Exhibit D - Sample Information Technology Contract.pdf

State of Colorado Information Technology Contract

Cover Page

State Agency

[Insert Department's or IHE's Full Name

Contractor]

Contractor

[Insert Contractor's Full Legal Name, including

"Inc.", "LLC", etc...]

Contract Number

[Insert CMS number or Other Contract

Number]

Contract Performance Beginning Date

The later of the Effective Date or [Month Day, Year]

Initial Contract Expiration Date

[Month Day, Year]

CORE Encumbrance Number

[Insert CORE Encumbrance Number]

Interagency Agreement Number

[Insert CMS number or Other Contract

Number]

Contract Administrator

[Insert Contract Administrator's initials]

Contract Maximum Amount

Initial Term

State Fiscal Year [20xx]: [$0.00]

Extension Terms

State Fiscal Year [20xx]: [$0.00]

State Fiscal Year [20xx]: [$0.00]

State Fiscal Year [20xx]: [$0.00]

State Fiscal Year [20xx]: [$0.00]

State Fiscal Year [20xx]: [$0.00]

Total for All State Fiscal Years [$0.00]

Contract Authority

[Insert Brief Description of the Authority to enter into the Contract]

Contract Purpose

[Briefly describe the Contract's purpose]

Exhibits and Order of Precedence

The following Exhibits and attachments are included with this Contract:

1. Exhibit A – Statement of Work

2. Exhibit B – Sample Option Letter

3. Exhibit C – Information Technology Provisions

4. Exhibit D – PII Certification

5. Exhibit E – HIPAA BAA

In the event of a conflict or inconsistency between this Contract and any Exhibit or attachment, such conflict or inconsistency shall be resolved by reference to the documents in the following order of priority:

1. Exhibit E - HIPAA BAA

2. Colorado Special Provisions in §19 of the main body of this Contract.

3. Exhibit C - Information Technology Provisions

4. The provisions of the other sections of the main body of this Contract.

5. Exhibit A - Statement of Work.

6. Exhibit D – PII Certification

7. Executed Option Letter(s) (if any).

Principal Representatives

For the State:

[Name]

[Department Name]

[Address Line 1]

[Address Line 2]

[City, State, Zip]

[E-mail]

For Contractor:

[Name]

[Company Name]

[Address Line 1]

[Address Line 2]

[City, State, Zip]

[E-mail]

Signature Page

THE PARTIES HERETO HAVE EXECUTED THIS CONTRACT

Each person signing this Contract represents and warrants that he or she is duly authorized to execute this

Contract and to bind the Party authorizing his or her signature.

Contractor [Insert Contractor's Full Legal Name, including

"Inc.", "LLC", etc...]

By: [Name & Title of Person Signing for Contractor

Date:

2nd State or Contractor Signature if Needed

By: [Name & Title of Person Signing for Signatory]

Date: _________________________

In accordance with §24-30-202, C.R.S., if this Contract is for a Major Information Technology Project, this Contract is not valid until signed and dated below by the Chief Information Officer or an authorized delegate.

State Chief Information Officer

Sarah Tuneberg, Chief Information Officer and

Executive Director

By:

[Name & Title of Person Signing for OIT]

Date:

State of Colorado Jared S. Polis, Governor

[Insert Department's or IHE's Full Name]

[INSERT-Name & Title of Head of Agency or

IHE]

By: [Name & Title of Person Signing for Agency or

IHE]

Date:

Legal Review

Philip J. Weiser, Attorney General

By:

Assistant Attorney General

Date:

In accordance with §24-30-202, C.R.S., this Contract is not valid until signed and dated below by the State Controller or an authorized delegate.

State Controller Robert Jaros, CPA, MBA, JD

By:

Robert Jaros or Controller Delegate

Effective Date:

Contract Provisions

1. Parties

This Contract is entered into by and between Contractor named on the Cover Page for this

Contract (“Contractor”), and the State of Colorado acting by and through the State agency named on the Cover Page for this Contract (the “State”). Contractor and the State agree to the terms and conditions in this Contract.

2. Term and Effective Date

A. Effective Date

This Contract shall not be valid or enforceable until the Effective Date. The State shall not be bound by any provision of this Contract before the Effective Date and shall have no obligation to pay Contractor for any Work performed or expense incurred before the

Effective Date or after the expiration or sooner termination of this Contract.

B. Initial Term

The Parties’ respective performances under this Contract shall commence on the

Contract Performance Beginning Date shown on the Cover Page for this Contract and shall terminate on the Initial Contract Expiration Date shown on the Cover Page for this

Contract (the “Initial Term”) unless sooner terminated or further extended in accordance with the terms of this Contract.

C. Extension Terms - State’s Option

The State, at its discretion, shall have the option to extend the performance under this

Contract beyond the Initial Term for a period, or for successive periods, of one year or less at the same rates and under the same terms specified in the Contract (each such period an “Extension Term”). In order to exercise this option, the State shall provide written notice to Contractor in a form substantially equivalent to the Sample Option

Letter attached to this Contract. Except as stated in §2.D, the total duration of this

Contract, including the exercise of any options to extend, shall not exceed five years from its Effective Date absent prior approval from the Chief Procurement Officer in accordance with the Colorado Procurement Code.

