TESTOUT CORPORATION.pdf

State of Nebraska Purchase Order PURCHASE ORDER NUMBER

1393846 ZO

SHOW PURCHASE ORDER NUMBER ON ALL PAPERS AND PACKAGES INVOICE TO ADDRESS BELOW

PAGE ORDER DATE EDUCATION DEPT OF

PO BOX 94987

LINCOLN NE 68509-4987

1 OF 1 10/08/25

BUSINESS UNIT BUYER

13469561 THEGE, DENISE A

VENDOR NUMBER: 3730749 DESTINATION OF GOODS

EDUCATION DEPT OF

500 S 84TH ST FL 2

LINCOLN NE 68510-2611

VENDOR ADDRESS:

TESTOUT CORPORATION

180 S 100 W UNIT 456

PLEASANT GROVE UT 84062-6213

Unsatisfactory delivery schedule or service will be sufficient cause for cancellation of this order. Order is subject to cancellation if merchandise is not received by: 10/08/25

FREIGHT: FOB DESTINATION

DELIVERY INSTRUCTIONS:

Original/Bid Document 123803 OO

INSTRUCTIONS TO VENDORS

* Packing list must be included in each shipment.

AGENCY SIGNATURE

R43500|NISA0002|NISA0002 20220623

* Two copies of invoice must be submitted in order that payment can be made - INVOICES

MUST INDICATE YOUR FEDERAL TAXPAYER IDENTIFICATION NUMBER.

* Materials ordered are subject to our inspection and approval. Defective material(s) not in compliance with specifications will be held pending resolution or returned subject to your risk and expense.

* Materials are to be shipped F.O.B. Destination.

Line Description Quantity Unit of

Measure Unit Price

Extended Price

1 MICROSOFT OFFCE PRO V8

BUS/ORG

2,000.0000 EA 11.0000 22,000.00

COMP810182702896:B

2 TECH+CERTMASTER LRN V6

BUS/ORG

1,600.0000 EA 48.0000 76,800.00

COMP810182701776:B

Total Order 98,800.00 https://ndeweb.na1.echosign.com/verifier?tx=CBJCHBCAABAAnaVKBdtX0ad_yguYiqEREtLBp8x0QQdr

TERMS AND CONDITIONS 10/20/2015

DEBARMENT

The contractor certifies that the contractor is not presently debarred, suspended, proposed for debarment, declared ineligible, or voluntari ly excluded by any federal department or agency from participating in transactions (debarred). The contractor also agrees to include the above requirements in any and all subcontracts into which it enters. The contractor also agrees to include the above requirements in any and all subcontracts into which it enters. The contractor shall immediately notify the Department if, during the term of this contract, contractor becomes debarred. The Department may immediately terminate this contract by providing contractor written notices if contractor becomes debarred during the term of this contract.

DRUG POLICY

Contractor certifies that it maintains a drug free workplace environment to ensure worker safety and workplace integrity. Contractor agrees to provide a copy of its drug free workplace policy at any time upon request by the State.

NE ACCESS TECHNOLOGY STANDARDS

Contractor shall review the Nebraska Technology Access Standards, found at http://nitc.nebraska.gov/standards/2-201.html and ensure that products and/or services provided under the purchase order are in compliance or will comply with the applicable standards. In the event such standards change during the Contractor’s performance, the State may create a change order to the purchase order to request that the purchase order comply with the changed standard at a cost mutually acceptable to the parties.

COMPLIANCE WITH CIVIL RIGHTS LAWS AND EQUAL OPPORTUNITY EMPLOYMENT / NONDISCRIMINATION The Contractor shall comply with all applicable local, state, and federal statutes and regulations regarding civil rights laws and equal opportunity employment. The Nebraska Fair Employment Practice Act prohibi ts Contractors of the State of Nebraska, and their Subcontractors, from discriminating against any employee or applicant for employment, with respect to hire, tenure, terms, conditions, compensation, or privileges of employment because of race, color, religion, sex, disability, marital status, or national origin (Neb. Rev. Stat. §48-1101 to 48-1125). The Contractor guarantees compliance with the Nebraska Fair Employment Practice Act, and breach of this provision shall be regarded as a material breach of purchase order.

PERMITS, REGULATIONS, LAWS

The Contractor shall procure and pay for all permits, licenses, and approvals necessary for the execution of the purchase order. The Contractor shall comply with all applicable local, state, and federal laws, ordinances, rules, orders, and regulations.

