Technology-Contract - Library Collection Analysis Tool.docx

TECHNOLOGY CONTRACT: Library Collection Analysis Tool Instructions to Offerors: Offeror should review SECTION SIX – CONTRACT INFORMATION for information related to NDUS’s contracting requirements and the following terms.

This copy of the Contract is to be included in the proposal and must be completed as follows:

1. State “Agree” or “Propose Alternate Language” for each section.

2. If proposing alternate language, include the proposed language through edits in the body of the section. Offerors may provide comments related to any proposed alternate language.

3. Exhibit A Scope of Work and Exhibit B Compensation Details do not need to be completed as part of your proposal response. These exhibits will be completed during contract negotiations.

4. An offeror may state that they accept NDUS’s contract as written.

North Dakota procurement statutes, rules, and policies allow some negotiation of the terms and conditions. No changes to the terms and conditions will be permitted without prior written approval from the NDUS.

PARTIES

The parties (PARTIES) to this contract (Contract) are the North Dakota University System, acting through its Core Technology Services (NDUS or STATE), and Name of Business, a type of business (e.g. legal name, a Delaware corporation) having its principal place of business at principal business address (CONTRACTOR). This contract for the purchase of goods or services shall be made available to all institutions of the North Dakota University System (NDUS) under the jurisdiction of the State Board of Higher Education, including these 11 institutions: Bismarck State College, Dakota College Bottineau, Dickinson State University, Lake Region State College, Mayville State University, Minot State University, North Dakota State College of Science, North Dakota State University, University of North Dakota, Valley City State University, and Williston State College. Participation in this open-ended contract is not mandated; therefore, the total estimated volume of this contract is not known. Should other North Dakota University System institutions or entities wish to purchase products/services from the resulting contract, the purchasing institution will be responsible for all order terms and conditions.

Offeror Response:

Agree or provide Alternate Language/Comments via Redline above

Definitions Note: Update as required.

a) Control Environment - is the set of standards, processes, and structures that provide the basis for carrying out internal control across the organization.

b) Data - means any information provided to, or collected, generated, stored, or processed by the system. Data includes user identification information and metadata which may contain Data or from which the NDUS’s Data may be ascertainable.

c) Data Breach - means any access, destruction, loss, theft, use, modification or disclosure of Data by an unauthorized party or that is in violation of Contract terms and/or applicable state or federal law.

d) Data Classification - means the process of defining data into relevant categories so the information has the appropriate controls in place to protect confidentiality, integrity, and availability based on the type of information.

e) Personally Identifiable Information (PII) - information about an individual maintained by an Institution, including that 1) can be used to distinguish or trace an individual‘s identity, such as name, social security number, date and place of birth, mother‘s maiden name, or biometric records; or (2) is linked or linkable to an individual, such as medical, educational, financial, and employment information.

f) Recovery Point Objective (RPO) - means the point in time to which Data can be recovered and/or systems restored when service is restored after an interruption. The Recovery Point Objective is expressed as a length of time between the interruption and the most proximate backup of Data immediately preceding the interruption. The RPO is detailed in the SLA.

g) Recovery Time Objective (RTO) - means the period of time within which information technology services, systems, applications and functions must be recovered following an unplanned interruption. The RTO is detailed in the SLA.

h) Software as a Service (SaaS). Any software or infrastructure hosted outside the State of North Dakota’s environment.

i) Users – means contractors, subcontractors, outsourcing vendors, consultants and others who have a need to use the software for the benefit of NDUS.

Offeror Response:

Agree or Provide Alternate Language/Comments via Redline above

Scope of Work CONTRACTOR, in exchange for the compensation paid by NDUS under this Contract, shall provide SOW description.

Offeror Response:

Agree or Provide Alternate Language/Comments via Redline above

Compensation-Payments Contractual Amount NDUS shall pay for the accepted services provided by CONTRACTOR under this Contract an amount not to exceed [Amount] (Contractual Amount). The Contractual Amount shall be paid according to the Compensation Details document attached as Exhibit B.

The Contractual Amount is firm for the duration of this Contract and constitutes the entire compensation due CONTRACTOR for performance of its obligations under this Contract regardless of the difficulty, materials or equipment required, including fees, licenses, overhead, profit and all other direct and indirect costs or expenses incurred by CONTRACTOR except as provided by an amendment to this Contract.

Retainage All deliverable payments shall be subject to [Number] % retainage. Retained amounts due to CONTRACTOR shall be paid upon Final Acceptance.

Invoicing The final cost set forth on each invoice shall be equivalent to the cost for each deliverable or service as specified in the Scope of Work. CONTRACTOR shall not submit an invoice for any deliverable or service specified in the Scope of Work that NDUS has not fully accepted.

Payment Payment made in accordance with this Compensation section shall constitute payment in full for the services and work performed and the deliverables provided under this Contract and CONTRACTOR shall not receive any additional compensation hereunder.

NDUS shall make payment under this Contract within forty-five (45) calendar days after receipt of an approved invoice.

Payment of an invoice by NDUS will not prejudice NDUS’s right to object to or question that or any other invoice or matter in relation thereto. CONTRACTOR's invoice will be subject to reduction for amounts included in any invoice or payment made which are determined by NDUS not to constitute allowable costs, on the basis of audits conducted in accordance with the terms of this Contract. At NDUS’s sole discretion, all payments shall be subject to reduction for amounts equal to prior overpayments to CONTRACTOR.

