RFQ 240000000073 Quote Instructions, Vendor Questions, Schedules A & B, Contract Terms.docx

Michigan.gov/MiProcurement REQUEST FOR Quote instructions Michigan Department of Transportation Contract Services Division, Purchasing Unit

Troxler 3440 Legacy or InstroTek Xplorer 2 3500 Surface Moisture Nuclear Density Gauges

Request for Quote No. 240000000073 Solicitation Manager Name: Anna Swanson Direct Phone: 517-230-2063 Email: swansona1@michigan.gov

This is a Request for Quote (RFQ) for:

Troxler 3440 Legacy or InstroTek Xplorer 2 3500 Surface Moisture Nuclear Density Gauges RFQ Timeline

*A bidder’s response received at 3:00:01 p.m. Eastern is late and subject to disqualification.

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

1. BID RESPONSE PREPARATION. The State recommends reading all RFQ materials prior to preparing a bid, particularly these Bid Instructions and the Vendor Questions Worksheet. Bidders must follow these Bid Instructions and provide a complete response to the items indicated in the RFQ Structure and Documentation table below. References and links to websites or external sources may not be used in lieu of providing the information requested in the RFQ within the bid response. Include the bidder’s company name in the header of all documents submitted with your quote. Note that all documents and information submitted as part of a bid response will become public record immediately upon receipt by the State. Bids received by the State may be posted on the State’s publicly available website after bidders are notified of the award recommendation.

RFQ Structure and Documentation

2. CONTACT INFORMATION FOR THE STATE. The sole point of contact for the State concerning this RFQ is listed on the Cover Page. 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 swansona1@michiga.gov no later than 3:00 p.m. Eastern Time on Monday, November 13, 2023. In the interest of transparency, only written questions are accepted. Answers to questions will be posted on www.michigan.gov/SIGMAVSS. Submit questions using the format below; a Microsoft Excel format or similar is suggested.

5. DELIVERY OF BID.

Electronic – The bidder must submit its quote, all attachments, and any modifications or withdrawals electronically through www.michigan.gov/SIGMAVSS. The price quote should be saved separately from all other quote documents. 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 quote as required may result in disqualification. The quote and attachments must be fully uploaded and submitted prior to the bid response deadline. Do not wait until the last minute to submit a quote, 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 identified in the solicitation Closing On/Closing Date fields (Summary view/Detail view), 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 response and all attachments on the day of the bid response deadline. Responsibility for a complete submission lies with the bidder. Note that all documents and information submitted in any manner as part of a bid response will become public record immediately upon receipt by the State. Bid response received may be posted by the State on the State’s publicly available website after bidders are notified of the award recommendation.

6. MANDATORY MINIMUM REQUIREMENTS. To avoid disqualification, the bidder must provide documentation to support the following:

Vendor must be authorized by the equipment manufacturer to provide service and repairs during the warranty period, and, must be authorized by the equipment manufacturer to provide technical guidance regarding the equipment and software.

· Are you the actual manufacturer, or authorized by the equipment manufacturer to provide service and repairs during the warranty period?

· Are you the actual equipment manufacturer, or authorized by the manufacturer to provide technical guidance regarding hardware and software?

Only bid responses meeting the mandatory minimum requirements will be considered for evaluation.

7. 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.

8. 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.

9. NOTICE OF DEFICIENCY. The State reserves the right to issue a Notice of Deficiency to bidders if the State determines after the bid response 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.

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

11. 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 response, and the State’s subsequent receipt and evaluation of your bid response 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 bid responses if: (i) no other bid responses are received; (ii) no complete bid responses are received; (iii) the State received complete bid responses, but the bid responses 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 response if no other bid responses are received.

e. Disqualify a bid response 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. Consider prior performance with the State in making its award decision.

g. Consider overall economic impact to the State when evaluating bid response pricing and in the final award recommendation. This includes but is not limited to: considering principal place of performance, number of Michigan citizens employed or potentially employed, dollars paid to Michigan residents, Michigan capital investments, job creation, tax revenue implications, and economically disadvantaged businesses.

h. Consider total-cost-of-ownership factors (e.g., transition and training costs) when evaluating bid response pricing and in the final award recommendation.

