RFQ 220000000423 Retroreflectometer.docx

REQUEST FOR QUOTE # 220000000423

Michigan Department of Transportation (MDOT) Contract Services Division, Purchasing Unit Handheld Pavement Marking Retroreflectometer

Solicitation Manager Name: Ruth Thole Direct Phone: 517-335-4972 Email: TholeR@michigan.gov

This is a Request for Quote for the purchase of a Handheld Pavement Marking Retroreflectometer to measure the retroreflection and visibility of pavement markings.

RFQ Timeline

RFQ issue date

June 28, 2022

*SIGMA VSS will not allow proposal submission beyond the Bid Response Deadline.

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

Michigan.gov/MiProcurement

BID instructions

RFQ 220000000423 2

1. BID RESPONSE PREPARATION. The State recommends reading all RFQ materials prior to preparing a bid response, particularly these Bid Instructions and the Vendor Questions Worksheet. Bidders must follow these Bid Instructions and provide a complete response where indicated.

RFQ Structure and Documentation

Bidders company information Bidder to complete and submit by bid response deadline

Service specifications and requirements Bidder to complete and submit by bid response deadline

Pricing for services sought by the State through this RFQ Bidder to complete and submit by bid response deadline

2. CONTACT INFORMATION FOR THE STATE. The sole point of contact for the State concerning this RFQ is:

Ruth Thole, Solicitation Manager 517-335-4972 TholeR@michigan.gov Contacting any other State personnel, agent, consultant, or representative about this RFQ may result in bidder disqualification.

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

4. QUESTIONS. Bidder questions about this RFQ must be emailed to the Solicitation Manager at TholeR@michigan.gov no later than 12:00 pm ET on June 30, 2022. In the interest of transparency, only written questions are accepted. Answers to questions will be posted on www.michigan.gov/SIGMAVSS.

All bidder questions will be compiled and the questions and answers (Q&A) will be posted on SIGMA VSS. SIGMA will generate an automated email to notify bidders that Q&A have been posted.

5. DELIVERY OF BID. The bidder may submit its bid, all attachments, and any modifications or withdrawals electronically through www.michigan.gov/SIGMAVSS or by email to the Solicitation Manager at TholeR@michigan.gov. The bidder should submit all documents in a modifiable (native) format (examples include but are not limited to Microsoft Word or Excel and Google Docs or Sheets). In addition to submitting documents in a modifiable format, the bidder may also submit copies of documents in PDF. Attachment file size is limited to 6 MB per document. Bidder’s failure to submit a bid as required may result in disqualification.

The bid and attachments must be fully uploaded and submitted in SIGMAVSS or received in the email inbox prior to the bid response deadline. Do not wait until the last minute to submit a bid response, as the SIGMA VSS system requires the creation of an account and entry of certain information, in addition to uploading and submitting the materials. The SIGMA VSS system will not allow a bid to be submitted after the bid response deadline even if a portion of the bid response has been uploaded.

Questions on how to submit information or how to navigate in the SIGMA VSS system can be answered by calling (517) 284-0540 or (888) 734-9749. The Solicitation Manager will not provide assistance related to the submittal of the bid and all attachments on the day of the bid response deadline. Responsibility for a complete submission lies with the bidder.

6. EVALUATION PROCESS. The State will evaluate each bid response on a PASS/FAIL basis based on the following criteria:

If applicable, the State’s evaluation will include consideration of a bidder’s qualified disabled veterans/service-disabled veteran owned business(QDV/SDVOB) status under MCL 18.1261(8). Additional information on the SDVOB preference is available at: Michigan.gov/SDVOB.

7. ACCEPTANCE OF CONTRACT TERMS. The State strongly encourages strict adherence to the Contract Terms. The State reserves the right to deem a bid non-responsive for failure to accept the Contract Terms. Nevertheless, the bidder may submit proposed changes to the Contract Terms in track changes (i.e., visible edits) with an explanation of the bidder’s need for each proposed change. Failure to include track changes with an explanation of the bidder’s need for the proposed change constitutes the bidder’s acceptance of the Contract Terms. General statements, such as that the bidder reserves the right to negotiate the terms and conditions, may be considered non-responsive.

8. NOTICE OF DEFICIENCY. The State reserves the right to issue a Notice of Deficiency to bidders if the State determines after the proposal deadline that a portion of the RFQ was deficient, unclear, or ambiguous. Failure to respond to a Notice of Deficiency timely may be cause for disqualification.

