FY26_CBORD_Addendum_Agreement_Fully_Executed.pdf

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STATE OF OHIO

DEPARTMENT OF VETERANS SERVICES

ADDENDUM TO AGREEMENT

To the extent allowed by the laws of the State of Ohio and subject to the additional terms and conditions set forth below, the State of Ohio, Department of Veterans Services (“ODVS”), 77 South High Street, 7th Floor, Columbus, Ohio 43215, and The CBORD Group, Inc. (“Contractor”), located at 950 Danby Road Suite 100C, Ithaca, NY 14850. For purposes of this Contract, ODVS is the Contracting Agency and the Ordering Agency. This Contract consists of this document, Attachment A – CBORD Agreement, Attachment B – CBORD Quote, and Attachment C – Business Associate Agreement. In exchange for the performance of Services, the Department shall pay the contractor an amount not to exceed $5,613.60.

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

A. Acceptance: Approval and retention by the Ordering Agency of any products, supplies, services or other Deliverables, delivered to fulfill Agreement requirements.

B. Contracting Agency: The agency with which the Contractor enters into the Agreement and that has the authority to enforce the Terms and Conditions of this Agreement. The Contracting Agency may also be the Ordering Agency.

C. Default: The omission or failure to perform any obligation under this Agreement.

D. Deliverable: Any Contractor-provided products, supplies, services or work product described in the specifications of the Agreement.

E. Ordering Agency: The entity that purchases and accepts the products, supplies, services or other

Deliverables under this Agreement and that is responsible for payment. The Ordering Agency may also be the Contracting Agency.

F. State: The State of Ohio.

G. State Data: All data and information provided by, created by, created for, or related to the activities of the State and any information from, to, or related to all persons that conduct business or personal activities with the State, including, but not limited to Sensitive Data. Sensitive Data means any type of data that presents a high or moderate degree of risk if released, disclosed, modified or deleted or disclosed without authorization. Sensitive Data includes, but is not limited to:

1. Certain types of personally identifiable information (PII) that is also sensitive, such as medical information, social security numbers, and financial account numbers;

2. Federal Tax Information (FTI) under IRS Publication 1075;

3. Protected Health Information (PHI) under the Health Insurance Portability and Accountability Act (HIPAA);

4. Criminal Justice Information (CJI) under the Federal Bureau of Investigation’s Criminal Justice Information

Services (CJIS) Security Policy; and

5. Other types of information not associated with an individual such as security and infrastructure records, trade secrets, and business bank account information.

H. Time and Materials Contract: A contract in which Contractor is paid the following: (1) an hourly rate for labor actually performed; and (2) if applicable and with prior approval by the Ordering Agency, 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 the State. 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. The State and the Contractor recognize that, in actual economic practice, overcharges resulting from antitrust violations are usually borne by the State. The Contractor therefore assigns to the State 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 Agreement.

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B. APPROPRIATION OF FUNDS. The State’s funds are contingent upon the availability of lawful appropriations.

If the Ohio General Assembly or any third party providing funding fails at any time to continue funding for the payments or any other obligations due by the State under this Agreement, the State will be released from its obligations on the date funding expires. If appropriations are approved, the State may continue this Agreement past the current biennium by issuing written notice of continuation to the Contractor. Any obligations of the State are subject to Section 126.07 of the Ohio Revised Code.

C. CAMPAIGN CONTRIBUTIONS. Unless this Agreement 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 Agreement with all applicable federal, state, local laws and Executive Orders while performing under this Agreement.

E. CONFLICT OF INTEREST/ETHICS. . Contractor further represents, warrants, and certifies that neither

Contractor nor any of its employees will do any act that is inconsistent with Chapter 102 and Sections 2921.42 and 2921.43 of the Ohio Revised Code or is otherwise 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 Agreement, the Agreement is void ab initio, and the Contractor shall immediately repay any funds paid under this Agreement.