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

j. Enter into negotiations with one or more bidders on price, terms, technical requirements, or other deliverables.

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

l. Evaluate the bid response outside the scope identified in the Evaluation Process section of this document if the State receives only one bid response.

12. AWARD RECOMMENDATION. 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 or in the manner it was originally published.

13. DEBRIEF MEETING AND BID PROTEST. The State will post 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 electronically at radmacherc@michigan.gov no later than 3:00 pm, three (3) business days after posting the Award Recommendation and Evaluation Synopsis on SIGMA VSS. The State reserves the right to adjust this timing and will publish any change.

Additional information about the protest process is available at DTMB - Programs and Policies (michigan.gov) under the “Bidder Protests” link.

14. 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 response will be considered an offer to do business with the State in accordance with its bid response, including the Contract Terms, and that its bid response 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 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 response will become public record immediately upon receipt by the State. Other than verified trade secrets, bid responses submitted via www.michigan.gov/SIGMAVSS are the State’s property.

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:

Person authorized to receive and sign a resulting contract:

Name:

Title:

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)

Contractor must enter company name here.

Schedule A – statement of work contract activities Request for Quote (RFQ) No. 240000000073 Troxler 3440 Legacy or InstroTek Xplorer 2 3500 Surface Moisture Nuclear Density Gauges This schedule identifies the anticipated requirements of any 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 RFQ are required.

The Contractor must respond to each requirement or question and explain how it will fulfill each requirement. Attach any supplemental information and appropriately reference within your response.

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 complete the entries as identified.

BACKGROUND

The Michigan Department of Transportation (MDOT) uses Troxler model 3400 series and InstroTek Xplorer 2 3500 surface moisture nuclear density gauges for acceptance testing on road and bridge projects. Aging gauges are replaced as they reach their end-of-life expectancy.

REQUIREMENTS

· The Contractor must be the manufacturer or authorized representative/dealer. Are you the actual manufacturer? ☐ YES ☐ NO If not the manufacturer:

1. General Requirements

1.1. Product Specifications

The Contractor must provide the following:

Quantity: 5 Item: Surface Moisture Nuclear Density Gauges Model: Troxler 3440 Legacy or InstroTek Xplorer 2 3500 8 in. rod with 2 in. increments, with the following standard accessories:

· reference standard,

· drill rod,

· rod extraction tool,

· scraper plate,

· AC charger,

· DC charger,

· quick reference card,

· lock with two (2) keys,

· operator’s manual,

· two (2) extra battery packs per gauge.

Indicate model being offered:

Contractor must accept trade-in and dispose of five (5) Troxler 3440 density gauges.

New gauges must be shipped in transport cases, which will be used to return the trade-in gauges.

Bids on alternate brand or manufacturer lines will not be considered.

List all exception(s):

1.2. Warranties

Describe any warranties included in the bid – add additional rows as needed. Explain the process for reporting warranty issues and how the Contractor will handle any repairs or replacements.

The State reserves the right to require additional warranties other than those identified by the Contractor in its response to this RFQ.

Bidder must provide detailed information requested below:

Describe any warranties included in the bid:

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 and Procedures

The Contractor must describe any recall procedures.

Bidder must provide detailed information as requested in the above requirement(s). If none, enter N/A.

1.4. Quality Assurance Program

Explain your Quality Assurance Program(s).

Bidder must provide detailed information as requested in the above requirement(s):

1.5. Incentives

A. Trade-in Program. The Contractor must have a trade-in program and accept trade-in of MDOT’s existing gauges. The net price after a trade-in allowance will be considered when determining the low bid price for award.

The Contractor must arrange pickup of the trade-in equipment and pickup must be at no cost to MDOT.

Explain the trade-in procedure. Include details about disposal/recycling of the trade-in units.

B. Other Incentives. The Contractor may offer any special incentives or services including, but not limited to, return policies, quantity discounts, etc.

