FINAL Deloitte contract - signed_Redacted.pdf

Contract # 505ENT-O17-SALESFORCE-04 2 of 25 Salesforce Implementation Services

TABLE OF CONTENTS

1. DEFINITIONS

2. APPLICABLE LAW

3. CONTRACT TERM

4. TERMINATION FOR CAUSE

5. TERMINATION FOR CONVENIENCE

6. CONTRACT CANCELLATION

7. TRANSITION SERVICES

8. POST CONTRACT OBLIGATIONS

9. PRIME CONTRACTOR; CONTRACTOR COMPLIANCE; RESPONSIBILITY FOR ACTIONS

10. ROLLING ESTOPPEL

11. WORK CENTER CRITERIA

12. NON-APPROPRIATION

13. CONTRACTOR’S INSURANCE RESPONSIBILITY

14. NONDISCRIMINATION AND AFFIRMATIVE ACTION

15. STATE PAYMENT OFFSETS FOR CONTRACTOR’S DELINQUENCY

16. CONTRACTOR INDEMNIFICATION

17. CONFIDENTIAL INFORMATION

18. INTELLECTUAL PROPERTY INFRINGEMENT AND LABOR STANDARDS

19. SECURITY OF PREMISES, EQUIPMENT, DATA AND PERSONNEL

20. RENDERING OF SERVICES

21. CONTRACTOR PERSONNEL

22. SHIPPING

23. RISK OF LOSS OR DAMAGE BORNE BY THE CONTRACTOR

24. IDENTIFICATION

25. LIENS, CLAIMS AND ENCUMBRANCES

26. WARRANTY AND REPRESENTATIONS

27. RECEIPT OF GOODS

28. PERFORMANCE

29. SPECIFICATIONS

30. INDEPENDENT CONTRACTOR

31. COOPERATION WITH OTHER CONTRACTORS

32. AUTHORIZED USER EMPLOYEES

33. ANTITRUST ASSIGNMENT

34. REFUND OF CREDITS

35. OWNERSHIP RIGHTS

36. PROMPT PAYMENT

37. STATE TAX EXEMPTION

38. PROMOTIONAL ADVERTISING AND NEWS RELEASES

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39. NOTICE AND CHANGE OF CONTACT INFORMATION

40. RECORDS, RECORDKEEPING AND RECORD RETENTION

41. BREACH NOT WAIVER

42. ASSIGNMENT OF CONTRACT

43. SEVERABILITY

44. CONTRACT DISPUTE RESOLUTION

45. TERMINATION OF PURCHASE ORDER

46. FORCE MAJEURE

47. NO AGENCY RELATIONSHIP

48. DISCLOSURE

49. OTHER DOCUMENTS

50. RATE CARD

51. SERVICES PERFORMED IN UNITED STATES

52. HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT OF 1996 (HIPAA)

53. LIMITATION ON DAMAGES

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STATE OF WISCONSIN SERVICES CONTRACT

1. DEFINITIONS

Words and terms shall be given their ordinary and usual meanings. 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 Authorized User to the Services and Deliverables offered by the Contractor under the Contract after Inspection by the Authorized User.

“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).

“Authorized User” means State Agencies, political subdivisions, and municipalities authorized by state statutes to use state contracts.

“Business Day” means any calendar day except Saturday, Sunday, and official State of Wisconsin holidays on which the Contracting Agency is open for business.

“Confidential Information” means all tangible and intangible information and materials exchanged between the parties in connection with this Contract, in any form or medium without regard to whether the information is owned by the Contractor, State or by a third party.

Confidential Information includes: (i) Personally Identifiable Information; (ii) Proprietary Information; (iii) non-public information related to a Party’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 disclosing party. Confidential Information includes all information that is restricted or prohibited from disclosure by state or federal law.

“Contract” means the final version of any contractually binding agreement between the State and the Contractor as set forth on the first page; references to the Contract include all exhibits, attachments, amendments and other documents attached thereto or incorporated therein by reference. .

“Contract Administrator” means the individual in DOA’s Division of Enterprise Technology (DET) responsible for administering day-to-day operational matters of the Contract.

“Contract Manager” means the individual in the State Bureau of Procurement (SBOP) responsible for managing this RFP and subsequent contractual issues.

“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.

“Contractor” means the entity entering into this Contract with the State.

