RFP 260000002588.docx

Enter your company name Proposal Instructions Department of Natural Resources Fire Fighter Fitness Testing Program - UP Request for Proposal No. 260000002588 Solicitation Manager: Amanda Pauly Direct Phone: (517) 388-9905 Email: paulya3@michigan.gov Main Phone: 1-855-MI-PURCH 1-855-647-8724 This is a Request for Proposal (RFP) for:

Fire fighter fitness testing for UP RFP Timeline

A bidder’s proposal received at 9:30:01 A.M. Eastern is late and subject to disqualification.

This RFP is subject to change. Check www.michigan.gov/SIGMAVSS for current information.

Proposal Preparation Read All Materials: Before preparing your proposal, read all Request for Proposal (RFP) materials, especially the Proposal Instructions and the Vendor Questions Worksheet.

Follow Instructions: Follow the Proposal Instructions and respond completely to the items listed in the RFP Structure and Documentation table.

Provide Information Directly: Do not use references or links to websites or external sources instead of providing the requested information within your proposal.

Include Company Name: Ensure your company name is in the header of all documents submitted with your proposal.

Public Record Notice: Be aware that all documents and information submitted will become public records immediately upon receipt by the State.

Website Posting: Proposals may be posted on the State’s public website after bidders are notified of the award recommendation.

RFP Structure and Documentation

Vendor Questions Worksheet

Attachment C

Contact Information for the State The designated point of contact for this RFP is listed on the Cover Page. You must direct all questions to this individual.

Contacting any other State employee, agent, consultant, or representative regarding this RFP may result in disqualification.

Modifications The State may modify this RFP at any time. Modifications will be posted on www.michigan.gov/SIGMAVSS. This is the only method by which the RFP may be modified.

Questions You must email any questions about this RFP to the Solicitation Manager by the deadline listed on the Cover Page. Only written questions will be accepted.

Answers will be posted on www.michigan.gov/SIGMAVSS.

Please submit your questions using the format shown below. The State recommends Microsoft Excel or a similar format.

Delivery of Proposal You must submit your complete proposal, including all attachments, modifications, or withdrawals, electronically through www.michigan.gov/SIGMAVSS by the deadline listed on the Cover Page.

Do not remove bidder boxes or format the documents using your own layout or letterhead. Failure to follow this process may result in your bid being considered non-responsive.

Your pricing proposal must be uploaded to SIGMA as a separate file from the rest of the proposal.

Submit all files in a modifiable (native) format, such as Microsoft Word, Excel, Google Docs, or Sheets. You may also include PDF versions in addition to any of the modifiable file types listed above.

Each file must be 30 MB or smaller.

Your entire proposal must be uploaded and submitted before the deadline. The SIGMA VSS system will not accept late submissions even if part of your proposal was uploaded on time.

Important: Do not wait until the last minute. Submitting a proposal requires creating an account, entering required information, and uploading all documents, which is time consuming.

The Solicitation Manager cannot assist with submission issues. You are responsible for ensuring your proposal is complete and submitted on time.

If you need help using SIGMA VSS, call:

(517) 284-0540 or

(888) 734-9749 Please note: All submitted documents become public records upon receipt. After award recommendations are made, proposals may be posted on the State’s public website.

Mandatory Minimum Requirements To avoid disqualification, you must have appropriate staff that can perform the duties outlined in the schedule A statement of work, they must possess the following credentials:

Advanced Cardiac Life Support (ACLS) certified health professionals Registered Nurse A physician to sign off on the evaluation Evaluation Process The State will evaluate each proposal based on the following criteria:

Proposals receiving 80 or more technical evaluation points will have pricing evaluated and be considered for award.

The State may use information from all proposals, regardless of technical score, to help determine fair market value for the goods or services requested. The State is not required to accept the lowest price.

If applicable, the State will also consider whether you qualify as a Qualified Disabled Veteran/Service-Disabled Veteran-Owned Business (QDV/SDVOB) under MCL - Section 18.1261 - Michigan Legislature. For more information, visit DTMB - Service-Disabled Veteran-Owned Business Preference.