Explain any Other Incentives offered; if none, enter N/A:

2. Service Requirements

2.1. Timeframe for Delivery

The State prefers the surface moisture density gauges be delivered within 90 calendar days After Receipt of Order (ARO).

Delivery will be within calendar days ARO.

2.2. Delivery

A. The surface moisture density gauges must be shipped F.O.B. Destination and all shipping and/or delivery fees must be included in the price of the surface moisture density gauges.

B. The surface moisture density gauges will be delivered to:

MDOT, Construction and Technology Building Attention: Justin Foster, 8885 Ricks Road Lansing, Michigan 48917

C. Delivery will be expected between the hours of 8:00 am and 3:30 pm EST.

List all exception(s):

3. Pricing

3.1. Price Term

List all exception(s):

Pricing per Schedule B is firm.

4. Ordering

4.1. Authorizing Document

The appropriate order authorizing document will be a mutually signed purchase order contract.

List all exception(s):

5. Acceptance

5.1. Acceptance, Inspection and Testing

List all exception(s):

The State will use the following criteria to determine acceptance of the Contract Activities: The equipment will be subject to review and inspection by MDOT personnel after delivery for compliance with specifications and purchase order requirements.

6. Invoice and Payment

6.1. Invoice Requirements

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

6.2. Payment Methods

The State will make payment for Contract Activities 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 banking information is registered and current within the State vendor website: https://sigma.michigan.gov/webapp/PRDVSS2X1/AltSelfService

6.3. Procedure

Invoice(s) must submit via email to Traci Crego at cregot@michigan.gov.

List all exception(s):

7. Additional Requirements

7.1. Environmental and Energy Efficiency Product Standards

The Contractor must identify any energy efficient, bio-based, or otherwise environmentally friendly products used in the products. Contractor must include any relevant third-party certification, including the verification of a United States Department of Agriculture certified bio-based product label. Contractor must describe how products that meet these requirements are identified or otherwise labelled.

List all exception(s): (Add more rows as necessary.)

Bidder must provide detailed information as required above – either in this response box or identified here as an attachment to this RFQ.

7.2. Hazardous Chemical Identification

In accordance with the federal Emergency Planning and Community Right-to-Know Act, 42 USC 11001, et seq., as amended, the Contractor must provide a Material Safety Data Sheet listing any hazardous chemicals as defined in 40 CFR §370.2, to be delivered. Each hazardous chemical must be properly identified, including any applicable identification number, such as a National Stock Number or Special Item Number.

The Contractor must identify any hazardous chemicals that will be provided under any resulting contract.

7.3. Mercury Content

Pursuant to MCL 18.1261d, mercury-free products must be procured when possible. The Contractor must explain if it intends to provide products containing mercury, the amount or concentration of mercury, and whether cost competitive alternatives exist. If a cost competitive alternative does exist, the Contractor must provide justification as to why the particular product is essential. All products containing mercury must be labeled as containing mercury.

7.4. Brominated Flame Retardants

The State prefers to purchase products that do not contain brominated flame retardants (BFRs) whenever possible. The Contractor must disclose whether the products contain BFRs. Contractor must describe how products that meet these requirements are identified or otherwise labelled.

List all exception(s): (Add rows as necessary.)

7.5. Perfluoroalkyl and Polyfluoroalkyl Substances (PFAS)

The Contractor must confirm that the provided products do not intentionally contain PFAS. This consists of all components of the provided products, including product packaging.

Enter company name here Schedule B - Pricing Request For Quote No. 240000000073 Troxler 3440 Legacy or InstroTek Xplorer 2 3500 Surface Moisture Nuclear Density Gauges

1. The Contractor must provide a pricing schedule for the proposed Contract Activities using the chart below. The pricing schedule should be submitted in modifiable format (e.g., Microsoft Word or Excel), however you may also submit an additional pricing schedule in a non-modifiable format (e.g., PDF). Failure to complete the pricing schedule as requested may result in disqualification of your bid response.

