Gallup+Contract+Signed+10-15-2020.docx.pdf

CONTRACT

The parties to this contract (Contract) are the State of North Dakota, acting through its Office of Management and Budget (STATE), and Gallup, Inc. having its principal place of business at 1001 Gallup Drive, Omaha, NE 68102 (CONTRACTOR);

1. DEFINITIONS

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

b) Data - means any information provided to, or collected, generated, stored, or processed by the system. Data includes user identification information and metadata which may contain Data or from which the STATE’s Data may be ascertainable.

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

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

e) Personally Identifiable Information (PII) - information about an individual maintained by an agency, including that 1) can be used to distinguish or trace an individual‘s identity, such as name, social security number, date and place of birth, mother‘s maiden name, or biometric records; or (2) is linked or linkable to an individual, such as medical, educational, financial, and employment information.

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

g) Recovery Time Objective (RTO) - means the period 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.

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

i) Leadership Results Briefing Session - See attached Addendum A

j) Leadership Team - Group of Team Leaders to be designated by the client to attend the

Leadership Results Briefing Session. Not to exceed 20 attendees.

k) Super User - Individual designated by the client to act as the sole point of contant for Gallup.

They are trained by Gallup to design and author surveys on the Gallup Access Platform and all of its features. Client can designate 10 Super Users on the Gallup Access Platform.

l) Onboarding - Survey questions for employee in the first year of employment.

m) Exit Interviewing - Survey questions for employees that are separating from the organization.

n) Q12 - Employee Engagement Survey questions developed to measure and manage essential performance metrics of employees.

o) Engagement Coaching Kit - Resources and materials for leaders to coach their teams on the elements of engagement and drive positive outcomes.

2. SCOPE OF SERVICES

CONTRACTOR, in exchange for the compensation paid by STATE under this Contract, shall provide the following Services:

Year 1

DocuSign Envelope ID: F8526294-5AE8-4D16-9FBF-C1FE12D85412

• Leadership Results Briefing Session (First Survey Administration) VIRTUAL

• Gallup Access – Workplace Survey Subscription + Onboarding and Exit

• A Single Sign On with SAML 2.0 integration connection will be created for the client’s Gallup Access platform.

Leadership Results Briefing Session (First Survey Administration) VIRTUAL

• During the Engagement Results Leadership Team Session, a CONTRACTOR consultant meets with the leadership team to discuss insights into the organization’s Q12 engagement results. The consultant helps executive team members focus on the importance of their leadership roles in creating a culture of engagement and identify their organization’s key performance goals and next steps.

Gallup Access – Workplace Survey Subscription + Onboarding and Exit

• For 7500 employees. Includes 10 super users.

• Exit Interviewing and Onboarding Survey Functionality

• Additional CONTRACTOR-validated questions on the following Employee Experiences:

o Onboarding o Exit

• Ability to use custom questions

• Closed-sample survey capability

• Skip pattern functionality

• Ongoing, near real-time data collection and reporting

• Standard online reporting

• Reporting provided based on STATE set-up

• Survey set-up, management, distribution of surveys, creating the reporting groups, creating the respondent list, and reading results managed 100% by STATE.

o Additional survey project support, reporting or consulting can be purchased as needed

• Includes survey platform access for 12 months with unlimited ad hoc Pulse capability

Year 2

• Leadership Results Briefing Session (First Survey Administration) VIRTUAL

• Gallup Access – Workplace Survey Subscription + Onboarding and Exit

• A Single Sign On with SAML 2.0 integration connection will be created for the client’s Gallup Access platform.

Leadership Results Briefing Session (First Survey Administration) VIRTUAL

• During the Engagement Results Leadership Team Session, a CONTRACTOR consultant meets with the leadership team to discuss insights into the organization’s Q12 engagement results. The consultant helps executive team members focus on the importance of their leadership roles in creating a culture of engagement and identify their organization’s key performance goals and next steps.

Gallup Access – Workplace Survey Subscription + Onboarding and Exit

• For 7500 employees. Includes 10 super users.

• Exit Interviewing and Onboarding Survey Functionality

• Additional CONTRACTOR-validated questions on the following Employee Experiences:

o Onboarding o Exit

• Ability to use custom questions

• Closed-sample survey capability

• Skip pattern functionality

• Ongoing, near real-time data collection and reporting

• Standard online reporting

• Reporting provided based on STATE set-up

• Survey set-up, management, distribution of surveys, creating the reporting groups, creating the respondent list, and reading results managed 100% by STATE.

o Additional survey project support, reporting or consulting can be purchased as needed

• Includes survey platform access for 12 months with unlimited ad hoc Pulse capability

The project term will run for 2 year(s) from the date of contract execution.

