RFP-DAA-2017000223 Student Assessment Modification 1 Exhibits.docx

EXHIBITS

Exhibit 1: State of Colorado, CDE, Model Contract for Personal Services

STATE OF COLORADO CONTRACT

Signature and Cover Page State Agency Colorado Department of Education Contract Number Insert CMS number or Other Contract Number

Contractor Insert Contractor's Full Legal Name, including "Inc.", "LLC", etc...

Contract Performance Beginning Date The later of the Effective Date or July 1, 2017

Contract Maximum Amount Assessment Cycle Terms* Initial Contract Expiration Date September 30, 2018

The Parties entered into the Contract for the provision of the required services and deliverables for the development, administration, scoring, and reporting of science and social studies for the Colorado summative and alternate assessments and ELA and Math and the Spanish Language Arts assessments.

* Contractor shall not commence developing the next year’s assessment or performing any Work for the next year’s assessment until a renewal amendment has been executed by the Department. In the event that the Department decides to renew the Contract for an additional year, the Department anticipates that the renewal amendments will be executed each June.

For example, unless and until a renewal amendment is executed, the only work to be performed by Contractor between July 1, 2018 and September 30, 2018 shall be the reporting to cover the previous year’s assessment. This contractual requirement shall be applicable to all potential renewal years.

Renewal and continuation will be at the sole discretion of the State, contingent upon contractual requirements being satisfied and funds being appropriated, budgeted, and otherwise made available.

THE PARTIES HERETO HAVE EXECUTED THIS CONTRACT

Each person signing this Contract represents and warrants that he or she is duly authorized to execute this Contract and to bind the Party authorizing his or her signature.

CONTRACTOR

Insert Contractor's Full Legal Name, including "Inc.", "LLC", etc...

By: Name & Title of Person Signing for Contractor

Date: _________________________

STATE OF COLORADO

John W. Hickenlooper, Governor Colorado Department of Education Katy Anthes, Ph.D., Commissioner

By: Katy Anthes, Ph.D., Commissioner

Date: _________________________

2nd State or Contractor Signature if Needed

By: Name & Title of Person Signing for Signatory

Date: _________________________

LEGAL REVIEW

Cynthia H. Coffman, Attorney General

By:_______________________________________________ Assistant Attorney General

Date: _________________________

In accordance with §24-30-202 C.R.S., this Contract is not valid until signed and dated below by the State Controller or an authorized delegate.

STATE CONTROLLER

Robert Jaros, CPA, MBA, JD

By:___________________________________________

Dave Grier, CPA, CDE Controller

Effective Date:_____________________

TABLE OF CONTENTS

To Be Entered at Time of Contracting

PARTIES

This Contract is entered into by and between Contractor named on the Signature and Cover Page for this Contract (the “Contractor”), and the STATE OF COLORADO acting by and through the State agency named on the Signature and Cover Page for this Contract (the “State” or “Department” or “Colorado Department of Education”). Contractor and the State agree to the terms and conditions in this Contract.

TERM and Effective Date Effective Date This Contract shall not be valid or enforceable until the Effective Date. The State shall not be bound by any provision of this Contract before the Effective Date, and shall have no obligation to pay Contractor for any Work performed or expense incurred before the Effective Date or after the expiration or sooner termination of this Contract.

Initial Term The Parties’ respective performances under this Contract shall commence on the Contract Performance Beginning Date shown on the Signature and Cover Page for this Contract and shall terminate on the Initial Contract Expiration Date shown on the Signature and Cover Page for this Contract (the “Initial Term”) unless sooner terminated or further extended in accordance with the terms of this Contract.

Extension Terms - State’s Option The State, at its discretion, shall have the option to extend the performance under this Contract beyond the Initial Term for a period, or for successive periods, of 1 year or less at the same rates and under the same terms specified in the Contract (each such period an “Extension Term”). In order to exercise this option, the State shall provide written notice to Contractor in a form substantially equivalent to Exhibit B. Except as stated in §2.D, the total duration of this Contract, including the exercise of any options to extend, shall not exceed 5 years from its Effective Date absent prior approval from the State Purchasing Director in accordance with the Colorado Procurement Code.

End of Term Extension If this Contract approaches the end of its Initial Term, or any Extension Term then in place, the State, at its discretion, upon written notice to Contractor as provided in §16, may unilaterally extend such Initial Term or Extension Term for a period not to exceed 2 months (an “End of Term Extension”), regardless of whether additional Extension Terms are available or not. The provisions of this Contract in effect when such notice is given shall remain in effect during the End of Term Extension. The End of Term Extension shall automatically terminate upon execution of a replacement contract or modification extending the total term of the Contract.