For any amounts that are or will become due and payable to NDUS by CONTRACTOR, including liquidated or other damages, NDUS reserves the right to deduct or set-off the amount owed from payments that are or will become due and payable to CONTRACTOR under this Contract.

Travel CONTRACTOR acknowledges travel expenses are covered by the Contractual Amount and shall not invoice NDUS for travel expenses.

OR

NDUS shall reimburse CONTRACTOR for expenses related to travel at amounts not to exceed those outlined below:

Lodging: Reimbursement shall not exceed the then-current, published GSA rate for the travel location. Copies of receipts are required for lodging reimbursement. NDUS shall not reimburse for incidental and miscellaneous expenses charged to the room, including: alcohol, telephone charges, or entertainment (e.g., movies).

Transportation: Air travel shall be reimbursed by NDUS at the actual cost of airfare for coach class travel only. CONTRACTOR shall make air travel arrangements at least fourteen (14) days in advance whenever possible. Reimbursement for rented, chartered, or contracted vehicle transportation shall be limited to reasonable rates as determined by NDUS.

Meals: Meals shall be paid on a per diem basis for each day of travel at then-current, published GSA per diem rate for the travel location. Per diem for the first and last day of travel shall be paid at seventy-five percent (75%) of the GSA per diem rate. Requests for per diem payments must include the start and end dates of travel, the location where the services are performed, and the allowable per diem amount for each trip on the billing/invoice.

NDUS’s project manager must approve Payment for any travel expenses that exceed the travel budget as agreed upon by the PARTIES prior to the travel.

Prepayment NDUS will not make any advance payments before performance by CONTRACTOR under this Contract.

Payment of Taxes by NDUS NDUS is not responsible for and will not pay local, state, or federal taxes. NDUS sales tax exemption number is E-2001. NDUS will furnish certificates of exemption upon request by CONTRACTOR.

Taxpayer ID CONTRACTOR’s federal employer ID number is: [Insert FEIN].

Purchasing Card NDUS may make a payment using a government credit card. CONTRACTOR will accept a government credit card without passing the processing fees for the government credit card back to NDUS.

Offeror Response:

Agree or Provide Alternate Language/Comments via Redline above

Term This Contract term (TERM or Initial Term) begins on [Month, Day], 20[Year] or its Effective Date, and ends on [Month, Day], 20[Year] or a specific time after Final Acceptance (for example: 3, 6, 9, or 12 months).

1. No Automatic Renewal This Contract will not automatically renew.

Renewal Option NDUS may renew this Contract upon satisfactory completion of the INITIAL TERM. NDUS reserves the right to execute up to [Number] options to renew this Contract under the same terms and conditions for a period of [Number] months each (RENEWAL TERM).

Extension Option NDUS reserves the right to extend this Contract for an additional period, not to exceed [Number] months, beyond the current termination date of this Contract.

Renegotiation Option Because it is unknown how long the solution and services will be used by NDUS and ongoing maintenance and support are required for as long as the system is operational NDUS and CONTRACTOR may renegotiate this Contract. After completion of the Initial Term, renewals, and extensions, NDUS and CONTRACTOR may renegotiate the pricing and Term of this Contract. New pricing and Term shall be mutually agreed upon by the PARTIES and executed in writing.

If, during the Initial Term, any renewal, or extension NDUS determines a realignment of the Term is needed (e.g. to align with NDUS’s fiscal biennium, SaaS period), the PARTIES may mutually agree, in writing, to a new Term with a termination date not to exceed the total available length of Contract including its Initial Term, renewals, and extensions.

Performance Review NDUS reserves the right to review the performance of the CONTRACTOR every two years starting on the effective date of the Contract.

Offeror Response:

Agree or Provide Alternate Language/Comments via Redline above

Time is of the Essence CONTRACTOR hereby acknowledges that time is of the essence for performance under this Contract unless otherwise agreed to in writing by the PARTIES.

Offeror Response:

Agree or Provide Alternate Language/Comments via Redline above

Termination

1. Termination by Mutual Agreement This Contract may be terminated by mutual consent of both parties executed in writing.

Early Termination in the Public Interest NDUS is entering into this Contract for the purpose of carrying out the public policy of the State of North Dakota, as determined by its State Board of Higher Education, Governor, Legislative Assembly, Agencies, and Courts. If this Contract ceases to further the public policy of the State of North Dakota, NDUS, in its sole discretion, by written notice to CONTRACTOR, may terminate this Contract in whole or in part.

Termination for Lack of Funding or Authority NDUS, by written notice to CONTRACTOR, may terminate the whole or any part of this Contract under any of the following conditions:

0. If funding from federal, state, or other sources is not obtained and continued at levels sufficient to allow for purchase of the services or supplies in the indicated quantities or term.

If federal or state laws or rules are modified or interpreted in a way that the services are no longer allowable or appropriate for purchase under this Contract or are no longer eligible for the funding proposed for payments authorized by this Contract.

If any license, permit, or certificate required by law or rule, or by the terms of this Contract, is for any reason denied, revoked, suspended, or not renewed.

