Gartner PA and Master NASPO Agr.pdf

NASPO ValuePoint

PARTICIPATING ADDENDUM

IT RESEARCH & ADVISORY SERVICES

Led by the State of Minnesota

Master Agreement #: 186839 Contractor: Gartner, Inc.

Participating Entity: State of Wisconsin Participating Entity Contract #: 505ENT-O21-NASPOITRSRC-02

A. Scope and Participation:

A1. Scope:

☒ This Participating Addendum includes the entire scope of the products and services available through the Master Agreement.

☐ This Participating Addendum includes the entire scope of the products and services available through the Master Agreement, except the following:

Any scope exclusions specified herein apply only to this Participating Addendum and shall not amend or affect other participating addendums or the Master Agreement itself.

A2. Participation: This Participating Addendum covers participation of Participating Entity in the above-referenced Master Agreement between the State of Minnesota and Contractor for Information Technology Research & Advisory Services. This Participating Addendum may be used by all state agencies, institutions of higher education, cities, counties, districts, and other political subdivisions of the state, and nonprofit organizations within the state if authorized herein and by law. Issues of interpretation and eligibility for participation are solely within the authority of the State Chief Procurement Official.

A3. Term:

☒ This Participating Addendum shall become effective as of the date of the last signature below and shall terminate upon the expiration or termination of the Master Agreement, as amended, unless the Participating Addendum is terminated sooner in accordance with the terms set forth herein.

☐ This Participating Addendum shall become effective as of the date of the last signature below and shall terminate on [date], unless terminated sooner or otherwise amended in accordance with the terms set forth herein. Notwithstanding the previous, in no event shall the term of the Participating Addendum exceed the term of the Master Agreement, as amended.

A4. Primary Contacts: The following (or their named successors) are the primary contact individuals for this Participating Addendum:

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Contractor:

Name: Ishele Graves

Address:

Telephone: (512) 364-9120

Fax:

Email: ishele.graves@gartner.com

Participating Entity:

Name: Andrea Welch

Address: 101 East Wilson Street, 6th Floor, Madison WI 53703

Telephone: (608) 264-9775

Fax:

Email: Andrea.Welch@wisconsin.gov

B. Participating Entity Modifications and Additions to the Master Agreement ☐ This Participating Addendum incorporates all terms and conditions of the Master Agreement as applied to the Participating Entity and Contractor.

☒ This Participating Addendum incorporates all terms and conditions of the Master Agreement as applied to the Participating Entity and Contractor, subject to the following limitations, modifications, and additions:

B1. Usage Reports. The quarterly report template is attached hereto and incorporated herein as Attachment A. Contractor shall submit a quarterly State of Wisconsin gross sales report to the Participating State contact person listed in Section 5, below (or as amended), in accordance with the following schedule:

Quarter Ending Report Due March 31 April 30 June 30 July 31

September 30 October 31 December 31 January 31

The quarterly report shall be subtotaled by each Participating Entity. The quarterly report shall also include any adjustments from prior periods. However, the Contractor agrees to provide additional reports if requested to the State of Wisconsin in a format and frequency as mutually agreed by both parties.

B2. Governing Law. The validity of this Participating Addendum, any of its terms or provisions, as well as the rights and duties of the Parties to this Participating Addendum, shall be governed by the laws of the State of Wisconsin. Any action at law or in equity to enforce or interpret the provisions of this Participating Addendum shall be brought in a court of competent jurisdiction in Wisconsin.

B3. Contract Dispute Resolution. In the event of any dispute or disagreement between the parties under this Participating Addendum, whether with respect to the interpretation of any provision of this Participating Addendum, or with respect to the performance of either party hereto, each party shall appoint a representative to meet for the purpose of endeavoring to resolve such dispute or negotiate for an adjustment to such provision. No legal action of any kind, except for the seeking of equitable relief in the case of the public’s health, safety or welfare, may begin in regard to the dispute until this dispute resolution procedure has been elevated to the Contractor’s highest executive authority and the equivalent executive authority within the Contracting Agency, and either of the representatives in good faith concludes, after a good faith attempt to resolve the dispute, that amicable resolution through continued negotiation of the matter at issue does not appear likely.

B4. Disclosure. If a state public official (s. 19.42, Stats.) or an organization in which a state public official holds at least a 10% interest is a party to this Contract, this contract is voidable by the state unless appropriate disclosure is made to the State of Wisconsin Ethics Board, 125 South Webster Street, Madison, Wisconsin 53702, [Telephone: (608) 266-8123].

B5. State Payment Offsets for Contractor’s Delinquency. The State shall offset payments made to the Contractor under this Contract in an amount necessary to satisfy a certified or verifiable delinquent payment owed to the State.

B6. Invoicing/Payment. Contractor will invoice the State prior to each applicable license period.

Payment terms for all properly submitted invoices are net thirty (30) days from receipt of invoice providing that the services to be provided to the State have been rendered. A properly-submitted invoice is one that is submitted in accordance with instructions contained on the State’s Purchase Order, includes a reference to the proper Purchase Order number, and is submitted to the proper address for processing.

