Revised 5/13/19

SPD-SP025

State of Georgia State Entity Standard Contract Form

Solicitation Title

Solicitation Number

Contract Number

1. This Contract is entered into between the State Entity and the Contractor named below:

State Entity’s Name (hereafter called State Entity)

Contractor’s Name

(hereafter called Contractor)

2. Contract to Begin:

Date of Completion:

Renewals:

3. Performance Bond, if any:

Other Bonds, if any:

4. Maximum Amount of this Contract:

Total Financial Obligation of the State Entity for the First Fiscal Year:

Total Financial Obligation of the State Entity for each Renewal Period if Renewed:

5. Authorized Person to Receive Contract Notices for State Entity:

Authorized Person to Receive Contract Notices for Contractor:

6. The parties agree to comply with the terms and conditions of the following attachments which are by this reference made a part of the Contract:

Attachment 1: State Entity Contract Terms and Conditions for Services

Attachment 2: Solicitation (referenced above)

Attachment 3: Contractor’s Final Response

IN WITNESS WHEREOF, this Contract has been executed by the parties hereto.

7.

Contractor

Contractor’s Name (If other than an individual, state whether a corporation, partnership, etc.)

By (Authorized Signature)

Date Signed

Printed Name and Title of Person Signing

Address

8.

State Entity

State Entity Name

By (Authorized Signature)

Date Signed

Printed Name and Title of Person Signing

Address

STATE OF GEORGIA

AGENCY STANDARD CONTRACT

Attachment 1 Contract Terms and Conditions for Services

A. DEFINITIONS AND GENERAL INFORMATION

1. Definitions. The following words shall be defined as set forth below:

(i) "Contractor" means the provider(s) of the Services under the Contract.

(ii) "Purchase Instrument" means the documentation issued by the State Entity to the

Contractor for a purchase of Services in accordance with the terms and conditions of the Contract. The Purchase Instrument should reference the Contract and may include an identification of the Services to be purchased, the time and location such Services will be utilized, and any other requirements deemed necessary by the State Entity.

(iii) "Response", "Contractor’s Response" or "Final Response" means the Contractor’s submitted response to the RFX, including any modifications or clarifications accepted by the State Entity.

(iv) "RFX" means the Request for Proposal, Request for Bid, or other solicitation document

(and any amendments or addenda thereto) specifically identified in the State Entity Standard Contract Form that was issued to solicit the Services that are subject to the Contract.

(v) "Services" means the services and deliverables as provided in the RFX and as further described by the Response and the Contract.

(vi) "State" means the State of Georgia, the State Entity, and any other authorized state entities issuing Purchase Instruments against the Contract.

(vii) "State Entity" means the State of Georgia entity identified in the State Entity Standard Contract Form to contract with the Contractor for the Services identified in the Contract.

(viii) "State Entity Standard Contract" or "Contract" means the agreement between the

State Entity and the Contractor as defined by the State Entity Standard Contract Form and its incorporated documents.

(ix) "State Entity Standard Contract Form" means the document that contains basic information about the Contract and incorporates by reference the applicable Contract Terms and Conditions, the RFX, Contractor’s Response to the RFX, the final pricing documentation for Services and any mutually agreed clarifications, modifications, additions and deletions resulting from final contract negotiations. No objection or amendment by a Contractor to the RFX requirements or the Contract shall be incorporated by reference into this Contract unless the State Entity has accepted the Contractor’s objection or amendment in writing. The State Entity Standard Contract Form is defined separately and referred to separately throughout the State Entity Standard Contract as a means of identifying the location of certain information. For example, the initial term of the Contract is defined by the dates in the State Entity Standard Contract Form.

2. Priority of Contract Provisions. Any pre-printed contract terms and conditions included on

Contractor’s forms or invoices shall be null and void.

3. Reporting Requirements. Contractor shall provide all reports required by the RFX. In addition, unless otherwise provided in the RFX, Contractor shall keep a record of the purchases made pursuant to the Contract and shall submit a quarterly written report to the State Entity.

B. DURATION OF CONTRACT

1. Contract Term. The Contract between the State Entity and the Contractor shall begin and end on the dates specified in the State Entity Standard Contract Form unless terminated earlier in accordance with the applicable terms and conditions. This Contract shall not be deemed to create a debt of the State for the payment of any sum beyond the fiscal year of performance or, in the event of a renewal, beyond the fiscal year of such renewal.

2.

C. DESCRIPTION OF SERVICES

1. Specifications in Bidding Documents. All Services shall be provided in accordance with the specifications contained in the RFX, the terms of the Contract, and as further described in Contractor's Response.

2. Product Shipment and Delivery. All products, if any, shall be shipped F.O.B. destination.

Destination shall be the location(s) specified in the RFX or any provided Purchase Instrument.

All items shall be at the Contractor’s risk until they have been delivered and accepted by the receiving entity. All items shall be subject to inspection on delivery. Hidden damage will remain the responsibility of the Contractor to remedy without cost to the State Entity, regardless of when the hidden damage is discovered.