Termination of this Contract under this subsection is without prejudice to any obligations or liabilities of either party already accrued prior to termination.

Termination for Cause.

NDUS may terminate this Contract effective upon delivery of written notice to CONTRACTOR, or any later date stated in the notice:

0. If CONTRACTOR fails to provide services required by this Contract within the time specified or any extension agreed to by NDUS; or If CONTRACTOR fails to perform any of the other provisions of this Contract, or so fails to pursue the work as to endanger performance of this Contract in accordance with its terms.

The rights and remedies of NDUS provided in this subsection are not exclusive and are in addition to any other rights and remedies provided by law or under this Contract.

Offeror Response:

Agree or Provide Alternate Language/Comments via Redline above

Force Majeure Neither Party shall be held responsible for delay or default caused by fire, riot, terrorism, pandemic (excluding COVID-19), acts of God, or war if the event was not foreseeable through the exercise of reasonable diligence by the affected Party, the event is beyond the Party’s reasonable control, and the affected Party gives notice to the other Party promptly upon occurrence of the event causing the delay or default or that is reasonably expected to cause a delay or default. If CONTRACTOR is the affected Party and does not resume performance within fifteen (15) days or another period agreed between the PARTIES, then NDUS may seek all available remedies, up to and including termination of this Contract pursuant to its Termination Section, and NDUS shall be entitled to a pro-rata refund of any amounts paid for which the full value has not been realized, including amounts paid toward software subscriptions, maintenance, or licenses.

Offeror Response:

Agree or Provide Alternate Language/Comments via Redline above

Injunctive Relief CONTRACTOR shall immediately report to NDUS any and all unauthorized disclosures or uses of NDUS’s confidential information or proprietary information of which CONTRACTOR or its staff is aware or has knowledge. CONTRACTOR acknowledges that any unauthorized publication or disclosure of NDUS’s confidential information or proprietary information to others may cause immediate and irreparable harm to NDUS. If CONTRACTOR should publish or disclose such confidential information or proprietary information without authorization, NDUS shall immediately be entitled to injunctive relief or any other remedies to which it is entitled under law or equity without requiring a cure period. CONTRACTOR shall indemnify, defend, and hold harmless NDUS from all damages, costs, liabilities, and expenses (including without limitation reasonable attorneys’ fees) caused by or arising from CONTRACTOR’s unauthorized use or disclosure of NDUS’s confidential information or proprietary information. As a condition to these indemnity obligations, NDUS will provide CONTRACTOR with prompt notice of any claim of which NDUS is aware and for which indemnification shall be sought under this Contract and shall cooperate in all reasonable respects with CONTRACTOR in connection with any such claim.

Offeror Response:

Agree or Provide Alternate Language/Comments via Redline above

Right to Withhold Amounts Otherwise Due if the Contractor is in Breach If CONTRACTOR fails to deliver Deliverables or to provide Services which satisfy CONTRACTOR’s obligations under this Contract, NDUS shall have the right to withhold any and all payments due under this Contract. NDUS may withhold any and all such payments due under this Contract to CONTRACTOR without penalty or work stoppage by CONTRACTOR, until such failure to perform is cured.

Offeror Response:

Agree or Provide Alternate Language/Comments via Redline above

Right to Remedies AND CUMULATION OF RIGHTS No remedy conferred by any of the specific provisions of this Contract is intended to be exclusive of any other remedy, and each and every remedy shall be cumulative and shall be in addition to every other remedy given under this Contract, now or in the future existing at law or in equity or by statute or otherwise.

Offeror Response:

Agree or Provide Alternate Language/Comments via Redline above

Non-Waiver Either party’s failure to exercise any of its rights under this Contract, its delay in enforcing any right, or its waiver of its rights on any occasion, shall not constitute a waiver of such rights on any other occasion. No course of dealing by either party in exercising any of its rights shall constitute a waiver thereof. No waiver of any provision of this Contract shall be effective unless it is in writing and signed by the party against whom the waiver is sought to be enforced.

Offeror Response:

Agree or Provide Alternate Language/Comments via Redline above

Indemnification CONTRACTOR agrees to defend, indemnify, and hold harmless the state of North Dakota, its agencies, institutions, officers and employees (State), from and against claims based on the vicarious liability of the State or its agents, but not against claims based on the State’s contributory negligence, comparative and/or contributory negligence or fault, sole negligence, or intentional misconduct. This obligation to defend, indemnify, and hold harmless does not extend to professional liability claims arising from professional errors and omissions. The legal defense provided by CONTRACTOR to the State under this provision must be free of any conflicts of interest, even if retention of separate legal counsel for the State is necessary. Any attorney appointed to represent the State must first qualify as and be appointed by the North Dakota Attorney General as a Special Assistant Attorney General as required under N.D.C.C. § 54-12-08. CONTRACTOR also agrees to reimburse the State for all costs, expenses and attorneys' fees incurred if the State prevails in an action against CONTRACTOR in establishing and litigating the indemnification coverage provided herein. This obligation shall continue after the termination of this Contract.

Offeror Response:

Agree or Provide Alternate Language/Comments via Redline above

Intellectual Property Infringement Indemnification

1. CONTRACTOR, at its own expense, shall defend and indemnify NDUS against claims that products furnished under this Contract infringe a United States patent or copyright or misappropriate trade secrets protected under United States law.