D. End of Term Extension

If this Contract approaches the end of its Initial Term, or any Extension Term then in place, the State, at its discretion, upon written notice to Contractor as provided in §15, may unilaterally extend such Initial Term or Extension Term for a period not to exceed two months (an “End of Term Extension”), regardless of whether additional Extension

Terms are available or not. The provisions of this Contract in effect when such notice is given shall remain in effect during the End of Term Extension. The End of Term Extension shall automatically terminate upon execution of a replacement contract or modification extending the total term of this Contract.

E. Early Termination in the Public Interest

The State is entering into this Contract to serve the public interest of the State of

Colorado as determined by its Governor, General Assembly, or Courts. If this Contract ceases to further the public interest of the State, the State, in its discretion, may terminate this Contract in whole or in part. A determination that this Contract should be terminated in the public interest shall not be equivalent to a State right to terminate for convenience. This subsection shall not apply to a termination of this Contract by the

State for Breach of Contract by Contractor, which shall be governed by §13.A.i.

i. Method and Content

The State shall notify Contractor of such termination in accordance with §15. The notice shall specify the effective date of the termination and whether it affects all or a portion of this Contract, and shall include, to the extent practicable, the public interest justification for the termination.

ii. Obligations and Rights

Upon receipt of a termination notice for termination in the public interest, Contractor shall be subject to the rights and obligations set forth in §13.A.i.a.

iii. Payments

If the State terminates this Contract in the public interest, the State shall pay

Contractor an amount equal to the percentage of the total reimbursement payable under this Contract that corresponds to the percentage of Work satisfactorily completed and accepted, as determined by the State, less payments previously made. Additionally, if this Contract is less than 60% completed, as determined by the State, the State may reimburse Contractor for a portion of actual out-of-pocket expenses, not otherwise reimbursed under this Contract, incurred by Contractor which are directly attributable to the uncompleted portion of Contractor’s obligations, provided that the sum of any and all reimbursement shall not exceed the Contract Maximum Amount payable to Contractor hereunder.

3. Definitions

The following terms shall be construed and interpreted as follows:

A. “Breach of Contract” means the failure of a Party to perform any of its obligations in accordance with this Contract, in whole or in part or in a timely or satisfactory manner.

The institution of proceedings under any bankruptcy, insolvency, reorganization or similar law, by or against Contractor, or the appointment of a receiver or similar officer for Contractor or any of its property, which is not vacated or fully stayed within 30 days after the institution of such proceeding, shall also constitute a Breach of Contract. If

Contractor is debarred or suspended under §24-109-105, C.R.S. at any time during the term of this Contract, then such debarment or suspension shall constitute a Breach of

Contract.

B. “Business Day” means any day other than Saturday, Sunday, or a legal holiday as listed in §24-11-101(1), C.R.S.

C. “Chief Procurement Officer” means the individual to whom the Executive Director has delegated his or her authority pursuant to §24-102-202, C.R.S. to procure or supervise the procurement of all supplies and services needed by the State.

D. “CJI” means criminal justice information collected by criminal justice agencies needed for the performance of their authorized functions, including, without limitation, all information defined as criminal justice information by the U.S. Department of Justice, Federal Bureau of Investigation, Criminal Justice Information Services Security Policy, as amended and all Criminal Justice Records as defined under §24-72-302, C.R.S.

E. “Contract” means this agreement, including all attached Exhibits, all documents incorporated by reference, all referenced statutes, rules and cited authorities, and any future modifications thereto.

F. “Contract Funds” means the funds that have been appropriated, designated, encumbered, or otherwise made available for payment by the State under this Contract.

G. “Contract Maximum Amount” means an amount equal to the total of Contract Funds for all State Fiscal Years on the Signature and Cover Page of this Contract.

H. “CORA” means the Colorado Open Records Act, §§24-72-200.1, et seq., C.R.S.

I. “Deliverable” means the outcome to be achieved or output to be provided, in the form of a tangible or intangible Good or Service that is produced as a result of Contractor’s

Work that is intended to be delivered to the State by Contractor.

J. “Effective Date” means the date on which this Contract is approved and signed by the

Colorado State Controller or designee, as shown on the Signature Page for this Contract.

If this Contract is for a Major Information Technology Project, as defined in §24-37.5-

102(2.6), C.R.S., then the Effective Date of this Contract shall be the later of the date on which this Contract is approved and signed by the State’s Chief Information Officer or authorized delegate or the date on which this Contract is approved and signed by the

State Controller or authorized delegate, as shown on the Signature Page for this

Contract.

K. “End of Term Extension” means the time period defined in §2.D.

L. “Exhibits” means the exhibits and attachments included with this Contract as shown on the Cover Page for this Contract.

M. “Extension Term” means the time period defined in §2.C.

N. “Goods” means any movable material acquired, produced, or delivered by Contractor as set forth in this Contract and shall include any movable material acquired, produced, or delivered by Contractor in connection with the Services.

