Executed+Copy+Master+Contract.pdf

PROFESSIONAL LICENSING BOARD MANAGEMENT SYSTEM

TECHNOLOGY CONTRACT

1. PARTIES

The parties to this contract (Contract) are the state of North Dakota Office of Management and Budget, acting through its State Procurement Office (STATE), and Albertson Consulting, Inc., having its principal place of business at 21 Main Street South Ste 201 Minot, ND 58701

(CONTRACTOR);

2. COOPERATIVE PURCHASING

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

Participation in this open-ended contract is not mandated; therefore, the estimated volume of this contract is not known.

3. SCOPE OF WORK

CONTRACTOR, in exchange for the compensation paid by STATE under this Contract, shall provide a commercial off the shelf (COTS) board licensing software solution, website design, and maintenance and support; as described in section 3 of RFP #110.7-15-034.

4. COMPENSATION

a. Contractual Amount

STATE shall pay for the accepted services provided by CONTRACTOR under this Contract. The Contractual Amount shall be paid according the Compensation Details document attached as Exhibit A.

The Contractual Amount is firm for the duration of the 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 forty-five (45) calendar days after receipt of an approved invoice.

Payment of an invoice by STATE will not prejudice STATE's right to object to or question that or any other invoice or matter in relation thereto. CONTRACTOR'S invoice will be subject to reduction for amounts included in any invoice or payment made Which are determined by STATE 'not to constitute allowable costs, on the basis of audits conducted in accordance with the ternis of this Contract. At STATE's sole discretI011, all payments shall be subject to reduction for amounts equal to prior overpayments to CONTRACTOR

Fot any.amounts that are or will become due and payable to STATE by CONTRACTOR, STA TE reserves the nght to deduct the amount owed from payments that are or will become due and payable to CONTRACTOR under thts 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 by CONTRACTOR under this Contract

' g. Payment of Taxes by State STA TE 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: 45-0459847.

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

5. EQUIPMENt, MATERIALS, AND WORKSPACE-RESOURCES PROVlDEO BY PARTIES For periods during which the parties mutually agree that CONTRACTOR's assigned staff is on site:

I

a. On site means Bismarck, North Dakota

b. Equipment and software for on site Is to be provided by CONTRACTOR.

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 ST ATE systems.

6. TERM OF CONTRACT

This Contract begins on its effective date and ends on October 1, 2016

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

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

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c. Renewal Option STATE may renew this Contract upon satisfactory completion of the initial Contract term.

STA TE reserves the right to execute up to 4 options to renew this Contract under the same terms and conditions for a period of 12 months each.

d. Renegotiation Option In view of the fact that it is unknown how long the products and services will be employed by STATE and that STATE will require ongoing maintenance and support of the products for as long as the system is operational, therefore after completion of the initial term of the Contract including any extensions and renewals, STATE and CONTRACTOR may renegotiate the Contract upon mutual agreement of the parties.

7. TERMINATION

a. Termination by Mutual Agreement

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

b. Termination without Cause STA TE may terminate this Contract in whole or in part when it has determined that continuing the Contract is no longer necessary or would not produce beneficial results commensurate with the further expenditure of public funds.

c. Termination for Lack of Funding or Authority STATE, by written notice to CONTRACTOR, may terminate the whole or any part of this Contract under any of the following conditions:

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

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

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

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

d. Termination for Cause.

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

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

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

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

8. SUSPENSION FOR CONVENIENCE

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

9. FORCE MAJEURE

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

10. INJUNCTIVE RELIEF

CONTRACTOR shall immediately report to STATE any and all unauthorized disclosures or uses of STAl'E's Cqnfidential Information or Proprietary Information of which CONTRACTOR or its staff is aware or ha_s knowledge. CONTRACTOR acknowledges that any unauthorized publication or disclosure of STATE'S Confidential Information or Proprietary Information to others may cause immediate ~nd irreparable harm to STATE. If .CONTRACTOR should publish or disclose such Confidential Information or Proprietary Information witho1,.1t authorization, $TATE shall immediately be entitled to injunctive relief or any other remedies to which it is entitled under law or equity without requiring a cure penod 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 not1f1cat1on or disclosure of ST ATE's Confidential Information or Proprietary Information. As a condition to these indemnity obligations.