INDEPENDENT CONTRACTOR

It is agreed that nothing contained herein is intended or should be construed in any manner as creating or establishing the relationship of partners between the parties hereto. The Contractor represents that it has, or will secure at its own expense, all personnel required to perform the services under the purchase order. The Contractor’s employees and other persons engaged in work or services required by the Contractor under the purchase order shall have no contractual relationship with the State; they shall not be considered employees of the State.

All claims on behalf of any person arising out of employment or alleged employment (including without limit claims of discrimination against the Contractor, its officers, or its agents) shall in no way be the responsibility of the State. The Contractor will hold the State harmless from any and all such claims. Such personnel or other persons shall not require nor be entitled to any compensation, rights, or benefits from the State including without limit, tenure rights, medical and hospital care, sick and vacation leave, severance pay, or retirement benefits.

CONTRACTOR RESPONSIBILITY

The Contractor is solely responsible for fulfilling the purchase order, with responsibility for all services offered and products to be delivered.

STATE PROPERTY

The Contractor shall be responsible for the proper care and custody of any State-owned property which is furnished for the Contractor's use during the performance of the purchase order. The Contractor shall reimburse the State for any loss or damage of such property; normal wear and tear is expected.

SITE RULES AND REGULATIONS

The Contractor shall use its best efforts to ensure that its employees, agents, and Subcontractors comply with site rules and regulations while on State premises. If the Contractor must perform on-site work outside of the daily operational hours set forth by the State, it must make arrangements with the State to ensure access to the facility and the equipment has been arranged. No additional payment will be made by the State on the basis of lack of access, unless the State fails to provide access as agreed to between the State and the Contractor.

FUNDING OUT CLAUSE OR LOSS OF APPROPRIATIONS

The State may terminate the purchase order, in whole or in part, in the event funding is no longer available. The State’s obligation to pay amounts due for fiscal years following the current fiscal year is contingent upon legislative appropriation of funds for the purchase order. Should said funds not be appropriated, the State may terminate the purchase order with respect to those payments for the fiscal years for which such funds are not appropriated. The State will give the Contractor written notice thirty (30) calendar days prior to the effective date of any termination, and advise the Contractor of the location (address and room number) of any related equipment. All obligations of the State to make payments after the termination date will cease and all interest of the State in any related equipment will terminate. The Contractor shall be entitled to receive just and equitable compensation for any authorized work which has been satisfactorily completed as of the termination date. In no event shall the Contractor be paid for a loss of anticipated profit.

RIGHT TO AUDIT

Contractor shall establish and maintain a reasonable accounting system that enables the State to readily audit purchase order. The State and its authorized representatives shall have the right to audit, to examine, and to make copies of or extracts from all financial and related records (in whatever form they may be kept, whether written, electronic, or other) relating to or pertaining to this purchase order kept by or under the control of the Contractor, including, but not limited to those kept by the Contractor, its employees, agents, assigns, successors, and Subcontractors. Such records shall include, but not be limited to, accounting records, written policies and procedures; all paid vouchers including those for out-of-pocket expenses; other reimbursement supported by invoices; ledgers; cancelled checks; deposit slips; bank statements; journals; original estimates; estimating work sheets; contract amendments and change order files; backcharge logs and supporting documentation; insurance documents; payroll documents; timesheets; memoranda; and correspondence.

Contractor shall, at all times during the term of this purchase order and for a period of five (5) years after the completion of this purchase order, maintain such records, together with such supporting or underlying documents and materials. The Contractor shall at any time requested by the State, whether during or after completion of this purchase order and at Contractor’s own expense make such records available for inspection and audit (including copies and extracts of records as required) by the State. Such records shall be made available to the State during normal business hours at the Contractor’s office or place of business. In the event that no such location is available, then the financial records, together with the supporting or underlying documents and records, shall be made available for audit at a time and location that is convenient for the State.

Contractor shall ensure the State has these rights with Contractor’s assigns, successors, and Subcontractors, and the obligations of these rights shall be explicitly included in any subcontracts or agreements formed between the Contractor and any Subcontractors to the extent that those subcontracts or agreements relate to fulfillment of the Contractor’s obligations to the State.

Costs of any audits conducted under the authority of this right to audit and not addressed elsewhere will be borne by the State unless certain exemption criteria are met. If the audit identifies overpricing or overcharges (of any nature) by the Contractor to the State in excess of one-half of one percent (.5%) of the total purchase order billings, the Contractor shall reimburse the State for the total costs of the audit. If the audit discovers substantive findings related to fraud, misrepresentation, or non-performance, the Contractor shall reimburse the State for total costs of audit. Any adjustments and/or payments that must be made as a result of any such audit or inspection of the Contractor’s invoices and/or records shall be made within a reasonable amount of time (not to exceed 90 days) from presentation of the State’s findings to Contractor .