You are strongly encouraged to accept the State’s Contract Terms and Schedules as written. The State may consider your proposal non-responsive if you do not accept these terms.

If you propose changes to the Contract Terms or Schedules, you must:

Submit them using track changes (i.e., visible edits), and Include a clear explanation for each proposed change. Utilize the comment feature in Word.

If you do not include tracked changes and explanations, the State will assume you accept the Contract Terms or Schedules as-is. General statements, such as reserving the right to negotiate terms, may also be considered non-responsive.

· Changes suggested only in the comments and not demonstrated in track changes format may be considered non-responsive for failure to follow directions.

The State may disqualify you if you fail to respond to requests for clarification or negotiation during the evaluation process by the deadline set by the Solicitation Manager.

At any point during the evaluation, the State may, but is not required to:

Conduct an on-site visit to inspect your facilities Request an oral presentation of your proposal Conduct interviews, reference checks or background checks Request additional price concessions Conduct refinement sessions to ensure clarity and alignment with requirements Notice of Deficiency The State may issue a Notice of Deficiency if, after the proposal deadline, the State determines that part of the RFP was unclear, ambiguous, or deficient.

If you receive a Notice of Deficiency, you must respond by the deadline set by the Solicitation Manager, or you may be disqualified.

Clarification Request The State may issue a Clarification Request if any part of your proposal is unclear.

If you receive a Clarification Request, you must respond by the deadline set by the Solicitation Manager, or you may be disqualified.

Award Recommendation The contract will be awarded to the responsive and responsible bidder who offers the best value to the State, as determined by the State.

Best value is based on:

Meeting the minimum point threshold, and Offering the best combination of evaluation factors and price, as outlined in the Evaluation Process section of this document.

The State will post the Award Recommendation and Evaluation Synopsis on www.michigan.gov/SIGMAVSS or in the same manner the RFP was originally published.

Debrief Meeting and Bid Protest The State will publish an Award Recommendation and Evaluation Synopsis which will provide instructions on how to request a debrief meeting.

If you wish to initiate a protest of the award, you must submit your written protest to Laura Gyorkos at gyorkosl@michigan.gov no later than 3:00, 2 business days after the Award Recommendation and Evaluation Synopsis is posted on SIGMA VSS.

Additional information about the protest process is available at DTMB - Programs & Policies under the “Bidder Protests” link.

State Administrative Board Contracts valued at $250,000 or more require approval by the State Administrative Board. The Board’s decision is final, however, its approval does not constitute a contract.

The award process is not complete until the selected contractor receives a contract that is fully executed by all parties.

General Conditions The State is not responsible for any costs, expenses, or damages you incur while participating in this solicitation.

By submitting a proposal, you agree that:

Your proposal is an offer to do business with the State based on the terms outlined in your submission, including the Contract Terms.

Your proposal is irrevocable and binding for 180 calendar days from the date of submission.

The State may choose to incorporate any part of your proposal into the final agreement if you are awarded a contract.

This RFP may not fully describe the State’s environment or include all terms that must be agreed upon.

Your proposal becomes a public record immediately upon receipt by the State. Except for verified trade secrets, all documents submitted through www.michigan.gov/SIGMAVSS become the property of the State.

Confidential Treatment Form and the Freedom of Information Act As a public record, all portions of the bidder’s proposal and resulting contract are subject to disclosure as required under Michigan’s Freedom of Information Act (FOIA), MCL 15.231, et seq. However, the State may exempt some information from disclosure as permitted by law. Under MCL 18.1261(13)(b), records containing “a trade secret as defined under section 2 of the uniform trade secrets act, 1998 PA 448, MCL 445.1902,” are exempt from disclosure under FOIA. In addition, “financial or proprietary information” submitted with a bidder’s proposal is exempt from disclosure under FOIA. A bidder’s failure to comply with this Section is grounds for rejecting a bidder’s proposal as non-responsive. As a part of its proposal, each bidder must follow the procedure below.