3. Non-Exclusive Rights. The Contract is not exclusive. The State Entity reserves the right to select other contractors to provide services similar to the Services described in the Contract during the term of the Contract.

4. No Minimums Guaranteed. The Contract does not guarantee any minimum level of purchases or use of Services.

D. COMPENSATION

1. Pricing and Payment. The Contractor will be paid for Services provided pursuant to the Contract in accordance with the RFX and final pricing documents as incorporated into the State Entity Standard Contract Form and the terms of the Contract. Unless clearly stated otherwise in the Contract, all prices are firm and fixed and are not subject to variation. Prices include, but are not limited to freight, insurance, fuel surcharges and customs duties.

2. Billings. If applicable, and unless the RFX provides otherwise, the Contractor shall submit, on a regular basis, an invoice for the Services supplied to the State Entity under the Contract at the billing address specified in the Purchase Instrument or Contract. The invoice shall comply with all applicable rules concerning payment of such claims. The State Entity shall pay all approved invoices in arrears and in accordance with applicable provisions of State law.

Unless otherwise agreed in writing by the State Entity and the Contractor, the Contractor shall not be entitled to receive any other payment or compensation from the State Entity for Services provided by or on behalf of the Contractor under the Contract. The Contractor shall be solely responsible for paying all costs, expenses and charges it incurs in connection with its performance under the Contract.

3. Delay of Payment Due to Contractor’s Failure. If the State Entity in good faith determines that the Contractor has failed to perform or deliver Services as required by the Contract, the Contractor shall not be entitled to any compensation under the Contract until such Service is performed or delivered. In this event, the State Entity may withhold that portion of the Contractor’s compensation which represents payment for Services that were not performed or delivered. To the extent that the Contractor’s failure to perform or deliver in a timely manner causes the State Entity to incur costs, the State Entity may deduct the amount of such incurred costs from any amounts payable to Contractor. The State Entity’s authority to deduct such incurred costs or actual withholding of payment shall not in any way affect the State Entity’s authority to terminate the Contract.

4. Set-Off Against Sums Owed by the Contractor. In the event that the Contractor owes the

State Entity and/or the State any sum under the terms of the Contract, pursuant to any judgment, or pursuant to any law, the State Entity and/or the State may set off the sum owed against any sum owed by the State Entity to the Contractor in the State Entity’s sole discretion.

E. TERMINATION

1. Immediate Termination. This Contract will terminate immediately and absolutely if the State Entity determines that adequate funds are de-appropriated such that the State Entity cannot fulfill its obligations under the Contract, which determination is at the State Entity's sole discretion and shall be conclusive. Further, the State Entity may terminate the Contract for any one or more of the following reasons effective immediately without advance notice:

(i) The State Entity determines that the actions, or failure to act, of the Contractor, its agents, employees or subcontractors have caused, or reasonably could cause, life, health or safety to be jeopardized;

(ii) The Contractor fails to comply with confidentiality laws or provisions; and/or

(iii) The Contractor furnished any statement, representation or certification in connection with the Contract or the bidding process which is materially false, deceptive, incorrect or incomplete.

2. Termination for Cause. Subject to the right to cure within thirty (30) days as set forth under

Section E.3., the occurrence of any one or more of the following events shall constitute cause for the State Entity to declare the Contractor in default of its obligations under the Contract:

(i) The Contractor fails to deliver or has delivered nonconforming Services or fails to perform, to the State Entity’s satisfaction, any material requirement of the Contract or is in violation of a material provision of the Contract, including, but without limitation, the express warranties made by the Contractor;

(ii) The State Entity determines that satisfactory performance of the Contract is substantially endangered or that a default is likely to occur;

(iii) The Contractor fails to make substantial and timely progress toward performance of the

Contract;

(iv) The Contractor becomes subject to any bankruptcy or insolvency proceeding under federal or state law but only to the extent such declaration of default is allowed by applicable federal or state law; the Contractor terminates or suspends its business; or the State Entity reasonably believes that the Contractor has become insolvent or unable to pay its obligations as they accrue consistent with applicable federal or state law;

(v) The Contractor has failed to comply with applicable federal, state and local laws, rules, ordinances, regulations and orders when performing the Contract;

(vi) The Contractor has engaged in conduct that has or may expose the State Entity or the State to liability, as determined in the State Entity’s sole discretion; or

(vii) The Contractor has infringed any patent, trademark, copyright, trade dress or any other intellectual property rights of the State Entity, the State, or a third party.

3. Notice of Default. If there is a default event under Section E.2., the State Entity shall provide written notice to the Contractor requesting that the breach or noncompliance be remedied within thirty (30) days. If the breach or noncompliance is not remedied within the period of time specified in the written notice, the State Entity may:

(i) Immediately terminate the Contract without additional written notice; and/or

(ii) Procure substitute services from another source and charge the difference between the

Contract and the substitute contract to the defaulting Contractor; and/or,

(iii) Enforce the terms and conditions of the Contract and seek any legal or equitable remedies.