DISASTER RECOVERY/BACK UP PLAN

The Contractor shall have a disaster recovery and back-up plan, of which a copy should be provided to the State, which includes, but is not limited to equipment, personnel, facilities, and transportation, in order to continue services as specified under these specifications in the event of a disaster.

TIME IS OF THE ESSENCE

Time is of the essence in this purchase order. The acceptance of late performance with or without objection or reservation by the State shall not waive any rights of the State nor constitute a waiver of the requirement of timely performance of any obligations on the part of the Contractor remaining to be performed.

ASSIGNMENT BY THE STATE

The State shall have the right to assign or transfer the purchase order or any of its interests herein to any agency, board, or commission of the State of Nebraska. There shall be no charge to the State for any assignment hereunder.

ASSIGNMENT BY THE CONTRACTOR

The Contractor may not assign, voluntarily or involuntarily, the purchase order or any of its rights or obligations hereunder (including without limitation rights and duties of performance) to any third party, without the prior written consent of the State, which will not be unreasonably withheld.

GOVERNING LAW

The purchase order shall be governed in all respects by the laws and statutes of the State of Nebraska. Any legal proceedings against the State of Nebraska regarding this purchase order shall be brought in the State of Nebraska administrative or judicial forums as defined by State law. The Contractor must be in compliance with all Nebraska statutory and regulatory law.

ATTORNEY'S FEES

In the event of any litigation, appeal, or other legal action to enforce any provision of the purchase order, the Contractor agrees to pay all expenses of such action, as permitted by law, including attorney's fees and costs, if the State is the prevailing party.

ADVERTISING

The Contractor agrees not to refer to the purchase order award in advertising in such a manner as to state or imply that the company or its services are endorsed or preferred by the State. News releases pertaining to the project shall not be issued without prior written approval from the State.

EARLY TERMINATION

The purchase order may be terminated as follows:

1. The State and the Contractor, by mutual written agreement, may terminate the purchase order at any time.

2. The State, in its sole discretion, may terminate the purchase order for any reason upon thirty (30) calendar days written notice to the Contractor. Such termination shall not relieve the Contractor of warranty or other obligations incurred under the terms of the purchase order. In the event of cancellation the Contractor shall be entitled to payment, for those products received and accepted by the State, or determined on a pro rata basis, for products or services satisfactorily performed or provided.

3. The State may terminate the purchase order immediately for the following reasons:

a. if directed to do so by statute;

b. Contractor has made an assignment for the benefit of creditors, has admitted in writing its inability to pay debts as they mature, or has ceased operating in the normal course of business;

c. a trustee or receiver of the Contractor or of any substantial part of the Contractor’s assets has been appointed by a court;

d. fraud, misappropriation, embezzlement, malfeasance, misfeasance, or illegal conduct pertaining to performance under the purchase orders by its Contractor, its employees, officers, directors, or shareholders;

e. an involuntary proceeding has been commenced by any party against the Contractor under any one of the chapters of Title 11 of the United States Code and (i) the proceeding has been pending for at least sixty (60) calendar days; or (ii) the Contractor has consented, either expressly or by operation of law, to the entry of an order for relief; or (iii) the Contractor has been decreed or adjudged a debtor;

f. a voluntary petition has been filed by the Contractor under any of the chapters of Title 11 of the United States Code;

g. Contractor intentionally discloses confidential information;

h. Contractor has or announces it will discontinue support or provision of the deliverable;

i. second or subsequent documented “vendor performance report” form deemed acceptable by the State Purchasing Bureau; or

j. Contractor engaged in collusion or ones’ actions which could have provided Contractor an unfair advantage in obtaining this purchase order.

BREACH BY CONTRACTOR

The State may terminate the purchase order, in whole or in part, if the Contractor fails to perform its obligations under the purchase order in a timely and proper manner. The State may, by providing a written notice of default to the Contractor, allow the Contractor to cure a failure or breach of purchase order within a period of thirty (30) calendar days (or longer at State’s discretion considering the gravity and nature of the default).

