MA_220000001411_CN2_Fully_Executed.pdf

Revised 2/2019

CONTRACT CHANGE NOTICE

Change Notice Number 2 to

Contract Number 220000001411.

C O

N T

R A

C T

R

Employment Learning Innovations Inc.

S T

A

E

P ro g ra m

M a n a g e r

Rochelle Prestage MDOS

2675 Paces Ferry Rd Ste 470

517.614.3828

Atlanta, GA 30339 PrestageR@Michigan.gov

Steve Paskoff C o n tr a c t

A d m in is tr a to r Jonathon Khon MDOS

770.319.7999 517.241.3886 paskoff@eliinc.com Khonj@Michigan.gov

CV0060240

STATE OF MICHIGAN PROCUREMENT

Department of State 430 W. Allegan Lansing, MI 48933

CONTRACT SUMMARY

DESCRIPTION: Train the Trainer program for understanding legal implications of certain workplace behaviors.

INITIAL EFFECTIVE DATE INITIAL EXPIRATION DATE

INITIAL AVAILABLE

OPTIONS

EXPIRATION DATE BEFORE

CHANGE(S) NOTED BELOW

11/22/2022 11/21/2025 2 11/21/2025

PAYMENT TERMS DELIVERY TIMEFRAME

Net 45

ALTERNATE PAYMENT OPTIONS EXTENDED PURCHASING

☐ P-card ☐ Payment Request (PRC) ☐ Other ☐ Yes ☒ No

MINIMUM DELIVERY REQUIREMENTS

Training will be delivered in a web-based fashion or in person

DESCRIPTION OF CHANGE NOTICE

OPTION LENGTH OF OPTION EXTENSION

LENGTH OF

EXTENSION

REVISED EXP. DATE

☒ 1 year ☐ 11/22/2026

CURRENT VALUE VALUE OF CHANGE NOTICE ESTIMATED AGGREGATE CONTRACT VALUE

$45,000 0 $45,000 DESCRIPTION: Effective 8/14/2025 the State is exercising the first option year. The revised contract expiration date is 11/21/2026. Lastly, the Contractor Program Manager is updated to Kelli Christian, kchristian@eliinc.com, (770) 437-2444. All other terms, conditions, specifications, and pricing remain the same. Per contractor and agency agreement, and DTMB Central Procurement Services approval.

CHANGE NOTICE NO. 2 TO CONTRACT NO. 220000001411

FOR THE CONTRACTOR:

Company Name

Authorized Agent Signature

Authorized Agent (Print or Type)

Date

FOR THE STATE:

Signature

Name & Title

Agency

Date

CONTRACT CHANGE NOTICE

Change Notice Number 1 .

to

Contract Number 220000001411.

N T

R A

C T

A g n a g e r

Rochelle Prestage MDOS

2675 Paces Ferry Rd Ste 470

Atlanta, GA 30339 PrestageR@Michigan.gov

Steve Paskoff

C o n tr a c t

A d m in is tr a to r Jonathon Khon MDOS

770.319.7999 517.241.3886 paskoff@eliinc.com Khonj@Michigan.gov

CV0060240

STATE OF MICHIGAN PROCUREMENT

Department of State 430 W. Allegan Lansing, MI 48933

CONTRACT SUMMARY

DESCRIPTION: Train the Trainer program for understanding legal implications of certain workplace behaviors.

INITIAL EFFECTIVE DATE INITIAL EXPIRATION DATE

INITIAL AVAILABLE

OPTIONS

EXPIRATION DATE BEFORE

CHANGE(S) NOTED BELOW

11/22/2022 11/21/2025 2

PAYMENT TERMS

DELIVERY Training will be delivered in a web-based fashion or in person TIMEFRAME

Net 45

ALTERNATE PAYMENT OPTIONS EXTENDED PURCHASING

☐ P-card ☐ Payment Request (PRC) ☐ Other ☐ Yes ☒ No

MINIMUM DELIVERY REQUIREMENTS

Training will be delivered in a web-based fashion or in person

DESCRIPTION OF CHANGE NOTICE

OPTION LENGTH OF OPTION EXTENSION

LENGTH OF

EXTENSION

REVISED EXP. DATE

CURRENT VALUE VALUE OF CHANGE NOTICE ESTIMATED AGGREGATE CONTRACT VALUE

$25,000 $20,000 $45,000 DESCRIPTION: Effective 5/23/2024 this Contract is increased by $20,000 for MDOS use. All other terms, conditions, specifications, and pricing remain the same. Per contractor and agency agreement, and DTMB Central Procurement Services approval.

NOTICE OF CONTRACT

NOTICE OF CONTRACT NO. 220000001411 .

between

THE STATE OF MICHIGAN

and

N T

R A

C T

T

A g n a g e r

Rochelle Prestage MDOS

2675 Paces Ferry Rd Ste 470 517.614.3828

Atlanta, GA 30339 PrestageR@Michigan.gov

Steve Paskoff C o n tr a c t

A d m in is tr a to r Jonathon Khon MDOS

770.319.7999 517.241.3886 paskoff@eliinc.com KhonJ@Michigan.gov

CV0060240

CONTRACT SUMMARY

DESCRIPTION: Train the Trainer program for understanding legal implications of certain workplace behaviors.