STATE wilt 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 aH reasonable respects with CONTRACTOR 1n connection with ahy such claim.

11. RIGHT OF SETOFF DAMAGES

Amounts du~ 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 CONlRACTOR pursuant to this Contract.

12. RrGHT TO WITHHOLD AMOUNTS OTHERWISE DUE IF THE CONTRACTOR IS IN BREACH If CONTRACTOR faifs to deliver Deliverables or to provide Services which satisfy CONTRACTOR's obligations under this Contract, STATE shall have the right to withhold any and all payments due under this Contract ST ATE may withhold any and all such payments due under this C,ontract to CONTRACTOR without penaJty or work stoppage by CONTRACTOR, until such failure to perform is cured.

13. RIGHT TO REMEDIES AND CUMULATION OF RIGHTS

No remedy conferred by any of the specific provisions of the 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-WAIV~R

Either party's failure to exercise any of its rights under the 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 m exercising any of its rights $hall constitute a waiver thereof. No waiver of any provision of the Contract shall be effective unless it is in writing and signed by the party against whom the waiver is sought to be enforced.

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15. INDEMNITY

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

16. INTELLECTUAL PROPERTY INFRINGEMENT INDEMNIFICATION

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

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

17. REPRESENTATIONS AND WARRANTIES

CONTRACTOR represents and warrants to ST ATE that neither CONTRACTOR, in connection with performing the services in performance of this Contract, nor the completed product delivered by CONTRACTOR, will infringe any patent, copyright, trademark, trade secret or other proprietary right of any person. CONTRACTOR further represents and warrants to STA TE that it will not use any trade secrets or confidential or proprietary information owned by any third party in perlorming the services related to this Contract or in delivery of the completed product unless CONTRACTOR has the authority to license, use or provide those trade secrets or confidential or proprietary information to STATE. CONTRACTOR further represents and warrants to STATE that neither CONTRACTOR nor any other company or individual performing services pursuant to this Contract is under any obligation to assign or give any work done under this Contract to any third party.

18. INSURANCE

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

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

b. Automobile liability, including Owned (if any), Hired, and Non-Owned automobiles, with minimum liability limits of $250,000 per person and $1 ,000,000 per occurrence

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

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

Professional errors and omissions with minimum limits of $1,000,000 per occurrence and in the aggregate, CONTRACTOR shall continuously maintain such coverage during the Contract period and for three (3) years thereafter In the event of a change or cancellatio,n of coverage, CONTRACTOR shall purchase an extended reporting period to meet the time periods required in this sei;tion.

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

a. Any deductible or self-insured retention amount or other similar obligation under the policies shall be the sole responsibility of the CONTRACTOR. The amount of any deductible or self retention is subject to approval by the State.

b. This in:jurance 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 AM Best Company, Inc., provided any excess policy follows form for coverage. Less than an ''A-" rating must be approved by the Stat.e The policies shall be in form and terms approved by the Stat~ ·

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

d. The state of North Dakota and its agencles, officers, and employees shall be endorsed on the commercial general liability policy, including any excess policies (to the extent applicable), as additional insured. The State shall have all the benefits, rights and coverages of an additional insured under these policies.

e. The insurance required in this agreement, through a policy or endorsement, shall inelude:

1) Waiver of Subrogation" waiving any right to recovery the insurance company rnay have against the State

2) A provision that the policy and endorsements may not be canceled or modified without thirty

(30) calendar days' pnor written notice to the undersigned State representative

3) A provision that any attorney who represents the State under this policy 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