9. CLARIFICATION REQUEST. The State reserves the right to issue a Clarification Request to a bidder to clarify its proposal if the State determines the proposal is not clear. Failure to respond to a Clarification Request timely may be cause for disqualification.

10. RESERVATIONS. The State reserves the right to:

a. Disqualify a bidder for failure to follow these instructions.

b. Discontinue the RFQ process at any time for any or no reason. The issuance of an RFQ, your preparation and submission of a bid, and the State’s subsequent receipt and evaluation of your bid does not commit the State to award a contract to you or anyone, even if all the requirements in the RFQ are met.

c. Consider late bids if: (i) no other bids are received; (ii) no complete bids are received; (iii) the State received complete bids, but the bids did not meet mandatory minimum requirements or technical criteria; or (iv) the award process fails to result in an award.

d. Consider an otherwise disqualified bid if no other bids are received.

e. Disqualify a bid based on: (i) information provided by the bidder in response to this RFQ; (2) the bidder’s failure to complete registration on www.michigan.gov/SIGMAVSS ; or (3) if it is determined that a bidder purposely or willfully submitted false or misleading information in response to the RFQ.

f. Refuse to award a contract to any bidder that has failed to pay State taxes or has outstanding debt with the State.

11. AWARD RECOMMENDATION. The contract will be awarded to the responsive and responsible bidder who receives a PASS for each criterion and has the lowest price.

The State will publish an Award Recommendation and Evaluation Synopsis, by posting a Notice of Intent to Award (NIA1) on www.michigan.gov/SIGMAVSS.

12. BID PROTEST. If you wish to initiate a protest of the award, you must submit your written protest to Carol Rademacher, Contract Services Division Administrator, at RademacherC@michigan.gov no later than 3:00 p.m., three (3) business days after posting the Award Recommendation and Evaluation Synopsis. The State reserves the right to adjust this timing and will publish any change.

Additional information about the protest process is available at www.michigan.gov/micontractconnect under the “Programs and Policies” link.

13. GENERAL CONDITIONS. The State will not be liable for any costs, expenses, or damages incurred by a bidder participating in this solicitation. The bidder agrees that its bid will be considered an offer to do business with the State in accordance with its bid, including the Contract Terms, and that its bid will be irrevocable and binding for a period of 180 calendar days from date of submission. If a contract is awarded to the bidder, the State may, at its option, incorporate any part of the bidder’s bid response into a contract. This RFQ is not an offer to enter into a contract. This RFQ may not provide a complete statement of the State’s environment or contain all matters upon which agreement must be reached. The bidder understands that their bid will become public record immediately upon receipt by the State. Other than verified trade secrets, bids submitted via www.michigan.gov/SIGMAVSS are the State’s property.

Michigan.gov/MiProcurement BID instructions

Michigan.gov/MiProcurement

RFQ 220000000423 2

vendor questions worksheet Provide a detailed response to each question. “You” and “company” refers to the bidder.

1. Contact Information

Bidder’s contact person during the RFQ process:

Name:

Title:

Address:

Phone Number:

Email:

2. Company Background Information

SIGMA VSS Vendor Number

Legal business name and address.

Business entity designation, e.g., sole proprietor, Inc., LLC, or LLP.

3. Qualified Disabled Veteran/Service-Disabled Veteran-Owned Business Program

Under MCL 18.1261, a “qualified disabled veteran” means a business entity that is 51% or more owned by 1 or more veterans with a service-connected disability. A “service-connected disability” means a disability incurred or aggravated in the line of duty in the active military, naval, or air service as described in 38 USC 101(16).

To demonstrate qualification as a qualified disabled veteran, you must provide:

In lieu of the documentation identified above, the Contractor may provide proof of certification by the National Veterans Business Development Council.

Does the bidder qualify as disabled veteran?

If yes, enter the names of documents submitted with your bid to demonstrate status as a qualified disabled veteran.

4. State of Michigan Experience

Does your company have experience working with the State of Michigan? If so, please provide a list of the projects/contracts you hold or have held with the State for the last 10 years.

5. Standard Contract Terms

☐ Do Not Agree with Contract Terms (attach written exceptions)

RFP 220000000559 – Vendor Questions Worksheet Page 2 of 8 Schedule A – SPECIFICATIONS Request for Quote (RFQ) 220000000394 Handheld Pavement Marking Retroreflectometer

This schedule identifies the anticipated requirements of any Purchase Order Contract resulting from this RFQ. The term “Contractor” in this document refers to a bidder responding to this RFQ, as well as the Contractor who is awarded the contract. The term “bidder” is used to identify where specific responses to the RFP are required.