Said notice shall be delivered by Certified Mail, Return Receipt Requested, or in person with proof of delivery. Allowing the Contractor time to cure a failure or breach of purchase order does not waive the State’s right to immediately terminate the purchase order for the same or different purchase order breach which may occur at a different time. In case of default of the Contractor, the State may contract the goods from other sources and hold the Contractor responsible for any excess cost occasioned thereby.

ASSURANCES BEFORE BREACH

If any document or deliverable required pursuant to the purchase order does not fulfill the requirements of the purchase order, upon written notice from the State, the Contractor shall deliver assurances in the form of additional Contractor resources at no additional cost to the project in order to complete the deliverable, and to ensure that other project schedules will not be adversely affected.

ACCEPTANCE AND PAYMENT OF GOODS

In the event that the Contractor fails to provide the goods requested by the State, the State will not pay for such products until the same has been received and accepted by the State.

FORCE MAJEURE

Neither party shall be liable for any costs or damages resulting from its inability to perform any of its obligations under the purchase order due to a natural disaster, or other similar event outside the control and not the fault of the affected party (“Force Majeure Event”). A Force Majeure Event shall not constitute a breach of the purchase order. The party so affected shall immediately give notice to the other party of the Force Majeure Event. The State may grant relief from performance of the purchase order if the Contractor is prevented from performance by a Force Majeure Event. The burden of proof for the need for such relief shall rest upon the Contractor. To obtain release based on a Force Majeure Event, the Contractor shall file a written request for relief with the State Purchasing Bureau. Labor disputes with the impacted party’s own employees will not be considered a Force Majeure Event and will not suspend performance requirements under the purchase order.

PROHIBITION AGAINST ADVANCE PAYMENT

Payments shall not be made until purchase order deliverable(s) are received and accepted by the State.

PAYMENT

State will render payment to Contractor when the terms and conditions of the purchase order and specifications have been satisfactorily completed on the part of the Contractor as solely determined by the State.

Payment will be made by the responsible agency in compliance with the State of Nebraska Prompt Payment Act (See Neb. Rev. Stat. §81-2401 through 81-2408). The State may require the Contractor to accept payment by electronic means such as ACH deposit. In no event shall the State be responsible or liable to pay for any goods provided by the Contractor prior to the Effective Date, and the Contractor hereby waives any claim or cause of action for any such claims.

INVOICES

Invoices for payments must be submitted by the Contractor to the agency requesting the goods with sufficient detail to suppor t payment. The terms and conditions included in the Contractor’s invoice shall be deemed to be solely for the convenience of the parties. No terms or conditions of any such invoice shall be binding upon the State, and no action by the State, including wi thout limitation the payment of any such invoice in whole or in part, shall be construed as binding or estopping the State with respect to any such term or condition, unless the invoice term or condition has been previously agreed to by the State as a change order to the purchase order.

TAXES

The State is not required to pay taxes of any kind and assumes no such liability as a result of this solicitation. Any property tax payable on the Contractor's equipment which may be installed in a state-owned facility is the responsibility of the Contractor.

INSPECTION AND APPROVAL

Final inspection and approval of all work required under the purchase order shall be performed by the designated State officials. The State and/or its authorized representatives shall have the right to enter any premises where the Contractor or Subcontractor duties under the purchase order are being performed, and to inspect, monitor or otherwise evaluate the work being performed. All inspections and evaluations shall be at reasonable times and in a manner that will not unreasonably delay work.

SEVERABILITY

If any term or condition of the purchase order is declared by a court of competent jurisdiction to be illegal or in conflict with any law, the validity of the remaining terms and conditions shall not be affected, and the rights and obligations of the parties shall be construed and enforced as if the purchase order did not contain the particular provision held to be invalid.

CONFIDENTIALITY

All materials and information provided by the State or acquired by the Contractor on behalf of the State shall be regarded as confidential information. All materials and information provided by the State or acquired by the Contractor on behalf of the State shall be handled in accordance with federal and state law, and ethical standards. The Contractor must ensure the confidentiality of such materials or information. Should said confidentiality be breached by a Contractor; Contractor shall notify the State immediately of said breach and take immediate corrective action.

It is incumbent upon the Contractor to inform its officers and employees of the penalties for improper disclosure imposed by the Privacy Act of 1974, 5 U.S.C. 552a. Specifically, 5 U.S.C. 552a (i)(1), which is made applicable to Contractors by 5 U.S.C. 552a (m)(1), provides that any officer or employee of a Contractor, who by virtue of his/her employment or official position has possession of or access to agency records which contain individually identifiable information, the disclosure of which is prohibited by the Privacy Act or regulations established thereunder, and who knowing that disclosure of the specific material is prohibited, willfully discloses the material in any manner to any person or agency not entitled to receive it, shall be guilty of a misdemeanor and fined not more than $5,000.