4. Termination Upon Notice. Following thirty (30) days’ written notice, the State Entity may terminate the Contract in whole or in part without the payment of any penalty or incurring any further obligation to the Contractor. Following termination upon notice, the Contractor shall be entitled to compensation, upon submission of invoices and proper proof of claim, for Services provided under the Contract to the State Entity up to and including the date of termination.

5. Termination Due to Change in Law. The State Entity shall have the right to terminate this

Contract without penalty by giving thirty (30) days’ written notice to the Contractor as a result of any of the following:

(i) The State Entity’s authorization to operate is withdrawn or there is a material alteration in the applicable program administered by the State Entity; and/or

(ii) The State Entity’s duties are substantially modified.

6. Payment Limitation in Event of Termination. In the event of termination of the Contract for any reason by the State Entity, the State Entity shall pay only those amounts, if any, due and owing to the Contractor for the Services actually rendered up to the date specified in the notice of termination for which the State Entity is obligated to pay pursuant to the Contract or Purchase Instrument. Payment will be made only upon submission of invoices and proper proof of the Contractor’s claim and State Entity’s written acceptance of services rendered. This provision in no way limits the remedies available to the State Entity under the Contract in the event of termination. The State shall not be liable for any costs incurred by the Contractor in its performance of the Contract, including, but not limited to, startup costs, overhead or other costs associated with the performance of the Contract.

7. The Contractor’s Termination Duties. Upon receipt of notice of termination or upon request of the State Entity, the Contractor shall:

(i) Cease work under the Contract and take all necessary or appropriate steps to limit disbursements and minimize costs, and furnish a report within thirty (30) days of the date of notice of termination, describing the status of all work under the Contract, including, without limitation, results accomplished, conclusions resulting therefrom, and any other matters the State Entity may require;

(ii) Immediately cease using and return to the State Entity, any personal property or materials, whether tangible or intangible, provided by the State Entity to the Contractor;

(iii) Comply with the State Entity’s instructions for the timely transfer of any active files and work product produced by the Contractor under the Contract to the State Entity or any replacement contractor(s);

(iv) Cooperate in good faith with the State Entity and its employees, agents and contractors during the transition period between the notification of termination and the substitution of any replacement contractor(s);

(v) Immediately return to the State Entity any payments made by the State Entity for

Services that were not delivered or rendered by the Contractor; and

(vi) Cure any defects identified by State Entity.

F. CONFIDENTIAL INFORMATION

1. Access to Confidential Data. The Contractor’s employees, agents and subcontractors may have access to confidential data maintained by the State to the extent necessary to carry out the Contractor's responsibilities under the Contract. The Contractor shall presume that all information received pursuant to the Contract is confidential unless otherwise designated by the State. If it is reasonably likely the Contractor will have access to the State’s confidential information, then:

(i) The Contractor shall provide to the State a written description of the Contractor's policies and procedures to safeguard confidential information;

(ii) Policies of confidentiality shall address, as appropriate, information conveyed in verbal, written, and electronic formats;

(iii) The Contractor must designate one individual who shall remain the responsible authority in charge of all data collected, used, or disseminated by the Contractor in connection with the performance of the Contract; and

(iv) The Contractor shall provide adequate supervision and training to its agents, employees and subcontractors to ensure compliance with the terms of the Contract.

The private or confidential data shall remain the property of the State or State Entity at all times.

All data at rest shall be located solely in data centers within locations under the jurisdiction of the United States. The Contractor shall not allow its affiliates, employees, subcontractors and business partners to store State or State Entity data on portable devices, including personal computers, except for devices that are used and kept only at its U.S. data centers. The Contractor shall permit its affiliates, employees, subcontractors and business partners to access State of Georgia data remotely only as required to provide technical support. Disclosure of Confidential Information will be restricted to Contractor’s affiliates, employees, subcontractors, and business partners to the extent necessary to carry out Contractor’s responsibilities under the Contract, provided that they are bound by written confidentiality obligations no less stringent than those in this Contract prior to any disclosure. Contractor understands and agrees that refusal or failure of its affiliates, employees, subcontractors, and business partners to sign such a nondisclosure agreement may result in termination of the Contract.

2. No Dissemination of Confidential Data. No confidential data collected, maintained, or used in the course of performance of the Contract shall be disseminated except as required by law provided that the Contractor submits written notification to State Entity as soon as practicable to allow State Entity an opportunity to respond to such request, and provided further that such disclosure does not relieve Contractor of its confidentiality obligations with respect to any other party. Any data supplied to or created by the Contractor shall be considered the property of the State. The Contractor must return any and all data collected, maintained, created or used in the course of the performance of the Contract, in whatever form it is maintained, promptly at the request of the State.