O. “Incident” means any accidental or deliberate event that results in or constitutes an imminent threat of the unauthorized access, loss, disclosure, modification, disruption, or destruction of any communications or information resources of the State, which are included as part of the Work, as described in §§24-37.5-401, et seq., C.R.S., or the discovery or reasonable suspicion that there is or may be an imminent threat or vulnerability that jeopardizes the Information Technology that may result in exploitation or exposure, or any defect or vulnerability with the potential to impact the ongoing resilience, security, and/or integrity of systems accessing State Records or the State’s

Information Technology. Incidents include, without limitation, any events impacting the

State’s Information Technology or State Records regardless of where such information is located, such as: unauthorized access or modification, denial of service, malware, spyware, worms, trojans, rootkits, man-in-the-middle, SQL injection, cross site scripting, ransomware, dns tunneling, password attack, email events, including business email compromise, phishing (spear or otherwise), whaling, brute force attacks, insider threats, web attacks, session hijacking, or URL interpretation.

P. “Initial Term” means the time period defined in §2.B.

Q. “Information Technology” means

i. Any technology and equipment described in §24-37.5-102(12), C.R.S. and any related Work or Deliverable(s);

ii. The creation, use, processing, disclosure, transmission, or disposal of State Records, including any data or code, in electronic form; or

iii. Other existing or emerging technology, equipment, or related services that may require knowledge and expertise in information technology.

R. “Party” means the State or Contractor, and “Parties” means both the State and

Contractor.

S. “PCI” means payment card information including any data related to credit card holders’ names, credit card numbers, the account number, the security code, data stored on the card’s chip or magnetic strip, or other credit card information as may be protected by state or federal law.

T. “PHI” means any protected health information, including, without limitation any information whether oral or recorded in any form or medium: (i) that relates to the past, present, or future physical or mental condition of an individual; the provision of health care to an individual; or the past, present, or future payment for the provision of health care to an individual; and (ii) that identifies the individual or with respect to which there is a reasonable basis to believe the information can be used to identify the individual.

PHI includes, but is not limited to, any information defined as Individually Identifiable

Health Information by the federal Health Insurance Portability and Accountability Act.

U. “PII” means personally identifiable information including, without limitation, any information maintained by the State about an individual that 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. PII includes, but is not limited to, all information defined as “personally identifiable information” in §24-72-501 and “personal identifying information” in §24-73-101 and §24-74-102 C.R.S.

V. “Services” means the services to be performed by Contractor as set forth in this Contract and shall include any services to be rendered by Contractor in connection with the

Goods.

W. “State Confidential Information” means any and all State Records not subject to disclosure under CORA. State Confidential Information shall include, but is not limited to, PII, PHI, PCI, Tax Information, CJI, and State personnel records not subject to disclosure under CORA. State Confidential Information shall not include information or data concerning individuals that is not deemed confidential but nevertheless belongs to the

State, which has been communicated, furnished, or disclosed by the State to Contractor which (i) is subject to disclosure pursuant to CORA; (ii) is already known to Contractor without restrictions at the time of its disclosure to Contractor; (iii) is or subsequently becomes publicly available without breach of any obligation owed by Contractor to the

State; (iv) is disclosed to Contractor, without confidentiality obligations, by a third party who has the right to disclose such information; or (v) was independently developed without reliance on any State Confidential Information.

X. “State Fiscal Rules” means the fiscal rules promulgated by the Colorado State Controller pursuant to §24-30-202(13)(a), C.R.S.

Y. “State Fiscal Year” means a 12-month period beginning on July 1 of each calendar year and ending on June 30 of the following calendar year. If a single calendar year follows the term, then it means the State Fiscal Year ending in that calendar year.

Z. “State Records” means any and all State data, information, and records, regardless of physical form.

AA. “Subcontractor” means any third party engaged by Contractor to aid in performance of the Work.

BB. “Term” means the Initial Term, any Extension Term(s), and any End of Term

Extension(s), collectively.

CC. “Tax Information” means federal and State of Colorado tax information including, without limitation, federal and State tax returns, return information, and such other tax-related information as may be protected by federal and State law and regulation. Tax

Information includes but is not limited to all information defined as federal tax information in Internal Revenue Service Publication 1075.

DD. “Work” means the Goods delivered and Services performed pursuant to this Contract.

EE. “Work Product” means the tangible and intangible results of the Work, whether finished or unfinished, including drafts. Work Product includes, but is not limited to, documents, text, software (including source code), research, reports, proposals, specifications, plans, notes, studies, data, images, photographs, negatives, pictures, drawings, designs, models, surveys, maps, materials, ideas, concepts, know-how, and any other results of the Work. “Work Product” does not include any material that was developed prior to the

Effective Date that is used, without modification, in the performance of the Work.

Any other term used in this Contract that is defined elsewhere in this Contract or in an Exhibit shall be construed and interpreted as defined in that section or in that Exhibit.

