Fully_Executed_-_Granicus.pdf

Rev 5/25

OHIO DEPARTMENT OF COMMERCE

CONTRACT

This Contract is between:

Ohio Department of Commerce (“COM”) Granicus, LLC

Division: Industrial Compliance Attn: Contracts

Program: Project Management 1152 15th Street NW, Suite 800

Anna Cassady

AND

Washington DC 20005

6606 Tussing Road (800) 314-0147

Reynoldsburg, Ohio, 43068 contracts@granicus.com

Anna.Cassady@com.ohio.gov OAKS Number and Address Code:

For the purpose of this Contract, the term “Party” or “Parties” may be used to refer to either COM and/or Contractor individually or collectively. To facilitate the transaction, Contractor must initial applicable provisions and/or attachments if any, sign this Contract, return with any applicable completed forms (see §4) in accordance with COM instructions received with this Contract. In consideration of the mutual promises expressed in this Contract, intending to be legally bound, and having the authority to do so, Contractor agrees to perform, and COM agrees to pay Contractor, in accordance with the terms of this Contract as follows:

I. CONTRACT TERM

Subject to §2 and other terms and conditions specified or incorporated in this Contract:

A. “Contract Beginning Date” shall be defined as the date indicated here, or the date of Contract execution by both Parties, whichever is later: 7/1/2025

B. “Contract Ending Date” shall be defined as the date indicated here, the last possible date of Contract effectuation. (Contract may expire earlier if (1) the Contract is fully performed by both parties; (2) the Contract is canceled or terminated; or (3) the Contract expires at the end of a biennium unless continued by COM.)

6/30/2027

C. “Contract Period” shall be defined as the time between the “Contract Beginning Date” and “Contract Ending Date.” This contract shall not be automatically renewed.

II. SCOPE OF WORK

A. Contractor shall undertake the work and activity of completing the AMANDA 2025-2027 Annual Maintenance for the State of Ohio as set forth in the Granicus Proposal for Ohio Department of Commerce, which is attached hereto as ATTACHMENT A and incorporated by reference as if fully written herein.

B. Contractor shall also undertake the work and activity of Annual Maintenance as set forth in the Subscription and Services Agreement US/Canada, as amended by agreement of the parties as set forth in section IV of this Contract, which is attached hereto as ATTACHMENT C and is incorporated by reference as if fully written herein.

C. If applicable, Contractor shall furnish professional services performed in accordance with standards necessary for the satisfactory performance of the work hereunder. COM shall not be required to provide any training to the Contractor to enable it to perform services required hereunder. Contractor shall furnish its own support staff, materials, tools, equipment, and other supplies necessary for the satisfactory performance of the work hereunder. Contractor shall be responsible for and assume all office and business expenses that are incurred as a result of the performance of this Contract.

D. Contractor agrees that it does not have any authority to sign agreements, notes, and/or obligations or to make purchases and/or dispose of property for, or on behalf of, the State of Ohio or COM.

E. COM may, from time to time as it deems appropriate, communicate specific instructions and requests to Contractor concerning the performance of the work described in this Contract. It is expressly understood by the parties that these instructions and requests are for the sole purpose of performing the specific tasks requested to ensure satisfactory completion of the work described in this Contract. The management of the work, including the exclusive right to control or direct the manner or means by which the work described herein remains with and is retained by the Contractor. COM retains the right to ensure that the work of the Contractor is in conformity with the terms and conditions of the Contract, as specified herein and in Exhibit 1.

F. Contractor will provide COM with a monthly project status report accounting for the number of hours of Services performed in the prior month, and the expenses incurred in performance of the Services.

III. COMPENSATION

A. In consideration of the Scope of Work and Deliverables specified in §2 and upon receipt of invoice in accordance with Section IV(C) of Exhibit 1, COM agrees to compensate Contractor and the total Contract amount shall not exceed $362,217.05.

Compensation shall be paid in accordance with the terms set forth in Attachment A. The above due not exceed amount of $362,217.05 consists of an annual fee for the period of performance of July 1, 2025, to June 30, 2026, in an amount of $174,984.07 and an annual fee for the period of performance of July 1, 2026, to June 30, 2027, in an amount of $187,232.98.

B. It shall be mutually agreed and understood between both parties that the total amount to be paid by COM to the Contractor under this Contract shall in no event exceed the amounts provided in §3.A of this Contract unless Contractor receives prior approval from COM or when required, approval of the Controlling Board and is so notified of such approval by COM in writing.

C. COM’s funds are contingent upon the availability of lawful appropriations. If the General Assembly or any third-party who is providing funding fails at any time to continue funding for the payments or any other obligations due by COM under this Contract, COM will be released from its obligations on the date funding expires. Any obligations of COM are subject to Section 126.07 of the Ohio Revised Code. Contractor shall receive notification from COM that such contingencies have been satisfied via a written communication including, but not limited to, a Purchase Order. Contractor expressly understands that COM will not compensate Contractor for any work performed prior to Contractor’s receipt of such communication.

D. Contractor must submit final invoices for payment no later than thirty (30) days after the ending date of this Contract. Failure to do so will be deemed a forfeiture of the remaining compensation due hereunder.