4) A provision that CONTRACTOR's insurance coverage shall be primary (ie., pay first) as respects any insurance, self-insurance or self-retention maintained by the State and that any insurance, self-insurance or self-retention maintained by the State shall be in excess of CONTRACTOR's insurance and shall not contribute with it

5) Cross liability/severabihty of interest for all policies and endorsements

6) The legal defense provided to the State under the policy and any endorsements must be free of any conflicts of interest, even if retention of separate legal counsel for the State is necessary

7) The insolvency or bankruptcy of the insured CONTRACTOR shall not release the insurer from payment under the policy, even when such insolvency or bankruptcy prevents the insured CO.NTRACTOR from meeting the retention limit under the policy

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

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

19. SOFTWARE LICENSE

All ownership nghts 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.

20. LICENSE GRANT AND SCOPE OF USE

a. Licensing

1) CONTRACTOR grants to STATE a perpetual, nonexclusive license to use the software and associated documentation, plus any additional software which shall be added by mutual agreement of the parties during the term of this Contract.

2) The license usage model is based on a concurrent license.

3) The license grant shall be extended to any contractors, subcontractors, outsourcing vendors, consultants and others who have a need to use the software for the benefit of

STATE.

4) There shall be no limit on the number of machines, number of locations, or size of processors on which STATE can operate the software.

5) CONTRACTOR retains all rights pertaining to hosting, maintenance and resale of it's products.

6) If for any reason STATE does not pay agreed upon Annual Support fees STA TE forfeits access to CONTACTOR product and Services.

b. Software Functionality and Replacement This software licensed by CONTRACTOR to STATE provides the following functionality:

1) COTS System, with limited configuration to meet business needs

2) Easy to navigate, clean unified interface designed according to logical groupings

3) Manageable portal view for administrative community and Board Management office staff

4) Allows initial license application online

5) Allows online license renewals

6) Issues licenses

7) Allows renewals ahead of expiration

8) Payment processing with the use of credit or debit cards or ACH or money order

9) Updates occur in real-time for all aspects of the solution

10) Allows STATE staff to conduct much of the system administration and basic update functions

11) Custom forms should be editable by users of system and available in a format for printing from browser

12) Allows administrators to receive and process applications for licensure for all license classes through the state regulatory board website

13) Internal que management system that allows denial and/or approval after submitted

14) Allow adminrstrators to manage revenue collection with history

15) Multiple levels of access with security access per user type 16} Secure logins for all users

17) Allows demographic information changes

18) Disciplinary action and case management tracking and history

19) Single data repository for all information

20) Searchable fields, including name, license level, license number, date of expiration, date of issue, date of birth, social security number, city, state, etc., sortable and exportable

21) Saves search capabilities by fields including name, license level, license number, date of expiration, date of issue, date of birth, social security number, city, state, etc.

22) Tracks and stores every notification, letter, complaint, applicant license history, etc. to view, retrieve, resend or audit information

23) Allows online license verification

24) Allows licensee to print license cards

25) Ability for licensees to upload continuing education units (CEU) in formation

26) Capability to upload, organize and display scanned images in formats such as .pdf, .rtf, .jpeg, OCR and .tif for each hcensee

27) Secµrely stores documents for each registrant

28) Contains an integrated document management repository

29) Records transactional contact history

30) Cap;3bilities to store the history of email correspondence between each licensee and Board

31) Export capabilities

32) Online mail merge found data sets into letters, forms, etc

33) Information sharing with authorized users

34) Rec9rd sets must be allowed to be sto.red in a queuing system that allows users many options-print envelopes, mailing labels, mass update, and export to Office, print certifications or renewals, and the ability to merge the records mto ahy custom form in the system.

35) Print envelopes and mailing labels (barcode printing is not expected)

36) Notifications and alerts

37) Reminders at licensee level via email or text

38) Allows initial licensee applications to track application process online

Regarding the aforementioned software functionality licensed by CONTRACTOR to STATE, CONTRACTOR agrees that:

1) If CONTRACTOR reduces or replaces the functionality contained in the licensed product, and provides this functionality as a separate or renamed product, then STATE shall be entitled to license such software product at no additional license or maintenance fee.

