Amendment+1+-+2022+signed+agreement.pdf

Foundant Technologies Subscription Contract for:

North Dakota Council on the Arts

Date: September 20, 2022

Expires in 90 Days

Foundant Technologies, Inc. Client Order Form v042022 Page 1 of 5

Greetings!

On the next page you will find the quote for your Foundant license renewal. It is our sincere hope that your relationship and investment with Foundant has exceeded expectations. We take your success seriously and would ask if you have any suggestions or comments, to please let us know.

In an effort to save you time and paper, you have the option to sign electronically. Instructions for both electronic signature and for printing are located below.

Directions for signing your Quote below:

To Change Signees:

Should you need to change signees, Choose “Other Actions” and Assign to Someone Else.

Sign Electronically:

1. Click the Review Document button above

2. Click the yellow Continue button in the upper right corner

3. If the quote is correct and you’re ready to approve, click the Sign button on page 3, select a signature, and sign the document

4. When your electronic signature shows up, click Finish

5. You will automatically receive a copy of this signed document via email

Print, Sign, And Send:

1. Click the Review Document button above

2. Click the yellow Continue button in the upper right corner

3. If the quote is correct and you’re ready to approve, click Other Actions in the upper right corner

4. Follow steps 1-3 under “Other Actions” to download, print, upload and email it back to us

5. You may also email your signed quote to stephanie.johnson@foundant.com

After we receive your signed quote, we will send an invoice to the billing contact within 7 to 10 business days.

I would also like to let you know about a couple of new opportunities available: Standard+2 Features and New

Administrator Training:

1. The Standard+2 License was created to offer those clients who are happy with their Standard GLM

License, but could use just a little boost… without having to jump up to Advanced. This option lets you choose only the capabilities most useful for your organization, at a price you can afford.

2. Onboarding a new team member? Take advantage of our New Administrator Training to get them ramped up with GLM fast!

Please feel free to reach out to me with any questions about these options, or you can copy/paste this link into your browser and find more information: https://resources.foundant.com/boost-your-foundant-solution

If you have any questions or concerns about the renewal process, please feel free to contact me.

Best regards, Stephanie Johnson

DocuSign Envelope ID: 92774686-98DC-48F7-A1DE-F00F4D04D931

Foundant Technologies, Inc. Client Order Form v042022 Page 2 of 5

Foundant Technologies, Inc. Contact:

Stephanie Johnson stephanie.johnson@foundant.com 143 Willow Peak Drive Bozeman, MT 59718

(406) 922-5303

North Dakota Council on the Arts Contact:

105 North 4th Street Bismarck, ND 58501

Software and Services Chart (“Software and Services Chart”):

SKU & Qty. Product Description Subscription

Term

Price

(“Price”) Cost (USD)

GLM2ADV

Grant Lifecycle Manager (GLM) - Advanced

Two-Year Licensed Subscription

Includes Unlimited GLM Grant Processes, hosting, maintenance and support with no limitations on the number of users or incoming requests.

10/27/22 -

10/26/24 $15,200.00 $15,200.00

Total: $15,200.00

Foundant Technologies, Inc. Client Order Form v042022 Page 3 of 5

Client Order Form for Grant Lifecycle Manager (“GLM”) and Scholarship Lifecycle Manager (“SLM”)

1. Foundant Technologies, Inc.’s Platform access and Services are provided in accordance with the terms and conditions listed in this Client Order Form (“Client Order Form”) as well as those set forth in the following, which are incorporated by reference, and collectively with any Statements of Work (“SOW”) represent the Agreement (the “Agreement”) between North Dakota Council on the Arts, 105 North 4th Street, Bismarck, ND (the “Client”), and Foundant Technologies, Inc., a Montana company located at 143 Willow Peak Drive, Bozeman, MT 59718 (“Foundant Technologies”):

a. Technology Contract - as amended by the Parties is attached hereto as Exhibit A

b. Data Processing Agreement (“DPA”) – is attached hereto as Exhibit B

c. Service Level Agreement (“SLA”) – is attached hereto as Exhibit C

d. Professional Services Agreement (“PSA”) – is attached hereto as Exhibit D

2. All quoted prices are in U.S. dollars. All payments shall be in U.S. dollars and are due net thirty (30) days from the invoice date.

3. This Client Order Form is valid for ninety (90) days after issuance and shall become binding upon execution by Client and Foundant Technologies.

