LCPTracker IFB - B-52823 Final~5.docx

The Parties to this Contract are the State of Illinois acting through the undersigned Agency (the “State”) and Vendor. This Contract, consisting of the signature page and numbered sections listed below and any attachments referenced in this Contract, constitute the entire Contract between the Parties concerning the subject matter of the Contract, and in signing the Contract, the Vendor affirms that the Certifications and if applicable the Financial Disclosures and Conflicts of Interest attached hereto are true and accurate as of the date of the Vendor’s execution of the Contract. This Contract supersedes all prior proposals, contracts and understandings between the Parties concerning the subject matter of the Contract. This Contract can be signed in multiple counterparts upon agreement of the Parties.

Contract includes BidBuy Purchase Order? (The Agency answers this question prior to Contract filing.)

☒ Yes ☐ No Contract uses Illinois Procurement Gateway Certifications and Disclosures?

☐ Yes (IPG Certifications and Disclosures including IPG Active Registered Vendor Disclosure (formerly named Forms B)) ☐ No

1. DESCRIPTION OF SUPPLIES AND SERVICES

2. PRICING

3. TERM AND TERMINATION

4. STANDARD BUSINESS TERMS AND CONDITIONS

5. SUPPLEMENTAL PROVISIONS

6. STANDARD ILLINOIS CERTIFICATIONS

7. FINANCIAL DISCLOSURES AND CONFLICTS OF INTEREST (IF APPLICABLE)

8. CONTRACT SPECIFIC CERTIFICATIONS AND DISCLOSURES – “IPG Active Registered Vendor Disclosure (formerly called FORMS B)” (IF APPLICABLE)

9. PURCHASE ORDER FROM BIDBUY (IF APPLICABLE)

In consideration of the mutual covenants and agreements contained in this Contract, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree to the terms and conditions set forth herein and have caused this Contract to be executed by their duly authorized representatives on the dates shown on the following CONTRACT SIGNATURES page.

STATE OF ILLINOIS

INFORMATION AND TECHNOLOGY CONTRACT

Illinois Depatment of Transportation LCP Tracker IFB Brand Name Only

27-494DOT-FINAD-B-52823

State of Illinois Chief Procurement Office for General Services Information and Technology Contract V.26.1

VENDOR

Email: Click here to enter text.

Date:

STATE OF ILLINOIS

Email: Kathryn.Shaw@illinois.gov

Printed Name: Gia Biagi

Official’s Title: Secretary of Transportation

Legal Printed Name: Michael S. Prater

Legal’s Title: Chief Counsel

Fiscal’s Printed Name: Vicki L. Wilson

Fiscal’s Title: CFO

State of Illinois IFB Contract: Description of Supplies and Services V. 14.1

AGENCY USE ONLY NOT PART OF CONTRACTUAL PROVISIONS

· Agency Reference #: 27-494DOT-FINAD-B-52823

· Project Title: LCP Tracker IFB

· Contract #: 27-494DOT-FINAD-B-52823

· Procurement Method (IFB, RFP, Small Purchase, etc.): IFB

· BidBuy / Bulletin Reference #: 27-494DOT-FINAD-B-52823

· BidBuy / Bulletin Publication Date:

· Award Code: A

· Subcontractor Utilization? |_| Yes |_|No Subcontractor Disclosure? |_| Yes |_|No

· Funding Source:

· Obligation #:

· Other Preferences?

State of Illinois Chief Procurement Office for General Services Information and Technology Contract V.26.1

1. DESCRIPTION OF SUPPLIES AND SERVICES

1.1. GOAL: LCPTracker Solution will provide the Illinois Department of Transportation (IDOT) a hosted Software as a Service (SaaS) application to capture and manage certified payroll reporting and workforce tracking for construction projects.

1.2. SUPPLIES AND/OR SERVICES REQUIRED:

For procurements conducted in BidBuy, the State may include in this Contract the BidBuy Purchase Order as it contains the agreed Supplies and/or Services.

1.3. MILESTONES AND DELIVERABLES: The approved vendor will provide functionality in the LCPTracker SaaS application, including:

1.3.1 LCPTracker Pro SaaS functionality:

· LCPTracker Pro Wage Maintenance

· Admin and Contractor trainings

· Collection of certified payroll reports for construction projects via website

· Support, management, and updates to Davis-Bacon compliance and reporting

· State of Illinois Prevailing Wage Maintenance and Federal Illinois Prevailing Wage Maintenance

· Collection and reporting on workforce demographics

· Unlimited contractor and administrative user access to the application

· Validation rules for data being entered for certified payroll

· WH-347 form support including, but not limited to fringe reporting, worker classifications and apprentice tracking.

· Technical software support for administrators via phone or e-mail

· Software support for contractors via e-mail or other

· Data storage for active projects for life of the contract.

1.3.2 LCPTracker Vendor Requirements:

· Per policy, Vendors must obtain annual independent SOC 2 Type 2 audits and submit the SOC 2 report, including any bridge or gap letters, to the agency for review.

· Per policy, All State of Illinois data must be hosted and remain stored within the contiguous United States, and vendors may use such data solely for purposes defined in the contract.

