Department of Innovation and Technology

CONTRACT

AT&T Metro Ethernet JPMC

26-448DOIT-TELEC-P-97336

The Parties to this contract are the State of Illinois acting through the Department of Innovation and Technology, collectively known hereafter as “DoIT” or the “State” and the 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 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.

1. SCOPE OF WORK

1.1. OVERVIEW AND PURPOSE:

The Illinois Department of Innovation and Technology (“DoIT”) is establishing a Statewide Joint Purchase Master Contract for fiber-based Point to Point and last-mile Metro-Ethernet Transport Services. The Vendor shall provide services with bandwidth capacities ranging from 100 Mbps to 1 Gbps to support wide area network (WAN) connectivity between designated locations and Illinois Century Network (ICN) Points of Presence (POP) sites, as well as site-to site connectivity between locations. Services shall be available for deployment statewide, with pricing structured by county. Orders for services shall be issued on an as-needed basis throughout the term of the Contract.

The Chief Procurement Officer for General Services makes this Contract available to governmental units and qualified not-for-profit agencies, as stated herein. State agencies governed by DoIT under 20 ILCS 1370 may not use this contract without prior written approval from DoIT.

Vendor agrees to extend all terms and conditions, specifications, and pricing or discounts specified in this Contract for the items in this Contract to all governmental units and qualified not-for-profit agencies, as specified herein.

State of Illinois Contract v.25.4

The supplies or services subject to this Contract shall be distributed or rendered directly to each governmental unit or qualified not-for-profit agency, as specified herein. Vendor shall bill each governmental unit or qualified not-for-profit agency separately for its share of the costs of the supplies or services purchased. The credit or liability of each governmental unit or qualified not-for-profit agency shall remain separate and distinct.

Disputes between Vendor and governmental units and qualified not-for-profit agencies shall be resolved between the affected parties. All terms and conditions in this Contract shall apply with full force and effect to all purchase orders.

1.2. SUPPLIES AND/OR SERVICES REQUIRED:

1.2.1. Metro Ethernet services with bandwidth speeds of 100 Mbps, 500 Mbps, 1 Gbps, will be delivered via Fiber. Services provided under this contract will meet the following requirements:

1.2.1.1. Point to point transport services between State offices and the ICN POPs.

1.2.1.2. The service must offer 99.98% availability or better, based on a 30-day average.

1.2.1.3. The service must be guaranteed synchronous bandwidth.

1.2.1.4. The service must remain in service 24 hours per day, 7 days per week, 365 days per year with <=18 milliseconds delay one way and Jitter <= 12 milliseconds one way.

1.2.1.5. The contracted vendor shall provide Metro Ethernet service as part of its telecommunications infrastructure. At a minimum, this service shall include the provisioning of high-bandwidth point-to-point and multipoint Ethernet connections. The contracted vendor must provide the service which connects to the Z-end ICN POP site directly. The State may also request Metro Ethernet service for site-to-site connections that do not terminate at an ICN POP.

1.2.1.6. Vendor must maintain and honor Quality of Service (“QoS”) tagging between the Customer Premise Equipment (“CPE”) and the ICN interconnect point.

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1.2.1.7. Vendor is responsible for monitoring and maintaining connections as well as proactively responding to network issues that may negatively impact connectivity.

1.2.1.8. Vendor must allow ordering entity’s monitoring equipment to perform internet control message protocol (ICMP) and simple network management protocol (SNMP) monitoring of customer equipment.

1.2.1.9. Vendor must work with ordering entity’s on virtual local area network (VLAN) assignments to minimize VLAN Contention. Ordering entity will determine if a location will be either port based or VLAN tagged. Vendor must support the use of multiple tags or double tagging.

1.2.1.10. When connecting to an ICN POP site, Vendor is required to aggregate multiple VLANs onto a single parent circuit or multiple circuits. Handoff of aggregation circuits to ICN POP sites may be either 1 Gbps circuits, 10 Gbps circuits, or 100Gbps circuits. The State may also request site-to-site VLAN connections that do not terminate at an ICN POP.