IV. ATTACHMENTS & ACKNOWLEDGEMENTS

Attachments specified in this Contract are made a part hereof and are incorporated as terms and conditions of this Contract. PLEASE READ CAREFULLY AND INITIAL EACH PARAGRAPH BELOW:

Contractor affirms that they have read and understand and agree to be bound by the Contract Terms and Conditions in EXHIBIT 1 below;

Contractor affirms that the Contract Amendment entered into between the Ohio Department of Commerce and Calytera US, Inc., which is attached hereto as ATTACHMENT B, remains in full force and effect and is in no way modified by this Contract;

Contractor affirms that they have read and understand and agree to be bound by the Granicus Proposal for Ohio Department of Commerce (the “Proposal”), which is attached hereto as ATTACHMENT A, and which is hereby amended by agreement of the parties as follows:

Terms & Conditions of the Proposal is hereby amended: in the third bullet, “It is the responsibility of Ohio Department of Commerce to provide applicable exemption certificate(s).” is stricken.

Contractor affirms that they have read and understand and agree to be bound by the Subscription and Services Agreement US/Canada, which is attached hereto as ATTACHMENT C, and which is hereby amended by agreement of the parties as follows:

Paragraph 3.b) of the Subscription and Services Agreement is hereby amended: “Each Order will automatically renew for twelve (12) month terms (each, a “Renewal Term”) unless either party gives the other party notice of non-renewal within thirty (30) days of notification of price change as described in Section 4.d., or within sixty (60) days prior to the start of the next Renewal Term, whichever is later.” is stricken.

Paragraph 3.h) of the Subscription and Services Agreement is hereby amended: “11 (Limitation of Liability)” is stricken and replaced with “11(a) (Limitation of Liability).”

Paragraph 4.a) of the Subscription and Services Agreement is hereby amended: “It is the Client’s responsibility to provide applicable exemption certificate(s).” is stricken.

Paragraph 7.c) of the Subscription and Services Agreement is hereby amended: the entire paragraph is stricken.

Paragraph 11.b) of the Subscription and Services Agreement is hereby amended: the entire paragraph is stricken.

Paragraph 14. of the Subscription and Services Agreement is hereby amended: “Inconsistencies between documents will be resolved in the following order: (I) this Agreement; (ii) Orders and SOWs; (iii) all other purchase documents executed by the parties (except for any pre-printed or standard terms contained on purchase orders which shall have no force or effect); (iv) Granicus’ response to Client’s RFI, RFP, RFQ; and (v) Client’s RFI, RFP, RFQ.” is stricken.

Contractor affirms that they have read and understand and agree to be bound by the Product-Specific Terms pertaining to the AMANDA Software, which is attached hereto as ATTACHMENT D.

If Contractor is not currently a registered vendor with the State of Ohio, Contractor must register online with OhioPays at https://ohiopays.ohio.gov/getting-started/02-how-to-register as provided in https://ohiopays.ohio.gov/helpful-resources/help-documents;

Contractor must register with the Ohio Secretary of State at https://www.sos.state.oh.us/businesses/;

If Contractor does not have an Affirmative Action Plan on file with the Department of Administrative Services Equal Opportunity Division at:

http://das.ohio.gov/Divisions/EqualOpportunity/AffirmativeActionProgramVerification/tabid/133/Defa ult.aspx, then Contractor must file an Affirmative Action Plan prior to acceptance of this Contract.

Contractor must complete and submit with this Contract an Affirmation and Disclosure Form attached and marked EXHIBIT 2;

Contractor certifies it is not debarred from consideration for any state or federal government contracts and it is not subject to any unresolved finding for recovery; and, If applicable, Contractor must complete and submit with this Contract a Non-Member Acknowledgement form, available at https://www.opers.org/forms-archive/PEDACKN-Non-Member- Acknowledgment.pdf. Unless Contractor is a “business entity” as that term is defined in Section

145.037 of the Ohio Revised Code (“an entity with five or more employees that is a corporation, association, firm, limited liability company, partnership, sole proprietorship, or other entity engaged in business”), Contractor shall have any individual performing services under the Contract complete and submit to COM the Non-Member Acknowledgement form.

IN WITNESS WHEREOF, the Parties by signing below indicate their agreement to this Contract.

OHIO DEPARTMENT OF COMMERCE GRANICUS, LLC

Director of Ohio Department of Commerce [Signature]

Sheryl Maxfield, Director

Date

Printed Name and Title

Date

Rev 2/21

EXHIBIT 1

OHIO DEPARTMENT OF COMMERCE (COM) TERMS AND CONDITIONS

I. GLOSSARY – The following definitions are applicable to all components of the Contract:

A. ACCEPTANCE. Approval and retention by the COM of any products, supplies, services or other Deliverables, delivered to fulfill Contract requirements.

B. DEFAULT. The omission or failure to perform any obligation under this Contract.

C. DELIVERABLE. Any Contractor-provided products, supplies, services, work or product described in the specifications of the Contract.