Submit a completed Confidential Treatment Form with your bid. Completion and submission of the Confidential Treatment Form (CT Form) is required regardless of whether the bidder seeks confidential treatment of information. Failure to submit a completed CT Form may be cause for disqualification from the solicitation process. If a bidder fails to properly complete and submit the CT Form or otherwise fails to follow CT Form instructions, the proposal may be publicly disclosed in its entirety without redaction after an award recommendation.

Complete and sign Section 1 of the CT Form if the bidder does NOT request confidential treatment of information contained in its proposal; or Complete and sign Section 2 of the CT Form if the bidder requests confidential treatment of certain information. Bidder must also submit a copy of the proposal with the trade secret, financial, and proprietary information redacted and clearly labeled as the “PUBLIC COPY.”

Failure to complete and sign a CT Form may result in disqualification of the bidder. If a bidder fails to properly complete and submit the CT Form or otherwise fails to follow the CT Form instructions, the proposal, in its entirety, may be publicly disclosed by the State without redaction after an award recommendation.

FOIA requests. If a FOIA request is made for a bidder’s proposal, the Public Copy may be distributed to the public along with the bidder’s CT Form. The CT Form is a public document and serves as an explanation for the redactions to the Public Copy. Do not put any trade secret, financial, or proprietary information in the CT Form. Do not redact the CT Form itself.

No Advice. The State will not advise a bidder as to the nature or content of documents entitled to protection from disclosure under FOIA or other laws, as to the interpretation of such laws, or as to the definition of trade secret or financial or proprietary information. Nothing contained in this provision will modify or amend requirements and obligations imposed on the State by FOIA or other applicable law. The State is not obligated to notify a bidder if a FOIA request for bidder’s proposal is received nor if bidder’s proposal is made available to the public.

Failure to request confidential treatment. Failure to request material be treated as confidential as specified herein relieves the State, its agencies, and personnel from any responsibility for maintaining material in confidence.

Bids containing a request to maintain an entire proposal as confidential may be rejected as non-responsive. Bidders may not request confidential treatment with respect to resumes, pricing, and marketing materials. The State reserves the right to determine whether material designated as exempt by a bidder falls under MCL 18.1261 or other applicable FOIA exemptions. If a FOIA request is made for materials that the bidder has identified as trade secret, financial, or proprietary information, the State has the final authority to determine whether the materials are exempt from disclosure under FOIA.

Bidder forever releases the State, its departments, subdivisions, officers, and employees from all claims, rights, actions, demands, damages, liabilities, expenses and fees, which arise out of or relate to the disclosure of all or a portion of bidder’s proposal submitted under this RFP. Bidder must defend, indemnify and hold the State, its departments, subdivisions, officers, and employees harmless, without limitation, from and against all actions, claims, losses, liabilities, damages, costs, attorney fees, and expenses (including those required to establish the right to indemnification), arising out of or relating to any FOIA request, including potential litigation and appeals, related to the portion of bidder’s proposal submitted under this RFP that bidder has identified as a trade secret, or financial or proprietary information. The State will notify bidder in writing if indemnification is sought. The State is entitled to: (i) regular updates on proceeding status; (ii) participate in the defense of the proceeding; (iii) employ its own counsel; and to (iv) retain control of the defense, or any portion thereof, if the State deems necessary. Bidder will not, without the State’s written consent (not to be unreasonably withheld), settle, compromise, or consent to the entry of any judgment in or otherwise seek to terminate any claim, action, or proceeding. If a State employee, official, or law is involved or challenged, the State may control the defense of that portion of the claim. Any litigation activity on behalf of the State, or any of its subdivisions under this Section, must be coordinated with the Department of Attorney General. An attorney designated to represent the State may not do so until approved by the Michigan Attorney General and appointed as a Special Assistant Attorney General.

Reservations The State reserves the right to:

Disqualify you for not following the RFP instructions.

Cancel the RFP process at any time, for any reason or no reason. Issuing this RFP, receiving your proposal, and evaluating it does not obligate the State to award a contract, even if all requirements are met.

Adjust the timing for any section of this solicitation. Changes will be published.