· Vendors must ensure State data is encrypted both at rest and in transit using FIPS‑140 compliant AES‑256 standards and provide proof of encryption upon request.

· All hosted data must be stored in a non‑proprietary, readily accessible format, or the vendor must supply, at no additional cost, tools to extract all State data from the system. Alernatively, the tools to extract could make the data available upon request.

· Data may not be used in any non‑production system or any system not explicitly associated with the contracted software or service.

· Vendors must maintain reliable data backup systems that meet State-defined Maximum Tolerable Downtime (MTD) and Recovery Point Objectives (RPO) and provide documentation of backup methodology upon request. The established MTD is 7 days, and the established RPO is 24 hours.

· Vendors must provide a written disaster recovery methodology and annual proof of disaster recovery testing, including issues identified and corresponding remediation plans.

· Vendors must sanitize all media containing State data using industry standard sanitation methods and certify the date, method, and outcome.

· Vendors must support ongoing security oversight activities—including vulnerability assessments, third‑party penetration testing, annual risk assessments to ensure that all data storage practices maintain acceptable risk levels.

1.4. VENDOR / STAFF SPECIFICATIONS: N/A

1.5. TRANSPORTATION AND DELIVERY: N/A

1.6. SUBCONTRACTING

Subcontractors are allowed.

1.6.1. Will subcontractors be utilized? |_| Yes |_| No

A subcontractor is a person or entity that enters into a contractual agreement with a total value of $100,000 or more with a person or entity who has a contract subject to the Illinois Procurement Code pursuant to which the person or entity provides some or all of the goods, services, real property, remuneration, or other monetary forms of consideration that are the subject of the primary State contract, including subleases from a lessee of a State contract.

All contracts with subcontractors where the annual value of the subcontract is greater than $50,000 must include Standard Illinois Certifications completed by the subcontractor.

1.6.2. Please identify below subcontracts with an annual value of $100,000 or more that will be utilized in the performance of this Contract, the names and addresses of the subcontractors, and a description of the work to be performed by each.

· Subcontractor Name: Click here to enter text Amount to Be Paid: Click here to enter text Address: Click here to enter text Description of Work: Click here to enter text If additional space is necessary to provide subcontractor information, please attach an additional page

1.6.3. All contracts with the subcontractors identified above must include the Standard Illinois Certifications completed.

1.6.4. If the annual value of any the subcontracts is more than $100,000, then Vendor must provide to the State the Financial Disclosures and Conflicts of Interest for that subcontractor.

1.6.5. If at any time during the term of this Contract, Vendor adds or changes any subcontractors, Vendor is required to promptly notify, in writing, the State Purchasing Officer or the Chief Procurement Officer of the names and addresses and the expected amount of money that each new or replaced subcontractor will receive pursuant to this Contract. Any subcontracts entered into prior to award of this Contract are done at the sole risk of Vendor and subcontractor(s).

1.7. SUCCESSOR VENDOR

|_| Yes |_| No Contract is for services subject to 30 ILCS 500/25-80. Heating and air conditioning service contracts, plumbing service contracts, and electrical service contracts are not subject to this requirement. Non-service contracts, construction contracts, qualification-based selection contracts, and professional and artistic services contracts are not subject to this requirement.

If yes is checked, then Vendor certifies:

(i) that it shall offer to assume the collective bargaining obligations of the prior employer, including any existing collective bargaining agreement with the bargaining representative of any existing collective bargaining unit or units performing substantially similar work to the services covered by the Contract subject to its bid or offer; and

(ii) that it shall offer employment to all employees currently employed in any existing bargaining unit who perform substantially similar work to the work that will be performed pursuant to this Contract.

1.8. WHERE SERVICES ARE TO BE PERFORMED: Unless otherwise disclosed in this section all services shall be performed in the United States. If Vendor performs the services purchased hereunder in another country in violation of this provision, such action may be deemed by the State as a breach of the Contract by Vendor.

Vendor shall disclose the locations where the services required shall be performed and the known or anticipated value of the services to be performed at each location. If Vendor received additional consideration in the evaluation based on work being performed in the United States, it shall be a breach of Contract if Vendor shifts any such work outside the United States.

· Location where services will be performed: Click here to enter text Value of services performed at this location: Click here to enter text

2. PRICING

2.1 FORMAT OF PRICING:

2.1.1 Pricing for this contract must be entered in BidBuy.

2.1.2 TYPE OF PRICING: The Illinois Office of the Comptroller requires the State to indicate whether the Contract price is firm or estimated at the time it is submitted for obligation. The total price of this Contract is estimated.

2.2 EXPENSES ALLOWED: Expenses are not allowed.

2.3 DISCOUNT: The State may receive a N/A % discount for payment within N/A days of receipt of correct invoice.

2.4 VENDOR’S PRICING: Vendor’s pricing is located in the Items Tab in the BidBuy bid. The State includes in this contract the BidBuy Purchase Order as it contains the agreed pricing.

2.5.1 Vendor’s Price for the Initial Term: Click here to enter text

· For procurements conducted in BidBuy, the State may include in this Contract the BidBuy Purchase Order as it contains the agreed pricing.

|X| If checked, see the attached BidBuy Purchase Order for Vendor’s Price for the Initial Term.

