DocuSign Envelope ID: E41 

STATE OF NORTH CAROUNA REQUEST FOR QUOTE NO. 4D-R022539511

Department of Public Instruction
Office of the State Superintendent

 

 

Offers will be publicly opened: January 2020

 

Issue Date: January 2020
Refer ALL inquiries regarding this RFQ to: Commodity Number: 924-13

 

 

Tymica Dunn, Procurement Manager Description: Read to Achieve Diagnostics 
Software as a Service
Phone no. 919-807-3664

 

Using Agency: Department of Public Instruction
See page 2 for mailing instructions. Requisition No.: RQ22539511

 

 

 

 

 

 

OFFER AND ACCEPTANCE

The State seeks offers for the Software, Services andior goods described in this solicitation. The State?s
acceptance of any offer must be demonstrated by execution of the acceptance found below and any subsequent
Request for Best and Final Offer, it issued. Acceptance shall create a contract having an order of precedence
as follows: In cases of conflict between documents comprising the contract, the order of precedence shall be (1)
Best and Final Offers, if any: (2) special terms and conditions specific to this RFC), (3) specifications, (4)
Department of Information Technology Terms and Conditions of this RFQ, and (5) the agreed portions of the
awarded Vendor?s offer. No contract shall be binding on the State until an encumbrance of funds has
been made for payment of the sums due under the contract.

EXECUTION

In compliance with this Request for Quote, and subject to all the conditions herein, the undersigned offers and
agrees to furnish any or all Services or goods upon which prices are offered. at the price(s) offered herein, within
the time specified herein. By executing this offer: I certify that this offer is submitted competitively and without
collusion.

Failure to executeisign offer prior to submittal shall render offer invalid. Late offers are not acceptable.

 

 

 

 

 

 

 

 

 

 

 

OFFEROR: Istation (aka Imagination Station}
STREET ADDRESS: ZIP:
8150 N. Central Expressway 2000 Campbell Centre Box: 75206
cm. STATE 3. ZIP: TELEPHONE NUMBER: TOLL FREE TEL. no
Dallas, TX 75206 972-?15-3866 16666833323
PRINT NAME 3. TITLE OF PERSON FAX NUMBER:
Ossa Fisher President 8. COO 972-643-3441
AUT IZED SIGNAT DATE: 
01i07i2020 ofisher@istation.com
Offer valid for sixty (60) days from date of offer opening unless otherwise stated here: days

ACCEPTANCE OF OFFER
If any or all parts of this RFQ are accepted, an authorized representative of North Carolina Department of Public Instructions
(NCDPI) shall af?x their signature hereto. A copy of this acceptance will be forwarded to the successful vendor(s).

PUBLIC INSTRUCTION $5520 I 10_ 36' 510 PM EST

Offer gee ?red Wenc?ontraci awarded this d_ay of as indicated on attached certification.
by Fw (Authorized representat?ive of Department of Public instruction). Chief Financiai

6% Fi?igittf?

No it Wigs 5913 BRardW of Education

mannerisms Superintendent of Public Instruction
on behalf of the State Board of Education following approval by the Chief Financial Officer pur5uant to Board Policy 

 

 

 

 

 

 

 

DocuSign Envelope ID: E41 

IFBIRFQ Number: -- 2545?- 

r191";-

2.1.
2.2.
2.3.
2.4.
2.5.
2.6.
2.7.
2.8.

3.1.
3.2.
3.3.
3.4.
3.5-

10)
11)
12)
13)