CONTRACTOR’s obligation shall not extend to a claim based on any alleged infringement arising from any: (a) additions, changes, or modifications to the services by or on behalf of NDUS; (b) incorporation of the services or any component thereof into any other product or process; or (c) use of the services other than as permitted by this Contract.

As to any product which is subject to a claim of infringement or misappropriation, CONTRACTOR may (a) obtain the right of continued use of the product for NDUS or (b) replace or modify the product to avoid the claim. If neither alternative is available on commercially reasonable terms, then, at the request of CONTRACTOR, any applicable Software license and its charges will end, NDUS will stop using the product, and will return the product to CONTRACTOR. Upon return of the product, CONTRACTOR will give NDUS credit for the price paid to CONTRACTOR, less a reasonable offset for use and obsolescence.

Offeror Response:

Agree or Provide Alternate Language/Comments via Redline above

Representations and Warranties CONTRACTOR represents and warrants to NDUS that neither CONTRACTOR, in connection with performing the services in performance of this Contract, nor the completed product delivered by CONTRACTOR, will infringe any patent, copyright, trademark, trade secret or other proprietary right of any person. CONTRACTOR further represents and warrants to NDUS that it will not use any trade secrets or confidential or proprietary information owned by any third party in performing the services related to this Contract or in delivery of the completed product unless CONTRACTOR has the authority to license, use or provide those trade secrets or confidential or proprietary information to NDUS. CONTRACTOR further represents and warrants to NDUS that neither CONTRACTOR nor any other company or individual performing services pursuant to this Contract is under any obligation to assign or give any work done under this Contract to any third party.

Offeror Response:

Agree or Provide Alternate Language/Comments via Redline above

Insurance Contractor shall secure and keep in force during the term of this agreement and Contractor shall require all subcontractors, prior to commencement of an agreement between Contractor and the subcontractor, to secure and keep in force during the term of this agreement, from insurance companies, government self-insurance pools or government self-retention funds, authorized to do business in North Dakota, the following insurance coverages:

1) Commercial general liability, including premises or operations, contractual, and products or completed operations coverages (if applicable), with minimum liability limits of $2,000,000 per occurrence.

2) Automobile liability, including Owned (if any), Hired, and Non-Owned automobiles, with minimum liability limits of $500,000 per person and $2,000,000 per occurrence. [If Applicable]

3) Workers’ compensation coverage meeting all statutory requirements. The policy shall provide coverage for all states of operation that apply to the performance of this contract.

4) Employer’s liability or “stop gap” insurance of not less than $2,000,000 as an endorsement on the workers compensation or commercial general liability insurance.

5) Professional errors and omissions with minimum limits of $1,000,000 per claim and in the aggregate, Contractor shall continuously maintain such coverage during the contact period and for three years thereafter. In the event of a change or cancellation of coverage, Contractor shall purchase an extended reporting period to meet the time periods required in this section. [If Applicable] The insurance coverages listed above must meet the following additional requirements:

1) Any deductible or self-insured retention amount or other similar obligation under the policies shall be the sole responsibility of the Contractor. Optional Provision: The amount of any deductible or self-retention is subject to approval by the State.

2) This insurance may be in policy or policies of insurance, primary and excess, including the so-called umbrella or catastrophe form and must be placed with insurers rated “A-” or better by A.M. Best Company, Inc., provided any excess policy follows form for coverage. Less than an “A-” rating must be approved by the State. The policies shall be in form and terms approved by the State.

3) The duty to defend, indemnify, and hold harmless the State under this agreement shall not be limited by the insurance required in this agreement.

4) The state of North Dakota and its agencies, officers, and employees (State) shall be endorsed on the commercial general liability policy on a primary and noncontributory basis, including any excess policies (to the extent applicable), as additional insured. The State shall have all the benefits, rights and coverages of an additional insured under these policies that shall not be limited to the minimum limits of insurance required by this agreement or by the contractual indemnity obligations of the Contractor.

5) A “Waiver of Subrogation” waiving any right to recovery the insurance company may have against the State.

6) The Contractor shall furnish a certificate of insurance to the undersigned State representative prior to commencement of this agreement. All endorsements shall be provided as soon as practicable.

The Contractor shall provide a certificate of insurance prior to commencement of this agreement and any required endorsements as soon as practicable electronically to:

INSERT NAME of State Agency and Contact Person INSERT EMAIL ADDRESS of Agency Contact Person

7) Failure to provide insurance as required in this agreement is a material breach of contract entitling the State to terminate this agreement immediately.

8) Contractor shall provide at least 30-day notice of any cancellation or material change to the policies or endorsements. Contractor shall provide on an ongoing basis, current certificates of insurance during the term of the contract. A renewal certificate will be provided 10 days prior to coverage expiration. Optional Provision: An updated, current certificate of insurance shall be provided in the event of any change to a policy.

