Exhibit A_.docx

EXHIBIT A – STANDARD CONTRACT TERMS AND CONDITIONS

Any contract or agreement resulting from this RFP will include the State’s standard terms and conditions as listed below, along with any additional terms and conditions as negotiated by the parties:

1. The services under this Agreement shall commence on _______________, and end on _______________, unless sooner terminated pursuant to the terms hereof. This Agreement may be renewed at the initiative of the State, and if mutually agreed upon by the parties, for __________ additional one-year terms.

2. The State will make payment for services upon satisfactory completion of the services. The TOTAL CONTRACT AMOUNT is an amount not to exceed $_______________. The State’s total liability for all services, including expenses, is limited to this total contract amount. This amount may only be increased upon the written agreement of Consultant and the State, and such agreement must specifically reference this paragraph. Payment will be made by the State upon receipt of Consultant invoices in accordance with the budget below.

3. The State will not pay Consultant’s expenses as a separate item.

4. The Consultant will perform those services described in the Work Plan, attached hereto as Exhibit A and by this reference incorporated herein. The Consultant’s response to this RFP shall be considered part of the Work Plan.

a. The exhibits listed below are attached to this Agreement and by this reference incorporated herein as if set forth in full. If there is a conflict among the documents comprising this Agreement, then the conflict shall be resolved by utilizing the following order of precedence:

EXHIBITS

6. The terms of this Agreement as may be amended.

7. Exhibit A

8. Exhibit B

9. Exhibit C

5. The Consultant will not use State equipment, supplies or facilities.

If the Consultant plans to use State equipment, supplies or facilities, the following conditions are included in the standard terms and conditions in replacement of 5.

The Consultant will use State equipment, supplies or facilities listed in paragraph 5.a. (hereinafter “Property”), subject to the conditions in paragraph 5.b. through 5.e. Consultant shall provide the personnel and all other property necessary for its performance under this Agreement.

a. [List of State Equipment, Supplies or Facilities to be Used]

b. The Property furnished to Consultant shall be used only for the performance of its obligations under and subject to the terms of this Agreement.

c. Consultant’s use of the Property shall be subject to the State’s security, administrative, and other requirements.

d. Consultant shall protect and be responsible for any loss, destruction, or damage to the State’s Property which results from or is caused by Consultant’s willful misconduct or negligent acts or omissions or from the failure on the part of Consultant to maintain and administer that Property is returned to the State in like condition to that in which it was furnished to Consultant, reasonable wear and tear expected. If there is the loss of, destruction of, or damage to any of the Property owned by the State, Consultant shall immediately notify the State and shall take all reasonable steps to protect the Property from further damage.

e. Title to all Property furnished by the State shall remain with the State. Consultant shall surrender to the State all Property upon the earliest of completion, termination, or cancellation of this Agreement.

6. The Consultant, at all times during the term of this Agreement, shall obtain and maintain in force insurance coverage of the types and with the limits as follows:

a. Commercial General Liability Insurance:

The Consultant shall maintain occurrence based commercial general liability insurance or equivalent form with a limit of not less than $1,000,000.00 for each occurrence. If such insurance contains a general aggregate limit it shall apply separately to this Agreement or be no less than two times the occurrence limit. The insurance policy shall name the State of South Dakota, its officers, and employees, as additional insured, but liability coverage is limited to claims not barred by sovereign immunity. The State of South Dakota, its officers and employees do not hereby waive sovereign immunity for discretionary conduct as provided by law.

b. Business Automobile Liability Insurance:

The Consultant shall maintain business automobile liability insurance or equivalent form with a limit of not less than $1,000,000.00 for each accident. Such insurance shall include coverage for owned, hired and non-owned vehicles.

c. Worker’s Compensation Insurance:

The Consultant shall procure and maintain workers’ compensation and employers’ liability insurance as required by South Dakota law.

d. Professional Liability Insurance or Miscellaneous Professional Liability Insurance:

The Consultant agrees to procure and maintain professional liability insurance or miscellaneous professional liability insurance with a limit not less than $1,000,000.00.