Table of Contents

INTENT, USE, DURATION AND SCOPE 4
GENERAL INFORMATION 4
OFFER SUBMITTAL . 4
BASIS FOR REJECTION 5
LATE OFFERS 5
NON-RESPONSIVE OFFERS 5
NOTICE TO VENDORS . 5
E-PROCUREMENT 5
POSSESSION AND REVIEW 6
POINTS OF CONTACT: Reserved 6
SPECIFICATIONS 6
VENDOR STANDARD AGREEMENHS) 7
VENDOR UTILIZATION OF WORKERS OUTSIDE U.S. 
E-VERIFY 8
RESTRICTIONS ON CONTRACTS WITH THE STATE: Reserved 8
CLOUD SERVICE PROVIDERS (CSPs) 8
COST PROPOSAL 9
HISTORICALLY UNDERUTILIZED BUSINESSES 9
DEPARTMENT OF INFORMATION TECHNOLOGY INSTRUCTIONS TO VENDORS 10
Department of Information Technology Terms and Conditions 11
DEFINITIONS: 11
ACCESS AND USE OF SAAS SERVICES: 11
WARRANTY OF REMEDIES . 13
ACCESS REMEDIES: 14
EXCLUSIONS: 15
PERFORMANCE REVIEW AND ACCOUNTABILITY: 15
LIMITATION OF LIABILITY: Limitation of Vendor?s Contract Damages Liability: 15
Vendor?s Liability for Injury to Persons or Damage to Property: 16
MODIFICATION OF SERVICES: . 16
TRANSITION PERIOD: . 16
TRANSPORTATION: . 1?
TRAVEL EXPENSES: 1?
PROHIBITION AGAINST CONTINGENT FEES AND GRATUITIES: 1?

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IFBIRFQ Number: 

14}
15)
16}
17)
18)
19}
20)
21)

AVAILABILITY OF FUNDS: 1?
PAYMENT TERMS: 17"
ACCEPTANCE CRITERIA: 18
CONFIDENTIALITY: 19
SECURITY OF STATE DATA: 19
ACCESS TO PERSONS AND RECORDS: 23
ASSIGNMENT: 23
NOTICES: 24

Any notices required under this Agreement should be delivered to the Agreement Administrator for each
party. Unless otherwise Specified in the Solicitation Documents, any notices shall be delivered in writing

by US. Mail, Commercial Courier, facsimile or by hand. 24
22) TITLES AND HEADINGS: 24
23) AMENDMENT: 24
24) TAXES: 24
25) GOVERNING LAWS, JURISDICTION, AND VENUE: 24
26) DEFAULT: 24
27) FORCE 25
28) COMPLIANCE WITH LAWS: 25
29) TERMINATION: 25
30) DISPUTE 26
31) SEVERABILITY: 26
32) FEDERAL INTELLECTUAL PROPERTY BANKRUPTCY PROTECTION ACT: 26
33) ELECTRONIC PROCUREMENT: 26

Attachment A: Change Specifications and Terms of Use . 27

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1. INTENT. USE. DURATION AND SCOPE
Scope:

Saas will provide formative and diagnostic assessments that allows teachers to monitor the foundational
reading skills and reading comprehension levels. The service will provide instant reporting that identifies
needs of each student with recommended next steps to enhance students reading skills.

The purpose of this Request for Quote is to obtain pricing for and procure Read to Achieve Diagnostic
Software as a Service solution to meet obligations under state laws. which can be found at NC. Gen.
Stat. 115C-83.1 et. seq. for NCDPI. Products and Services will be provided in accordance to the terms and
conditions of this procurement.

Duration:

This Agreement will be effective beginning January 8, 2020 and will remain in effect through March 31, 2020.

2. GENERAL INFORMATION

2.1. OFFER 
Due Date: January 07, 2020

Time: By Eastern Time

Instructions: Quotes may be submitted via facsimile (FAX) machine or by electronic means. including but
not limited to email, in response to this Request for Quote: Tymica.Dunn@dgi.nc.gov. Submission
by any means shall include this RFQ, as provided in section 2.5

Return one (1) signed, executed electronic copyof the offer. Vendor must return all the
pages of this solicitation with its offer.

Offer must be submitted on the forms provided herein. if additional sheets are required (for
example. Vendors who are offering alternate proposals); the Vendor should submit a separate bid
document. Any alternate proposals must be clearly marked as such with the phrase ?alternate
offer for ?name of' Vendor" and numbered sequentially with the first offer. This ledend must be in
bold type of not less than 14-point type on the face of the offer, and on the text of the alternative

proposal.