D. COM. The State of Ohio, Ohio Department of Commerce.

E. TIME AND MATERIALS CONTRACT. A Contract in which Contractor is paid (1) an hourly rate for labor actually performed and (2) if applicable and with prior approval by COM, for the cost of the materials or supplies actually used by the Contractor. Such rates and costs shall be established through Contractor’s submission of a price sheet, written quote, estimate, or invoice, as approved by COM. Hourly rates may include wages, overhead, general and administrative expenses, and reasonable profit. Materials or supplies may include the Contractor’s direct and indirect costs attributable to the work performed.

II. REGULATORY CONTRACT REQUIREMENTS

A. ANTITRUST. COM and the Contractor recognize that, in actual economic practice, overcharges resulting from antitrust violations are usually borne by COM. The Contractor therefore assigns to COM all State and federal antitrust claims and causes of action that the Contractor has or acquires relating to the goods and services acquired under this Contract.

B. QUALIFICATIONS. If requested by COM, Contractor must submit with this Contract verification of any required licenses, registrations, or other qualifications required by this Contract or relevant Request for Proposal.

C. CAMPAIGN CONTRIBUTIONS. Unless this Contract was solicited by competitive bid pursuant to Section

125.07 of the Ohio Revised Code, Contractor hereby certifies that all applicable parties are in full compliance with Section 3517.13 of the Ohio Revised Code.

D. COMPLIANCE WITH LAW. The Contractor must comply throughout the duration of the Contract with all applicable federal, state, and local laws and Executive Orders while performing under this Contract.

E. CONFLICT OF INTEREST/ETHICS. Contractor represents, warrants, and certifies that it and its employees engaged in the administration or performance of this Contract are knowledgeable of and understand the Ohio Ethics and Conflict of Interest laws including but not limited to Chapter 102. and Sections 2921.42 and 2921.43 of the Ohio Revised Code. Contractor further represents, warrants, and certifies that neither Contractor nor any of its employees will do any act that is inconsistent with such laws or otherwise presents a conflict of interest.

F. CONTRACTOR’S WARRANTY AGAINST AN UNRESOLVED FINDING FOR RECOVERY. The Contractor warrants that the Contractor is not subject to an unresolved finding for recovery pursuant to Section 9.24 of the Ohio Revised Code. If the warranty is false on the date the parties signed this Contract, the Contract is void ab initio and the Contractor shall immediately repay any funds paid under this Contract.

G. DEBARMENT. Contractor represents and warrants that neither it, nor any of its subcontractors, are debarred from consideration for contract awards by any governmental agency. If this representation and warranty is found to be false, this Contract is void ab initio and the Contractor shall immediately repay any funds paid under this Contract.

H. DRUG FREE WORKPLACE. The Contractor agrees to comply with all applicable state and federal laws regarding drug-free workplace and shall make a good faith effort to ensure that all Contractor employees, while working on COM property, will not purchase, transfer, use, or possess illegal drugs or alcohol or abuse prescription drugs in any way.

I. EQUAL EMPLOYMENT OPPORTUNITY. The Contractor will comply with all State and federal laws regarding equal employment opportunity and fair labor and employment practices, including Section 125.111 of the Ohio Revised Code and all related Executive Orders.

Before a contract can be awarded or renewed, an Affirmative Action Plan must be submitted to and approved by the Ohio Department of Administrative Services, Equal Opportunity Division.

J. PROHIBITION OF THE EXPENDITURE OF PUBLIC FUNDS FOR OFFSHORE SERVICES. No State Cabinet, Agency, Board, or Commission will enter into any contract to purchase services provided outside the United States or that allows State data to be sent, taken, accessed, tested, maintained, backed-up, stored, or made available remotely outside (located) of the United States, unless a duly signed waiver from the State has been attained. Notwithstanding any other terms of this Contract, COM reserves the right to recover any funds paid for services the Contractor performs outside of the United States for which it did not receive a waiver. The State does not waive any other rights and remedies provided the State in the Contract.

The Contractor must complete the Contractor/Subcontractor Affirmation and Disclosure Form (EXHIBIT 2) affirming the Contractor understands and will meet the requirements of the above prohibition. During the performance of this Contract, if the Contractor changes the location(s) disclosed on the Affirmation and Disclosure Form, Contractor must complete and submit a revised Affirmation and Disclosure Form reflecting such changes.

K. GOVERNING LAW. This Contract shall be governed by the laws of the State of Ohio, and the venue for any disputes will be exclusively with the appropriate court in Franklin County, Ohio.

L. INDEPENDENT CONTRACTOR ACKNOWLEDGEMENT. It is fully understood and agreed that Contractor is an independent contractor and is not an agent, servant, or employee of the State. Contractor declares that it is engaged as an independent business and has complied with all applicable federal, state, and local laws regarding business permits and licenses of any kind, including but not limited to any insurance coverage, workers’ compensation, or unemployment compensation that is required in the normal course of business and will assume all responsibility for any federal, state, municipal, or other tax liabilities. Additionally, Contractor understands that as an independent contractor, it is not a public employee and is not entitled to contributions from the State to any public employee retirement system.

M. TAXES. Pursuant to Section 5739.02 of the Ohio Revised Code, the COM is exempt from sales tax.

N. TRADE. Pursuant to Section 9.76(B) of the Ohio Revised Code, Contractor warrants that Contractor is not boycotting any jurisdiction with whom the State of Ohio can enjoy open trade, including Israel, and will not do so during the Contract period.