e. The Consultant shall maintain cyber liability insurance with liability limits in the amount of $1,000,000.00 to protect any and all State data the Consultant receives as part of the project covered by this Agreement including State data that may reside on devices, including laptops and smart phones, utilized by Consultant employees, whether the device is owned by the employee of the Consultant. If the Consultant has a contract with a third-party to host any State data the Consultant receives as part of the project under this Agreement, then the Consultant shall include a requirement for cyber liability insurance as part of the contract between the Consultant and the third-party hosting the data in question. The third-party cyber liability insurance coverage will include State data that resides on devices, including laptops and smart phones, utilized by third-party employees, whether the device is owned by the employee or the third-part Consultant. The cyber liability insurance shall cover expenses related to the management of a data breach incident, the investigation, recovery and restoration of lost data, data subject notification, call management, credit checking for data subjects, legal costs, and regulatory fines. Before beginning work under this Agreement, the Consultant shall furnish the State with properly executed Certificates of Insurance which shall clearly evidence all insurance required in this Agreement and which provide that such insurance may not be cancelled, except on 30 days prior written notice to the State. The Consultant shall furnish copies of insurance policies if requested by the State. The insurance will stay in effect for one year after the work covered by this Agreement is completed.

Before beginning work under this Agreement, Consultant shall furnish the State with properly executed Certificates of Insurance which shall clearly evidence all insurance required in this Agreement including naming the State, its officers and employees, as additional insured, as set forth above. In the event of a substantial change in insurance, issuance of a new policy, or cancellation or nonrenewal of the policy, the Consultant agrees to provide immediate notice to the State and provide a new certificate of insurance showing continuous coverage in the amounts required. Consultant shall furnish copies of insurance policies if requested by the State.

7. Any notice or other communication required under this Agreement shall be in writing and sent to the address set forth above. Notices shall be given by and to _________________, on behalf of the State, and by __________________, on behalf of the Consultant, or such authorized designees as either party may from time to time designate in writing. Notices or communications to or between the parties shall be deemed to have been delivered when mailed by first class mail, provided that notice of default or termination shall be sent by registered or certified mail, or, if personally delivered, when received by such party.

8. While performing services hereunder, the Consultant is an independent contractor and not an officer, agent or employee of the State of South Dakota. The Consultant will provide the State with its Employer Identification Number, Federal Tax Identification Number or Social Security Number upon execution of this Agreement.

9. Consultant agrees to hold harmless and indemnify the State of South Dakota, its officers, agents and employees, from and against all actions, suits, damages, liability or other proceedings which may arise as a result of performing services hereunder. This section does not require the Consultant to be responsible for or defend against claims or damages arising solely from errors or omissions of the State, its officers, agents or employees.

10. Consultant agrees to report to the State any event encountered in the course of performance of this Agreement which results in injury to the person or property of third parties, or which may otherwise subject Consultant or the State to liability. Consultant shall report any such event to the State immediately upon discovery. Consultant’s obligation under this paragraph shall only be to report the occurrence of any event to the State and to make any other report provided for by the Consultant’s duties or applicable law. Consultant’s obligation to report shall not require disclosure of any information subject to privilege or confidentiality under law (e.g., attorney-client communications). Reporting to the State under this paragraph shall not excuse or satisfy any obligation of Consultant to report any event to law enforcement or other entities under the requirements of any applicable law.

11. The Consultant will comply with all federal, state and local laws, regulations, ordinances, guidelines, permits and requirements applicable to providing services pursuant to this Agreement, and will be solely responsible for obtaining current information on such requirements. When applicable, Consultant agrees to comply with all federal statutes, regulations, executive orders, and requirements associated with the federal funding source, including 2 CFR Part 200.

12. The Consultant may not use subcontractors to perform the work under this Agreement without the express prior written consent of the State. The State reserves the right to evaluate and propose subcontractor for suitability and compliance with applicable requirements. The Consultant is solely responsible for the performance of any subcontractor. The Consultant will include provisions in its subcontracts requiring its subcontractors to comply with the applicable provisions of this Agreement, to indemnify the State, and to provide insurance coverage for the benefit of the State in a manner consistent with this Agreement. The Consultant will cause its subcontractors, agents, and employees to comply with applicable federal, state and local laws, regulations, ordinances, guidelines, permits and requirements and will adopt such review and inspection procedures as are necessary to assure such compliance. The State, at its option, may require the vetting of any subcontractors. The Consultant is required to assist in this process as needed.