Prices and any other entry made hereon by the Vendor shall be considered firm and not subject to
change.

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2.2. BASIS FOR REJECTION

Pursuant to 9 NCAC 068.0401, the State reserves the right to reject any and all offers, in whole or
in part; by deeming the offer unsatisfactory as to quality or quantity, delivery, price or service offered;
non-compliance with the Specifications or intent of this solicitation; lack of competitiveness; errorfs)
in specifications or indications that revision would be advantageous to the State; cancellation or
other changes in the intended project, or other determination that the proposed requirement is no
longer needed; limitation or lack of available funds; circumstances that prevent determination of the
best offer; or any other determination that rejection would be in the best interest of the State. Vendor

contact regarding this IFBIRFQ with anyone other than Tymica Dunn may be grounds for rejection
of said Vendor's offer.

2.3. LATE OFFERS

Regardless of cause, late offers will not be accepted and will automatically be disqualified from further
consideration. It shall be the Vendor?s sole risk to ensure delivery at the designated office by the designated
time. Late offers will not be opened and may be returned to the Vendor at the expense of the Vendor or
destroyed if requested.

2.4. NON-RESPONSIVLOFFERS
Vendor offers will be deemed non~responsive by the State and will be rejected without further
consideration or evaluation if statements such as the following are included:

in ?This offer does not constitute a binding offer?,
0 "This offer will be valid only if this offer is selected as a ?nalist or in the competitive range",
. "Vendor does not commit or bind itself to any terms and conditions by this submission?,

. ?This document and all associated documents are non-binding and shall be used for discussion purposes only?,

- ?This offer will not be binding on either party until incorporated in a definitive agreement signed
by authorized representatives of both parties", or
. A statement of similar intent.

2.5. NOTICE TO vmons

The State objects to and will not be required to evaluate or consider any additional terms and
conditions not previously agreed to by the State and submitted with an Offeror?s response. This
applies to any language appearing in or attached to the document as part of the Offeror?s response.
By execution and delivery of this Request for Quote and responsefs), the O?eror agrees that any
additional terms and conditions, whether submitted purposely or inadvertently, shall have no force or
effect.

2.5. E-PROCUREMENT SOLICITATION

1) This is an E-Procurement solicitation. See Paragraph #31 of the attached Department of Information
Technology Terms and Conditions. . It is the Vendor's responsibility to read these terms and conditions carefully
and to consider them in preparing the offer. By signature, the Vendor acknowledges acceptance of all terms
and conditions inciudinq those related to E-Procurement.

a) General information on the E-Procurement service can be found at 

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b) Within two days after notification of award of a contract. vendor must register in NC E-

Procurement Your Service at the following web site: 

c) As of the RFQ submittal date. the Vendor must be current on all E-Procurement fees. If the

Vendor is not current on all E-Procurement fees, the State may disqualify the Vendor from
participation in this RFQ.

2.7. POSSESSION AND REVIEW

During the evaluation period and prior to award, possession of the bids and accompanying
information is limited to personnel of the issuing agency, and to the committee responsible for
participating in the evaluation. Vendors who attempt to gain this privileged information. or to
influence the evaluation process (ie. assist in evaluation) will be in violation of purchasing rules and
their offer will not be further evaluated or considered.

After award of contract the complete bid file will be available to any interested persons with the
exception of trade secrets. test information or similar proprietary information as provided by statute
and rule. Any proprietary or confidential information, which conforms to exclusions from public
records as provided by N.C.G.S. ?132-1.2 must be clearly marked as such in the offer when
submitted.

2.8. POINTS OF CONTACT: Reserved

3. SPECIFICATIONS

3.

Address developmentally appropriate individualized assessments for Kindergarten, ?rst grade. second grade and
third grade students.

Provide aggregate level report and analysis to support teacher decision for student's progress.
Provide reports to support students who may need intervention and enrichment.
Meet assessment benchmark expectations.

