3) if it is determined that a bidder purposely or willfully submitted false or misleading information in response to the RFQ.

f. Consider prior performance with the State in making its award decision.

g. Consider overall economic impact to the State when evaluating bid pricing and in the final award recommendation. This includes but is not limited to: considering principal place of performance, number of Michigan citizens employed or potentially employed, dollars paid to Michigan residents, Michigan capital investments, job creation, tax revenue implications, and economically disadvantaged businesses.

h. Consider total-cost-of-ownership factors (e.g., transition and training costs) when evaluating bid pricing and in the final award recommendation.

i. Refuse to award a contract to any bidder that has failed to pay State taxes or has outstanding debt with the State.

j. Enter into negotiations with one or more bidders on price, terms, technical requirements, or other deliverables.

k. Award multiple, optional-use contracts, or award by Contract Activity.

l. Evaluate the bid outside the scope identified in the Evaluation Process section of this document if the State receives only one bid.

10. AWARD RECOMMENDATION. The contract will be awarded to the responsive and responsible bidder who receives a PASS for each criterion and has the lowest price.

The State will publish an Award Recommendation and Evaluation Synopsis, by posting a Notice of Intent to Award (NIA1) on www.michigan.gov/SIGMAVSS.

11. GENERAL CONDITIONS. The State will not be liable for any costs, expenses, or damages incurred by a bidder participating in this solicitation. The bidder agrees that its bid will be considered an offer to do business with the State in accordance with its bid, including the Contract Terms, and that its bid will be irrevocable and binding for a period of 180 calendar days from date of submission. If a contract is awarded to the bidder, the State may, at its option, incorporate any part of the bidder’s bid into a contract. This RFQ is not an offer to enter into a contract. This RFQ may not provide a complete statement of the State’s environment or contain all matters upon which agreement must be reached. The bidder understands that their bid will become public record immediately upon receipt by the State. Other than verified trade secrets, bids submitted via www.michigan.gov/SIGMAVSS are the State’s property.

vendor questions worksheet Provide a detailed response to each question. “You” and “company” refers to the bidder.

1. Contact Information

Bidder’s contact person during the RFQ process:

Name:

Title:

Address:

Phone Number:

Email:

2. Company Background Information

SIGMA VSS Vendor/Customer Number

Legal business name and address

Business entity designation, e.g., sole proprietor, Inc., LLC, or LLP.

3. Qualified Disabled Veteran/Service-Disabled Veteran-Owned Business Program

To demonstrate qualification as a qualified disabled veteran, you must provide:

(a) Proof of service and conditions of discharge (DD214 or equivalent)

(b) Proof of service-connected disability (DD214 if the disability was documented at discharge or Veterans Administration Rating Decision Letter or equivalent if the disability was documented after discharge); and

(c) Legal documents setting forth the ownership of the business entity.

In lieu of the documentation identified above, you may provide proof of certification by the National Veterans Business Development Council.

Enter the names of documents submitted with your bid to demonstrate status as a qualified disabled veteran.

4. State of Michigan Experience and Prior Experience

Does your company have experience working with the State of Michigan? If so, please provide a list (including the contract number) of the contracts you hold or have held with the State for the last 10 years.

5. Standard Contract Terms

☐ Do Not Agree with Contract Terms (attach written exceptions)

Contractor must enter company name here.

Schedule A – statement of work contract activities Request for Quote (RFQ) No. 240000000148 Calibration and Correlation of MDOT’s Pavement Friction Test (Skid) System This schedule identifies the anticipated requirements of any Contract resulting from this RFQ. The term “Contractor” in this document refers to a bidder responding to this RFQ, as well as the Contractor who is awarded the contract. The term “bidder” is used to identify where specific responses to the RFQ are required.

The Contractor must respond to each requirement or question and explain how it will fulfill each requirement. Attach any supplemental information and appropriately reference within your response.

IMPORTANT NOTE TO CONTRACTORS/BIDDERS: There are specific requirements for which acceptance must be simply acknowledged through a checkbox(es), and others that require further explanation. Click one checkbox and complete the entries as identified.