13. This Agreement may not be assigned without the express prior written consent of the State. An assignment may not operate to relieve Consultant of any of its duties and obligations under this Agreement, nor may such assignment affect any remedies available to the State that may arise from any breach of the provisions of the Agreement, including but not limited to rights of setoff. Any attempted assignment, transfer or delegation in contravention of this paragraph shall be null and void. This Agreement shall inure to the benefit of and be binding on the parties hereto and their permitted successors and assigns.

14. The Consultant hereby acknowledges and agrees that all reports, plans, specifications, technical data, drawings, software system programs and documentation, procedures, files, operating instructions and procedures, source code(s) and documentation, including those necessary to upgrade and maintain any software program, State proprietary information, State data, end user data, Personal Health Information as defined in 45 CFR 160.103, and all information contained therein provided to the State by the Consultant in connection with its performance of services under this Agreement shall belong to and is the property of the State and will not be used in any way by the Consultant without the written consent of the State.

Papers, reports, forms, software programs, source code(s) and other material which are a part of the work under this Agreement will not be copyrighted without written approval of the State. In the unlikely event that any copyright does not fully belong to the State, the State nonetheless reserves a royalty-free, non-exclusive, and irrevocable license to reproduce, publish, and otherwise use, and to authorize others to use, any such work for government purposes.

Consultant agrees to return all information received from the State to State’s custody upon the end of the term of this Agreement, unless otherwise agreed in a writing signed by both parties.

15. The Consultant certifies, by signing this Agreement, that neither it nor its principals are presently debarred, suspended, proposed for debarment or suspension, or declared ineligible or voluntarily excluded from participating in transactions by any federal department or any state or local government department or agency. The Consultant further agrees that it will immediately notify the State if during the term of this Agreement it or its principals become subject to debarment, suspension or ineligibility from participating in transactions by the federal government, or by any state or local government department or agency. The Consultant further certifies that neither it nor its principals have, within a three (3) year period preceding the awarding of this Agreement, been convicted of or had a civil judgment rendered against it for commission of fraud or been convicted of a criminal offense in connection with obtaining, attempting to obtain, or performing a federal, state, or local transaction or agreement or been convicted of a violation of federal or state antitrust statutes, embezzlement, theft, forgery, bribery, falsifications, destruction of records, making false statements, or receiving stolen property. Consultant further certifies that neither it nor its principals have, within a three (3) year period preceding this Agreement, had a federal, state, or local transaction terminated for cause or default.

16. The award of this Agreement to Consultant is not in any way an endorsement of Consultant or Consultant’s services by the State and may not be so represented by Consultant in any advertising or publicity materials. Consultant agrees to submit to the State all advertising, sales promotion, and other publicity relating to this Agreement wherein the State’s name is mentioned or language is used from which the connection of the State’s name therewith may, in the State’s judgment, be inferred or implied. Consultant further agrees not to publish or use such advertising, sales promotion, or publicity without the prior written consent of the State. Consultant may not in any way contract on behalf of or in the name of the State, nor may Consultant release any informational pamphlets, notices, press releases, research reports, or similar public notices concerning this Agreement without obtaining the prior written approval of the State.

17. The State will pay the Consultant after the Consultant presents an itemized invoice for the services actually performed, and the State accepted the invoiced services. Each invoice must reference the Agreement number, provide detailed information in a format as requested by the State, and, if applicable, follow the budget as outlined herein. Payment will be made consistent with SDCL Ch. 5-26. Consultant acknowledges that it would be difficult or impracticable for the State to provide the notice of disagreement provided for by SDCL 5-26-5 within the thirty days provided by that section. Accordingly, Consultant hereby waives the application of that section to this Agreement.