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

“Default” means the material omission or failure to perform a contractual duty or provide Deliverables or render Services as contractually required.

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“Deliverables” means all work product created by Contractor for delivery to the Authorized User during the rendering of Services hereunder. Deliverables shall be the property of the Authorized User unless otherwise specified in the Contract.

“Inspection” means an examination of Deliverables provided under this Contract in order to determine whether they comply in all respects with the specifications under the SOW.

“Key Personnel” means specifically identified Contracted Personnel that play a lead and critical role in rendering Services during the Contract term, either as identified in the applicable Purchase Order and associated documents or the RFP response..

“Municipality” means any county, city, village, town, school district, board of school directors, sewer district, drainage district, vocational, technical and adult education district, or any other public body having the authority to award public contracts (Wis. Stats s. 16.70(8), Wis. Stats.) and Federally recognized Indian tribes and bands per Wis. Stats. ss. 66.0301(1) and (2).

“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.

“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.

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

“Purchase Order” means the Authorized User’s standard document ordering specific Deliverables and Services and accepted by Contractor.

“Services” means all work performed, and labor, actions, recommendations, plans, research, customizations, modifications, documentation, and maintenance and support provided by the Contractor as set forth in a Purchase Order performed under the 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 certain requirements and performance obligations of this Contract.

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“Subcontractor” means an entity that enters into a Subcontract with the Contractor for the purpose of delivering Deliverables or performing obligations of Contractor under the terms of this Contract.

“Work Center” means a charitable organization or nonprofit institution which is licensed under s.

104.07 and incorporated in this State or a unit of county government which is operated for the purpose of carrying out a program of rehabilitation for severely handicapped individuals and for providing the individuals with remunerative employment or other occupational rehabilitating activity of an educational or therapeutic nature, and which is engaged in the production of materials, supplies or equipment or the performance of contractual services in connection with which not less than 75% of the total hours of direct labor are performed by severely handicapped individuals.

2. APPLICABLE LAW

This Contract shall be governed by the laws of the State of Wisconsin. Venue for any action brought under this Contract shall lie in Madison, Dane County, Wisconsin.

3. CONTRACT TERM

The initial term of this Contract is targeted to be for two (2) years from the effective date, with the initial term ending August 23, 2018. The initial term is subject to change and will be at the sole discretion of the State. This Contract is eligible for two (2) mutually agreed upon one-year renewals, unless terminated as provided herein. To ensure the delivery of improved services and competitive pricing, to address potential performance issues, changes in technology or industry consolidation, the state reserves the right to negotiate the pricing and terms at the time of Contract renewal.

Only incomplete projects with an active Purchase Order which is not closed may be completed after contract expiration or termination for convenience under the same terms and conditions of the last term of the Contract. For all Authorized Users except State Agencies, such active Purchase Orders cannot exceed 12 months following contract termination or expiration. Specific to State Agencies, an active Purchase Order which is not closed after contract termination or expiration cannot exceed the term of the then-current fiscal year. If any Purchase Order is terminated pursuant to this Contract, this Contract shall continue to apply to all Purchase Orders that have not been terminated.

4. TERMINATION FOR CAUSE

The State may terminate this Contract after providing the Contractor with thirty (30) Days written notice of the Contractor’s right to cure such failure of the Contractor to perform under the terms of this Contract within the notice period and Contractor fails to cure such breach within the notice period.

The Contractor may terminate this Contract after providing the State with thirty (30) Days written notice of its intent to terminate and the State’s right to cure a failure of the State to perform under the terms of this Contract and State fails to cure such breach within the notice period.

Upon the termination of the Contract for any reason, or upon Contract expiration, each party shall be released from all obligations to the other party arising after the date of termination or expiration, except for those that by their terms survive such termination or expiration.

5. TERMINATION FOR CONVENIENCE

The State may terminate this Contract at any time, without cause, by providing a written notice to the other party at least thirty (30) Days in advance of the intended date of termination.

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Contractor may terminate this Contract at any time, without cause, by providing a written notice to the other party at least sixty (60) Days in advance of the intended date of termination.

In the event of a termination for convenience, the Contractor shall be entitled to receive compensation for any completed or partially completed Services or Deliverables rendered as of the date of termination plus expenses incurred in accordance with the terms under the Contract. The Authorized User shall be entitled to a refund for Deliverables or Services paid for but not received, such refund to be paid within 30 Days of written notice to the Contractor requesting the refund.