BACKGROUND

The Michigan Department of Transportation is seeking a vendor to perform an annual calibration of MDOT’s skid trailer and correlation to ASTM standards; provide minor repairs to equipment, if needed, to enable calibration; and perform a skid system maintenance and repair inspection (the “Contract Activities”).

SCOPE

Primary work will include a two-sided skid system calibration and correlation per ASTM E-274 and E-2793 using 501 tires on the left side and an E-524 tires on the right side. An arrival correlation may be requested, based on MDOT’s needs for the left side only at 40 MPH. Full departure correlations will be required for both sides of the test trailer. The correlation must be to a nationally recognized Area Reference Skid Measurement System (ARSMS). Provide a report that summarizes the work done and the results of the calibration and correlation.

REQUIREMENTS

1. Skid System Calibration and Correlation

1.1 Skid System Calibration/Correlation

Calibrate both sides of MDOT’s skid trailer in accordance with ASTM E-274 and E-2793. Confirm that all requirements of ASTM E-274 and E-2793 will be met: Correlate MDOT’s skid trailer to a nationally recognized Area Reference Skid Measurement System (ARSMS) in accordance with ASTM E-274 and E-2793. Provide access to test track facilities as required to meet the ASTM requirements. Correlate the left side of MDOT’s skid trailer using ASTM E-501 test tires and the right-side using ASTM E-524 test tires. Arrival correlations are not required but full departure correlations will be required of both sides of the test trailer. Confirm that all requirements of ASTM E-274 and E-2793 will be met, or note exceptions:

1.2 Provide a driver or operator to MDOT if needed

Depending on how many employees MDOT sends to the test facility, there may be a need for the Contractor to provide MDOT with an additional driver or operator. Provide a driver or operator (2 each) in ½ shift (up to 4 hour) increments. Confirm that a driver or operator can be provided or note exceptions:

1.3 Provide out of scope repairs if needed

Occasionally during a calibration process, equipment is found to be in a condition where it cannot be calibrated without additional unanticipated out of normal scope repairs. Provide minor out of scope repairs (if needed) to bring MDOT’s equipment into a condition where it can be calibrated. Seek prior approval from MDOT before proceeding with out-of-scope repairs. Confirm that minor out of scope repairs can be performed (at an additional cost) or note exceptions:

1.4 Skid System Maintenance and Repair Inspection

Provide standard maintenance and repair for the MDOT skid system. Inspect the skid system to determine the maintenance and repairs needed or note exceptions:

1.4.1 Potential necessary repairs

· Brakes

1. Pads

2. Return Springs

3. Calipers (ea.)

4. Master Cylinder

5. Brake Chamber

· Suspension

1. Wheel Bearings

2. Shocks

3. 4 links

4. Wheel Studs

· Air Supply

1. Compressor

2. Switch

3. Dryer

4. Desiccant

· Water Supply

1. Check Valve

2. Solenoid

3. Pulley

4. Belt

· Gauge

1. Tire Pressure

1.5. ASTM E-17 Certification Requirement

To be considered as the successful vendor, a vendor must be a calibration center recognized by ASTM E-17 Committee. Calibration and correlation of skid system to current ASTM E2793 Test Procedure.

1.6 Reports

Provide a final written report that summarizes the work done and the results of the calibration and correlation. The final report may be submitted electronically via e-mail to Paul Shapter (shapterp@michigan.gov). Report is due within 30 days of performing the calibration.

List all exception(s):

2. Warranties Describe any warranties included in the bid – add additional rows as needed. Explain the process for reporting warranty issues and how the Contractor will handle any repairs or replacements.

The State reserves the right to require additional warranties other than those identified by the Contractor in its response to this RFQ.