The State of Ohio does not acquire supplies or services that cannot be imported lawfully into the United States.

The Contractor certifies that it, its subcontractors, and any agent of the Contractor or its subcontractors, acquire any supplies or services in accordance with all trade control laws, regulations, or orders of the United States, including the prohibited source regulations set forth in subpart 25.7, Prohibited Sources, of the Federal Acquisition Regulation and any sanctions administered or enforced by the U.S. Department of Treasury’s Office of Foreign Assets Control. A list of those sanctions by country can be found at https://www.treasury.gov/resource-center/sanctions/Programs/Pages/Programs.aspx. These sanctions generally preclude acquiring any supplies or services that originate from sources within, or that were located in or transported from or through Cuba, Iran, Libya, North Korea, Syria, or the Crimea region of Ukraine.

O. USE OF MBE AND EDGE VENDORS. Section 125.081 of the Ohio Revised Code requires State agencies to set aside purchases for Minority Business Enterprises (MBE) and Executive Order 2008-13S encourages use of Encouraging Diversity, Growth, and Equity (EDGE) businesses. Therefore, the COM encourages the Contractor to purchase goods and services from Ohio certified MBE and EDGE vendors.

III. CONTRACT CONSTRUCTION

A. CONTRACT AMENDMENTS / WAIVER.

1. No change to any provision of this Contract will be effective unless it is in writing and signed by parties to the Contract. However, COM may document non-material changes in writing and provide notice to the Contractor. No “click-through,” “shrink-wrap,” “browse-wrap,” or other terms that have not been specifically negotiated by the Contractor and COM, whether before, on, or after the date of this Contract, will be effective to add or modify the terms of this Contract, regardless of any party’s “acceptance” of those terms by electronic means. No COM employee has the authority to modify, amend, or supplement this Contract through electronic means. If such extraneous terms and/or conditions contradict those in this Contract, the Contract terms and conditions govern.

2. The failure of either party at any time to demand strict performance by the other party of any of the terms of this Contract will not be a waiver of those terms or to any other terms of this Contract. Waivers must be in writing to be effective, and either party may at any later time demand strict performance.

B. ASSIGNMENT / DELEGATION. The Contractor must not assign any of its rights nor delegate any of its duties under this Contract without written consent of COM. Any assignment or delegation not consented to may be deemed void by COM.

C. BINDING EFFECT. Subject to the limitations on assignment provided elsewhere in this Contract, this Contract will be binding upon and inure to the benefit of the respective successors and assigns of COM and the Contractor.

D. LANGUAGE CONSTRUCTION. This Contract will be construed in accordance with the plain meaning of its language and neither for nor against the drafting party.

E. DAYS. When this Contract refers to days, it means calendar days, unless it expressly provides otherwise.

F. HEADINGS. The headings in this Contract are for convenience only and will not affect the interpretation of any of the Contract terms and conditions.

G. INJUNCTIVE RELIEF. Nothing in this Contract is intended to limit COM’s right to injunctive relief if such is necessary to protect its interests or to keep it whole.

H. NOTICES. For any notice under this Contract to be effective the notice must be made in writing and delivered to the appropriate contact provided in the Contract.

I. ORDER OF PRIORITY. If there is any inconsistency or conflict between these Standard Terms and Conditions and any provision incorporated by reference or included by the Contractor, these Standard Terms and Conditions will prevail.

J. PUBLICITY. The Contractor shall not do the following without prior, written consent from COM:

1. Advertise that the Contractor is doing business with COM;

2. Use this Contract as a marketing or sales tool; or

3. Affix any advertisement or endorsement, including any logo, graphic, text, sound, video, and company name, to any State-owned property, application, or website, including any website hosted by Contractor or a third party.

K. SEVERABILITY. If any provision of the Contract or the application of any provision is held by a court to be contrary to law, the remaining provisions of the Contract will remain in full force and effect.

L. SUBCONTRACTING. COM recognizes that it may be necessary for the Contractor to use a subcontractor to perform a portion of the work under the Contract. In those circumstances, the Contractor shall submit a list identifying the Contractor’s subcontractors. The Contractor may not enter into subcontracts related to the Contract after award without written approval from COM. If any change occurs during the term of the Contract, that requires a change to identified subcontractors, the Contractor shall amend its list of subcontractors and request written approval from COM. COM reserves the right to reject any subcontractor submitted by the Contractor.

All subcontracts will be at the sole expense of the Contractor and the Contractor will be solely responsible for payment of its subcontractors. The Contractor assumes responsibility for all sub-contracting and third-party manufacturer work performed or product delivered under the Contract. In addition, all subcontractors agree to be bound by all of the Terms and Conditions and specifications of the Contract. The Contractor will be the sole point of contact with regard to all contractual matters.

M. SURVIVORSHIP. All sections herein relating to payment, confidentiality, license and ownership, indemnification, maintenance, publicity, warranties, and limitations on damages shall survive the termination of this Contract.

N. COUNTERPARTS. This Contract may be executed simultaneously in two or more counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument.