When written notice is provided, the State is referring to the date on the notice as the initial date of such notice.

6. CONTRACT CANCELLATION

The State reserves the right to cancel this Contract in whole or in part without penalty, and without prior notice, if the Contractor:

Files a petition in bankruptcy, becomes insolvent, or otherwise takes action to dissolve as a legal entity

Makes an assignment for the benefit of creditors

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.

The State reserves the right to cancel this Contract in whole or in part without penalty, with 30 Days’ 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 such. II, Chapter 111 of the Wisconsin Statutes (Wisconsin’s Fair Employment Law); or

Becomes a state or federally debarred contractor.

7. TRANSITION SERVICES

Upon cancellation, termination, or expiration of this Contract for any reason, the Contractor shall provide such reasonable cooperation, assistance and Services, and shall assist the State in the migration of the State's production operations to the State's control or to the control of an alternative contractor and the parties shall negotiate an SOW or Purchase Order setting forth the duration, scope and price of the transition services. This Contract shall automatically be extended by the number of days that training or continued Services are necessary to be performed in order to complete the transition services, not to exceed a term longer as allowed per Section 3. Such services shall be provided at the Contractor’s current contract rates, or such lower rates as agreed by the parties and the terms and conditions set forth herein.

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8. POST CONTRACT OBLIGATIONS

Upon the termination of this Contract for any reason, or upon Contract expiration, each party shall be released from all obligations to the other party arising after the effective date of termination or expiration, except for those that by their terms survive such termination or expiration.

9. PRIME CONTRACTOR; CONTRACTOR COMPLIANCE; RESPONSIBILITY FOR ACTIONS

Contractor is the Prime Contractor. Subcontractors are permitted to perform Services on this Contract. The Prime Contractor shall be the sole point of contact with regard to all contractual matters arising hereunder, including the performance of services and the payment of any and all charges resulting from its contractual obligations.

The Contractor shall at all times comply with and observe all federal, state, and local laws, ordinances, and regulations that are in effect during the term of this Contract that are applicable to the Contractor in its performance of the Services.

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.

10. ROLLING ESTOPPEL

The Authorized User assumes the obligation for the resources as indicated in the Statement of Work. The Authorized User will be conclusively deemed to have fulfilled its obligations, unless it receives a deficiency report (a status report shall be deemed to be a deficiency report if it contains any deficiencies of the Authorized User therein and clearly indicates as such) from the Contractor by the fifteen (15th) day of the month following the month of the alleged deficiencies and the Contractor identifies specific deficiencies in the Authorized User’s fulfillment of its obligations in that report. Deficiencies must be described in terms of how they have affected the specific performance requirement of the Contractor.

The Contractor is estopped from claiming that a situation has arisen that might otherwise justify changes in the project timetable, the standards of performance under the SOW and/or Contract or the contract price, if the Contractor knew of that problem and failed to include it in the applicable report. Notwithstanding the foregoing, however, if the Authorized User was on written notice of any deficiency, such failure to include such deficiency in the applicable report shall not prevent the Contractor from making a claim for changes in the project timetable, the standards of performance under the SOW and/or Contract upon prior written mutual agreement between parties prior to incurring such project changes or quoted cost.

In the event the Contractor identifies a situation where the Authorized User is impairing the Contractor’s ability to perform for any reason, the Contractor shall make reasonable efforts such that the deficiency report contains the Contractor’s suggested solutions to the situation(s). The Contractor shall make reasonable efforts so that these suggestions are in sufficient detail so that the State’s project managers can make a prompt decision as to the best method of dealing with the problem and continuing the project in an unimpeded fashion.

11. WORK CENTER CRITERIA

The Contractor shall implement processes that allow Agencies to satisfy the State's obligation to purchase goods and services produced by Work Centers certified under the State’s Work Center Law, §16.752, Wis. Stat. The Contractor shall include goods provided by Work Centers in its catalog for Agencies and block the sale of comparable items to Agencies.

