DCY-C-2627-0083_-_Gearset_Limited_Fully_Signed.pdf

STATE OF OHIO

DEPARTMENT OF CHILDREN AND YOUTH

ADDENDUM TO MASTER SERVICES AGREEMENT

DCY-C-2627-0083

To the extent allowed by the laws of the State of Ohio and subject to the additional terms and conditions set forth below, the State of Ohio, Department of Children and Youth (“DCY” or “Agency”), agrees to the terms and conditions set forth in Gearset Limited’s Master Services Agreement (“Agreement” or “Contract” where applicable) attached as Exhibit 1 for reference. Additionally, Gearset Limited (“Contractor”) and DCY agree that the following terms and conditions (the “Addendum”) shall be incorporated into and form a part of the Agreement for all purposes.

I. GLOSSARY – The following definitions are applicable to all components of the Agreement:

A. Acceptance: Approval and retention by the DCY of any products, supplies, services or other Deliverables, delivered to fulfill Contract requirements.

B. Agency: The Ohio Department of Children and Youth (DCY).

C. Agreement: The contract to which these Standard Terms and Conditions are attached and/or incorporated.

D. Agreement Data: State Data that Contractor has access to, transmits, processes, possesses, creates or stores in providing services to the State.

E. Contractor: The person or entity with whom the State has entered into the Agreement, including subcontractors or other personnel under the authority or control of the Contractor performing or providing the Deliverables under this Agreement.

F. Default: The omission or failure to perform any obligation under this Agreement.

G. Deliverable: Services, as further described the Agreement.

H. State: The State of Ohio.

I. State Data: All data and information provided by, created by, created for, or related to the activities of the State and any information from, to, or related to all persons that conduct business or personal activities with the State, including, but not limited to, Confidential Data (defined in Article V). All State Data is and will remain the property of the State and, unless specifically provided otherwise in the Agreement, Contractor acquires no right, title, or interest in or to State Data.

J. Work: The scope of work described in this Agreement.

II. REGULATORY AGREEMENT REQUIREMENTS

A. ANTITRUST. The State and the Contractor recognize that, in actual economic practice, overcharges resulting from antitrust violations are usually borne by the State. Pursuant to Section

109.81 of the Ohio Revised Code, the Contractor therefore assigns to the State all state and federal antitrust claims and causes of action that the Contractor has or acquires relating to the goods and services acquired under this Agreement.

B. APPROPRIATION OF FUNDS. The State’s funds are contingent upon the availability of lawful appropriations. If the Ohio General Assembly or any third-party providing funding fails at any time to continue funding for the payments or any other obligations due by the State under this Agreement, the State will be released from its obligations on the date funding expires. If appropriations are approved, the State may continue this Agreement past the current biennium by issuing written notice of continuation to the Contractor. Any obligations of the State are subject to Section 126.07 of the Ohio Revised Code.

C. CAMPAIGN CONTRIBUTIONS. Unless this Agreement was solicited by competitive bid pursuant to Section 125.07 of the Ohio Revised Code, Contractor hereby certifies that all applicable parties are in full compliance with Section 3517.13 of the Ohio Revised Code.

D. COMPLIANCE WITH LAW. The Contractor must comply throughout the duration of the Agreement with all applicable federal, state, local laws, and Executive Orders while performing under this Agreement.

E. CONFLICT OF INTEREST/ETHICS. The Contractor represents, warrants, and certifies that it and its employees engaged in the administration or performance of this Agreement are knowledgeable of and understand the Ohio Ethics and Conflict of Interest laws, including but not limited to Chapter 102 and Sections 2921.42 and 2921.43 of the Ohio Revised Code. Contractor further represents, warrants, and certifies that neither Contractor nor any of its employees will do any act that is inconsistent with such laws or is otherwise a conflict of interest.

F. CONTRACTOR’S WARRANTY AGAINST AN UNRESOLVED FINDING FOR RECOVERY. The Contractor warrants that the Contractor is not subject to an unresolved finding for recovery pursuant to Section 9.24 of the Ohio Revised Code. If the warranty is false on the date the parties signed this Agreement, the Agreement is void ab initio, and the Contractor shall immediately repay any funds paid under this Agreement.

G. DEBARMENT. Contractor represents and warrants that neither it nor any of its subcontractors are debarred from consideration for contract awards by any governmental agency. If this representation and warranty is found to be false, this Agreement is void ab initio, and the Contractor shall immediately repay any funds paid under this Agreement.

H. DRUG FREE WORKPLACE. The Contractor agrees to comply with all applicable state and federal laws regarding drug-free workplace and shall make a good faith effort to ensure that all Contractor employees, while working on State property or performing work on behalf of the State, will not purchase, transfer, use, be under the influence of, or possess illegal drugs, non-medical cannabis (recreational marijuana), or alcohol, or abuse prescription drugs or medical marijuana in any way.