Consider late proposals if:

No proposals are received No complete proposals are received Received proposals do not meet minimum or technical requirements The award process does not result in a contract Consider a disqualified proposal if no other proposals are received.

Disqualify your proposal based on:

Information you provide in your response Failure to register at www.michigan.gov/SIGMAVSS Submission of false or misleading information Consider your past performance with the State.

Evaluate the economic impact of your proposal, including:

Location of work Employment of Michigan residents Investment in Michigan Job creation Tax revenue Support for economically disadvantaged businesses Consider total cost of ownership, such as transition or training costs.

Refuse to award a contract if you owe State taxes or have outstanding debt.

Negotiate with one or more bidders on pricing, terms, or deliverables.

Award multiple contracts, optional-use contracts, or award by Contract Activity.

Use an alternative evaluation process if only one proposal is received.

CONFIDENTIAL TREATMENT FORM

INSTRUCTIONS. A signed and dated Confidential Treatment Form (CT Form) must be submitted with your proposal, regardless of whether your proposal contains confidential information.

1. Complete either Section 1 or Section 2 of this form and sign where indicated. Do not complete both sections. Note: Completion of Section 2 is required to request confidential treatment.

2. This form must be signed by the individual who signed the bidder’s proposal.

Failure to submit a completed CT Form with your bid is grounds for rejecting the proposal as non-responsive.

In addition, failure to follow the instructions on this form or to properly complete and submit it may result in the entire proposal being publicly disclosed by the State without redaction after an award recommendation.

See the Confidential Treatment Form and the Freedom of Information Act section of the Proposal Instructions for additional information.

Section 1. CONFIDENTIAL TREATMENT IS NOT REQUESTED This section must be completed, signed, and submitted with the proposal if the bidder does not request confidential treatment of any material contained in the proposal. If this section is completed, do not complete Section 2.

By signing below, the bidder affirms that confidential treatment of material contained in their proposal is not requested.

Solicitation Information: RFP 260000002588 Fire Fighter Fitness Testing Program - UP Signed by:

Enter your name and title Enter your company name Signature:

Date: Click or tap to enter a date.

Section 2. CONFIDENTIAL TREATMENT IS REQUESTED Bidders must complete, sign, and submit this section with the proposal, to request confidential treatment of any material contained in the proposal. If this section is completed, do not complete Section 1.

Bidders must specifically identify the information to be protected as confidential and/or proprietary and state the reasons why protection is necessary. As shown in the table below, the following details are required for each confidentiality request.

1. The proposal page number, section number, and paragraph number.

2. Whether the material referenced is Trade Secret (TS), Proprietary Financial Information (FI), or Proprietary Information (PI). Bidders may not request confidential treatment of resumes, pricing, and marketing materials.

3. An explanation of the specific legal grounds that support treatment of the material as TS, FI, or PI and a complete justification as to how the material falls within the scope of an applicable FOIA exemption or relevant case law. Bidders must not simply cite an applicable exemption or case name.

4. The person at their organization authorized to respond to inquiries by the State concerning the material and their contact information.

REQUIRED: Bidders completing this section must also submit a copy of the proposal with the trade secret, financial, and proprietary information redacted and clearly label this redacted copy as the PUBLIC COPY.

Bidders may add rows or additional pages using the same format shown in the table.

State of Michigan FOIA Requests The State reserves the right to determine whether material designated as exempt by a bidder falls under MCL 18.1261 or other applicable FOIA exemptions.

If a FOIA request is made for materials that the bidder has identified as trade secret, financial, or proprietary information, the State has the final authority to determine whether the materials are exempt from disclosure under FOIA.

The State is not obligated to notify a bidder if a FOIA request for bidder’s proposal is received nor if bidder’s proposal is made available to the public. This form, and any additional justification letters, are not exempt from release under FOIA.

By signing below, the bidder affirms that confidential treatment of material contained in their proposal is requested and has attached to this form a redacted “Public Copy” of the bidder’s proposal.

Solicitation Information: RFP 260000002588 Fire Fighter Fitness Testing Program - UP Signed by:

Enter your name and title Enter your company name Signature:

Date: Click or tap to enter a date.