4. A five percent (5%) discount will be applied to Client purchases of access to two (2) SAAS subscriptions for Service Provider Software and a ten percent (10%) discount will be applied to Client purchases of access to three (3) or more SAAS subscriptions for Service Provider Software.

5. The term of the Agreement (the “Term”) begins on the later date signed by both Parties below (the “Effective Date”).

6. The Subscription Term(s) (“Subscription Term”) for the Software commences on the initial date shown for each Subscription Term shown in the Software and Services Chart.

7. The Software identified in this Client Order Form requires Client to pay the Fees in full and in advance. All Platform access rights include maintenance and support with no limitations on the number of users.

8. Unless otherwise specified in the SOW, the Fees for Professional Services are fixed and will be invoiced upon execution of this Client Order Form. Travel expenses associated with Professional Services will be invoiced monthly, if incurred.

All Professional Services shall expire at the end of the Subscription Term and must be initiated within the first twelve (12) months of the Effective Date of this Client Order Form.

9. Fees do not take into account any sales tax. Foundant Technologies collects and remits sales tax from our Clients located in certain state and local jurisdictions. Foundant Technologies determines your local taxing jurisdiction based upon shipping address (i.e., the primary business location from which the Platform is accessed). In order to determine if you are exempt from sales tax, you must provide proof of your organization's state sales tax exemption. Please note that states do not recognize your 501(c)3 letter as proof of exemption.

Foundant Technologies, Inc. Client Order Form v042022 Page 4 of 5

10. Should Foundant Technologies’ Prices increase prior to your renewal date, we commit that your next renewal will be no more than a ten percent (10%) increase over your most current Price.

11. All GLM and SLM subscriptions include hosting, maintenance, and support with no limitations on the number of users.

12. GuideStar by Candid is licensed for up to one thousand (1,000) total lookups per Software subscription (as applicable) over the subscription term based on the items purchased via this Client Order Form.

13. Unless otherwise noted, client activity level is expected to be less than five thousand (5,000) online form submissions through GLM and/or SLM per week (as applicable). Any deviation from this expectation should be communicated by Client to Foundant Technologies at least thirty (30) days prior to the initiation of such activity and Foundant Technologies reserves the right to limit access to GLM and/or SLM (as applicable) if adequate notice is not provided.

14. Capitalized terms used but not defined herein have the meaning given in the Agreement.

15. If there are special conditions documented below, the order of precedence in the MSA shall apply.

Special Conditions:

The payment schedule is as follows:

a. The first invoice in the amount of $7,600 will be sent to the Client after the execution of the Agreement and Client Order

Form.

b. The second invoice in the amount of $7,600 will be sent to the Client on 9/26/23.

c. Both invoices are due net thirty (30) days from the invoice date.

Foundant Technologies, Inc. Client Order Form v042022 Page 5 of 5

By accepting this Client Order Form that references Exhibit A, the DPA, SLA, PSA, and SOW(s), Client agrees to the terms and conditions of this collective Agreement. Any additional or different terms (whether included in your purchase order, your response to this proposal, or elsewhere) not expressly listed herein, shall be disregarded and shall not bind either Party.

Additionally, if you are entering into this Agreement on behalf of a Client or other legal entity, you warrant that: (i) you have the full legal authority to bind such entity and its Affiliates to these terms and conditions, and in the event such Affiliates exist, the term “Client” shall refer to such entity and its Affiliates; (ii) you have read and understand this Agreement; and, (iii) you agree, on behalf of Client, to this Agreement. If you do not have such legal authority, or if you do not agree with these terms and conditions, you must not accept this Agreement and shall not be permitted to use the Software or Services.

State of North Dakota

Acting through its Council on the Arts

Foundant Technologies, Inc.

By: dl.signhere.1

By: dl.signhere.2

Name: dl.fullname.1

Name: dl.fullname.2

Title: dl.title.1

Title: dl.title.2

Date: dl.datesign.1

Date: dl.datesign.2

Contact to receive invoice:

Billing Contact Full Name DS Billing Contact Email

Billing Contact(s) Name Billing Contact(s) Email

Is a Purchase Order required? (Check for Yes) NeedsPO

Kim Konikwo

12/16/2022 kkonikow@nd.govKim Konikow

Executive Director

Chris Dahl

President

Grants Management Solution

Exhibit A

TECHNOLOGY CONTRACT

North Dakota Council on the Arts - Grants Management Solution

1. PARTIES

The parties to this contract (”Agreement”) are the state of North Dakota, acting through its Council on the Arts (STATE), and Foundant Technologies, Inc., a Montana company having its principal place of business at 143 Willow Peak Dr., Bozeman, MT 59718 (CONTRACTOR).