2) If CONTRACTOR releases an option, future product or other release that has substantially the same functionality as the software product licensed to STATE, and it ceases to provide maintenance for the older software product, then ST ATE shall have the option to exchange licenses for such replacement product or function at no additional charge

c. Purchase of Additional Licenses STATE may purchase additional software licenses during the term of this Contract at the same price offered by CONTRACTOR under the terms of this Contract.

d. Delivery of Authorized Software Only CONTRACTOR shall not ship any software to STATE that SlATE Is not authorized to use.

e. Authorized Software Platform STATE may transfer the software, at no additional cost, to any hardware platform, software operating system or database that CONTRACTOR supports for the software.

f. Hosting ·. · Hosting Waiver required if STATE falls under N.D.C.C. § 54-59-22 which requires that ITD host all information technology systems unless a hosting exemption 1s granted. Hosting waiver must be approved by ITD and 0MB.

21 . PERSONNEL

a. STATE will designate a contract administrator for this Contract. If, during the course of the

Contract, it becomes necessary for STATE to change the person assigned, STATE will notify CONTRACTOR 1n writing, pursuant to Notice section of this Contract.

b. 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.

c. CONTRACTOR agrees and understands that STATE's execution of the Contract is predicated, in part and among other considerations, on the. utilization of the specific individuals and personnel qualifications as identified; primary being Zoe Spooner, Project Manager, 701-839- 7523 ext. 109. 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 the Contract.

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

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

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

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

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

e. 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 may approve alternate work schedules.

f. According to STATE policy, STATE personnel are only obligated to work a fortywhourworkweek, Monday through Friday, and are allowed reasonable vacation, sick and educational absences.

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

h. CONTRACTOR agrees that STATE may require contracted staff and subcontractors assigned by CONTRACTOR to perform work under this Contract to submit to a criminal history record check in accordance with N.D.C.C. § 54-59-20 and §12-60-24. STATE shall have the rfght to reject any individual assigned to perform work under this Contract if, in its sole discretion, it determines that the results of the criminal history record check make the individual unacceptable.

22. PROJECT MANAGEMENT

a. Reporting

CONTRACTOR's Project Manager shall deliver to STATE'S designated contact weekly 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.

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

1) A change request must be in writing to document the potential change The contract for the proposed change must be submitted to CONTRACTOR and STATE'S contract managers who wilt in turn provide it to relevant parties for assessment.

2) All change requests will be logged and tracked.

3) The 'change will be reviewed and, if acceptable to STATE, CONTRACTOR wfll submit to

STATE an estimate of the impact to cost, schedule, scope, and quality.

4) CONTRACTOR will continue performing the services in accordance with the original

Contract unless otherwise agreed upon by STATE'S contract manager. Work shall not commence on any new activities related fo the change request until all parties agree in Writing.

5) CONTRACTOR's project manager and STATE'S contract manager will adapt proJect plans to inc:;orporate approved changes

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

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

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

c. Deliverable Acceptance

1) Unless otherwise noted in this Contract or agreed upon in writing by both parties.

acceptance testing will be performed on-site, on STATE'S platform.

2) Prior to acceptance testing, CONTRACTOR wlll furnish STATE with documentation of the deliverable item, the expected performance, and agreed upon acceptance criteria.

3) Upon completion of a deliverable or sup-dellverable. STATE will have five (5) working days in which to accept or reject ,tin writing. STATE will accept by signature. If STATE reJects it, STATE will specify in writing its grounds for rejection and CONTRACTOR shall use its best efforts to revise any issues for the deliverables to be acceptable to STATE within the following five (5) working days. If STATE rejects it a second time, STATE will have the option of repeating the procedur~ as described in this acceptance statement above or terminating this Contract upon written notice to CONTRACTOR.

d. Final Acceptance

1) The successful completIon of all deliverables as stated in the Scope of Work in accordance with the deliverable acceptance process AND The final delivered product fully implemented in STATf'S live production environment AND

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

23. PRODUCT CONFORMITY

STATE has twelve (12) months following Final Acceptance of the product(s) delivered by CONTRACTOR pursuant to this Contract to verify t hat 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.