Offeror Response:

Agree or Provide Alternate Language/Comments via Redline above

Cyber liability and security insurance In the event CONTRACTOR will host data, or provide for the hosting of data through a third-party entity, CONTRACTOR shall secure and maintain Cyber Liability and Security Insurance or equivalent insurance product(s), with minimum liability limits of not less than $5,000,000 and first party limits of not less than $1,000,000, that will provide, without cost to the CONTRACTOR or NDUS, an immediate response in the event of a data breach, including meeting all notification obligations of CONTRACTOR and NDUS and in the event the data breach involves personal information as defined by N.D.C.C. § 51-30-1(4), the insurance policy shall also make available free credit monitoring for any affected individual for a minimum period of one year. CONTRACTOR shall defend, indemnify, save and hold harmless, the NDUS, its officers, agents and employees from liability of any nature or kind, including costs and expenses, on account of a data breach arising from CONTRACTOR hosting, transmission, or control of data, any and all suits, claims, or damages of any character whatsoever, resulting from injuries or damages sustained by any person or persons or property by virtue of performance of this Contract.

Offeror Response:

Agree or Provide Alternate Language/Comments via Redline above

Notice All notices or other communications required under this Contract must be given by registered or certified mail and are complete on the date postmarked when addressed to the PARTIES at the following addresses:

Notice provided under this provision does not meet the notice requirements for monetary claims against NDUS found at N.D.C.C § 32-12.2-04.

Offeror Response:

Agree or Provide Alternate Language/Comments via Redline above

Confidentiality CONTRACTOR shall not use or disclose any information it receives from NDUS under this Contract that NDUS has previously identified as confidential or exempt from mandatory public disclosure except as necessary to carry out the purposes of this Contract or as authorized in advance by NDUS. NDUS shall not disclose any information it receives from CONTRACTOR that CONTRACTOR has previously identified as confidential and that NDUS determines in its sole discretion is protected from mandatory public disclosure under a specific exception to the North Dakota public records law, N.D.C.C. § 44-04. The duty of NDUS and CONTRACTOR to maintain confidentiality of information under this section continues beyond the Term of this Contract.

Offeror Response:

Agree or Provide Alternate Language/Comments via Redline above

Compliance with Public Records laws Under the North Dakota public records law and subject to the Confidentiality clause of this Contract, certain records may be open to the public upon request.

Public records may include: (a) records NDUS receives from CONTRACTOR under this Contract, (b) records obtained by either Party under this Contract, and (c) records generated by either Party under this Contract.

CONTRACTOR agrees to contact NDUS immediately upon receiving a request for information under the public records law and to comply with NDUS’s instructions on how to respond to such request.

Offeror Response:

Agree or Provide Alternate Language/Comments via Redline above

Independent Entity CONTRACTOR is an independent entity under this Contract and is not a NDUS employee for any purpose, including the application of the Social Security Act, the Fair Labor Standards Act, the Federal Insurance Contribution Act, the North Dakota Unemployment Compensation Law and the North Dakota Workforce Safety and Insurance Act. CONTRACTOR retains sole and absolute discretion in the manner and means of carrying out CONTRACTOR’s activities and responsibilities under this Contract, except to the extent specified in this Contract.

Offeror Response:

Agree or Provide Alternate Language/Comments via Redline above

Assignment and Subcontracts CONTRACTOR may not assign or otherwise transfer or delegate any right or duty without NDUS’s express written consent, provided, however, that CONTRACTOR may assign its rights and obligations hereunder in the event of a change of control or sale of all or substantially all of its assets related to this Contract, whether by merger, reorganization, operation of law, or otherwise. Should Assignee be a business or entity with whom NDUS is prohibited from conducting business, NDUS shall have the right to terminate in accordance with the Termination for Cause section of this Contract.

CONTRACTOR may enter subcontracts provided that any subcontract acknowledges the binding nature of this Contract and incorporates this Contract, including any attachments. CONTRACTOR is solely responsible for the performance of any subcontractor with whom CONTRACTOR contracts. CONTRACTOR does not have authority to contract for or incur obligations on behalf of NDUS.

Offeror Response:

Agree or Provide Alternate Language/Comments via Redline above

Spoliation – Notice of Potential Claims CONTRACTOR shall promptly notify NDUS of all potential claims that arise or result from this Contract. CONTRACTOR shall also take all reasonable steps to preserve all physical evidence and information that may be relevant to the circumstances surrounding a potential claim, while maintaining public safety, and grants to NDUS the opportunity to review and inspect such evidence, including the scene of an accident.

Offeror Response:

Agree or Provide Alternate Language/Comments via Redline above

Merger and Modification, Conflict in Documents This Contract, including the following documents, constitutes the entire agreement between the PARTIES. There are no understandings, agreements, or representations, oral or written, not specified within this Contract. This Contract may not be modified, supplemented or amended, in any manner, except by written agreement signed by both PARTIES.

Notwithstanding anything herein to the contrary, in the event of any inconsistency or conflict among the documents making up this Contract, the documents must control in this order of precedence:

1. The terms of this Contract as may be amended;

NDUS’s Solicitation Amendment #1 to Request for Proposal (“RFP”) number __________ dated ________;

NDUS’s Request for Proposal (“RFP”) number __________, dated __________;

CONTRACTOR’s proposal dated ____________ in response to RFP number _______________.

All automated end-user agreements (e.g., click-through, shrink-wrap, or browse-wrap) are specifically excluded and null and void. Clicking shall not represent acknowledgement or agreement to any terms and conditions contained in those agreements.