3. Subpoena. In the event that a subpoena or other legal process is served upon the Contractor for records containing confidential information, the Contractor shall promptly notify the State and cooperate with the State in any lawful effort to protect the confidential information.

4. Reporting of Unauthorized Disclosure. The Contractor shall immediately report to the State any unauthorized disclosure of confidential information.

5. Survives Termination. The Contractor’s confidentiality obligation under the Contract shall survive termination of the Contract.

G. INDEMNIFICATION

1. Contractor's Indemnification Obligation. The Contractor agrees to indemnify and hold harmless the State and State officers, employees, agents, and volunteers (collectively, "Indemnified Parties") from any and all costs, expenses, losses, claims, damages, liabilities, settlements and judgments, including reasonable value of the time spent by the Attorney General’s Office, related to or arising from:

(i) Any breach of the Contract;

(ii) Any negligent, intentional or wrongful act or omission of the Contractor or any employee, agent or subcontractor utilized or employed by the Contractor;

(iii) Any failure of Services to comply with applicable specifications, warranties, and certifications under the Contract;

(iv) The negligence or fault of the Contractor in design, testing, development, manufacture, or otherwise with respect to the Services provided under the Contract;

(v) Claims, demands, or lawsuits that, with respect to the goods (if any) or any parts thereof, allege product liability, strict product liability, or any variation thereof;

(vi) The Contractor’s performance or attempted performance of the Contract, including any employee, agent or subcontractor utilized or employed by the Contractor;

(vii) Any failure by the Contractor to comply with the "Compliance with the Law" provision of the Contract;

(viii) Any failure by the Contractor to make all reports, payments and withholdings required by federal and state law with respect to social security, employee income and other taxes, fees or costs required by the Contractor to conduct business in the State of Georgia or the United States;

(ix) Any infringement of any copyright, trademark, patent, trade dress, or other intellectual property right; or

(x) Any failure by the Contractor to adhere to the confidentiality provisions of the Contract.

2. Duty to Reimburse State Tort Claims Fund. To the extent such damage or loss as covered by this indemnification is covered by the State of Georgia Tort Claims Fund ("the Fund"), the Contractor (and its insurers) agrees to reimburse the Fund. To the full extent permitted by the Constitution and the laws of the State and the terms of the Fund, the Contractor and its insurers waive any right of subrogation against the State, the Indemnified Parties, and the Fund and insurers participating thereunder, to the full extent of this indemnification.

3. LIMITATION OF LIABILITY. TO THE EXTENT PERMITTED BY APPLICABLE LAW AND

EXCEPT AS OTHERWISE PROVIDED IN THIS CONTRACT OR ANY ATTACHMENTS

THERETO, NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR ANY

CONSEQUENTIAL, INDIRECT, SPECIAL, OR INCIDENTIAL DAMAGES OF ANY KIND OR

NATURE WHATSOEVER, INCLUDING LOSS OF INCOME, REVENUE, OR PROFIT,

WHETHER RISING IN BREACH OF CONTRACT, TORT, OR ANY OTHER THEORY.

4. Litigation and Settlements. Contractor shall be involved in the defense and settlement of any claim against the Indemnified Parties related to or arising from the indemnification obligations set forth in this Section G; provided, however, that (i) the Indemnified Parties shall be entitled to participate in the defense of such claim and the Attorney General shall represent and defend the Indemnified Parties, and (ii) Contractor shall obtain the prior written approval of the Indemnified Parties and the Georgia Attorney General before entering into any settlement of such claim or ceasing to defend against such claim. Notwithstanding the above, in the event a settlement demand is made by any person asserting a claim against the Indemnified Parties which Contractor agrees to accept, but which the Georgia Attorney General or the Indemnified Parties refuse to accept, the Contractor shall not be responsible for subsequent costs and indemnity amounts associated with the defense or settlement of the suit or claim and the Contractor’s liability for such claim shall be limited to the amount it would have contributed had the Georgia Attorney General and the Indemnified Parties consented to settlement together with any costs of defending such suit or claim up to the date of the refusal to settle.

5. Patent/Copyright Infringement Indemnification. Contractor shall, at its own expense, be entitled to and shall have the duty to participate in the defense of any suit instituted against the State and indemnify the State against any award of damages and costs made against the State by a final judgment of a court of last resort in such suit insofar as the same is based on any claim that any of the Services constitutes an infringement of any United States Letters Patent or copyright, provided the State gives the Contractor immediate notice in writing of the institution of such suit, permits Contractor to fully participate in the defense of the same, and gives Contractor all available information, assistance and authority to enable Contractor to do so.

Subject to approval of the Attorney General of the State of Georgia, the State Entity shall tender defense of any such action to Contractor upon request by Contractor. Contractor shall not be liable for any award of judgment against the State reached by compromise or settlement unless Contractor accepts the compromise or settlement. Contractor shall have the right to enter into negotiations for and the right to effect settlement or compromise of any such action, but no such settlement shall be binding upon the State unless approved by the State.