INITIAL EFFECTIVE DATE INITIAL EXPIRATION DATE

INITIAL AVAILABLE

OPTIONS

EXPIRATION DATE BEFORE

CHANGE(S) NOTED BELOW

11/22/2022 11/21/2025 2

PAYMENT TERMS DELIVERY TIMEFRAME

Net 45

ALTERNATE PAYMENT OPTIONS EXTENDED PURCHASING

☐ P-card ☐ Payment Request (PRC) ☒ Other ☐ Yes ☒ No

MINIMUM DELIVERY REQUIREMENTS

Training will be delivered in a web-based fashion or in person

MISCELLANEOUS INFORMATION

ESTIMATED CONTRACT VALUE AT TIME OF EXECUTION $25,000

STATE OF MICHIGAN PROCUREMENT

Department of State 430 W. Allegan Lansing, MI 48933

Mich igan.gov/MiProcure ment

Version 2022-4 Page 1 of 16

STANDARD CONTRACT TERMS

This STANDARD CONTRACT (“Contract”) is agreed to between the State of Michigan (the “State”) and Employment Learning Innovations (“Contractor”), a Georgia Corporation. This Contract is effective on November 22, 2022 (“Effective Date”), and unless terminated, will expire on November 21, 2025 (the “Term”).

This Contract may be renewed for up to 2 additional 1-year period(s). Renewal is at the sole discretion of the State and will automatically extend the Term of this Contract. The State will document its exercise of renewal options via Contract Change Notice.

The parties agree as follows:

Duties of Contractor. Contractor must perform the services and provide the deliverables (the “Contract Activities”) described in a Statement of Work; the initial Statement of Work is attached as Schedule A – Statement of Work

Contractor must furnish all labor, equipment, materials, and supplies necessary for the performance of the Contract Activities unless otherwise specified in a Statement of Work.

Contractor must: (a) perform the Contract Activities in a timely, professional, safe, manner consistent with standards in the trade, profession, or industry; (b) not interfere with the State’s operations; (c) obtain and maintain all necessary licenses, permits or other authorizations necessary for the performance of the Contract; (d) cooperate with the State, including the State’s quality assurance personnel, and any third party to achieve the objectives of the Contract; (e) return to the State any State-furnished equipment or other resources in the same condition as when provided when no longer required for the Contract; (f) Any breach under this paragraph is considered a material breach.

Contractor must also be clearly identifiable while on State property by wearing identification issued by the State, and clearly identify themselves whenever making contact with the State.

Notices. All notices and other communications required or permitted under this Contract must be in writing and will be considered given and received: (a) when verified by written receipt if sent by courier; (b) when actually received if sent by mail without verification of receipt; or (c) when verified by automated receipt or electronic logs if sent by facsimile or email.

If to State: If to Contractor:

See Contract Administrator information shown below.

Shannon Mapp

2675 Paces Ferry Rd SE, Atlanta, GA 30339 smapp@eliinc.com 336.655.6218

Contract Administrator. The Contract Administrator, or the individual duly authorized for each party, is the only person authorized to modify any terms of this

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Contract, and approve and execute any change under this Contract (each a “Contract Administrator”):

State: Contractor:

Jonathon Khon

430 W. Allegan

Lansing, MI, 48933

KhonJ@Michigan.gov

517.241.3886

Steve Paskoff

2675 Paces Ferry Rd SE, Atlanta, GA 30339 paskoff@eliinc.com

770.319.7999

Program Manager. The Program Manager for each party will monitor and coordinate the day-to-day activities of the Contract (each a “Program Manager”):

State: Contractor:

Rochelle Prestage

430 W. Allegan

Lansing, M, 48933

PrestageR@Michigan.gov

517.614.3828

Josh Ford

2675 Paces Ferry Rd SE, Atlanta, GA 30339 jford@eliinc.com

312.505.4379

Performance Guarantee. Contractor must at all times have financial resources sufficient, in the opinion of the State, to ensure performance of the Contract and must provide proof upon request. The State may require a performance bond (as specified in a Statement of Work) if, in the opinion of the State, it will ensure performance of the Contract.

Insurance Requirements. Contractor, at its sole expense, must maintain the insurance coverage identified below. All required insurance must: (a be primary and non-contributing to any comparable liability insurance (including self-insurance) carried by the State; and (c) be provided by a company with an A.M. Best rating of "A-" or better, and a financial size of VII or better.

TABLE 6.1

Required Limits Additional Requirements

Commercial General Liability Insurance

Minimum Limits:

$1,000,000 Each Occurrence

Contractor must have their policy endorsed to add “the State of Michigan, its departments, divisions, agencies, offices, commissions, officers, employees, and agents” as additional mailto:paskoff@eliinc.com mailto:jford@eliinc.com

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Required Limits Additional Requirements

$1,000,000 Personal & Advertising Injury

$2,000,000 Products/Completed Operations

$2,000,000 General Aggregate insureds using endorsement CG 20 10 11 85, or both CG 20 10 12 19 and CG 20 37 12 19.

Coverage must not have exclusions or limitations related to sexual abuse and molestation liability.

Automobile Liability Insurance

If a motor vehicle is used in relation to the Contractor's performance, the Contractor must have vehicle liability insurance on the motor vehicle for bodily injury and property damage as required by law.

Workers' Compensation Insurance

Minimum Limits:

Coverage according to applicable laws governing work activities.