IMPORTANT NOTE TO CONTRACTORS/BIDDERS: There are specific requirements for which acceptance must be simply acknowledged through a checkbox(es), and others that require further explanation. Click one checkbox and/or complete the entries as identified.

BACKGROUND

The Michigan Department of Transportation (MDOT), Transportation Systems Management and Operations Division, Traffic and Safety oversees the standards for placement and materials used for pavements on the state trunkline system. In the evaluation of new materials and field verification of performance a handheld pavement marking retroreflectometer is used to determine the retroreflectivity of the marking material at a specific time. These measurements are key as new minimum standards are being established by the Federal Highway Administration.

SCOPE

Contractor shall provide one new handheld pavement marking retroreflectometer.

1. REQUIREMENTS

1.1. Specifications

A. The handheld pavement marking retroreflectometer must be the latest model in current production, and must be one of the following make/models:

· Zehntner ZRM 6010

· Delta RTL 3500 Bidder’s Response: Indicate offered handheld pavement marking retroreflectometer:

Make and Model:

B. The handheld pavement marking retroreflectometer must:

· Measure retroreflectivity RL per ASTM E1710

· Measure retroreflectivity in wet conditions per ASTM E2177

· Measure retroreflectivity in continuous wetting per ASTM E2832

· Record GPS coordinates with each measurement

· Measure flat and profiled markings up to 15 mm

· Include an internal printer

· Include a high-resolution camera

· Include internal memory

· Be able to upload data to computer with USB or Bluetooth

· Be able to export data in CSV, KML, XML and Shape-file formats

· Include two (2) quick charge battery packs and charger

· Have the ability for verification and calibration of device by user C. A durable carrying case must be included with the handheld pavement marking retroreflectometer.

Bidder response:

List all exception(s):

1.2. Warranties

A. The Contractor shall provide a two-year warranty covering the handheld pavement marking retroreflectometer OR manufacturer’s warranty, whichever is greater.

B. The Contractor will explain its warranty period for the handheld pavement marking retroreflectometer, the process to report warranty issues, and how warranty repairs are handled.

Provide the length of the warranty:

Explain the process for reporting warranty issues:

Explain how any repairs or replacements are made, including timing, etc.

If the warranty is provided through a third-party or manufacturer, the Contractor must confirm that the manufacturer’s warranty passes through to the State:

Provide the name, address, contact name, phone number and email address of the party responsible for the warranty:

1.3. Recall Requirements

The Contractor must notify MDOT and assist with any removal and replacement of defective parts at no additional cost.

Bidder response:

List all exception(s):

2. SERVICE LEVELS

2.1. Timeframe for Delivery

The State prefers the handheld pavement marking retroreflectometer be delivered within 60 calendar days After Receipt of Order (ARO).

Bidder response: Provide a delivery timeframe Delivery will be within calendar days ARO.

2.2. Delivery

A. The handheld pavement marking retroreflectometer must be shipped F.O.B. Destination and all shipping and/or delivery fees must be included in the price of the handheld pavement marking retroreflectometer.

B. The handheld pavement marking retroreflectometer will be delivered to:

MDOT Traffic and Safety Division Van Wagoner Building 425 W. Ottawa St.

Lansing, MI 48933 If by USPS:

MDOT Traffic and Safety Division PO Box 30050 Lansing, MI 48909 C. Delivery will be accepted between the hours of 8:00 am and 4:00 pm Monday through Friday, except public holidays.

Bidder response:

List all exception(s):

3. PRICE TERM

Pricing per Schedule B is firm.

4. ORDER AUTHORIZING DOCUMENT

The appropriate document for authorizing an order will be a State issued Purchase Order.

5. ACCEPTANCE

5.1. Acceptance and Inspection

The State will visually inspect the unit/parts upon delivery to determine acceptance of the handheld pavement marking retroreflectometer.

5.2. Final Acceptance

Final Acceptance is defined in the Standard Contract Terms, Section 8.

Bidder response:

List all exception(s):

6. INVOICE AND PAYMENT

6.1. Invoice Requirements

All invoices submitted to the State must indicate: (a) date; (b) vendor-generated invoice number, (c) purchase order number; (d) quantity; (e) description of the item; (f) unit price; and (g) total price.

6.2. Payment Methods

As required by MCL 18.1283, the State will only disburse payments under this Contract through Electronic Funds Transfer (EFT).

The Contractor is responsible for ensuring current banking information is entered in the State vendor website: https://sigma.michigan.gov/webapp/PRDVSS2X1/AltSelfService.