Early Termination in the Public Interest The State is entering into this Contract to serve the public interest of the State of Colorado as determined by its Governor, General Assembly, or Courts. If this Contract ceases to further the public interest of the State, the State, in its discretion, may terminate this Contract in whole or in part. This subsection shall not apply to a termination of this Contract by the State for breach by Contractor, which shall be governed by §14.A.i.

Method and Content The State shall notify Contractor of such termination in accordance with §16. The notice shall specify the effective date of the termination and whether it affects all or a portion of this Contract.

Obligations and Rights Upon receipt of a termination notice for termination in the public interest, Contractor shall be subject to §14.A.i.a.

Payments If the State terminates this Contract in the public interest, the State shall pay Contractor an amount equal to the percentage of the total reimbursement payable under this Contract that corresponds to the percentage of Work satisfactorily completed and accepted, as determined by the State, less payments previously made. Additionally, if this Contract is less than 60% completed, as determined by the State, the State may reimburse Contractor for a portion of actual out-of-pocket expenses, not otherwise reimbursed under this Contract, incurred by Contractor which are directly attributable to the uncompleted portion of Contractor’s obligations, provided that the sum of any and all reimbursement shall not exceed the maximum amount payable to Contractor hereunder.

AUTHORITY

Funds have been budgeted, appropriated and otherwise made available and a sufficient unencumbered balance thereof remains available for payment. Required approvals, clearance and coordination have been accomplished from and with appropriate agencies.

PURPOSE

The Parties entered into the Contract for the provision of the required services and deliverables for the development, administration, scoring, and reporting of science and social studies for the Colorado summative and alternate assessments and ELA and Math and the Spanish Language Arts assessments.

DEFINITIONS

The following terms shall be construed and interpreted as follows:

“Business Day” means any day in which the State is open and conducting business, but shall not include Saturday, Sunday or any day on which the State observes one of the holidays listed in §24-11-101(1) C.R.S.

“Contract” means this agreement, including all attached Exhibits, all documents incorporated by reference, all referenced statutes, rules and cited authorities, and any future modifications thereto.

“Contract Funds” means the funds that have been appropriated, designated, encumbered, or otherwise made available for payment by the State under this Contract.

“CORA” means the Colorado Open Records Act, §§24-72-200.1 et. seq., C.R.S.

“End of Term Extension” means the time period defined in §2.D “Effective Date” means the date on which this Contract is approved and signed by the Colorado State Controller or designee, as shown on the Signature and Cover Page for this Contract.

“Exhibits” means the following exhibits attached to this Contract:

Exhibit A, Statement of Work.

Exhibit B, Rates.

Exhibit C, Sample Option Letter.

“Extension Term” means the time period defined in §2.C “Goods” means any movable material acquired, produced, or delivered by Contractor as set forth in this Contract and shall include any movable material acquired, produced, or delivered by Contractor in connection with the Services.

“Initial Term” means the time period defined in §2.B “Party” means the State or Contractor, and “Parties” means both the State and Contractor.

“Services” means the services to be performed by Contractor as set forth in this Contract, and shall include any services to be rendered by Contractor in connection with the Goods.

“State Fiscal Rules” means that fiscal rules promulgated by the Colorado State Controller pursuant to §24-30-202(13)(a).

“State Fiscal Year” means a 12 month period beginning on July 1 of each calendar year and ending on June 30 of the following calendar year. If a single calendar year follows the term, then it means the State Fiscal Year ending in that calendar year.

“State Purchasing Director” means the position described in the Colorado Procurement Code and its implementing regulations.

“Subcontractor” means third-parties, if any, engaged by Contractor to aid in performance of the Work.

“Work” means the delivery of the Goods and performance of the Services described in this Contract.

“Work Product” means the tangible and intangible results of the Work, whether finished or unfinished, including drafts. Work Product includes, but is not limited to, documents, text, software (including source code), research, reports, proposals, specifications, plans, notes, studies, data, images, photographs, negatives, pictures, drawings, designs, models, surveys, maps, materials, ideas, concepts, know-how, and any other results of the Work. “Work Product” does not include any material that was developed prior to the Effective Date that is used, without modification, in the performance of the Work.

Any other term used in this Contract that is defined in an Exhibit shall be construed and interpreted as defined in that Exhibit.

STATEMENT OF WORK

Contractor shall complete the Work as described in this Contract and in accordance with the provisions of Exhibit A. The State shall have no liability to compensate Contractor for the delivery of any goods or the performance of any services that are not specifically set forth in this Contract.

PAYMENTS TO CONTRACTOR

Maximum Amount Payments to Contractor are limited to the unpaid, obligated balance of the Contract Funds. The State shall not pay Contractor any amount under this Contract that exceeds the Contract Maximum for that State Fiscal Year shown on the Signature and Cover Page for this Contract.