2.5.2 Vendor warrants that the prices and rates charged to the State are not higher than the lowest prices the Vendor charges to any other customer for similar quantities and conditions. If during the term of this Contract Vendor offers or provides a lower price for the same or substantially similar supplies or services to any other comparable customer, Vendor shall extend the same lower price to the State. Vendor further warrants that all pricing is firm and may otherwise only be increased as expressly allowed in this Contract.

2.5.3 If the State becomes aware of materially more favorable pricing offered by Vendor to another customer for comparable goods or services, the State may require an equitable adjustment in pricing.

MAXIMUM AMOUNT: The total payments under this Contract and all renewal options shall not exceed $Click here to enter text without a formal amendment.

Information and Technology Contract V. 26.1

3. TERM AND TERMINATION

3.1 TERM OF THIS CONTRACT: This Contract has an initial term beginning upon the last date of signature of both parties for 5 years.

For procurements conducted in BidBuy, the State may include in this Contract the BidBuy Purchase Order as it contains the agreed term.

3.1.1 In no event will the total term of this Contract, including the initial term, any renewal terms and any extensions, exceed (ten) 10 years pursuant to 30 ILCS 500/20-60.

3.1.2 Vendor shall not commence billable work in furtherance of the Contract prior to final execution of the Contract except when permitted pursuant to 30 ILCS 500/20-80.

3.1.3 In the event of a termination for cause of an order against this Contract, the State will be entitled to a pro-rata refund in the amount of the unused portion of any prepaid fees as determined by the State under the terminated order calculated as of the effective date of termination.

3.2 RENEWAL: N/A

3.3 TERMINATION FOR CAUSE: The State may terminate this Contract, in whole or in part, immediately upon notice to Vendor if: (a) the State determines that the actions or inactions of Vendor, its agents, employees, or subcontractors have caused, or reasonably could cause, jeopardy to health, safety, or property, or (b) Vendor has notified the State that it is unable or unwilling to perform the Contract.

If Vendor fails to perform to the State’s satisfaction any material requirement of this Contract, is in violation of a material provision of this Contract, or the State determines that Vendor lacks the financial resources to perform the Contract, the State shall provide written notice to Vendor to cure the problem identified within the period of time specified in the State’s written notice. If not cured by that date the State may either: (a) immediately terminate the Contract without additional written notice or (b) enforce the terms and conditions of the Contract. Additional causes allowing for termination under this section include but are not limited to: failure to perform the services or deliver the goods within the time specified; failure to perform any other material requirement; failure to make sufficient progress so as to endanger performance; or any other breach of Contract. Vendor shall not be entitled to any anticipated profits or unearned compensation as a result of a termination for cause.

For termination due to any of the causes contained in this Section, the State retains its rights to seek any available legal or equitable remedies and damages. In the event the State covers a resulting loss by contracting with an alternate vendor, Vendor shall be liable for any difference in cost between this Contract price and the replacement price for the remaining term, as well as any other damages, including delay damages. Vendor shall be liable to the State for all reasonable costs incurred by the State in enforcing any provision of this Contract, including attorneys’ fees.

However, if, after termination, a court of competent jurisdiction determines that Vendor’s actions were excusable under this Contract, then the rights and obligations of the Parties shall be the same as if the termination had been issued as a Termination for Convenience. The State may, in its sole discretion and for its sole benefit, elect to exercise this right if it determines that it is in the best interest of the State.

3.4 TERMINATION FOR CONVENIENCE: The State may, for its convenience and with thirty (30) days’ prior written notice to Vendor, terminate this Contract in whole or in part and without payment of any penalty or incurring any further obligation to Vendor.

Upon submission of invoices and proof of claim, Vendor shall be entitled to compensation for supplies and services provided in compliance with this Contract up to and including the date of termination.

3.5 OTHER TERMINATION: The State may also terminate, in whole or in part, this Contract without advance notice pursuant to Section 3.7.

3.6 SUSPENSION: The State may also suspend, in whole or in part, this Contract without advance notice pursuant to Section 3.7.

3.7 AVAILABILITY OF APPROPRIATION: This Contract is contingent upon and subject to the availability of funds. The State, at its sole option, may terminate or suspend this Contract, in whole or in part, without penalty or further payment being required, if (1) the Illinois General Assembly or the federal funding source fails to make an appropriation sufficient to pay such obligation, or if funds needed are insufficient for any reason (30 ILCS 500/20-60), (2) the Governor or the Agency reserves funds, or (3) the Agency determines, in its sole discretion or as directed by the Office of the Governor, that a reduction is necessary or advisable based upon actual or projected budgetary considerations or available funds for payment. Vendor will be notified in writing of the failure of appropriation or of a reduction or decrease and the Agency’s election to terminate or suspend, in whole or in part, as soon as practicable. Any suspension or termination pursuant to this section will be effective upon the date of the written notice unless otherwise indicated.

Information and Technology Contract V.26.1

4. STANDARD BUSINESS TERMS AND CONDITIONS

4.1 PAYMENT TERMS AND CONDITIONS:

4.1.1 Payment: All payments, including late payment charges, will be paid in accordance with the State Prompt Payment Act and rules. 30 ILCS 540; 74 III. Adm. Code 900. This shall be Vendor’s sole remedy for late payments by the State. Payment terms contained on Vendor’s invoices shall have no force or effect.

