Jobvite+-+Contract.pdf

TECHNOLOGY CONTRACT: ENHANCED RECRUITMENT MARKETING SYSTEM

1. PARTIES

The parties to this contract (Contract) are the state of North Dakota, acting through its Office of Management and Budget (STATE), and Talent Technology USA Corp., a wholly owned subsidiary of Employ, which is a Delaware Corporation, having its principal place of business at 20 N Meridian St, Suite#300, Indianapolis, IN 46204 (CONTRACTOR).

2. COOPERATIVE PURCHASING

This Contract is a cooperative purchasing Contract established pursuant to North Dakota Century Code (N.D.C.C.) § 54-44.4-13. This Contract is made available to state entities, institutions under the jurisdiction of the State Board of Higher Education, other government entities (including counties, cities, townships, public primary and secondary educational entities, governmental boards and commissions), nonprofit entities established on behalf of public entities, tribal agencies, transportation providers under N.D.C.C. ch. 39-04.2, and the International Peace Garden (hereafter known as “Ordering Agencies”). Participation in this open-ended Contract is not mandated;

therefore, the estimated volume of this Contract is not known. CONTRACTOR may contact the State Contract Manager for assistance in determining whether an entity is eligible to purchase under this Contract.

3. DEFINITIONS

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

b) 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. STATE does not get any data from EU citizens.

c) Data Breach - means any access, destruction, loss, theft, use, modification or disclosure of Data by an unauthorized party or that is in violation of Contract terms and/or applicable state or federal law.

d) 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.

e) 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.

f) Recovery Point Objective (RPO) - means the point in time to which Data can be recovered and/or systems restored when service is restored after an interruption. The Recovery Point Objective is expressed as a length of time between the interruption and the most proximate backup of Data immediately preceding the interruption. The RPO is detailed in the SLA.

g) Recovery Time Objective (RTO) - means the period within which information technology services, systems, applications and functions must be recovered following an unplanned interruption. The RTO is detailed in the SLA.

h) Software as a Service (SaaS). Any software or infrastructure hosted outside the State of North Dakota’s environment.

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

DocuSign Envelope ID: 90A89541-8FB7-4B67-9578-D009435E073B

4. SCOPE OF WORK

CONTRACTOR, in exchange for the compensation paid by STATE under this Contract, shall provide the Enhanced Recruitment Marketing System as described in the Statement of Work (Exhibit A) and in the documents listed in the Merger and Modification, Conflict in Documents Section.

5. COMPENSATION-PAYMENTS

a. Contractual Amount

STATE shall pay for the accepted services provided by CONTRACTOR under this Contract an amount not to exceed $680,000.00 (Contractual Amount) based upon the mutually agreed Scope of Work detailed in Exhibit A and limits as per Exhibit B. The Contractual Amount shall be paid according to the Compensation Details document attached as Exhibit B.

The Contractual Amount is firm for the duration of this Contract and constitutes the entire compensation due CONTRACTOR for performance of its obligations under this Contract regardless of the difficulty, materials or equipment required, including fees, licenses, overhead, profit and all other direct and indirect costs or expenses incurred by CONTRACTOR except as provided by an amendment to this Contract.

b. Retainage

All deliverable payments shall be subject to 10% retainage. Retained amounts due to CONTRACTOR shall be paid upon Final Acceptance.

c. Invoicing

The final cost set forth on each invoice shall be equivalent to the cost for each deliverable or service as specified in the 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.

STATE shall make payment under this Contract within thirty (30) 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. Travel

CONTRACTOR acknowledges travel expenses are covered by the Contractual Amount and shall not invoice STATE for travel expenses.

f. Prepayment

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

g. Payment of Taxes by State

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

CONTRACTOR.

h. Taxpayer ID

CONTRACTOR’s federal employer ID number is: 56-2422812.

i. 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.

6. EQUIPMENT, MATERIALS, AND WORKSPACE – RESOURCES PROVIDED BY PARTIES

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

a. On site means Bismarck ND.

b. STATE agrees to provide an adequate working space, when required.

c. Equipment and software for on-site CONTRACTOR personnel is to be provided by

CONTRACTOR

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

7. TERM OF CONTRACT

This Contract term (Term or Initial Term) begins on its Effective Date, and ends on July 31, 2026

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 two (2) 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 solution and services will be used by STATE and ongoing maintenance and support are required for as long as the system is operational STATE and CONTRACTOR may renegotiate this Contract. 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.