Payment Procedures Invoices and Payment The State shall pay Contractor in the amounts and in accordance with the schedule and other conditions set forth in Exhibit A.

Contractor shall initiate payment requests by invoice to the State, in a form and manner approved by the State.

The State shall pay each invoice within 45 days following the State’s receipt of that invoice, so long as the amount invoiced correctly represents Work completed by Contractor and previously accepted by the State during the term that the invoice covers. If the State determines that the amount of any invoice is not correct, then Contractor shall make all changes necessary to correct that invoice.

The acceptance of an invoice shall not constitute acceptance of any Work performed or deliverables provided under the Contract.

Interest Amounts not paid by the State within 45 days of the State’s acceptance of the invoice shall bear interest on the unpaid balance beginning on the 45th day at the rate of 1% per month, as required by §24-30-202(24)(a), C.R.S., until paid in full; provided, however, that interest shall not accrue on unpaid amounts that the State disputes in writing. Contractor shall invoice the State separately for accrued interest on delinquent amounts, and the invoice shall reference the delinquent payment, the number of day’s interest to be paid and the interest rate.

Payment Disputes If Contractor disputes any calculation, determination or amount of any payment, Contractor shall notify the State in writing of its dispute within 30 days following the earlier to occur of Contractor’s receipt of the payment or notification of the determination or calculation of the payment by the State. The State will review the information presented by Contractor and may make changes to its determination based on this review. The calculation, determination or payment amount that results from the State’s review shall not be subject to additional dispute under this subsection. No payment subject to a dispute under this subsection shall be due until after the State has concluded its review, and the State shall not pay any interest on any amount during the period it is subject to dispute under this subsection.

Available Funds-Contingency-Termination The State is prohibited by law from making commitments beyond the term of the current State Fiscal Year. Payment to Contractor beyond the current State Fiscal Year is contingent on the appropriation and continuing availability of Contract Funds in any subsequent year (as provided in the Colorado Special Provisions). If federal funds or funds from any other non-State funds constitute all or some of the Contract Funds the State’s obligation to pay Contractor shall be contingent upon such non-State funding continuing to be made available for payment. Payments to be made pursuant to this Contract shall be made only from Contract Funds, and the State’s liability for such payments shall be limited to the amount remaining of such Contract Funds. If State, federal or other funds are not appropriated, or otherwise become unavailable to fund this Contract, the State may, upon written notice, terminate this Contract, in whole or in part, without incurring further liability. The State shall, however, remain obligated to pay for Services and Goods that are delivered and accepted prior to the effective date of notice of termination, and this termination shall otherwise be treated as if this Contract were terminated in the public interest as described in §2.E.

Erroneous Payments The State may recover, at the State’s discretion, payments made to Contractor in error for any reason, including, but not limited to, overpayments or improper payments, and unexpended or excess funds received by Contractor. The State may recover such payments by deduction from subsequent payments under this Contract, deduction from any payment due under any other contracts, grants or agreements between the State and Contractor, or by any other appropriate method for collecting debts owed to the State.

REPORTING - NOTIFICATION

Quarterly Reports.

In addition to any reports required pursuant to §19 or pursuant to any other Exhibit, for any contract having a term longer than 3 months, Contractor shall submit, on a quarterly basis, a written report specifying progress made for each specified performance measure and standard in this Contract. Such progress report shall be in accordance with the procedures developed and prescribed by the State. Progress reports shall be submitted to the State not later than 5 Business Days following the end of each calendar quarter or at such time as otherwise specified by the State.

Litigation Reporting If Contractor is served with a pleading or other document in connection with an action before a court or other administrative decision making body, and such pleading or document relates to this Contract or may affect Contractor’s ability to perform its obligations under this Contract, Contractor shall, within 10 days after being served, notify the State of such action and deliver copies of such pleading or document to the State’s principal representative identified in §16.

Performance Outside the State of Colorado or the United States, §24-102-206 C.R.S.

To the extent not previously disclosed in accordance with §24-102-206, C.R.S., Contractor shall provide written notice to the State, in accordance with §16, within 20 days following the earlier to occur of Contractor’s decision to perform Services outside of the State of Colorado or the United States, or its execution of an agreement with a Subcontractor to perform Services outside the State of Colorado or the United States. Such notice shall specify the type of Services to be performed outside the State of Colorado or the United States and the reason why it is necessary or advantageous to perform such Services at such location or locations, and such notice shall be a public record. Knowing failure by Contractor to provide notice to the State under this §8.C shall constitute a breach of this Contract. This §8.C shall not apply if the Contract Funds include any federal funds.