2. Price bid responses must include all costs, including but not limited to, any one-time or set-up charges, fees, and potential costs that Contractor may charge the State (e.g., shipping and handling, per piece pricing, and palletizing).

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

Quick payment terms: % discount off invoice if paid within days after receipt of invoice.

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

Description

Measure

Surface Moisture Nuclear Density Gauges Model: Troxler 3440 Legacy or InstroTek Xplorer 2 3500 8 in. rod with 2 in. increments, with the following standard accessories: reference standard, drill rod, rod extraction tool, scraper plate, AC charger, DC charger, quick reference card, lock with two (2) keys, operator’s manual, and two (2) extra battery packs per gauge.

To be shipped in transport cases, which will be used to return disposal gauges.

All bids must be F.O.B. Destination with transportation charges prepaid on the order. Other F.O.B. terms will not be accepted and shall disqualify a Bidder from further consideration.

Lead Time for Delivery: _________days

STATE OF MICHIGAN

PROCUREMENT

STANDARD CONTRACT TERMS (SHORT FORM)

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.

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

2. Delivery, Title and Risk of Loss. Vendor must pay all costs associated with packaging, freight, and shipping, and must ship all deliverables F.O.B. destination, inside delivery, unless otherwise specified in the Contract. Title and risk of loss or damage to deliverables remains with Vendor until the deliverables have been received, inspected and accepted by the State in accordance with these terms. All containers and packaging become the State’s exclusive property upon final acceptance. Vendor shall ensure that all deliverables and services (“Deliverables”) are provided to the State by the date and time specified on the Contract. If Vendor fails to provide the Deliverables in accordance with the Contract, the State may reject the delivery and terminate the Contract without any termination charges or penalties, and Vendor must pay all associated costs, including, but not limited to, expedited routing costs, return shipping charges, the procurement of the Deliverables from another source, and any storage removal, or disposal expenses. The risk of loss of rejected or non-conforming Deliverables remains with Vendor. Rejected Deliverables not removed by Vendor within 10 calendar days will be deemed abandoned by Vendor, and the State will have the right to dispose of such Deliverables as its own property. Vendor is responsible for filing, processing, and collecting all damage claims.

3. Inspection. The State may inspect the work and activities of Vendor, and its subcontractors, at all reasonable times and places before, during and after delivery of the Deliverables. All Deliverables are subject to final inspection and acceptance by the State notwithstanding any prior payments or inspections. Final inspection will take place within 30 calendar days of the later of the delivery date, installation, or completion of services. If any Deliverables are non-conforming or defective, the State is entitled to, at its option and at Vendor’s expense: (a) a refund; (b) a credit; or (c) correction or replacement. If Vendor fails to correct defects or replace non-conforming Deliverables within 10 calendar days, the State may, in addition to its other remedies: (i) reject such Deliverables; (ii) accept such Deliverables at a discount; or (iii) make such corrections or replace such Deliverables and charge Vendor any resulting costs incurred by the State plus an additional 10% administrative fee.

4. Payment. Invoices must include an itemized statement of all charges. All undisputed amounts are payable within 45 calendar days of the later of the State’s: (a) receipt of an invoice; or (b) final acceptance of the Deliverables. The State is exempt from State sales tax for direct purchases and may be exempt from federal excise tax, if Deliverables purchased under the Contract are for the State’s exclusive use. Notwithstanding the foregoing, all fees are inclusive of taxes, and Vendor is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by federal, state or local government entities on any amounts payable by the State. The State may withhold payment in whole or in part for Deliverables the State determines are defective, untimely, or otherwise non-conforming to the Contract. All amounts due and payable by the State to Vendor shall be subject to deduction or setoff by the State against any claim the State may have against Vendor whether arising out of the Contract or any other transactions with the State. The State will only disburse payments through Electronic Funds Transfer (EFT). If Vendor does not register to receive payments at http://www.michigan.gov/SIGMAVSS, the State is not liable for failure to provide payment.