I. PROHIBITION OF THE EXPENDITURE OF PUBLIC FUNDS FOR OFFSHORE SERVICES.

Pursuant to Executive Order 2019-12D Contractor has attained a duly signed waiver from the State to perform services under this Contract outside of the United States, attached hereto as Exhibit 3.

J. GOVERNING LAW. This Agreement shall be governed by the laws of the State of Ohio, and the venue for any disputes will be exclusively with the appropriate court in Franklin County, Ohio. Any provisions requiring the State to participate in arbitration do not meet the requirements of state law and shall be considered stricken.

K. INDEMNIFICATION AND HOLD HARMLESS. Any provisions requiring the State to indemnify and/or hold harmless or pay attorneys’ fees to the Contractor do not meet the requirements of state law and shall be considered stricken.

L. INDEPENDENT CONTRACTOR ACKNOWLEDGEMENT. It is fully understood and agreed that Contractor is an independent contractor and is not an agent, servant, or employee of the State.

Contractor declares that it is engaged as an independent business and has complied with all applicable federal, state, and local laws regarding business permits and licenses of any kind, including but not limited to any insurance coverage, workers’ compensation, or unemployment compensation that is required in the normal course of business and will assume all responsibility for any federal, state, municipal or other tax liabilities. Additionally, Contractor understands that as an independent contractor, it is not a public employee and is not entitled to contributions from the State to any public employee retirement system.

The Contractor acknowledges and agrees that any individual providing personal services under this Agreement is not a public employee for purposes of Chapter 145 of the Ohio Revised Code.

Unless Contractor is a “business entity” as that term is defined in Section 145.037 of the Ohio Revised Code (“an entity with five or more employees that is a corporation, association, firm, limited liability company, partnership, sole proprietorship, or other entity engaged in business”), Contractor shall have any individual performing services under the Agreement complete and submit to the Agency the Independent Contractor/Worker Acknowledgement form, available at https://www.opers.org/forms-archive/PEDACKN-Non-Member-Acknowledgment.pdf.

Contractor’s failure to complete and submit the Independent Contractor/Worker Acknowledgement form prior to commencement of the work, service or deliverable provided under this Agreement, shall serve as Contractor’s certification that Contractor is a “business entity” as the term is defined in Section 145.037 of the Ohio Revised Code.

M. REGISTRATION WITH THE SECRETARY OF STATE. The Contractor certifies that it is one of the following:

1. A company that is properly registered with the Ohio Secretary of State; or

2. A foreign corporation, not incorporated under the laws of the State of Ohio, but is registered with the Ohio Secretary of State pursuant to Sections 1703.01 to 1703.31 of the Ohio Revised Code, as applicable; or

3. Exempt from the registration requirements of the Ohio Secretary of State.

N. TAXES. Pursuant to Section 5739.02 of the Ohio Revised Code, the State is exempt from sales tax. Pursuant to Section 5741.02(C) of the Ohio Revised Code, the State is exempt from use tax.

O. TRADE. Pursuant to Section 9.76(B) of the Ohio Revised Code, Contractor warrants that Contractor is not boycotting any jurisdiction with whom the State of Ohio can enjoy open trade, including Israel, and will not do so during the Agreement period.

P. USE OF MBE AND EDGE VENDORS. Section 125.081 of the Ohio Revised Code requires State agencies to set-aside purchases for Minority Business Enterprises (MBE) and Executive Order 2008-13S encourages use of Encouraging Diversity, Growth and Equity (EDGE) businesses.

Therefore, the State encourages the Contractor to purchase goods and services from Ohio certified MBE and EDGE vendors.

Q. LEGAL REPRESENTATION AND RIGHTS. The Ohio Attorney General is the chief law officer for the State of Ohio, its agencies, boards and commissions, and only the Ohio Attorney General has the authority to appoint outside legal counsel to represent the State. Contractor agrees that any provisions in this Agreement or any documents incorporated by reference that provide or allow for outside legal representation to defend or settle claims on behalf of the State or provide for a third party to have sole control of a defense or settlement of a claim do not meet the requirements of state law and are considered stricken. The Contractor also agrees that, unless specifically agreed to in writing by the State, any provisions that require or provide for a waiver of any legal rights, remedies, or litigation defenses (i.e., waiver of a jury trial) do not meet the requirements of state law and are considered stricken.

https://www.opers.org/forms-archive/PEDACKN-Non-Member-Acknowledgment.pdf

R. STATUTE OF LIMITATIONS. Statutes of limitations generally do not apply to actions brought by the State, and any such provisions in this Agreement or in any documents incorporated by reference are considered stricken.

III. AGREEMENT CONSTRUCTION

A. TERM OF AGREEMENT. The effective date of the Agreement is the effective date stated in the

Agreement or the date the Agreement is fully executed, whichever is later. The Agreement will remain in effect until the ending date stated in the Agreement unless earlier terminated pursuant to the terms of the Agreement. Notwithstanding the foregoing, the expiration or early termination of this Agreement will not limit the Contractor’s continuing obligations with respect to Deliverables that the State paid for or ordered before the expiration or termination, or limit the State’s rights in such, including any warranty services, licensed material, paid subscriptions, the support or maintenance thereof, or other services.