1.2.1.11. Vendor is required to perform requested bandwidth upgrades no more than 30 business days after receiving an upgrade order from ordering entity.

1.2.1.12. Vendor must deliver the ordered service to the ordering entity identified demarcation location. For all connection types, ordering entity will provide rack, space, and power at demarcation for any vendor provided equipment. ordering entity will provide customer edge (CE) router and is not seeking bids for managed router service.

1.2.2. Vendor must own fiber assets within the State of Illinois that are used to deliver the services being proposed within a portion of the State of Illinois. Vendor may lease additional fiber assets and/or ethernet services from a third party in order to expand geographical coverage of the services offered. Vendor cannot lease 100% of the fiber assets and/or ethernet services from a third-party carrier or provider that would be used to provide the services being requested in this proposal.

1.2.3. Vendor is responsible to deliver service inside the building to the ordering entity’s designated telecom room at A and Z end locations.

1.2.4. The vendor is responsible for notifying the ordering entity upon completion of the service installation. The notification shall be sent via email to doit.icn.rtc-v.25.4 supervisors@illinois.gov for DoIT orders. Any other ordering entity will supply an email address for notification.

1.2.5. The vendor shall not submit any invoices for services prior to ordering entity’s written acceptance of those services. After the vendor has connected the service and sent an email to the above address, ordering entity will conduct testing of the service connection prior to accepting the service. Once ordering entity determines the service to be acceptable, the ordering entity will issue an email to the vendor confirming acceptance of the service, effective as of the date of such email. This process shall be the same in the event of an amendment to this contract that changes the bandwidth speed.

1.2.6. 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:

1.3.1 The Vendor shall provide fully operational and available metro ethernet service at each location for which a vendor accepts an order within one hundred eighty

(180) calendar days from order acknowledgement, or as otherwise mutually agreed in writing by the Parties.

1.3.2 Upon the termination of service, the vendor shall have thirty (30) days from the date of termination to remove and retrieve all equipment, materials and property owned by the vendor that was provided under this agreement. The vendor agrees to coordinate with the State to arrange for the removal and return of the equipment during this period. If the Vendor fails to remove the equipment withing thirty (30) days, the State may, at its sole discretion, dispose of or retain the equipment without further obligation to the Vendor.

1.3.3 The parties acknowledge that when the State vacates a location, access to the site is often restricted or revoked shortly thereafter. As a result of these limitations, it may be impossible to guarantee access to the equipment for up to thirty (30) days, as is normally allowed for vendors. The vendor understands and agrees that these restrictions may impact the ability to retrieve equipment within the standard time frame.

1.4. VENDOR/STAFF SPECIFICATIONS:

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1.4.1. The Vendor shall have reliable connectivity per section 1.2.1.2 and scalable network infrastructure capable of delivering high-performance Metro Ethernet services. This includes a backbone, last-mile connectivity, and network redundancy.

1.4.2. The Vendor network shall have the ability to scale services to meet bandwidths requested between 100MB and 1GB.

1.4.3. Helpdesk and technical support must be available to the State of Illinois, 24 hours per day, 7 days per week, 365 days per year.

1.4.4. Vendor will provide to the State of Illinois contact information for:

• Technical Support

Name: Brian O’Mahoney

Contact Information:

• Sales

Name: Carla Mohr

Contact Information: cp1547@att.com , 217-416-0429

• Account Manager

Name: Justin Polesuk

Contact Information: jp546t@att.com , 972-209-4758

• Helpdesk

Name: AT&T Ethernet Network Operations Center

Contact Information: Express Ticketing Portal https://expressticketing.acss.att.com/Expressticketing/ , 800-247-2020

• Escalation

Name: AT&T Ethernet Network Operations Center

Contact Information: Express Ticketing Portal https://expressticketing.acss.att.com/Expressticketing/ , 800-247-2020 v.25.4

1.5. TRANSPORTATION AND DELIVERY: N/A

1.6. SUBCONTRACTING:

Subcontractors are allowed.