2. DEFINITIONS

a) Client Data means the electronic data and information that is: (a) input into the Software by or on behalf of STATE; or, (b) provided by a User in connection with the use of the Software and may include, but is not limited to, names and email addresses.

b) Client Order Form – means a document provided by CONTRACTOR and signed by STATE detailing the SaaS and services provided by CONTRACTOR.

c) Content means content, data, and information that is owned or licensed by Service Provider or any of its licensors that is provided or made available by Service Provider through use of the Software or as part of or in connection with Service Provider’s provision of Services. Content does not include Client Data.

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

e) Data - means any information provided to, or collected, generated, stored, or processed by the Software. Data includes user identification information and metadata which may contain Data or from which the STATE

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

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

h) Personally Identifiable Information (PII) - information about an individual maintained by an agency, including that en name, or biometric records; or (2) is linked or linkable to an individual, such as medical, educational, financial, and employment information.

i) Professional Services – means the migration, training, implementation, integration, and configuration services to be performed by CONTRACTOR as listed in the Client Order Form.

j) Prohibited Data – means any of the following: (i) “protected health information” or

“individually identifiable health information” as defined under 45 C.F.R. § 160.103 or similar state laws; (ii) any information deemed to be special categories of data as set forth in Article 9 of the EU General Data Protection Regulation or similar data protection laws or regulations; (iii) “nonpublic personal information” as defined under the Gramm-Leach-Bliley Act; and/or (iv) children’s personal information protected by the Children’s Online Privacy Protection Act.

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

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

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

n) Software – means CONTRACTOR’S proprietary software-as-a-service (“SaaS”) subscription(s) identified in the Software and Services Chart shown in the Client Order Form.

o) Usage Data means any content, data, or information that is collected or produced by the Software in an anonymized, aggregated format that is not identifiable to Client or a particular User, and may include, but is not limited to, usage patterns, traffic logs and user conduct associated with the Software.

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

Capitalized terms that are not listed in this Contract have the same meaning as provided elsewhere in the Agreement.

3. SCOPE OF WORK

1) CONTRACTOR, in exchange for the Contractual Amount paid by STATE under this Agreement, shall provide Software and services as stated in the Client Order Form. Subject to the terms and conditions of this Agreement, CONTRACTOR shall provide the Software and Services or enable the Software and Services to be provided to STATE and its Users.

2) Subject to the terms and conditions of this Agreement, CONTRACTOR hereby grants to STATE and Users, during the Order Term, a non-exclusive, non-sublicensable right to remotely access and use the Software for STATE’S internal business purposes in accordance with any documentation provided by CONTRACTOR (“Documentation”) and the terms and conditions of the Agreement. CONTRACTOR reserves all rights in and to the Software not expressly granted to STATE under this Agreement. STATE may use reports generated from the Software solely for STATE’S lawful internal purposes and in accordance with this Agreement.

3) STATE shall not: (a) reproduce, display, download, modify, rent, license, sell, assign, distribute, outsource, sublicense, share, transfer, lease, create derivative works of, or distribute the Software; (b) attempt to reverse engineer, decompile, disassemble, de-encrypt, access, or the like, the source code for the Software or any component thereof; (c) use the Software, or any component thereof, in the operation of a service bureau or to support or process any content, data, or information of any party other than STATE; (d) permit any party, other than the then-currently authorized Users to independently access the Software; (e) interfere with or disrupt the integrity or performance of the Software or the data contained therein; (f) attempt to gain unauthorized access to the Software or its related systems or networks; (g) access or use the Software to build or support, directly or indirectly, products, or services competitive to the CONTRACTOR; (h) provide or make available Prohibited Data to CONTRACTOR; or, (i) use the Software or Services to collect or otherwise process Prohibited Data.

4) Under the rights granted to STATE under this Agreement, STATE may permit independent contractors and employees of its affiliates to become Users in order to access and use the Software in accordance with this Agreement; provided that STATE will be liable for the acts and omissions of all contractors, affiliates and Users to the extent any of such acts or omissions, if performed by STATE, would constitute a breach of, or otherwise give rise to liability to STATE under, this Agreement. STATE shall not, and shall not permit any User to, use the Software or Documentation except as expressly permitted under this Agreement. STATE shall be fully responsible for Users’ compliance with this Agreement.