Standard Contract Terms Bidder Instructions

Bidders must propose all changes utilizing the track changes feature in Word. Bidders must explain the reason for the requested change utilizing the comment feature in Word. Bidders who provide redlines as part of their initial bid submission but fail to note justifications for each red line provided, may be disqualified The State may choose not to accept any redlines proposed by Bidders after the initial bid submission. Additionally, General statements, such as that the Bidder reserves the right to negotiate the terms and conditions or extensive redlines, may be considered non-responsive.

☐ I confirm that I have read and understand the instructions provided above.

This STANDARD CONTRACT (“Contract”) is agreed to between the State of Michigan (the “State”) and Insert Company Name (“Contractor”), a Insert State & Entity Status, e.g., a Michigan corporation or a Texas limited liability company. This Contract is effective on TBD (“Effective Date”), and unless terminated, will expire on TBD (the “Term”).

This Contract may be renewed for up to three additional one-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:

1. 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. An obligation to provide delivery of any commodity is considered a service and is a Contract Activity.

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, and workmanlike manner consistent with standards in the trade, profession, or industry; (b) meet or exceed the performance and operational standards, and specifications of the Contract; (c) provide all Contract Activities in good quality, with no material defects; (d) not interfere with the State’s operations; (e) obtain and maintain all necessary licenses, permits or other authorizations necessary for the performance of the Contract; (f) cooperate with the State, including the State’s quality assurance personnel, and any third party to achieve the objectives of the Contract; (g) 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; (h) assign to the State any claims resulting from state or federal antitrust violations to the extent that those violations concern materials or services supplied by third parties toward fulfillment of the Contract; (i) comply with all State physical and IT security policies and standards which will be made available upon request; and (j) provide the State priority in performance of the Contract except as mandated by federal disaster response requirements. 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.

Street Address City, State, Zip Email Phone

Contract Administrator.

The Contract Administrator, or the individual duly authorized for each party, is the only person authorized to modify any terms of this Contract, and approve and execute any change under this Contract (each a “Contract Administrator”):

Amanda Pauly 525 West Allegan Lansing, MI 48913 Paulya3@michigan.gov 517-388-9905 Name Street Address City, State, Zip

Program Manager.

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

TBD

Name Street Address City, State, Zip

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.

See Schedule C 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.

If a Statement of Work requires Contractor to create any intellectual property, Contractor hereby acknowledges that the State is and will be the sole and exclusive owner of all right, title, and interest in the Contract Activities and all associated intellectual property rights, if any. Such Contract Activities are works made for hire as defined in Section 101 of the Copyright Act of 1976. To the extent any Contract Activities and related intellectual property do not qualify as works made for hire under the Copyright Act, Contractor will, and hereby does, immediately on its creation, assign, transfer and otherwise convey to the State, irrevocably and in perpetuity, throughout the universe, all right, title and interest in and to the Contract Activities, including all intellectual property rights therein.

Subcontracting.

Contractor may not delegate any of its obligations under the Contract without the prior written approval of the State. 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. 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. Upon notice to Contractor, the State, in its sole discretion, may assign in whole or in part, its rights or responsibilities under this Contract to any other party. If the State determines that a novation of the Contract to a third party is necessary, Contractor will agree to the novation and provide all necessary documentation and signatures.

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) a change in a majority of Contractor’s board members; (d) consummation of a merger or consolidation of Contractor with any other entity; (e) a change in ownership through a transaction or series of transactions; (f) 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.

Acceptance.

Contract Activities are subject to inspection and testing by the State within 30 calendar days of the State’s receipt of them (“State Review Period”), unless otherwise provided in a Statement of Work. If the Contract Activities are not fully accepted by the State, the State will notify Contractor by the end of the State Review Period that either: (a) the Contract Activities are accepted but noted deficiencies must be corrected; or (b) the Contract Activities are rejected. If the State finds material deficiencies, it may: (i) reject the Contract Activities without performing any further inspections; (ii) demand performance at no additional cost; or (iii) terminate this Contract in accordance with Section 24, Termination for Cause.