If the State fails to pay a properly submitted invoice within thirty (30) Days of receipt, it shall pay a late payment penalty of one percent (1%) per month as provided in s. 16.528, Wis. Stats.

However, if the State declares a good faith dispute in regard to an invoice pursuant to s. 16.528 (3)(e), Wis. Stats., it shall pay any undisputed portion of said invoice, and will be exempt from the prompt payment requirement for the disputed portion. The State of Wisconsin as Licensee represents that it is tax exempt.

B7. Non-Appropriation of Funds. The State reserves the right to cancel this Participating Addendum in whole or in part without penalty if the Legislature fails to appropriate funds necessary to complete the Participating Addendum.

B8. Notice and Change of Contact Information. In the event either Contractor or the State moves or updates contact information, the applicable party shall inform the other party of such changes in writing within ten (10) Business Days. The State shall not be held responsible for payments on

Purchase Orders delayed due to Contractor’ failure to provide such notice. Any notice required or permitted to be given shall be deemed to have been given on the date of delivery or three (3) Business Days after mailing by e-mail or postal service.

B9. Promotional Advertising and News Releases. Reference to or use of the State of Wisconsin, the Great Seal of the State, the Wisconsin Coat of Arms, any Agency or other subunits of the State government, or any State official or employee, for commercial promotion is strictly prohibited.

News releases or release of broadcast e-mails pertaining to this Contract shall not be made without prior written approval of the State. Notwithstanding the foregoing, Contractor may identify the State of Wisconsin as a customer in its annual report.

B10. Recordkeeping and Record Retention. Contractor shall establish and maintain adequate records directly related to invoices generated under the Participating Addendum. All expenditure records shall be kept in accordance with Generally Accepted Accounting Procedures (GAAP). All procedures shall be in accordance with applicable federal laws or ordinances, and with applicable State and local laws or ordinances for the location where invoices are generated that are not in conflict with federal law.

B11. Sovereign Immunity. Nothing in this Contract shall be construed to constitute a waiver of the State’s sovereign immunity under the Eleventh Amendment to the United States Constitution and Article IV, Section 27 of the Wisconsin Constitution.

B12. IRS Publication 1075. If applicable, Contractor and Contracted Personnel shall adhere to the requirements of IRS Publication 1075, particularly Exhibit 7 and the Safeguarding Contract Language, including subsequent versions published by the IRS after the date of Contract execution. Contractor hereby acknowledges and agrees that specific customers or Agencies may have additional requirements as a result of IRS Publication 1075. Contractor shall comply with such agency requirements.

B13. Wisconsin Executive Order 1. Pursuant to 2019 Wisconsin Executive Order 1, Contractor agrees it will hire only on the basis of merit and will not discriminate against any persons performing a contract, subcontract or grant because of military or veteran status, gender identity or expression, marital or familial status, genetic information or political affiliation.

B14. State of Israel. Pursuant to s. 16.75(10p), Wis. Stats., contractor agrees it is not, and will not for the duration of the contract, engage in a prohibited boycott of the State of Israel as defined in s.

20.931(1)(b). State agencies and authorities may not execute a contract and reserve the right to terminate an existing contract with a company that is not compliant with this provision. This provision applies to contracts valued $100,000 or over.

B15. Nondiscrimination and Affirmative Action. The Contractor shall not discriminate against any employee or applicant for employment because of age, race, religion, color, handicap, sex, physical condition, national origin, developmental disability as defined in § 51.01(5), Wis. Stats., or sexual orientation as defined in § 111.32(13m), Wis. Stats. This provision shall include, but is not limited to, employment, upgrading, demotion or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. Except with respect to sexual orientation, the Contractor shall take affirmative action to ensure equal employment opportunities.

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

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

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

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

B16. State Employees. The Contractor may not contract with or employ a State employee or an

B17. No Agency Relationship. The Contractor shall not take any action, or make any omission, that may imply, or cause others reasonably to infer that the Contractor is acting as the State’s agent in any matter or in any way not expressly authorized by this Contract.

Any limitations, modifications, or additions specified herein apply only to the agreement and relationship between Participating Entity and Contractor and shall not amend or affect other participating addendums or the Master Agreement itself.

C. Lease Agreements Reserved

D. Subcontractors All contractors, dealers, and resellers authorized to provide sales and service support in Participating Entity’s state, as shown on Contractor’s NASPO ValuePoint-specific webpage, may provide sales and service support to users of this Participating Addendum. Participation of Contractor’s contractors, dealers, and resellers will be in accordance with the terms and conditions set forth in the Master Agreement.

E. Orders Any order placed by Participating Entity or a Purchasing Entity for a product or service offered through this Participating Addendum shall be deemed to be a sale under, and subject to the pricing and other terms and conditions of, the Master Agreement unless the parties to the order agree in writing that another contract or agreement applies to the order.

IN WITNESS, WHEREOF, the parties have executed this Participating Addendum as of the date of execution by both parties below.