Offeror Response:

Agree or Provide Alternate Language/Comments via Redline above

Unanticipated Amendments If additional work is required within the scope of this Contract due to a legitimate unforeseen circumstance, NDUS shall provide CONTRACTOR a written description of the additional work and request CONTRACTOR to submit a proposal for accomplishing the scope of work. CONTRACTOR will not commence additional work until all PARTIES agree in writing.

Offeror Response:

Agree or Provide Alternate Language/Comments via Redline above

Severability If any term of this Contract is declared to be illegal or unenforceable by a court having competent jurisdiction, the validity of the remaining terms is unaffected and, if possible, the rights and obligations of the PARTIES are to be construed and enforced as if this Contract did not contain that term.

Offeror Response:

Agree or Provide Alternate Language/Comments via Redline above

Applicable Law and Venue This Contract is governed by and construed in accordance with the laws of the State of North Dakota. Any action to enforce this Contract must be adjudicated exclusively in the state District Court of Burleigh County, North Dakota. Each party consents to the exclusive jurisdiction of such court and waives any claim of lack of jurisdiction or forum non conveniens.

Offeror Response:

Agree or Provide Alternate Language/Comments via Redline above

Alternative Dispute Resolution – Jury Trial By entering into this Contract, NDUS does not agree to binding arbitration, mediation, or any other form of mandatory Alternative Dispute Resolution. The PARTIES may enforce the rights and remedies in judicial proceedings. NDUS does not waive any right to a jury trial.

Offeror Response:

Agree or Provide Alternate Language/Comments via Redline above

Attorney Fees and Costs In the event a lawsuit is instituted by NDUS to obtain performance under this Contract, and NDUS is the prevailing party, CONTRACTOR shall, except when prohibited by N.D.C.C. § 28-26-04, pay NDUS’s reasonable attorney fees and costs in connection with the lawsuit.

Offeror Response:

Agree or Provide Alternate Language/Comments via Redline above

Nondiscrimination - Compliance with Laws CONTRACTOR agrees to comply with all current and future applicable federal and state laws, rules, and policies, including those relating to nondiscrimination, accessibility and civil rights, including but not limited to N.D.C.C. Title 34 – Labor and Employment (specifically N.D.C.C. ch. 34-06.1 Equal Pay for Men and Women), the Americans with Disabilities Act, and the Rehabilitation Act (Section 508/SBHE Policy 1203.1).

CONTRACTOR agrees that all products or services delivered under this contract shall comply with the Web Content Accessibility Guidelines (WCAG) 2.1, Level AA (“the accessibility standards”) as set forth by the World Wide Web Consortium (W3C) no later than April 24, 2026. CONTRACTOR agrees to meet or exceed these accessibility standards and maintain compliance throughout the contract term including any renewals or extensions.

CONTRACTOR shall, prior to contract execution and upon request from NDUS, provide a current Voluntary Product Accessibility Template (VPAT) or substantially similar documentation certifying compliance with the accessibility standards. CONTRACTOR is responsible for updating the VPAT to reflect any modifications or upgrades to the product or service throughout the contract term and must notify NDUS of any changes that may affect compliance with the accessibility standards.

CONTRACTOR agrees to timely file all required reports, make required payroll deductions, and timely pay all taxes and premiums owed, including sales and use taxes, unemployment compensation and workers' compensation premiums. CONTRACTOR shall have and keep current all licenses and permits required by law during the Term of this Contract all licenses and permits required by law.

CONTRACTOR is prohibited from boycotting Israel for the duration of this Contract. (See N.D.C.C. § 54-44.4-15.) CONTRACTOR represents that is does not and will not engage in a boycotting Israel during the term of this Contract. If NDUS receives evidence that CONTRACTOR boycotts Israel, NDUS shall determine whether the company boycotts Israel. The foregoing does not apply to contracts with a total value of less than $100,000 or if CONTRACTOR has fewer than ten full-time employees.

CONTRACTOR’s failure to comply with this section may be deemed a material breach by CONTRACTOR entitling NDUS to terminate in accordance with the Termination for Cause section of this Contract.

Offeror Response:

Agree or Provide Alternate Language/Comments via Redline above

State Audit Pursuant to N.D.C.C. § 54-10-19, all records, regardless of physical form, and the accounting practices and procedures of CONTRACTOR relevant to this Contract are subject to examination by the North Dakota State Auditor, the Auditor’s designee, or Federal auditors, if required. CONTRACTOR shall maintain these records for at least three (3) years following completion of this Contract and be able to provide them upon reasonable notice. NDUS, State Auditor, or Auditor’s designee shall provide reasonable notice to CONTRACTOR prior to conducting examination.

Offeror Response:

Agree or Provide Alternate Language/Comments via Redline above

Right to Inspect Place of Business Note: Delete if not applicable.

At reasonable times, NDUS may inspect those areas of CONTRACTOR’s place of business that relate to the performance of this Contract. If NDUS makes an inspection, CONTRACTOR must provide reasonable assistance.

Offeror Response:

Agree or Provide Alternate Language/Comments via Redline above

Regulatory Standards Note: Include any additional technology standards or certifications that are specific to an institutional or business need.

CONTRACTOR shall comply with applicable regulatory standards.