CONTRACTOR has relied on information provided by STATE in defining the Services and determining the pricing for such Services. CONTRACTOR will rely on this information as being accurate and complete. Any discrepancy in the information provided by STATE may change the Scope of Services and/or the pricing. CONTRACTOR will notify STATE upon discovering a discrepancy in the information provided by STATE and inform STATE of the impact on the Scope of Services, timeline and pricing of the Services. Any adjustment to the Scope of Services or pricing must be mutually agreed upon and executed by both parties in the form of an Amendment to this Contract.

3. COMPENSATION

a. Contractual Amount

STATE shall pay for the accepted services provided by CONTRACTOR under this Contract an amount not to exceed $253,850.00 (Contractual Amount) for two (2) years of service.

The pricing for the Services, exclusive of expenses and costs otherwise payable under the General Terms and Conditions, shall be as follows:

Year 1

• 10 - Leadership Results Briefing Session (First Survey Administration) VIRTUAL $45,000.00-Gallup will invoice the entire service fee which includes program management and support fee and fees for each Leadership Briefing Session when completion of registration process with participating departments or teams.

• 7,500 - Gallup Access – Workplace Survey Subscription + Onboarding and Exit $80,750.00

1 - Single Sign On with SAML 2.0 integration $500.00

Year 1 Sub-total: $126,250.00

Year 2

• 10 - Leadership Results Briefing Session (First Survey Administration) VIRTUAL $46,350.00- Gallup will invoice the entire service fee which includes program management and support fee and fees for each Leadership Briefing Session when completion of registration process with participating departments or teams.

• 7,500 - Gallup Access – Workplace Survey Subscription + Onboarding and Exit $80,750.00

1 - Single Sign On with SAML 2.0 integration $500.00

Year 2 Sub-total: $127,600.00

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, unless amended, regardless of the difficulty, materials or equipment required, including fees, licenses, overhead, profit and all other direct and indirect costs incurred by CONTRACTOR, except as provided by an amendment to this Contract.

b. Payment

1) Payment made in accordance with this Compensation section shall constitute payment in full for the services and work performed and the deliverables and work(s) provided under this Contract and CONTRACTOR shall not receive any additional compensation hereunder.

2) STATE shall make payment under this Contract within forty five (45) calendar days after receipt of a correct invoice.

3) 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, on the basis of audits conducted in accordance with the terms of this

Contract, not to constitute allowable costs. At STATE’s sole discretion, all payments shall be subject to reduction for amounts equal to prior overpayments to CONTRACTOR.

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

5) Year 1: $81,250.00 - Will be invoiced upon receipt of the signed agreement.

10 - Leadership Results Briefing Session (First Survey Administration) VIRTUAL $45,000.00-Gallup will invoice the entire service fee which includes program management and support fee and fees for each Leadership Briefing Session when completion of registration process with participating departments or teams.

Year 2: $81,250.00 - Will be invoiced 30 days in advance of the first anniversary date of signed agreement.

10 - Leadership Results Briefing Session (First Survey Administration) VIRTUAL $46,350.00- Gallup will invoice the entire service fee which includes program management and support fee and fees for each Leadership Briefing Session when completion of registration process with participating departments or teams.

c. Travel

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

Payment for any travel expenses that exceed the travel budget as agreed upon by the parties must be approved by STATE’s project manager.

d. Prepayment

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

e. 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 the

CONTRACTOR.

f. Taxpayer ID

CONTRACTOR’S federal employer ID number is: 21-0699771

4. TERM OF CONTRACT

This Contract begins on its Effective Date, and ends after an initial two (2) year period.

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 twelve (12) months, beyond the current termination date of the Contract.

c. Renewal Option

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

STATE reserves the right to execute up to three (3) options to renew this Contract under the same terms and conditions for a period of twenty-four (24) 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.

5. TERMINATION

a. Termination by Mutual Agreement

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

b. Early Termination in the Public Interest

STATE is entering into this Contract for the purpose of carrying out the public policy of the State of the North Dakota, as determined by its Governor, Legislative Assembly and Courts.