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12. NON-APPROPRIATION

The Purchase Order may be terminated by the State or the Authorized User without penalty upon as much advance written notice as is reasonably practicable if funds are not appropriated, or if appropriations are reduced by the State of Wisconsin or Authorized User’s organization such that they become insufficient to fund the Purchase Order. The Authorized User shall remain obligated to pay for Services that are performed prior to any such termination or adjustment. In addition, the Contractor shall no obligation to perform any Services for which funds are unavailable.

13. CONTRACTOR’S INSURANCE RESPONSIBILITY

13.1 The Contractor performing services under this Contract shall provide and maintain:

a) Worker's compensation insurance, as 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; and

b) Commercial general liability, bodily injury and property damage insurance against claim(s) that may occur in carrying out the terms of this Contract, with a minimum coverage of one million dollars ($1,000,000) liability per occurrence for bodily injury and property damage including products liability and completed operations; and

c) 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 accident combined single limit for automobile liability, bodily injury and property damage; and

d) In a through c in this section, the State reserves the right to require higher or lower insurance limits where warranted.

13.2 Insurance renewal:

In the event that the Contractor fails to maintain and keep in force all insurance requirements for the entire Contract, the State shall have the right to cancel and terminate the Contract without notice. The contractor shall renew all policies and coverage in force at the start of and resulting from the Contract until specified coverage requirements are revised.

13.3 Notice of Cancellation of Insurance:

The contractor shall provide thirty (30) days prior written notice to the State before cancellation, reduction, or other adverse modifications of coverage. The Commercial General Liability insurance and the Automobile Liability Insurance policies shall be primary and non-contributing without any severability of interests’ clause in respect to grows liability, protecting each additional insured as though a separate policy has been issued to each.

13.4 Insurance Certificates:

Insurance certificates for the Contractor and all subcontractors, agents, and assigns shall be provided to the State at the time of Contract execution. In addition, if applicable, the Contractor shall provide to the State Contract Manager certificates of liability insurance covering related Subcontractors. The State of Wisconsin shall be named as an additional insured on all the Commercial General Liability and Automobile Liability policies. All insurance coverage shall be issued by an insurance company licensed to do business in the State of Wisconsin with a minimum AM Best rating of A-, or as otherwise approved in writing by the State.

13.5 Certificate of Insurance, showing up-to-date coverage, shall be on file in the Contracting Agency before the Contract may commence. Contractor must furnish to the State, certificate of insurance verifying insurance coverage or providing satisfactory evidence of self-insurance as

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The Contract Number must be shown on the Certificate of Insurance to assure correct filing.

13.6 Additional Insurance

The State reserves the right to require other special insurance from the Contractor.

14. 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, as and to the extent required by law and applicable to Contractor in its performance of the Services, must submit a written affirmative action plan to the State.

The Contractor shall post a 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.

Contractor shall comply with this Section 14 to the extent applicable to Contractor’s performance of work under this Contract. Failure to so comply with the conditions of this provision may result in the following consequences:

termination of this Contract, designation of the Contractor as "ineligible" for future consideration as a responsible, qualified bidder or proposer for State contracts until the Contractor is in compliance, or upon notice to Contractor of its non-compliance, temporary withholding of a payment due under the Contract until the Contractor is in compliance (in which case any and all such withheld payments shall be promptly paid to Contractor). Contractor shall not be obligated to perform the Services for the period of time during which the State withholds payments to Contractor.

15. STATE PAYMENT OFFSETS FOR CONTRACTOR’S DELINQUENCY

The State may 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 to any state or local unit of government under Wisconsin Statute 71.91.

16. CONTRACTOR INDEMNIFICATION

The Contractor shall indemnify, defend and hold harmless the State of Wisconsin, and its officers and employees from and against any and all liability including claims, demands, losses, costs (including reasonable attorney’s fees and costs), damages, and expenses (“Claims”) attributable to claims of third parties solely for bodily injury, death or damage to real or tangible personal property, to the extent directly and proximately caused by the negligence or intentional misconduct of contractor, its employees, agents and subcontractors while engaged in the performance of the Services provided; however, that if there also is fault on the part of any entity or individual indemnified hereunder or any entity or individual acting on the State’s behalf, the foregoing indemnification shall be on a comparative fault basis.