In case any of the Services is in any suit held to constitute infringement and its use is enjoined, Contractor shall, at its option and expense:

(i) Procure for the State the right to continue using the Services;

(ii) Replace or modify the same so that it becomes non-infringing; or

(iii) Remove the same and cancel any future charges pertaining thereto.

Contractor, however, shall have no liability to the State if any such patent, or copyright infringement or claim thereof is based upon or arises out of:

(i) Compliance with designs, plans or specifications furnished by or on behalf of the State

Entity as to the Services;

(ii) Use of the Services in combination with apparatus or devices not supplied by Contractor;

(iii) Use of the Services in a manner for which the same was neither designed nor contemplated; or

(iv) The claimed infringement of any patent or copyright in which the State Entity or any affiliate or subsidiary of the State Entity has any direct interest by license or otherwise.

6. Survives Termination. The indemnification obligation of the Contractor shall survive termination of the Contract.

H. INSURANCE

Contractor shall procure and maintain insurance which shall protect Contractor and the State of Georgia (as an additional insured) from any claims for bodily injury, property damage, or personal injury covered by the indemnification obligations set forth in the contract throughout the duration of the contract. Contractor shall procure and maintain the insurance policies described below at Contractor’s own expense and shall furnish the State Entity an insurance certificate listing the State of Georgia as certificate holder and as an additional insured. The insurance certificate must document that the Commercial General Liability insurance coverage purchased by Contractor includes contractual liability coverage applicable to the contract. In addition, the insurance certificate must provide the following information: the name and address of the insured; name, address, telephone number and signature of the authorized agent; name of the insurance company (authorized to operate in Georgia); a description of coverage in detailed standard terminology (including policy period, policy number, limits of liability, exclusions and endorsements); and an acknowledgment of notice of cancellation to the State Entity.

Contractor is required to maintain the following insurance coverage’s during the term of the contract:

1) Workers Compensation Insurance (Occurrence) in the amounts of the required statutory limits. In addition, the Contractor shall require all subcontractors occupying the premises or performing work under the Contract to obtain an insurance certificate showing proof of Workers Compensation Coverage with the following minimum coverage:

Bodily injury by accident - per employee $100,000;

Bodily injury by disease - per employee $100,000;

Bodily injury by disease – policy limit $500,000.

2) Commercial General Liability Policy with the following minimum coverage:

Each Occurrence Limit $1,000,000 Personal & Advertising Injury Limit $1,000,000 General Aggregate Limit $2,000,000 Products/Completed Ops. Aggregate Limit $2,000,000

3) Automobile Liability Combined Single Limit $1,000,000

4) Umbrella Liability $2,000,000

The foregoing policies shall contain a provision that coverage afforded under the policies will not be canceled, or not renewed or allowed to lapse for any reason until at least thirty (30) days prior written notice has been given to the State Entity. Certificates of Insurance showing such coverage to be in force shall be filed with the State Entity prior to commencement of any work under the Contract. The foregoing policies shall be obtained from insurance companies licensed to do business in Georgia and shall be with companies acceptable to the State Entity, which must have a minimum A.M. Best rating of A-. All such coverage shall remain in full force and effect during the term of the Contract and any renewal or extension thereof.

Within ten (10) business days of award, the Contractor must procure the required insurance and provide the State Entity with two (2) Certificates of Insurance. Certificates must reference the Contract number. The Contractor’s submitted pricing must include the cost of the required insurance. No Contract performance shall occur unless and until the required insurance certificates are provided. Further, Contractor shall provide State Entity current copies of Certificates of Insurance within ten (10) days of request by the State Entity.

I. RESERVED

J. WARRANTIES

1. Construction of Warranties Expressed in the Contract with Warranties Implied by Law.

All warranties made by the Contractor and/or subcontractors in all provisions of the Contract and the Contractor’s Response, whether or not the Contract specifically denominates the Contractor’s and/or subcontractors’ promise as a warranty or whether the warranty is created only by the Contractor’s affirmation or promise, or is created by a description of the Services to be provided, or by provision of samples to the State shall not be construed as limiting or negating any warranty provided by law, including without limitation, warranties which arise through course of dealing or usage of trade, the warranty of merchantability, and the warranty of fitness for a particular purpose. The warranties expressed in the Contract are intended to modify the warranties implied by law only to the extent that they expand the warranties applicable to the Services provided by the Contractor. The provisions of this section apply during the term of the Contract and any extensions or renewals thereof.

2. Warranty – Nonconforming Services and Goods. All Services and any goods delivered by

Contractor to the State Entity shall be free from any defects in design, material, or workmanship.

If any Services or goods offered by the Contractor are found to be defective in material or workmanship, or do not conform to Contractor’s warranty, the State Entity shall have the option of returning, repairing, or replacing the defective Services or goods at Contractor’s expense.

Payment for Services and any goods shall not constitute acceptance. Acceptance by the State Entity shall not relieve the Contractor of its warranty or any other obligation under the Contract.