Waiver of subrogation, except where waiver is prohibited by law.

Employers Liability Insurance

Minimum Limits:

$500,000 Each Accident

$500,000 Each Employee by Disease

$500,000 Aggregate Disease

Privacy and Security Liability (Cyber Liability) Insurance

Minimum Limits:

$1,000,000 Each Occurrence

$1,000,000 Annual Aggregate

Contractor must have their policy cover information security and privacy liability, privacy notification costs, regulatory defense and penalties, and website media content liability.

Professional Liability (Errors and Omissions) Insurance

Minimum Limits:

$2,000,000 Each Occurrence

$2,000,000 Annual Aggregate

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Required Limits Additional Requirements

If any of the required policies provide claims-made coverage, the Contractor must:

(a) provide coverage with a retroactive date before the Effective Date of the Contract or the beginning of Contract Activities; (b) maintain coverage and provide evidence of coverage for at least 3 years after completion of the Contract Activities; and (c) if coverage is cancelled or not renewed, and not replaced with another claims-made policy form with a retroactive date prior to the Contract Effective Date, Contractor must purchase extended reporting coverage for a minimum of 3 years after completion of work.

Contractor must: (a) provide insurance certificates to the Contract Administrator, containing the agreement or delivery order number, at Contract formation and within 20 calendar days of the expiration date of the applicable policies; (c) notify the Contract Administrator within 5 business days if any insurance is cancelled and not replaced with like insurance; and (d) waive all rights against the State for damages covered by insurance. Failure to maintain the required insurance does not limit this waiver.

This Section is not intended to and is not to be construed in any manner as waiving, restricting or limiting the liability of either party for any obligations under this Contract (including any provisions hereof requiring Contractor to indemnify, defend and hold harmless the State).

Reserved

Reserved

Relationship of the Parties. The relationship between the parties is that of independent contractors. Contractor, its employees, and agents will not be considered employees of the State. No partnership or joint venture relationship is created by virtue of this Contract. Contractor, and not the State, is responsible for the payment of wages, benefits and taxes of Contractor’s employees and any subcontractors. Prior performance does not modify Contractor’s status as an independent contractor. Neither party has authority to contract for nor bind the other party in any manner whatsoever.

Intellectual Property Rights.

10.1. ELIis the owner of the fair employment practice program or programs that are the subject of this Agreement (collectively, “the Program”). The “Program

Materials” consist of ELI’s unique, proprietary property including DVDs, participants' manuals, instructional methods and materials, reference materials, software applications, source codes, and printed information obtained from software applications (excluding plug-ins, runtime engines, etc. that are licensed from third party sources), which ELI developed and which are and shall remain its exclusive intellectual property.

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10.2. ELI grants to the State a limited, non-exclusive, and non-transferable right and license to use the Program and the Program Materials for internal employee-training purposes.

10.3. It is understood and expressly agreed that the Program and any specific modifications developed for the State, along with any copies of the Program Materials, in any form, including hard copy or electronic format (i.e. software), whether created by ELI or by the State, are and shall remain ELI's exclusive, copyrighted and proprietary property, and the State has no ownership interest of any kind in them, with the exception that the State retains full ownership of any materials that the State provides to ELI in connection with modifying the Program for use by the State (e.g., the State policies, logos, etc.). The State agrees not to challenge the legitimacy of ELI's copyrights or trademarks regarding any and all components of the Program. If for any reason, the State or its officers, directors, employees or agents acquire or may be deemed to have acquired any rights in the intellectual property of ELI, the State agrees that it will execute such acknowledgements, grants and assignments of rights, including all copyrights, in and to intellectual property of ELI as ELI may request for the purpose of evidencing, enforcing, registering or defending its worldwide ownership of such intellectual property.

10.4. The State warrants and agrees to take the following steps to protect the integrity of ELI's property:

a) The Program shall be presented to the State employees only; Program

Materials will not be used by, loaned to, or otherwise made available to personnel of other organizations or entities unless the State has first obtained the express written authorization of an officer of ELI.

b) The State acknowledges that Program Materials have been designed for use by individual participants in the Program and for subsequent reference by those participants. Program Materials are licensed only for individual use and may not be shared. Program Materials may not be used by a group of participants or housed in an area where multiple people may have access to them (such as a library), except that the Intranet version of any computer-based portion of the Program may be stored on the State’s Intranet so long as access is limited by the State to those who complete that portion of the Program.

c) It shall be a violation of this Agreement for any of the Program Materials to be delivered, duplicated or in any way used outside the context of the Program.

Should the State seek to use Program Materials for any other purposes, it must obtain permission in writing from an officer of ELI.

d) The quality and effectiveness of the Program depend upon the proper use of instructional methods and the Program Materials. Only instructors certified by ELI according to its standards and in its good-faith discretion and employed by the State may present the Program unless other instructors are supplied by ELI to the State. As a condition of certification, instructors must execute an individual licensing agreement with ELI, the terms and conditions of which to be determined by ELI.