CONTRACTOR RECORDS

Maintenance Contractor shall maintain a file of all documents, records, communications, notes and other materials relating to the Work (the “Contractor Records”). Contractor Records shall include all documents, records, communications, notes and other materials maintained by Contractor that relate to any Work performed by Subcontractors, and Contractor shall maintain all records related to the Work performed by Subcontractors required to ensure proper performance of that Work. Contractor shall maintain Contractor Records until the last to occur of: (i) the date 3 years after the date this Contract expires or is terminated, (ii) final payment under this Contract is made, (iii) the resolution of any pending Contract matters, or (iv) if an audit is occurring, or Contractor has received notice that an audit is pending, the date such audit is completed and its findings have been resolved (the “Record Retention Period”).

Inspection Contractor shall permit the State to audit, inspect, examine, excerpt, copy and transcribe Contractor Records during the Record Retention Period. Contractor shall make Contractor Records available during normal business hours at Contractor’s office or place of business, or at other mutually agreed upon times or locations, upon no fewer than 2 Business Days’ notice from the State, unless the State determines that a shorter period of notice, or no notice, is necessary to protect the interests of the State.

Monitoring The State, in its discretion, may monitor Contractor’s performance of its obligations under this Contract using procedures as determined by the State. The State shall monitor Contractor’s performance in a manner that does not unduly interfere with Contractor’s performance of the Work.

Final Audit Report Contractor shall promptly submit to the State a copy of any final audit report of an audit performed on Contractor’s records that relates to or affects this Contract or the Work, whether the audit is conducted by Contractor or a third party.

CONFIDENTIAL INFORMATION

Definitions "Aggregate Data" means data collected and reported at the group, cohort, or institutional level that is aggregated using protocols that are effective for preserving the anonymity of each individual included in the data.

“Data” includes Student Personally Identifiable Information and Educator Data.

"Destroy" means to remove Data from Contractor’s systems, paper files, records, databases, and any other media regardless of format, in accordance with the standard detailed in NIST Special Publication 800-88 Guidelines for Media Sanitization so that the Data is permanently irretrievable in the Contractor’s and Subcontractor’s normal course of business.

“Educator Data” includes, but is not limited to, the educator’s name; any unique identifier, including social security number; and other information that, alone or in combination, is linked or linkable to a specific educator.

“Incident” means an accidental or deliberate event that results in or constitutes an imminent threat of the unauthorized access, loss, disclosure, modification, disruption, or destruction of communication and information resources of the State pursuant to C.R.S. Section 24-37.5-401 et seq. Incidents include, but are not limited to (i) successful attempts to gain unauthorized access to a State system or Student Personally Identifiable Information, Educator Data, or State Confidential Information regardless of where such information is located; (ii) unwanted disruption or denial of service; (iii) the unauthorized use of a State system for the processing or storage of data; or (iv) changes to State system hardware, firmware, or software characteristics without the State’s knowledge, instruction, or consent.

“State Confidential Information” means all information, data, records, and documentary materials, regardless of physical form or characteristics, which are of a sensitive nature and belong to the State, including but not limited to any non-public State records, sensitive State data, protected State data, State personnel records and other information or data concerning individuals, which has been communicated, furnished, or disclosed by the State to Contractor. Notwithstanding the foregoing, State Confidential Information shall not include Student Personally Identifiable Information or Educator Data and shall not include information required to be disclosed pursuant to the Colorado Open Records Act, CRS §24-72-101, et seq.

"Student Personally Identifiable Information (PII)" means information that is collected, maintained, generated, or inferred and that, alone or in combination, personally identifies an individual student or the student's parent or family. Student Personally Identifiable Information includes, but is not limited to a student's name; the name of a student's parent or other family member; the address of a student or student's family; a personal identifier such as a student's social security number, student number, or biometric record; other indirect identifiers such as a student's date of birth, place of birth, and mother's maiden name; a student’s email address, cell phone number or any other information that allows physical or online contact with a student; a student’s discipline or criminal records; a student’s juvenile dependency records; a student’s medical or health records including, without limitation, records regarding a student’s disabilities; a student’s socioeconomic information, political affiliations, or religion; a student’s text messages, IP address, or online search activity; a student’s photos and voice recordings; a student’s food purchases; or geolocation information.

Student Personally Identifiable Information also includes data that is collected and stored by CDE at the individual student level and is included in a student’s educational record and includes State-administered assessment results, including participation information, courses taken and completed, credits earned and other transcript information; course grades and grade point average; grade level and expected graduation year; degree, diploma credential attainment or other school exit information; attendance and mobility information between and within Colorado school districts; special education data and special education discipline reports limited to object information that is sufficient to produce the federal Title IV annual incident report; date of birth, full name, gender, race, and ethnicity; and program participation information required by state or federal law.

“Subcontractor” means any third party engaged by Contractor to aid in performance of Contractor’s obligations.