PARTICIPATING ENTITY CONTRACTOR

Signature:

Signature:

Name:

Name:

Title:

Date:

For questions regarding NASPO ValuePoint Participating Addendums, please contact the Cooperative Contract Coordinator team at ccc@naspovlauepoint.org.

Fully executed NASPO ValuePoint Participating Addendums must be submitted via email in PDF format to pa@naspovaluepoint.org.

Phillip A. Cummings

Contracts Counsel

23 April 2021

Cummings,Philli p

Digitally signed by Cummings,Phillip Date: 2021.04.23 08:37:20 -04'00'

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Cheryl Edgington

5/5/2021 | 9:24 AM CDT

Bureau Director mailto:ccc@naspovlauepoint.org mailto:pa@naspovaluepoint.org

Rev. 12/19 Page 1 of 42

State of Minnesota NASPO ValuePoint Master Agreement

SWIFT Contract No.: 186840

This State of Minnesota NASPO ValuePoint Master Agreement (“Master Agreement”) is between the State of Minnesota, acting through its Commissioner of Administration (“State”) and Gartner, Inc. whose designated business address is 56 Gallant Road, Stamford, CT 06902 (“Contractor”).

Recitals

1. Under Minn. Stat. § 15.061 and other applicable law the State is empowered to engage such assistance as deemed necessary.

2. The State, NASPO ValuePoint, and Participating Entities are in need of Information Technology Research and

Advisory Services.

Contract

1. Term of Master Agreement

1.1. Effective Date: The Effective Date of this Master Agreement is January 19, 2021, or the date the State obtains all required signatures under Minn. Stat. § 16C.05, subd. 2, whichever is later. The Contractor must not begin work under this Master Agreement, or any Participating Addendum, until this Master Agreement is fully executed and the Contractor has been notified by the State’s Authorized Representative to begin the work.

1.2. Expiration Date: The Expiration Date of this Master Agreement is January 18, 2024. The Master Agreement Term, including extensions, may not exceed five (5) years.

1.3. Duly Qualified: Contractor represents it is duly qualified and shall perform all services described in this Master Agreement and subsequent Participating Addendums to the satisfaction of the Purchasing Entity. The terms of a Purchase Order, The Specifications, or a Statement of Work issued against this Master Agreement may not modify, diminish, or otherwise derogate the terms and conditions set forth in this Master Agreement.

2. Scope of Work Contractor shall provide Information Technology Research and Advisory Services, as set forth in Exhibit B. Contractor shall extend all terms and conditions itemized in this Master Agreement to any entity entering into a Participating Addendum or otherwise purchasing under the terms of this Master Agreement.

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3. Consideration and payment

3.1. Consideration. The Purchasing Entity will pay for all services provided in accordance with the applicable subscription fee(s) listed in Exhibit C. Nothing herein will be deemed to restrict the payment terms available to Participating Entities and Purchasing Entities that may be agreed to with Contractor.

3.2. Payment.

3.2.1. Payment will be made in no fewer than 30 days of the receipt of an undisputed invoice.

3.2.2. After 45 days the Contractor may assess overdue account charges up to a maximum rate of one percent per month on the outstanding balance, unless a different late payment amount is specified in a Participating Addendum, Order, or otherwise prescribed by applicable law.

3.2.3. Payments will be remitted by mail. Payments may be made via a State or political subdivision “Purchasing Card” with no additional charge.

4. Authorized Representative

4.1. The Lead State's Authorized Representative is:

Name: Mark Haselman

Address: Department of Administration Office of State Procurement 50 Sherburne Avenue St. Paul, MN 55155

Phone #: 651.201.3049

Email: mark.haselman@state.mn.us

4.2. The Contractor's Authorized Representative is

Name: Scott Lyon

Address: 4501 North Fairfax Drive

8th Floor

Arlington, VA 22203

Phone #: 571.303.3469

Email: scott.lyon@gartner.com

If the Contractor’s Authorized Representative changes at any time during this Contract, the Contractor must immediately notify the State.

5. Exhibits The following documents are attached and incorporated into this Master Agreement:

Exhibit A: NASPO ValuePoint Master Agreement Terms and Conditions Exhibit B: Specifications, Duties, and Scope of Work Exhibit C: Pricing

1. (CONTRACTOR) 2. Department of Administration (STATE AGENCY) The Contractor certifies that the appropriate person(s) have executed the contract on behalf of the Contractor as required by applicable articles or bylaws.