3. Compliance with Federal Safety Acts. Contractor warrants and guarantees to the State that the Services provided under the Contract are in compliance with Sections 5 and 12 of the Federal Trade Commission Act; the Fair Packaging and Labeling Act; the Federal Food, Drug, and Cosmetic Act; the Consumer Product Safety Act; the Federal Environmental Pesticide Control Act; the Federal Hazardous Substances Act; the Fair Labor Standards Act; the Wool Products Labeling Act; the Flammable Fabrics Act; the Occupational Safety and Health Act; the Office of Management and Budget A-110 Appendix A; and the Anti-Kickback Act of 1986.

4. Originality and Title to Concepts, Materials, and Goods Produced. Contractor represents and warrants that all the concepts, materials, goods and Services produced, or provided to the State pursuant to the terms of the Contract shall be wholly original with the Contractor or that the Contractor has secured all applicable interests, rights, licenses, permits or other intellectual property rights in such concepts, materials and works. The Contractor represents and warrants that the concepts, materials, goods and Services and the State’s use of same and the exercise by the State of the rights granted by the Contract shall not infringe upon any other work, other than material provided by the Contract to the Contractor to be used as a basis for such materials, or violate the rights of publicity or privacy of, or constitute a libel or slander against, any person, firm or corporation and that the concepts, materials and works will not infringe upon the copyright, trademark, trade name, trade dress patent, literary, dramatic, statutory, common law or any other rights of any person, firm or corporation or other entity. The Contractor represents and warrants that it is the owner of or otherwise has the right to use and distribute the goods and Services contemplated by the Contract.

5. Conformity with Contractual Requirements. The Contractor represents and warrants that the Services provided in accordance with the Contract will appear and operate in conformance with the terms and conditions of the Contract.

6. Authority to Enter into Contract. The Contractor represents and warrants that it has full authority to enter into the Contract and that it has not granted and will not grant any right or interest to any person or entity that might derogate, encumber or interfere with the rights granted to the State and the State Entity.

7. Obligations Owed to Third Parties. The Contractor represents and warrants that all obligations owed to third parties with respect to the activities contemplated to be undertaken by the Contractor pursuant to the Contract are or will be fully satisfied by the Contractor so that the State and the State Entity will not have any obligations with respect thereto.

8. Title to Property. The Contractor represents and warrants that title to any property assigned, conveyed or licensed to the State is good and that transfer of title or license to the State is rightful and that all property shall be delivered free of any security interest or other lien or encumbrance. Title to any supplies, materials, or equipment shall remain in the Contractor until fully paid for by the State Entity. Except as otherwise expressly authorized by the State Entity, all materials produced by Contractor personnel in performance of Services, including but not limited to software, charts, graphs, diagrams, video tapes and other project documentation shall be deemed to be work made for hire and shall be the property of the State of Georgia.

9. Industry Standards. The Contractor represents and expressly warrants that all aspects of the

Services provided or used by it shall at a minimum conform to the standards in the Contractor’s industry. This requirement shall be in addition to any express warranties, representations, and specifications included in the Contract, which shall take precedence.

10. Contractor's Personnel and Staffing. Contractor warrants that all persons assigned to perform Services under this Contract are either lawful employees of Contractor or lawful employees of a subcontractor authorized by the State Entity as specified in the RFX. All persons assigned to perform Services under this Contract shall be qualified to perform such Services.

Personnel assigned by Contractor shall have all professional licenses required to perform the Services.

11. State Security. State Entity requires that a criminal background investigation be made of any and all Contractor personnel utilized to provide Services to the State. Contractor represents and warrants that Contractor shall refrain from assigning personnel to any task under this Contract if such investigation reveals a disregard for the law or other background that indicates an unacceptable security risk as determined by the State. The Contractor’s employees, agents and subcontractors may be granted access to state computers, hardware, software, programs and/or information technology infrastructure or operations to the extent necessary to carry out the Contractor's responsibilities under the Contract. Such access may be terminated at the sole discretion of the State. The Contractor shall provide immediate notice to State Entity of any employees, agents and/or subcontractors suspected of abusing or misusing such access privilege. The Contractor represents and warrants that Contractor shall provide notice to State Entity of the changed status of any employee, agent or subcontractor granted access to state computers, hardware, software, programs and/or information technology infrastructure or operations, including, but not limited to, termination or change of the position or contract relationship.

12. Use of State Vehicles. Contractor warrants that no State vehicles will be used by Contractor for the performance of Services under this Contract. Contractor shall be responsible for providing transportation necessary to perform all Services.

K. RESERVED

L. CONTRACT ADMINISTRATION

1. Order of Preference. In the case of any inconsistency or conflict among the specific provisions of the State Entity Standard Contract Terms and Conditions (including any amendments accepted by both the State Entity and the Contractor attached hereto), the RFX (including any subsequent addenda), and the Contractor’s Response, any inconsistency or conflict shall be resolved as follows:

(i) First, by giving preference to the specific provisions of the State Entity Standard Contract

Terms and Conditions.