Bidder must provide detailed information requested below:

Describe any warranties included in the bid (if none, write N/A):

Provide the length of the warranty:

Explain the process for reporting warranty issues:

Explain how any repairs or replacements are made, including timing, etc.:

If the warranty is provided through a third-party or manufacturer, the Contractor must confirm that the manufacturer’s warranty passes through to the State:

Provide the name, address, contact name, phone number and email address of the party responsible for the warranty:

3. Service Requirements

3.1 Timeframes

All Contract Activities must be delivered within 180 business days from receipt of order. The receipt of order date is pursuant to the Notices section of the Standard Contract Terms.

List all exception(s):

Bidder must describe how they comply with the above requirement(s):

3.2 Delivery

Delivery will be expected within 180 business days upon date of order.

List all exception(s):

Bidder must describe how they comply with the above requirement(s):

Pricing

4.1. Price Term

Pricing is firm for the entire length of the Contract.

5. Ordering The appropriate document for authorizing services will be a Purchase Order.

6. Invoice and Payment

6.1. Invoice Requirements. All invoices submitted to the State must include: (a) date; (b) purchase order number; (c) quantity; (d) description of the service; (e) unit price; (f) vendor-generated invoice number; and (g) total price.

Invoices must be emailed to Traci Crego at CregoT@michigan.gov.

6.2. Quick Payment Terms

The vendor is encouraged to offer quick payment terms. The number of days must not include processing time for payment to be received by the vendor's financial institution.

6.3. Payment Methods

The State will make payment for Contract Activities. As required by MCL 18.1283, the State will only disburse payments through Electronic Funds Transfer (EFT).

The vendor is responsible for ensuring current banking information is entered in the State vendor website: https://sigma.michigan.gov/webapp/PRDVSS2X1/AltSelfService.

List all exception(s):

Enter company name here Schedule B - Pricing Request For Quote No. 240000000148 Calibration and Correlation of MDOT’s Pavement Friction Test (Skid) System

1. The Contractor must provide a pricing schedule for the proposed Contract Activities using the below pricing table. The pricing schedule should be submitted in a modifiable format (e.g., Microsoft Word or Excel); however, you may also submit an additional pricing schedule in a non-modifiable format (e.g., PDF). Failure to complete the pricing schedule as requested may result in disqualification of your bid.

2. Price bids must include all costs, including but not limited to, any one-time or set-up charges, fees, and potential costs that Contractor may charge the State (e.g., shipping and handling, per piece pricing, and palletizing).

3. By submitting its bid, the Contractor certifies that the prices were arrived at independently, and without consultation, communication, or agreement with any other Contractor.

PRICING TABLE

TOTAL

SKID SYSTEM POTENTIAL REPAIRS

Brakes

Return Springs - Replace Return Springs if broken

Master Cylinders - Replace Master Cylinders

Wheel Bearings – Replace Bearings and Races

Air Supply

Compressor - Diagnose, replace compressor if not adequate

Water Supply

Gauge

TOTAL FOR REPAIRS

STATE OF MICHIGAN

PROCUREMENT

STANDARD CONTRACT TERMS (SHORT FORM)

Vendor is deemed to have accepted these terms upon the earliest of vendor’s: written acceptance of these terms; commencement of work; receipt of payment; or submission of a bid, bid, or other offer in response to a solicitation.

1. General. Vendor’s failure to deliver or comply with any of these terms, may result in damages against the Vendor and the termination of the Contract.

2. Delivery, Title and Risk of Loss. Vendor must pay all costs associated with packaging, freight, and shipping, and must ship all deliverables F.O.B. destination, inside delivery, unless otherwise specified in the Contract. Title and risk of loss or damage to deliverables remains with Vendor until the deliverables have been received, inspected and accepted by the State in accordance with these terms. All containers and packaging become the State’s exclusive property upon final acceptance. Vendor shall ensure that all deliverables and services (“Deliverables”) are provided to the State by the date and time specified on the Contract. If Vendor fails to provide the Deliverables in accordance with the Contract, the State may reject the delivery and terminate the Contract without any termination charges or penalties, and Vendor must pay all associated costs, including, but not limited to, expedited routing costs, return shipping charges, the procurement of the Deliverables from another source, and any storage removal, or disposal expenses. The risk of loss of rejected or non-conforming Deliverables remains with Vendor. Rejected Deliverables not removed by Vendor within 10 calendar days will be deemed abandoned by Vendor, and the State will have the right to dispose of such Deliverables as its own property. Vendor is responsible for filing, processing, and collecting all damage claims.