8. TERMINATION

a. Termination by Mutual Agreement

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

b. 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. STATE or applicable STATE agency will make a good faith attempt each year, or as necessary, to receive adequate funding.

c. Termination for Cause.

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

1) If a Party fails to meet its requirements as required by this Contract within the time specified or any extension agreed to in writing by the other Party; or

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

9. SUSPENSION FOR CAUSE

Notwithstanding anything to the contrary in this Contract, CONTRACTOR may impose limitations on bandwidth usage, and/or temporarily suspend State’s and any user authorized by STATE (“Authorized User”) access to any portion or all of the Services if CONTRACTOR reasonably determines that (i) there is a threat to or attack on any of the Services; (ii) STATE’s or any Authorized User’s use of the Services abuses, disrupts or poses a security risk to the Services or to any other STATE or vendor of Contractor; or (iii) STATE is in breach of its obligation to pay any Fees due under the Contract (collectively, “Service Suspension(s)”). CONTRACTOR will provide notice of a Service Suspension arising under Section 9.2(i) or Section 9.2(ii) as soon as reasonably possible. Prior to suspension of service pursuant to sub-Section (iii) above, CONTRACTOR will provide STATE with notice of non-payment and the amount due (“Non-payment Notice”). Unless the amount has been paid, CONTRACTOR reserves the right to suspend STATE’s access to the Services fourteen (14) calendar days after such Non-payment Notice. CONTRACTOR will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that State or any Authorized User may incur as a result of a Service Suspension.

10. 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 twenty (20) 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 from the effective date from such termination.

11. INJUNCTIVE RELIEF

CONTRACTOR shall without under delay, but at least within two (2) business days), 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.

12. 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.

13. RIGHT TO REMEDIES AND CUMULATION OF RIGHTS

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

14. NON-WAIVER

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

15. INDEMNIFICATION

The legal defense provided by CONTRACTOR to the State under this provision must be free of any conflicts of interest, even if retention of separate legal counsel for the State is necessary. Any attorney appointed to represent the State must first qualify as and be appointed by the North Dakota Attorney General as a Special Assistant Attorney General as required under N.D.C.C. § 54- 12-08. CONTRACTOR also agrees to reimburse the State for all costs, expenses and attorneys' fees incurred if the State prevails in an action against CONTRACTOR in establishing and litigating the indemnification coverage provided herein. This obligation shall continue after the termination of this Contract.

CONTRACTOR will indemnify, defend, and hold STATE harmless from and against all third-party claims, and all losses, damages, liabilities, and expenses, in each case, that are paid or payable to such third parties pursuant to such claims (including reasonable attorneys’ fees and expenses), to the extent arising out of or resulting from (a) the negligence or willful misconduct of CONTRACTOR or (b) any third-party claim or allegation that the Services infringe or misappropriate such third party’s patent, trademark, trade secret, copyright, or other intellectual property rights.

CONTRACTOR’s obligations pursuant to this Section will not apply, however, to the extent that such claim is caused by: (i) STATE’s use of the Services other than in accordance with the terms of this Contract; (ii) STATE’s failure to use or implement corrections or enhancements to the Services made available free of charge to STATE by CONTRACTOR, (iii) customized portions or components of the Services designed and provided to Contractor accordance with State specifications, modification of the Services that have not been performed by or on behalf of CONTRACTOR, and/or (iv) combination of the Services with other products, services, processes or materials not supplied by CONTRACTOR (including, without limitation, State Data).

16. INTELLECTUAL PROPERTY INFRINGEMENT INDEMNIFICATION

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.

17. REPRESENTATIONS

CONTRACTOR represents to STATE that neither CONTRACTOR, in connection with performing the services in performance of this Contract, nor the completed product delivered by CONTRACTOR, will infringe any patent, copyright, trademark, trade secret or other proprietary right of any person. CONTRACTOR further represents 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 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.

18. INSURANCE

a. 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:

1) 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

2) 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

3) Employer’s liability or “stop gap” insurance of not less than $2,000,000 as an endorsement on the workers compensation or commercial general liability insurance

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

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

2) 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.

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

4) The state of North Dakota and its agencies, officers, and employees (State) shall be made an additional insured through a blanket provision or 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.

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

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

7) Failure to provide insurance as required in this Contract is a material breach of contract entitling STATE to terminate this Contract immediately.

CONTRACTOR shall provide at least 30-day notice of any cancellation or material change 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.

19. 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 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 hosting, transmission, or control of data, any and all suits, claims, or damages of any character whatsoever, resulting from injuries or damages sustained by any person or persons or property by virtue of performance of this Contract.