“Targeted Advertising” means selecting and sending advertisements to an individual based on information obtained or inferred over time from the individual’s online behavior, use of applications, or Data. Targeted Advertising does not include advertising to an individual at an online location based on the individual’s current visit to that location or in response to the individual’s request for information or feedback and is without the collection and retention of an individual’s online activities over time. Targeted Advertising also does not include adaptive learning, personalized learning, or customized education.

General Provisions The State reserves all right, title, and interest, including all intellectual property and proprietary rights, in and to system data, State Confidential Information, Data, and all related data and content.

Contractor shall comply with all laws and regulations concerning confidentiality of State Confidential Information and Data including, but not limited to the Family Educational Rights and Privacy Act (FERPA), 20 U.S.C. Section 1232g; 34 C.F.R. Part 99 and the Student Data Transparency and Security Act, C.R.S. Section 22-16-101 et. seq. Contractor shall immediately forward to the State’s principal representative any request or demand from a third party for State Confidential Information or Data in the possession of Contractor.

Upon request of the State or of the Colorado State Board of Education, Contractor shall submit its data processing facilities for an audit of the measures referred to in this Section 10 by the State or by a State approved delegate.

Contractor shall send the State a written notice which includes a clear explanation of the proposed changes prior to making a material change to Contractor’s privacy policies.

Confidentiality of State Confidential Information Contractor shall notify its agents, employees, Subcontractors, and assigns who may come into contact with State Confidential Information that each is subject to the confidentiality requirements set forth in this Contract, and shall provide each with a written explanation of such requirements before permitting them to access State Confidential Information.

State Confidential Information shall not be distributed or sold to any third party or used by Contractor or its agents except as authorized by this Contract or as approved in writing by the State. Contractor shall provide and maintain a secure environment that ensures confidentiality of all State Confidential Information wherever located. State Confidential Information shall not be retained by Contractor or its agents except as permitted in this Contract or approved in writing by the State.

Disclosure of State Confidential Information by Contractor for any reason may be cause for legal action by third parties against Contractor, the State or their respective agents. Contractor shall indemnify, save, and hold harmless the State, its employees and agents, against any and all costs, expenses, claims, damages, liabilities, and court awards (including attorney fees and costs), incurred by the State in relation to any act or omission by Contractor, or its employees, agents, Subcontractors, or assignees in connection with State Confidential Information.

Safeguarding HIPAA Data If Contractor will or may receive HIPAA Data under this Contract, Contractor shall provide for the security and privacy of the HIPAA Data in accordance with the provisions of the federal Health Insurance Portability and Accountability Act (HIPAA) of 1996 (42 U.S.C. §1320d, as amended, and its implementing regulations, 45 CFR Parts 160, 162, and 164).

Subcontractors Contractor shall not use a Subcontractor or disclose Data to a Subcontractor unless and until the Contractor contractually requires the Subcontractor to comply with C.R.S. §§22-16-108 through 22-16-111 and the requirements of this Section 10.

If Contractor discovers that Subcontractor or any subsequent subcontractor has committed a material breach of the contract between Contractor and Subcontractor that involves the misuse or unauthorized release of Data, Contractor acknowledges that the State may terminate the contract with Contractor unless Contractor terminates the contract with Subcontractor as soon as possible after Contractor knows or has reason to know of Subcontractors’ or any subsequent subcontractors’ material breach.

Upon discovering the misuse or unauthorized release of Data held by a Subcontractor or any subsequent Subcontractor, Contractor shall notify CDE and the Office of Information Security (“OIS”) within one calendar day, regardless of whether the misuse or unauthorized release by the Subcontractor is a result of a material breach of the terms of the Contract or results in an Incident.

No later than thirty (30) days after the signing of this Contract, Contractor shall provide the State with information detailing the purpose and the scope of the contract between the Contractor and all Subcontractor(s) and the types and uses of Data that Subcontractor(s) holds under the Contract between the Contractor and Subcontractor(s).

Contractor shall not maintain or forward Data to or from any other facility or location except for backup and disaster recovery purposes. Any backup or disaster recovery contractor shall be considered a Subcontractor that must comply with the Subcontractor requirements in this Section 10.

End of Agreement Should Contractor not comply with the requirements of this Section and that non-compliance results in the misuse or unauthorized release of Data by the Contractor, the State may terminate the Contract immediately as provided under this Contract and in accordance with C.R.S. Section 22-16-105(5).

Upon request by the State made before or within thirty (30) calendar days after termination of the Contract, Contractor shall make available to the State a complete and secure (i.e. encrypted and appropriately authenticated) download file of all data, including, but not limited to, all Data, State Confidential Information, schema and transformation definitions, or delimited text files with documented, detailed schema definitions along with attachments in its native format.

Following the termination of this Contract, Contractor shall, within thirty (30) calendar days, Destroy all Data and State Confidential Information collected, generated, or inferred as a result of this Contract. The Contractor shall notify the State of the date upon which all of the Data and State Confidential Information is Destroyed.