O. ENTIRE AGREEMENT. This Contract, any Note, any related writing, and any other agreement, document, or instrument attached hereto or referred to herein or executed on or as of the date hereof integrate all the terms and conditions mentioned herein or incidental hereto and supersede all oral representations and negotiations and prior writings with respect to the subject matter hereof.

IV. ORDER AND PAYMENT PROVISIONS

A. CERTIFICATION OF FUNDS/PURCHASE ORDER REQUIREMENTS. None of the duties or obligations in this Contract are binding on COM, and the Contractor will not begin performance on this Contract, until all of the following conditions are met:

1. All statutory provisions under the Ohio Revised Code have been met;

2. All necessary funds are made available;

3. If applicable, an official COM of Ohio Purchase Order (P.O.) has been issued from COM.

4. If required, the Controlling Board of Ohio has approved the purchase in accordance with Section

127.16 of the Ohio Revised Code.

B. CONTRACT ORDERS. The Contractor may receive orders made by COM by telephone, facsimile, electronically, in person, payment card (if applicable), or purchase order from authorized employees of COM.

COM shall not be responsible for orders placed by unauthorized employees.

C. INVOICE REQUIREMENTS. The Contractor or dealer, authorized to submit invoices, must submit an original invoice to the office designated in the purchase order. The Contractor will only be compensated for the Deliverables accepted by COM.

To be a proper invoice, the invoice must include the following:

1. The purchase order number authorizing the delivery of supplies or services;

2. State of Ohio Contract Number (if applicable);

3. Agency Name;

4. Agency Billing Address;

5. Delivery location of supplies or services;

6. Contractor Name;

7. Contractor Address;

8. Contractor’s Unique Invoice Number;

9. Date that services were provided or that supplies were delivered;

10. Itemization of supplies or services provided, including cost;

11. For leases, the invoice must also include the payment number (e.g., 1 of 36);

12. For time and material Contracts, the invoice must reflect labor hours actually worked and, if applicable, supplies used; and

13. Clear statement of total payment expected.

D. PAYMENT DUE DATE AND PROCESS. Unless otherwise stated in this Contract and in accordance with Section 126.30 of the Ohio Revised Code, payments under this Contract will be due on the 30th calendar day after the date of actual receipt of a proper invoice in the office designated to receive the invoice. The date payment is issued by COM will be considered the date payment is made. Payment of an invoice by COM will not prejudice the State’s right to object to or question that or any other invoice or matter in relation thereto. The COM’s preferred method of payment is by electronic funds transfer. However, COM may also make payment by State of Ohio payment card or by warrant issued by the Auditor of State. At the time of Contract award, Contractor must be able to accept all forms of payment from the State and COM.

E. REIMBURSABLE EXPENSES. COM will not pay reimbursable expenses unless specifically identified in the Contract. The Contractor will assume all expenses that it incurs in the performance of this Contract that are not identified as reimbursable.

F. TRAVEL. Any travel that the Contractor requires to perform its obligations under this Contract will be at the Contractor’s expense. COM will pay for any additional travel that it requests only with prior written approval.

The COM will pay for all additional travel expenses that it requests in accordance with Section 126.31 of the Ohio Revised Code and Rule 126-1-02 of the Ohio Administrative Code.

V. LIABILITY PROVISIONS

A. GENERAL REPRESENTATIONS AND WARRANTIES. The Contractor warrants that:

1. The recommendations, guidance, and performance of the Contractor under this Contract will be in accordance with the industry’s professional standards, the requirements of this Contract, and without any material defect.

2. No Deliverable will infringe on the intellectual property rights of any third party.

3. All warranties are in accordance with the Contractor’s standard business practices.

4. Reserved.

5. The Deliverables comply with all governmental, environmental, and safety standards.

6. The Contractor has the right to enter into this Contract.

7. The Contractor has not entered into any other contracts or employment relationships that restrict the Contractor’s ability to perform under this Contract.

8. The Contractor will observe and abide by all applicable laws and regulations, including those of the State regarding conduct on any premises under the State’s control.

9. The Contractor has good and marketable title to any Deliverable delivered under this Contract for which title passes to the COM.

10. The Contractor has the right and ability to grant the license granted in any Deliverable for which title does not pass to the State.

11. Reserved.

COM must notify the Contractor in writing immediately upon the discovery of any breach of the warranties given above, or if any work of the Contractor or any Deliverable fails to comply with these warranties, and the Contractor is so notified in writing, the Contractor will correct such failure in a commercially reasonable time or as specified in the Contract. If the Contractor fails to comply, the Contractor will refund the amount paid for the Deliverable.

Any other express warranties offered by the Contractor shall be a minimum of one year from acceptance or the Contractor’s standard warranty whichever is longer.

B. INDEMNITY. The Contractor must indemnify COM for all liability and expense resulting from bodily injury to any person (including injury resulting in death), damage to tangible or real property, or disclosure of State Data including personally identifiable information and State sensitive information arising out of the performance of this Contract, provided that such bodily injury, property damage, or disclosure is due to the negligence or other tortious conduct of the Contractor, its employees, agents, or subcontractors. The Contractor will not be responsible for any damages or liability to the extent caused by the negligence or willful misconduct of the COM, its employees, other contractors, or agents.