18. The payment of any invoice by the State will not prejudice the State’s right to object to or question that or any other invoice or matter in relation thereto. The Consultant shall promptly, but in all cases within thirty (30) days of notification, pay to the State the full amount of any erroneous payment or overpayment upon notice of an erroneous payment or overpayment to which Consultant is not entitled. If Consultant fails to make such a timely refund, the State shall charge Consultant one percent (1%) per month on the amount due until paid in full.

19. Claims for payment must be submitted on an invoice within forty-five (45) days of the date upon which the Consultant knew or should have known of the claim or forty-five (45) days after the termination or expiration of this Agreement, whichever is earlier. If an invoice cannot be submitted within forty-five (45) days, then written notice and an explanation of need must be provided to the State for consideration of an extension, which shall be in the sole discretion of the State. Failure of the Consultant to abide by this paragraph shall relieve the State of any obligation to pay for such claim.

20. The State is a sovereign entity and shall not be liable for the payment of federal, state and local sales, use and excise taxes, including any interest and penalties from any related deficiency, which may become due and payable as a consequence of this Agreement.

21. Amounts due to the State by Consultant, including but not limited to damages, or claims for damages, may be deducted or set-off by the State from any money payable to Consultant pursuant to this Agreement.

22. Consultant shall maintain documentation for all work performed or money received under this Agreement for a period of five (5) full years following completion of this Agreement. If any litigation, claims or audit is started before the expiration of the five-year period, the records must be retained until all litigation, claims, or audit findings involving the records have been resolved and final action taken. The State, through any authorized representative, shall have access to and the right to examine and copy all records, books, papers or documents related to services rendered under this Agreement and shall have access to personnel of the Consultant for purposes of interview and discussion related to the records, books, papers, and documents. State Proprietary Information, which shall include all information disclosed to the Consultant by the State, shall be retained in Consultant’s secondary and backup systems and shall remain fully subject to the obligations of confidentiality stated herein until such information is erased or destroyed in accordance with Consultant’s established record retention policies. This documentation may be subject to audit, at any reasonable time and upon reasonable notice, by State or federal authorities, as applicable based on the funding source.

23. This Agreement may be terminated by either party hereto upon thirty (30) days written notice. In the event the Consultant breaches any of the terms or conditions hereof, this Agreement may be terminated by the State for cause at any time, with or without notice. If termination for such a default is effected by the State, any payments due to Consultant at the time of termination may be adjusted to cover any additional costs to the State resulting from the Consultant's default. Upon termination of this Agreement, all accounts and payments shall be processed according to financial arrangements set forth herein for services rendered to date of termination. The State may take over the work and may award another party an agreement to complete the work under this Agreement. Any terms of this Agreement that would, by their nature or through the express terms of this Agreement, survive the expiration or termination of this Agreement shall so survive, including but not limited to the indemnification, controlling law and venue, and sovereign immunity provisions. If, after the State terminates for a default by Consultant, it is determined that Consultant was not at fault, then the Consultant shall be paid for eligible services rendered and expenses incurred up to the date of termination.

24. This Agreement depends upon the continued availability of appropriated funds and expenditure authority from the Legislature for this purpose. If for any reason the Legislature fails to appropriate funds or grant expenditure authority, or funds become unavailable by operation of law or federal funds reductions, this Agreement will be terminated by the State. Termination for any of these reasons is not a default by the State nor does it give rise to a claim against the State.