By: }} (with delegated authority)

By:

3. Commissioner of Administration As delegated to the Office of State Procurement

By:

Sr. Director Contracts Counsel

1/13/2021

Chief Procurement Officer

1/13/2021

1/14/2021

Exhibit A: NASPO ValuePoint Master Agreement Terms and Conditions

1. Master Agreement Order of Precedence

a. Any Order placed under this Master Agreement will be subject to the following documents:

(1) A Participating Entity’s Participating Addendum (“PA”);

(2) State of Minnesota NASPO ValuePoint Master Agreement

(3) A Purchase Order, The Specifications, or Statement of Work issued against the Master

Agreement;

(4) The Solicitation;

(5) Contractor’s response to the Solicitation.

b. The documents referenced in Section 1.a shall be read to be consistent and complementary. Any conflict among these documents shall be resolved by giving priority to these documents in the order listed above. Only those Contractor terms and conditions that are expressly accepted by the Lead State and included in this Master Agreement or are attached to this Master Agreement as an Exhibit or Attachment will apply to this Master Agreement.

c. Survival of terms: Sections 20, 22, 23, 33, 35, and 36 of this Exhibit A will survive the expiration or cancellation of this Contract. Any other Contract term that states it shall survive, shall survive.

2. Definitions

As used in this Master Agreement, terms defined in the preamble shall have their assigned meanings, and the following terms shall have the meanings set forth below:

Acceptance is defined by the applicable commercial code, except Acceptance shall not occur before the completion of delivery in accordance with the Order, installation if required, and a reasonable time for inspection of the Product.

Intellectual Property means any and all patents, copyrights, service marks, trademarks, trade secrets, trade names, patentable inventions, or other similar proprietary rights, in tangible or intangible form, and all rights, title, and interest therein.

Lead State means the State centrally administering any resulting Master Agreement(s).

Master Agreement means an underlying agreement executed by and between the Lead State, acting on behalf of NASPO ValuePoint, and the Contractor, as now or hereafter amended.

NASPO ValuePoint is the cooperative purchasing division of the National Association of State Procurement Officials (NASPO), a 501(c)(3) limited liability company. NASPO ValuePoint facilitates administration of the cooperative purchasing consortium of state chief procurement officials for the benefit of state departments, institutions, agencies, and political subdivisions and other eligible entities (i.e., colleges, school districts, counties, cities, some nonprofit organizations, etc.) for all states, the District of Columbia, and territories of the United States. NASPO ValuePoint is identified in the Master Agreement as the recipient of reports and may perform contract administration functions relating to collecting and receiving reports as well as other contract administration functions as assigned by the Lead State.

Order or Purchase Order means any purchase order, sales order, contract or other document used by a Purchasing Entity to order the Products.

Participating Addendum means a bilateral agreement executed by a Contractor and a Participating Entity incorporating this Master Agreement and any other additional Participating Entity specific language or other requirements, e.g. ordering procedures specific to the Participating Entity, other terms and conditions.

Participating Entity means a state, or other legal entity, properly authorized to enter into a Participating Addendum.

Participating State means a state, the District of Columbia, or one of the territories of the United States that is listed in the Request for Proposal as intending to participate. Upon execution of the Participating Addendum, a Participating State becomes a Participating Entity.

Product means the Contractor Subscription Services listed in Exhibit C. The term Products, supplies and services, and products and services are used interchangeably in these terms and conditions.

Purchasing Entity means a state (as well as the District of Columbia and U.S territories), city, county, district, other political subdivision of a State, a nonprofit organization under the laws of some states if authorized by a Participating Addendum, or other eligible domestic of foreign public entity, that issues a Purchase Order against the Master Agreement and becomes financially committed to the purchase.

NASPO ValuePoint Provisions

3. Term of the Master Agreement

a. The initial term of this Master Agreement is for three (3) years. This Master Agreement may be extended beyond the original contract period for two (2) additional years at the Lead State’s discretion and by mutual agreement and upon review of requirements of Participating Entities, current market conditions, and Contractor performance.

b. The Master Agreement may be extended for a reasonable period of time if in the judgment of the

Lead State a follow-on, competitive procurement will be unavoidably delayed (despite good faith efforts) beyond the planned date of execution of the follow-on master agreement. This subsection shall not be deemed to limit the authority of a Lead State under its state law otherwise to negotiate contract extensions.

4. Amendments

The terms of this Master Agreement shall not be waived, altered, modified, supplemented or amended in any manner whatsoever without prior written agreement of the Lead State and Contractor.

5. Participants and Scope

a. Contractor may not deliver Products or services under this Master Agreement until a Participating Addendum acceptable to the Participating Entity and Contractor is executed. The NASPO ValuePoint Master Agreement Terms and Conditions are applicable to any Order by a Participating Entity (and other Purchasing Entities covered by their Participating Addendum), except to the extent altered, modified, supplemented or amended by an applicable Participating Addendum. By way of illustration and not limitation, this authority may apply to unique delivery and invoicing requirements, confidentiality requirements, defaults on Orders, governing law and venue relating to Orders by a Participating Entity, indemnification, and insurance requirements.

Statutory or constitutional requirements relating to availability of funds may require specific language in some Participating Addenda in order to comply with applicable law. The expectation is that these alterations, modifications, supplements, or amendments will be addressed in the Participating Addendum or, with the consent of the Purchasing Entity and Contractor, may be included in the ordering document (e.g. purchase order or contract) used by the Purchasing Entity to place the Order.

b. Use of specific NASPO ValuePoint Master Agreements by state agencies, political subdivisions and other Participating Entities (including cooperatives) authorized by individual state’s statutes to use state contracts are subject to the approval of the respective State Chief Procurement Official.