If not otherwise set forth in the Agreement, the State may solely renew this Agreement at its discretion for a period of one month. This Agreement may be further renewed at the discretion of the State. The State will issue a notice to the Contractor if the State decides to renew this Agreement and the Contractor may decline such renewal if it so desires. The Contractor must not obligate resources in anticipation of a renewal until notice is provided.

B. AGREEMENT AMENDMENTS / WAIVER.

1. Amendments. No change to any provision of this Agreement will be effective unless it is in writing and signed by the parties to this Agreement. However, the State may document non-material changes in writing and provide notice to the Contractor. Unless specifically provided otherwise in this Agreement or agreed to in writing by DCY, no terms or conditions included on a Contractor’s quote or ordering document will be valid or enforceable against the State and are specifically excluded from this Agreement. No “click-through,” “shrink-wrap,” “browse-wrap,” or other terms that have not been specifically negotiated by the Contractor and the State, whether before, on, or after the date of this Agreement, will be effective to add or modify the terms of this Agreement, regardless of any party’s “acceptance” of those terms by electronic means.

2. Waiver. The failure of either party at any time to demand strict performance by the other party of any of the terms of this Agreement will not be a waiver of those terms or to any other terms of this Agreement. Waivers must be in writing to be effective, and either party may at any later time demand strict performance.

C. ASSIGNMENT / DELEGATION. The Contractor must not assign any of its rights nor delegate any of its duties under this Agreement without written consent of the State. Any assignment or delegation not consented to may be deemed void by the State.

D. BINDING EFFECT. Subject to the limitations on assignment provided elsewhere in this Agreement, this Agreement will be binding upon and inure to the benefit of the respective successors and assigns of the State and the Contractor.

E. LANGUAGE CONSTRUCTION. This Agreement will be construed in accordance with the plain meaning of its language and neither for nor against the drafting party.

F. RESERVED.

G. HEADINGS. The headings in this Agreement are for convenience only and will not affect the interpretation of any of the Agreement terms and conditions.

H. INJUNCTIVE RELIEF. Nothing in this Agreement is intended to limit the State’s right to injunctive relief if such is necessary to protect its interests or to keep it whole.

I. NOTICES. For any notice under this Agreement to be effective, the notice must be made in writing and delivered to the appropriate contact provided in the Agreement.

J. ORDER OF PRIORITY. Unless otherwise stated in this Addendum, the terms and conditions of this Addendum will take precedence over the attached exhibits or any other terms and conditions or documents referenced or incorporated by reference in this Agreement.

K. PUBLICITY. The Contractor shall not do the following without prior, written consent from the State:

1. Advertise that the Contractor is doing business with the State;

2. Use this Agreement as a marketing or sales tool; or

3. Affix any advertisement or endorsement, including any logo, graphic, text, sound, video, and company name, to any State-owned property, application, or website, including any website hosted by the Contractor or a third party.

L. SEVERABILITY. If any provision of the Agreement or the application of any provision is held by a court to be contrary to law, the remaining provisions of the Agreement will remain in full force and effect.

M. SURVIVORSHIP. All sections herein relating to payment, confidentiality, license and ownership, indemnification, maintenance, publicity, warranties and limitations on damages shall survive the termination of this Agreement. In addition, to the extent necessary to carry out the purpose of this Agreement, all other terms, conditions, representations or warranties contained in this Agreement will survive the expiration or termination of this Agreement.

N. COUNTERPARTS. This Agreement may be executed simultaneously in two or more counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument.

O. ENTIRE AGREEMENT. The Agreement and this Addendum supersede all prior agreements, written or oral, between Contractor and the State and shall constitute the entire agreement and understanding between the parties with respect to the subject matter hereof. The Agreement and this Addendum and each of their provisions shall be binding upon the parties and may not be waived, modified, amended, or altered except by a writing signed by the State and Contractor.

P. ADDENDUM CONTROLLING. In the event there is a conflict between the terms and conditions of the Agreement and this Addendum, this Addendum is controlling.

IV. ORDER AND PAYMENT PROVISIONS

A. CERTIFICATION OF FUNDS/PURCHASE ORDER REQUIREMENTS. None of the duties or obligations in this Agreement are binding on the State, and the Contractor will not begin performance on this Agreement, until all of the following conditions are met:

1. All statutory provisions under the Ohio Revised Code have been met.

2. All necessary funds are made available by the appropriate Agency.

3. If required, the Controlling Board of Ohio has approved the purchase in accordance with

Section 127.16 of the Ohio Revised Code.

4. If applicable, an official State of Ohio Purchase Order (P.O.) has been issued from the appropriate Agency, which is certification that the above requirements have been met.