1.6.1. Will subcontractors be utilized? 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 Illinois Standard 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 the contract, the names and addresses of the subcontractors, and a description of the work to be performed by each.

• Subcontractor Name:

Amount to Be Paid:

Address:

Description of Work:

• Subcontractor Name:

Amount to Be Paid:

Address:

Description of Work:

If additional space is necessary to provide subcontractor information, please attach an additional page.

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

1.6.4. If at any time during the term of the 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 prior to award of this Contract are done at the sole risk of the Vendor and subcontractor(s).

1.7. WHERE SERVICES ARE TO BE PERFORMED: Unless otherwise disclosed in this section all services shall be performed in the United States. If the 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 the Vendor received additional consideration in the evaluation based on work being performed in the United States, it shall be a breach of contract if the Offeror shifts any such work outside the United States.

• Location where services will be performed: Illinois

• Value of services performed at this location: 100%

2. PRICING

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

2.3. FORMAT OF PRICING: Prices shall be all-inclusive. No additional charges, surcharges, or fees of any kind shall be billed to the State after award, including but not limited to universal service fees, regulatory recovery fees, gross receipts taxes, 911 surcharges, or other telecommunications-related charges.

2.4. MAXIMUM AMOUNT: The total payments under this contract are not applicable as this is an indefinite quantity master blanket contract.

3. TERM AND TERMINATION

3.1. TERM:

3.1.1. TERM OF THIS CONTRACT: The contract will have an initial term of five (5) years commencing upon the last day of execution. In no event will the maximum total term of the contract, including the initial term, any renewal terms, and any extensions, exceed ten (10) years. 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.

3.2. 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.

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.

3.3. TERMINATION OF ORDERS: The State reserves the right to terminate any order issued under this Master Contract, including but not limited to Purchase Orders, for its convenience, without penalty or further obligation, by providing written notice to the Vendor. Such termination shall not affect the terms of the Master Contract itself. Upon submission of proper invoices and documentation, the Vendor shall be entitled to compensation for supplies delivered and services satisfactorily performed in compliance with the terminated order up to and including the effective date of termination.

3.4. OTHER TERMINATION: The State may also terminate, in whole or in part, this Contract without advance notice pursuant to Section 3.6.

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

3.6. 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.

4. STANDARD BUSINESS TERMS AND CONDITIONS

4.1. PAYMENT TERMS AND CONDITIONS:

4.1.1. LATE PAYMENT: Payments, including late payment charges, will be paid in accordance with the State Prompt Payment Act and rules when applicable. 30 ILCS 540; 74 III. Adm. Code 900. This shall be Vendor’s sole remedy for late payments by the State. Payment terms contained in 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 the Vendor under the contract and deposit the fee in the Comptroller’s Administrative Fund. 15 ILCS 405/23.9.

4.1.3. EXPENSES: 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.

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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. The State will notify Vendor within six months of the billing date, in the event the State is unable to validate charges. Within sixty (60) days following receipt of written notice from the State, Vendor will acknowledge and respond to the State’s notification, including a statement on whether the Vendor believes the appropriate rate, price or discount was applied. If Vendor determines that an appropriate rate, price or discount was not applied, Vendor will – before the conclusion of the next billing cycle – at a minimum begin the process to make corrections and issue a refund or offset charges for a time period not to exceed six (6) months. Vendor acknowledges and agrees that Vendor may have to seek payment via the Court of Claims for any invoices submitted more than one hundred twenty (120) days after the end of a fiscal year.

4.1.6.2. Delayed Billing; Disputed Charges: State will not be required to pay charges for Services invoiced more than six (6) months after close of the billing month in which the charges were incurred, except for automated or live operator assisted calls of any type. If State disputes a charge, the State will provide notice to Vendor specifically identifying the charges and the reason it is disputed within six (6) months after the date of the affected invoice.

4.1.6.3. 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. Notwithstanding the foregoing, the State may be responsible for applicable regulatory surcharges and recovery fees assessed on the Service. Such fees and surcharges may be subject to change.