5. Warranties and Representations. Vendor 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) Vendor is the owner or licensee of all Deliverables it licenses, sells, or develops and Vendor 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) Vendor must assign or otherwise transfer to the State or its designee any manufacturer's warranty for the Deliverables; (f) Vendor 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) Vendor 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. Vendor 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.

6. Termination for Cause. The State may terminate the Contract, in whole or in part, at any time for cause in the event Vendor 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 Vendor for any amount, and Vendor 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.

7. Termination for Convenience. The State may immediately terminate the Contract, in whole or in part, without penalty and for any reason or no 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.

8. Indemnification. Vendor 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 Vendor (or any of Vendor’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 Vendor (or any of Vendor’s employees, agents, subcontractors, or by anyone else for whose acts any of them may be liable); and (d) any acts or omissions of Vendor (or any of Vendor’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 Vendor, or its employees or affiliates, for any reason whatsoever.

9. Confidentiality. Vendor agrees that any information, including State Data, disclosed by the State in relation to the Contract will be used only in the performance thereof. Vendor 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, Vendor 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 Vendor. Nothing in this provision will restrict Vendor’s right to use or disclose any information which is or becomes known to the public without breach of this provision by Vendor or is rightfully obtained without restriction from other sources.

10. Proprietary Rights. All materials, tools, plans, designs, specifications, equipment, and other property either furnished by the State to Vendor or paid for by the State, will remain the property of the State, but the Vendor assumes the risks of, and will be responsible for, any loss or damage, until returned in good order to the State. Such property must be safely stored and properly maintained by Vendor. Upon completion of this Contract, Vendor will return such property to the State or to any other entity as the State may direct, in the condition in which it was received, manufactured or procured by Vendor, except for reasonable wear and tear and except if such property has been incorporated into the Deliverables.

11. State Data. All data and information provided to Vendor 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, Vendor 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. Vendor will assume all costs incurred in compiling and supplying State Data. No State Data may be used for any marketing purposes.

12. Intellectual Property. Unless otherwise stated in the Contract, Vendor: (a) agrees that any computer program, software, documentation, copyrightable work, discoveries, inventions or improvements developed by Vendor resulting from supplying the Deliverables are the property of the State; and (b) hereby assigns all rights therein to the State. Vendor further agrees to provide the State with any assistance which the State may require to obtain patents or copyright registrations.

13. Limitation of Liability. The State is not liable for consequential, incidental, indirect, or special damages, regardless of the nature of the action. Under no circumstances will the State be liable for any amounts, in whatever form, in excess of the total aggregate value set forth in the Contract.

14. Records Maintenance, Inspection, Examination, and Audit. The State or its designee may audit Vendor to verify compliance with the Contract. Vendor 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.

15. Notices. All notices and other communications required or permitted under the 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.

16. Modifications. The Contract may not be amended except by signed agreement between the parties (a “Change Notice”).

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

18. Subcontracting and Assignment. Vendor may not delegate or assign any of its obligations or rights under the Contract without the prior written approval of the State.

19. Compliance with Laws and Policies. Vendor must comply with all applicable federal, state and local laws, rules and regulations. Vendor must also comply with all applicable State physical and IT security policies and standards, which will be made available upon request

20. 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. Vendor 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 the Contract.

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

22. Governing Law. The 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 the Contract are governed by Michigan law, excluding choice-of-law principles. Any dispute arising from the PO must be resolved in Michigan Court of Claims. Vendor hereby waives any objections, such as lack of personal jurisdiction or forum non conveniens. Vendor must appoint agents in Michigan to receive service of process.

23. Non-Exclusivity. Nothing contained in the Contract is intended nor will be construed as creating any requirements contract with Vendor. The Contract does not restrict the State or its agencies from acquiring similar, equal, or like Deliverables from other sources.

24. Force Majeure. Neither party will be in breach of the 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. Vendor 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.

25. 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. Vendor will provide the State, for its review, copies of all presentations or articles being submitted for publication at least 30 calendar days in advance.

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

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

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

29. 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.

30. Entire Contract. 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 Vendor, 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.

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