Issues of interpretation and eligibility for participation are solely within the authority of the respective State Chief Procurement Official.

c. Obligations under this Master Agreement are limited to those Participating Entities who have signed a Participating Addendum and Purchasing Entities within the scope of those Participating Addenda. States or other entities permitted to participate may use an informal competitive process to determine which Master Agreements to participate in through execution of a Participating Addendum. Financial obligations of Participating Entities who are states are limited to the orders placed by the departments or other state agencies and institutions having available funds. Participating Entities who are states incur no financial obligations on behalf of other Purchasing Entities. Contractor shall email a fully executed PDF copy of each Participating Addendum to PA@naspovaluepoint.org to support documentation of participation and posting in appropriate data bases.

d. NASPO, and its NASPO ValuePoint division, is not a party to this Master Agreement. Upon request by NASPO ValuePoint, Contractor shall enter into a direct contractual relationship with NASPO ValuePoint related to Contractor’s obligations to NASPO ValuePoint under this Master Agreement, the terms of which shall be the same or similar (and not less favorable) than the terms set forth in this Master Agreement.

e. Participating Addenda shall not be construed to amend the following provisions in this Master

Agreement between the Lead State and Contractor that prescribe NASPO ValuePoint requirements, as defined in Sections 6 through 12 below: Term of the Master Agreement;

Amendments; Participants and Scope; Administrative Fee; NASPO ValuePoint Summary and Detailed Usage Reports; NASPO ValuePoint Cooperative Program Marketing and Performance Review; Right to Publish; Price and Rate Guarantee Period; and Individual Customers. Any such language shall be void and of no effect.

f. Participating Entities who are not states may under some circumstances sign their own

Participating Addendum, subject to the consent to participation by the Chief Procurement Official of the state where the Participating Entity is located. Coordinate requests for such participation through NASPO ValuePoint. Any permission to participate through execution of a Participating Addendum is not a determination that procurement authority exists in the Participating Entity; they must ensure that they have the requisite procurement authority to execute a Participating Addendum.

6. Administrative Fees

a. The Contractor shall pay to NASPO ValuePoint, or its assignee, a NASPO ValuePoint

Administrative Fee of one-quarter of one percent (0.25% or 0.0025) no later than sixty (60) days following the end of each calendar quarter. The NASPO ValuePoint Administrative Fee shall be submitted quarterly and is based on all sales of products and services under the Master Agreement (less any charges for taxes or shipping). The NASPO ValuePoint Administrative Fee is included in the Pricing as set forth in Exhibit C.

b. Additionally, some states may require an additional fee be paid directly to the state only on purchases made by Purchasing Entities within that state. For all such requests, the fee level, payment method and schedule for such reports and payments will be incorporated into the Participating Addendum that is made a part of the Master Agreement. The Contractor may adjust the Master Agreement pricing accordingly for purchases made by Purchasing Entities within the jurisdiction of the state. All such agreements shall not affect the NASPO ValuePoint Administrative Fee percentage or the prices paid by the Purchasing Entities outside the jurisdiction of the state requesting the additional fee. The NASPO ValuePoint Administrative Fee in subsection 6a shall be based on the gross amount of all sales (less any charges for taxes or shipping) at the adjusted prices (if any) in Participating Addenda.

7. NASPO ValuePoint Summary and Detailed Usage Reports

a. Summary Sales Data. The Contractor shall submit quarterly sales reports directly to NASPO

ValuePoint using the NASPO ValuePoint Quarterly Sales/Administrative Fee Reporting Tool found at http://calculator.naspovaluepoint.org. Any/all sales made under this Master Agreement shall be reported as cumulative totals by state. Even if Contractor experiences zero sales during a calendar quarter, a report is still required. Reports shall be due no later than thirty (30) days following the end of the calendar quarter (as specified in the reporting tool).

b. Detailed Sales Data. Contractor shall also report detailed sales data by: (1) state; (2) http://calculator.naspovaluepoint.org/ entity/customer type, e.g. local government, higher education, K12, non-profit; (3) Purchasing Entity name; (4) Purchasing Entity bill-to and ship-to locations; (4) Purchasing Entity and Contractor Purchase Order identifier/number(s); (5) Purchase Order Type (e.g. sales order, credit, return, upgrade, determined by industry practices); (6) Purchase Order date; (7) Ship Date; (8) and line item description, including product number if used. The report shall be submitted in any form required by the Lead State. Reports are due on a quarterly basis and must be received by the Lead State and NASPO ValuePoint Cooperative Development Team no later than thirty (30) days after the end of the reporting period. Reports shall be delivered to the Lead State and to the NASPO ValuePoint Cooperative Development Team electronically through a designated portal, email, flash drive or other method as determined by the Lead State and NASPO ValuePoint.