4.1.6.4. Vendor shall invoice on a monthly basis. Vendor’s invoices for the services herein shall be separate and distinct from invoices for any other contract or services Vendor has with or provides to the State

4.1.6.5.

Send invoices to:

Agency: Department of Innovation and Technology

Attn:

Accounts Payable - Telecom

Address:

120 West Jefferson Street

City, State Zip Springfield, IL 62702

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. Consent will not be unreasonably withheld or delayed. In the case of an assignment, the assigning party shall remain financially responsible for the performance of the assigned obligations.

4.3. SUBCONTRACTING: For purposes of this section, subcontractors are those with contracts with an annual value exceeding $100,000 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 Certification form available from the State. If at any time during the term of the Contract, Vendor adds or changes any subcontractors, then Vendor must promptly notify, by written amendment to the 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 the Contract, and the general type of work to be performed. 30 ILCS 500/20-120.

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. TIME IS OF THE ESSENCE: 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. The non-declaring Party may cancel this Contract without penalty if performance does not resume within thirty (30) days of the declaration.

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: No work-for-hire is contemplated under this Contract.

In the event that any such work-for-hire would be required, the arrangements would be documented under a separate agreement.

4.10. INDEMNIFICATION AND LIABILITY:

(A). General Indemnity. The Vendor shall indemnify and hold harmless the State of Illinois, its agencies, officers, employees, and agents (individually an “Indemnified Party”; collectively, the “Indemnified Parties”) from any claims of third parties and shall pay all costs, demands, expenses, losses, damages, liabilities, settlements, and judgments, including reasonable in-house and contracted attorneys’ fees and expenses, incurred by the Indemnified Parties arising out of: (a) any breach or violation by Vendor of any of its certifications, representations, warranties, covenants, or agreements related to this contract (b) any actual or alleged death or injury to any person, damage to any real or personal property, or any other damage or loss claimed to result in whole or in part from Vendor’s negligent performance under this contract; or (c) any negligent act or omission or willful misconduct of Vendor or any of its employees, representatives, subcontractors, or agents that relates to this contract. In accordance with Article VIII, Section 1(a),(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. Neither Party shall be liable for incidental, special, consequential, or punitive damages. Vendor shall not be liable under this Section 4.10 for damages solely caused by Services or Equipment that is not furnished under this contract.

(B). Intellectual Property Indemnity. Vendor agrees, at its expense, to defend and/or settle (both subject to the consent of the Office of the Illinois Attorney General (OAG)) any third-party claim against the Indemnified Parties and to further pay all damages that a court may finally award against such Indemnified Parties, if the claim alleges that a Service provided to the State under this Agreement infringes any patent, trademark, copyright, or trade secret of any such third party. This obligation covers all litigation costs including, without limitation, the costs and expenses of all reasonable attorneys' fees, along with any settlement payments and any and all damages awarded or resulting from any such claim. These obligations do not apply in circumstances where the claimed infringement arises out of or results from and would not have occurred but for: (i) an Indemnified Party or a user's infringing content; (ii) unauthorized modifications to the Services by an Indemnified Party or third parties, or combinations of the Service with any services or products not provided by Vendor; or (iii) Vendor’s adherence to an Indemnified Party’s written requirements. Vendor’s obligations under Section 4.10 (B) of this Agreement shall not extend to actual or alleged infringement or misappropriation of intellectual property solely based on equipment, software, or services not provided by Vendor.

In a situation involving infringing or allegedly infringing Services, Vendor may, at its option, either procure the right for the Indemnified Party to continue using, or may replace or modify, the alleged infringing Service so that the Service becomes non-infringing, while maintaining equivalent or improved functionality.