20. STATE DATA

Contractor will provide functionality to allow STATE to retrieve its data in a commercially reasonable format. STATE RETAINS ALL RIGHTS, TITLE AND INTEREST IN ITS STATE DATA, AND THIS

CONTRACT DOES NOT GRANT CONTRACTOR ANY RIGHTS TO STATE DATA OR THE

INTELLECTUAL PROPERTY RIGHTS EMBODIED IN STATE DATA EXCEPT FOR THE LIMITED

RIGHTS EXPRESSLY SET FORTH IN THIS CONTRACT.

Feedback. Notwithstanding anything to the contrary, if STATE or any of its employees or contractors provide CONTRACTOR with any ideas, suggestion(s), enhancement requests, feedback and/or recommendation(s) regarding the Services, including without limitation, new and/or improved features or functionality relating thereto (”Feedback”), CONTRACTOR is free to use and disclose such Feedback without any obligation to STATE or such employees or contractors and to incorporate into any existing or future products or features, solely to the extent such Feedback does not contain STATE Confidential Information (as defined herein).

21. TECHNOLOGY STANDARDS

CONTRACTOR shall comply with applicable STATE enterprise architecture technology standards These standards can be found on STATE’s website at https://www.ndit.nd.gov/standards. If CONTRACTOR is unable to comply with any applicable standard, a Request for Exemption from Information Technology Standards or Statutory Policies (SFN 51687) must be submitted in coordination with STATE and CONTRACTOR for the North Dakota Information Technology Department’s review and approval or disapproval.

22. 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. Therefore, CONTRACTOR agrees that:

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

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

3) Contractor will make a good faith attempt to notify State at least two weeks in advance prior to any core resource leaving project team. State will have one week from identification to review and approve replacement personnel. Otherwise, replacement personnel shall be assumed approved. Any delays in services based on States request to replace personnel shall not be considered a breach.

4) Any substitution made pursuant to this paragraph must be of equal or higher skills, knowledge, and abilities than those personnel originally proposed.

e. Upon reasonable request by STATE, Contractor will work in good faith to resolve personnel concern. If issue is unable to be resolved, CONTRACTOR shall replace any CONTRACTOR personnel that STATE determines 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.

i. CONTRACTOR agrees that STATE may request Contractor to provide a background check for any personnel CONTRACTOR assigns to perform work under this Contract, including employees, contracted staff, subcontractors, or other individuals. If STATE determines that CONTRACTOR’s background check is insufficient and mandates CONTRACTOR to conduct additional 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 and provide redacted copies of the subsequent Criminal History checks, STATE agrees to be responsible for all costs associated with additional criminal history record checks carried out pursuant to this paragraph. 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. CONTRACTOR agrees to be responsible for all costs associated with criminal history record checks carried out pursuant to this paragraph.

23. PROJECT MANAGEMENT

a. Reporting

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

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

b. Integrated Change Control Process

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

3) A change request must be in writing to document the potential change. The write-up for the proposed change must be submitted to CONTRACTOR and STATE’s project managers who will in turn provide it to relevant Parties for assessment.

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

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

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

7) CONTRACTOR’s project manager and STATE’s project manager will adapt the Project Management Plan to incorporate approved changes.

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

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

c. Deliverable Acceptance

1) For any professional Service, upon completion of a deliverable, CONTRACTOR will furnish STATE with the deliverable as stated in the Statement of Work.

2) After receipt of items in Paragraph 26(c)(1), STATE will have five (5) working days or a different period of time as is agreed to by the Parties, in which to accept or reject each item in writing. STATE will accept by signature. If STATE rejects it, STATE will specify in writing its grounds for rejection and CONTRACTOR shall use its best efforts to revise any issues for the deliverables to be acceptable to STATE within the following twenty (20) working days. If STATE rejects it a second time, STATE will have the option of repeating the procedure as described in this acceptance statement above, escalating the issue to Agency Head, or terminating this Contract upon written notice to CONTRACTOR.

d. Final Acceptance

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

24. PRODUCT CONFORMITY

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

25. WARRANTY

General Warranties. CONTRACTOR warrants to STATE that Services under this Contract are provided in compliance with all applicable federal, state and local laws. CONTRACTOR warrants that the Services will conform to the Documentation and that CONTRACTOR will render any professional services in a professional and workmanlike manner. CONTRACTOR represents and warrants that (i) it has sufficient right, title and interest in the Services in order to provide the Services pursuant to the terms and conditions of this Contract, and (ii) its execution and performance of this Contract will not violate or conflict with any obligation it has to any third party.