4. Statement of Work

Contractor shall complete the Work as described in this Contract and in accordance with the provisions of Exhibit A. The State shall have no liability to compensate Contractor for the delivery of any goods or the performance of any services that are not specifically set forth in this Contract.

5. Payments to Contractor

A. Contract Maximum Amount

Payments to Contractor are limited to the unpaid, obligated balance of the Contract

Funds. The Contract Maximum Amount for each State Fiscal Year shall be equal to the total maximum amount of all Contract Funds for that State Fiscal Year. The State shall not pay Contractor any amount under this Contract that exceeds the Contract Maximum for that State Fiscal Year shown on the Cover Page for this Contract.

B. Payment Procedures

i. Invoices and Payment

a. The State shall pay Contractor in the amounts and in accordance with the schedule and other conditions set forth in Exhibit A.

b. Contractor shall initiate payment requests by invoice to the State, in a form and manner approved by the State.

c. The State shall pay each undisputed invoice within 45 days following the

State’s receipt of that invoice, so long as the amount invoiced correctly represents Work completed by Contractor and previously accepted by the State during the term that the invoice covers. If the State determines that the amount of any invoice is not correct, then Contractor shall make all changes necessary to correct that invoice.

d. The payment or acceptance of an invoice shall not constitute acceptance of any Work performed or Deliverables provided under this Contract.

ii. Interest

Amounts not paid by the State within 45 days of the State’s acceptance of the invoice shall bear interest on the unpaid balance beginning on the 45th day at the rate of 1% per month, as required by §24-30-202(24)(a), C.R.S., until paid in full;

provided, however, that interest shall not accrue on unpaid amounts that the State disputes in writing. Contractor shall invoice the State separately for accrued interest on delinquent amounts, and the invoice shall reference the delinquent payment, the number of day’s interest to be paid and the interest rate.

iii. Payment Disputes

If Contractor disputes any calculation, determination or amount of any payment, Contractor shall notify the State in writing of its dispute within 30 days following the earlier to occur of Contractor’s receipt of the payment or notification of the determination or calculation of the payment by the State. The State will review the information presented by Contractor and may make changes to its determination based on this review. The calculation, determination or payment amount that results from the State’s review shall not be subject to additional dispute under this subsection. No payment subject to a dispute under this subsection shall be due until after the State has concluded its review, and the State shall not pay any interest on any amount during the period the payment is subject to dispute under this subsection.

iv. Available Funds-Contingency-Termination

The State may be prohibited by law from making commitments beyond the term of the current State Fiscal Year. Payment to Contractor beyond the current State

Fiscal Year is contingent on the appropriation and continuing availability of Contract

Funds in any subsequent year (as provided in the Colorado Special Provisions). If federal funds or funds from any other non-State funds constitute all or some of the

Contract Funds the State’s obligation to pay Contractor shall be contingent upon such non-State funding continuing to be made available for payment. Payments to be made pursuant to this Contract shall be made only from Contract Funds, and the

State’s liability for such payments shall be limited to the amount remaining of such

Contract Funds. If State, federal or other funds are not appropriated, or otherwise become unavailable to fund this Contract, the State may, upon written notice, terminate this Contract, in whole or in part, without incurring further liability. The

State shall, however, remain obligated to pay for Services and Goods that are delivered and accepted prior to the effective date of notice of termination, and this termination shall otherwise be treated as if this Contract were terminated in the public interest as described in §2.E.

6. Reporting - Notification

A. Quarterly Reports

In addition to any reports required pursuant to §17 or pursuant to any other Exhibit, for any contract having a term longer than three months, Contractor shall submit, on a quarterly basis, a written report (“Quarterly Report”) specifying progress made for each specified performance measure and standard in this Contract. Such Quarterly Report shall be in accordance with the procedures developed and prescribed by the State.

Quarterly Reports shall be submitted to the State not later than five Business Days following the end of each calendar quarter or at such time as otherwise specified by the

State. Contractor acknowledges that all Quarterly Reports under this Contract are subject to the Colorado False Claims Act, §§24-31-1204, et seq., C.R.S.

B. Litigation Reporting

If Contractor is served with a pleading or other document in connection with an action before a court or other administrative decision making body, and such pleading or document relates to this Contract or may affect Contractor’s ability to perform its obligations under this Contract, Contractor shall, within 10 days after being served, notify the State of such action and deliver copies of such pleading or document to the

State’s Principal Representative identified on the Cover Page for this Contract.

C. Performance Outside the State of Colorado or the United States, §24-102-206, C.R.S.

i. Performance Outside the State of Colorado

To the extent not previously disclosed in accordance with §24-102-206, C.R.S., Contractor shall provide written notice to the State, in accordance with §15 and in form designated by the State, within 20 days following the earlier to occur of

Contractor’s decision to perform Services, including accessing State Records or the

State’s Information Technology, outside of the State of Colorado, or its execution of an agreement with a Subcontractor to perform Services outside the State of

Colorado. Such notice shall specify the type of Services to be performed outside the

State of Colorado and the reason why it is necessary or advantageous to perform such Services at such location or locations, and such notice shall be a public record.