The State retains the right to use the established operational services to access and retrieve Data and State Confidential Information stored on Contractor’s infrastructure at its sole discretion.

Use The Contractor shall not use or share Data beyond the purposes set forth as follows:

To carry out the Contractor’s responsibilities listed in Exhibit A, Statement of Work.

[Vendor to insert additional services involving Data and the purposes for using Data].

In the event the Contract requires Contractor to store, process or transfer Data, Contractor shall store, process, and transfer Data only in or to facilities located within the United States.

During the term of this Contract, if the State requests the destruction of Data collected, generated or inferred as a result of this Contract, the Contractor shall Destroy the information within five (5) calendar days after the date of the request. Contractor can retain a student’s PII provided that:

The Contractor obtains the consent of the student (if the student is eighteen or older) or the student’s parent or legal guardian if the student is under eighteen) to retain the student’s PII; or The student has transferred to another state and the receiving state has requested that the Contractor retain the student’s PII.

If Contractor seeks to share or publically release Data without complying with the requirements of this Section 10 for Subcontractors, Contractor must de-identify or aggregate the Data prior to providing that information to a third party or releasing the data publically. For data that is de-identified or aggregate, the following requirements apply:

Data that must be aggregated or de-identified shall include not only direct identifiers, such as names, student IDs or social security numbers, but also any other sensitive and non-sensitive information that, alone or combined with other information that is linked or linkable to a specific individual, would allow identification.

Simple removal of direct identifiers from the data to be released shall not constitute adequate de-identification.

Contractor shall de-identify data to remove cumulative re-identification risks.

Contractor shall remove all Data that in conjunction with previous data releases and other reasonably available information, including publicly-available directory information and de-identified data releases from education records and other sources would allow for identification of a particular individual.

Contractor shall have specific steps and methods used to de-identify or aggregate information to protect the confidentiality of the individuals. Contractor shall, at the request of the State, provide the State with a document that lists the steps and methods the Contractor shall use to de-identify the information.

Any aggregate or de-identified data that is not properly de-identified or aggregated and is transferred to a third party without the controls of this Section 10 for Subcontractors or publically released will be considered an Incident, misuse of Data, or unauthorized disclosure of Data.

Incident If Contractor becomes aware of an Incident, misuse of Data, or unauthorized disclosure involving any Data, it shall notify the CDE and OIS within one (1) calendar day and cooperate with the State regarding recovery, remediation, and the necessity to involve law enforcement, if any.

Unless Contractor can establish that Contractor or any of its Subcontractors is not the cause or source of the Incident, Contractor shall be responsible for the cost of notifying each person whose personal information may have been compromised by the Incident.

Contractor shall determine the cause of an Incident and produce a remediation plan to reduce the risk of incurring a similar type of breach in the future. Contractor shall present its analysis and remediation plan to the State within ten (10) calendar days of notifying the State of an Incident. The State reserves the right to adjust this plan, in its sole discretion. If Contractor cannot produce its analysis and plan within the allotted time, the State, in its sole discretion, may perform such analysis and produce a remediation plan, and Contractor shall reimburse the State for the reasonable costs thereof.

Disclosure of Data by Contractor or any Subcontractor for any reason may be cause for legal action by third parties against Contractor, the State, or their respective agents. Contractor shall indemnify, save, and hold harmless the State, its employees, and agents against any and all claims, damages, liability, and court awards including costs, expenses, and attorney fees incurred as a result of any act or omission by Contractor, or its employees, agents, Subcontractors, or assignees pursuant to this Section 10. Notwithstanding any other provision of this Contract, Contractor shall be liable to the State for all direct, consequential and incidental damages arising from an Incident caused by Contractor or its Subcontractors.

In the event of an Incident, Contractor shall provide the State or its designated representatives with access seven (7) days a week, twenty-four (24) hours a day, for the purpose of evaluating, mitigating or resolving the Incident.

Disallowed Activities A Contractor that uses, creates or acquires Data shall not knowingly engage in any of the following activities:

Contractor shall not collect, use or share Data for any purpose not specifically authorized by the Contract. Contractor may use Data for a purpose not strictly authorized by the Contract only with the written consent of the State and, for uses of PII not authorized by the Contract, with the written consent of the student (provided that the student is over the age of 18) or the student’s parent or legal guardian.

Contractor shall not use Data in a manner or disclose Data to any third party that is materially inconsistent with the Contractor’s privacy policy, except as stated in subsection 3, below, of this Article X, Section I.

Contractor may use Data in a manner that is inconsistent with Contractor’s privacy policy without violating the terms of this Contract provided that the use does not involve selling or using Data for Targeted Advertising or creating a personal profile of the student or educator, and the use is for one or more of the following purposes:

To ensure legal or regulatory compliance or to take precautions against liability.