25. For the purpose of this paragraph, “State Proprietary Information” shall include all information, regardless of its format, disclosed to the Consultant by the State. Consultant acknowledges that it shall have a duty to not disclose any State Proprietary Information to any third person for any reason without the express written permission of a State officer or employee with authority to authorize the disclosure. Consultant shall not: (i) disclose any State Proprietary Information to any third person unless otherwise specifically allowed under this Agreement; (ii) make any use of State Proprietary Information except to exercise rights and perform obligations under this Agreement; (iii) make State Proprietary Information available to any of its employees, officers, agents or consultants except those who have agreed to obligations of confidentiality at least as strict as those set out in this Agreement and who have a need to know such information and who have been instructed that such information is or may be confidential under state or federal law. Consultant is held to the same standard of care in guarding State Proprietary Information as it applies to its own confidential or proprietary information and materials of a similar nature, and no less than holding State Proprietary Information in the strictest confidence. Consultant shall protect confidentiality of State Proprietary Information from the time of receipt to the time that such information is either returned to the State or destroyed to the extent that it cannot be recalled or reproduced. State Proprietary Information shall not include information that (i) was in the public domain at the time it was disclosed to Consultant; (ii) was known to Consultant without restriction at the time of disclosure from the State; (iii) that is disclosed with the prior written approval of State’s officers or employees having authority to disclose such information; (iv) was independently developed by Consultant without the benefit or influence of the State’s information; or (v) becomes known to Consultant without restriction from a source not connected to the State of South Dakota. State Proprietary Information may include names, social security numbers, employer numbers, addresses and all other data about applicants, employers or other clients to whom the State provides services of any kind. Consultant understands that State Proprietary Information may be confidential and protected under applicable state or federal law and agrees to immediately notify the State if the Information is disclosed, either intentionally or inadvertently. The parties mutually agree that neither of them shall disclose the contents of the Agreement except as required by applicable law or as necessary to carry out the terms of the Agreement or to enforce that party’s rights under this Agreement. Consultant acknowledges that the State and its agencies are public entities and thus are bound by South Dakota open meetings and open records laws. It is therefore not a breach of this Agreement for the State to take any action that the State reasonably believes is necessary to comply with the South Dakota open records or open meetings laws, including but not limited to posting this Agreement on the State’s website. If work assignment performed in the course of this Agreement required security requirements or clearance, the Consultant agrees that its officers, agents and employees will be required to undergo investigation or may be required to sign separate confidentiality agreements, and it will limit access to the confidential information and related work activities to employees that have executed such agreements.

Consultant agrees to remove any employee or agent from performing work under this Agreement that has or is suspected to have violated the terms of this paragraph and to immediately notify the State of such matter.

Consultant will comply with any other confidentiality measures and terms included in the Agreement.

Upon termination of this Agreement, if not already done so as part of the services performed under the Agreement, Consultant agrees to return to the State, at Consultant’s cost, any State Proprietary Information or documentation maintained by the Consultant regarding the services provided hereunder in a format readily usable by the State as mutually agreed by Consultant and State.

Consultant acknowledges that the State shares general information, including performance information, about Consultant among and between other State agencies upon request of such agencies for the purpose of making determinations of the risk involved with potential, subsequent agreements and for other purposes. Consultant expressly consents and agrees to such uses by the State.

26. This Agreement shall be governed by and construed in accordance with the laws of the State of South Dakota. Any lawsuit pertaining to or affecting this Agreement shall be venued in Circuit Court, Sixth Judicial Circuit, Hughes County, South Dakota.

27. All other prior discussions, communications and representations concerning the subject matter of this Agreement are superseded by the terms of this Agreement, and except as specifically provided herein, this Agreement constitutes the entire agreement with respect to the subject matter hereof.

28. This agreement may not be amended except in writing, which writing shall be expressly identified as a part hereof, and be signed by an authorized representative of each of the parties hereto.

29. In the event that any provision of this Agreement shall be held unenforceable or invalid by any court of competent jurisdiction, such holding shall not invalidate or render unenforceable any other provision of this Agreement, which shall remain in full force and effect.

30. No remedy conferred by any of the specific provisions of the Agreement is intended to be exclusive of any other remedy, and each and every remedy may be cumulative and may be in addition to every other remedy given under this Agreement, not and hereafter existing at law or in equity or by statue or otherwise. The election of any one or more remedies by either party shall not constitute a waiver of the right to pursue other available remedies.

