Fieldprint Terms Final 060721.docx

STATE OF WISCONSIN

DEPARTMENT OF ADMINISTRATION

Tony Evers, Governor Joel Brennan, Secretary Jana Steinmetz, Administrator

May 21,2021

Price Agreement #: 4720

Participating Entity Contract Number: 505ENT-O21-FINGERPRIN-01 Term: Date of Execution – JULY 1, 2024

Exhibit A: Wisconsin Terms and Conditions

1. DEFINITIONS. Words and terms shall be given their ordinary and usual meanings. Unless negotiated otherwise by the parties, where capitalized, the following words and terms shall have the meanings indicated. The meanings shall be applicable to the singular, plural, masculine, feminine and neuter.

“Acceptance” means a manifestation of assent by the State to the terms, Services, Deliverables or other items offered by the Contractor under the Contract after Inspection by the State, or as set forth in the applicable Purchase Order or Statement of Work.

“Agency” or “State Agency” means an office, department, agency, institution of higher education, association, society or other body in the State of Wisconsin government created or authorized to be created by the State Constitution or any law, which is entitled to expend moneys appropriated by law, including the legislature and the courts, but not including an authority, as defined in Wis. Stat. s. 16.70(2).

“Business Day” means any day on which the Contracting Agency is open for business.

“Confidential Information”, in addition to the definition set forth in Section 2.1.5.1 of the Price Agreement, means all tangible and intangible information and materials being disclosed in connection with this Contract, in any form or medium without regard to whether the information is owned by the State or by a third party, which satisfies at least one of the following criteria: (i) Personally Identifiable Information; (ii) Proprietary Information; (iii) non-public information related to the State’s employees, customers, technology (including data bases, data processing and communications networking systems), schematics, specifications, and all information or materials derived therefrom or based thereon; or (iv) information expressly designated as confidential in writing by the State. Confidential Information includes all information that is restricted or prohibited from disclosure by state or federal law.

“Contracted Personnel” means a Contractor’s employees or other personnel (including officers, agents and Subcontractors) provided by the Contractor specifically to render Services under this Contract.

“Contracting Agency” means the Agency entering into this Contract on behalf of the State.

“Day” means calendar day unless otherwise specified in this Contract.

“Deliverables” means all project materials, including hardware, software licenses, data, and documentation delivered and/or provided to Customer during the rendering of Services hereunder. For purposes of clarification, title to equipment passes upon arrival to the customer destination; however, software is licensed, not owned by the customer.

“Inspection” means an examination of Deliverables or Services provided under this Contract in order to determine whether they meet the requirements of the applicable Order and/or Statement of Work, as applicable.

“Personally Identifiable Information” means an individual’s last name and the individual’s first name or first initial, in combination with and linked to any of the following elements, if that element is not publicly available information and is not encrypted, redacted, or altered in any manner that renders the element unreadable: (a) the individual’s Social Security number; (b) the individual’s driver’s license number or state identification number; (c) the number of the individual’s financial account, including a credit or debit card account number, or any security code, access code, or password that would permit access to the individual’s financial account; (d) the individual’s DNA profile; or (e) the individual’s unique biometric data, including fingerprint, voice print, retina or iris image, or any other unique physical representation, and any other information protected by state or federal law.

“Products” means articles of trade or items of merchandise, supplies, raw materials, or finished products, and may also include incidental or related services as the situation may require.

“Properly-submitted Invoice” is one that is submitted in accordance with instructions contained on the State’s Purchase Order, includes a reference to the proper Purchase Order number, and is submitted to the proper address for processing.

“Proprietary Information” means information, including a formula, pattern, compilation, program, device, method, technique or process to which all of the following apply:

a. The information derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use.

b. The information is the subject of efforts to maintain its secrecy that are reasonable under the circumstances.

“Purchase Order” means the State’s standard document of a purchase of Deliverables and Services.

“Services” means all work performed, and labor, actions, recommendations, plans, research, customizations, modifications, documentation, and maintenance and support provided by the Contractor necessary to fulfill that which the Contractor is obligated to accomplish under this Contract.

“SOW” means Statement of Work.

“State” means the State of Wisconsin.

“Subcontract” means an agreement, written or oral between the Contractor and any other party to fulfill the requirements and performance obligations of this Contract.

“Subcontractor” means an entity that enters into a Subcontract with the Contractor for the purpose of delivering Deliverables or rendering Services to the State.