Within 10 business days from the date of Contractor’s receipt of notification of acceptance with deficiencies or rejection of any Contract Activities, Contractor must cure, at no additional cost, the deficiency and deliver unequivocally acceptable Contract Activities to the State. If acceptance with deficiencies or rejection of the Contract Activities impacts the content or delivery of other non-completed Contract Activities, the parties’ respective Program Managers must determine an agreed to number of days for re-submission that minimizes the overall impact to the Contract. However, nothing herein affects, alters, or relieves Contractor of its obligations to correct deficiencies in accordance with the time response standards set forth in this Contract.

If Contractor is unable or refuses to correct the deficiency within the time response standards set forth in this Contract, the State may cancel the order in whole or in part. The State, or a third party identified by the State, may perform the Contract Activities and recover the difference between the cost to cure and the Contract price plus an additional 10% administrative fee.

Reserved.

Reserved.

Reserved.

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 federal excise tax, state, and local sales taxes, and use taxes if the Contract Activities purchased under this Contract are for the State’s exclusive use. Contractor will not include the collection of taxes for which the State is exempt in any invoices or payments related to this Contract. The State is not responsible for taxes imposed or assessed on Contractor.

The State has the right to withhold payment of any disputed amounts until the parties agree as to the validity of the disputed amount. The State will notify Contractor of any dispute within a reasonable time. 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. Contractor’s acceptance of final payment by the State constitutes a waiver of all claims by Contractor against the State for payment under this Contract, other than those claims previously filed in writing on a timely basis and still disputed.

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.

Excluding federal government charges and terms, Contractor warrants and agrees that each of the fees, economic or product terms or warranties granted pursuant to this Contract are comparable to or better than the equivalent fees, economic or product term or warranty being offered to any commercial or government customer (including any public educational institution within the State of Michigan) of Contractor. If Contractor enters into any arrangements with another customer of Contractor to provide the products or services, available under this Contract, under more favorable prices, as the prices may be indicated on Contractor’s current U.S. and International price list or comparable document, then this Contract will be deemed amended as of the date of such other arrangements to incorporate those more favorable prices, and Contractor will immediately notify the State of such fee and formally memorialize the new pricing in a change notice.

Liquidated Damages.

Liquidated damages, if applicable, will be assessed as described in a Statement of Work. The parties understand and agree that any liquidated damages (which includes but is not limited to applicable credits) set forth in this Contract are reasonable estimates of the State’s damages in accordance with applicable law. The parties acknowledge and agree that Contractor could incur liquidated damages for more than 1 event. The assessment of liquidated damages will not constitute a waiver or release of any other remedy the State may have under this Contract for Contractor’s breach of this Contract, including without limitation, the State’s right to terminate this Contract for cause under Section 24 and the State will be entitled in its discretion to recover actual damages caused by Contractor’s failure to perform its obligations under this Contract. However, the State will reduce such actual damages by the amounts of liquidated damages received for the same events causing the actual damages. Amounts due the State as liquidated damages may be set off against any fees payable to Contractor under this Contract, or the State may bill Contractor as a separate item and Contractor will promptly make payments on such bills.

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.

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, 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.

(b) If the State terminates this Contract under this Section, the State will issue a termination notice specifying whether Contractor must: (i) cease performance immediately. Contractor must submit all invoices for Contract Activities accepted by the State within 30 days of the date of termination. Failure to submit an invoice within that timeframe will constitute a waiver by Contractor for any amounts due to Contractor for Contract Activities accepted by the State under this Contract or (ii) continue to perform for a specified period. If it is later determined that Contractor was not in breach of the Contract, the termination will be deemed to have been a Termination for Convenience, effective as of the same date, and the rights and obligations of the parties will be limited to those provided in Section 25, Termination for Convenience.

The State will only pay for amounts due to Contractor for Contract Activities accepted by the State on or before the date of termination, subject to the State’s right to set off any amounts owed by the Contractor for the State’s reasonable costs in terminating this Contract. Contractor must promptly reimburse to the State any fees prepaid by the State prorated to the date of such termination, including any prepaid fees. The Contractor must pay all reasonable costs incurred by the State in terminating this Contract for cause, including administrative costs, attorneys’ fees, court costs, transition costs, and any costs the State incurs to procure the Contract Activities from other sources.