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As a condition to the indemnity obligations set forth in this Section and in Section 18, the indemnified party shall provide Contractor with prompt notice of any Claim for which indemnification shall be sought hereunder and shall cooperate in all reasonable respects with indemnifying party in connection with any such Claim, in its sole discretion, with counsel of its own choosing. The indemnifying party; however, may not agree to any settlement other than the payment of money or the release of any Claim without the indemnified party’s written consent, which shall not be unreasonably withheld.

The State is protected by the State of Wisconsin Self-Funded Liability, Property and Worker’s Compensation Programs. Wisconsin Statutes Section 895.46 provides that the State may pay judgments taken against State officers or employees for acts carried out while the officers or employees were acting within the scope of their employment. This provision applies only to State officers and employees, does not apply to independent contractors, and does not waive any duty of a Contractor to acquire liability insurance.

17. CONFIDENTIAL INFORMATION

17.1 Disclosures

In connection with each party’s performance hereunder, it may be necessary for one party (the “disclosing party”) to disclose to the other party (the “receiving party”) Confidential Information. The receiving party shall not use such information for any purpose other than the limited purposes set forth in this Contract, and all related and necessary actions taken in fulfillment of the obligations thereunder. The receiving party shall hold all such information in confidence, using at least the same degree of care as it employs in maintaining in confidence its own confidential information of a similar nature, but in no event less than a reasonable degree of care, and shall not disclose such information to any persons other than (i) as expressly set forth in this Contract or an Purchase Order, (ii) to its directors, officers, employees, and contractors (whether located within or outside of the United States) who have a business-related need to have access to such information in furtherance of the limited purposes of this Contract and who have been apprised of, and agree to maintain, the confidential nature of such information in accordance with terms no less protective than those contained in this Section 17, as may be required by law or regulation, or to respond to governmental inquiries, or in accordance with applicable professional standards or rules, or in connection with litigation pertaining to this Contract or an Purchase Order; or (iv) to the extent such information (A) is or becomes publicly available other than as the result of a disclosure in breach hereof, (B) becomes available to the receiving party on a non-confidential basis from a source that the receiving party believes is not prohibited from disclosing such information to the receiving party, (C) is already known by the receiving party without any obligation of confidentiality with respect thereto, or (D) is developed by the receiving party independently of any disclosures made to the receiving party hereunder.

The receiving party shall institute and maintain such security procedures as are commercially reasonable and designed to maintain the confidentiality of such information while in its possession or control, including transportation, whether physically or electronically.

The receiving party shall ensure that all indications of confidentiality contained on or included in any item of such information shall be reproduced by the receiving party on any reproduction, modification, or translation of such information. If requested by the disclosing party, the receiving party shall make a reasonable effort to add a proprietary notice or indication of confidentiality to any tangible materials within its possession that contain such information of

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The receiving party shall maintain all such information for a period of up to six (6) years from the date of termination of this Contract, and shall thereafter return or destroy said information as directed by the disclosing party. Notwithstanding anything herein to the contrary, Contractor may retain copies of such confidential information for archival purposes, provided that it retains such copies in accordance with its confidentiality obligations hereunder.

The State and the Authorized User agree that neither the Services nor any Deliverables are intended for the express or implied benefit of any person or entity other than the Authorized User’s intended business purposes. Except to the extent required by law, the State and the Authorized User further agree that the Services and Deliverables shall not be disclosed, in whole or in part, to any person or entity other than (i) the State or applicable Authorized User(s), (ii) other contractors of the Authorized User, to whom the Authorized User may disclose the Deliverables solely for the purpose of providing services to the Authorized User, provided that such other contractors shall not disclose the Deliverables to any person or entity, (iii)any other person or entity upon the prior written consent of Contractor’s engagement leader, which shall not be unreasonably withheld.

17.2 Equitable Relief in Event of Breach

Each party acknowledges and agrees that the unauthorized use, disclosure, or loss of Confidential Information (which includes Personally Identifiable, or Proprietary Information) may cause immediate and irreparable injury to the individuals whose information is disclosed and to the disclosing party, which injury may not be compensable by money damages and for which there may not be an adequate remedy available at law. Accordingly, the parties specifically agree that the disclosing party, on its own behalf or on behalf of the affected individuals, may seek injunctive or other equitable relief to prevent or curtail any such breach, threatened or actual, without posting security and without prejudice to such other rights as may be available under this Contract or under applicable law.