B. AGREEMENT ORDERS. DCY will order supplies or services under this Agreement from the

Contractor directly, unless otherwise provided in the Agreement. All orders must be in writing and the Contractor may receive orders by DCY electronically, in person, by payment card (if applicable), or by purchase order from the DCY. The Contractor must ensure that any entity placing an order under this Agreement has the authority to do so.

If Contractor’s quote or ordering document contains or incorporates by reference any terms or conditions other than a description of the goods or scope of services and the prices for those goods and/or services, those terms or conditions are excluded from this Agreement and are of no effect.

C. INVOICE REQUIREMENTS. The Contractor or dealer, authorized to submit invoices, must submit an original invoice to the office designated in the purchase order. The Contractor will only be compensated for the Deliverables accepted by the State. To be a proper invoice, the invoice must include the following:

1. The purchase order number authorizing the delivery of supplies or services;

2. State of Ohio Agreement Number (if applicable);

3. Agency Name;

4. Agency Billing Address;

5. Delivery location of supplies or services;

6. Contractor Name;

7. Contractor Address;

8. Contractor’s Unique Invoice Number;

9. Date that services were provided or that supplies were delivered;

10. Itemization of supplies or services provided, including cost;

11. For leases, the invoice must also include the payment number (e.g., 1 of 36);

12. For Time and Materials Agreements, the invoice must reflect labor hours actually worked and, if applicable, supplies used; and

13. Clear statement of total payment expected.

D. PAYMENT DUE DATE AND PROCESS. Unless otherwise stated in this Agreement and in accordance with Section 126.30 of the Ohio Revised Code payments under this Agreement will be due on the 30th calendar day after the date of actual receipt of a proper invoice in the office designated to receive the invoice. The date payment is issued by the State will be considered the date payment is made. Payment of an invoice by the State will not prejudice the State’s right to object to or question that or any other invoice or matter in relation thereto. The State’s preferred method of payment is by electronic funds transfer. However, the Agency may also make payment by State of Ohio payment card or by warrant issued by the Auditor of State. At the time of Agreement award, Contractor must be able to accept all forms of payment from the State and Agency.

E. REIMBURSABLE EXPENSES. The State will not pay reimbursable expenses unless specifically identified in the Agreement. The Contractor will assume all expenses that it incurs in the performance of this Agreement that are not identified as reimbursable.

V. LIABILITY PROVISIONS

A. RESERVED.

B. INDEMNITY.

1. General Indemnity. The Contractor must indemnify the State for all third-party liability and expense arising out of the performance of this Agreement, provided that such liability or expense is due to the negligence or other tortious conduct of the Contractor, its employees, agents, or subcontractors. The Contractor will not be responsible for any damages or liability to the extent caused by the negligence or willful misconduct of the State, its employees, other contractors, or agents.

2. Reserved.

3. Infringement Indemnity. The Contractor must indemnify, release, protect, and hold the State harmless from any third party claim of infringement of a copyright, patent, trade secret, or similar intellectual property right based on the State’s proper use of any Deliverable under this Agreement. This obligation of indemnification will not apply where the State has modified or misused the Deliverable and the claim of infringement is based on the modification or misuse.

If a successful claim of infringement is made, or if the Contractor reasonably believes that an infringement claim that is pending may actually succeed, the Contractor must take one of the following four actions within an acceptable timeframe:

a. Modify the Deliverable so that the Deliverable is no longer infringing;

b. Replace the Deliverable with an equivalent or better item;

c. Acquire the right for the State to use the infringing Deliverable as intended; or

d. Remove the infringing Deliverable and refund the fee the State paid for such

Deliverable and any other affected Deliverable.

4. Indemnity Procedure. For the Contractor’s indemnification obligations in this section, the State agrees to: (i) give the Contractor notice of any claim under this section as soon as reasonably practicable; (ii) give the Contractor the authority to settle or otherwise defend any such claim only upon consultation with and approval by the Ohio Attorney General; and (iii) assist with and cooperate in such defense or settlement as reasonably necessary and at Contractor’s expense. The State has the right to participate in the defense or settlement or any claim at its own expense.

C. INSURANCE. As at the date of the Agreement, Contractor holds the insurance summarized in the

Confirmation of Cover letter attached as Exhibit 2 to this Agreement. Contractor shall use reasonable endeavors to maintain insurance with materially the same levels of cover throughout the term of the Agreement.

D. LIMITATION OF LIABILITY. The parties agree as follows:

1. Neither party will be liable for any indirect, incidental, or consequential loss or damage of any kind, including but not limited to lost profits, even if the parties have been advised, knew, or should have known of the possibility of damages.

2. Notwithstanding any other limitation provisions and pursuant to Section 9.27 of the Ohio Revised Code, the Contractor is liable for any direct loss to the State for bodily injury, death, or damage to property of the State caused by the negligence, intentional or willful misconduct, fraudulent act, recklessness, or other tortious conduct of the Contractor or Contractor's employees or agents during its performance under this Agreement.

3. If there is a conflict between any limitation provisions contained in this Agreement (including any documents and materials incorporated by reference here in) and the provisions of Section

9.27 of the Ohio Revised Code, such provisions shall have no force and effect, solely to the extent of the conflict.