Knowing failure by Contractor to provide notice to the State under this section shall constitute a Breach of Contract. This section shall not apply if the Contract Funds include any federal funds.

ii. Performance Outside of the United States

Contractor shall request written approval from the State, prior to the Effective

Date, acting through the Office of Information Technology, for Contractor to perform, or subcontract to perform, Services outside the United States, including accessing State Records or the State’ Information Technology. The State may approve or deny such request within the State’s sole discretion, whether or not services outside the United States are prohibited or restricted by any Exhibit attached to this Contract. Following written approval from the State, Contractor shall comply with the notice provisions for performance outside the United States, as set forth in §24-102-206, C.R.S. Any notice provided to the State by Contractor regarding performance outside the United States shall be deemed ineffective if the

State has not granted prior written approval for such performance.

iii. Notwithstanding anything to the contrary in this Contract, Contractor shall not access or process Federal Tax Information (“FTI”) or Criminal Justice Information

(“CJI”), or the State’s Information Technology that connects to such information, from outside the United States, including accessing or processing by Contractor’s employees, agents, or Subcontractors.

D. SOC 1 Type II Annual Report

If Contractor performs Work for any of the State’s Information Technology systems that impact the State’s Comprehensive Annual Financial Report as determined by the

Colorado Office of the State Controller, Contractor, on an annual basis, shall deliver to the State, at Contractor’s sole cost and expense, Contractor’s System and Organization

Controls 1 Type II Report (“SOC 1 Type II Report”) for each fiscal year prepared by a qualified independent audit firm with respect to the Statement on Standards for

Attestation Engagements, Reporting on Controls at a Service Organization (SSAE) as promulgated by the Auditing Standards Board of the American Institute of Certified

Public Accountants, as amended, from time to time.

7. Contractor Records

A. Maintenance

Contractor shall maintain a file of all documents, records, communications, notes and other materials relating to the Work (the “Contractor Records”). Contractor Records shall include all documents, records, communications, notes and other materials maintained by Contractor that relate to any Work performed by Subcontractors, and Contractor shall maintain all records related to the Work performed by Subcontractors required to ensure proper performance of that Work. Contractor shall maintain Contractor Records until the last to occur of: (i) the date three years after the date this Contract expires or is terminated, (ii) final payment under this Contract is made, (iii) the resolution of any pending Contract matters, or (iv) if an audit is occurring, or Contractor has received notice that an audit is pending, the date such audit is completed and its findings have been resolved (the “Record Retention Period”).

B. Inspection

Contractor shall permit the State, the federal government, and any other duly authorized agent of a governmental agency to audit, inspect, examine, excerpt, copy and transcribe

Contractor Records during the Record Retention Period. Contractor shall make Contractor

Records available during normal business hours at Contractor’s office or place of business, or at other mutually agreed upon times or locations, upon no fewer than two

Business Days’ notice from the State, unless the State determines that a shorter period of notice, or no notice, is necessary to protect the interests of the State.

C. Monitoring

The State, the federal government, and any other duly authorized agent of a governmental agency, in its discretion, may monitor Contractor’s performance of its obligations under this Contract using procedures as determined by the State or that governmental entity. The State shall monitor Contractor’s performance in a manner that does not unduly interfere with Contractor’s performance of the Work.

D. Final Audit Report

Contractor shall promptly submit to the State a copy of any final audit report of an audit performed on Contractor Records that relates to or affects this Contract or the Work, whether the audit is conducted by Contractor or a third party.

8. Confidential Information-State Records

A. Confidentiality

Contractor shall keep confidential, and cause all Subcontractors to keep confidential, all

State Records, unless those State Records are publicly available. Contractor shall not, without prior written approval of the State, use, publish, copy, disclose to any third party, or permit the use by any third party of any State Records, except as otherwise stated in this Contract, as required by law, or approved in writing by the State.

Contractor shall provide for, and shall require all Subcontractors to provide for, the security of all State Records, including State Confidential Information in accordance with all applicable laws, rules, publications, guidelines, and policies, including those promulgated by the Governor’s Office of Information Technology. If Contractor or any of its Subcontractors will or may receive the following types of data, Contractor and its

Subcontractors shall provide for the security of such data according to the following: (i) the most recently promulgated IRS Publication 1075 for all Tax Information and in accordance with the Safeguarding Requirements for Federal Tax Information (“FTI”), attached to this Contract as an Exhibit if applicable; (ii) the most recently updated PCI

Data Security Standard from the PCI Security Standards Council for all PCI; (iii) the most recently issued version of the U.S. Department of Justice, Federal Bureau of

Investigation, Criminal Justice Information Services Security Policy for all CJI attached to this Contract as an Exhibit, if applicable; and (iv) the federal Health Insurance Portability and Accountability Act for all PHI and in accordance with the HIPAA Business Associate

Agreement attached to this Contract as an Exhibit. Contractor shall immediately forward any request or demand for State Records to the State’s Principal Representative identified on the Cover Page of this Contract.