4. COMPENSATION

a. Contractual Amount

STATE shall pay for the accepted services provided by CONTRACTOR under this Agreement an amount not to exceed $15,200 (the “Contractual Amount”). The Contractual Amount shall be paid according to the Compensation Details document attached as Exhibit A and the Client Order Form.

The Contractual Amount is firm for the duration of this Agreement and constitutes the entire compensation due CONTRACTOR for performance of its obligations under this Agreement 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 Agreement.

CONTRACTOR offers a 90-day money-back guarantee on the cost of the software subscription from the date the subscription fee is paid by STATE, identified as payment milestone one in Exhibit B. Should the STATE be unsatisfied for any reason after the 90-day period, Foundant will provide a pro-rated refund for the remaining, unused portion of the software subscription fee.

b. Invoicing

The final cost set forth on each invoice shall be equivalent to the cost for Software and service as specified in the Client Order Form and Exhibit A.

c. 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 Agreement and CONTRACTOR shall not receive any additional compensation hereunder.

STATE shall make payment under this Agreement within thirty (30) calendar days after receipt of an approved invoice.

Payment any other invoice or matter in relation thereto. CONTRACTOR's invoice will be subject to reduction for amounts included in any invoice or payment made which are determined by STATE not to constitute allowable costs, on the basis of audits conducted in accordance with the terms of this Agreement.

for amounts equal to prior overpayments to CONTRACTOR.

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

STATE shall pay a finance charge on any overdue payment hereunder of one and one-half percent (1.5%) for each month or portion thereof that such payment is overdue, or the highest interest rate permitted by applicable law, whichever is the lower. Interest shall compound monthly.

d. Travel

CONTRACTOR acknowledges travel expenses, if applicable, are covered by the Contractual Amount and shall not invoice STATE for travel expenses. If there are travel expenses in the future related to additional SaaS or Professional Services being purchased by the STATE, a future Client Order Form will list the applicable fees and travel expenses if any.

e. Prepayment

STATE will not make any advance payments before performance by CONTRACTOR under this Agreement.

f. Payment of Taxes by State

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

CONTRACTOR.

g. Taxpayer ID

20-8081996.

h. 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 STATE.

5. EQUIPMENT, MATERIALS, AND WORKSPACE RESOURCES PROVIDED BY PARTIES

For periods dur

a. On site means Bismarck, ND.

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

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

CONTRACTOR.

d. STATE and CONTRACTOR will mutually agree to Professional Services being performed on site by both parties signing a Client Order Form and statement of work outlining the work to be performed by CONTRACTOR in the future if necessary.

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

6. TERM OF AGREEMENT

This Agreement term (“SUBSCRIPTION TERM”) begins on its Effective Date and ends after two (2) years as stated on page one (1) in the Client Order Form.

a. No Automatic Renewal

This Agreement will not automatically renew. At least thirty (30) days prior to each renewal, updated pricing and Agreement will be communicated to the STATE, including an updated Client Order Form. Upon renewal, the Agreement term during such renewal shall be a Renewal Term.

The Renewal Term and Subscription Term shall together be referred to as the Order Term.

b. Extension Option

STATE reserves the right to extend this Agreement for an additional period of time, not to exceed

(12) twelve months, beyond the current termination date of this Agreement at a pro rata basis of the Contractual Amount.

c. Renewal Option

STATE may renew this Agreement upon satisfactory completion of the initial term. STATE reserves the right to execute up to five (5) options to renew this Agreement under the same terms and conditions for a period of twelve (12) months.

d. Renegotiation Option

In view of the fact that it is unknown how long the products and services will be used 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 this Agreement including any extensions and renewals, STATE and CONTRACTOR may renegotiate this Agreement upon mutual agreement of the parties.

7. TERMINATION

a. Termination by Mutual Agreement

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

b. Early Termination in the Public Interest

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

c. Termination for Lack of Funding or Authority

STATE, by written notice to CONTRACTOR, may terminate the whole or any part of this Agreement 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 Agreement or are no longer eligible for the funding proposed for payments authorized by this Agreement.

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

Termination of this Agreement under this subsection is without prejudice to any obligations or liabilities of either party already accrued prior to termination. In addition, should STATE termination under this clause 7(c), CONTRACTOR shall be entitled to payment for services rendered or work performed and accepted by STATE, up to the date of termination.

d. Termination for Cause.