1. Family Educational Rights and Privacy Act (FERPA) 20 U.S.C. § 1232g; 34 CFR Part 99: a Federal law that protects the privacy of student education records.

Health Insurance Portability and Accountability Act of 1996 (HIPAA): a federal law that required the creation of national standards to protect sensitive patient health information from being disclosed without the patient’s consent or knowledge.

Federal Rehabilitation Act Section 508/SBHE Policy 1203.1 Digital Accessibility Offeror Response:

Agree or Provide Alternate Language/Comments via Redline above

Effectiveness of Contract This Contract is not effective until fully executed by all PARTIES. If no start date is specified in the Term of Contract, the most recent date of the signatures of the PARTIES shall be deemed the Effective Date. The PARTIES agree and acknowledge that this agreement may be executed, electronically or physically, in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.

NDUS LEGAL REVIEW

BY:

Name:

Date:

EXHIBIT A – Scope of Work Note: If Exhibit A is not used, delete all text below and replace with “Reserved”.

This attachment is for the detailed Scope of Work (SOW) outlining deliverables to be produced as outcomes of the project, including description and acceptance criteria.

Modify these deliverables, including deliverable numbering and Exhibit B payment schedule to align with project approach.

When defining deliverables – see Technology Contract SOW Examples.

Typically, the deliverable completion dates are determined during the planning process and may still be undetermined at Contract signature time. Therefore, exact completion dates are not included in this template. However, if you choose to include them, copy section “d” from the Project Kickoff Meeting deliverable and modify to note exact due dates.

1. Deliverable 1: Project Kickoff Meeting

1. Description:

CONTRACTOR shall coordinate with NDUS to schedule a Kickoff Meeting in City Name, ND, with the core project and planning team. CONTRACTOR’s Project Manager shall lead the meeting. The Kickoff Meeting must facilitate the introduction of CONTRACTOR and NDUS individuals, and level-set understanding and awareness of project objectives, scope, governance, schedule, and project risks and issues.

Expectations of CONTRACTOR:

0. CONTRACTOR shall provide content to NDUS for a detailed agenda in advance of the meeting.

CONTRACTOR and NDUS shall facilitate the meeting, and discuss and further define, at a minimum, the following:

(a) Effective project communication

(b) Project vision, background, purpose, and objectives

(c) Project governance structure, and project roles and responsibilities

(d) Approach to creating the Project Management Plan

(e) Initial risk assessment Expectations of NDUS:

0. NDUS shall finalize the agenda and send agenda to invitees.

NDUS shall coordinate the logistics and co-facilitate the Kickoff Meeting.

NDUS’s Project Sponsor and project team members shall participate in the Kickoff Meeting.

Completion Date:

CONTRACTOR shall start work with NDUS within five (5) working days after the signing of this Contract to schedule the Kickoff Meeting.

Acceptance Criteria:

For the acceptance of this deliverable to occur, the Kickoff Meeting results in:

0. Facilitation of Kickoff Meeting using a clearly defined agenda An introduction of critical CONTRACTOR and NDUS resources assigned to the project Review of NDUS’s Project Charter to include project governance structure, roles and responsibilities, project purpose, objectives, and scope Discussion of communications approach and structure Discussion of known project risks and issues Deliverable 2: Project Management Plan

1. Description:

CONTRACTOR shall participate, contribute, and collaborate with NDUS, led by NDUS’s Project Manager, to develop a baseline plan. The Project Management Plan will include the project schedule.

Expectations of CONTRACTOR:

0. CONTRACTOR shall participate, contribute, and collaborate with NDUS to provide content that includes, at a minimum, the following:

(a) Management plans to control cost, schedule, scope, and quality

(b) Governance structure for the project

(c) Roles and responsibilities of the project team

(d) Integrated change control process

(e) Communication management plan

(f) Risk management plan

(g) Issue management plan

(h) Human resources management plan

(i) Procurement management plan

(j) Implementation and transition plan Remove if this is a separate deliverable CONTRACTOR shall provide CONTRACTOR tasks and participate and collaborate with NDUS on a detailed project schedule created in Microsoft Project. The Microsoft Project format and settings will be mutually agreed-upon, and the project schedule will follow NDUS best practices, including:

(k) Project has appropriate start date

(l) Project has appropriate Work Breakdown Structure

(m) All project tasks have appropriate predecessors and successors, with the exception of summary tasks

(n) All project tasks are auto-scheduled using predecessors to drive the task dates (dates are not manually entered)

(o) Minimal use of constraints

(p) Both NDUS and CONTRACTOR tasks are included

(q) Project tasks are broken down into timeframes that can be reasonably managed – NDUS encourages a maximum task length of approximately 80 hours/two (2) weeks

(r) Project tasks have appropriate resources assigned with appropriate and reasonable allocation

(s) Schedule has appropriate working times and incorporates NDUS and CONTRACTOR holidays and nonworking times CONTRACTOR shall provide written confirmation from an authorized individual confirming contents of the Project Management Plan.

Expectations of NDUS:

0. NDUS shall lead the Project Management Planning effort.

NDUS’S Project Manager shall be responsible for the Project Management Plan.

The Project Management Plan shall follow NDUS template.

NDUS’s Project Manager shall incorporate NDUS tasks into the project schedule.