(C). Notice and Cooperation. The State or an Indemnified Party seeking defense or settlement of a third-party claim under this Section 4.10 will notify the Vendor within a reasonable period of time upon learning of any claim, but failure to do so will have no effect except to the extent the other party is actually prejudiced thereby. Subject to the approval of the OAG, the State will allow the Vendor to control the defense and settlement of the claim and will reasonably cooperate with the defense; but to the extent that Vendor does control the defense, Vendor will use counsel reasonably experienced in the subject matter at issue, and will not settle a claim without the consent of the State, which (subject to the approval of the OAG) consent will not be unreasonably withheld or delayed. In the event the OAG does not consent to allow Vendor to control the defense, Vendor will still otherwise indemnify the State.

(D). Limitation of Liability. Vendor’s entire liability to the State under this contract and any related orders shall be limited to proven direct damages in an amount not to exceed three (3) times the amount paid or payable in the previous twelve (12) months for all orders under this Contract. This limitation shall not apply to (a) bodily injury, death or damage to real property or to tangible personal property proximately caused by Vendor’s negligence or willful misconduct, (b) losses arising out of the gross negligence or willful misconduct by Vendor in performing services under this Agreement, (c) breach by Vendor of Section 4.8 (Confidential Information), and (d) Vendor’s indemnification and defense obligations under Section 4.10(A) through (C) of this Agreement.

FURTHER, SUBJECT TO SECTION 4.10(A) HEREOF, NEITHER PARTY WILL BE LIABLE

TO THE OTHER PARTY FOR LOST PROFITS, ADVANTAGE, SAVINGS OR REVENUES OR

FOR INCREASED COSTS OF OPERATIONS.

(E). Disclaimer of Liability. VENDOR WILL NOT BE LIABLE FOR ANY DAMAGES, EXCEPT TO THE EXTENT CAUSED BY VENDOR’S NEGLIGENCE OR WILLFUL

MISCONDUCT, ARISING OUT OF OR RELATING TO: INTEROPERABILITY, ACCESS OR

INTERCONNECTION OF THE SERVICES WITH APPLICATIONS, EQUIPMENT, SERVICES,

CONTENT, OR NETWORKS PROVIDED BY THE STATE OR THIRD PARTIES; SERVICE

DEFECTS, SERVICE LEVELS, DELAYS, OR ANY SERVICE ERROR OR INTERRUPTION

(EXCEPT FOR LIABILITY FOR SUCH EXPLICITLY SET FORTH IN THIS AGREEMENT);

ANY INTERRUPTIONS OR ERRORS IN ROUTING OR COMPLETING CALLS OR OTHER

TRANSMISSIONS (INCLUDING 911 CALLS OR ANY SIMILAR EMERGENCY RESPONSE

NUMBER); LOST OR ALTERED MESSAGES OR TRANSMISSIONS; OR UNAUTHORIZED

ACCESS TO OR THEFT, ALTERATION, LOSS, OR DESTRUCTION OF THE STATE’S, ITS

USERS’, OR THIRD PARTIES’ APPLICATIONS, CONTENT, DATA, PROGRAMS,

CONFIDENTIAL INFORMATION, NETWORKS, OR SYSTEMS.

4.10.1 DATA BREACH PREVENTION, NOTICE, AND REMEDIATION:

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 from unauthorized access). Notwithstanding anything to the contrary in this Contract, to the extent that Vendor experiences or causes an information breach or security incident that impacts the State’s data, content, computers, systems, or networks, Vendor shall immediately notify the State and will use best efforts to immediately remedy any such breach or incident, and to prevent any further breach or incident, at Vendor’s expense, in accordance with applicable privacy rights, laws, regulations, policies, and standards, including but not limited to the Illinois Personal Information Protection Act (815 ILCS 530). Vendor shall reimburse the State for any and all costs incurred by the State in responding to, and mitigating damages caused by, any such breach or security incident, including all costs of notice and/or remediation.

4.10.2 D ATA 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. PREVAILING 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. 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 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 after a reasonable period of time, 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. 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 a conflict between the State’s and Vendor’s terms, conditions, and attachments, the State’s terms, conditions, and attachments shall prevail.