STATE may terminate this Agreement 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 Agreement within the time specified or any extension agreed to by STATE; or

2) If CONTRACTOR fails to perform any of the other provisions of this Agreement, or so fails to pursue the work as to endanger performance of this Agreement 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 Agreement.

e. Return of Client Data.

In the event that STATE submits a written request to CONTRACTOR to return Client Data at the time of termination, CONTRACTOR will provide STATE with commercially reasonable assistance in extracting requested Client Data via reporting tool functionalities of the Software.

Client Data will be provided to STATE in the same format as such data is stored by CONTRACTOR and in one or more comma delimited text files (i.e., .CSV format) or another format reasonably determined by CONTRACTOR. CONTRACTOR shall have no other obligation to maintain any Client Data stored in the Software following any termination of this Agreement, or to forward any Client Data to STATE. Any requests for a customized export of Client Data will be considered additional Professional Services, and the fees and scope must be mutually agreed by the parties in a separate Client Order Form or statement of work.

8. SUSPENSION

STATE shall have the right at any time to order the services of CONTRACTOR fully or partially 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 STATE 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 submit claims in accordance with the terms of this Agreement as a result of stop work orders issued under this section.

In addition to any of its other rights or remedies (including, without limitation, any termination rights) set forth in this Agreement, CONTRACTOR reserves the right to suspend provision of the Services and access to the Software: (i) if CONTRACTOR determines State has breached Section 22; (ii) to avoid material harm to STATE or STATE’S customers, as determined by CONTRACTOR, including if the Software is experiencing denial of service attacks, mail flooding, or other attacks or disruptions outside of CONTRACTOR’S control; (iii) as required by law or at the request of governmental entities; or, (iv) if STATE uses the Services or Software in association with illegal activity, harassment of any kind, or Software testing. STATE acknowledges that if access to the Services or Software is suspended, STATE may no longer have access to the Client Data or may experience a decrease in the performance level of the Services or Software.

9. FORCE MAJEURE

A. Neither party shall be held responsible for delay or default caused by fire, riot, terrorism, acts of ives notice to the other party promptly upon occurrence of the event causing the delay or default or that is reasonably expected to cause a delay or default. Delay or default related to the COVID- 19 pandemic or quarantine may only be excused in accordance with subsection 9(B).

B. The Parties agree that any default or delay caused by the COVID-19 pandemic may only forgive any P Agreement to the extent it is memorialized through a mutually agreed upon written amendment setting forth the cause, any anticipated duration, and all contractual provisions impacted. If either Party cannot resume performance as contemplated by such an amendment, the other Party may seek the remedies set forth in 9(A).

10. INJUNCTIVE RELIEF

CONTRACTOR shall immediately report to STATE any and all unauthorized disclosures or uses of ion or Proprietary Information of which CONTRACTOR or its staff is aware or has knowledge. CONTRACTOR acknowledges that any unauthorized publication or immediate and irreparable harm to STATE. If CONTRACTOR should publish or disclose such Confidential Information or Proprietary Information without authorization, STATE shall immediately be entitled to injunctive relief or any other remedies to which it is entitled under law or equity without requiring a cure period. CONTRACTOR shall indemnify, defend, and hold harmless STATE from all damages, costs, liabilities, and expenses (including without limitation reasonable caused by or arising from CONTRACTO use Information or Proprietary Information. As a condition to these indemnity obligations, STATE will provide CONTRACTOR with prompt notice of any claim of which STATE is aware and for which indemnification shall be sought under this Agreement and shall cooperate in all reasonable respects with CONTRACTOR in connection with any such claim.

11. RIGHT OF SETOFF DAMAGES

Amounts due STATE by CONTRACTOR, including liquidated or other damages, or claims for damages, may be deducted or set-off by STATE from any money payable to CONTRACTOR pursuant to this Agreement.

12. RIGHT TO WITHHOLD AMOUNTS OTHERWISE DUE IF THE CONTRACTOR IS IN BREACH

If CONTRACTOR fails to deliver Deliverables or to provide Services which satisfy CONTRACTOR’S obligations under this Agreement, STATE shall have the right to withhold any and all payments due under this Agreement. STATE may withhold any and all such payments due under this Agreement to CONTRACTOR without penalty 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 this Agreement 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 Agreement, now or in the future existing at law or in equity or by statute or otherwise.