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e) Instructor-participant interaction is crucial to the Program. Therefore, the State will not teach the Program with a non-certified instructor, record the Program, or show a previously videotaped session of the Program to class participants without the express written authorization of an officer of ELI.

f) Each participant in a classroom-based training program is required to have a participant manual. Should the State present the Program or any part of the

Program without use of required participant materials, it will be liable to ELI for the applicable per-participant charge for each participant who did not receive such materials.

g) Each participant in an on-line based training program is required to have his or her own license for use of the on-line program. Should the State employees share a license, the State will be liable to ELI for the applicable per participant charge for each participant who did not receive his or her own license.

h) With regard to any Intranet version of the Program, the State shall be solely responsible for all access to and use of the Program, including all access codes, log-ons and passwords used. The State agrees to establish commercially reasonable controls and to supervise and safeguard the State’s computer hardware and software systems to prevent unauthorized use by others. The State will report any violations to ELI and cooperate with ELI in the enforcement of this Agreement. The State will maintain records of the number of participants using Intranet versions of the Program and will provide this information to ELI upon request.

i) The State will not remove or obscure any copyright, trademark, or other notice from the Program.

j) The State's obligation to protect ELI's intellectual property in accordance with the provisions set forth in this Agreement shall survive and remain in full force and effect following the completion or termination of this Agreement.

k) Except as expressly authorized by this Agreement, the State may not copy, prepare derivative works, distribute without authorization, transmit, display, perform, rent, alter, sublicense, store for subsequent use, disassemble, reverse engineer the Program code, or otherwise use Program Materials, in whole or in part, for any purpose. Violation of the terms of this Agreement regarding the use or duplication of the Program or Program Materials would constitute a material breach of this license justifying the termination of the

State’s right to use Program Materials.

l) All rights to the Program Materials now or hereafter known, developed or in existence, and whether or not competitive with the rights granted in this

Agreement, that are not specifically granted to the State are reserved to ELI in all forms of media throughout the world.

Subcontracting. Except with respect to program facilitators, Contractor may not delegate any of its obligations under the Contract without the prior written approval of

Version 2022-4 Page 7 of 16 the State. Except with respect to program facilitators, Contractor must notify the State at least 90 calendar days before the proposed delegation and provide the State any information it requests to determine whether the delegation is in its best interest. If approved, Contractor must: (a) be the sole point of contact regarding all contractual matters, including payment and charges for all Contract Activities; (b) make all payments to the subcontractor; and (c) incorporate the terms and conditions contained in this Contract in any subcontract with a subcontractor. Contractor remains responsible for the completion of the Contract Activities, compliance with the terms of this Contract, and the acts and omissions of the subcontractor. The State, in its sole discretion, may require the replacement of any subcontractor.

Staffing. The State’s Contract Administrator may require Contractor to remove or reassign personnel providing services by providing a notice to Contractor.

Background Checks. Pursuant to Michigan law, all agencies subject to IRS Pub.

1075 are required to ask the Michigan State Police to perform fingerprint background checks on all employees, including Contractor and Subcontractor employees, who may have access to any database of information maintained by the federal government that contains confidential or personal information, including, but not limited to, federal tax information. However, it is agreed that Contractor will not have access to any such information. Further, pursuant to Michigan law, any agency described above is prohibited from providing Contractors or Subcontractors with the result of such background check. For more information, please see Michigan Public Act 427 of 2018. Upon request, or as may be specified in a Statement of Work, Contractor must perform background checks on all employees and subcontractors and its employees prior to their assignment. The scope is at the discretion of the State and documentation must be provided as requested. Contractor is responsible for all costs associated with the requested background checks. The State, in its sole discretion, may also perform background checks.

Assignment. Contractor may not assign this Contract to any other party without the prior approval of the State.

Change of Control. Contractor will notify the State, within 30 days of any public announcement or otherwise once legally permitted to do so, of a change in Contractor’s organizational structure or ownership. For purposes of this Contract, a change in control means any of the following: (a) a sale of more than 50% of Contractor’s stock; (b) a sale of substantially all of Contractor’s assets; (c) or the board (or the stockholders) approves a plan of complete liquidation. A change of control does not include any consolidation or merger effected exclusively to change the domicile of Contractor, or any transaction or series of transactions principally for bona fide equity financing purposes.

In the event of a change of control, Contractor must require the successor to assume this Contract and all of its obligations under this Contract.

Ordering. Contractor is not authorized to begin performance until receipt of authorization as identified in a Statement of Work.

Reserved.

Reserved

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Reserved

Warranty Period. Warranty period, if applicable, for Contract Activities is a fixed period commencing on the date specified in a Statement of Work. If the Contract Activities do not function as warranted during the warranty period, the State may return such non-conforming Contract Activities to the Contractor for a full refund.

Invoices and Payment. Invoices must conform to the requirements communicated from time-to-time by the State. All undisputed amounts are payable within 45 days of the State’s receipt. Contractor may only charge for Contract Activities provided as specified in a Statement of Work. Invoices must include an itemized statement of all charges. The State is exempt from State sales tax for direct purchases and may be exempt from federal excise tax, if Services purchased under this Agreement are for the State’s exclusive use. Notwithstanding the foregoing, all fees are exclusive of taxes, and Contractor is responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state, or local governmental entity on any amounts payable by the State under this Contract.

If reasonably and in good faith disputed within 5 business days of receipt of Contractor’s invoice, the State has the right to withhold payment of any such disputed amounts until the parties agree as to the validity of the disputed amount. Payment by the State will not constitute a waiver of any rights as to Contractor’s continuing obligations, including claims for deficiencies or substandard Contract Activities.