Third Party Services. The foregoing warranty does not apply to and CONTRACTOR strictly disclaims all warranties with respect to connections and/or links to non-embedded services, products and professional services that are provided and sold to STATE by third parties which interoperate with or are used in connection with the Service, including, without limitation, via application programming interfaces (collectively, “Third Party Services”). Any exchange of data or other interaction between STATE and Third-Party Services is solely between STATE and the operator of such Third Party Services and is governed by STATE’s Contract with such Third-Party Services provider.

Warranty Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THE CONTRACT, THE

SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND CONTRACTOR HEREBY

DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR

OTHERWISE. CONTRACTOR NOR ITS LICENSORS SPECIFICALLY DISCLAIMS ALL IMPLIED

WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND

NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING,

USAGE, OR TRADE PRACTICE. STATE ACKNOWLEDGES THAT CONTRACTOR DOES NOT

WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-

FREE. CONTRACTOR IS NOT RESPONSIBLE FOR THE ACCURACY, COMPLETENESS,

APPROPRIATENESS, OR LEGALITY OF DATA, USER POSTS, OR ANY OTHER INFORMATION

POSTED BY A USER.

26. SOFTWARE LICENSE

All ownership rights to CONTRACTOR’s software provided to STATE under this Contract (intellectual property owned by CONTRACTOR prior to performance of this Contract) shall remain with CONTRACTOR. If CONTRACTOR incorporates any of CONTRACTOR’s Software in any work product provided to STATE, CONTRACTOR agrees to provide written notice to STATE of its incorporation in the work product and to convey to STATE a non-exclusive, perpetual, cost-free license, and patent and copyright indemnity, for STATE to use that software for its intended purpose.

Contractor IP. Except as expressly set forth in this Contract, CONTRACTOR will own and retain all right, title and interest in and to (i) the Services, including all software, improvements, enhancements modifications, or proprietary methodologies thereto, (ii) any software, applications, inventions, methodologies or other technology developed as part of any professional services (as set forth in an Order Form or SOW mutually executed by both parties hereto that references this Contract) or support, and (iii) all intellectual property rights related to all of the foregoing (collectively the “Background Materials”). Background Materials will at all times remain the property of the CONTRACTOR, and STATE will receive a non-exclusive, fully paid license to use the Background Materials that are provided under a SOW solely in connection with the Deliverables with which they were provided under the terms of the PSA. This Contract does not grant STATE (i) any rights to the Intellectual Property Rights in the Services or (ii) any rights to use the CONTRACTOR trademarks, logos, domain names, or other brand features. "Intellectual Property Rights" means current and future worldwide rights under patent, copyright, trade secret, trademark, moral rights, and other similar rights.

Deliverables. All work product, custom software designs and custom documentation defined in a SOW and delivered to STATE as part of a Professional Services engagement, excluding Background Materials (“Deliverables”) produced by CONTRACTOR in the course of providing the Professional Services identified in a SOW shall be owned solely by CONTRACTOR.

CONTRACTOR hereby grants STATE a worldwide, perpetual, irrevocable, non-exclusive, non-transferable (except to a successor by way of merger, reorganization or sale of assets), royalty-free license to use and modify the Deliverables solely for its internal business purposes.

On Premise License. Licenses for Deliverables or for Services made available for download by the STATE (“On Premise Services”) or Professional Services will become, effective upon payment by STATE in full, the exclusive property of STATE.

27. 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, including subscription updates and technical support services for the Subscription Services pursuant to this Contract. CONTRACTOR and STATE shall negotiate the terms and price of such services. CONTRACTOR warrants that it will continue to offer Subscription Services for the product(s) for full term from the date of final acceptance of any software/product update.

a. Subscription Services:

The service is available to Users and based on the limits identified in Exhibit B.

b. Subscription Period

The subscription period begins upon Contract Execution and continues on an annual basis consistent with the Term of Contract.

c. Purchase of Additional Users

STATE may purchase additional Users during the term of this Contract at the then current market rate offered by CONTRACTOR under the terms of this Contract.

d. Subscription Fee Cap

CONTRACTOR agrees that any change to the annual Services fee may increase by not more than the greater of 6% or Consumer Price Index (CPI) on a per unit per annum basis. The rates shall be adjusted in accordance with the index titled “All Urban Consumers (CPI-U). for the U.S.