24. SOFTWARE MAINTENANCE

CONTRACTOR shall provide, and STATE may subscribe to, Maintenance Services, including software/hardware updates and technical support services as defined in Exhibit A, for the product(s) delivered pursuant to this Contract commencing at the end of the warranty period. CONTRACTOR and STATE shall negotiate the terms and price of such Maintenance Services. CONTRACTOR warrants that it will continue to offer Maintenance Services for the product(s) for a minimum of four

(4) years from the date of final acceptance or installatlon date of any software/product update.

a. Maintenance Fee Cap CONTRACTOR agrees that any change to the annual Maintenance Services fee may increase by not more than the Consumer Price Index (CPI). The rates shall be adjusted in accordance with the CPI titled "All Urban Consumers for the U.S. All Items, 1982-84=100".

b. Right to Change Support Plan Level STATE may choose to change its subscription to CONTRACTOR's Maintenance 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.

c. Right to Modify or Cancel Support

1) STATE may choose to cancel Maintenance Services at the Contract's next renewal date upon thirty (30) calendar days' notice to CONTRACTOR.

2) STATE may delete a subset of licenses that are no longer in use from Maintenance

Services at the Contract's next renewal date upon thirty (30) calendar days' notice to

CONTRACTOR,

3) STATE may resume Maintenance Services for lapsed periods by paying CONTRACTOR an amount no greater than the amount that would have been due if maintenance services had been continued over the lapsed period. Upon payment of such amounts for lapsed periods, CONTRACTOR agrees to provide STATE with the right to any upgrades released during that period.

25. SOFTWARE SUPPORT - SERVICE LEVEL REQUIREMENT

CONTRACTOR will respond to STATE requests for software support services regarding the licensed software in accordance with the procedures identified below. In each case, STATE may describe and submit the problem by telephone, facsimile or electronic mail.

· Resp'onse'' · Resolution· Incident Severitv Tim~ tihie Escalatiom,l?-rocedure

CONTRACTOR to make its best effort to seek a

Final suitable resolution for customer issue. Email

High Impact - Resolution support issue to Support@ebigpicture.com, A software unusable 1 hour within:

phone call should be made to assigned customer

4 hours support agent during business hours to establish status. Afterhours support please contact system Administrator 701-260-7777

Final CONTRACTOR to make its best effort to seek a Medium Impact -

Resolution suitable resolution for customer issue. Email software useable with within:

support issue to Support@ebigpicture.com, A severely restricted 4 hours 8 hours phone call should be made to assigned customer functionality or

(1 business support agent during business hours to establish performance day) status. Afterhours support please contact system Administrator 701-260-7777

' Final CONTRACTOR to make its best effort to seek a Low Impact-

Resolution suitable resolution for customer tssue .. Email software useable with within: support issue to Support@ebigpicture.com, A minor impact on 8 hours 40 hours phone call should be made to assigned customer functionality or

(1 business support agent during business hours to establish performance week) status. Afterhours support please contact system

; Administrator 701-260-7777

CONTRACTOR'S failure to meet the above defined Response Times or Resolution Times in any given month during the term and any renewal term shall be deemed a service level default ("Service .Level Default") and STATE may obtain the non-exclusive remedies set forth below.

, ,. : ,. •· , · _Response"a)fc,t~~~tilg(io~•·~lervjc~(l;evels '. ?,-', ,,t ·.- ~0>· -:/• / :·"i'· erv1¢~{ Ltxe r~ili~• ., ·· ~,: · .