(ii) Second, by giving preference to the specific provisions of the RFX.

(iii) Third, by giving preference to the specific provisions of the Contractor’s Response, except that objections or amendments by a Contractor that have not been explicitly accepted by the State Entity in writing shall not be included in this Contract and shall be given no weight or consideration.

2. Intent of References to Bid Documents. The references to the parties' obligations, which are contained in this document, are intended to supplement or clarify the obligations as stated in the RFX and the Contractor’s Response. The failure of the parties to make reference to the terms of the RFX or the Contractor’s Response in this document shall not be construed as creating a conflict and will not relieve the Contractor of the contractual obligations imposed by the terms of the RFX and the Contractor’s Response. The contractual obligations of the State Entity cannot be implied from the Contractor’s Response.

3. Compliance with the Law. The Contractor, its employees, agents, and subcontractors shall comply with all applicable federal, state, and local laws, rules, ordinances, regulations and orders now or hereafter in effect when performing under the Contract, including without limitation, all laws applicable to the prevention of discrimination in employment and the use of targeted small businesses as subcontractors or contractors. The Contractor, its employees, agents and subcontractors shall also comply with all federal, state and local laws regarding business permits and licenses that may be required to carry out the work performed under the Contract. Contractor and Contractor's personnel shall also comply with all State and State Entity policies and standards in effect during the performance of the Contract, including but not limited to the State Entity’s policies and standards relating to personnel conduct, security, safety, confidentiality, and ethics. Further, the provisions of O.C.G.A. Section 45-10-20 et seq. have not and must not be violated under the terms of this Contract.

4. Drug-free Workplace. The Contractor hereby certifies as follows:

(i) Contractor will not engage in the unlawful manufacture, sale, distribution, dispensation, possession, or use of a controlled substance or marijuana during the performance of this Contract; and

(ii) If Contractor has more than one employee, including Contractor, Contractor shall provide for such employee(s) a drug-free workplace, in accordance with the Georgia Drug-free

Workplace Act as provided in O.C.G.A. Section 50-24-1 et seq., throughout the duration of this Contract; and

(iii) Contractor will secure from any subcontractor hired to work on any job assigned under this Contract the following written certification: "As part of the subcontracting agreement with (Contractor's Name), (Subcontractor's Name) certifies to the contractor that a drug-free workplace will be provided for the subcontractor's employees during the performance of this Contract pursuant to paragraph 7 of subsection (b) of Code Section 50-24-3."

Contractor may be suspended, terminated, or debarred if it is determined that:

(i) Contractor has made false certification here in above; or

(ii) Contractor has violated such certification by failure to carry out the requirements of

O.C.G.A. Section 50-24-3(b).

5. Amendments. The Contract may only be amended in writing from time to time by mutual consent of the parties.

6. Third Party Beneficiaries. There are no third-party beneficiaries to the Contract. The Contract is intended only to benefit the State Entity, the State, and the Contractor.

7. Choice of Law and Forum. In the event a dispute arises between the parties regarding this Contract, the parties shall not arbitrate the dispute. This Contract shall be governed and construed in accordance with the laws of Georgia, excluding that State’s choice of law principles, and all claims relating to or arising out of this Contract, or the breach thereof, whether sounding in contract, tort or otherwise, shall likewise be governed by the laws of Georgia, excluding that State’s choice of laws principles. In the event any proceeding of a quasi-judicial or judicial nature is commenced in connection with this Contract, such proceeding shall solely be brought in a court or other forum of competent jurisdiction within Fulton County, Georgia. Each party expressly submits and consents in advance to such jurisdiction and waives any objection based upon lack of personal jurisdiction, improper venue or forum non-conveniens. This provision shall not be construed as waiving any immunity to suit or liability, including without limitation sovereign immunity, which may be available to the State.

9. Parties' Duty to Provide Notice of Intent to Litigate and Right to Demand Mediation. In addition to any dispute resolution procedures otherwise required under this Contract or any informal negotiations which may occur between the State and the Contractor, no civil action with respect to any dispute, claim or controversy arising out of or relating to this Contract may be commenced without first giving fourteen (14) calendar days written notice to the State of the claim and the intent to initiate a civil action. At any time prior to the commencement of a civil action, either the State or the Contractor may elect to submit the matter for mediation. Either the State or the Contractor may exercise the right to submit the matter for mediation by providing the other party with a written demand for mediation setting forth the subject of the dispute. The parties will cooperate with one another in selecting a mediator and in scheduling the mediation proceedings. Venue for the mediation will be in Atlanta, Georgia; provided, however, that any or all mediation proceedings may be conducted by teleconference with the consent of the mediator. The parties covenant that they will participate in the mediation in good faith, and that they will share equally in its costs; provided, however, that the cost to the State shall not exceed five thousand dollars ($5,000.00).