City Average. All Items 1982-84=100”, prepared by the U.S. Bureau of Labor Statistics.

e. Right to Change Support Plan Level

STATE may choose to change its subscription, via an amendment to this Contract, to CONTRACTOR’s Subscription Services plan to a higher or lower level plan that is offered by CONTRACTOR at the Contract’s next renewal date upon thirty (30) calendar days’ notice to

CONTRACTOR.

f. Right to Modify or Cancel Services

STATE may choose to cancel Subscription Services at this Contract’s next renewal date upon thirty (30) calendar days’ notice to CONTRACTOR.

28. SAAS AND DATA SECURITY

Remote access to Data from outside the continental United States, including remote access to Data by authorized support staff in identified support centers, is prohibited. If CONTRACTOR is unable to comply, a Request for Exemption from Information Technology Standards or Statutory Policies (SFN 51687) must be submitted in coordination with STATE and CONTRACTOR for the North Dakota Information Technology Department’s review and approval or disapproval.

29. DATA PROCESSING AND LOCATION:

CONTRACTOR shall store STATE Data within the continental United States.

Except as may be required to meet BC/DR requirements, CONTRACTOR shall notify STATE at least 90 days prior to any relocation of STATE’s Data to a different hosting facility.

30. NOTICE

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

STATE CONTRACTOR

Name Sowmya Karumanchi Name: Employ – Attn: Finance(AR) or Legal

Dept.

Title IT Procurement Officer Title: N/A Address 600 East Boulevard Avenue Address: 20 N. Meridian St., Suite #300 City, State, Zip Bismarck ND 58505 Indianapolis, IN 46204 Email skarumanchi@nd.gov Email: (For Legal, Privacy, & Security Notices) legal@employinc.com - (All others) AR@employinc.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.

31. CONFIDENTIALITY

Definition of Confidential Information. “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is protected from mandatory public disclosure under N.D.C.C. ch. 44-04. Confidential Information of each party may include business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.

Protection of Confidential Information. As between the parties, each party retains all ownership rights in and to its Confidential Information. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to (i) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Contract and (ii) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this Contract and who have signed confidentiality agreements with the Receiving Party containing protections not materially less protective of the Confidential Information than those herein. Neither party will disclose the terms of this Contract or any Order Form to any third party other than its Affiliates, legal counsel and accountants without the other party’s prior written consent, provided that a party that makes any such disclosure to its Affiliate, legal counsel or accountants will remain responsible for such Affiliate’s, legal counsel’s or accountant’s compliance with this “Confidentiality” section. Notwithstanding the foregoing, CONTRACTOR may disclose the terms of this Contract and any applicable Order Form to a subcontractor to the extent necessary to perform CONTRACTOR’s obligations under this Contract, under terms of confidentiality materially as protective as set forth herein.

Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information. 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.

32. COMPLIANCE WITH PUBLIC RECORDS LAWS

a) 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.

b) 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.

c) CONTRACTOR agrees to contact STATE without undue delay 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.

33. INDEPENDENT ENTITY

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

34. SUBCONTRACTS

CONTRACTOR shall have the right, in its sole discretion, to subcontract the performance of Professional Services to any reasonably qualified third party, provided that CONTRACTOR shall remain responsible for the performance of any such third party.

35. 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 110.7-23-020 dated 03.20.2023;

c. STATE’s Request for Proposal (“RFP”) number 110.7-23-020, dated 03.10.2023;

d. CONTRACTOR’s proposal dated 03.31.2023 in response to RFP number 110.7-23-020.

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

36. 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.

37. 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.

38. 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.

39. 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.

40. ATTORNEY FEES, COSTS, AND LIABILITY

Limitation of Damages. EXCEPT WITH RESPECT TO, OR INDEMNITY SECTIONS OF THIS

CONTRACT, NEITHER PARTY WILL BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL,

PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS),

REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING

NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE

POSSIBILITY OF SUCH DAMAGES IN ADVANCE.

Limitation of General Commercial Liability. EXCEPT FOR LIABILITY ARISING UNDER

CONFIDENTIALITY OR INDEMNITY SECTIONS, OF THIS CONTRACT, IN NO EVENT WILL

EITHER PARTY OR THEIR RESPECTIVE DIRECTORS, OFFICERS, AGENTS, OR EMPLOYEES,

BE LIABLE TO THE OTHER PARTY FOR ANY REASON, WHETHER IN CONTRACT OR IN

TORT, EXCEPT AS LIMITED ABOVE, FOR ANY CLAIMS,…