B. Other Entity Access and Nondisclosure Agreements

Contractor may provide State Records to its agents, employees, assigns, and

Subcontractors as necessary to perform the Work, but shall restrict access to State

Confidential Information to those agents, employees, assigns, and Subcontractors who require access to perform their obligations under this Contract. Contractor shall ensure all such agents, employees, assigns, and Subcontractors sign agreements containing nondisclosure provisions at least as protective as those in this Contract, and that the nondisclosure provisions are in force at all times the agent, employee, assign, or

Subcontractor has access to any State Confidential Information. Contractor shall provide copies of those signed nondisclosure provisions to the State upon execution of the nondisclosure provisions if requested by the State.

C. Use, Security, and Retention

Contractor shall use, hold, and maintain State Records in compliance with any and all applicable laws and regulations only in facilities located within the United States, and shall maintain a secure environment for all State Records and that ensures confidentiality of all State Confidential Information. Contractor shall provide the State with access, subject to Contractor’s reasonable security requirements, for purposes of inspecting and monitoring access and use of State Records, including State Records, including State

Confidential Information and evaluating security control effectiveness. Upon the expiration or termination of this Contract, Contractor shall return State Records provided to Contractor or destroy such State Records and certify to the State that it has done so, as directed by the State. If Contractor is prevented by law or regulation from returning or destroying State Records, Contractor shall provide written notice to the State and warrants it will guarantee the confidentiality of, and cease to use, such State Records.

D. Incident Notice and Remediation

If Contractor becomes aware of any Incident, Contractor shall notify the State immediately and cooperate with the State regarding recovery, remediation, and the necessity to involve law enforcement, as determined by the State. The Contractor shall provide regular, as reasonably requested, no less than weekly, videoconference, telephone, or email updates, during this collaborative investigation. Unless Contractor can establish that Contractor and its agents, employees, and Subcontractors are not the cause or source of the Incident, Contractor shall be responsible for the cost of notifying each person who may have been impacted by the Incident. After an Incident, Contractor shall take steps to reduce the risk of incurring a similar type of Incident in the future as directed by the State, which may include, but is not limited to, developing and implementing a remediation plan that is approved by the State at no additional cost to the State. The State may adjust or direct modifications to this plan in its sole discretion, and Contractor shall make all modifications as directed by the State. If Contractor cannot produce its analysis and plan within the allotted time, the State, in its sole discretion, may perform such analysis and produce a remediation plan, and Contractor shall reimburse the State for the actual costs thereof. The State may, in its sole discretion and at Contractor’s sole expense, require Contractor to engage the services of an independent, qualified, State-approved third party to conduct a security audit.

Contractor shall provide the State with the results of such audit and evidence of

Contractor’s planned remediation in response to any negative findings.

E. Data Protection and Handling

Contractor shall ensure that all State Records and Work Product in the possession of

Contractor or any Subcontractors are protected and handled in accordance with the requirements of this Contract, including the requirements of any Exhibits hereto, at all times.

F. Safeguarding PII

If Contractor or any of its Subcontractors will or may receive PII under this Contract, Contractor shall provide for the security of such PII, in a manner and form acceptable to the State, including, without limitation, State non-disclosure requirements, use of appropriate technology, security practices, computer access security, data access security, data storage encryption, data transmission encryption, security inspections, and audits. Contractor shall be a “Third-Party Service Provider” as defined in §24-73-

103(1)(i), C.R.S. and shall maintain security procedures and practices consistent with

§§24-73-101 et seq., C.R.S. In addition, as set forth in § 24-74-102, et. seq., C.R.S., Contractor, including, but not limited to, Contractor’s employees, agents and

Subcontractors, agrees not to share any PII with any third parties for the purpose of investigating for, participating in, cooperating with, or assisting with Federal immigration enforcement. If Contractor is given direct access to any State databases containing PII, Contractor shall execute, on behalf of itself and its employees, the certification attached hereto as Exhibit D on an annual basis. Contractor’s duty and obligation to certify as set forth in Exhibit D shall continue as long as Contractor has direct access to any State databases containing PII. If Contractor uses any Subcontractors to perform services requiring direct access to State databases containing PII, the Contractor shall require such Subcontractors to execute and deliver the certification to the State on an annual basis, so long as the Subcontractor has access to State databases containing PII.

9. Conflicts of Interest

A. Actual Conflicts of Interest

Contractor shall not engage in any business or activities or maintain any relationships that conflict in any way with the full performance of the obligations of Contractor under this Contract. Such a conflict of interest would arise when a Contractor or

Subcontractor’s employee, officer or agent were to offer or provide any tangible personal benefit to an employee of the State, or any member of the employee’s immediate family or the employee’s partner, related to the award of, entry into or management or oversight of this Contract.

B. Apparent Conflicts of Interest

Contractor acknowledges that, with respect to this Contract, even the appearance of a conflict of interest shall be harmful to the State’s interests. Absent the State’s prior written approval, Contractor shall refrain from any practices, activities or relationships that reasonably appear to be in conflict with the full performance of Contractor’s obligations under this Contract.