3. Insurance Requirements. Contractor, at its sole expense, must maintain the insurance coverage identified below. All required insurance must: (i) protect the State from claims that arise out of, are alleged to arise out of, or otherwise result from Contractor's or subcontractor's performance; (ii) be primary and non-contributing to any comparable liability insurance (including self-insurance) carried by the State; and (iii) be provided by a company with an A.M. Best rating of "A-" or better, and a financial size of VII or better.

Commercial General Liability Insurance

Minimum Limits:

$1,000,000 Each Occurrence $1,000,000 Personal & Advertising Injury $2,000,000 Products/Completed Operations $2,000,000 General Aggregate Contractor must have their policy endorsed to add “the State of Michigan, its departments, divisions, agencies, offices, commissions, officers, employees, and agents” as additional insureds using endorsement CG 20 10 11 85, or both CG 20 10 12 19 and CG 20 37 12 19.

Automobile Liability Insurance

Minimum Limits:

$1,000,000 Per Accident Contractor must have their policy: (1) endorsed to add “the State of Michigan, its departments, divisions, agencies, offices, commissions, officers, employees, and agents” as additional insureds; and (2) include Hired and Non-Owned Automobile coverage.

Workers' Compensation Insurance

Minimum Limits:

Coverage according to applicable laws governing work activities.

Waiver of subrogation, except where waiver is prohibited by law.

Employers Liability Insurance

Minimum Limits:

$500,000 Each Accident $500,000 Each Employee by Disease $500,000 Aggregate Disease

Garagekeepers Liability Insurance

Minimum Limits:

$1,000,000 Per Occurrence Contractor must have their policy: (1) endorsed to add “the State of Michigan, its departments, divisions, agencies, offices, commissions, officers, employees, and agents” as additional insureds; and (2) include Garage Keepers Legal Liability coverage.

Property Insurance

The Contractor is responsible for all losses or any damages to State property that results from this agreement including property while in transit, and in the care custody and control of the Contractor up to its replacement value.

Evidence of Property Insurance is required for any off-site property location of Contractor that is part of this Contract.

Contractor is responsible for all loss or damage to personal property (including but not limited to material, equipment, tools, and supplies), owned, rented, or used by Contractor, up to its replacement value, where the property and its contents are under the care, custody, and control of Contractor.

Policy must be endorsed to add “the State of Michigan, its departments, divisions, agencies, offices, commissions, officers, employees, and agents as a loss payee as its interests appear.

If any required policies provide claims-made coverage, the Contractor must: (i) provide coverage with a retroactive date before the Effective Date of the Contract or the beginning of Contract Activities; (ii) maintain coverage and provide evidence of coverage for at least three (3) years after completion of the Contract Activities; and (iii) if coverage is cancelled or not renewed, and not replaced with another claims-made policy form with a retroactive date prior to the Effective Date of this Contract, Contractor must purchase extended reporting coverage for a minimum of three (3) years after completion of work.

Contractor must: (i) provide insurance certificates to the Contract Administrator, containing the agreement or delivery order number, at Contract formation and within twenty (20) calendar days of the expiration date of the applicable policies; (ii) require that subcontractors maintain the required insurances contained in this Section; (iii) notify the Contract Administrator within five (5) business days if any policy is cancelled; and (iv) waive all rights against the State for damages covered by insurance. Failure to maintain the required insurance does not limit this waiver.

This Section is not intended to and is not to be construed in any manner as waiving, restricting, or limiting the liability of either party for any obligations under this Contract (including any provisions hereof requiring Contractor to indemnify, defend and hold harmless the State).