4.1.2 Minority Contractor Initiative: Any Vendor awarded a contract of $1,000 or more under Section 20-10, 20-15, 20-25 or 20-30 of the Illinois Procurement Code (30 ILCS 500) is required to pay a fee of $15. The Comptroller shall deduct the fee from the first check issued to Vendor under the Contract and deposit the fee in the Comptroller’s Administrative Fund. 15 ILCS 405/23.9.

4.1.3 No Work Prior to Execution: The State will not pay for supplies provided or services rendered, including related expenses, incurred prior to the execution of this Contract by the Parties even if the effective date of the Contract is prior to execution.

4.1.4 Prevailing Wage: As a condition of receiving payment Vendor must (i) be in compliance with the Contract, (ii) pay its employees prevailing wages when required by law, (iii) pay its suppliers and subcontractors according to the terms of their respective contracts, and (iv) provide lien waivers to the State upon request. Examples of prevailing wage categories include public works, printing, janitorial, window washing, building and grounds services, site technician services, natural resource services, security guard and food services. The prevailing wages are revised by the Illinois Department of Labor and are available on the Illinois Department of Labor’s official website, which shall be deemed proper notification of any rate changes under this subsection. Vendor is responsible for contacting the Illinois Department of Labor at 217-782-6206 or (http://labor.illinois.gov) to ensure understanding of prevailing wage requirements.

4.1.5 Federal Funding: This Contract may be partially or totally funded with Federal funds. If Federal funds are expected to be used, then the percentage of the good/service paid using Federal funds and the total Federal funds expected to be used will be provided to the awarded Vendor in the notice of intent to award.

4.1.6 Invoicing: By submitting an invoice, Vendor certifies that the supplies or services provided meet all requirements of this Contract, and the amount billed and expenses incurred are as allowed in this Contract. Invoices for supplies purchased, services performed, and expenses incurred through June 30 of any year must be submitted to the State no later than July 31 of that year; otherwise, Vendor may have to seek payment through the Illinois Court of Claims. 30 ILCS 105/25. All invoices are subject to statutory offset. 30 ILCS 210.

4.1.6.1 Vendor shall not bill for any taxes unless accompanied by proof that the State is subject to the tax. If necessary, Vendor may request the applicable Agency’s Illinois tax exemption number and federal tax exemption information.

4.1.6.2 Vendor shall invoice at the completion of the Contract unless invoicing is tied in this Contract to milestones, deliverables, or other invoicing requirements agreed to in the Contract.

4.1.6.3 Vendor shall issue invoices separately for each order, with each invoice corresponding to a single order. Charges for multiple orders may not be combined into a single invoice.

Send invoices to:

For procurements conducted in BidBuy, the Agency may include in this Contract the BidBuy Purchase Order as it contains the Bill To address.

4.2 ASSIGNMENT: This Contract may not be assigned or transferred in whole or in part by Vendor without the prior written consent of the State.

4.3 SUBCONTRACTING: For purposes of this section, subcontractors are those with contracts with an annual value exceeding the small purchase maximum established under 30 ILCS 500/20-20 , and who are specifically hired to perform all or part of the work covered by this Contract. Vendor must receive prior written approval before use of any subcontractors in the performance of this Contract. Vendor shall describe, in an attachment if not already provided, the names and addresses of all authorized subcontractors to be utilized by Vendor in the performance of this Contract, together with a description of the work to be performed by the subcontractor and the anticipated amount of money that each subcontractor is expected to receive pursuant to this Contract. If required, Vendor shall provide a copy of any subcontracts within fifteen (15) days after execution of this Contract. All subcontracts must include the same certifications that Vendor must make as a condition of this Contract. Vendor shall include in each subcontract the Standard Illinois Certifications form available from the State. If at any time during the term of this Contract, Vendor adds or changes any subcontractors, then Vendor must promptly notify, by written amendment to this Contract, the State Purchasing Officer or the Chief Procurement Officer of the names and addresses, the expected amount of money that each new or replaced subcontractor will receive pursuant to this Contract, and the general type of work to be performed. 30 ILCS 500/20-120.

4.3.1 Vendor shall be fully responsible for the performance of any subcontractors. Vendor shall supervise and guarantee the work of its subcontractors and shall ensure that all subcontractors comply with all requirements of this Contract just as if they were Vendor’s own employees. If a subcontractor fails to perform or violates any Contract requirement, Vendor shall promptly remedy the issue (including, if necessary, by replacing the subcontractor). Vendor shall be liable for any acts, omissions, or breaches by its subcontractors or agents to the same extent as if performed by Vendor. The State’s approval of any subcontractor does not relieve Vendor of its obligations under this Contract.