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 Agreement is void ab initio, and the Contractor shall immediately repay any funds paid under this Agreement.

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 State property or performing work on behalf of the State, will not purchase, transfer, use, be under the influence of, or possess illegal drugs, non-medical cannabis (recreational marijuana), or alcohol, or abuse prescription drugs or medical marijuana in any way.

I. EQUAL EMPLOYMENT OPPORTUNITY. The Contractor will comply with all applicable 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 State of Ohio.

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 of 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 Agreement, the State 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 to the State in the Agreement.

Further, no State agency, board, commission, State educational institution, or pension fund will make any purchase from or investment in any Russian institution or company. Notwithstanding any other terms of this Contract, the State reserves the right to recover any funds paid to Contractor for purchases or investments in a Russian institution or company in violation of this paragraph. The provisions of this paragraph will expire when the applicable Executive Order is no longer effective.

The Contractor must complete the Contractor/Subcontractor Affirmation and Disclosure Form affirming the Contractor understands and will meet the requirements of the above prohibition. During the performance of this Agreement, 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.

https://procure.ohio.gov/pdf/EO2022-02D/04-Affirmation%20and%20Disclosure%20Form_3-4-22.pdf

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K. GOVERNING LAW. This Agreement 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. Any provisions requiring the State to participate in arbitration do not meet the requirements of state law and shall be considered stricken.

L. INDEMNIFICATION AND HOLD HARMLESS. Any provisions requiring the State to indemnify and/or hold harmless or pay attorneys’ fees to Contractor do not meet the requirements of state law and shall be considered stricken.

M. 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.

Contractor acknowledges and agrees any individual providing personal services under this Agreement is not a public employee for purposes of Chapter 145 of the Ohio Revised Code. 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 Agreement complete and submit to the Ordering Agency the Independent Contractor/Worker Acknowledgement form, available at https://www.opers.org/forms-archive/PEDACKN-Non-Member- Acknowledgment.pdf.

Contractor’s failure to complete and submit the Independent Contractor/Worker Acknowledgement form prior to commencement of the work, service or deliverable provided under this Agreement, shall serve as Contractor’s certification that Contractor is a “business entity” as the term is defined in Section 145.037 of the Ohio Revised Code.

N. REGISTRATION WITH THE SECRETARY OF STATE. Contractor certifies that it is one of the following:

1. A company that is properly registered with the Ohio Secretary of State; or

2. A foreign corporation, not incorporated under the laws of the State of Ohio, but is registered with the Ohio

Secretary of State pursuant to Sections 1703.01 to 1703.31 of the Ohio Revised Code, as applicable; or

3. Exempt from the registration requirements of the Ohio Secretary of State.

O. TAXES. Pursuant to Section 5739.02 of the Ohio Revised Code, the State is exempt from sales tax. Pursuant to Section 5741.02(C) of the Ohio Revised Code, the State is exempt from use tax.

P. 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 Agreement period.

The State of Ohio does not acquire supplies or services that cannot be imported lawfully into the United States or transact business with any entity or individual subject to financial sanctions imposed by the United States.

The Contractor certifies that it, its subcontractors, and any agent of the Contractor or its subcontractors, will 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 entities and individuals subject to sanctions can be found at https://home.treasury.gov/policy-issues/financial-sanctions/specially-designated-nationals-and-blocked-persons-list-sdn-human-readable-lists. These sanctions generally preclude most transactions involving Cuba, Iran, and Sudan, and most imports from Burma or North Korea.