4. Inspection. The State may inspect the work and activities of Vendor, and its subcontractors, at all reasonable times and places before, during and after delivery of the Deliverables. All Deliverables are subject to final inspection and acceptance by the State notwithstanding any prior payments or inspections. Final inspection will take place within 30 calendar days of the later of the delivery date, installation, or completion of services. If any Deliverables are non-conforming or defective, the State is entitled to, at its option and at Vendor’s expense: (a) a refund; (b) a credit; or (c) correction or replacement. If Vendor fails to correct defects or replace non-conforming Deliverables within 10 calendar days, the State may, in addition to its other remedies: (i) reject such Deliverables; (ii) accept such Deliverables at a discount; or (iii) make such corrections or replace such Deliverables and charge Vendor any resulting costs incurred by the State plus an additional 10% administrative fee.

5. Payment. Invoices must include an itemized statement of all charges. All undisputed amounts are payable within 45 calendar days of the later of the State’s: (a) receipt of an invoice; or (b) final acceptance of the Deliverables. The State is exempt from State sales tax for direct purchases and may be exempt from federal excise tax, if Deliverables purchased under the Contract are for the State’s exclusive use. Notwithstanding the foregoing, all fees are inclusive of taxes, and Vendor is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by federal, state or local government entities on any amounts payable by the State. The State may withhold payment in whole or in part for Deliverables the State determines are defective, untimely, or otherwise non-conforming to the Contract. All amounts due and payable by the State to Vendor shall be subject to deduction or setoff by the State against any claim the State may have against Vendor whether arising out of the Contract or any other transactions with the State. The State will only disburse payments through Electronic Funds Transfer (EFT). If Vendor does not register to receive payments at http://www.michigan.gov/SIGMAVSS, the State is not liable for failure to provide payment.

6. Warranties and Representations. Vendor represents and warrants: (a) all Deliverables furnished under the Contract will conform to all specifications and industry standards, and will be free from defects, including, where applicable and without limitation, defects in material, workmanship, and title; (b) Vendor is the owner or licensee of all Deliverables it licenses, sells, or develops and Vendor has the rights necessary to convey title, ownership rights, or licensed use; (c) all Deliverables are provided free from any security interest, lien, or encumbrance and will continue in that respect; (d) the Deliverables will not infringe the patent, trademark, copyright, trade secret, or other proprietary rights of any third party; (e) Vendor must assign or otherwise transfer to the State or its designee any manufacturer's warranty for the Deliverables; (f) Vendor will not negate, exclude, limit, or modify in any warranty otherwise available to the State in any way; (g) the Deliverables are merchantable and fit for the State’s intended use ; (h) the Deliverables furnished will conform in all respects to samples, advertisements, and other forms of representation made to the State; (i) the Contract signatory has the authority to enter into the Contract; (j) all information furnished and representations made in connection with the Contract is true, accurate, and complete, and contains no false statements or omits any fact that would make the information misleading, and the (k) Vendor is neither currently engaged in nor will engage in the boycott of a person based in or doing business with a strategic partner as described in 22 USC 8601 to 8606. Vendor agrees to promptly replace or correct any Deliverables not conforming to the foregoing warranty, without expense to the State, when notified of such non-conformity by the State. A breach of this Section is a material breach of the Contract.

7. Termination for Cause. The State may terminate the Contract, in whole or in part, at any time for cause in the event Vendor fails to comply with any of these terms, including, without limitation, late delivery or performance, the delivery of defective or non-conforming Deliverables, or failure to provide the State with reasonable assurances of future performance. In the event of termination for cause, the State will not be liable to Vendor for any amount, and Vendor will be liable to the State for any and all damages, including but not limited to, administrative fees, court costs, attorney fees, and cover costs. Any ineffectual termination for cause is hereby deemed a termination for convenience, effective as of the same date and limited to those rights.

8. Termination for Convenience. The State may immediately terminate the Contract, in whole or in part, without penalty and for any reason or no reason, including but not limited to, appropriation or budget shortfalls. Upon termination for convenience, the State will only pay for those Deliverables, not including standard stock, then in progress and which cannot be returned under these terms.