4. All limitations provisions in this Agreement are only to the extent such limitations do not impose an unlawful indemnification on the State.

VI. PERFORMANCE AND COMPLIANCE

A. AUDITS. The Contractor must keep all financial records related to this Agreement in a manner consistent with Generally Accepted Accounting Principles (GAAP) or equivalent accounting principles. Additionally, the Contractor must keep separate business records for this Agreement, including records of disbursements and obligations incurred that must be supported by contracts, invoices, vouchers, and other data as appropriate.

During the period covered by this Agreement and until the expiration of three years after final payment under this Agreement, the Contractor agrees to provide the State, or any authorized representatives providing financial support to the work undertaken hereunder, with access to and the right to examine any books, documents, papers and records of the Contractor involving transactions related to this Agreement.

If an audit reveals any of the following: (i) any material deviation from the Agreement requirements;

(ii) any misrepresentations; or (iii) any overcharge to the State Agreement, the State will be entitled to recover damages as well as reasonably incurred costs of the audit.

B. RESERVED.

C. RESERVED.

D. RESERVED.

E. INCONSISTENCIES BETWEEN AGREEMENT AND DELIVERABLES. If any terms and conditions incorporated in a Deliverable, or other work product, are in addition to, inconsistent with, or conflict with the Agreement, such terms and conditions are excluded, and the Agreement will prevail.

F. RESERVED.

G. RESERVED.

H. FORCE MAJEURE (EXCUSABLE DELAY). Neither party will be liable for any delay in its performance that arises from causes beyond its or its subcontractor’s control and without its or its subcontractor’s negligence or fault. For purposes of this Section, the term “force majeure event” includes without limitation, the following: Acts of God, such as pestilence, lightning, earthquakes, fires, storms, hurricanes, tornadoes, floods, washouts, droughts, severe weather. Additional circumstances and events include epidemics, explosions, restraining of government and people, war, strikes, and other similar events or causes.

If the State or the Contractor cannot perform any part of its obligations under this Agreement because of force majeure, that party is excused from those obligations, to the extent that performance is prevented by the force majeure event and that party took all commercially reasonable steps to mitigate or avoid the effects of the force majeure event. If there is only a delay in performance, such delay may extend only for that time lost because of the force majeure event.

If a party is unable to perform those above-referenced obligations, it must also do the following:

1. Promptly notify the other party, in writing, of any material delay in performance due to a specified force majeure event;

2. Provide detailed information of the force majeure event;

3. Provide a proposed revised performance date to make up for performance delays due to the force majeure event. When applicable, the revised schedule must provide for performance time not to exceed the time lost as a result of the force majeure event.

I. AGREEMENT PERFORMANCE MANAGEMENT. The Agency is responsible for administering and monitoring the Contractor’s compliance and performance on this Agreement. Therefore, the

Contractor must respond to complaints about performance of the obligations in this Agreement to such entities in a timely manner. If the Contractor fails to perform any one of its obligations under this Agreement, it will be in default.

If the Contractor fails to satisfactorily correct the performance or compliance issue within the time designated by the Agency, the Agency may employ all available options and remedies, including termination of the Agreement, if necessary, to resolve the Contractor’s continued nonperformance or noncompliance.

J. RESERVED.

K. AGREEMENT REMEDIES.

1. Actual Damages. The Contractor is liable to the State for all actual and direct damages caused by the Contractor’s default. The State may self-perform or buy substitute Deliverables from a third party for those that were to be provided by the Contractor. The State may recover the costs associated with acquiring substitute Deliverables, less any expenses or costs avoided by the Contractor’s default.

2. Right to Withhold or Offset. The Agency may withhold payment or set off the amount of any liquidated damages, other damages or claims for damages, or any other obligation of the Contractor or its subsidiaries to the Agency, including any amounts the Contractor owes to the Agency under this Agreement, against any payments due to the Contractor under this

L. SUSPENSION/TERMINATION. In the event of suspension or termination, the State will issue a notice. Any notice of suspension or termination, in full or in part, will be effective as specified in the notice. The Contractor must immediately cease all work, refuse any additional orders, and take all steps necessary to minimize the costs the Contractor will incur related to this Agreement as directed by the notice. Suspension or termination of this Agreement will not limit the Contractor’s continuing obligations with respect to Deliverables that the State paid for or ordered before the date of such suspension or termination or limit the State’s rights in such.

At the State’s request, the Contractor must immediately prepare a final report and deliver such report to the State. The report must detail the work completed and/or the orders received and not processed prior to the time of notice. If applicable, the report must include the percentage of the Project’s completion, estimated time for delivery of all orders received but not processed, any costs incurred by the Contractor in doing the Project to date, and any Deliverables completed or partially completed but not delivered to the State at the time of notice. Based on the State’s approval of the final report and as directed, the Contractor must deliver work, whether completed or not, to the State. Any delivered work will be subject to approval by the State. The Contractor may be entitled to payment for any Deliverables that have been delivered and accepted at a pro-rated amount based on the compensation structure of this Agreement.