2. CONTRACT DISPUTE RESOLUTION. In the event of any dispute or disagreement between the parties under this Participating Addendum, whether with respect to the interpretation of any provision of this Participating Addendum, or with respect to the performance of either party hereto, each party shall appoint a representative to meet for the purpose of endeavoring to resolve such dispute or negotiate for an adjustment to such provision. No legal action of any kind, except for the seeking of equitable relief in the case of the public’s health, safety or welfare, may begin in regard to the dispute until this dispute resolution procedure has been elevated to the Contractor’s highest executive authority and the equivalent executive authority within the Contracting Agency, and either of the representatives in good faith concludes, after a good faith attempt to resolve the dispute, that amicable resolution through continued negotiation of the matter at issue does not appear likely.

3. Disclosure. If a state public official (s. 19.42, Stats.) or an organization in which a state public official holds at least a 10% interest is a party to this Contract, this contract is voidable by the state unless appropriate disclosure is made to the State of Wisconsin Ethics Commission, 101 East Wilson Street, Unit 127, Madison, Wisconsin 53703, [Telephone: (608) 266-8123].

4. State Payment Offsets For Contractor’s Delinquency. The State shall offset payments made to the Contractor under this Contract in an amount necessary to satisfy a certified or verifiable delinquent payment owed to the State or any state or local unit of government.

5. Examination of Records. The State shall on an annual basis, at a mutually agreed time during normal business hours, upon thirty (30) days written notice to Contractor, have access to and the right to examine, audit, excerpt, transcribe, and copy, on Contractor’s premises, any of Contractor records directly related to invoices generated under this Participating Addendum (“Records”). If the Records are on computer data storage media, Contractor shall provide copies of the data storage media or a computer printout of such if the State so requests. Any charges for copies of Records provided by Contractor shall not exceed the actual cost to Contractor. Contractor shall retain Records for three (3) years from the respective invoice date. This provision shall survive the termination or cancellation of this Contract.

6. Invoicing/Payment. Contractor will invoice the State prior to each applicable license period, for any Software license and support fees due. Payment terms for all properly submitted invoices are net thirty (30) days from receipt of invoice providing that the Software or services to be provided to the State have been delivered, rendered, or installed as the case may be. A properly submitted invoice is one that is submitted in accordance with instructions contained on the State’s Purchase Order, includes a reference to the proper Purchase Order number, and is submitted to the proper address for processing.

7. If the State fails to pay a properly submitted invoice within thirty (30) Days of receipt, it shall pay a late payment penalty of one percent (1%) per month as provided in s. 16.528, Wis. Stats. However, if the State declares a good faith dispute regarding an invoice pursuant to s. 16.528 (3)(e), Wis. Stats., it shall pay any undisputed portion of said invoice, and will be exempt from the prompt payment requirement for the disputed portion. The State of Wisconsin as Licensee represents that it is tax exempt.

8. Non-Appropriation of Funds. The State reserves the right to cancel this Participating Addendum in whole or in part without penalty if the Legislature fails to appropriate funds necessary to complete the Participating Addendum.

9. Notice and Change of Contact Information. In the event either Contractor or the State moves or updates contact information, the applicable party shall inform the other party of such changes in writing within ten (10) Business Days. The State shall not be held responsible for payments on Purchase Orders delayed due to Contractor’ failure to provide such notice. Any notice required or permitted to be given shall be deemed to have been given on the date of delivery or three (3) Business Days after mailing by e-mail or postal service.

10. Promotional Advertising and News Releases. Reference to or use of the State of Wisconsin, the Great Seal of the State, the Wisconsin Coat of Arms, any Agency or other subunits of the State government, or any State official or employee, for commercial promotion is strictly prohibited. News releases or release of broadcast e-mails or US mail pertaining to this Contract shall not be made without prior written approval of the State. Notwithstanding the foregoing, Contractor may identify the State of Wisconsin as a customer in its annual report.

11. Refund of Credits. Within sixty (60) days of the State’s request, Contractor shall pay to the State any credits, if any, resulting from an order that the State determines cannot be applied to future invoices.

12. Recordkeeping and Record Retention. Contractor shall establish and maintain adequate records directly related to invoices generated under the Participating Addendum. All expenditure records shall be kept in accordance with Generally Accepted Accounting Procedures (GAAP). All procedures shall be in accordance with applicable federal laws or ordinances, and with applicable State and local laws or ordinances for the location where invoices are generated that are not in conflict with federal law.

13. Sovereign Immunity. Nothing in this Contract shall be construed to constitute a waiver of the State’s sovereign immunity under the Eleventh Amendment to the United States Constitution and Article IV, Section 27 of the Wisconsin Constitution.