9. Indemnification. Vendor must defend, indemnify and hold the State, all of its instrumentalities, and employees harmless, without limitation, from and against any and all actions, claims, losses, liabilities, damages, costs, attorney fees, and expenses (including those required to establish the right to indemnification), arising out of or relating to: (a) any breach by Vendor (or any of Vendor’s employees, agents, subcontractors, or by anyone else for whose acts any of them may be liable) of any of the promises, agreements, representations, warranties, or other requirements contained in the Contract; (b) any infringement, misappropriation, or other violation of any intellectual property right or other right of any third party; (c) any bodily injury, death, or damage to real or tangible personal property occurring wholly or in part due to action or inaction by Vendor (or any of Vendor’s employees, agents, subcontractors, or by anyone else for whose acts any of them may be liable); and (d) any acts or omissions of Vendor (or any of Vendor’s employees, agents, subcontractors, or by anyone else for whose acts any of them may be liable). Due to constitutional prohibitions, the State will not indemnify Vendor, or its employees or affiliates, for any reason whatsoever.

10. Confidentiality. Vendor agrees that any information, including State Data, disclosed by the State in relation to the Contract will be used only in the performance thereof. Vendor will keep the information confidential, will not disclose it to any third party, except as authorized by the State, and will only disclose it to those within its organization who need it for performance of the Contract. Upon completion or termination of the Contract, Vendor will return all such information to the State, or make such other disposition thereof as directed or approved by the State. No item furnished under the Contract, or tools, plans, designs, or specifications for producing the same, which have been specifically designed for or by the State, will be duplicated or used by Vendor. Nothing in this provision will restrict Vendor’s right to use or disclose any information which is or becomes known to the public without breach of this provision by Vendor or is rightfully obtained without restriction from other sources.

11. Proprietary Rights. All materials, tools, plans, designs, specifications, equipment, and other property either furnished by the State to Vendor or paid for by the State, will remain the property of the State, but the Vendor assumes the risks of, and will be responsible for, any loss or damage, until returned in good order to the State. Such property must be safely stored and properly maintained by Vendor. Upon completion of this Contract, Vendor will return such property to the State or to any other entity as the State may direct, in the condition in which it was received, manufactured or procured by Vendor, except for reasonable wear and tear and except if such property has been incorporated into the Deliverables.

12. State Data. All data and information provided to Vendor by or on behalf of the State, and all data and information derived therefrom, is the exclusive property of the State (“State Data”) and may only be used as specifically required by the Contract; this definition is to be construed as broadly as possible. Upon request, Vendor must provide to the State, or its third-party designee, all State Data within 10 calendar days of the request and in the format requested by the State. Vendor will assume all costs incurred in compiling and supplying State Data. No State Data may be used for any marketing purposes.

13. Intellectual Property. Unless otherwise stated in the Contract, Vendor: (a) agrees that any computer program, software, documentation, copyrightable work, discoveries, inventions or improvements developed by Vendor resulting from supplying the Deliverables are the property of the State; and (b) hereby assigns all rights therein to the State. Vendor further agrees to provide the State with any assistance which the State may require to obtain patents or copyright registrations.

14. Limitation of Liability. The State is not liable for consequential, incidental, indirect, or special damages, regardless of the nature of the action. Under no circumstances will the State be liable for any amounts, in whatever form, in excess of the total aggregate value set forth in the Contract.

15. Records Maintenance, Inspection, Examination, and Audit. The State or its designee may audit Vendor to verify compliance with the Contract. Vendor must retain and provide to the State or its designee and the auditor general upon request, all financial and accounting records related to the Contract through the term of the Contract and for 4 years after the latter of termination, expiration, or final payment under the Contract or any extension.

16. Notices. All notices and other communications required or permitted under the Contract must be in writing and will be considered given and received: (a) when verified by written receipt if sent by courier; (b) when actually received if sent by mail without verification of receipt; or (c) when verified by automated receipt or electronic logs if sent by facsimile or email.