1. Agreement or Order Suspension.

a. Suspension for Cause. If the Contractor fails to perform any one of the Contractor’s obligations under this Agreement or an order, the Contractor will be in default and the State may suspend rather than terminate this Agreement or an order. In the case of suspension for default, the State will be entitled to all remedies available under this

The notice of suspension will be effective immediately, upon the Contractor’s receipt of the notice.

2. Agreement or Order Termination.

a. Termination for Convenience. Reserved.

b. Termination for Cause. If the Contractor fails to perform any of its obligations under this Agreement, the Contractor will be in default, and the Agency may terminate this Agreement in accordance with this Section. For purposes of this subsection (b), the termination right includes both termination of this Agreement or an order placed under this Agreement. If this Agreement is terminated for cause, the Agency will be entitled to a pro rata refund of any prepaid fees for the applicable orders subject to the termination. Termination for cause includes but is not limited to:

i. Termination for Persistent Default. The Agency may terminate for defaults that are cured but are persistent. “Persistent” means three or more defaults. After providing notification to the Contractor of its third default, the Agency may terminate without providing the Contractor with an opportunity to cure. The three defaults are not required to be related to each other in any way.

c. Termination for Cause - Contractor. If DCY materially Defaults in the performance of any of its duties or obligations under this Agreement, the Contractor must give DCY written notice of such Default and a reasonable opportunity to cure the Default of no less than 30 days. If DCY cures the Default within the prescribed timeframe or is making good faith efforts to cure the Default, the Agreement will remain in full force and effect. If DCY fails to cure the Default, Contractor may terminate this Agreement by giving at least 30 days prior written notice of the termination. Upon a termination for cause, DCY will remain responsible for any accrued but unpaid fees as of the termination date of accepted Deliverable(s).

M. RESERVED.

N. OHIOBUYS. This Agreement may become part of OhioBuys, an electronic procurement system which provides electronic contract and catalog hosting and management services. The Agency accesses this system to place orders for the procurement of goods and services using State of Ohio contracts. When the Agreement becomes part of OhioBuys, the Contractor agrees to establish, maintain and support its contract and catalog in OhioBuys.

VII. DATA AND INFORMATION CONTROL

A. CONFIDENTIALITY. The parties may disclose or learn of information, documents, data, records, or other material that the disclosing party considers confidential (“Confidential Information”) in the performance of this Agreement. The receiving party must treat the Confidential Information as such if it is so marked, otherwise defined as such, or when, by its very nature, it deals with matters that, if generally known, would be damaging to the best interests of either party, the public, other parties, or individuals or organizations about whom the disclosing party keeps information. Title to the Confidential Information and all related materials and documentation remains with the disclosing party. The receiving party may only use the Confidential Information to perform its obligations under this Agreement and may not use or disclose any Confidential Information received as a result of this Agreement without the written permission of the disclosing party. The Contractor must assume that all State information, documents, data, source codes, software, models, know-how, trade secrets, or other material when, by its very nature, it deals with matters that, if generally known, would be damaging to the best interest of the public, other parties, or individuals or organizations about whom the State keeps information is Confidential Information. In addition, the receiving party may not use or disclose any documents or records that Ohio law prohibits from disclosure.

The receiving party’s obligation to maintain the confidentiality of the Confidential Information will not apply where the information:

1. Was already in the receiving party’s possession without the obligation of confidence;

2. Is independently developed by the receiving party with documentary evidence to support the independent development;

3. Is or becomes publicly available without breach of this Agreement, except as provided in the next full paragraph;

4. Is rightfully received by the receiving party from a third party without an obligation of confidence;

5. Is disclosed by the receiving party with the written consent of the disclosing party; or

6. Is released in accordance with a valid order of a court or governmental agency, provided that the receiving party:

a. Notifies the disclosing party of such order immediately upon receipt of the order; and

b. Makes a reasonable effort to assist the disclosing party in obtaining a protective order, if requested, from the issuing court or agency limiting disclosure and use of the Confidential Information to the portion of the Confidential Information needed to satisfy the original order of production and solely for the purposes intended to be serviced by the order.

Although some sensitive personal information, such as medical records, addresses, telephone numbers, and social security numbers, may be publicly available through other sources, the receiving party must not disclose or use such information in any manner except as expressly authorized in this Agreement. In such instances, item 3 above does not apply, and the receiving party must treat such sensitive personal information as Confidential Information, whether it is available elsewhere or not. The receiving party must restrict circulation of Confidential Information within its organization and then only to people in the receiving party’s organization who have a need to know the Confidential Information to perform under this Agreement.

The receiving party must return all Confidential Information provided by the disclosing party, or if return of the Confidential Information is not possible, destroy the Confidential Information upon termination or expiration of this Agreement. Upon request, the Contractor must provide certification or written confirmation to the State of such return or destruction of the Confidential Information.