18. INTELLECTUAL PROPERTY INFRINGEMENT AND LABOR STANDARDS

The Contractor shall indemnify, defend and hold harmless the State of Wisconsin, the Department of Administration, and its officers, agents, and employees from liability of any nature or kind (including judgments, costs, and reasonable attorneys’ fees) attributable to a third party claim of infringement by a Deliverable of U.S. copyright, trademark, trade name, service mark, or patent, or other intellectual property, except to the extent that such infringement or unauthorized use arises from, or could have been avoided except for (i) the indemnified party's modification of the Deliverable or use thereof in a manner not contemplated by this Contract, (ii) the failure of the indemnified party to use any corrections or modifications made available by Contractor, (iii) information, materials, instructions or specifications provided by or on behalf of the indemnified party, or (iv) the use of the Deliverable in combination with any product or data not provided by Contractor unless Contractor specified such product or data or consented to such use in writing, but only to the extent that the combination caused the infringement.

If the Authorized User’s use of any such Deliverable, or any portion thereof, is or is likely to be enjoined or unauthorized use, Contractor, at its option and expense, shall have the right to (x) procure for State the continued use of such Deliverable, (y) replace such Deliverable with a non-infringing Deliverable, or (z) modify such Deliverable so it becomes non-infringing; provided that, if

(y) or (z) is the option chosen by Contractor, the replacement or modified Deliverable is capable of performing substantially the same function.

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The foregoing provisions of this paragraph constitute the sole and exclusive remedy of the indemnified parties, and the sole and exclusive obligation of Contractor, relating to a claim that any of Contractor's Deliverables infringes any patent, copyright or other intellectual property right of a third party.

19. 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 (collectively referred to as “data”) belonging to the Authorized User. The Contractor shall implement safeguards designed to preserve the safety, security, and the integrity of the data of the Authorized User that is accessed, received from, or on behalf of the Authorized User by the Contractor in performance of the Services; provided that the foregoing does not obligate Contractor, to implement safeguards on any Authorized User hardware and software (including servers, network and data components); as such controls shall be the responsibility of the Authorized User.

Where applicable to its performance under a Purchase Order, Contractor shall provide a reasonable secure environment for the data and any hardware and software, including servers, network and data components, in accordance with current industry practices designed to prevent unauthorized access to and use or modification of, and to otherwise protect, the application and the State’s data.

Contractor shall, at a minimum, implement the following procedures designed to protect the security of the data:

• User identification and access controls designed to limit access to data;

• External connections to the World Wide Web that shall have appropriate security controls including industry standard intrusion detection and countermeasures that shall detect and terminate any unauthorized activity prior to entering the firewall maintained by the Contractor;

• Industry standard firewalls regulating all data entering Contractor’s internal data network from any external source that shall enforce secure connections between internal and external systems and shall permit only specific types of data to pass through;

• Industry standard encryption techniques that shall be used when data is transmitted by Contractor on behalf of the Authorized User;

• Physical security measures, including securing all data on a secure server, in locked data cabinets within a secure facility. Access to facilities housing the data and Confidential Information restricted to only allow access to Contracted Personnel who have a need to know in connection with the operation of the application;

• Regular training for contractor’s Contracted Personnel regarding the security and data recovery programs referenced in this Section;

• Ensure all encrypted data is not decrypted by the Contractor unless specifically requested by the Authorized User.

20. RENDERING OF SERVICES

The Contractor shall render Services in accordance with the requirements of the applicable Purchase Order and the related SOW, when such exists, with all due skill, care, and diligence, in accordance with accepted industry practices and legal requirements, and to the Authorized User’s acceptance in accordance with this Section, which shall not be unreasonably withheld. The Authorized User shall approve each Deliverable that conforms in all material respects to the requirements therefor set forth in the applicable Purchase Order or as otherwise agreed by the

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Authorized User and Contractor in writing (“Specifications”). Within ten (10) business days (or such other period agreed upon in the applicable Purchase Order) from its receipt of a Deliverable, the Authorized User shall provide Contractor with (i) written approval of such Deliverable or (ii) a written statement which identifies in reasonable detail, with references to the applicable Specifications, all of the deficiencies preventing approval (the “Deficiencies”).