14. NON-WAIVER

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

15. LIMITATION OF LIABILITY

(a) EXCEPT FOR DIRECT DAMAGES THAT CANNOT BE LIMITED UNDER N.D.C.C. § 32-12.2-

15, NEITHER PARTY SHALL BE LIABLE UNDER THIS AGREEMENT TO THE OTHER OR

ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR

CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS

OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, LOST OR

CORRUPTED DATA, LOST PROFITS, LOST BUSINESS OR LOST OPPORTUNITY), OR ANY

OTHER SIMILAR DAMAGES UNDER ANY THEORY OF LIABILITY (WHETHER IN

AGREEMENT, TORT, STRICT LIABILITY OR ANY OTHER THEORY), EVEN IF THE OTHER

PARTY HAS BEEN INFORMED OF THE POSSIBILITY THEREOF. STATE ASSUMES ALL

RESPONSIBILITY FOR THE SELECTION OF THE SOFTWARE AND DOCUMENTATION

USE AND RESULTS OF THE SOFTWARE OR WORK PRODUCT.

(b) EXCEPT FOR DIRECT DAMAGES THAT CANNOT BE LIMITED UNDER § 32-12.2-15, EACH

PARTY'S TOTAL LIABILITY FOR ANY LOSS, COST, CLAIM OR DAMAGES OF ANY KIND

ARISING OUT OF OR RELATED TO THE ORDER MADE UNDER THIS AGREEMENT SHALL

NOT EXCEED THE AMOUNT OF THE FEES PAID OR PAYABLE BY STATE TO

CONTRACTOR UNDER SUCH ORDER DURING THE TWELVE (12) MONTHS PRIOR TO

THE EVENT GIVING RISE TO SUCH LOSS, COST, CLAIM OR DAMAGES. THIS LIMITATION

ON LIABILITY WAS AND IS AN EXPRESS PART OF THE BARGAIN BETWEEN

CONTRACTOR AND STATE AND WAS A CONTROLLING FACTOR IN THE SETTING OF

THE FEES PAYABLE TO CONTRACTOR HEREUNDER. NOTHING IN THIS SECTION 6.3(B)

EITHER PARTY'S LIABILITY TO THE OTHER IN CONNECTION WITH AN INFRINGEMENT

OF SECTION 16OF THIS AGREEMENT.

(c) STATE shall give CONTRACTOR the control of the defense of any Legal Action, shall act in accordance with the reasonable instructions of CONTRACTOR and shall give CONTRACTOR such assistance as CONTRACTOR reasonably requests to defend or settle such claim.

CONTRACTOR shall conduct its defense at all times in a manner which is not averse to STATE's interests. STATE may employ its own counsel to assist it with respect to any such claim. STATE shall bear all costs of engaging its own counsel, unless engagement of counsel is necessary because of a conflict of interest with CONTRACTOR or its counsel, or because CONTRACTOR fails to assume control of the defense. STATE shall not settle or compromise any Legal Action without CONTRACTOR's express written consent. CONTRACTOR cannot settle a Legal Action on STATE's behalf without STATE's prior consent, which shall not be unreasonably withheld. STATE's material failure to comply with this Section shall relieve CONTRACTOR of its indemnification obligation under Section 16.

16. INTELLECTUAL PROPERTY INFRINGEMENT INDEMNIFICATION

Subject to Section 15.(b), CONTRACTOR shall indemnify, defend and hold STATE harmless from any damages awarded against STATE (including, without limitation, reasonable costs and legal fees thereby incurred by STATE) arising out of any third-party suit, claim or other legal action alleging that the use of the Software by STATE as permitted hereunder infringes any copyright, trade secret or United States patent ("Legal Action"). Notwithstanding the foregoing, CONTRACTOR shall have no indemnification obligations with regard to any Legal Action arising out of: (i) combination of the Software with software or products not supplied, or approved in writing by CONTRACTOR; (ii) any repair, adjustment, modification or alteration to the Software by STATE or any third party, unless approved in writing by CONTRACTOR; (iii) any breach by STATE of its obligations under this Agreement; or (iv) any refusal by STATE to install and use a non-infringing version of the Software offered by CONTRACTOR and this Section state the entire liability of CONTRACTOR with respect to any intellectual property infringement by the Software.

17. REPRESENTATIONS AND WARRANTIES

CONTRACTOR represents and warrants to STATE that neither CONTRACTOR, in connection with performing the services in performance of this Agreement, 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 STATE that it will not use any trade secrets or confidential or proprietary information owned by any third party in performing the services related to this Agreement 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 Agreement is under any obligation to assign or give any work done under this Agreement to any third party.