To respond or to participate in the judicial process.

To protect the safety of users or others on Contractor’s website, online service, online application, or mobile application.

To investigate a matter related to public safety.

If Contractor uses or discloses Data in accordance with this Section I.3., Contractor shall notify the State within two calendar days of the use or disclosure of the Data.

Contractor shall not sell Data, except that this prohibition does not apply to the purchase, merger, or other type of acquisition of the Contractor, or any assets of the Contractor, by another entity, so long as the successor entity continues to be subject to the provisions of this Contract.

Contractor shall not use or share Data with any party for the purposes of Targeted Advertising to students or educators.

Contractor shall not use Data to create a personal profile of a student or educator other than for supporting the purposes authorized by the State or, for uses of PII, with the consent of the student (if the student is eighteen or older) or the student’s parent or legal guardian (if the student is under eighteen).

Data Security Contractor shall maintain a comprehensive information security program that is reasonably designed to protect the security, privacy, confidentiality and integrity of Data. At a minimum, the information security program shall include the requirements listed in this Section J – Data Security. In addition to these requirements, Contractor shall review, on a semi-annual basis, all OIS policies and procedures which OIS has promulgated pursuant to C.R.S. Sections 24-37.5-401 through 406 and 8 C.C.R. Section 1501-5 and posted at http://oit.state.co.us/ois, to ensure compliance with the standards and guidelines published therein. All Data received from CDE shall be considered part of the High data security category and Contractor shall comply with all requirements in OIS policies and procedures required for data categorized as High. Contractor shall cooperate, and shall cause its Subcontractors to cooperate, with the performance of security audit and penetration tests by OIS or its designee. In the event of conflicts or inconsistencies between this Section 10. Confidential Information and OIS policies and procedures, such conflicts or inconsistencies shall be resolved by giving priority to this Section 10. Confidential Information.

Contractor shall provide physical and logical protection for all related hardware, software, applications, and data that meet or exceed industry standards and requirements as set forth in this Contract. Contractor shall take full responsibility for the security of all Data in its possession, and shall hold the State harmless for any damages or liabilities resulting from the unauthorized disclosure or loss thereof. Contractor shall provide for the security of such Data, in a form acceptable to the State, including, without limitation, non-disclosure, use of appropriate technology, security practices, computer access security, data access security, data storage encryption, data transmission encryption, security inspections, network firewalls, intrusion detection (host and network), data security logging and monitoring systems, and audits.

Contractor shall provide the State or its designated representatives with access, subject to Contractor’s reasonable access security requirements, for the purpose of inspecting and monitoring access and use of Data, maintaining State systems, and evaluating physical and logical security control effectiveness.

Contractor shall perform, in a form reasonably acceptable to the State, current background checks on all of its respective employees and agents performing services or having access to Data provided under this Contract. The background checks must include, but are not limited to the following areas: County, State, National and Federal Criminal Records and a Sex Offender Registry Search. A background check performed within thirty (30) calendar days prior to the date such employee or agent begins performance on this Contract or obtains access to Data shall be deemed to be current.

Contractor shall have strong access controls in place.

Workstations and other data processing devices must automatically lock when not in use, and must be manually locked when left unattended.

Contractor shall protect all Data with a complex password. Contractor shall ensure passwords are confidential and prohibit the sharing of passwords. Passwords must not be written down or stored in an unsecure location. Contractor shall periodically change passwords and shall ensure passwords are not reused. Contractor shall have password locks for laptops and mobile devices.

Contractor shall disable and/or immediately delete unused and terminated user accounts. Contractor shall periodically assess account inactivity for potential stale accounts.

Contractor shall not share Data on display screens, during demonstrations or presentations, or when sharing screen shots for troubleshooting or other purposes.

Contractor shall implement annual intrusion penetration/vulnerability testing.

Contractor shall encrypt Data at rest on central computing systems. Contractor shall also encrypt any backup, backup media, removable media, tape or other copies. In addition, Contractor shall fully encrypt disks and storage for all laptops and mobile devices.

Contractor shall provide annual, mandatory security awareness and Data handling training for all of its employees/independent contractors handling Data pursuant to this Contract.

Contractor shall install and maintain on computers accessing or processing Data appropriate endpoint security anti-virus and anti-malware software. Contractor shall ensure all Contractor’s data processing systems, servers, laptops, PCs, and mobile devices are regularly scanned and have all security patches applied in a timely manner.

Contractor shall use a secure method such as Secure File Transfer Protocol (SFTP) or comparable method to transmit Data. Contractor shall never send Data via email or transport Data on removable media.

Contractor shall have physical security in buildings housing Data, along with controlled physical access to buildings and/or data centers.