Notwithstanding the foregoing, the receiving party may keep a copy of the Confidential Information to comply with contractual, legal, or record-keeping obligations, and any such retained Confidential Information is subject to the requirements of this Agreement for so long as the receiving party has the Confidential Information in its possession.

The receiving party will not incorporate any portion of any Confidential Information into any work or product, other than a Deliverable, and will have no proprietary interest in any of the Confidential Information.

The receiving party will be liable for the disclosure of any Confidential Information not specifically authorized by this Agreement. The parties agree that the disclosure of Confidential Information may cause the disclosing party irreparable damage for which remedies other than injunctive relief may be inadequate, and the receiving party agrees that in the event of a breach of the receiving party’s obligations hereunder, the disclosing party will be entitled to temporary and permanent injunctive relief to enforce this provision without the necessity of proving actual damages. This provision will not, however, diminish or alter any right to claim and recover damages.

This Agreement, including all terms and conditions, pricing, and attachments or exhibits, is not Confidential Information.

B. PUBLIC RECORDS AND RETENTION OF DOCUMENTS AND INFORMATION. The Contractor acknowledges, in accordance with Section 149.43 of the Ohio Revised Code, that this Agreement, as well as any information, Deliverables, records, reports, and financial records related to this

Agreement are presumptively deemed public records. The Contractor understands that these records will be made freely available to the public unless the State determines that, pursuant to state or federal law, such materials are confidential or otherwise exempt from disclosure. The Contractor must comply with any direction from the State to preserve and/or provide documents and information, in both electronic and paper form, and to suspend any scheduled destruction of such documents and information. Should the Contractor receive a public records request or subpoena with respect to any State Data, the Contractor must immediately notify the State and fully cooperate with the State’s directions regarding such request.

C. RESERVED.

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STATE OF OHIO

DEPARTMENT OF CHILDREN AND YOUTH

ADDENDUM TO MASTER SERVICES AGREEMENT

DCY-C-2627-0083

SIGNATURE PAGE

Any person executing this Addendum in a representative capacity hereby warrants that he/she has been duly authorized by his/her principal to execute this Addendum on such principal’s behalf.

IN WITNESS WHEREOF, the parties have executed this Addendum as of the day and year last written below.

STATE OF OHIO CONTRACTOR:

Department of Children and Youth Gearset Limited

Kara B Wente, Director Authorized Signature (Blue ink, please)

Date Printed Name

Title

Date

EXHIBIT 1

Master Services Agreement

TERMS AND CONDITIONS:

1 Definitions and Interpretation

1.1 In this Agreement (except where the context otherwise requires) the following words and phrases shall have the following meanings:

“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity; for purposes of this definition, “control” means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity or the ability to control the subject entity through the appointment or removal of directors or trustees of the subject entity;

“Authorised User” means those employees, agents, Affiliates, employees of Affiliates and independent contractors of the Customer who are authorised by the Customer to access and use the Services and Documentation under a Subscription;

“Claim” means any judicial, administrative, or arbitral act, suit, claim, investigation or proceeding;

“Confidential Information” means any commercial, technical, financial or other information (of whatever nature and in whatever form) disclosed (whether directly or indirectly) by one party to the other, or which relates to a party and is discovered or otherwise obtained by the other party, which is designated by the Disclosing Party as Confidential Information or which, due to its nature or the nature of its disclosure, ought reasonably be considered to be confidential. Confidential Information shall not include any information (a) which the Receiving Party can demonstrate was known to the Receiving Party prior to the date of disclosure by the Disclosing Party without any obligation of confidence; or (b) which is public knowledge, or becomes public knowledge in the future, other than by breach of this Agreement by the Receiving Party; or (c) which is lawfully disclosed to the Receiving Party by a third party which does not owe any duty of confidence to the Disclosing Party or to any third party in respect of such information; or (d) which is independently developed by the Receiving Party without use of or reference to the Confidential Information. The Software, the source code of the Software, the Documentation, any information provided in relation to the Subscription (including pricing) and the Services, and the results of any performance tests of the Services shall constitute Gearset’s Confidential Information; and Customer Data shall constitute the Customer’s Confidential Information;

“Customer” means, whether the Subscription is obtained directly from Gearset or through a Reseller, (a) where an individual purchases a Subscription for business use, that individual’s employer or the company on whose behalf the Subscription is purchased (and Gearset will assume that such individual has the authority to purchase on behalf of their employer or such company); or (b) where an entity or organisation purchases a Subscription for use by its employees, agents, Affiliates, employees of Affiliates and independent contractors, that entity or organisation (and such entity or organisation shall be responsible for all use by its Authorised Users of the Subscription);

“Customer Data” means the electronic data and information (including any login credentials) input into the Software by or for the Customer whether directly or through any Integrated Third- Party Services, and any modifications to that data and information generated for Customer through Customer’s use of the Services;

“Disclosing Party” means the party disclosing Confidential Information, on whose behalf the