Q. 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 State encourages the Contractor to purchase goods and services from Ohio certified MBE and EDGE vendors.

https://www.opers.org/forms-archive/PEDACKN-Non-Member-Acknowledgment.pdf https://www.opers.org/forms-archive/PEDACKN-Non-Member-Acknowledgment.pdf

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R. LEGAL REPRESENTATION AND RIGHTS. The Ohio Attorney General is the chief law officer for the State of Ohio, its agencies, boards and commissions, and only the Ohio Attorney General has the authority to appoint outside legal counsel to represent the State. Contractor agrees that any provisions in this Agreement or any documents incorporated by reference that provide or allow for outside legal representation to defend or settle claims on behalf of the State or provide for a third party to have sole control of a defense or settlement of a claim do not meet the requirements of state law and are considered stricken. Contractor also agrees that, unless specifically agreed to in writing by the State, any provisions that require or provide for a waiver of any legal rights, remedies, or litigation defenses (i.e., waiver of a jury trial) do not meet the requirements of state law and are considered stricken.

III. CONTRACT CONSTRUCTION

A. TERM OF AGREEMENT. The effective date of the Agreement is the effective date stated in the Agreement or the date the Agreement is fully executed, whichever is later. The Agreement will remain in effect until the earliest of: (1) the ending date stated in the Agreement; (2) the Agreement is fully performed by both parties;

(3) the Agreement is canceled or terminated; or (4) the Agreement expires at the end of a biennium unless continued by the State.

The State cannot agree to automatic renewals and any such provision in the Agreement is considered stricken and of no effect. This Agreement may be renewed upon satisfactory performance of activities hereunder, appropriation of funds by the Ohio General Assembly, and at the sole discretion of the State. The State will issue a notice to the Contractor if the State decides to renew this Agreement. The Contractor shall not obligate resources in anticipation of a renewal until notice is provided.

B. CONTRACT AMENDMENTS / WAIVER.

1. AMENDMENTS. No change to any provision of this Agreement will be effective unless it is in writing and signed by the parties to this Agreement. Unless specifically provided otherwise in this Agreement or agreed to in writing by the Contracting or Ordering Agency – specifically the Payment Schedule and Services Terms in the Contractor’s quote, no terms or conditions included on Contractor’s quote or ordering document will be valid or enforceable against the State and are specifically excluded from this Agreement. No “click-through,” “shrink-wrap,” “browse-wrap,” or other terms that have not been specifically negotiated by the Contractor and the State, whether before, on, or after the date of this Agreement, will be effective to add or modify the terms of this Agreement, regardless of any party’s “acceptance” of those terms by electronic means. No State employee has the authority to modify, amend, or supplement this Agreement through electronic means.

2. WAIVER. The failure of either party at any time to demand strict performance by the other party of any of the terms of this Agreement will not be a waiver of those terms or to any other terms of this Agreement.

Waivers must be in writing to be effective, and either party may at any later time demand strict performance.

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

D. BINDING EFFECT. Subject to the limitations on assignment provided elsewhere in this Agreement, this

Agreement will be binding upon and inure to the benefit of the respective successors and assigns of the State and the Contractor.

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

F. DAYS. When this Agreement refers to days, it means calendar days, unless it expressly provides otherwise.

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

H. INJUNCTIVE RELIEF. Nothing in this Agreement is intended to limit the State’s right to injunctive relief if such is necessary to protect its interests or to keep it whole.

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

J. ORDER OF PRIORITY. Unless otherwise stated in this Addendum, the terms and conditions of this

Addendum will take precedence over the attached exhibits or any other terms and conditions or documents referenced or incorporated by reference in this Agreement.

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

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

2. Use this Agreement 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 the Contractor or a third party.

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

M. SUBCONTRACTING. The State recognizes that it may be necessary for the Contractor to use a subcontractor to perform a portion of the work under the Agreement. In those circumstances, the Contractor shall submit a list identifying the Contractor’s subcontractors. The Contractor may not enter into subcontracts related to the Agreement after award without written approval from the State. If any change occurs during the term of the Agreement, that requires a change to identified subcontractors, the Contractor shall amend its list of subcontractors and request written approval from the State. The State 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 work performed or product delivered under the Agreement. All agreements with subcontractors must incorporate this Agreement by reference and include the following provisions: (1) the subcontractor agrees to be bound by all applicable terms and conditions of this Agreement; and (2) the terms of this Agreement prevail over any conflicting terms of the agreement with the subcontractor. The Contractor will be the sole point of contact with regard to all contractual matters.