The Contractor must also indemnify, release, protect, and hold COM harmless from any claim of infringement of a copyright, patent, trade secret, or similar intellectual property right based on COM’s proper use of any Deliverable under this Contract. This obligation of indemnification will not apply where COM has modified or misused the Deliverable and the claim of infringement is based on the modification or misuse. If a successful claim of infringement is made, or if the Contractor reasonably believes that an infringement claim that is pending may actually succeed, the Contractor must take one (1) of the following four (4) actions within an acceptable timeframe:

1. Modify the Deliverable so that the Deliverable is no longer infringing;

2. Replace the Deliverable with an equivalent or better item;

3. Acquire the right for COM to use the infringing Deliverable as intended; or

4. Remove the infringing Deliverable and refund the fee COM paid for such Deliverable and any other affected Deliverable.

COM agrees to give the Contractor notice of any such claim as soon as reasonably practicable and to give the Contractor the authority to settle or otherwise defend any such claim upon consultation with and approval by the Office of the Ohio Attorney General.

C. [Reserved]

D. LIMITATION OF LIABILITY. Notwithstanding any limitation provisions contained in the documents and materials incorporated by reference into this Contract, the parties agree as follows:

1. Neither party will be liable for any indirect, incidental, or consequential loss or damage of any kind including but not limited to lost profits, even if the parties have been advised, knew, or should have known of the possibility of damages.

2. The parties further agree that in no event will Contractors liability for any claim under this Contract (whether in contract, tort or otherwise) exceed the greater of: (i) two times the fees paid by COM to the Contractor in the 12 months prior to the claim; or (ii) two-hundred and fifty thousand dollars ($250,000.00).The foregoing maximum liability will not apply to Contractor’s obligations to indemnify COM for third-party infringement claims as set forth in Section V. B. sub-paragraph 2. Notwithstanding anything to the contrary, nothing in this Contract shall limit the Contractor’s liability for any direct loss to the state for bodily injury, death, or damage to property of the state caused by the negligence, intentional or willful misconduct, fraudulent act, recklessness, or other tortious conduct of Contractor.

E. PRODUCT RECALL. In the event product delivered has been recalled, seized, or embargoed and/or has been determined to be misbranded, adulterated, or in the case of consumable product, found to be unfit for human consumption by the packer, processor, manufacturer, or by any State or federal regulatory agency, the Contractor shall notify COM within two business days after notice has been given. The Contractor shall, at the option of COM, either reimburse the purchase price or provide an equivalent replacement product at no additional cost. The Contractor shall be responsible for removal and/or replacement of the affected product within a reasonable time as determined by COM. At the option of COM, the Contractor may be required to reimburse storage and handling fees to be calculated from time of delivery and acceptance to actual removal.

The Contractor will bear all costs associated with the removal and proper disposal of the affected product.

Failure to reimburse the purchase price or provide equivalent replacement product will be considered a default.

VI. PERFORMANCE AND COMPLIANCE

A. AUDITS. The Contractor must keep all financial records in a manner consistent with Generally Accepted Accounting Principles (GAAP) or equivalent accounting principles. Additionally, the Contractor must keep separate business records for this project, including records of disbursements and obligations incurred that must be supported by contracts, invoices, vouchers, and other data as appropriate.

During the period covered by this Contract and until the expiration of three (3) years after final payment under this Contract, the Contractor agrees to provide COM, or any authorized representatives providing financial support to the work undertaken hereunder, with access to and the right to examine any books, documents, papers, and records of the Contractor involving transactions related to this Contract.

The Contractor must, for each subcontract in excess of $2,500, require its subcontractors to agree to the same provisions of this Section. The Contractor may not artificially divide contracts with its subcontractors to avoid requiring subcontractors to agree to this provision. This provision does not apply to contracts where federal funds are used and the federal government requires audits of all subcontracts regardless of the amount of the contract.

The Contractor must provide access to the requested records at the location specified by COM no later than five (5) business days after the request by COM, COM’s designee, or any party with audit rights. If an audit reveals any material deviation from the Contract requirements, any misrepresentations, or overcharge to COM or any other provider of funds for the Contract, COM or other party will be entitled to recover damages as well as the cost of the audit.

B. GOODS. If goods are to be procured in accordance with this Contract, the following applies:

1. The Contractor must provide Deliverables under this Contract F.O.B. Destination. The place of destination will be specified by COM on the agency’s purchase order or other ordering document. Cost of the freight must be borne and paid by the Contractor unless otherwise stated.

All risk of loss, regardless of the cause, will remain with the Contractor until title to the Deliverable passes to COM. Unless otherwise provided in this Contract, COM will determine whether the Contractor provided each Deliverable required in this Contract and has fully met all work requirements of this Contract. Title to any Deliverables will pass to COM on Acceptance of the Deliverable.

C. RETURNED GOODS. Returned goods, when due to Contractor error (i.e. over-shipment, defective merchandise, unapproved substitution, etc.), shall be returned to the Contractor at the Contractor’s expense.