1. Payment Obligations: All fees, charges, and payment obligations incurred as allowed in this Contract prior to the effective date of termination of the Contract shall remain due and enforceable. In addition, for any in-scope services or products ordered subject to a fixed-term or consumption agreement term (which for example may include cloud consumption models, telecommunications circuits, Software-as-a-Service (SaaS) subscriptions, or software licenses) that extends beyond the termination or expiration of this Contract, such services and products shall continue to be provided and the associated payment obligations shall continue for the duration of the applicable ordered term.

2. Term-Based Commitments: Any service or product governed by a fixed-term or consumption agreement term (which for example may include cloud consumption models, telecommunications circuits, SaaS subscriptions, or software licenses) shall continue to be subject to the terms and conditions of this Contract until the end of the applicable ordered term.

3. General: Vendor shall continue to comply with all order terms that extend past the expiration or termination of this Contract, as described in this Section, and all terms and conditions of this Contract shall survive and continue to apply to such orders following the expiration or termination of this Contract.

In addition, in the event of a conflict between the terms of documents comprising this Contract, such conflict shall be resolved through the following order of precedence (stated from highest precedence to lowest):

v.25.4

1) the terms of this Contract but excluding the AUP and Service Guide;

2) the AUP; and

3) the Service Guide(s).

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. WARRANTIES FOR SUPPLIES AND SERVICES:

4.25.1. Vendor shall ensure that all manufacturers’ warranties are transferred to the State and shall provide to the State copies of such warranties. These warranties shall be in addition to all other warranties, express, implied, or statutory, and shall survive the State’s payment, acceptance, inspection, or failure to inspect the supplies.

4.25.2. Vendor warrants that all services will be performed to meet the requirements of this Contract in an efficient and effective manner by trained and competent personnel. Vendor shall monitor performances of each individual and shall immediately reassign any individual who does not perform in accordance with this Contract, who is disruptive or not respectful of others in the workplace, or who in any way violates the Contract or State policies.

4.26. REPORTING, STATUS AND MONITORING SPECIFICATIONS: Vendor shall immediately notify the State of any event that may have a material impact on Vendor’s ability to perform this Contract.

v.25.4

4.27. EMPLOYEMENT TAX CREDIT: Vendors who hire qualified veterans and certain ex-offenders may be eligible for tax credits. 35 ILCS 5/216, 5/217. Please contact the Illinois Department of Revenue (telephone #: 217-524-4772) for information about tax credits.

4.28. SUPPLEMENTAL TERMS: Notwithstanding any provision to the contrary in Vendor’s supplemental terms and conditions, or in any licensing agreement attached hereto:

4.28.1. The procuring Agency and the State do not waive sovereign immunity (including all rights provided in the State Lawsuit Immunity Act, 745 ILCS 5);

4.28.2. The procuring Agency and the State do not consent to be governed by the laws of any state other than Illinois;

4.28.3. The procuring Agency and the State do not consent to be represented in any legal proceeding by any person or entity other than the Illinois Attorney General or his or her designee;

4.28.4. The procuring Agency and the State shall not be bound by the terms and conditions contained in any click-wrap agreement, click-wrap license, click-through agreement, click-through license, end user license agreement, or any other agreement or license contained or referenced in the software or any quote provided by Vendor, except as attached to this Contract.

4.28.5. The procuring Agency and the State shall not indemnify Vendor or its subcontractors (including any equipment manufacturers or software companies);

4.28.6. Vendor shall indemnify the procuring Agency and State pursuant to the terms and conditions of the Indemnification and Liability clause of this Contract;

4.28.7. Vendor’s liability shall be governed by the terms and conditions contained in the Indemnification and Liability clause of this Contract; and

4.28.8. Vendor must ensure that all information technology, including electronic information, software, systems and equipment, developed or provided under this contract complies with the applicable requirements of the Illinois Information Technology Accessibility Act Standards as published at (www.dhs.state.il.us/iitaa). 30 ILCS 587.

4.29. SECURITY REQUIREMENTS: The State of Illinois has specific security requirements for information and systems. Vendor must implement and maintain appropriate technical and organizational controls so that these v.25.4 requirements are fully understood and allocate sufficient project time…