If this Contract ceases to further the public policy of the State of North Dakota, STATE, in its sole discretion, by written notice to the CONTRACTOR, may terminate this Contract in whole or in part. Notwithstanding any other terms and conditions of this Contract, should STATE terminate this Contract without cause prior to completion of services, CONTRACTOR shall be entitled to the payment of fees for services completed and accepted by STATE prior to the effective date of termination.

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

STATE 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 STATE; 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.

6. 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 promptly upon occurrence of the event causing the delay or default or that is reasonably expected to cause a delay or default.

7. INDEMNIFICATION

The STATE and CONTRACTOR each agrees to assume its own liability for any and all claims of any nature including all costs, expenses and attorneys' fees which may in any manner result from or arise out of this agreement.

8. INSURANCE

CONTRACTOR shall secure and keep in force during the term of this Contract, from insurance companies, government self-insurance pools or government self-retention funds, authorized to do business in North Dakota, the following insurance coverages:

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

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

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

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

2) This insurance may be in policy or policies of insurance, primary and excess, including the so-called umbrella or catastrophe form and must be placed with insurers rated “A-” or better by A.M. Best Company, Inc., provided any excess policy follows form for coverage. Less than an “A-” rating must be approved by the STATE. The policies shall be in form and terms approved by the STATE.

3) CONTRACTOR shall furnish a certificate of insurance to the undersigned STATE representative prior to commencement of this Contract.

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

5) CONTRACTOR shall provide at least thirty (30) days’ notice of any cancellation or material change to the policies or endorsements. CONTRACTOR shall provide on an ongoing basis, current certificates of insurance during the term of the Contract. A renewal certificate will be provided upon renewal of the coverage.

9. WORKS FOR HIRE

CONTRACTOR acknowledges that all work(s) first created under this Contract is "work(s) for hire" within the meaning of the United States Copyright Act (Title 17 United States Code) and hereby assigns to STATE all rights and interests CONTRACTOR may have in the work(s) it prepares under this Contract, including any right to derivative use of the work(s). All software and related materials developed by CONTRACTOR in performance of this Contract for STATE shall be the sole property of STATE, and CONTRACTOR hereby assigns and transfers all its right, title, and interest therein to STATE. CONTRACTOR shall execute all necessary documents to enable STATE to protect STATE’s intellectual property rights under this section. CONTRACTOR property, as set forth herein in section 13, is not considered a Work for Hire.

10. WORK PRODUCT

All work product, equipment or materials created for STATE or purchased by STATE under this Contract belong to STATE and must be immediately delivered to STATE at STATE'S request upon termination of this Contract. This will only apply to Works for Hire as set forth in section 8 and not to CONTRACTOR property as set forth in section 13.

11. NOTICE

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

STATE CONTRACTOR

Name: Gabriel Hoggarth Name: Steve Bath

Title: Procurement Officer II Title: Senior Workplace Consultant

Address: 600 E Blvd Ave, Dept. 012 Address: 1001 Gallup Drive

City, State, Zip: Bismarck, ND, 58505 City, State, Zip: Omaha, NE, 68102

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

12. CONFIDENTIALITY

CONTRACTOR shall not use or disclose any information it receives from STATE under this Contract that STATE 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 public records law, N.D.C.C. ch. 44-04.

The duty of STATE and CONTRACTOR to maintain confidentiality of information under this section continues beyond the term of this Contract.

13. REPRESENTATIONS AND WARRANTIES

13.1 The parties represent and warrant that: (a) each has the full power and authority to enter into this Agreement; (b) this Agreement is duly authorized by all necessary action and has been duly executed and delivered; and (c) neither party has entered into any agreement with any other entity that contains restrictive provisions regarding confidentiality and/or non-competition that may impair their ability to perform their specific obligations under the terms of this Agreement.

13.2 CONTRACTOR represents and warrants that it or its personnel will perform the Services: (a) in a good, timely, efficient, professional and workmanlike manner; (b) with at least the same degree of accuracy, quality, efficiency, completeness, timeliness and responsiveness as are equal to the accepted industry standards applicable to the performance of the same or similar services; and (c) using personnel who are fully familiar with the technology processes, procedures and equipment to be used to deliver the Services.