Support progress monitoring of assessment.

Yield data that can be used with EVAAS.

Generate assessment results in a timely manner for teachers and administrators

Provide parent communication after each benchmark that explains results in a clear and easy to understand format.

Provide indicators of risk for dyslexia screening.

Transfer individual student data across districts.

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k. Provide Tier 1 support for customer issues.

Continue single sign on and role-based access control for students. school staff. district and state staff and
administrators.

m. Create norms and growth expectations speci?c to North Carolina throughout the life of the contract.

n. Continue lstation?s Oral Reading Fluency (ORF) assessment with the automated scoring feature

0. Achieve SOCZ type II security audit certi?cation.

p. Provide high contrast ADA compliant versions of the reports throughout the life of the contract.

q. Support access to students and parents from home.

r. Provide onsite, virtual and other training options to ensure that the teachers and administrators are trained.

s. Analyze training effectiveness to ensure that the training meets the needs of the users.

t. Deploy ISIP Lectura Temprana to approximately 2,500 students in the Spanish Language immersion classes.

3.1. VENDOR STANDARD AG REEMENTISI

The terms and conditions of Vendor?s standard license, maintenance or other agreement(s)
applicable to Software and other Products acquired under this Agreement may apply to the extent
such terms and conditions do not materially change the terms and conditions of this Agreement. In
the event of any conflict between the terms and conditions of this Agreement and the Vendor?s
standard agreement(s), the terms and conditions of this Agreement relating to audit and records,
jurisdiction, choice of law, the State?s electronic procurement application of law or administrative
rules, the remedy for intellectual property infringement and the exclusive remedies and limitation of
liability in the Terms and Conditions herein shall apply in all cases and supersede any provisions
contained in Vendor?s relevant standard agreement or any other agreement. The State shall not be
obligated under any standard license andlor maintenance or other Vendor agreement(s) to indemnify
or hold harmless the Vendor, its licensors, successors or assigns; nor arbitrate any dispute, nor pay
late fees, legal fees or other similar costs.

3.2. VENDOR UTILIZATION OF WORKERS OUTSIDE U.S.
In accordance with N.C.G.S. Vendor must detail in the IFBIRFQ response, the manner in which it intends

to utilize resources or workers located outside the U.S. The State of North Carolina will evaluate the additional risks, costs,

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and other factors associated with such utilization prior to making an award for any such Vendor's offer. The Vendor shall

provide the following for any offer or actual utilization or contract performance:

a) The location of work performed under a state contract by the Vendor, any subcontractors,
employees, or other persons performing the contract and whether any of this work will be
performed outside the United States.

b) The corporate structure and location of corporate employees and activities of the Vendors, its
affiliates or any other subcontractors.

0) Notice of the relocation of the Vendor, employees of the Vendor, subcontractors of the Vendor,
or other persons performing Services under a state contract outside of the United States.

d) Any Vendor or subcontractor providing call or contact center Services to the State of North
Carolina shall disclose to inbound callers the location from which the call or contact center
Services are being provided

Will any work under this contract be performed outside the United States? YES NO
If Vendor answered above, list the locationfs) outside the United States where work under this

contract will be performed by Vendor, any subcontractors, employees, or other persons performing
work under the contract.

 

3.3. E-VERIFY

Pursuant to N.C.G.S. 1438435000. the State shall not enter into a contract unless the awarded
Vendor and each of its subcontractors comply with the E-Verify requirements of N.C.G.S. Chapter
64, Article 2. Vendors are directed to review the foregoing laws. Any awarded Vendor must submit
a certification of compliance with E-Verify to the awarding agency, and on a periodic basis thereafter
as may be required by the State.