6.3. Procedure

Invoices may be mailed to the attention of Mark Bott at:

Michigan Department of Transportation Traffic and Safety Division PO Box 30050 Lansing, MI 48909

OR

Invoices may be submitted via email to Mark Bott at BottM@michigan.gov.

Bidder response:

List all exception(s):

SCHEDULE B - PRICING

Request for Quote (RFQ) 220000000394 Handheld Pavement Marking Retroreflectometer

1. The vendor must provide pricing for the proposed handheld pavement marking retroreflectometer using the below Pricing Table. Failure to complete the pricing schedule as requested may result in disqualification of your bid response.

2. Price proposals must include all costs, including but not limited to, any one-time or set-up charges, fees, delivery, and potential costs that vendor may charge the State.

3. The vendor is encouraged to offer quick payment terms. The number of days must not include processing time for payment to be received by the vendor’s financial institution.

Bidder response:

4. By submitting its proposal, the vendor certifies that the prices were arrived at independently, and without consultation, communication, or agreement with any other vendor.

PRICING TABLE

STANDARD CONTRACT TERMS

Vendor is deemed to have accepted these terms upon the earliest of vendor’s: written acceptance of these terms; commencement of work; receipt of payment; or submission of a bid, proposal, or other offer in response to a solicitation.

The parties agree as follows:

1. General. Contractor’s failure to deliver or comply with any of these terms, may result in damages against the Contractor and the termination of the Contract.

2. Duties of Contractor. Contractor must perform the services and provide the deliverables described in Schedule A – Statement of Work (the “Contract Activities”). 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 Schedule A.

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; and (i) 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.

3. 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.

4. Relationship of the Parties. Contractor is an independent contractor and assumes all rights, obligations and liabilities set forth in the Contract. Contractor, its employees, and agents are not considered employees of the State.

5. Subcontracting and Assignment. Contractor may not delegate any of its obligations under the Contract without the prior written approval of the State.

6. Background Checks. Upon request, or as may be specified in Schedule A, 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.

7. Ordering. Contractor is not authorized to begin performance until receipt of a mutually signed Purchase Order Contract.

8. 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 Schedule A. 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.

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.

9. Delivery. Contractor must deliver all Contract Activities F.O.B. destination, within the State premises with transportation and handling charges paid by Contractor. All containers and packaging become the State’s exclusive property upon acceptance.

10. Risk of Loss and Title. Until final acceptance, title and risk of loss or damage to Contract Activities remains with Contractor. Contractor is responsible for filing, processing, and collecting all damage claims. The State will record and report to Contractor any evidence of visible damage. If the State rejects the Contract Activities, Contractor must remove them from the premises within 10 calendar days after notification of rejection. The risk of loss of rejected or non-conforming Contract Activities remains with Contractor. Rejected Contract Activities not removed by Contractor within 10 calendar days will be deemed abandoned by Contractor, and the State will have the right to dispose of it as its own property. Contractor must reimburse the State for costs and expenses incurred in storing or effecting removal or disposition of rejected Contract Activities.

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

12. 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 Schedule A. Invoices must include an itemized statement of all charges. The State is exempt from State sales tax for direct purchases and may be exempt from federal excise tax, if Services purchased under this Agreement are for the State’s exclusive use. Notwithstanding the foregoing, all fees are exclusive of taxes, and Contractor is responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state, or local governmental entity on any amounts payable by the State under this Contract.

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.

13. Liquidated Damages. Liquidated damages, if applicable, will be assessed as described in Schedule A. 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 one 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.

14. Termination for Cause. The State may terminate the Contract, in whole or in part, at any time for cause in the event Contractor fails to comply with any of these terms, including, without limitation, late delivery or performance, the delivery of defective or non-conforming Deliverables, or failure to provide the State with reasonable assurances of future performance. In the event of termination for cause, the State will not be liable to Contractor for any amount, and Contractor will be liable to the State for any and all damages, including but not limited to, administrative fees, court costs, attorney fees, and cover costs. Any ineffectual termination for cause is hereby deemed a termination for convenience, effective as of the same date and limited to those rights.

15. Termination for Convenience. The State may immediately terminate the Contract, in whole or in part, without penalty and for any reason, including but not limited to, appropriation or budget shortfalls. Upon termination for convenience, the State will only pay for those Deliverables, not including standard stock, then in progress and which cannot be returned under these terms.

16. Indemnification. Contractor must defend, indemnify and hold the State, all of its instrumentalities, 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 other requirements contained in the 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). Due to constitutional prohibitions, the State will not indemnify Contractor, or its employees or affiliates, for any reason whatsoever.