If the Authorized User notifies the Contractor pursuant to the foregoing that any Deliverable rendered has deficiencies other than as a result of the State’s default or negligence, the Contractor shall at its own expense have thirty (30) days (or such other period agreed upon in the applicable Purchase Order) from the date it receives the notice of such Deficiencies to complete corrective actions in order for such Deliverable to conform in all respects to the applicable Specifications. The Authorized User shall complete its review of the corrected Deliverable and notify Contractor in writing of acceptance or rejection in accordance with the foregoing provisions of this Section.

Notwithstanding the foregoing provisions of this Section, acceptance of a Deliverable shall be deemed given by the Authorized User if the Authorized User uses the Deliverable in production.

To the extent that any Deliverable has been inspected and accepted by the Authorized User at any stage of Contractor’s performance under a Purchase Order, Contractor shall be entitled to rely on such acceptance for purposes of all subsequent stages of Contractor’s performance under such Purchase Order.

If Contractor is unable to correct the Deficiencies in a Deliverable within the period set forth above, the Authorized User shall be entitled, at its option, to a refund or credit of professional fees paid to Contractor under the applicable Purchase Order with respect to the Services giving rise to such Deliverable and this shall be the Authorized User’s sole and exclusive remedy, and Contractor’s sole and exclusive obligation, with respect to any claim that the Deliverables do not conform to the requirements of this Contract and such Purchase Order.

21. CONTRACTOR PERSONNEL

21.1 Identification

If requested by the State, the Contractor shall provide a list of the names and addresses 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 require. The State reserves the right to refuse to admit to the State's premises any person employed or contracted by the Contractor in its reasonable discretion.

21.2 Right to Approve Changes of Contracted Personnel

The State shall have the absolute reasonable right to approve or disapprove a proposed change of Key Personnel, if any, designated as such in a Purchase Order. 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.

21.3 Contracted Personnel Removal

The State may direct the Contractor to remove or reassign Key or Contracted Personnel at the Authorized User's discretion for performance issues; however, the Authorized User's right to do so does not implicate the Authorized User as a party to any of the Contractor's obligations in the Contract. In such event, the Authorized User may request that a Contracted Personnel be replaced within ten (10) Business Days from such removal.

21.4 Identification of Contracted Personnel

The Contractor shall furnish each Contracted Personnel with a means of identifying

Contract # 505ENT-O17-SALESFORCE-04 15 of 25 Salesforce Implementation Services themselves as Subcontractors, or employees of the Contractor assigned to perform Services under the Contract, and furnish the Authorized User with other security credentials on these Contracted Personnel, as agreed to in the applicable Purchase Order.

21.5 Background or Criminal History Investigation

Prior to the commencement of any Services under a Purchase Order, and as to the extent agreed to in the applicable Purchase Order, the Authorized User may request a background or criminal history investigation of Contracted Personnel, and Subcontractor’s employees, who will be providing Services to the State under the Contract. If any of the stated personnel providing Services to the Authorized User under the applicable Purchase Order is not acceptable to the Authorized User in its sole opinion as a result of any required background or criminal history investigation, the Authorized User may request prompt replacement of the person.

22. SHIPPING

Except as otherwise specified herein, Deliverables shall be shipped, F.O.B. Destination, and the State shall accept legal title of Deliverables at the point of delivery. Freight charges shall not be paid by the State, but rather shall be prepaid by the Contractor. Unless otherwise specified, the Contractor shall determine the mode of freight and shall accept responsibility for payment of freight charges and processing of freight claims.

23. RISK OF LOSS OR DAMAGE BORNE BY THE CONTRACTOR

The Contractor shall bear all risks of loss, injury, damage, or destruction to the Deliverables ordered herein during shipment and until delivery to the Authorized User at the location and time mutually agreed upon with the Authorized User.

In the event any Deliverable is lost or damaged prior to delivery, Contractor shall promptly cause the lost or damaged Deliverable to be repaired or replaced at no cost to the State.

All risks of loss or damage to any equipment or property used or held in storage by the Contractor in its performance under the Contract, shall be solely borne by the Contractor, and the Authorized User and State shall have no responsibility or liability therefore.

24. IDENTIFICATION

All invoices, packing lists, packages, shipping notices, instruction manuals, and other written documents affecting a Purchase Order hereunder shall contain the applicable State Purchase Order number. Packing lists shall be enclosed in each and every box or package shipped pursuant to a Purchase Order, indicating the contents therein. Standard commercial packaging, packing and shipping containers shall be used. If requested by the State, all shipping containers shall be legibly marked or labeled on the outside with State Purchase Order number, product description, and quantity, or as otherwise directed by the State.