3.4. RESTRICTIONS ON CONTRACTS WITH THE STATE: Reserved

3.5. CLOUD SERVICE PROVIDERS 

1) For offers featuring a cloudvhosted solution, vendors shall describe how the proposed solution will
support the agency?s information system security compliance requirements as described in the
Statewide lnforrnation Security Manual, specifically relating to, and without limitation, the sections
relating to cloud services: The Read to Achieve Software
as a Service SaaS} wifl be required to receive and securely will be required to receive and
securely manage [First and Last Name, Date of Birth, Email Address, Student and Staff Unique
Identification Number As such, the Read to Achieve Software as a Service SaaS) will be
classified as Department Griticai f?Moderate. To comply with policy State agencies are required to
perform annual securityfrisk assessments on their information systems using NIST 800-53 controls.
This requirement additionally applies to all vendor provided agency managed Infrastructure as a
Service (laaS), Platform as a Service (PaaS). and Software as a Service (SaaS) solutions.
Assessment reports such as the Federal Risk and Authorization Management Program 
certification, SOC 2 Type 2. SSAE 16, and ISO 27001 are preferred and offered solutions already

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meeting these requirements are requested to include these reports as part of their submission. Refer
to: for descriptions of system
con?dentiaiity, integrity and categories.

4. COST PROPOSAL

 

 

 

 

 

 

 

Cost component One-Time Cost Describe Cost Basis
Customization required for 37 500 high-contrast reports; NC-speci?c norms and
implementation growth expectations
8 a a8 Subscription fees $668,960 per student, pertger?g (adjusted for 3-month
Technical Support i Customer Service $141560 Tier 1 support as mentioned above
Training including ail training materials 55 74,550 See description beiow"

 

Professional DevelopmentiT raining includes the following each year:
. 12 onsite full days of training (in addition to the 35 days of training already delivered in 2019)
- 9 recorded live webinars (in addition to the 14 webinars already delivered in 2019}

. 3 customized virtual teacher training modules (in addition to the 5 already delivered in 2019)

Estimated number of students 469,445: Estimated number of teachers 26,000
Grand Total for the entire Contract i5 928,5?0

 

 

 

 

 

 

 

 

Total Offer Cost $928,570
SCHEDULE
Term Payment Due Date Amount
Phase I 1115:2020 $464,285
Phase II 03/ 1 5i2020 464,285

 

 

 

5. HISTORIOAILLY UNDERUTILIZED BUSINESSES

?Historically Underutilized Businesses (HUBs) consist of minority, women and disabled business ?rms
that are at least fifty-one percent owned and operated by an individual(s) of the aforementioned
categories. Also included in this category are disabled business enterprises and non-profit work centers
for the blind and severely disabled.? 

Pursuant to N.C.G.S. 143?48 and 143?1284, the State invites and encourages
participation in this procurement process by businesses owned by minorities, women, disabled, disabled
business enterprises and non-profit work centers for the blind and severely disabled. This includes
utilizing subcontractors to perform the required functions in this 

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Is Vendor a Historically Underutilized Business? YES NO If specify
classification.

 

6. DEPARTMENT OF INFORMATION TECHNOLOGY INSTRUCTIONS TO VENDORS

AND COMPLY: It shall be the Vendor's responsibility to read this entire document,
review all enclosures and attachments, and comply with all requirements specified herein.
DEFINITIONS:

0 NCDIT: The North Carolina Department of Information Technology, formerly Office of Information
Technology Services

- NCDIT CONVENIENCE CONTRACT: A contract that is used for the procurement of IT goods or
Services. These contracts are in place for the convenience of the state and use of them is
op?onai

. OPEN MARKET CONTRACT: A contract for the purchase of goods or Services not covered by
a term, technical, or convenience contract.

- TERM CONTRACT: A contract in which a source of supply is established for a specified period
of time for specified Services or supplies; usually characterized by an estimated or definite
minimum quantity, with the possibility of additional requirements beyond the minimum, all at a
predetermined unit price
THE STATE: Is the state of North Carolina and its agencies.

VENDOR: Company, firm, corporation, partnership, individual, etc., submitting a response to a
solicitation.