17. Modifications. The Contract may not be amended except by signed agreement between the parties (a “Change Notice”).

18. Independent Contractor. Vendor is an independent contractor and assumes all rights, obligations and liabilities set forth in the Contract. Vendor, its employees, and agents are not considered employees of the State.

19. Subcontracting and Assignment. Vendor may not delegate or assign any of its obligations or rights under the Contract without the prior written approval of the State.

20. Compliance with Laws and Policies. Vendor must comply with all applicable federal, state and local laws, rules and regulations. Vendor must also comply with all applicable State physical and IT security policies and standards, which will be made available upon request

21. Nondiscrimination. Under the Elliott-Larsen Civil Rights Act, 1976 PA 453, MCL 37.2101, et seq., the Persons with Disabilities Civil Rights Act, 1976 PA 220, MCL 37.1101, et seq., and Executive Directive 2019-09. Vendor and its subcontractors agree not to discriminate against an employee or applicant for employment with respect to hire, tenure, terms, conditions, or privileges of employment, or a matter directly or indirectly related to employment, because of race, color, religion, national origin, age, sex (as defined in Executive Directive 2019-09), height, weight, marital status, partisan considerations, any mental or physical disability, or genetic information that is unrelated to the person’s ability to perform the duties of a particular job or position. Breach of this covenant is a material breach of the Contract.

22. Unfair Labor Practice. Under MCL 423.324, the State may void any Contract with a Contractor, Vendor, or subcontractor who appears on the Unfair Labor Practice register compiled under MCL 423.322.

23. Governing Law. The Contract is governed, construed, and enforced in accordance with Michigan law, excluding choice-of-law principles, and all claims relating to or arising out of the Contract are governed by Michigan law, excluding choice-of-law principles. Any dispute arising from the PO must be resolved in Michigan Court of Claims. Vendor hereby waives any objections, such as lack of personal jurisdiction or forum non conveniens. Vendor must appoint agents in Michigan to receive service of process.

24. Non-Exclusivity. Nothing contained in the Contract is intended nor will be construed as creating any requirements contract with Vendor. The Contract does not restrict the State or its agencies from acquiring similar, equal, or like Deliverables from other sources.

25. Force Majeure. Neither party will be in breach of the Contract because of any failure arising from any disaster or acts of god that are beyond their control and without their fault or negligence. Each party will use commercially reasonable efforts to resume performance. Vendor will not be relieved of a breach or delay caused by its subcontractors. If immediate performance is necessary to ensure public health and safety, the State may immediately contract with a third party.

26. Media Releases. News releases (including promotional literature and commercial advertisements) pertaining to the Contract or project to which it relates must not be made without prior written State approval, and then only in accordance with the explicit written instructions of the State. Vendor will provide the State, for its review, copies of all presentations or articles being submitted for publication at least 30 calendar days in advance.

27. Website Incorporation. The State is not bound by any content on Vendor’s website unless expressly incorporated directly into the Contract.

28. Severability. If any part of the Contract, or these terms, is held invalid or unenforceable, by any court of competent jurisdiction, that part will be deemed deleted and the severed part will be replaced by agreed upon language that achieves the same or similar objectives. The remaining Contract terms will continue in full force and effect.

29. Waiver. Failure to enforce any provision of the Contract, or these terms, for any period of time will not constitute a waiver.

30. Survival. The provisions of these terms that impose continuing obligations, including warranties and representations, termination, indemnification, intellectual property, and confidentiality, will survive the expiration or termination of the Contract.

31. Entire Contract. The Contract and these terms constitute the sole and entire agreement of the parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings and agreements, both written and oral, with respect to such subject matter. No terms on any invoice, quote, purchase order, website, browse-wrap, shrink-wrap, click-wrap or other non-negotiated terms and conditions provided with any of the Deliverables (including software and hardware) or documentation, whether by Vendor, Contractor, subcontractor, or any third-party, will constitute a part or amendment of the Contract or is binding on the State or any authorized user for any purpose.

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