N. 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 Agreement. In addition, to the extent necessary to carry out the purpose of this Agreement, all other terms, conditions, representations or warranties contained in this Agreement will survive the expiration or termination of this Agreement.

O. COUNTERPARTS. This Agreement 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.

P. ENTIRE AGREEMENT. The Agreement and this Addendum supersede all prior agreements, written or oral, between Contractor and the State and shall constitute the entire agreement and understanding between the parties with respect to the subject matter hereof. The Agreement and this Addendum and each of their provisions shall be binding upon the parties and may not be waived, modified, amended, or altered except by a writing signed by the State and Contractor.

Q. ADDENDUM CONTROLLING. In the event there is a conflict between the terms and conditions of the

Agreement and this Addendum, this Addendum is controlling.

IV. ORDER AND PAYMENT PROVISIONS

13. CERTIFICATION OF FUNDS/PURCHASE ORDER REQUIREMENTS. None of the duties or obligations in this Agreement are binding on the State, and the Contractor will not begin performance on this Agreement, 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 by the appropriate Ordering Agency.

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3. If required, the Controlling Board of Ohio has approved the purchase in accordance with Section 127.16 of the Ohio Revised Code.

4. If applicable, an official State of Ohio Purchase Order (P.O.) has been issued from the appropriate Ordering Agency, which is certification that the above requirements have been met.

B. CONTRACT ORDERS. Ordering Agencies will order supplies or services under this Agreement from the

Contractor directly. The Contractor may receive orders made by Ordering Agencies electronically with signed quote or purchase order from authorized employees of the Ordering Agency. Neither the Ordering Agency nor the Contracting Agency will be responsible for orders placed by unauthorized employees.

If Contractor’s quote or ordering document contains or incorporates by reference any terms or conditions other than a description of the goods or scope of services and the prices for those goods and/or services, those terms or conditions are excluded from this Agreement and are of no effect.

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 the State. 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 Materials 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 Agreement and in accordance with

Section 126.30 of the Ohio Revised Code payments under this Agreement 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 the State will be considered the date payment is made. Payment of an invoice by the State will not prejudice the State’s right to object to or question that or any other invoice or matter in relation thereto. The State’s preferred method of payment is by electronic funds transfer. However, the Ordering Agency may also make payment by State of Ohio payment card or by warrant issued by the Auditor of State.

At the time of Agreement award, Contractor must be able to accept all forms of payment from the State and Ordering Agency.

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

F. TRAVEL. Any travel that the Contractor requires to perform its obligations under this Agreement will be at the Contractor’s expense. The State will pay for any additional travel that it requests only with prior written approval. The State 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 Agreement will be in accordance with the industry’s professional standards, the requirements of this Agreement 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. The Deliverables will perform substantially in accordance with its documentation.

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5. The Contractor has the right to enter into this Agreement.

6. The Contractor has not entered into any other contracts or employment relationships that restrict the

Contractor’s ability to perform under this Agreement.

7. 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.

8. The Contractor has good and marketable title to any Deliverable delivered under this Agreement for which title passes to the State.

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

10. The Contractor warrants that the Contractor has not and will not enter into any contracts without written approval of the State to perform substantially identical services for the State such that the Project duplicates the work done or to be done under the other contracts.

11. For one year from the delivery date of any products or software, the products or software will be free of material defects and uses commercially reasonable efforts to prevent introduction of viruses to the products or software including the media on which it is delivered, if applicable.

If the Contractor is notified in writing that it is in breach of any of the above warranties, the Contractor will correct such failure in a commercially reasonable time or as specified in the Agreement. If the Contractor fails to comply, the State may terminate the Agreement, and the Contractor will refund the amount of any unused prepaid fees paid for the Deliverable by the State.