4.4 AUDIT/RETENTION OF RECORDS: Vendor and its subcontractors shall maintain books and records relating to the performance of the Contract or subcontract and necessary to support amounts charged to the State pursuant the Contract or subcontract. Books and records, including information stored in databases or other computer systems, shall be maintained by Vendor for a period of three (3) years from the later of the date of final payment under the Contract or completion of the Contract, and by the subcontractor for a period of three (3) years from the later of final payment under the term or completion of the subcontract. If Federal funds are used to pay Contract costs, Vendor and its subcontractors must retain their respective records for five (5) years. Books and records required to be maintained under this section shall be available for review or audit by representatives of: the procuring Agency, the Auditor General, the Executive Inspector General, the Chief Procurement Officer, State of Illinois internal auditors or other governmental entities with monitoring authority, upon reasonable notice and during normal business hours. Vendor and its subcontractors shall cooperate fully with any such audit and with any investigation conducted by any of these entities. Failure to maintain books and records required by this section shall establish a presumption in favor of the State for the recovery of any funds paid by the State under this Contract or any subcontract for which adequate books and records are not available to support the purported disbursement. Vendor or subcontractors shall not impose a charge for audit or examination of Vendor’s or subcontractors’ books and records. 30 ILCS 500/20-65. Vendor and its subcontractors shall upon reasonable notice appear before and respond to requests for information from the Illinois Works Review Panel. 30 ILCS 559/20-25(d).

4.5 CONTINUING PERFORMANCE: Time is of the essence with respect to Vendor’s performance of this Contract. Vendor shall continue to perform its obligations while any dispute concerning the Contract is being resolved unless otherwise directed by the State.

4.6 NO WAIVER OF RIGHTS: Except as specifically waived in writing, failure by a Party to exercise or enforce a right does not waive that Party’s right to exercise or enforce that or other rights in the future.

4.7 FORCE MAJEURE: Failure by either Party to perform its duties and obligations will be excused by unforeseeable circumstances beyond its reasonable control and not due to its negligence, including acts of nature, acts of terrorism, riots, labor disputes, fire, flood, explosion, and governmental prohibition (a “Force Majeure Event”). In the event of Vendor non-performance due to a Force Majeure Event, Vendor must promptly notify the State in writing describing the Force Majeure Event, the expected duration of the inability to perform, and any action being taken to mitigate the effect of the event. During the period of non-performance, the Vendor shall explore all reasonable alternatives to fulfill the Contract. The State may terminate this Contract in whole or in part without penalty if performance does not resume within thirty (30) days of the declaration. This provision shall not excuse: (a) late delivery of goods specifically manufactured or sourced for this Contract, if such goods are readily obtainable from other sources in a timely manner; or (b) any failure to implement disaster recovery or business continuity procedures where the implementation of such procedures would be reasonable, industry standard, or otherwise required by this Contract. This provision does not excuse Vendor’s obligation to resume full performance when the Force Majeure Event no longer causes an inability to perform. If a Force Majeure Event causes a shortage of materials or resources, Vendor will allocate any available materials or resources to meet the State’s requirements first before any allocation to other customers.

4.8 CONFIDENTIAL INFORMATION: Each Party to this Contract, including its agents and subcontractors, may have or gain access to confidential data or information owned or maintained by the other Party in the course of carrying out its responsibilities under this Contract. Vendor shall presume all information received from the State or to which it gains access pursuant to this Contract is confidential. Vendor information, unless clearly marked as confidential and exempt from disclosure under the Illinois Freedom of Information Act (“FOIA”) (5 ILCS 140), shall be considered public. Unless otherwise agreed by the Parties, and then only upon receipt of the State’s prior written consent, Vendor and its subcontractors shall not access or attain any personally identifiable information or sensitive information on or from the State’s systems, and Vendor agrees that any such information is the confidential information of the State. In any event, Vendor shall implement and maintain reasonable security measures to protect any and all data, information, and records disclosed by the State under this Contract from unauthorized access, acquisition, destruction, use, modification, or disclosure. No confidential data collected, maintained, or used in the course of performance of this Contract shall be disseminated except as authorized by law and with the written consent of the disclosing Party, either during the period of this Contract or thereafter. The receiving Party must return any and all data collected, maintained, created or used in the course of the performance of this Contract, in a non-proprietary, readily usable format, promptly at the end of this Contract, or earlier at the request of the disclosing Party, or notify the disclosing Party in writing of its destruction. The foregoing obligations shall not apply to confidential data or information lawfully in the receiving Party’s possession prior to its acquisition from the disclosing Party; received in good faith from a third Party not subject to any confidentiality obligation to the disclosing Party; now is or later becomes publicly known through no breach of confidentiality obligation by the receiving Party; or that is independently developed by the receiving Party without the use or benefit of the disclosing Party’s confidential information.

4.9 USE AND OWNERSHIP: The parties shall respectively retain any pre-existing intellectual property ownership rights (“Preexisting I.P.”) in effect at the time of Contract execution. However, any work product created under this Contract (“Work Product”) will be the State’s sole property if: (1) it is developed using the State’s equipment, supplies, facilities, or trade secrets; or (2) it results from Vendor’s work for the State under this Contract. Vendor shall not incorporate any of its Preexisting I.P. into Work Product, except as specifically agreed to by the parties in this Contract.

4.9.1 WORK FOR HIRE: To the extent permissible under applicable law, Work Product will be considered work made for hire pursuant to the U.S. Copyright Act, 17 U.S.C. §§ 101 et seq., and any foreign equivalent thereof.