All offers, promises, conduct and statements, whether oral or written, made in the course of the mediation by any of the parties, their agents, employees, experts and attorneys, and by the mediator or employees of any mediation service, are inadmissible for any purpose (including but not limited to impeachment) in any litigation or other proceeding involving the parties, provided that evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or non-discoverable as a result of its use in the mediation. Inadmissibility notwithstanding, all written documents may be subject to the Georgia Open Records Act, O.C.G.A. Section 50-18- 70 et seq.

No party may commence a civil action with respect to the matters submitted to mediation until after the completion of the initial mediation session, forty-five (45) calendar days after the date of filing the written request for mediation with the mediator or mediation service, or sixty (60) calendar days after the delivery of the written demand for mediation, whichever occurs first.

Mediation may continue after the commencement of a civil action, if the parties so desire.

10. Assignment and Delegation. The Contract may not be assigned, transferred or conveyed in whole or in part without the prior written consent of the State Entity. For the purpose of construing this clause, a transfer of a controlling interest in the Contractor shall be considered an assignment.

11. Use of Third Parties. Except as may be expressly agreed to in writing by the State Entity, Contractor shall not subcontract, assign, delegate or otherwise permit anyone other than Contractor or Contractor's personnel to perform any of Contractor's obligations under this Contract or any of the work subsequently assigned under this Contract. Contractor is solely responsible for ensuring that its subcontractor performs as specified in the Contract. No subcontract which Contractor enters into with respect to performance of obligations or work assigned under the Contract shall in any way relieve Contractor of any responsibility, obligation or liability under this Contract and for the acts and omissions of all subcontractors, agents, and employees. All restrictions, obligations and responsibilities of the Contractor under the Contract shall also apply to the subcontractors. Any contract with a subcontractor must also preserve the rights of the State Entity. The State Entity shall have the right to request the removal of a subcontractor from the Contract for good cause.

12. Integration. The Contract represents the entire agreement between the parties. The parties shall not rely on any representation that may have been made which is not included in the Contract.

13. Headings or Captions. The paragraph headings or captions used in the Contract are for identification purposes only and do not limit or construe the contents of the paragraphs.

14. Not a Joint Venture. Nothing in the Contract shall be construed as creating or constituting the relationship of a partnership, joint venture, (or other association of any kind or agent and principal relationship) between the parties thereto. Each party shall be deemed to be an independent contractor contracting for the Services and acting toward the mutual benefits expected to be derived herefrom. Neither Contractor nor any of Contractor's agents, servants, employees, subcontractors or contractors shall become or be deemed to become agents, servants, or employees of the State. Contractor shall therefore be responsible for compliance with all laws, rules and regulations involving its employees and any subcontractors, including but not limited to employment of labor, hours of labor, health and safety, working conditions, workers' compensation insurance, and payment of wages. No party has the authority to enter into any contract or create an obligation or liability on behalf of, in the name of, or binding upon another party to the Contract.

15. Joint and Several Liability. If the Contractor is a joint entity, consisting of more than one individual, partnership, corporation or other business organization, all such entities shall be jointly and severally liable for carrying out the activities and obligations of the Contract, and for any default of activities and obligations.

16. Supersedes Former Contracts or Agreements. Unless otherwise specified in the Contract, this Contract supersedes all prior contracts or agreements between the State Entity and the Contractor for the Services provided in connection with the Contract.

17. Waiver. Except as specifically provided for in a waiver signed by duly authorized representatives of the State Entity and the Contractor, failure by either party at any time to require performance by the other party or to claim a breach of any provision of the Contract shall not be construed as affecting any subsequent right to require performance or to claim a breach.

18. Notice. Any and all notices, designations, consents, offers, acceptances or any other communication under this Contract will be in writing and will be deemed to have been duly given if delivered personally or by a nationally recognized courier service, electronically mailed or mailed by registered or certified mail, return receipt requested, postage prepaid, to the person who signed the Contract on behalf of the party at the address identified in the State Entity Standard Contract Form. Each such notice shall be deemed to have been provided:

(i) At the time it is actually received; or,

(ii) Within one (1) day in the case of a courier service utilizing guaranteed next day delivery;

or,

(iii) Within five (5) days after it is deposited in the U.S. Mail in the case of registered U.S.

Mail.

From time to time, the parties may change the name and address of the person designated to receive notice. Such change shall be in writing and provide the other party notice of the new address or designee and the date upon which such change will become effective.

19. Cumulative Rights. The various rights, powers, options, elections and remedies of any party provided in the Contract shall be construed as cumulative and not one of them is exclusive of the others or exclusive of any rights, remedies or priorities allowed either party by law, and shall in no way affect or impair the right of any party to pursue any other equitable or legal remedy to which any party may be entitled as long as any default remains in any way unremedied, unsatisfied or undischarged.

20. Severability. If any provision of the Contract is determined by a court of competent jurisdiction to be invalid or unenforceable, such…