The State will only disburse payments under this Contract through Electronic Funds Transfer (EFT). Contractor must register with the State at http://www.michigan.gov/SIGMAVSS to receive electronic fund transfer payments. If Contractor does not register, the State is not liable for failure to provide payment.

Without prejudice to any other right or remedy it may have, the State reserves the right to set off at any time any amount then due and owing to it by Contractor against any amount payable by the State to Contractor under this Contract.

Service Level Agreement. In lieu of liquidated damages, the parties have elected to use the Service-Level Agreement (SLA) process laid out in “Schedule A – Statement of Work Contract Activities, Paragraph 9: Service-Level Agreement (SLA)” to hold the Contractor accountable to the requirements and the service level requirements established in this Contract.

Stop Work Order. The State may suspend any or all activities under the Contract at any time. The State will provide Contractor a written stop work order detailing the suspension. Contractor must comply with the stop work order upon receipt. Within 90 calendar days, or any longer period agreed to by Contractor, the State will either: (a) issue a notice authorizing Contractor to resume work, or (b) terminate the Contract or delivery order. The State will not pay for Contract Activities, Contractor’s lost profits, or any additional compensation during a stop work period except as provided herein or if such services were rendered, or expenses incurred, in advance of the stop work order. .

Termination for Cause. (a) The State may terminate this Contract for cause, in whole or in part, if Contractor, as determined by the State: (i) endangers the value, integrity, or security of any facility, data, or personnel; (ii) becomes insolvent, http://www.michigan.gov/SIGMAVSS

Version 2022-4 Page 9 of 16 petitions for bankruptcy court proceedings, or has an involuntary bankruptcy proceeding filed against it by any creditor; (iii) engages in any conduct that may expose the State to liability; (iv) breaches any of its material duties or obligations under this Contract; or (v) fails to cure a breach within the time stated by the State in a notice of breach, if in its sole discretion the State has chosen to provide a time to cure. Any reference to specific breaches being material breaches within this Contract will not be construed to mean that other breaches are not material.

The State may terminate this Agreement, in whole or in part, for convenience and without cause at any time upon ten (10) days’ prior written notice to ELI. In such event, the State shall be liable to pay to ELI the charges for the terminated Services performed up to the date of termination.

ELI may terminate this Agreement based upon the State’s breach of the Agreement, provided that ELI provides ten (10) days’ written notice to the State of the basis for such notice and the breach is not cured by the State within ten (10) days’ of the notice.

Upon such termination of this Agreement by ELI, the State shall be liable to pay to

ELI the charges for all Services performed prior to the date of the termination.

Upon termination of the Agreement for any reason or for no reason, any Program Materials that have not been distributed to individual participants shall be returned to

ELI.

Any termination of this Agreement by either party is without prejudice to any other rights either party may have under this Agreement or otherwise.

Contractor must promptly reimburse to the State any fees prepaid by the State prorated to the date of such termination, including any prepaid fees.

Reserved

Reserved

Return of State Property. Upon termination or expiration of this Contract for any reason, Contractor must take all necessary and appropriate steps, or such other action as the State may direct, to preserve, maintain, protect, or return to the State all materials, data, property, and confidential information provided directly or indirectly to the Contractor by any entity, agent, vendor, or employee of the State.

Indemnification.

ELI agrees to indemnify, defend and hold harmless the State and its respective officers, directors, employees, agents, successors and assigns from and against any and all losses arising from any of the following:

Any third-party claim of infringement or misappropriation of intellectual property rights alleged to have occurred because of Program Materials provided by ELI or based upon performance of the Services by ELI; or

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Any claim arising out of any willful misconduct of ELI’s personnel or subcontractors.

Notwithstanding the above, nothing in this Agreement is intended to indemnify the State or create any liability on behalf of ELI for any claims, demands or causes of action brought by the State employees or third parties against the State related to the subject matter of the Program (i.e., claims for harassment or discrimination filed by the State employees against the State.)

Infringement Remedies. If, in either party’s opinion, any piece of equipment, software, commodity, or service supplied by Contractor or its subcontractors, or its operation, use or reproduction, is likely to become the subject of a copyright, patent, trademark, or trade secret infringement claim, Contractor must, at its expense: (a) procure for the State the right to continue using the equipment, software, commodity, or service, or if this option is not reasonably available to Contractor, (b) replace or modify the same so that it becomes non-infringing; or (c) accept its return by the State with appropriate credits to the State against Contractor’s charges and reimburse the State for any losses or costs incurred as a consequence of the State ceasing its use and returning it.

Except in the event of breach of Section 10 of this Agreement, Limitation of Liability and Disclaimer of Damages. IN NO EVENT WILL EITHER PARTY’S

AGGREGATE LIABILITY TO THE OTHER PARTY UNDER THIS CONTRACT,

REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT,

NEGLIGENCE, STRICT LIABILITY OR BY STATUTE OR OTHERWISE, FOR ANY

CLAIM RELATED TO OR ARISING UNDER THIS CONTRACT, EXCEED THE

MAXIMUM AMOUNT OF FEES PAYABLE UNDER THIS CONTRACT. Except in the event of breach of Section 10 of this Agreement, Neither party may be held liable to the other party for consequential, incidental, indirect, or special damages, regardless of the nature of the action.