Detailed sales data reports shall include sales information for all sales under Participating Addenda executed under this Master Agreement. The format for the detailed sales data report is in shown in Attachment 1.

c. Reportable sales for the summary sales data report and detailed sales data report includes sales to employees for personal use where authorized by the solicitation and the Participating Addendum. Report data for employees should be limited to ONLY the state and entity they are participating under the authority of (state and agency, city, county, school district, etc.) and the amount of sales. No personal identification numbers, e.g. names, addresses, social security numbers or any other numerical identifier, may be submitted with any report.

d. Contractor shall provide the NASPO ValuePoint Cooperative Development Coordinator with an executive summary each quarter that includes, at a minimum, a list of states with an active Participating Addendum, states that Contractor is in negotiations with and any Participating Addendum roll out or implementation activities and issues. NASPO ValuePoint Cooperative Development Coordinator and Contractor will determine the format and content of the executive summary. The executive summary is due thirty (30) days after the conclusion of each calendar quarter.

e. Timely submission of these reports is a material requirement of the Master Agreement. The recipient of the reports shall have exclusive ownership of the media containing the reports. The Lead State and NASPO ValuePoint shall have a perpetual, irrevocable, non-exclusive, royalty free, transferable right to display, modify, copy, and otherwise use reports, data and information provided under this section.

8. NASPO ValuePoint Cooperative Program Marketing, Training, and Performance Review

a. Contractor shall work cooperatively with NASPO ValuePoint personnel to create a mutually agreeable set of marketing plans upon final execution of this Master Agreement. Plans shall be agreed upon and finalized no later than 90 days after the date of the Master Agreement execution. The plan(s) will include education for NASPO’s Contractor’s contract administrator(s) and sales/marketing workforce regarding the Master Agreement contract, to include the competitive nature of NASPO ValuePoint procurement, the participating addendum process, and the manner in which qualifying entities can participate in the Master Agreement. .

b. Contractor shall, as Participating Addendums become executed, if requested by NASPO

ValuePoint personnel provide plans to launch the program within the participating state. Plans will include time frames to launch the agreement and confirmation that the Contractor’s website has been updated to properly reflect the contract offer as available in the participating state. .

c. Contractor shall, absent anything to the contrary outlined in a Participating Addendum, consider customer proposed terms and conditions, as deemed important to the customer, for possible inclusion into the Purchasing Entity agreement.

d. Contractor shall participate in an annual contract performance review at a location selected by the

Lead State and NASPO ValuePoint, which may include a discussion of marketing action plans, target strategies, marketing materials, as well as Contractor reporting and timeliness of payment of administration fees.

e. Contractor acknowledges that the NASPO ValuePoint logos may not be used by Contractor in sales and marketing until a logo use agreement is executed with NASPO ValuePoint.

f. The Lead State expects to evaluate the utilization of the Master Agreement at the annual performance review. Lead State may, in its discretion, cancel the Master Agreement pursuant to section 28, or not exercise an option to renew, when Contractor utilization does not warrant further administration of the Master Agreement. The Lead State may exercise its right to not renew the Master Agreement if vendor fails to record or report revenue for three consecutive quarters, upon 60-calendar day written notice to the Contractor. Cancellation based on nonuse or under-utilization will not occur sooner than two years after award (or execution if later) of the Master Agreement. This subsection does not limit the discretionary right of either the Lead State or Contractor to cancel the Master Agreement pursuant to section 28 or to terminate for default pursuant to section 30.

g. The Contractor hereby certifies that the pricing provided to NASPO herein is equivalent with the pricing provided to all similar situated Contractor Public Sector Clients acquiring the listed Products under similar terms and conditions. Contractor agrees that should it offer any promotions, discounts or other price incentives to any of its Public Sector Clients, those same promotions, discounts or other price incentives will be offered under this Master Agreement.

9. Intentionally left Blank

10. Right to Publish

Throughout the duration of this Master Agreement, Contractor must secure from the Lead State prior approval for the release of information that pertains to the potential work or activities covered by the Master Agreement. This limitation does not preclude publication about the award of the Master Agreement or marketing activities consistent with any proposed and accepted marketing plan. The Contractor shall not make any representations of NASPO ValuePoint’s opinion or position as to the quality or effectiveness of the services that are the subject of this Master Agreement without prior written consent. Failure to adhere to this requirement may result in termination of the Master Agreement for cause.

11. Price and Rate Guarantee Period

All prices and rates must be guaranteed for the initial term of the Master Agreement. Following the initial Master Agreement period, any request for pricing adjustments or refresh of product offerings must be for the entirety of the extended period, and must be made at least 60 days prior to the effective date. Requests for price or rate adjustment must include sufficient documentation supporting the request. Any amendment to the Master Agreement shall not be effective unless agreed to by both parties in writing. No retroactive adjustments to pricing will be allowed.