The Contractor shall make arrangements to remove the returned goods from COM premises within seven (7) calendar days after notification. The Contractor shall not apply any restocking or other charges to COM. At the option of COM, replacement items may be accepted and will be shipped within seven (7) calendar days of notification. Failure of the Contractor to arrange for return of the items within the specified time will result in the items being deemed as abandoned property and COM will dispose of accordingly.

1. For orders of custom manufactured items, the Contractor must provide a production sample of the item to COM for acceptance. The production sample must be identical to the item to be provided. COM will provide written acceptance of the item prior to the Contractor continuing with production. Once delivery and acceptance has been completed and COM determines for any reason that any remaining quantities will not be used, the agency may request the return of the custom manufactured items. Acceptance of the return of custom manufactured items will be at the option of the Contractor. Failure of the Contractor to provide a production sample and obtain written approval from COM will result in the Contractor bearing all responsibility and costs associated with the return of these goods.

2. Returned goods of regular catalog stock merchandise, when due to agency error (i.e. over purchase, discontinued use, inventory reduction, etc.) will be accepted by the Contractor if notice is given by COM within six (6) months of delivery and acceptance. All items to be returned must be unused and in their original containers and in suitable condition for resale. Return of regular stock catalog merchandise, when delivery and acceptance exceed six (6) months will be at the option of the Contractor.

D. CUSTOM DELIVERABLES. All custom work done by the Contractor and covered by this Contract, including any software modifications, and documentation, will belong to COM with all rights, title, and interest in all intellectual property that comes into existence through the Contractor's work under this Contract being assigned to COM. Additionally, the Contractor waives any shop rights, author rights, and similar retained interests in any such custom developed materials. The Contractor must provide COM with all assistance reasonably needed to vest such rights of ownership in COM. The Contractor will retain ownership of all tools, methods, techniques, standards, and other development procedures, as well as generic and preexisting shells, subroutines, and similar material incorporated in any custom Deliverable ("Pre-existing Materials").

The Contractor grants COM a worldwide, non-exclusive, royalty-free, perpetual license to use, modify, and otherwise distribute all Pre-existing Materials that are incorporated in any custom-developed Deliverable, including distribution to third parties as required by funding mandates. The Contractor may not include in any custom Deliverable any intellectual property unless such has been created under this Contract or qualifies as Pre-existing Material. If the Contractor wants to incorporate any Pre-existing Materials in a custom Deliverable, the Contractor must disclose that desire to the COM and obtain written approval from the COM for doing so in advance. On the request of the Contractor, the COM will incorporate any proprietary notice that Contractor may reasonably want for any Pre-existing Materials included in a custom Deliverable in all copies COM makes of that Deliverable. Subject to the limitations and obligations of COM with respect to Pre-existing Materials, COM may make all custom Deliverables available to the general public without any proprietary notices of any kind.

E. FORCE MAJEURE (EXCUSABLE DELAY). Neither party will be liable for any delay in its performance that arises from causes beyond its or its subcontractor’s control and without its or its subcontractor’s negligence or fault. For purposes of this Section, the term “force majeure event” includes without limitation, the following: Acts of God, such as pestilence, lightning, earthquakes, fires, storms, hurricanes, tornadoes, floods, washouts, droughts, severe weather. Additional circumstances and events include epidemics, explosions, restraining of government and people, war, strikes, and other similar events or causes.

If COM or the Contractor cannot perform any part of its obligations under this Contract because of force majeure, that party is excused from those obligations, to the extent that performance is prevented by the force majeure event and that party took all commercially reasonable steps to mitigate or avoid the effects of the force majeure event. If there is only a delay in performance, such delay may extend only for that time lost because of the force majeure event. At any time a party is unable to perform those above-referenced obligations, it must also do the following:

1. Promptly notify the other party, in writing, of any material delay in performance due to a specified force majeure event;

2. Provide detailed information of the force majeure event;

3. Provide a proposed revised performance date to make up for performance delays due to the force majeure event. When applicable, the revised schedule must provide for performance time not to exceed the time lost as a result of the force majeure event.

F. CONTRACT PERFORMANCE MANAGEMENT. COM is responsible for administering and monitoring the Contractor’s compliance and performance on this Contract. Therefore, the Contractor must respond to complaints about performance of the obligations in this Contract to such entities in a timely manner. If the Contractor fails to perform any one of its obligations under this Contract, it will be in default.

If the Contractor fails to satisfactorily correct the performance or compliance issue within the time designated by the Agency, the Contracting Agency may employ all available options and remedies, including termination of the Contract if necessary to resolve the Contractor’s continued nonperformance or noncompliance.

G. QUALITY ASSURANCE. At the option of the Contracting or Ordering Agency, samples may be taken from deliveries made and submitted for laboratory tests. COM will bear the cost of testing when samples are found to be in compliance with the Contract. If samples do not conform to the Contract, Contractor will bear the costs of testing and the terms and conditions of the Suspension/Termination provision of this Contract will be applied.

H. CONTRACT REMEDIES.

1. Actual Damages. The Contractor is liable to COM for all actual and direct damages caused by the Contractor’s default. COM may self-perform or buy substitute Deliverables from a third party for those that were to be provided by the Contractor. COM may recover the costs associated with acquiring substitute Deliverables, less any expenses or costs avoided by the Contractor’s default.