Disclosure of Litigation, or Other Proceeding. Contractor must notify the State within 14 calendar days of receiving notice of any litigation, investigation, arbitration, or other proceeding (collectively, “Proceeding”) involving Contractor, a subcontractor, or an officer or director of Contractor or subcontractor, that arises during the term of the Contract, if such claim or suit relates to the following: (a) a criminal Proceeding; (b) a parole or probation Proceeding; (c) a Proceeding under the Sarbanes-Oxley Act; (d) a civil Proceeding involving: (1) a claim that might reasonably be expected to adversely affect Contractor’s viability or financial stability;

or (2) a governmental or public entity’s claim or written allegation of fraud; or (3) any complaint filed in a legal or administrative proceeding alleging the Contractor or its subcontractors discriminated against its employees, subcontractors, vendors, or suppliers during the term of this Contract; or (e) a Proceeding involving any license that Contractor is required to possess in order to perform under this Contract.

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State Data. All data and information provided to Contractor by or on behalf of the State, and all data and information derived therefrom, is the exclusive property of the State (“State Data”); this definition is to be construed as broadly as possible, except however that State Data shall in no case be deemed to include any data or information of Contractor, including but not limited to the Program Materials. Upon request, Contractor must provide to the State, or a third party designated by the State, all State Data within 10 calendar days of the request and in the format requested by the State. Contractor will assume all costs incurred in compiling and supplying State Data. No State Data may be used for any marketing or commercial purposes.

State Data.

a. Ownership. The State’s data (“State Data,” which will be treated by Contractor as Confidential Information) includes: (a) the State’s data, user data, and any other data collected, used, processed, stored, or generated as the result of the Contract Activities; (b) personally identifiable information (“PII“) collected, used, processed, stored, or generated as the result of the Contract Activities, including, without limitation, any information that identifies an individual, such as an individual’s social security number or other government-issued identification number, date of birth, address, telephone number, biometric data, mother’s maiden name, email address, credit card information, or an individual’s name in combination with any other of the elements here listed; and, (c) protected health information (“PHI”) collected, used, processed, stored, or generated as the result of the Contract Activities, which is defined under the Health Insurance Portability and Accountability Act (HIPAA) and its related rules and regulations. State Data is and will remain the sole and exclusive property of the State and all right, title, and interest in the same is reserved by the State.

b. Contractor Use of State Data. Contractor will not be provided with State Data and will not take possession of State Data. .

Non-Disclosure of Confidential Information. The parties acknowledge that each party may be exposed to or acquire communication or data of the other party that is confidential, privileged communication not intended to be disclosed to third parties.

a. Meaning of Confidential Information. For the purposes of this Contract, the term “Confidential Information” means all information and documentation of a party that: (a) has been marked “confidential” or with words of similar meaning, at the time of disclosure by such party; (b) if disclosed orally or not marked “confidential” or with words of similar meaning, was subsequently summarized in writing by the disclosing party and marked “confidential” or with words of similar meaning; or, (c) should reasonably be recognized as confidential information of the disclosing party. The term “Confidential Information” does not include any information or documentation that was or is: (a) subject to disclosure under the Michigan Freedom of Information Act (FOIA); (b) already in the possession of the receiving party without an obligation of confidentiality; (c) developed independently by the receiving party, as demonstrated by the receiving party, without violating the disclosing party’s proprietary rights; (d) obtained from a source other than the disclosing party without an obligation of confidentiality; or, Version 2022-4 Page 12 of 16

(e) publicly available when received, or thereafter became publicly available (other than through any unauthorized disclosure by, through, or on behalf of, the receiving party). For purposes of this Contract, in all cases and for all matters, State Data is deemed to be Confidential Information.

b. Obligation of Confidentiality. The parties agree to hold all Confidential Information in strict confidence and not to copy, reproduce, sell, transfer, or otherwise dispose of, give or disclose such Confidential Information to third parties other than employees, agents, or subcontractors of a party who have a need to know in connection with this Contract or to use such Confidential Information for any purposes whatsoever other than the performance of this Contract. The parties agree to advise and require their respective employees, agents, and subcontractors of their obligations to keep all Confidential Information confidential. Disclosure to a subcontractor is permissible where: (a) use of a subcontractor is authorized under this Contract; (b) the disclosure is necessary or otherwise naturally occurs in connection with work that is within the subcontractor's responsibilities; and (c) Contractor obligates the subcontractor in a written contract to maintain the State's Confidential Information in confidence. At the State's request, any employee of Contractor or any subcontractor may be required to execute a separate agreement to be bound by the provisions of this Section.

c. Cooperation to Prevent Disclosure of Confidential Information. Each party must use its best efforts to assist the other party in identifying and preventing any unauthorized use or disclosure of any Confidential Information. Without limiting the foregoing, each party must advise the other party immediately in the event either party learns or has reason to believe that any person who has had access to Confidential Information has violated or intends to violate the terms of this Contract and each party will cooperate with the other party in seeking injunctive or other equitable relief against any such person.

d. Remedies for Breach of Obligation of Confidentiality. Each party acknowledges that breach of its obligation of confidentiality may give rise to irreparable injury to the other party, which damage may be inadequately compensable in the form of monetary damages. Accordingly, a party may seek and obtain injunctive relief against the breach or threatened breach of the foregoing undertakings, in addition to any other legal remedies which may be available, to include, in the case of the State, at the sole election of the State, the immediate termination, without liability to the State, of this Contract or any Statement of Work corresponding to the breach or threatened breach.