C. Disclosure to the State

If a conflict or the appearance of a conflict arises, or if Contractor is uncertain whether a conflict or the appearance of a conflict has arisen, Contractor shall submit to the State a disclosure statement setting forth the relevant details for the State’s consideration.

Failure to promptly submit a disclosure statement or to follow the State’s direction in regard to the actual or apparent conflict constitutes a Breach of Contract.

D. Contractor acknowledges that all State employees are subject to the ethical principles described in §24-18-105, C.R.S. Contractor further acknowledges that State employees may be subject to the requirements of §24-18-105, C.R.S. with regard to this Contract.

10. Insurance

Contractor shall obtain and maintain, and ensure that each Subcontractor shall obtain and maintain, insurance as specified in this section at all times during the term of this Contract.

All insurance policies required by this Contract shall be issued by insurance companies as approved by the State. Contractor shall ensure that Subcontractors carry insurance in amounts that are reasonable to the scope of work of any Subcontractors.

A. Workers’ Compensation

Workers’ compensation insurance as required by state statute, and employers’ liability insurance covering all Contractor or Subcontractor employees acting within the course and scope of their employment.

B. General Liability

Commercial general liability insurance covering premises operations, fire damage, independent contractors, products and completed operations, blanket contractual liability, personal injury, and advertising liability with minimum limits as follows:

i. $1,000,000 each occurrence;

ii. $1,000,000 general aggregate;

iii. $1,000,000 products and completed operations aggregate; and

iv. $50,000 any one fire.

C. Automobile Liability

If applicable, automobile liability insurance covering any auto (including owned, hired and non-owned autos) with a minimum limit of $1,000,000 each accident combined single limit.

D. Cyber/Network Security and Privacy Liability

Liability insurance covering civil, regulatory, and statutory damages, contractual damages, data breach management exposure, and any loss of income or extra expense as a result of actual or alleged breach, violation or infringement of right to privacy, consumer data protection law, confidentiality or other legal protection for personal information, as well as State Confidential Information with minimum limits as follows:

i. $5,000,000 each claim; and

ii. $10,000,000 general aggregate. Cyber liability insurance can be limited based on the total number of records being held by the Contractor.

a. Less than 1,000,000 records - minimum limit $1,000,000/$2,000,000 per claim

b. 1,000,001 - 3,000,000 records - minimum limit $2,000,000/$4,000,000 per claim

c. Greater than 3,000,000 records - minimum limit $5,000,000/$10,000,000 per claim

d. These limits grow throughout the life of the Contract. If the number of records grows over time, the minimum insurance limits must also grow.

E. Professional Liability Insurance

Professional liability insurance covering any damages caused by an error, omission or any negligent act with minimum limits as follows:

i. $1,000,000 each claim; and

ii. $1,000,000 general aggregate.

F. Crime Insurance

Crime insurance including employee dishonesty coverage with minimum limits as follows:

i. $1,000,000 each occurrence; and

ii. $1,000,000 general aggregate.

G. Additional Insured

The State shall be named as additional insured on all commercial general liability policies

(leases and construction contracts require additional insured coverage for completed operations) required of Contractor and Subcontractors.

H. Primacy of Coverage

Coverage required of Contractor and each Subcontractor shall be primary and noncontributory over any insurance or self-insurance program carried by Contractor or the

State.

I. Cancellation

The above insurance policies shall include provisions preventing cancellation or non-renewal, except for cancellation based on non-payment of premiums, without at least 30 days prior notice to Contractor and Contractor shall forward such notice to the State in accordance with §15 within seven days of Contractor’s receipt of such notice.

J. Subrogation Waiver

All insurance policies secured or maintained by Contractor or its Subcontractors in relation to this Contract shall include clauses stating that each carrier shall waive all rights of recovery under subrogation or otherwise against Contractor or the State, its agencies, institutions, organizations, officers, agents, employees, and volunteers.

K. Public Entities

If Contractor is a “public entity” within the meaning of the Colorado Governmental

Immunity Act, §§24-10-101, et seq., C.R.S. (the “GIA”), Contractor shall maintain, in lieu of the liability insurance requirements stated above, at all times during the term of this

Contract such liability insurance, by commercial policy or self-insurance, as is necessary to meet its liabilities under the GIA. If a Subcontractor is a public entity within the meaning of the GIA, Contractor shall ensure that the Subcontractor maintains at all times during the terms of this Contract, in lieu of the liability insurance requirements stated above, such liability insurance, by commercial policy or self-insurance, as is necessary to meet the Subcontractor’s obligations under the GIA.

L. Subcontractors

Contractor shall ensure that Subcontractors carry insurance in amounts that are reasonable, in Contractor’s discretion, to the scope of work of any Subcontractors.

Exceptions to insurance requirements for Subcontractors may include Cyber Insurance, if

Subcontractor is not hosting data in their system; and Professional Liability Insurance, if it does not apply to Subcontractor’s scope of work.

M. Certificates

Contractor shall provide to the State certificates evidencing Contractor’s insurance coverage required in this Contract within seven Business Days following the Effective Date.