14. IRS Publication 1075: If applicable, Contractor and Contracted Personnel shall adhere to the requirements of IRS Publication 1075, particularly Exhibit 7 and the Safeguarding Contract Language, including subsequent versions published by the IRS after the date of Contract execution. Contractor hereby acknowledges and agrees that specific customers or Agencies may have additional requirements as a result of IRS Publication 1075. Contractor shall comply with such agency requirements.

15. Wisconsin Executive Order 1. Pursuant to 2019 Wisconsin Executive Order 1, Contractor agrees it will hire only on the basis of merit and will not discriminate against any persons performing a contract, subcontract or grant because of military or veteran status, gender identity or expression, marital or familial status, genetic information or political affiliation.

16. State of Israel. Pursuant to s. 16.75(10p), Wis. Stats., contractor agrees it is not, and will not for the duration of the contract, engage in a prohibited boycott of the State of Israel as defined in s. 20.931(1)(b). State agencies and authorities may not execute a contract and reserve the right to terminate an existing contract with a company that is not compliant with this provision. This provision applies to contracts valued $100,000 or over.

17. Nondiscrimination and Affirmative Action. The Contractor shall not discriminate against any employee or applicant for employment because of age, race, religion, color, handicap, sex, physical condition, national origin, developmental disability as defined in § 51.01(5), Wis. Stats., or sexual orientation as defined in § 111.32(13m), Wis. Stats. This provision shall include, but is not limited to, employment, upgrading, demotion or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. Except with respect to sexual orientation, the Contractor shall take affirmative action to ensure equal employment opportunities.

Unless exempted by workforce size (50 or fewer employees) or Contract amount ($50,000 or less), the Contractor must submit a written affirmative action plan to the State.

The Contractor shall post the notice provided by the State, setting forth the provisions of the State's nondiscrimination laws, in its workplace, website or conspicuous places in order that the Contractor’s employees and applicants for employment are able to read it.

Failure to comply with the conditions of this provision may result in the following consequences:

termination of this Contract as provided in the Price Agreement, designation of the Contractor as "ineligible" for future consideration as a responsible, qualified bidder or proposer for State contracts, or withholding of a payment due under the Contract until the Contractor is in compliance

18. State Employees. The Contractor may not contract with or employ a State employee or an individual retained as a full-time contractor by the State during the term of this Contract.

19. No Agency Relationship. The Contractor shall not take any action, or make any omission, that may imply, or cause others reasonably to infer that the Contractor is acting as the State’s agent in any matter or in any way not expressly authorized by this Contract.

(a) In addition to the rights of either party to terminate the contract for a default, as specified in Section 2.9 of the Price Agreement, the State reserves the right to cancel this Contract upon ten (10) days’ prior written notice, if the Contractor:

· Fails to maintain and keep in force all required insurance, permits and licenses as provided in this Contract;

· Fails to maintain the confidentiality of the State’s information that is considered to be Confidential Information, or

· Performs in a manner that threatens the health or safety of a State employee, citizen, or customer.

(b) The State reserves the right to cancel this Contract without penalty, with 30 days’ prior written notice, if the Contractor:

· Fails to follow the sales and use tax certification requirements of s. 77.66 of the Wisconsin Statutes;

· Incurs a delinquent Wisconsin tax liability;

· Fails to submit a non-discrimination or affirmative action plan as required herein.

· Fails to follow the non-discrimination or affirmative action requirements of subch. II, Chapter 111 of the Wisconsin Statutes (Wisconsin’s Fair Employment Law); or

· Becomes a state or federally debarred contractor.

The Contractor shall be solely responsible for its actions and those of its agents, employees, or Subcontractors. Neither the Contractor nor any of the foregoing parties has authority to act or speak on behalf of the State.

24. CONTRACTOR’S INSURANCE RESPONSIBILITY. in addition to the insurance coverage required to be held by Contractor as set forth in Section 1.12 of the Price Agreement, the Contractor shall maintain the following insurance coverage:

· Worker's compensation insurance, to the extent required under Chapter 102 of the Wisconsin Statutes, for all of the Contractor’s employees and Contracted Personnel engaged in the work performed under this Contract;.

· Motor vehicle insurance for all owned, non-owned and hired vehicles that are used in carrying out the terms of this Contract, with a minimum coverage of one million dollars ($1,000,000) per occurrence combined single limit for automobile liability and property damage.

· Certificate of Insurance, showing up-to-date coverage, which shall be on file in the Contracting Agency within five (5) business days after the Effective Date of the Contract (if applicable).

The State reserves the right to require higher or lower insurance limits, where warranted, subject, however, to Contractor’s confirmation that it is able to procure such insurance coverage.