e. Surrender of Confidential Information upon Termination. Upon termination of this Contract or a Statement of Work, in whole or in part, each party must, within 5 calendar days from the date of termination, return to the other party any and all Confidential Information received from the other party, or created or received by a party on behalf of the other party, which are in such party’s possession, custody, or control; provided, however, that Contractor must return State Data to the State following the timeframe and procedure described further in this Contract. Should Contractor or the State determine that the return of any Confidential Information is

Version 2022-4 Page 13 of 16 not feasible, such party must destroy the Confidential Information and must certify the same in writing within 5 calendar days from the date of termination to the other party. However, the State’s legal ability to destroy Contractor data may be restricted by its retention and disposal schedule, in which case Contractor’s Confidential Information will be destroyed after the retention period expires.

Reserved

Reserved

Reserved

Records Maintenance, Inspection, Examination, and Audit. Pursuant to MCL 18.1470, the State or its designee may audit Contractor to verify compliance with this Contract. Contractor must retain and provide to the State or its designee and the auditor general upon request, all records related to the Contract through the term of the Contract and for 4 years after the latter of termination, expiration, or final payment under this Contract or any extension (“Audit Period”). If an audit, litigation, or other action involving the records is initiated before the end of the Audit Period, Contractor must retain the records until all issues are resolved.

Within 10 calendar days of providing notice, the State and its authorized representatives or designees have the right to enter and inspect Contractor's premises or any other places where Contract Activities are being performed, and examine, copy, and audit all records related to this Contract. Contractor must cooperate and provide reasonable assistance. If financial errors are revealed, the amount in error must be reflected as a credit or debit on subsequent invoices until the amount is paid or refunded. Any remaining balance at the end of the Contract must be paid or refunded within 45 calendar days.

This Section applies to Contractor, any parent, affiliate, or subsidiary organization of Contractor, and any subcontractor that performs Contract Activities in connection with this Contract.

Notwithstanding anything herein, nothing in this section or elsewhere in this Agreement shall obviate or otherwise modify the State’s obligations with respect to Contractor’s intellectual property, including in connection with the Program Materials.

Representations and Warranties. Contractor represents and warrants: (a) Contractor is the owner or licensee of any Contract Activities that it licenses, sells, or develops and Contractor has the rights necessary to convey title, ownership rights, or licensed use; (b) all Contract Activities are delivered free from any security interest, lien, or encumbrance and will continue in that respect; (c) the Contract Activities will not infringe the patent, trademark, copyright, trade secret, or other proprietary rights of any third party; (d) the Contract signatory has the authority to enter into this Contract; ( (e) Contractor is neither currently engaged in nor will engage in the boycott of a person based in or doing business with a strategic partner as described in 22 USC 8601 to 8606. A breach of this Section is considered a material breach of this Contract, which entitles the State to terminate this Contract under Section 24, Termination for Cause.

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Conflicts and Ethics. Contractor will uphold high ethical standards and is prohibited from: (a) holding or acquiring an interest that would conflict with this Contract; (b) doing anything that creates an appearance of impropriety with respect to the award or performance of the Contract; (c) attempting to influence or appearing to influence any State employee by the direct or indirect offer of anything of value; or (d) paying or agreeing to pay any person, other than employees and consultants working for Contractor, any consideration contingent upon the award of the Contract. Contractor must immediately notify the State of any violation or potential violation of these standards. This Section applies to Contractor, any parent, affiliate, or subsidiary organization of Contractor, and any subcontractor that performs Contract Activities in connection with this Contract.

Compliance with Laws. Contractor shall not violate any federal, state and local laws, rules and regulations.

Reserved

Reserved

Nondiscrimination. Under the Elliott-Larsen Civil Rights Act, 1976 PA 453, MCL 37.2101, et seq., the Persons with Disabilities Civil Rights Act, 1976 PA 220, MCL 37.1101, et seq., and Executive Directive 2019-09. Contractor and its subcontractors agree not to discriminate against an employee or applicant for employment with respect to hire, tenure, terms, conditions, or privileges of employment, or a matter directly or indirectly related to employment, because of race, color, religion, national origin, age, sex (as defined in Executive Directive 2019-09), height, weight, marital status, partisan considerations, any mental or physical disability, or genetic information that is unrelated to the person’s ability to perform the duties of a particular job or position. Breach of this covenant is a material breach of this Contract.

Unfair Labor Practice. Under MCL 423.324, the State may void any Contract with a Contractor or subcontractor who appears on the Unfair Labor Practice register compiled under MCL 423.322.

Governing Law. This Contract is governed, construed, and enforced in accordance with Michigan law, excluding choice-of-law principles, and all claims relating to or arising out of this Contract are governed by Michigan law, excluding choice-of-law principles. Any dispute arising from this Contract must be resolved in the Michigan Court of Claims. Complaints against the State must be initiated in Ingham County, Michigan. Contractor waives any objections, such as lack of personal jurisdiction or forum non conveniens.

Non-Exclusivity. Nothing contained in this Contract is intended nor is to be construed as creating any requirements contract with Contractor, nor does it provide Contractor with a right of first refusal for any future work. This Contract does not restrict the State or its agencies from acquiring similar, equal, or like Contract Activities from other sources.