31. Pursuant to Executive Order 2020-01, for Consultants with five (5) or more employees who enter into an agreement with the State of South Dakota that involves the expenditure of one hundred thousand dollars ($100,000) or more, by signing this Agreement the Consultant certifies and agrees that it has not refused to transact business activities, have not terminated business activities, and has not taken other similar actions intended to limit its commercial relations, related to the subject matter of the agreement, with a person or entity that is either the State of Israel, or a company doing business in or with Israel or authorized by, licensed by, or organized under the laws of the State of Israel to do business, or doing business in the State of Israel, with the specific intent to accomplish a boycott or divestment of Israel in a discriminatory manner. It is understood and agreed that, if this certification is false, such false certification will constitute grounds for the State to terminate this Agreement. The Consultant further agrees to provide immediate written notice to the State if during the term of the Agreement it no longer complies with this certification and agrees such noncompliance may be grounds for contract termination.

32. Pursuant to Executive Order 2022-02, Consultant certifies and agrees that all actions taken in performance with this agreement will not promote inherently divisive concepts or direct or compel any department employees, students, teachers, or school district employees to personally affirm, adopt, or adhere to inherently divisive concepts. “Inherently divisive concepts,” means advancing any ideas in violation of the Civil Rights Act of 1964, including, but not limited to, any of the following concepts:

(i) that one race, color, religion, sex, ethnicity, or national origin is inherently superior to another race, color, religion, sex, ethnicity, or national origin;

(ii) that an individual should be discriminated against or adversely treated solely or partly on the basis of his or her race, color, religion, sex, ethnicity, or national origin,

(iii) that an individual's moral character is inherently determined by his or her race, color, religion, sex, ethnicity, or national origin,

(iv) that an individual, by virtue of the individual's race, color, religion, sex, ethnicity, or national origin, is inherently racist, sexist, or oppressive, whether consciously or subconsciously,

(v) that an individual, by virtue of the individual's race, color, religion, sex, ethnicity, or national origin, is responsible for actions committed in the past by other members of the same race, color, religion, sex, ethnicity, or national origin, or

(vi) that meritocracy or traits, such as a strong work ethic, are racist or sexist, or were created by a particular race or sex to oppress members of another race or sex.

Consultant’s noncompliance with the requirements of this section may be grounds for termination of this Agreement. Consultant shall include the provisions of this section in each subcontract, so that the provisions shall be binding upon each subcontractor.

33. Consultant certifies and agrees that the following information is correct: The Consultant is not an organization, association, corporation, partnership, joint venture, limited partnership, limited liability partnership, limited liability company, or other entity or business association, including all wholly-owned subsidiaries, majority-owned subsidiaries, parent companies, or affiliates, of those entities or business associations, regardless of their principal place of business, which is ultimately owned or controlled, directly or indirectly, by a foreign parent entity from, or the government of, the People’s Republic of China, the Republic of Cuba, the Islamic Republic of Iran, the Democratic People’s Republic of Korea, the Russian Federation, or the Bolivarian Republic of Venezuela.

It is understood and agreed that, if this certification is false, such false certification will constitute grounds for the purchasing agency to reject the bid or response submitted by the Consultant on this project and terminate any contract awarded based on the bid or response, and further would be cause to suspend and debar a business under SDCL § 5-18D-12.

The Consultant further agrees to provide immediate written notice to the purchasing agency if during the term of the Agreement, it no longer complies with this certification and agrees such noncompliance may be grounds for contract termination and would be cause to suspend and debar a business under SDCL § 5-18D-12.

34. Except as otherwise Except as otherwise specifically provided herein, any failure or delay by either party to exercise or partially exercise any right, power or privilege under this Agreement may not be deemed a waiver of any such right, power, or privilege under this Agreement. Any waivers granted by the State for breaches hereof shall not indicate a course of dealing of excusing other or subsequent breaches. The State’s pursuit or non-pursuit of a remedy under this Agreement for Consultant’s breach of its obligations will neither constitute a waiver of any such remedies or any other remedy that the State may have at law or equity for any other occurrence of the same or similar breach, nor prevent the State from pursuing such remedy.

35. Nothing in this Agreement is intended to constitute a waiver of sovereign immunity by or on behalf of the State of South Dakota, its agencies, officers or employees.

36. This Agreement is intended to govern only the rights and interest of the parties named herein. It is not intended to, does not and may not be relied upon to create any rights, substantial or procedural, enforceable at law by any third party in any matter, civil or criminal.