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

B. INDEMNITY. The Contractor must indemnify the State for all liability and expense arising out of the performance of this Agreement, provided that liability or expense is due to the gross negligence or willful misconduct 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 State, its employees, other contractors, or agents.

Contractor must indemnify the State for all liability and expense resulting from the unauthorized disclosure or loss of State Data, including personally identifiable information and State sensitive information that was solely caused by Contractor. Damages resulting from the unauthorized disclosure or loss of State Data that was solely caused by Contractor shall be considered direct damages under this Agreement and include, but are not limited to, the following: (i) reasonable and documented expenses for legally-required notification of impacted individuals; (iii) government fines and penalties assessed against the State; (iv) reasonable and documented costs to the State for investigations, audits or forensic services as applicable related to the disclosure or loss; (v) reasonable and documented mitigation measures as appropriate and consistent with applicable law or industry standards, including 12 months of credit monitoring for individuals impacted by a disclosure; (vi) costs to the State to reconstruct data that was lost; and (vii) other such expenses incurred by the State as a result of the unauthorized disclosure or loss of State Data that was solely caused by Contractor.

Contractor’s indemnification obligations under this paragraph apply whether the expenses or costs incurred by the State are performed by State employees or hired contractors as long as the expenses or costs are reasonable, documented, and if performed by the State is comparable to the cost of a third party completing the same task. Contractor must also work with the State to provide the necessary information to support the State in directly notify impacted individuals or persons as required by Ohio Revised Code Chapter 1349.

The Contractor must also indemnify, release, protect, and hold the State harmless from any claim of infringement of a copyright, patent, trade secret, or similar intellectual property right based on the State’s proper use of any Deliverable under this Agreement. This obligation of indemnification will not apply where the State 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 the State to use the infringing Deliverable as intended; or

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

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The State 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 only upon consultation with and approval by the Ohio Attorney General.

C. INSURANCE. Until all obligations under this Agreement are satisfied, and without limiting Contractor’s indemnification obligations herein, Contractor shall procure and maintain, for the duration of the Agreement, the insurance policies set forth below. Contractor shall procure and maintain insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the services hereunder by the Contractor, its agents, representatives, or employees. Contractor shall also procure and maintain insurance covering its legal liability for claims arising out of their services including, but not limited to, loss, damage, theft or other misuse of data, infringement of intellectual property, invasion of privacy and breach of data. All commercial insurance required shall be provided by insurers with a rating of not less than A-VII from A.M. Best or a comparable rating agency.

Coverage shall be at least as broad as:

1. Commercial General Liability (CGL): written on an "occurrence" basis, including products and completed operations, property damage, bodily injury and personal and advertising injury with limits no less than $1,000,000 per occurrence. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit. Defense costs shall be outside the policy limit. The State of Ohio, its officers, officials and employees are to be covered as additional insureds on the commercial general liability policy with respect to liability arising out of work or operations performed by or on behalf of the Contractor including materials, parts, or equipment furnished in connection with such work or operations.

2. Automobile Liability: covering Code 1 (any auto), or if Contractor has no owned autos, Code 8 (hired) and

9 (non-owned), with a limit no less than $1,000,000 per accident for bodily injury and property damage.

3. Workers' Compensation insurance as required by the State of Ohio, or the state in which the work will be performed, with Statutory Limits, and Employer's Liability Insurance with a limit of no less than $1,000,000 per accident for bodily injury or disease. If Contractor is a sole proprietor, partnership or has no statutory requirement for workers’ compensation, Contractor must provide a letter stating that it is exempt and agreeing to hold the State harmless from loss or liability for such.

The insurance obligations under this Agreement shall be the minimum Insurance coverage requirements and/or limits shown in this Agreement. No representation is made that the minimum Insurance requirements of this Agreement are sufficient to cover the obligations of the Contractor under this Agreement.