2. Liquidated Damages. If actual and direct damages are uncertain or difficult to determine, COM may recover liquidated damages. Unless otherwise specified, liquidated damages will be in the amount of 1% of the value of the order, Deliverable, or milestone that are the subject of the default, for every day that the default is not cured by the Contractor.

3. Right to Withhold or Offset. COM may withhold payment or set off the amount of any Ohio tax liability, liquidated damages or other damages or claims for damages, or other obligation of the Contractor or its subsidiaries to COM, including any amounts the Contractor owes to the COM under this Contract against any payments due from COM to the Contractor under this Contract with the COM.

I. SUSPENSION/TERMINATION. In the event of suspension or termination COM will issue a notice to Contractor.

Any notice of suspension or termination, in full or in part, will be effective as specified in the notice. The Contractor must immediately cease all work, refuse any additional orders, and take all steps necessary to minimize the costs the Contractor will incur related to this Contract as directed by the notice. Suspension, termination or expiration of this Contract will not limit the Contractor’s continuing obligations with respect to Deliverables that COM paid for or limit the COM’s rights in such.

At COM’s request, the Contractor must immediately prepare a final report and deliver such report to COM. The report must detail the work completed and/or the orders received and not processed prior to the time of notice.

If applicable, the report must include the percentage of the Project’s completion, estimated time for delivery of all orders received but not processed, any costs incurred by the Contractor in doing the Project to date, and any Deliverables completed or partially completed but not delivered to COM at the time of notice. Based on the COM’s approval of the final report and as directed, the Contractor must deliver work, whether completed or not, to the COM. Any delivered work will be subject to approval by COM. The Contractor may be entitled to payment for any Deliverables that have been delivered and accepted at a pro-rated amount based on the compensation structure of this Contract.

1. Contract or Order Suspension.

a. Suspension for Cause. If the Contractor fails to perform any one of the Contractor’s obligations under this Contract or an order, the Contractor will be in default and COM may suspend rather than terminate this Contract or an order. In the case of suspension for default, COM will be entitled to all remedies available under this Contract.

b. Suspension for Convenience. In the case of a suspension for COM’s convenience, the amount of compensation due to the Contractor for work performed before the suspension will be determined in the same manner as provided in Section I.2.a. for termination for the COM’s convenience or the Contractor may be entitled to compensation for work performed before the suspension.

c. The notice of suspension whether, with or without cause, will be effective immediately, on the Contractor’s receipt of the notice.

COM may not suspend the work for its convenience more than twice during the term of this Contract, and any suspension for COM’s convenience may not continue for more than 30 calendar days. If the Contractor does not receive notice to resume or terminate the work within the 30-day suspension, then this Contract will terminate automatically for COM’s convenience at the end of the 30-calendar day period.

2. Contract or Order Termination.

a. Termination for Convenience. COM may terminate this Contract, or an Ordering Agency may terminate an order placed under this Contract, for its convenience after issuing ninety (90) days written notice to the Contractor. The Contractor will be entitled to the pro-rated price for any Deliverable or portion of a Deliverable that the Contractor has delivered and COM or the Ordering Agency has accepted before the termination. Total payments will not exceed the amount payable to the Contractor as if the Contract or order had been fully performed. This will be the Contractor’s exclusive remedy in the case of termination for convenience and is available to the Contractor only after the Contractor has submitted a proper invoice.

b. Termination for Cause. If the Contractor fails to perform any of its obligations under this Contract or an order under this Contract, the Contractor will be in default, and COM may terminate this Contract or COM may terminate an order in accordance with this Section upon written notice if Contractor fails to remedy the default within thirty (30) days after receiving written notice of the default. Termination for cause includes but is not limited to:

1) Termination for Persistent Default. COM may terminate for defaults that are cured but are persistent. “Persistent” means three or more defaults. After providing notification to the Contractor of its third default, COM may terminate without providing the Contractor with an opportunity to cure.

The three defaults are not required to be related to each other in any way.

2) Termination for Endangered Performance. COM may terminate if it determines that the performance is endangered through no fault of its own.

3) Termination for Financial Instability. COM may terminate if the Contractor fails to timely pay its subcontractors, files a petition in bankruptcy or similar action, or the Agency finds other evidence of the Contractor’s financial instability.

4) Termination for Delinquency, Violation of Law. An Agency may terminate if it determines that the Contractor is delinquent in its payment of federal, state or local obligations, including but not limited to taxes, workers’ compensation insurance premiums, unemployment compensation contributions, child support, court costs, or any other obligation owed to a state agency or political subdivision.

COM also may terminate if it determines that the Contractor has violated any law during the performance of this Contract.

5) Termination for Subcontractor Default. COM may terminate for default caused by the Contractor’s subcontractors. Any claims of its subcontractors due to suspension or termination will be the sole responsibility of the Contractor.

6) Termination for Failure to Retain Certification, License, and Permits. An Agency may immediately terminate if Contractor fails to obtain and maintain all official permits, approvals, licenses, certifications (Including CRP, MBE, EDGE and Veteran Friendly Business Enterprise…