Contractor shall provide to the State certificates evidencing Subcontractor insurance coverage required under this Contract within seven Business Days following the Effective

Date, except that, if Contractor’s subcontract is not in effect as of the Effective Date, Contractor shall provide to the State certificates showing Subcontractor insurance coverage required under this Contract within seven Business Days following Contractor’s execution of the subcontract. No later than 15 days before the expiration date of

Contractor’s or any Subcontractor’s coverage, Contractor shall deliver to the State certificates of insurance evidencing renewals of coverage. At any other time during the term of this Contract, upon request by the State, Contractor shall, within seven Business

Days following the request by the State, supply to the State evidence satisfactory to the

State of compliance with the provisions of this section.

11. Limitation of Contractor’s Liability to State

The liability of Contractor, its Subcontractors, and their respective personnel to the State for any claims, liabilities, or damages relating to this Contract shall be limited to damages, including but not limited to direct losses, consequential, special, indirect, incidental, punitive or exemplary loss, loss of State Records or unauthorized disclosure of State Confidential

Information, not to exceed three (3) times the Contract Maximum Amount payable by the

State under this Contract or $1,000,000.00, whichever is greater. Director damages include data losses and Incident notice and Incident remediation costs.

No limitation on Contractor's liability to the State under this Section shall limit or affect:

A. Contractor’s indemnification obligations to the State under this Contract;

B. Any claims, losses, or damages related to breach of Contractor’s security obligations under this Contract, including those for which coverage is available under any insurance required under this Contract;

C. Claims or damages arising out of bodily injury, including death, or damage to tangible property of the State; or

D. Claims or damages resulting from the recklessness, bad faith, or intentional misconduct of Contractor or its Subcontractors.

Contractor is not responsible for claims based on the sole actions of State employees acting without authority or unintended uses of the program.

12. Breach of Contract

In the event of a Breach of Contract, the aggrieved Party shall give written notice of breach to the other Party. If the notified Party does not cure the Breach of Contract, at its sole expense, within 30 days after the delivery of written notice, the Party may exercise any of the remedies as described in §13 for that Party. Notwithstanding any provision of this

Contract to the contrary, the State, in its discretion, need not provide notice or a cure period and may immediately terminate this Contract in whole or in part or institute any other remedy in this Contract in order to protect the public interest of the State; or if Contractor is debarred or suspended under §24-109-105, C.R.S., the State, in its discretion, need not provide notice or cure period and may terminate this Contract in whole or in part or institute any other remedy in this Contract as of the date that the debarment or suspension takes effect.

13. Remedies

A. State’s Remedies

If Contractor is in Breach of Contract, under any provision, and fails to cure such breach, the State, following the notice and cure period set forth in §12, shall have all of the remedies listed in this section in addition to all other remedies set forth in this Contract or at law. The State may exercise any or all of the remedies available to it, in its discretion, concurrently or consecutively.

i. Termination for Breach of Contract

In the event of Contractor’s uncured Breach of Contract, the State may terminate this entire Contract or any part of this Contract. Contractor shall continue performance of this Contract to the extent not terminated, if any.

a. Obligations and Rights

To the extent specified in any termination notice, Contractor shall not incur further obligations or render further performance past the effective date of such notice and shall immediately terminate outstanding orders and subcontracts with third parties. However, Contractor shall complete and deliver to the State all Work not cancelled by the termination notice and may incur obligations as necessary to do so within this Contract’s terms. At the request of the State, Contractor shall assign to the State all of Contractor’s rights, title, and interest in and to such terminated orders or subcontracts.

Upon termination, Contractor shall take timely, reasonable and necessary action to protect and preserve property in the possession of Contractor but in which the State has an interest. At the State’s request, Contractor shall return materials owned by the State in Contractor’s possession at the time of any termination. Contractor shall deliver all completed Work Product and all Work

Product that was in the process of completion to the State at the State’s request.

b. Payments

Notwithstanding anything to the contrary, the State shall only pay Contractor for accepted Work received as of the date of termination. If the State has made any advance payments to Contractor for any Work that has not been performed by Contractor and accepted by the State as of the date of termination, Contractor shall return such payments to the State within thirty

(30) days. If, after termination by the State, the State agrees that Contractor was not in Breach of Contract or that Contractor’s action or inaction was excusable, such termination shall be treated as a termination in the public interest, and the rights and obligations of the Parties shall be as if this

Contract had been terminated in the public interest under §2.E.

c. Damages and Withholding

Notwithstanding any other remedial action by the State, Contractor shall remain liable to the State for any damages sustained by the State in connection with any Breach of Contract by Contractor, and the State may withhold payment to Contractor for the purpose of mitigating the State’s damages until such time as the exact amount of damages due to the State from Contractor is determined. The State may withhold any amount that may be due Contractor as the State deems necessary to protect the State against loss including, without limitation, loss as a result of outstanding liens and excess costs incurred by the State in procuring from third parties replacement Work as cover.

ii. Remedies Not Involving…