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

17. 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.

18. 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.

19. 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”) and may only be used as specifically required by the Contract; this definition is to be construed as broadly as possible. Upon request, Contractor must provide to the State, or its third-party designee, 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 purposes.

20. Confidentiality. Contractor agrees that any information, including State Data, disclosed by the State in relation to the Contract will be used only in the performance thereof. Contractor will keep the information confidential, will not disclose it to any third party, except as authorized by the State, and will only disclose it to those within its organization who need it for performance of the Contract. Upon completion or termination of the Contract, Contractor will return all such information to the State, or make such other disposition thereof as directed or approved by the State. No item furnished under the Contract, or tools, plans, designs, or specifications for producing the same, which have been specifically designed for or by the State, will be duplicated or used by Contractor. Nothing in this provision will restrict Contractor’s right to use or disclose any information which is or becomes known to the public without breach of this provision by Contractor or is rightfully obtained without restriction from other sources.

21. Records Maintenance, Inspection, Examination, and Audit. The State or its designee may audit Contractor to verify compliance with the Contract. Contractor must retain and provide to the State or its designee and the auditor general upon request, all financial and accounting records related to the Contract through the term of the Contract and for 4 years after the latter of termination, expiration, or final payment under the Contract or any extension.

22. Representations and Warranties. Contractor represents and warrants: (a) all Deliverables furnished under the Contract will conform to all specifications and industry standards, and will be free from defects, including, where applicable and without limitation, defects in material, workmanship, and title; (b) Contractor is the owner or licensee of all Deliverables it licenses, sells, or develops and Contractor has the rights necessary to convey title, ownership rights, or licensed use; (c) all Deliverables are provided free from any security interest, lien, or encumbrance and will continue in that respect; (d) the Deliverables will not infringe the patent, trademark, copyright, trade secret, or other proprietary rights of any third party; (e) Contractor must assign or otherwise transfer to the State or its designee any manufacturer's warranty for the Deliverables; (f) Contractor will not negate, exclude, limit, or modify in any warranty otherwise available to the State in any way; (g) the Deliverables are merchantable and fit for the State’s intended use ; (h) the Deliverables furnished will conform in all respects to samples, advertisements, and other forms of representation made to the State; (i) the Contract signatory has the authority to enter into the Contract; (j) all information furnished and representations made in connection with the Contract is true, accurate, and complete, and contains no false statements or omits any fact that would make the information misleading, and the (k) Contractor is neither currently engaged in nor will engage in the boycott of a person based in or doing business with a strategic partner as described in 22 USC 8601 to 8606. Contractor agrees to promptly replace or correct any Deliverables not conforming to the foregoing warranty, without expense to the State, when notified of such non-conformity by the State. A breach of this Section is a material breach of the Contract.

23. Compliance with Laws. Contractor must comply with all federal, state and local laws, rules and regulations.

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

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

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

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

28. Force Majeure. Neither party will be in breach of this Contract because of any failure arising from any disaster or acts of god that are beyond their control and without their fault or negligence. Each party will use commercially reasonable efforts to resume performance. Contractor will not be relieved of a breach or delay caused by its subcontractors. If immediate performance is necessary to ensure public health and safety, the State may immediately contract with a third party.

29. Website Incorporation. The State is not bound by any content on Contractor’s website unless expressly incorporated directly into the Contract.

30. Media Releases. News releases (including promotional literature and commercial advertisements) pertaining to the Contract or project to which it relates must not be made without prior written State approval, and then only in accordance with the explicit written instructions of the State. Contractor will provide the State, for its review, copies of all presentations or articles being submitted for publication at least 30 calendar days in advance.

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

32. Entire Agreement. The Contract and these terms constitute the sole and entire agreement of the parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings and agreements, both written and oral, with respect to such subject matter. No terms on any invoice, quote, purchase order, website, browse-wrap, shrink-wrap, click-wrap or other non-negotiated terms and conditions provided with any of the Deliverables (including software and hardware) or documentation, whether by Contractor, Contractor, subcontractor, or any third-party, will constitute a part or amendment of the Contract or is binding on the State or any authorized user for any purpose.

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

34. Waiver. Failure to enforce any provision of the Contract, or these terms, for any period of time will not constitute a waiver.

35. Survival. The provisions of these terms that impose continuing obligations, including warranties and representations, termination, indemnification, intellectual property, and confidentiality, will survive the expiration or termination of the Contract.

36. Contract Modification. This Contract may not be amended except by signed agreement between the parties (a “Contract Change Notice”).

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