Pursuant to Ohio Revised Code 2743.02(D), all applicable insurance or other means of recovery shall apply to any claim arising from the Contractor’s activities relating to this Agreement on a primary basis. The insurance or self-insurance maintained by the State shall not contribute to claims made due to the Contractor’s negligence, errors, or omissions. No subrogation demands shall be made against the State of Ohio, except where there is negligence on the part of the State, and any such demands shall be reduced by all collateral recovery sources available to or received by the claimant.

Umbrella or Excess Insurance Policies. Umbrella or excess commercial liability policies may be used in combination with primary policies to satisfy the limit requirements above. Such umbrella or excess commercial liability policies must apply without any gaps in the limits of coverage and be at least as broad as and follow the form of the underlying primary coverage required above.

Notice of Cancellation. Contractor must provide the State of Ohio with written notice of cancellation or material change to any insurance policy required above as soon as possible and must use best efforts to notify the State at least 30 days in advance of such cancellation or material change. Material change shall be defined as any change to the insurance limits, terms or conditions that would limit or alter the State’s available recovery under any of the policies required above. A lapse in any required insurance coverage during this Agreement shall be a breach of this Agreement.

Deductibles and Self-Insured Retentions. Deductibles and self-insured retentions must be declared to and approved by the State. The State may require the Contractor to provide proof of ability to pay losses and related investigations, claims administration and defense expenses within the retention.

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Claims Made Policies. If any of the required policies provide coverage on a claims-made basis:

1. The Retroactive Date must be shown and must be before the date of the Agreement or the beginning of contract work.

2. Insurance must be maintained, and evidence of insurance must be provided for at least five (5) years after completion of the contract work.

3. If coverage is canceled or non-renewed, and not replaced with another claims-made policy form with a Retroactive Date prior to the Agreement effective date, the Contractor must purchase "extended reporting'' coverage for a minimum of five (5) years after completion of contract work. The Discovery Period must be active during the Extended Reporting Period.

Verification of Coverage. Contractor must furnish the State of Ohio with certificates of insurance or copies of the applicable policy language effecting coverage required by this clause. All certificates are to be received and approved by the State of Ohio before work commences. However, failure to obtain the required documents prior to the work beginning shall not waive the Contractor’s obligation to provide them. The State of Ohio reserves the right to require complete, copies of all required insurance policies, including endorsements required by these specifications, at any time.

Subcontractors. Contractor must require and verify that all subcontractors maintain insurance with sufficient limits for the nature of the products or services they are providing, and Contractor shall ensure that State of Ohio is an additional insured on commercial generally liability insurance required from subcontractors.

Contractor will indemnify the State for damages that exceed a subcontractor’s policy limits.

Special Risks or Circumstances. State of Ohio reserves the right to modify these requirements, including limits, based on the nature of the risk, prior experience, insurer, coverage, or other special circumstances.

D. LIMITATION OF LIABILITY. 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. Notwithstanding any other limitation provisions, the Contractor agrees that the Contractor shall be liable for all direct loss or damages from a third-party claim against the State due to the gross negligence or willful misconduct of the Contractor under this Agreement.

3. Each party’s maximum aggregate liability for any and all claims arising out of this agreement shall not exceed the greater of two times (2x) the fees paid or payable by the State to Contractor during the twelve months immediately preceding the event which gave rise to the such claim, or $25,000, whichever is greater.

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 the Contracting Agency and all Ordering Agencies within two business days after notice has been given. The Contractor shall, at the option of the Ordering Agency, 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 the Ordering Agency. At the option of the Ordering Agency, 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 related to this Agreement in a manner consistent with Generally Accepted Accounting Principles (GAAP) or equivalent accounting principles. Additionally, the Contractor must keep separate business records for this Agreement, 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 Agreement and until the expiration of three (3) years after final payment under this Agreement, the Contractor agrees to provide the State, 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 Agreement.

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The Contractor must, for each subcontract in excess of $25,000.00, 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 Agreement.