INDEMNIFICATION

1. GENERAL

The Contractor agrees to defend, indemnify, hold, and save harmless the State and its employees, volunteers, agents, and its elected and appointed officials (“the indemnified parties”) from and against any and all claims, liens, demands, damages, liability, actions, causes of action, losses, judgments, costs, and expenses of every nature, including investigation costs and expenses, settlement costs, and attorney fees and expenses (“the claims”), sustained or asserted against the State, arising out of, resulting from, or attributable to the willful misconduct, negligence, error, or omission of the Contractor, its employees, Subcontractors, consultants, representatives, and agents, except to the extent such Contractor liability is attenuated by any action of the State which directly and proximately contributed to the claims.

2. INTELLECTUAL PROPERTY

The Contractor agrees it will, at its sole cost and expense, defend, indemnify, and hold harmless the indemnified parties from and against any and all claims, to the extent such claims arise out of, result from, or are attributable to, the actual or alleged infringement or misappropriation of any patent, copyright, trade secret, trademark, or confidential information of any third party by the Contractor or its employees, Subcontractors, consultants, representatives, and agents; provided, however, the State gives the Contractor prompt notice in writing of the claim. The Con tractor may not settle any infringement claim that will affect the State’s use of the Licensed Software without the State’s prior written consent, which consent may be withheld for any reason.

If a judgment or settlement is obtained or reasonably anticipated against the State’s use of any intellectual property for which the Contractor has indemnified the State, the Contractor shall, at the Contractor’s sole cost and expense, promptly modify the item or items which were determined to be infringing, acquire a license or licenses on the State’s behalf to provide the necessary rights to the State to eliminate the infringement, or provide the State with a non-infringing substitute that provides the State the same functionality. At the State’s election, the actual or anticipated judgment may be treated as a breach of warran ty by the Contractor, and the State may receive the remedies provided under this ITB.

3. PERSONNEL

The Contractor shall, at its expense, indemnify and hold harmless the indemnified parties from and against any claim with respect to withholding taxes, worker’s compensation, employee benefits, or any other claim, demand, liability, damage, or loss of any nature relating to any of the personnel provided by the Contractor.

ANTITRUST

The Contractor hereby assigns to the State any and all claims for overcharges as to goods and/or services provided in connection with this purchase order resulting from antitrust violations which arise under antitrust laws of the United States and the antitrust laws of the State.

OFFICE OF PUBLIC COUNSEL

If it provides, under the terms of this purchase order and on behalf of the State of Nebraska, health and human services to individuals; service delivery; service coordination; or case management, Contractor shall submit to the jurisdiction of the Office of Public Counsel, pursuant to Neb. Rev. Stat. §§ 81-8,240 et seq. This section shall survive the termination of this purchase order and shall not apply i f Contractor is a long-term care facility subject to the Long-Term Care Ombudsman Act, Neb. Rev. Stat. §§ 81-2237 et seq.

LONG-TERM CARE OMBUDSMAN

If it is a long-term care facility subject to the Long-Term Care Ombudsman Act, Neb. Rev. Stat. §§ 81-2237 et seq., Contractor shall comply with the Act. This section shall survive the termination of this purchase order.

1393846 zo Final Audit Report 2025-10-09

Created: 2025-10-08

By: Denise Thege (denise.thege@nebraska.gov)

Status: Signed

Transaction ID: CBJCHBCAABAAnaVKBdtX0ad_yguYiqEREtLBp8x0QQdr

"1393846 zo" History Document created by Denise Thege (denise.thege@nebraska.gov) 2025-10-08 - 8:21:55 PM GMT- IP address: 164.119.5.171

Document emailed to Lizbeth Hernandez (liz.hernandez@nebraska.gov) for signature

2025-10-08 - 8:22:30 PM GMT

Email viewed by Lizbeth Hernandez (liz.hernandez@nebraska.gov) 2025-10-09 - 3:37:53 PM GMT- IP address: 104.47.65.254

Document e-signed by Lizbeth Hernandez (liz.hernandez@nebraska.gov) Signature Date: 2025-10-09 - 3:39:37 PM GMT - Time Source: server- IP address: 164.119.5.23

Agreement completed.

2025-10-09 - 3:39:37 PM GMT