4.9.2 ASSIGNMENT OF RIGHTS: Where Work Product contains no Vendor Preexisting I.P., to the extent if any that the State still does not own full right, title, and interest in and to the Work Product, Vendor hereby assigns to the State all of its ownership, right, title, and interest in and to all Work Product, without limitation.

4.9.3 MORAL RIGHTS: In addition to the foregoing transfers and allocations of rights, Vendor hereby irrevocably transfers and assigns to the State any and all “moral rights” Vendor may have in or with respect to the Work Product, excluding any Vendor Preexisting I.P. Vendor also hereby forever waives and agrees that it shall never, including after Contract termination, assert any moral right with respect to the Work Product. “Moral rights” include any rights to claim authorship of or credit on a work of authorship, to object to or prevent the modification or destruction of a work of authorship, or to withdraw from circulation or control the publication or distribution of a work of authorship, and any similar right, existing under judicial or statutory law of any country or subdivision of a country, or under any treaty, regardless of whether or not such right is described as a “moral right.”

4.9.4 BACKUP LICENSE: To the extent, if any, that (i) the Parties agree in this Contract to allow Work Product to incorporate any Vendor Preexisting I.P., or (ii) to the extent the above assignment provision otherwise does not provide the State with full ownership, right, title, and interest in and to the Work Product, Vendor hereby grants the State a perpetual, irrevocable, fully paid, royalty-free, worldwide license to use, reproduce, create derivative works from, and publicly display and publicly perform the Work Product. Vendor grants this license under copyright, patent, and all other applicable forms of intellectual property law.

4.10 (A) INDEMNIFICATION: Vendor shall indemnify and hold harmless the State, its agencies, officers, employees, agents, and volunteers (collectively, "Indemnified Parties") from any and all liabilities, losses, damages, claims, demands, costs, settlements, judgments, and expenses (including attorneys’ fees and expenses, whether in-house or contracted) that the Indemnified Parties may incur related to:

(a) any breach or violation by Vendor of any of its certifications, representations, warranties, covenants, or agreements;

(b) any act, activity, or omission of Vendor or any of its employees, representatives, subcontractors, or agents; or

(c) any actual or alleged death or injury to any person, damage to any real or personal property, or any other damage, harm, or loss claimed to result in whole or in part from negligent or wrongful acts or omissions of the Vendor, its employees, representatives, subcontractors, or agents;

(d) any actual or alleged claim that the products or services provided under this Contract infringe, misappropriate, or otherwise violate any intellectual property rights (including but not limited to patent, copyright, trade secret, or trademark rights) of a third party.

Vendor shall also defend (subject to the consent of the Office of the Attorney General (“OAG”)) the State against any and all third-party claims related to this Contract. In accordance with Article VIII, Section 1(a) and (b) of the Constitution of the State of Illinois and 1973 Illinois Attorney General Opinion 78, the State may not indemnify private parties absent express statutory authority permitting the indemnification.

(B) LIMITATION OF LIABILITY:

(1) Damage Cap. Vendor’s entire liability to the State for all claims arising under or related to this Contract will not exceed five (5) times the total sum paid and payable to Vendor under this Contract (the “Damage Cap”). The Damage Cap is cumulative for all claims and not per incident.

(2) Consequential Damages. Neither Party to this Contract will be liable to the other for any indirect, special, consequential or punitive damages (“Consequential Damages Exclusion”).

(3) Unlimited Liability. Neither the Damage Cap nor the Consequential Damages Exclusion will apply to any of the following:

(i) Vendor’s obligations under section 4.10(A), 4.10.1, 4.10.2, and 4.10.3;

(ii) Infringement of rights in intellectual property;

(iii) Gross negligence, willful misconduct, or fraud;

(iv) Bodily injury, death, or damage to property;

(v) Data breach, loss, or corruption; and

(vi) Intentional repudiation of contract.

4.10.1 ADDITIONAL VENDOR OBLIGATIONS: In the event any actual or alleged claim that the products or services provided under this Contract violate any intellectual property rights, Vendor shall, at its own expense, promptly: (a) secure for the State the right to continue using the affected product, software or service; (b) replace or modify the affected product, software or service to make it non-infringing, provided such modification or replacement does not materially degrade any functionality; or (c) subject to the State’s consent, refund or forego: (i) the purchase price, if a product; or (ii) if a license fee or service, the fees paid or due to be paid for every month remaining in the term following the date after which the State ceases use of that software or service.

4.10.2 DATA BREACH PREVENTION, NOTICE, AND REMEDIATION: To the extent related to or in furtherance of the Vendor’s performance under this Contract, Vendor shall ensure the security, storage, and integrity of the State’s content, data, computers, networks, and systems (which may include the use of encryption technology to protect the State’s content and data including personally identifiable information and sensitive information) from unauthorized access. Vendor shall implement and maintain all appropriate safeguards to prevent unauthorized disclosure of, access to, or use of State data and any personally identifiable and sensitive information. For purposes of this Section, unauthorized disclosure of, access to, or use of data or personally identifiable or sensitive information is defined as a “Data Incident.”