The Contractor must provide access to the requested records at the location specified by the State no later than five (5) business days after the request by the State, the State’s designee or any party with audit rights.

If an audit reveals any material deviation from the Agreement requirements, any misrepresentations, or overcharge to the State or any other provider of funds for the Agreement, the State or other party will be entitled to recover damages as well as the cost of the audit.

B. F.O.B. SHIPPING POINT. The Contractor must provide Deliverables under this Agreement F.O.B. shipping point. The place of destination will be specified by the Ordering Agency on the agency’s purchase order or other ordering document. Cost of the freight must be borne and paid by the Contractor and then the actual shipping cost will be added to the State’s invoice.

All risk of loss, regardless of the cause, will remain with the Contractor through delivery and Contractor will handle any carrier issues. Unless otherwise provided in this Agreement, the State will determine whether the Contractor provided each Deliverable required in this Agreement and has fully met all work requirements of this Agreement.

C. RETURNED GOODS. When the use of this Agreement involves the purchase of goods, the following applies:

1. Returned goods, when due to Contractor error (i.e., over-shipment, unapproved substitution, etc.), shall be returned to the Contractor at the Contractor’s expense if (a) the hardware is in new condition, (b) the hardware is returned in the original, unmarked carton with the packing materials, and (c) the shipment must include instruction manuals, discs, and accessories that were included in the original shipment. If (a), (b) and (c) are not met, Contractor will charge a Restocking Fee and deduct the Restocking Fee from the shipping cost credits, which may result in additional costs to the Customer. The Contractor shall make arrangements with the Ordering Agency to ship the returned goods to Contractor . The Contractor shall not apply any restocking or other charges to the Ordering Agency. At the option of the Ordering Agency, replacement items may be accepted and will be shipped within seven (7) calendar days of notification.

2. For orders of custom manufactured items, the Contractor must provide a production sample of the item to the Ordering Agency for acceptance. The production sample must be identical to the item to be provided. The Ordering Agency will provide written acceptance of the item prior to the Contractor continuing with production. Once delivery and acceptance has been completed and the Ordering Agency 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 the Ordering Agency will result in the Contractor bearing all responsibility and costs associated with the return of these goods.

3. 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 the Ordering Agency within thirty (30) days of delivery. 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 30 (30) days will be at the option of the Contractor. A restocking fee of thirty percent (30%) of the net cost will be applied. Please note that the restocking fee is subject to change based on the then-current manufacturer’s return policy.

D. {Intentionally omitted}

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.

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If the State or the Contractor cannot perform any part of its obligations under this Agreement (except for payment) 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. If 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. The Contracting and Ordering Agencies are responsible for administering and monitoring the Contractor’s compliance and performance on this Agreement. Therefore, the Contractor must respond to complaints about performance of the obligations in this Agreement to such entities in a timely manner. If the Contractor fails to perform any one of its obligations under this Agreement, 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 Agreement, if necessary, to resolve the Contractor’s continued nonperformance or noncompliance.

G.

H. CONTRACT REMEDIES.

1. Actual Damages. The Contractor is liable to the State for all actual and direct damages caused by the

Contractor’s default. The State may self-perform or buy substitute Deliverables from a third party for those that were to be provided by the Contractor. The State may recover the costs associated with acquiring substitute Deliverables, less any expenses or costs avoided by the Contractor’s default.

I. TERMINATION. In the event of termination the State will issue a notice. Any notice of 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 Agreement as directed by the notice.

At the State’s request, the Contractor must immediately prepare a final report and deliver such report to the State. 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 the State at the time of notice. Based on the State’s approval of the final report and as directed, the Contractor must deliver work, whether completed or not, to the State. Any delivered work will be subject to approval by the State. 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 Agreement.

2. Contract or Order Termination.

a. Termination for Convenience. The Ordering Agency may terminate this Agreement for its convenience after issuing 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 the Ordering Agency has accepted before the termination.