NDUS shall obtain written confirmation from an authorized individual at CONTRACTOR for the contents of the Project Management Plan.

Completion Date:

CONTRACTOR shall start work with NDUS within five (5) working days after the signing of this Contract to create the Project Management Plan.

Acceptance Criteria:

0. For the acceptance of this deliverable to occur, CONTRACTOR shall provide requested content to NDUS for the Project Plan regarding all services, tasks, and products delivered by CONTRACTOR.

8) CONTRACTOR and NDUS agree upon the baselines scope, schedule, and management plans for the project.

9) The Project Plan shall adhere to the NDUS template and NDUS project management best practices.

For the acceptance of this deliverable to occur, approval must be obtained from NDUS’s Executive Steering Committee (ESC). Remove if not a major project Note: For additional deliverables use the following deliverable as a guideline.

1. Deliverable 3: Template

1. Description:

1. Expectations of CONTRACTOR:

0.

1. Expectations of NDUS:

0.

1. Completion Date:

0.

1. Acceptance Criteria:

For the acceptance of this deliverable to occur, the following criteria shall be met:

0.

Deliverable 5: Post-Implementation Report Some projects have objective measurements (typically identified in the Project Charter) that extend three to six months beyond the implementation of the product, and therefore, completion of the Post-Implementation Report may be delayed. In these cases, consider what is reasonable for the CONTRACTOR to provide for this deliverable and adjust the following language accordingly.

1. Description:

CONTRACTOR shall participate, contribute, and collaborate with NDUS, led by NDUS’s Project Manager, to provide content for the Post-Implementation Report.

1. Expectations of CONTRACTOR:

0. CONTRACTOR shall have project team members participate in the Post-Implementation Survey.

CONTRACTOR shall participate, contribute, and collaborate with NDUS, led by NDUS’s Project Manager, to develop a Post-Implementation Report that provides, at a minimum, the following:

(a) Key project metrics related to schedule, cost, scope, and quality

(b) Business metrics related to project objectives and measurements as defined in the Project Charter

(c) Comprehensive lessons learned valuable to future projects

(d) Success stories from the project

(e) Results of the Post-Implementation Survey

1. Expectations of NDUS:

0. NDUS’s Project Manager shall be responsible for the final product.

NDUS’s Project Manager shall design and conduct the Post-Implementation Survey.

The Post-Implementation Report shall follow NDUS template.

1. Acceptance Criteria:

0. For the acceptance of this deliverable to occur, CONTRACTOR shall participate in the Post-Implementation Survey and provide content to NDUS for the Post-Implementation Report regarding all services, tasks, and products delivered by CONTRACTOR:

(a) Key project metrics related to schedule, cost, scope, and quality

(b) Business metrics related to project objectives and measurements as defined in the Project Charter

(c) Lessons learned from the project

(d) Success stories from the project For the acceptance of this deliverable to occur, approval must be obtained from NDUS’s Executive Steering Committee (ESC). Remove if not a major project Deliverable 6: Project Closeout Meeting Some projects have objective measurements (typically identified in the Project Charter) that extend three to six months beyond the implementation of the product, and therefore, completion of the Project Closeout Meeting may be delayed. In these cases: 1) consider what is reasonable for the CONTRACTOR to provide for this deliverable and adjust the following language accordingly; 2) consider changing the name of this deliverable to “Post-Implementation Meeting,” with the goal of providing and discussing survey results, lessons learned, and success stories soon after implementation; and 3) schedule a separate Closeout Meeting with the Institution at a later date to review the completed Post-Implementation Report (depending on project circumstances, the CONTRACTOR may or may not be included in that later Closeout Meeting, and that meeting may or may not be included in this Scope of Work).

1. Description:

CONTRACTOR shall coordinate with NDUS to schedule a Closeout Meeting in City Name, ND with the core project team and interested stakeholders. NDUS’s Project Manager shall lead the meeting, though CONTRACTOR may be asked to present on certain agenda items. The Closeout Meeting must present a completed Post-Implementation Report and facilitate discussion of the project closeout.

1. Expectations of CONTRACTOR:

0. CONTRACTOR shall provide content to NDUS for detailed agenda in advance of the meeting.

CONTRACTOR shall provide NDUS any required information for NDUS’s Project Manager to present the Post-Implementation Report.

CONTRACTOR shall expand upon the success stories and lessons learned captured from the Post-Implementation Survey, and discuss details related to the lessons learned to provide comprehensive information to future projects.

1. Expectations of NDUS:

0. NDUS shall finalize and send agenda to invitees.

NDUS shall coordinate logistics and facilitate the Closeout Meeting.

NDUS shall expand upon the success stories and lessons learned captured from the Post-Implementation Survey, and discuss further document details related to the lessons learned to provide comprehensive information to future projects.

1. Acceptance Criteria:

For the acceptance of this deliverable to occur, the Closeout Meeting results in:

0. Completion and confirmation of the Post-Implementation Report deliverable Comprehensive lessons learned and success stories valuable to future projects Deliverable 4: Final Acceptance Note: This deliverable signifies the NDUS’s acceptance of the product or service, and could be due either after user acceptance testing (signifying an approval to move into production) or after implementation (signifying an approval to move into maintenance mode),…