In the event Vendor becomes aware of or suspects a Data Incident, Vendor shall: (1) promptly, and in no event greater than 24 hours (unless required to give notification earlier by law or State policy), give notice to the State of that Data Incident; and (2) provide the State with daily updates, or as requested by the State, regarding findings and actions to resolve the Data Incident to the State’s satisfaction. Notifications shall be sent via email to DoIT.Security@illinois.gov, with the subject line: “Breach Notification” as it relates to Data Incidents.

If the Data Incident results from Vendor’s breach of this Contract or negligent or unauthorized act or omission, including without limitation those of its subcontractors or other agents, Vendor shall: (1) compensate the State for any reasonable expenses related to notification of consumers, (b) provide credit monitoring service to any affected individual for one year or for any longer periods that may be required by law, and (c) provide remediation services to restore data and data integrity. Vendor shall give the State prompt access to any and all records related to any Data Incident as State may reasonably request. This Section does not limit the State’s other rights or remedies, if any, resulting from a Data Incident. Vendor shall reimburse the State for costs incurred by the State in responding to, and mitigating damages caused by, any such Data Incident, including all costs of notice and remediation. Vendor shall indemnify the State for all third-party claims associated with Vendor’s breach of the obligations stated in this Section, as well as any negligent or unauthorized act or omission related to any Data Incident, including without limitation those of its subcontractors or other agents.

4.10.3 DATA LOSS AND DAMAGE TO STATE COMPUTER SYSTEMS: Vendor shall adhere to all indemnification and liability obligations stated in this Contract and will remain liable where any damage or impairment to the State’s computers, systems, and networks, or any loss or corruption of the State’s data or content, is due to Vendor’s negligent or intentional acts and omissions. Further, Vendor shall reimburse the State for any and all costs incurred by the State in restoring such data, content, computers, systems, or networks.

4.11 INSURANCE: Vendor shall, at all times during the term of this Contract and any renewals or extensions, maintain and provide a Certificate of Insurance naming the State as an additionally insured for all required bonds and insurance. Certificates may not be modified or canceled until at least thirty (30) days’ notice has been provided to the State. Vendor shall provide: (a) General Commercial Liability insurance in the amount of $1,000,000 per occurrence (Combined Single Limit Bodily Injury and Property Damage) and $2,000,000 Annual Aggregate; (b) Auto Liability, including Hired Auto and Non-owned Auto (Combined Single Limit Bodily Injury and Property Damage), in amount of $1,000,000 per occurrence; and (c) Worker’s Compensation Insurance in the amount required by law. Insurance shall not limit Vendor’s obligation to indemnify, defend, or settle any claims.

4.12 INDEPENDENT CONTRACTOR: Vendor shall act as an independent contractor and not an agent or employee of, or joint venturer with the State. All payments by the State shall be made on that basis.

4.13 SOLICITATION AND EMPLOYMENT: Vendor shall not employ any person employed by the State during the term of this Contract to perform any work under this Contract. Vendor shall give notice immediately to the Agency’s director if Vendor solicits or intends to solicit State employees to perform any work under this Contract.

4.14 COMPLIANCE WITH THE LAW: Vendor, its employees, agents, and subcontractors shall comply with all applicable federal, state, and local laws, rules, ordinances, regulations, orders, federal circulars and all license and permit requirements in the performance of this Contract. Vendor shall be in compliance with applicable tax requirements and shall be current in payment of such taxes. Vendor shall obtain at its own expense, all licenses and permissions necessary for the performance of this Contract.

4.15 BACKGROUND CHECK: Vendor affirms that it checks the criminal records of all applicants for felony convictions and misdemeanor convictions involving a violent act or threat of violence within five (5) years prior to employment, where permitted by law.

Whenever the State deems it reasonably necessary for security reasons, the State may conduct, at its expense, criminal and driver history background checks of Vendors and subcontractors, officers, employees, or agents performing services on State owned, leased, or controlled property. Vendor or subcontractor shall reassign immediately any such individual who, in the reasonable opinion of the State, does not pass the background checks. The background checks shall be in compliance with all federal laws. The State further agrees as follows:

· Use of the information collected will be for the specific purpose of facilitating a background check;

· All information collected will be treated as confidential;

· The State will limit access to the information received and will properly store it in a reasonably secure manner;

· The State will promptly dispose in an appropriate manner all collected information when the purpose for which it was originally collected is no longer valid; and

· State must provide notice and consent forms. Vendor's and subcontractor’s officers, employees, or agents performing services on state owned, leased, or controlled property not consenting shall be reassigned.

However, in no event can Vendor agree to waive the rights of its employees, nor can Vendor provide the State with any information protected by law, including but not limited to Vendor’s background check data.

4.16 APPLICABLE LAW:

4.16.1 PREVALILING LAW: This Contract shall be construed in accordance with and is subject to the laws and rules of the State of Illinois.

4.16.2 EQUAL OPPORTUNITY: The Department of Human Rights’ Equal Opportunity requirements are incorporated by reference. 44 ILL. ADM. CODE 750.