12. Individual Customers

Except to the extent modified by a Participating Addendum, each Purchasing Entity shall follow the terms and conditions of the Master Agreement and applicable Participating Addendum and will have the same rights and responsibilities for their purchases as the Lead State has in the Master Agreement, including but not limited to, any indemnity or right to recover any costs as such right is defined in the Master Agreement and applicable Participating Addendum for their purchases. Each Purchasing Entity will be responsible for its own charges, fees, and liabilities. The Contractor will apply the charges and invoice each Purchasing Entity individually.

Administration of Orders

13. Ordering

a. Master Agreement order and purchase order numbers shall be clearly shown on all acknowledgments, shipping labels, packing slips, invoices, and on all correspondence.

b. Purchasing Entities may define entity or project-specific requirements and informally compete the requirement among companies having a Master Agreement on an “as needed” basis. This procedure may also be used when requirements are aggregated or other firm commitments may be made to achieve reductions in pricing. This procedure may be modified in Participating Addenda and adapted to the Purchasing Entity’s rules and policies. The Purchasing Entity may in its sole discretion determine which Master Agreement Contractors should be solicited for a quote.

The Purchasing Entity may select the quote that it considers most advantageous, cost and other factors considered.

c. Each Purchasing Entity will identify and utilize its own appropriate purchasing procedure and documentation. Contractor is expected to become familiar with the Purchasing Entities’ rules, policies, and procedures regarding the ordering of supplies and/or services contemplated by this Master Agreement.

d. Contractor shall not begin work without a valid Purchase Order or other appropriate commitment document under the law of the Purchasing Entity.

e. Orders may be placed consistent with the terms of this Master Agreement during the term of the

Master Agreement.

f. All Orders pursuant to this Master Agreement, at a minimum, shall include:

(1) The services or Products being delivered;

(2) A billing address;

(3) The name, phone number, and address of the Purchasing Entity representative;

(4) The price and Product consistent with this Master Agreement and the contractor’s proposal;

and

(5) The Master Agreement identifier.

g. All communications concerning administration of Orders placed shall be furnished solely to the authorized purchasing agent within the Purchasing Entity’s purchasing office, or to such other individual identified in writing in the Order.

h. Orders must be placed pursuant to this Master Agreement prior to the termination date thereof, but may have a delivery date or performance period up to 120 days past the then-current termination date of this Master Agreement. Contractor is reminded that financial obligations of Purchasing Entities payable after the current applicable fiscal year are contingent upon agency funds for that purpose being appropriated, budgeted, and otherwise made available.

i. Notwithstanding the expiration, cancellation or termination of this Master Agreement, Contractor agrees to perform in accordance with the terms of any Orders then outstanding at the time of such expiration or termination. Contractor shall not honor any Orders placed after the expiration, cancellation or termination of this Master Agreement, or otherwise inconsistent with its terms.

Orders from any separate indefinite quantity, task orders, or other form of indefinite delivery order arrangement priced against this Master Agreement may not be placed after the expiration or termination of this Master Agreement, notwithstanding the term of any such indefinite delivery order agreement.

14. Shipping and Delivery

a. To the extent applicable, the prices are the delivered price to any Purchasing Entity. All deliveries shall be F.O.B. destination, freight pre-paid, with all transportation and handling charges paid by the Contractor.

15. Laws and Regulations

Any and all Products and services offered and furnished shall comply fully with all applicable Federal and State laws and regulations.

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17. Payment

Payment shall be made within 30 days consistent with article 3.2.1.

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20. Intellectual Property

a. Intellectual Property Rights. Each Party retains all rights, title, and interest in any and all of the intellectual property rights, including copyrights, patents, trade secrets, trademarks, and service marks, if any, in the Works and Documents provided to the other Party, its employee(s),agents, or subcontractor(s) for any purpose in and under this Master Agreement or any Participating Addendum.

Works. Works shall mean inventions, improvements, discoveries (whether or not patentable), databases, computer programs, reports, notes, studies, photographs, negatives, designs, drawings, specifications, materials, tapes, disks, documents.

Documents. Documents shall include the originals of any databases, computer programs, reports, notes, studies, photographs, negatives, designs, drawings, specifications, materials, tapes, disks, or other materials, whether tangibles or electronic forms.

b. The Purchasing Entity retains all rights, title and interest in any and all derivative works or compilations of Contractor’s Works or Documents, created both independently or in party with the Contractor, its employees, agents, or subcontractors.

c. The Participating Entity retains the right to negotiate intellectual property rights, title, and interest in any and all Participating Entity Works and Documents, before the issuance of any Participating Addendum.