· . calculat~d.monthl ·,0,n a_ 'dncident;basis :·\. :·:tt\ __ .. ·.\ .. Pror~t~.Fees_;,,.Jv'lopthi ,?"

1st Failure to meet Res onse or Resolution Time Warnin , 0% 2nd Failure to meet Res onse or Resolution Time 10% 3rd Failure to meet Res onse or Resolution Time 20%

In the event STATE is eligible for a 20% Service Level Credit under this section for any two {2) consecutive months of the term, ST ATE may terminate this Contract without penalty upon written notice to CONTRACTOR .

Credits shall be applied against the next invoice, In the event a Service Level Default occurs after a party has given notice of termination, or STATE has made final payment to CONTRACTOR for the software support services and no further invoices shall issue as a result, CONTRACTOR shall refund to STATE the amount of the appropriate Service Level Credit due for the period of default

26. SOFTWARE AUDIT

CONTRACTOR may, upon sixty (60) calendar days' notice to STATE, but not more frequently than once per year, either request a signed certification by an officer of STATE verifying that the software 1s being used in accordance with the terms of this Contract or audit STATE's use of the software to ensure compliance with the terms and conditions of this Contract. Any such audit shall be conducted at CONTRACTOR's expense during regular business hours at STATE's offices and shall not unreasonably interfere with STA TE's business activities. CONTRACTOR shall provide documentation to STATE defining the scope of the audit not less than thirty (30) calendar days prior to the audit. STATE shall have sixty (60) calendar days to review CONTRACTOR's audit findings If an audit reveals that STATE's use of the Software exceeds the use permitted hereunder, then CONTRACTOR may invoice STATE for the applicable additiona.1 amounts based on the price agreement between the parties as of the date of completion of the audit

27. HOSTING SERVICES

a. Service Level

CONTRACTOR's failure to make the hosting services available at least 99% of the time in any given month during the term and any renewal term, excluding scheduled maintenance, shall be deemed a service level default ("Service Level Default") and STATE may obtain the non-exclusive remedies set forth below. For purposes of this Contract, "Availablen means that STATE users are able to access all features and functions of the licensed product and services including, but not limited to the licensed software and licensed content.

service :l!eiteterecut ~ ._ .1"':•' • ~~~ ;.f""" 'Jfh"'.'•· '.•. : :

Servic~ Level ™.~tAfii

(Pro~'{f,_es.;;.

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Above 99% 0 98.99-97% 10% 96.99-95% 25% 94.99-93% 50% Below93% 100%

In the event STATE is eligible for a 100% Service Level Credit under this section during any given month of the term, or is eligible for a Service Level Credit greater than 10% in any two

(2) months, during any rolling twelve (12) month period, STATE may terminate this Contract without penalty upon written notice to CONTRACTOR.

Credits shall be applied against the next invoice. In the event a Service Level Default occurs after a party has given notice of termination, or STATE has made final payment to CONTRACTOR for the software support services and no further invoices shall issue as a result, CONTRACTOR shall refund to STATE the amount of the appropriate Service Level Credit due for the period of default.

Once each calendar month dunng the term of this Contract, CONTRACTOR shall provide ST A TE with a written report comparing the actual performance of licensed product and services with the Service Level Requirement. Such report shall also contain such other information with respect to the performance of the licensed product and services as mutually agreed upon by the parties from time to time, and in conformity w ith reporting CONTRACTOR provides to its other customers utilizing the licensed product and services.

b. Scheduled Maintenance and Notifications

1) Standard Maintenance Windows

Typical maintenance will occur after business hours when client and user impact is low.