4.16.3 COURT OF CLAIMS; ARBITRATION; SOVEREIGN IMMUNITY: Any claim against the State arising out of this Contract must be filed exclusively with the Illinois Court of Claims. 705 ILCS 505/1. The State shall not enter into binding arbitration to resolve any dispute arising out of this Contract. The State of Illinois does not waive sovereign immunity (including all rights provided in the State Lawsuit Immunity Act, 745 ILCS 5) by entering into this Contract.

4.16.4 OFFICIAL TEXT: The official text of the statutes cited herein is incorporated by reference. An unofficial version can be viewed at (www.ilga.gov/legislation/ilcs/ilcs.asp).

4.17 ANTI-TRUST ASSIGNMENT: If Vendor does not pursue any claim or cause of action it has arising under Federal or State antitrust laws relating to the subject matter of this Contract, then upon request of the Illinois Attorney General, Vendor shall assign to the State all of Vendor’s rights, title, and interest in and to the claim or cause of action.

4.18 CONTRACTUAL AUTHORITY: The Agency that signs this Contract on behalf of the State of Illinois shall be the only State entity responsible for performance and payment under this Contract. When the Chief Procurement Officer or authorized designee or State Purchasing Officer signs in addition to an Agency, he/she does so as approving officer and shall have no liability to Vendor. When the Chief Procurement Officer or authorized designee or State Purchasing Officer signs a master Contract on behalf of State agencies, only the Agency that places an order or orders with Vendor shall have any liability to Vendor for that order or orders.

4.19 EXPATRIATED ENTITIES: Except in limited circumstances, no business or member of a unitary business group, as defined in the Illinois Income Tax Act, shall submit a bid for or enter into a Contract with a State agency if that business or any member of the unitary business group is an expatriated entity.

4.20 NOTICES: Notices and other communications provided for herein shall be given in writing via electronic mail whenever possible. If transmission via electronic mail is not possible, then notices and other communications shall be given in writing via registered or certified mail with return receipt requested, via receipted hand delivery or via courier (UPS, Federal Express, or other similar and reliable carrier). Notices shall be sent to the individuals who signed this Contract using the contact information provided with the signatures. Each such notice shall be deemed to have been provided at the time it is actually received. By giving notice, either Party may change its contact information.

4.21 MODIFICATIONS, SURVIVAL, AND ORDER OF PRECEDENCE: Amendments, modifications, and waivers must be in writing and signed by authorized representatives of the Parties. However, to the extent this is a master Contract, no order placed against it may purport to amend the terms herein. Any provision of this Contract officially declared void, unenforceable, or against public policy, shall be ignored and the remaining provisions shall be interpreted, as far as possible, to give effect to the Parties’ intent. All provisions that by their nature would be expected to survive, shall survive termination. In the event of any ambiguity, inconsistency, or conflict between provisions at issue, the following order of precedence will apply: (1) all provisions of this Contract, including any State Supplemental Terms included or attached in Section 5.1, but excluding any Vendor Supplemental Terms under Section 5.2; (2) any Vendor Supplemental Terms attached in Section 5.2 of this Contract; and (3) any additional Vendor documents to the extent specifically referenced within such attachments included in Section 5.2 (“Vendor Supplemental Terms”) of this Contract.

4.22 PERFORMANCE RECORD / SUSPENSION: Upon request of the State, Vendor shall meet to discuss performance or provide contract performance updates to help ensure proper performance of this Contract. The State may consider Vendor’s performance under this Contract and compliance with law and rule to determine whether to continue this Contract, suspend Vendor from doing future business with the State for a specified period of time, or whether Vendor can be considered responsible on specific future contract opportunities.

4.23 FREEDOM OF INFORMATION ACT: This Contract and all related public records maintained by, provided to or required to be provided to the State are subject to the Illinois Freedom of Information Act (“FOIA”) (5 ILCS 140) notwithstanding any provision to the contrary that may be found in this Contract.

4.24 SCHEDULE OF WORK: Any work performed on State premises shall be performed during the hours designated by the State and performed in a manner that does not interfere with the State and its personnel.

4.25 NEW GOODS: Any and all products furnished under this Contract shall be new, unused, not reconditioned, and most recent manufacture and not discontinued.

4.26 SUBSTITUTION: To the extent any product at issue under this Contract becomes discontinued or otherwise not available during any term of an order, the Vendor may propose to substitute an equivalent or better product at no additional cost to the State. Any substitutions of products shall be subject to the prior review and written approval of the State.

4.27 WARRANTIES FOR EQUIPMENT, SOFTWARE, SERVICES, AND SUPPLIES:

4.27.1 Equipment Warranty. Vendor warrants that any equipment or hardware furnished under this Contract, including any included microcode and firmware, will, for a period of three (3) years from the date of its delivery to the State: (a) materially conform to the standards, specifications, descriptions and documentation furnished by the State or furnished by Vendor and agreed to by the State, including but not limited to all specifications included or attached to this Contract; (b) be merchantable, of good quality and workmanship, and free from defects and fit and sufficient for the intended use; (c) comply with all federal and state laws and regulations pertaining to the manufacturing, packing, labeling, sale, and delivery of such equipment or hardware; and (d) be of good title and be free and clear of all liens and encumbrances. In the event of a breach of the warranty provided under this section, Vendor shall first make reasonable efforts to repair or replace any affected equipment or components thereof.