25. LIENS, CLAIMS AND ENCUMBRANCES

The Contractor warrants and represents that all Deliverables ordered hereunder upon their delivery to Authorized User are free and clear of all liens, claims or encumbrances of any kind for infringement upon the intellectual property rights of any third party, provided that the State’s and an Authorized User’s sole and exclusive remedy, and Contractor’s sole and exclusive liability, for any breach of this warranty, shall be Contractor’s indemnity obligations under Section 18.

26. WARRANTY AND REPRESENTATIONS

Deliverables and Services rendered shall be in accordance with the Purchase Order placed and may not deviate in any way from the terms, conditions or specifications of this Contract, without the

Contract # 505ENT-O17-SALESFORCE-04 16 of 25 Salesforce Implementation Services prior written approval of the State. Deliverables delivered under this Contract are subject to Inspection and testing upon receipt.

The Contractor represents and warrants that all services described in a Purchase Order shall be performed in a prompt, competent, and workmanlike manner by trained individuals in accordance with the standards of the Contractor’s industry. CONTRACTOR DISCLAIMS ALL OTHER

WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY

AND FITNESS FOR A PARTICULAR PURPOSE.

27. RECEIPT OF GOODS

The State's receipt of Deliverables upon delivery is for the sole purpose of identification. Such identification shall not be construed as Acceptance of the Deliverables if they do not conform to the requirements and contract terms.

28. PERFORMANCE

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 Authorized User work rules (to the extent mutually agreed upon in a Purchase Order and/or related Purchase Order documents) in its performance of the Services.

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).

Notwithstanding the foregoing, any stricter standard provided in plans, specifications or other documents incorporated as part of a Purchase Order shall govern and shall be provided by the Authorized User.

29. SPECIFICATIONS

The apparent silence of the Specifications as to any detail, or the apparent omission of a detailed description concerning any matter, shall be regarded as meaning that only the commercial practice shall be followed and only material and workmanship of quality may be used. Upon any notice of noncompliance provided by the Authorized User or State, Contractor shall supply proof of compliance with the Specifications. Contractor shall provide written notice of its intent to deliver alternate or substitute Services or Deliverables in accordance with the acceptance process set forth in Section 20. Alternate or substitute Services or Deliverables may be accepted or rejected by the Authorized User in accordance with such process; and any such alternates or substitutes shall be accompanied by Contractor's certification and evidence satisfactory to the Authorized User that the function, characteristics, performance and endurance shall be equal or superior to the original Services or Deliverables specified in accordance with Section 20 above.

30. INDEPENDENT CONTRACTOR

The Contractor shall act as an independent contractor in rendering any and all Services under this Contract and, except as otherwise outlined herein, shall maintain complete control over its employees, Contracted Personnel, and Subcontractors, if any.

31. COOPERATION WITH OTHER CONTRACTORS

In the event that the State enters into a contract with another contractor for additional Services related to the scope of Services being provided by the Contractor, the Contractor shall ensure that Contracted Personnel reasonably and fully cooperate with such other contractor. Contracted

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Personnel shall not commit any act outside the scope of Services or otherwise required by this Contract that interferes with the rendering of Services by any other contractor or by the State.

Contracted Personnel shall reasonably cooperate with State personnel, hardware manufacture representatives, system software suppliers, and communications systems suppliers in the provision of Services to the State.

32. AUTHORIZED USER EMPLOYEES

The Contractor personnel performing Services under this Contract may not knowingly contract with or employ an Authorized User employee or an individual retained as a full-time contractor by the Authorized User during the term of this Contract, without the prior written consent of the Authorized User.

33. ANTITRUST ASSIGNMENT

By entering into this Contract, the Contractor conveys, sells, assigns and transfers to the State all rights, title and interest in and to all causes of action, claims and demands of whatever nature it may now have or hereafter acquire under the antitrust laws of the United States and the State, relating specifically to that proportionate amount of the particular Deliverables or Services purchased or acquired by the State under this Contract.

34. REFUND OF CREDITS

Within sixty (60) Days of the State’s request, the Contractor shall pay to the State any credits due the Authorized User…