25. INDEMNIFICATION BY STATE. The State of Wisconsin will not indemnify the Contractor under this Participating Addendum or the Price Agreement to the extent such indemnification is not permitted under the State of Wisconsin law.

26. CONFIDENTIAL INFORMATION.

In addition to the terms set forth in Section 2.1.5.1 of the Price Agreement, the parties agree as follows:

(a) Disclosures.

Contractor shall institute and maintain such security procedures as are commercially reasonable to maintain the confidentiality of the Confidential Information while in its possession or control, including transportation, whether physically or electronically.

Contractor shall ensure that all indications of confidentiality contained on or included in any item of the Confidential Information shall be reproduced by Contractor on any reproduction, modification, or translation of such Confidential Information. If requested by the State, Contractor shall make a reasonable effort to add a proprietary notice or indication of confidentiality to any tangible materials within its possession that contain Confidential Information of the State, as directed.

(b) Contractor Breach of Confidentiality.

In the event of a breach by Contractor of obligations of confidentiality under this Section, to the extent arising directly from the negligence or willful misconduct of the Contractor, its Subcontractors, employees and/or agents, Contractor shall reimburse State for reasonably foreseeable direct damages, costs and expenses, such as disallowances or penalties from federal oversight agencies, and any notification costs incurred by the State in the compliance of any applicable data privacy laws and, with respect to Personally Identifiable Information, the costs of monitoring the credit of all persons whose Personally Identifiable Information was disclosed. Notwithstanding the Limitation of Liability set forth in the Price Agreement, Contractor’s liability under this Section shall not exceed $100,000.

27. LABOR STANDARDS. The Contractor guarantees that any items provided to the State hereunder were manufactured or produced in accordance with applicable state and federal labor laws.

28. SECURITY OF PREMISES, EQUIPMENT, DATA AND PERSONNEL. During the performance of Services under this Contract, the Contractor may have access to the personnel, premises, equipment, and other property, including data files, information, or materials belonging to the State. The Contractor shall preserve the safety, security, and the integrity of the personnel, premises, equipment, data and other property of the State, in accordance with the reasonable written instructions of the State which shall be provided to Contractor. The Contractor shall be responsible for damage to the State's equipment, workplace, and its contents, to the extent such damage or loss is caused by the negligence or willful misconduct of Contractor, Contracted Personnel, or Subcontractors. This remedy shall be in addition to any other remedies available to the State by law or in equity.

29. RENDERING OF AND WARRANTY FOR SERVICES. The Contractor shall render Services with all due skill, care, and diligence, in accordance with accepted industry practices and legal requirements, and to both parties’ mutual satisfaction. The State may, with prior written notice to Contractor, inspect, observe and examine the performance of the Services rendered on the State's premises at any time.

30. CONTRACTOR PERSONNEL.

(a) Identification. If requested by the State, the Contractor shall provide a list of the names of all Contractor’s employees, Contracted Personnel, or Subcontractor’s employees who may at any time require admission to the State’s premises in connection with the rendering of Services, specifying each such person’s connection to the Contractor, the role the person is to take in the performance of the Contract, and other particulars as the State may reasonably require. The State reserves the right to refuse to admit to the State's premises any person employed or contracted by the Contractor whose admission, in the sole opinion of the State, would be undesirable.

(b) Right to Approve Changes of Contracted Personnel. The State shall, with good cause, have the right to reasonably approve or disapprove a proposed change of Contracted Personnel who will be providing services to State on site. State will provide Contractor with a reasonable period of time to implement such change in the Key or Contracted Personnel. The Contractor shall provide to the State, in each instance a resume of the proposed substitute and an opportunity to interview that person prior to giving its approval or disapproval. The State shall not unreasonably withhold this approval.

(c) Contracted Personnel Removal. The State may reasonably request that the Contractor remove or reassign Key or Contracted Personnel who are on the State site at the State's discretion; however, the State's right to do so does not implicate the State as a party to any of the Contractor's obligations in the Contract. The State may request that such a Contracted Personnel be replaced within ten (10) Business Days from such removal, or other reasonable time period as agreed by the parties.

(d) Identification of Contracted Personnel. The Contractor shall furnish each Contracted Personnel with a means of identifying themselves as agents, Subcontractors, or employees of the Contractor assigned to perform Services under the Contract, and furnish the State with security credentials on these Contracted Personnel, if requested.

(e) Background or Criminal History Investigation. Prior to joining Cisco, Cisco performs a background or criminal history investigation of its Contracted Personnel and employees, who will be providing Services to the State under the Contract. If any of the stated personnel providing Services to the State on State premises under this Contract is not acceptable to the State in its sole opinion as a result of the background or criminal history investigation, the State may request prompt replacement of the person.