Notification of Scheduled Maintenance Downtime CONTRACTOR shall notify STATE, in writing, 24 hours prior, of any schedule maintenance downtime which will cause the total scheduled maintenance downtime for the month to exceed 4 hours, or will occur outside of the Standard Maintenance Windows outlined above. Except in cases of emergency, notification will be provided at least 2 hours prior to such downtime. In cases of emergency, CONTRACTOR shall use its best efforts to notify STATE of a planned downtime as soon as practicable.

c. Hosting Service Exit Plan CONTRACTOR and STATE shall develop an Exit Plan ("Exit Plan") detailing each party's respective tasks 1n connection with the orderly transfer of STATE's data back to STATE upon termination of this Contract. CONTRACTOR agrees that there shall be no additional fees to execute the Exit Plan. STATE agrees to take delivery of transferred STATE data no later than sixty (60) calendar days following termination of this Contract.

The Exit Plan must include

2) The format and delivery method mutually agreed upon by CONTRACTOR and STATE to transfer ST A TE data securely

3) The deletion criteria of STATE data from CONTRACTOR's location as determined by

STATE

28. NOTICE

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

Rebecca Pollert ··- Name Daniel Albertson Procurement Officer II Title CEO 600 E Boulevard Ave De t 012 Address 21 Main Str. S Bismarck, ND 58505-0310

Notice provided under this prov1s1on does not meet the notice requirements for monetary claims against STATE found at N.D.C.C § 32--12.2.-04.

29. CONFIDENTIALITY

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

30. COMPLIANCE WITH PUBLIC RECORDS LAWS

CONTRACTOR understands that, except for disclosures prohibited in this Contract, STATE must disclose to the public upon request any records it receives from CONTRACTOR.

CONTRACTOR further understands that any records obtained or generated by CONTRACTOR under this Contract, except for records that are confidential under this Contract, may, under certain circumstances, be open to the public upon request under the North Dakota public records law. CONTRACTOR agrees to contact ST A TE immediately upon receiving a request for information under the public records law and to comply with STATE's instructions on how to respond to the request

31. 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 m the manner and means of carrying out CONTRACTOR's activities and responsibilities under this Contract, except to the extent specified in this Contract.

32. ASSIGNMENT AND SUBCONTRACTS

CONTRACTOR may not assign or otheiwise transfer or delegate any right or duty without STATE's express written consent. CONTRACTOR may, however, enter into subcontracts provided that any subcontract acknowledges the binding nature of this Contract and incorporates this Contract, including any attachments. CONTRACTOR is solely responsible for the performance of any subcontractor. CONTRACTOR does not have the authority to Contract for or incur obligations on behalf of STATE.

33. SPOLIATION - NOTICE OF POTENTIAL CLAIMS

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

34. 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. Any amendments to Request for Proposal ("RFP") number 110. 7-15-034 dated May 11, 2015;

c. STATE's Request for Proposal ("RFP") number 110.7-15-034, dated May 11, 2015;

d. CONTRACTOR's proposal dated June 4, 2015 in response to RFP number 110.7-15-034.

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

35. 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 STATE until all parties agree in writing.

36. 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 the Contract did not contain that term.

37. 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 brought and solely litigated in the 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.

38. ALTERNATIVE DISPUTE RESOLUTION - JURY TRIAL

STATE does not agree to any form of binding arbitration, mediation, or other forms of mandatory alternative dispute resolution. The parties have the right to enforce their rights and remedies in judicial proceedings. STATE does not waive any right to a Jury trial.

39. ATTORNEY FEES AND COSTS

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

40. NONDISCRIMINATION AND COMPLIANCE WITH LAWS

CONTRACTOR agrees to comply with all applicable laws. rules, regulations and policies, including those relating to nondiscrimination, accessibility and civil nghts CONTRACTOR agrees to timely file all required reports. make required payroll deductions, and timely pay all taxes and premiums owed, including sales and use taxes and unemployment compensation and workers' compensation premiums. CONTRACTOR shall have and keep current at all t imes during the term of this Contract all licenses and permits required by law

41. STATE ~UDIT

All records, regardless of physical form, and the accounting practices and procedures of CONTRACTOR relevant to this Contract are subJect to examination by the North Dakota State Auditor, the Auditor's designee, or Federal auditors.