Contractor’s devices used to copy or scan hard copies of Data must have encrypted storage. Contractor shall scrub storage devices when equipment is retired. Hard copies containing Data are discouraged and must be physically secured, not left unattended, and physically Destroyed.

Contractor shall protect Data stored in cloud based systems in the same manner as local Data. Use of free cloud based services is prohibited. Contractor shall use secondary encryption to protect Data in cloud storage. Cloud environments, when employed by Contractor, must be fully documented by Contractor and open to CDE inspection and verification. Access to Contractor’s cloud based computing environments is only permitted via restricted access, by VPN or least privileged access lists, and never accessible directly via the Internet.

Transparency Requirements Contractor acknowledges that the State will post this Contract to the State's website.

If Contractor collects, stores or accesses PII, Contractor must comply with the following requirements for transparency:

No later than thirty (30) calendar days after the signing of this Contract, Contractor shall provide the State with information detailing the purpose and the scope of the Contract, the types of PII that Contractor holds under this Contract, and the uses of PII under this Contract.

Contractor shall facilitate access to and correction of any factually inaccurate student PII in response to a request from a local education provider or from the State.

Contractor shall provide transparency to parents, school districts and the public about its collection and use of PII including posting the following information on its public website:

1. Contact information for an individual within Contract’s organization that can provide information on or answer questions related to the use of PII by Contractor.

2. An explanation of how the PII will be shared with Subcontractors or disclosed to any third party.

3. The types of PII Contractor collects, generates, or uses. This information must include all PII that is collected regardless of whether it is initially collected or ultimately held individually or in the aggregate.

4. An explanation of the PII, an explanation of how the PII is used, and the learning purpose for which the PII is collected and used.

Contractor shall update this information on its website as necessary to maintain accuracy. The Contractor acknowledges that the State will post this information on its public website.

Exclusions:

This Section 10 does not:

Impose a duty on a provider of an interactive computer service, as defined in 47 U.S.C Sec. 230, to review or enforce compliance with this Contract.

Impede the ability of a student to download, export, or otherwise save or maintain his or her own PII or documents.

Limit internet service providers from providing internet connectivity to public schools or to students and their families.

Prohibit a Contractor from marketing educational products directly to parents so long as the marketing does not result from the use of PII obtained by the Contractor as a result of providing its services under this Contract.

Impose a duty on a provider of an electronic store, gateway, marketplace, or other means of purchasing or downloading software or applications to review or enforce compliance with this Contract on that software or those applications.

This Section 10 does not prohibit Contractor’s use of PII to:

Use adaptive learning or design personalized or customized education.

Maintain, develop, support, improve, or troubleshoot a Contractor’s website, online service, online application, or mobile application.

Provide recommendations for school, education, or employment purposes, provided Contractor does not receive any payment or other consideration from a third party to make or support the recommendation.

Respond to a student’s request for information or feedback provided Contractor does not receive any payment or other consideration from a third party for the information or feedback.

Identify, for a student, institutions of higher education or scholarship providers that are seeking students who meet specific criteria, only if Contractor has obtained the written consent of the student or the student’s parent or legal guardian. Contractor may use PII for this purpose regardless of whether the institutions of higher education or scholarship providers provide payment or other consideration to the Contractor.

In accordance with the terms of this Contract, produce and distribute, free or for payment or other consideration, student class photos and yearbooks only to the State, students, parents or individuals authorized by parents.

Provide for the student, only with the express written consent of the student or the student’s parent or legal guardian given in response to clear and conspicuous notice, access to employment opportunities, educational scholarships or financial aid, or postsecondary education opportunities, regardless of whether the Contractor receives payment or other consideration from one or more third parties in exchange for the PII. This exception applies only to Contractors that provide nationally recognized assessments that postsecondary institutions of higher education use in making admissions decisions.

CONFLICTS OF INTEREST

Actual Conflicts of Interest Contractor shall not engage in any business or activities, or maintain any relationships that conflict in any way with the full performance of the obligations of Contractor under this Contract. Such a conflict of interest would arise when a Contractor or Subcontractor’s employee, officer or agent were to offer or provide any tangible personal benefit to an employee of the State, or any member of his or her immediate family or his or her partner, related to the award of, entry into or management or oversight of this Contract.

Apparent Conflicts of Interest Contractor acknowledges that, with respect to this Contract, even the appearance of a conflict of interest shall be harmful to the State’s interests. Absent the State’s prior written approval, Contractor shall refrain from any practices, activities or relationships that reasonably appear to be in conflict with the full performance of Contractor’s obligations under this Contract.

Disclosure to the State If a conflict or the appearance of a conflict arises, or if Contractor is uncertain whether a conflict or the appearance of a conflict has arisen,…