13.3 CONTRACTOR is the lawful owner or licensee of all programs and materials used by it in the performance of the Services contemplated hereunder that have not been provided by STATE; such programs and materials have been lawfully developed or acquired by CONTRACTOR and CONTRACTOR has the right to permit STATE access to or use of such programs and materials.

CONTRACTOR represents and warrants that none of the Services or deliverables provided under this Agreement will infringe on any patent, copyright, trademark, trade secret or other intellectual property right of any third party.

13.4 In connection with the performance of services set forth in this Contract, CONTRACTOR shall comply, and shall cause CONTRACTOR’s employees and consultants/subcontractors to comply, with all statutes, regulations, ordinances, judgments, permits and other governmental rules or restrictions, whether domestic or foreign, applicable to CONTRACTOR’s execution of this Contract.

13.5 EXCEPT AS SET FORTH IN THIS CONTRACT OR IN ANY SCOPE OF SERVICES, NEITHER

PARTY MAKES ANY OTHER REPRESENTATIONS AND WARRANTIES, INCLUDING THE IMPLIED

WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

14. INTELLECTUAL PROPERTY RIGHTS

14.1 CONTRACTOR Intellectual Property means any instructional materials, software programs, diagrams, copyrighted assessments or surveys and anything else that CONTRACTOR uses or distributes to STATE in connection with this Contract or an applicable Scope of Services that has been developed prior to or independent of this Contract by CONTRACTOR (“CONTRACTOR Property”).

http://www.legis.nd.gov/cencode/t44c04.pdf

CONTRACTOR Property is not considered work product or a “work for hire” under the terms of this Contract.

14.2 For any CONTRACTOR Property used, incorporated into, required for use of, or provided with any Services provided to STATE hereunder, CONTRACTOR hereby grants STATE a worldwide, non-exclusive, nontransferable license to use CONTRACTOR Property as incorporated into or provided with the applicable Services within STATE’s organization. STATE may not make, have made, sell, offer for sale, execute, reproduce, display, perform, distribute externally to any third party copies of, or prepare derivative works of CONTRACTOR Property without the written permission of CONTRACTOR.

14.3 All products, reports, documents, compilations of data and other materials produced or developed by CONTRACTOR under a Scope of Services which are either: (a) created using the funds, expertise, facilities, personnel, time, material or proprietary information of STATE; or (b) are derivatives of any STATE proprietary information shall be the sole property of STATE. These materials do not include any CONTRACTOR Property or derivatives thereof. CONTRACTOR agrees to assist STATE, or its designee, at STATE’s expense, in every proper way to secure STATE’s rights in the materials.

15. COMPLIANCE WITH PUBLIC RECORDS LAWS

Under the North Dakota public records law and subject to the Confidentiality clause of this Contract, certain records may be open to the public upon request.

Public records may include: (a) records STATE receives from CONTRACTOR under this Contract, (b) records obtained by either Party under this Contract, and (c) records generated by either Party under this Contract.

CONTRACTOR agrees to contact STATE immediately upon receiving a request for information under the public records law and to comply with STATE’s instructions on how to respond to such request.

16. INDEPENDENT ENTITY

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

CONTRACTOR will function as a non-exclusive consultant to the STATE. The STATE acknowledges that, during the term of this Agreement and thereafter, CONTRACTOR will offer, undertake, and continue to provide Consulting Services for organizations other than the STATE. In no event shall CONTRACTOR be relieved of its obligation to protect Confidential Information.

17. ASSIGNMENT AND SUBCONTRACTS

CONTRACTOR may not assign or otherwise transfer or delegate any right or duty without STATE’S express written consent. However, CONTRACTOR may 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 with whom CONTRACTOR contracts. CONTRACTOR does not have authority to contract for or incur obligations on behalf of STATE.

18. SPOLIATION – PRESERVATION OF EVIDENCE

CONTRACTOR shall promptly notify STATE 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.

19. MERGER AND MODIFICATION, CONFLICT IN DOCUMENTS

This Contract with its Addendum and including the following documents, constitute 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 with its Addendum as may be amended;

b. STATE’s Solicitation Amendment #1 to Request for Proposal (“RFP”) number 110.7-20-022 dated 03/26/2020;

c. STATE’s Request for Proposal (“RFP”) number 110.7-20-022, dated 03/16/2020;

d. CONTRACTOR’s Best and Final Offer, dated 06/01/2020;

e. CONTRACTOR’s proposal dated 04/01/2020 in response to RFP number 110.7-20-022.

f. All terms and conditions contained in any automated end-user agreements (e.g., click-throughs, shrink wrap, or browse wrap) are specifically excluded and null and void, and shall not alter the terms of this Contract.