18. INSURANCE

CONTRACTOR shall secure and keep in force during the term of this Agreement 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, and products or completed operations coverages (if applicable), with minimum liability limits of $1,000,000 per occurrence

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

c. 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

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

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

b. This insurance may be in policy or policies of insurance, primary and excess, including the so-called umbrella - A.M. Best Company, Inc., provided any excess policy follows form for coverage. Less than an A- oved by the State.

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

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

CONTRACTOR.

e. A pany may have against the State.

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

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

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

19. TECHNOLOGY STANDARDS

STATE shall comply with applicable STATE enterprise architecture technology standards as pertains directly to STATE.

http://www.nd.gov/itd/standards.

20. PERSONNEL

a. STATE will designate a Project Representative to serve as the primary contact for this Agreement. If, during the course of this Agreement, it becomes necessary for STATE to change the person assigned as Project Representative, STATE will notify CONTRACTOR in writing, pursuant to Notice section of this Agreement.

b. Unless STATE otherwise notifies CONTRACTOR, Project Representative shall carry Agreement, shall be responsible for acceptance of the Agreement deliverables, and shall provide support and overall direction to CONTRACTOR.

c. CONTRACTOR will designate a Client Success Manager that will assist the STATE to meet the requirements and accomplish the work as stated in this Agreement including any mutually agreed upon Scope of Work.

d. STATE's working hours are Monday through Friday from 8:00 AM until 5:00 PM (CT) with one hour for lunch. STATE Project Representative may approve alternate work schedules.

http://www.nd.gov/itd/standards

e. According to STATE policy, STATE personnel are only obligated to work a forty-hour workweek, Monday through Friday, and are allowed reasonable vacation, sick and educational absences.

f.

leave days.

21. WARRANTY

1) CONTRACTOR warrants that the Software will perform in accordance with the Documentation and this Agreement. CONTRACTOR does not warrant that the Software will be completely error-free or uninterrupted. If STATE notifies CONTRACTOR of a reproducible error in the Software that indicates a breach of the foregoing warranty (each, an “Error”) within thirty (30) days after STATE experiences such Error, CONTRACTOR shall, at its own expense and as its sole obligation and the exclusive remedy for such Error: (a) use commercially reasonable efforts to correct or provide a workaround for any Error; or, (b) if CONTRACTOR is unable to provide a correction or workaround for any such Error in a commercially reasonable manner after receiving notice of an Error from STATE, STATE may terminate this Agreement upon notice to CONTRACTOR and, CONTRACTOR shall refund the amounts paid by STATE for access to the Software for the period during which the Software was not usable by Client. The warranties set forth in this Section 23 do not cover or apply to: (i) any Error caused by STATE or its Users; (ii) any Error or unavailability of the Software caused by use of the Software in any manner or in any environment inconsistent with its intended purpose;

(iii) any of CONTRACTOR’S hardware or software if modified or repaired in any manner which materially adversely affects the operation or reliability of the Software; or, (iv) any equipment or software or other material utilized in connection with the Software used by STATE contrary to manufacturer's instructions.

2) STATE represents and warrants that it has the right to: (a) use the Client Data as contemplated by this Agreement; and, (b) grant CONTRACTOR the licenses as contemplated by this Agreement.

3) EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 21 AND SECTION 7.1 OF THE PSA,

THE SOFTWARE, PROFESSIONAL SERVICES, AND DELIVERABLES ARE PROVIDED “AS IS”

AND NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND OR ANY REPRESENTATIONS

TO THE OTHER PARTY OR ANY THIRD PARTY AND EACH PARTY SPECIFICALLY DISCLAIMS

ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING,

WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, USABILITY,

CONDITION, OPERATION, OR FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-

INFRINGEMENT, COMPATIBILITY, SECURITY, ACCURACY AND ANY WARRANTIES ARISING

FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.