Termination for Convenience.

The State may immediately terminate this Contract in whole or in part without penalty and for any reason or no reason, including but not limited to, appropriation or budget shortfalls. The termination notice will specify whether Contractor must: (a) cease performance of the Contract Activities immediately. Contractor must submit all invoices for Contract Activities accepted by the State within 30 days of the date of termination. Failure to submit an invoice within that timeframe will constitute a waiver by Contractor for any amounts due Contractor for Contract Activities accepted by the State under this Contract, or (b) continue to perform the Contract Activities in accordance with Section 26, Transition Responsibilities. If the State terminates this Contract for convenience, the State will pay all reasonable costs, as determined by the State, for State approved Transition Responsibilities to the extent the funds are available.

Transition Responsibilities.

Upon termination or expiration of this Contract for any reason, Contractor must, for a period of time specified by the State (not to exceed 90 calendar days), provide all reasonable transition assistance requested by the State, to allow for the expired or terminated portion of the Contract Activities to continue without interruption or adverse effect, and to facilitate the orderly transfer of such Contract Activities to the State or its designees. Such transition assistance may include, but is not limited to: (a) continuing to perform the Contract Activities at the established Contract rates; (b) taking all reasonable and necessary measures to transition performance of the work, including all applicable Contract Activities, training, equipment, software, leases, reports and other documentation, to the State or the State’s designee; (c) transferring title in and delivering to the State, at the State’s discretion, all completed or partially completed deliverables prepared under this Contract as of the Contract termination date; and (d) preparing an accurate accounting from which the State and Contractor may reconcile all outstanding accounts (collectively, “Transition Responsibilities”). This Contract will automatically be extended through the end of the transition period.

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.

Contractor must defend, indemnify and hold the State, its departments, divisions, agencies, offices, commissions, officers, and employees harmless, without limitation, from and against any and all actions, claims, losses, liabilities, damages, costs, attorney fees, and expenses (including those required to establish the right to indemnification), arising out of or relating to: (a) any breach by Contractor (or any of Contractor’s employees, agents, subcontractors, or by anyone else for whose acts any of them may be liable) of any of the promises, agreements, representations, warranties, or insurance requirements contained in this Contract; (b) any infringement, misappropriation, or other violation of any intellectual property right or other right of any third party; (c) any bodily injury, death, or damage to real or tangible personal property occurring wholly or in part due to action or inaction by Contractor (or any of Contractor’s employees, agents, subcontractors, or by anyone else for whose acts any of them may be liable); and (d) any acts or omissions of Contractor (or any of Contractor’s employees, agents, subcontractors, or by anyone else for whose acts any of them may be liable).

The State will notify Contractor in writing if indemnification is sought; however, failure to do so will not relieve Contractor, except to the extent that Contractor is materially prejudiced. Contractor must, to the satisfaction of the State, demonstrate its financial ability to carry out these obligations.

The State is entitled to: (i) regular updates on proceeding status; (ii) participate in the defense of the proceeding; (iii) employ its own counsel; and to (iv) retain control of the defense, at its own cost and expense, if the State deems necessary. Contractor will not, without the State’s prior written consent (not to be unreasonably withheld), settle, compromise, or consent to the entry of any judgment in or otherwise seek to terminate any claim, action, or proceeding.

Any litigation activity on behalf of the State, or any of its subdivisions under this Section, must be coordinated with the Department of Attorney General. An attorney designated to represent the State may not do so until approved by the Michigan Attorney General and appointed as a Special Assistant Attorney General.

The State is constitutionally prohibited from indemnifying Contractor or any third parties.

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.

Limitation of Liability and Disclaimer of Damages.

IN NO EVENT WILL THE STATE’S AGGREGATE LIABILITY TO CONTRACTOR 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. The State is not liable 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, including: (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.

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. 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.

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…