20. SEVERABILITY

If any term of this Contract is declared by a court having jurisdiction to be illegal or unenforceable, 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.

21. APPLICABLE LAW AND VENUE

This Contract is governed by and construed in accordance with the laws of the State of North Dakota.

Any action to enforce this Contract must be adjudicated exclusively in the STATE District Court of Burleigh County, North Dakota. Each party consents to the exclusive jurisdiction of such court and waives any claim of lack of jurisdiction or forum non conveniens.

22. 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.

23. ATTORNEY FEES

In the event a lawsuit is instituted by STATE to obtain performance due 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 connection with the lawsuit.

24. NONDISCRIMINATION AND COMPLIANCE WITH LAWS

CONTRACTOR agrees to comply with all applicable federal and state laws, rules, and policies, including those relating to nondiscrimination, accessibility and civil rights. (See N.D.C.C. Title 34 – Labor and Employment, specifically N.D.C.C. ch. 34-06.1 Equal Pay for Men and Women.)

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, unemployment compensation and workers' compensation premiums. CONTRACTOR shall have and keep current at all times during the Term of this Contract all licenses and permits required by law.

CONTRACTOR’s failure to comply with this section may be deemed a material breach by CONTRACTOR entitling STATE to terminate in accordance with the Termination for Cause section of this Contract.

25. STATE AUDIT

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, if required. CONTRACTOR shall maintain all of these records for at least three (3) years following completion of this Contract and be able to provide them at any reasonable time. STATE, State Auditor, or Auditor’s designee shall provide reasonable notice to CONTRACTOR prior to conducting examination.

26. CONTRACTOR ACCESS SUBSCRIPTIONS

The Service Fee for the CONTRACTOR Access Platform is based on a pre-paid annual subscription and no refunds will be given for cancellations of partial years, unless such cancellation is due to Termination for Cause in accordance with Section 5(d) of this Contract.

27. Q12 PURCHASES

You may not copy or republish Content from the website or Engagement Coaching Kit materials, except for those items included on the Engagement Coaching Kit portable media device (DVD or USB flash drive). In the event of any permitted copying, redistribution or publication of copyrighted material, no changes in or deletion of author attribution, trademark legend or copyright notice shall be made.

28. PUBLICATION OF DATA

Research data associated with the consulting services performed by CONTRACTOR is not for public dissemination outside of STATE’s organization including but not limited to press releases and paid advertising. Both STATE and CONTRACTOR have a responsibility to ensure that any published research findings are not misleading. STATE shall consult with CONTRACTOR prior to sharing any research findings with any third party. Any release approved by CONTRACTOR shall include sufficient technical information necessary to assess the validity of the published findings which may include the following: the exact question wording, dates of interview, interviewing method, sample size, definition of the survey population, and size of sampling error.

29. RESPONDENT CONFIDENTIALITY

Respondent-identifying information, without the express consent of respondents, is not part of the deliverables under this Scope of Services and does not constitute a “work made for hire”.

CONTRACTOR will not provide respondent level data with any demographic data appended to protect the confidentiality of participating respondents. To avoid non-compliance with state and federal laws, CONTRACTOR will not provide STATE any taped surveys without informing the respondent and obtaining express consent that the recordings will be shared with STATE.

30. 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.

CONTRACTOR’S obligation shall not extend to a claim based on any alleged infringement arising from any: (a) additions, changes, or modifications to the services by or on behalf of STATE; (b) incorporation of the services or any component thereof into any other product or process; or (c) use of the services other than as permitted by this Contract.

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 give STATE a credit for the price paid to CONTRACTOR, less a reasonable offset for use and obsolescence.

31. EFFECTIVENESS OF CONTRACT

This Contract is not effective until fully executed by both parties. If no start date is specified in the Term of Contract, the most recent date of the signatures of the parties shall be deemed the Effective Date.

CONTRACTOR STATE OF NORTH DAKOTA

Gallup, Inc. Acting through its Office of Management and Budget

BY: BY:

Taek Lee Gabriel Hoggarth

Regional Director Procurement Officer II

Date: Date:

10/14/2020 10/15/2020

31. EFFECTIVENESS OF CONTRACT