31. IDENTIFICATION. All invoices affecting a Purchase Order hereunder shall contain the applicable State Purchase Order number.

32. LIENS, CLAIMS AND ENCUBRANCES. The Contractor warrants and represents that all Deliverables ordered hereunder are free and clear of all liens, or encumbrances of any kind.

33. WARRANTY OF ITEMS OFFERED. Deliverables and Services rendered shall be strictly in accordance with the requirements of the applicable purchase order and may not deviate in any way from the terms, conditions or specifications of this Contract, without the prior written approval of the State. Deliverables delivered under this Contract are subject to Inspection and Acceptance testing upon receipt, as set forth in the applicable Purchase Order or Statement of Work.

34. PERFORMANCE. Services rendered under this Contract shall be performed in a timely, professional and diligent manner by qualified and efficient personnel and in conformity with the strictest quality standards mandated or recommended by all generally recognized organizations establishing quality standards for the type of Services to be rendered hereunder. The Contractor shall be solely responsible for controlling the manner and means by which it and its Contracted Personnel or its Subcontractors render Services, and the Contractor shall observe, abide by, and perform all of its obligations in accordance with all legal requirements and State or Agency work rules which are made available in writing to Contractor and its Contracted Personnel.

Without limiting the foregoing, the Contractor shall control the manner and means of the Services rendered so as to do so in a reasonably safe manner and in compliance with all applicable codes, regulations and requirements imposed or enforced by any government agencies, including all applicable requirements of the Occupational Safety and Health Administration (OSHA) and all safety codes and procedures mandated or recommended by insurance underwriting organizations and all generally recognized organizations establishing safety standards, including without limitation the National Fire Protection Association. Notwithstanding the foregoing, any stricter standard provided in plans, specifications or other documents incorporated as part of this Contract shall govern.

35. REFUND OF CREDITS. Within sixty (60) days after any termination or expiration of this Participating Addendum, Contractor agrees to pay to State in cash any amounts paid by State for Products or Services for which Contractor is obligated to provide a refund.

36. PROMPT PAYMENT. The State shall pay the Contractor’s Properly-submitted Invoices within thirty (30) Days of the date of receipt of the invoice by State, provided that the Deliverables or Services to be provided to the State have been delivered, rendered, installed, and/or accepted as specified in a Statement of Work (SOW) or this Contract.

If the State fails to pay a Properly-submitted Invoice within thirty (30) Days of receipt, it shall pay a late payment penalty as provided in §16.528, Wis. Stats. However, if the State declares a good faith dispute in regard to an invoice pursuant to §16.528 (3)(e), Wis. Stats., it may pay any undisputed portion of said invoice, and will be exempt from the prompt payment requirement for the disputed portion.

37. STATE TAX EXEMPTION. The State is exempt from payment of Wisconsin sales or use tax on all purchases.

38. RECORDS, RECORDKEEPING AND RECORD RETENTION. Records administration and audit shall be conducted pursuant to Section 1.7 of the Price Agreement. Pursuant to §19.36 (3) of the Wisconsin Statutes, all records of the Contractor that are produced or collected under this Contract are subject to disclosure pursuant to a public records request. All expenditure records shall be kept in accordance with Generally Accepted Accounting Procedures (GAAP). All procedures shall be in accordance with federal, State and local laws or ordinances. The Contractor, following final payment, shall retain all records produced or collected under this Contract for six (6) years.

39. SEVERABILITY. If any provision of this Contract is found by a court of competent jurisdiction to be invalid or unenforceable, the remainder of the Contract shall remain valid and in full force and effect. The invalid provision shall be replaced by a valid provision that comes closest in intent to the invalid provision.

40. NO GUARANTEE OF QUANTITY. The State may obtain related Deliverables and Services from other sources during the term of this Contract. The State makes no express or implied warranties whatsoever that any particular quantity or dollar amount of Deliverables or Services will be procured through this Contract.

41. TERMINATION OF PURCHASE ORDER. The State may terminate a specific Purchase Order issued under this Contract prior to acceptance of such Purchase Order. After acceptance of a Purchase Order, Deliverable sales are final and such termination shall not affect the rights and obligations with respect to such Purchase Orders, including any right of payment for Deliverables delivered and Services rendered.

Division of Enterprise Operations, State Bureau of Procurement 101 East Wilson Street, PO Box 7867, Madison, WI 53707-7867 | (608) 264-7897 | DOA.WI.GOV image1.png