Force Majeure. Neither party will be in breach of this Contract because of any failure arising from any disaster or acts of god that are beyond their control and without their fault or negligence. Each party will use commercially reasonable efforts to resume performance. Contractor will not be relieved of a breach or delay caused by its https://www.michigan.gov/whitmer/0,9309,7-387-90499_90704-486781--,00.html

Version 2022-4 Page 15 of 16 subcontractors. If immediate performance is necessary to ensure public health and safety, the State may immediately contract with a third party.

Dispute Resolution. The parties will endeavor to resolve any Contract dispute in accordance with this provision. The dispute will be referred to the parties' respective Contract Administrators or Program Managers. Such referral must include a description of the issues and all supporting documentation. The parties must submit the dispute to a senior executive if unable to resolve the dispute within 15 business days.

Litigation to resolve the dispute will not be instituted until after the dispute has been elevated to the parties’ senior executive and either concludes that resolution is unlikely or fails to respond within 15 business days. The parties are not prohibited from instituting formal proceedings: (a) to avoid the expiration of statute of limitations period; (b) to preserve a superior position with respect to creditors; or (c) where a party makes a determination that a temporary restraining order or other injunctive relief is the only adequate remedy. This Section does not limit the State’s right to terminate the Contract.

Media Releases. News releases (including promotional literature and commercial advertisements) pertaining to the Contract or project to which it relates must not be made without the prior written approval of the State, and then only in accordance with the explicit written instructions of the State.

Schedules. All Schedules and Exhibits that are referenced herein and attached hereto are hereby incorporated by reference. The following Schedules are attached hereto and incorporated herein:

Document Title Document Description

Schedule A Statement of Work

Schedule B Pricing

Entire Agreement and Order of Precedence. This Contract, which includes Statement of Work, and schedules and exhibits, is the entire agreement of the parties related to the Contract Activities. This Contract supersedes and replaces all previous understandings and agreements between the parties for the Contract Activities. If there is a conflict between documents, the order of precedence is: (a) first, this Contract, excluding its schedules, exhibits, and Statement of Work; (b) second, Statement of Work as of the Effective Date; and (c) third, schedules expressly incorporated into this Contract as of the Effective Date. NO TERMS ON

CONTRACTOR’S INVOICES, ORDERING DOCUMENTS, WEBSITE, BROWSE-

WRAP, SHRINK-WRAP, CLICK-WRAP, CLICK-THROUGH OR OTHER NON-

NEGOTIATED TERMS AND CONDITIONS PROVIDED WITH ANY OF THE

CONTRACT ACTIVITIES, OR DOCUMENTATION HEREUNDER, EVEN IF

ATTACHED TO THE STATE’S DELIVERY OR PURCHASE ORDER, WILL

CONSTITUTE A PART OR AMENDMENT OF THIS CONTRACT OR IS BINDING

ON THE STATE OR ANY AUTHORIZED USER FOR ANY PURPOSE. ALL SUCH

OTHER TERMS AND CONDITIONS HAVE NO FORCE AND EFFECT AND ARE

Version 2022-4 Page 16 of 16

DEEMED REJECTED BY THE STATE AND THE AUTHORIZED USER, EVEN IF

ACCESS TO OR USE OF THE CONTRACT ACTIVITIES REQUIRES AFFIRMATIVE

ACCEPTANCE OF SUCH TERMS AND CONDITIONS.

Severability. If any part of this Contract is held invalid or unenforceable, by any court of competent jurisdiction, that part will be deemed deleted from this Contract and the severed part will be replaced by agreed upon language that achieves the same or similar objectives. The remaining Contract will continue in full force and effect.

Waiver. Failure to enforce any provision of this Contract will not constitute a waiver.

Survival. Any right, obligation or condition that, by its express terms or nature and context is intended to survive, will survive the termination or expiration of this Contract; such rights, obligations, or conditions include, but are not limited to, those related to transition responsibilities; indemnification; disclaimer of damages and limitations of liability; State Data; non-disclosure of Confidential Information;

representations and warranties; insurance and bankruptcy.

Contract Modification. This Contract may not be amended except by signed agreement between the parties (a “Contract Change Notice”). Notwithstanding the foregoing, no subsequent Statement of Work or Contract Change Notice executed after the Effective Date will be construed to amend this Contract unless it specifically states its intent to do so and cites the section or sections amended.

SCHEDULE A – STATEMENT OF WORK

CONTRACT ACTIVITIES

Contract 231 220000001411

Civil Treatment Leadership Training

BACKGROUND

The Michigan Department of State (MDOS) has a mission to serve the public. MDOS’ mission goals and values include fair and equitable treatment of both staff and customers, and providing diverse, inclusive, and respectful public and private spaces.

This requires the ability to identify, react appropriately to, and ultimately remove inappropriate workplace actions.

MDOS is seeking a learning partner that will certify select MDOS employees in a

Management Training Program to act as trainers. This learning partner will train select

MDOS employees to equip leaders from all areas of the agency to prevent, detect, and correct inappropriate workplace behaviors. This must result in a measurable decrease in legal costs, productivity issues, low morale, and negative turnover.

SCOPE

MDOS is looking for a Train-The-Trainer (TTT) program that will prepare trainees to facilitate highly interactive workshops introducing a model to participants that will equip them to deal with…