(1) Notwithstanding Section 33 Indemnification, upon notification of a claim against a Purchasing

Entity alleging that any Deliverables, Services, Works or Documents provided by the Contractor infringe a copyright, patent, trade secret or any other intellectual property right of any third party, Contractor will, subject to the approval of the Purchasing Entity’s legal counsel, such approval will not unreasonably be withheld, defend such claim at its expense and will pay any costs or damages that may be finally awarded against the Purchasing Entity. Contractor will not indemnify the Purchasing Entity however, if claim of infringement is caused by the Purchasing Entity’s misuse or modification of any of the Deliverables, If any Deliverables, Services, Works or Documents are, or in the Purchasing Entity’s or Contractor’s opinion are likely to be, held to be infringing, Contractor shall at its expense and option either: (a) procure the right for the Purchasing Entity to continue to use it, (b) replace it with a non-infringing equivalent, (c) modify it to make it non-infringing, or (d) direct the return of the Deliverable and refund the Purchasing Entity the fees paid for such Deliverable. Any remedies set forth herein are in addition and not exclusive of other remedies provided by law.

d. Ownership. Nothing herein shall change the ownership of Contractor’s pre-existing materials and revisions that may be made to such pre-existing materials by or on behalf of Contractor from time to time. The pre-existing materials shall remain the sole and exclusive property of Contractor and Client is granted a perpetual, irrevocable, worldwide, royalty free, non-exclusive, non-transferable right to use the pre-existing materials for its internal purposes.

General Provisions

21. Insurance

a. Unless otherwise agreed in a Participating Addendum, Contractor shall, during the term of this Master Agreement, maintain in full force and effect, the insurance described in this section.

Contractor shall acquire such insurance from an insurance carrier or carriers licensed to conduct business in each Participating Entity’s state and having a rating of A-, Class VII or better, in the most recently published edition of A.M. Best’s Insurance Reports. Failure to buy and maintain the required insurance may result in this Master Agreement’s termination or, at a Participating Entity’s option, result in termination of its Participating Addendum.

b. Coverage shall be written on an occurrence basis. The minimum acceptable limits shall be as indicated below:

(1) Commercial General Liability covering premises operations, independent contractors, products and completed operations, blanket contractual liability, personal injury (including death), advertising liability, and property damage, with a limit of not less than $1 million per occurrence/$2 million general aggregate;

(2) Contractor must comply with any applicable State Workers Compensation or Employers Liability Insurance requirements.

c. Contractor shall pay premiums on all insurance policies. Contractor shall provide notice to a

Participating Entity who is a state within five (5) business days after Contractor is first aware of expiration, cancellation or nonrenewal of such policy or is first aware that cancellation is threatened or expiration, nonrenewal or expiration otherwise may occur.

d. Prior to commencement of performance, Contractor shall provide to the Lead State a written endorsement to the Contractor’s general liability insurance policy or other documentary evidence acceptable to the Lead State that (1) names the Participating States identified in the Request for Proposal as additional insureds, (2) provides that written notice of cancellation shall be delivered in accordance with the policy provisions, and (3) provides that the Contractor’s liability insurance policy shall be primary, with any liability insurance of any Participating State as secondary and noncontributory. Unless otherwise agreed in any Participating Addendum, other state Participating Entities’ rights and Contractor’s obligations are the same as those specified in the first sentence of this subsection except the endorsement is provided to the applicable state.

e. Contractor shall furnish to the Lead State copies of certificates of all required insurance in a form sufficient to show required coverage within thirty (30) calendar days of the execution of this Master Agreement and prior to performing any work. Copies of renewal certificates of all required insurance shall be furnished within thirty (30) days after any renewal date to the applicable state Participating Entity. Failure to provide evidence of coverage may, at the sole option of the Lead State, or any Participating Entity, result in this Master Agreement’s termination or the termination of any Participating Addendum.

f. Coverage and limits shall not limit Contractor’s liability and obligations under this Master

Agreement, any Participating Addendum, or any Purchase Order.

22. Records Administration and Audit

In the event NASPO, a Client or their respective authorized agents carry out an audit or investigation that relates to this contract, the Contractor undertakes to fully cooperate and facilitate the audit and/or investigation work and at the request of NASPO ValuePoint provide NASPO ValuePoint or its authorized agents with access to the Contractor’s personnel as well as any information and documents that may be required in connection with such audit and/or investigation. Should such audit and/or investigation determine that any funds paid by a Client have been paid in error per the terms of the Contract; the Contractor shall reimburse such funds forthwith. Where the Contractor fails to reimburse such funds, NASPO and or Clients reserves the right to seek recovery and/or to take any other action as it deems necessary. This right shall survive for a period of five (5) years following termination of this Agreement or final payment for any order placed by a Purchasing Entity against this agreement, whichever is later. Nothing in this section will be deemed to limit the audit provisions available to a Purchasing Entity in a Participating Addendum.

23. Confidentiality, Non-Disclosure, and Injunctive Relief

a. Confidentiality. Contractor acknowledges that it and its employees or agents may, in the course of providing a Product under this Master Agreement, be exposed to or acquire information that is confidential to Purchasing Entity or Purchasing Entity’s clients. Any and all information of any form that is marked as confidential or would by its nature be deemed confidential obtained by Contractor or its employees or agents in the performance of this Master Agreement, including, but not necessarily limited to (1) any Purchasing Entity’s records, (2) personnel records, and (3) information concerning individuals, is confidential information of Purchasing Entity (“Confidential Information”). Any reports or other documents or items (including software) that result from the use of the Confidential Information by Contractor shall be treated in the same manner as the Confidential Information.