Confidential Information is disclosed, or to whom the Confidential Information relates;

“Documentation” means the documentation made available to Customer by Gearset from time to time (including, but not exclusively, via the Gearset Website), which sets out a description of the Services and the user instructions for the Services;

“Effective Date” means the date on which the Customer first used or uses the Services (including during any Evaluation Period), or the Activation Date stated on the applicable Order Form, whichever is earlier;

“Evaluation Period” has the meaning given to it in clause 2.1;

“Free Version” means any Subscription for, access to or enjoyment of the Services, for which no Subscription Fee is payable by the Customer, except during the Evaluation Period;

“Gearset” means Gearset Limited, a company registered in England with company number 10345423 and whose registered office is at 26 Science Park Milton Road, Cambridge, England, CB4 0FP;

“Gearset Website” means Gearset’s website at www.gearset.com, or such other domain name as Gearset shall use from time to time to display its primary website;

“Indemnitee” means the party receiving the benefit of an indemnity under this Agreement from the other party;

“Indemnitor” means the party providing an indemnity under this Agreement to the other party;

“Integrated Third-Party Services” means any of Customer’s third-party services (such as Salesforce and any source control or issue tracking services) integrated by Customer into the Software;

“Intellectual Property Rights” means patents, registered designs, registered trade and service marks, registered copyright and modifications to and applications for any of the foregoing and the right to apply for protection for such registered rights anywhere in the world and inventions, discoveries, copyright, database rights, unregistered trade or service marks, brand names or know-how and any similar or equivalent rights whether capable of registration or not arising, applied for or granted under the laws of any country;

“Order Form” means an ordering document, invoice, or online order issued by Gearset specifying the Services subscribed for by Customer, which is agreed between Customer and Gearset, including any addenda and supplements thereto;

“Pilots” means certain features, functionality, technology or software products made available to Customer by Gearset which (i) are not yet made generally available to its customers except as part of a pilot program; and(ii) which are designated as a pilot, beta, preview or under a similar description, and includes any Documentation and Support Services in relation thereto;

“Personal Data” means any information relating to an identified or identifiable natural person;

“Receiving Party” means the party receiving or otherwise obtaining (or whose Representatives receive or otherwise obtain) Confidential Information relating to the other party;

“Renewal” means a renewal of the Subscription for the same duration as the Initial Subscription Period (the Renewal Period) at the end of the Initial Subscription Period and any subsequent Renewal Period;

http://www.gearset.com/

“Representatives” in respect of each party means their officers, agents, employees, executives, attorneys, accountants, Affiliates, sub-contractors, and auditors;

“Reseller” means any third party who purchases Subscriptions from Gearset to sell on to Customer, as may be authorised by Gearset from time to time;

“Services” means access to and use of the Software, the Support Services, and any other services provided by Gearset (including any Pilots or Free Version), as subscribed for or otherwise used by Customer in accordance with the terms of this Agreement, as more particularly described in the Documentation;

“Software” means the online software-as-a-service solution(s) provided by Gearset, including any updates, upgrades and patches released for them by Gearset;

“Subscription” means a subscription for Services as subscribed for by Customer (whether directly or through a Reseller) in accordance with the terms of this Agreement;

“Subscription Fee” means the fee payable by the Customer under this Agreement (excluding VAT and all other relevant taxes), as detailed by Gearset or Reseller (as the case may be) from time to time including through their respective websites, calculated in accordance with the duration of the Subscription Period, the Services subscribed for, and number of User Licences;

“Subscription Period” means the period of time for which a Subscription is valid, determined by the number of months/years selected by the Customer when purchasing the Subscription (the “Initial Subscription Period”), and as may be extended by any Renewal agreed by Customer;

“Subscription Start Date” means the date the Customer purchases a Subscription or the start date of the Subscription specified in the applicable Order Form, if different;

“Support Services” means the support services provided by Gearset, as set out from time to time on the Gearset Website;

“Third-Party Components” means components owned by third parties which are used in the Services;

“User Data” means data and information relating to Authorised Users obtained by Gearset through the Services , e.g. name, address, IP address, and other contact information provided by or for Authorised Users when creating a Gearset account, and information relating to Authorised Users’ hardware and software such as browser type, domain names, access times, and referring website addresses;

“User Licence” means the licences of the type and quantity subscribed for by the Customer which entitle Authorised Users to access and use the Services and the Documentation pursuant to a Subscription;

“Virus” means anything or any device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices;

“Working Days” means Monday to Friday, excluding bank and public holidays in England; and

“Working Hours” means 8am to 2am UK time on Working Days.

2 Evaluation Period

2.1 Free Trial. Customer is entitled to a 30-day free trial of the Subscription for the purposes of deciding whether or not the Services meet its requirements (“Evaluation Period”).

2.2 Access to Free Trial. During the Evaluation Period, Gearset grants to the Customer a non-exclusive, non- transferable right to permit the Authorised Users to access and use the Documentation and the Services during the Evaluation Period only in accordance with this…