22. SOFTWARE LICENSE

All ownership rights to the Software including all intellectual property rights owned by CONTRACTOR prior to performance of this Agreement) shall remain

All proprietary technology utilized by CONTRACTOR to perform its obligations under this Agreement, including, but not limited to, the Software, and all intellectual property rights in and to the foregoing are the exclusive property of CONTRACTOR. Any and all derivative works to the proprietary technology including the Software, Content, Documentation, and/or any other similar information shall be owned by CONTRACTOR and STATE shall have the same rights and licenses to such derivative works as STATE has to the Software. CONTRACTOR or its third party licensors retain ownership of all right, title, and interest to all copyrights, patents, trademarks, trade secrets, and other intellectual property rights in and to the Content and the Software, including, without limitation, the Software, CONTRACTOR’S database (and all data therein except for Client Data), Documentation, customizations, enhancements, and all processes, know-how, and the like utilized by or created by

CONTRACTOR in performing under this Agreement. Any rights not expressly granted to STATE hereunder are reserved by CONTRACTOR. STATE shall not at any time, directly or indirectly, challenge the scope, validity, or ownership of CONTRACTOR’S, or its licensors’, rights in the Software, Content, or Documentation or do any act that could reasonably be expected to impair the scope, validity, or ownership of such rights. Each party agrees to promptly notify, in writing, the other Party upon gaining knowledge of any infringement, dilution, or similar harm to the other party’s intellectual property or related rights or information.

As between the parties, STATE owns all right, title, and interest in Client Data, including all intellectual property rights therein. Any rights in Client Data not expressly granted to CONTRACTOR hereunder are reserved by STATE, its licensors, and suppliers.

STATE hereby grants to CONTRACTOR, during the Order Term, a limited, non-exclusive, non-transferable (except as provided in this Agreement), non-sublicensable license to use the Client Data to: (a) provide the Software and the Services to STATE; (b) perform its obligations and exercise its rights under this Agreement.

CONTRACTOR owns all right, title, and interest in and to Usage Data. CONTRACTOR may use Usage Data in connection with its performance of its obligations in this Agreement and for any other lawful business purpose, including, but not limited to, benchmarking, data analysis, and to improve CONTRACTOR’S services, systems, and algorithms.

23. NOTICE

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

STATE CONTRACTOR

Kim Konikow Chris Dahl

Executive Director President

1600 East Century Avenue, Suite 6 143 Willow Peak Dr

Bismarck, ND 58503-0649 Bozeman, MT 59718

STATE shall give prompt written notice to CONTRACTOR of any Legal Action within thirty (30) days of its first knowledge thereof and shall furnish copies to CONTRACTOR of all communications, notices and/or other actions relating to any Legal Action. Notice provided under this provision does not meet the notice requirements for monetary claims against STATE. Such requirements are outlined in N.D.C.C § 32-12.2-04.

24. CONFIDENTIALITY

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

25. COMPLIANCE WITH PUBLIC RECORDS LAWS

CONTRACTOR understands that, section of 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 Agreement may, under certain circumstances, be open to the public upon request under the North Dakota public records law. CONTRACTOR agrees to contact STATE promptly upon receiving a request for information under the public records law and to comply with

26. INDEPENDENT ENTITY

CONTRACTOR is an independent entity under this Agreement 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 under this Agreement, except to the extent specified in this Agreement.

27. ASSIGNMENT AND SUBCONTRACTS

CONTRACTOR may not assign or otherwise transfer or s express written consent, provided, however, that CONTRACTOR may assign its rights and obligations hereunder in the event of a change of control or sale of all or substantially all of its assets related to this Agreement, whether by merger, reorganization, operation of law, or otherwise. Should Assignee be a business or entity with whom STATE is prohibited from conducting business, STATE shall have the right to terminate without cause.

CONTRACTOR may enter into subcontracts provided that any subcontract acknowledges the binding nature of this Agreement and incorporates this Agreement, including any attachments.

CONTRACTOR is solely responsible for the performance of any subcontractor with whom CONTRACTOR contracts. CONTRACTOR does not have authority to contract for or incur obligations on behalf of STATE.

28. MERGER AND MODIFICATION, CONFLICT IN DOCUMENTS

This Agreement, 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 Agreement. This Agreement 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 Agreement, the documents must control in this order of precedence:

a. DPA;

b. The terms of this Agreement;

c. Client Order Form;

d. SLA;

e. SOW; and,

f. PSA

All automated end-user agreements (e.g., click-through, shrink-wrap, or browse-wrap) are specifically excluded from this Agreement and null and void with respect to affecting any terms of this Agreement. Clicking shall not represent acknowledgement or agreement to any terms and conditions contained in those agreements. The DPA, SLA, and PSA will be attached to the Agreement as exhibits.

29. UNANTICIPATED AMENDMENTS

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

30. SEVERABILITY

If any term of this Agreement is declared to be illegal or unenforceable by a court having competent jurisdiction, the validity of the remaining terms is unaffected…