PROMPT PAYMENT Vendors are urged to compute all discounts into the price
offered. If a prompt payment discount is offered, it will not be considered in the award of the contract
except as a factor to aid in resolving cases of identical prices.
Any and all questions regarding this document must be
addressed to the purchaser named on the cover sheet of this document. Do not contact the user
directly. Any and all revisions to this document shall be made only by written addendum from NCDIT.
The Vendor is cautioned that the requirements of this IFBIRFQ can be altered only by written
addendum and that verbal communications from whatever source are of no effect.
ACCEPTANCE AND REJECTION: The State reserves the right to reject any and all offers, to waive
any informality in offers and, unless otherwise specified by the Vendor, to accept any item in the offer.
If either a unit price or an extended price is obviously in error and the other is obviously correct, the
incorrect price will be disregarded.
AWARD OF CONTRACT: Responsive offers will be evaluated and acceptance may be made in
accordance with Best Value procurement practices as defined by N.C.G.S. ?143-135.9. Unless
otherwise specified by the State or the Vendor, the State reserves the right to accept any item or
group of items on a multi-item offer. In addition, on agency specific or term contracts, NCDIT reserves
the right to make partial, progressive or multiple awards: where it is advantageous to award separately
by items; or where more than one supplier is needed to provide the contemplated requirements as to
quantity, quality, delivery, service, geographical areas; other factors deemed by NCDIT to be pertinent
or peculiar to the purchase in question.

MISCELLANEOUS: Masculine pronouns shall be read to include feminine pronouns and the singular

of any word or phrase shall be read to include the plural and vice versa.

PROTEST PROCEDURES: RESERVE

 

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9}

VENDOR REGISTRATION AND NOTIFICATION SYSTEM: Vendor Link NC aiiows Vendors to

electronically register with the State to receive electronic noti?cation of current procurement opportunities for goods and

services avaitable on the Interactive Purchasing System at the following web site: 

10} DIGITAL IMAGING: The State will digitize the Vendor?s response if not received electronically, and any

awarded contract together with associated contract documents. This electronic copy shall be a preservation
record and serve as the of?cial record of this solicitation with the same force and effect as the original written
documents comprising such record Any printout or other output readable by sight shown to reflect such record

accurately is an "original.?

7. Department of Information Technology Terms and Conditions

1} DEFINITIONS:

2)

a)

c}

a)

?Data? includes means information, formulae, algorithms, or other content that the State, the State?s
employees, agents and end users upload, create or modify using the Services pursuant to this
Agreement. Data also includes user identification information and metadata which may contain Data
or from which the State?s Data may be ascertainable.

DeliverableIProduct Warranties shall mean and include the warranties provided for products or
deliverables licensed to the State as included in Paragraph 7) c) of these Terms and Conditions unless
superseded by a Vendor's Warranties pursuant to Vendor?s License or Support Agreements.

?Services? shall mean the duties and tasks undertaken by the Vendor to fulfill the requirements and
specifications of this solicitation, including, without limitation, providing web browser access by
authorized users to certain Vendor online software applications identified herein, and to related
services, such as Vendor hosted Computer storage, databases, Support, documentation, and other
functionalities, all as a Software as a Service (?SaaS?) solution.

?State" shall mean the State of North Carolina, the Department of Infon'nation Technology as an
agency, or the agency identified in this solicitation as the Purchasing Agency and Award Authority.

?Support? includes provision of ongoing updates and maintenance for the Vendor online software
applications, and as may be specified herein, consulting, training and other support Services as
provided by the Vendor for Bass tenants receiving similar SaaS Services.

ACCESS AND LE OF SAAS SERVICES:

3}

Vendor grants the State a personal non-transferabie and non?exclusive right to use and access, at!
Services and other functionalities or services provided, furnished or accessible under this
Agreement. The State may utilize the Services as agreed herein and in accordance with any mutually
agreed Acceptable Use Policy. The State is authorized to access State Data and any Vendor-
provided data as specified herein and to transmit revisions, updates, deletions, enhancements, or
modifications to the State Data. This shall include the right of the State to, and access to, Support
without the Vendor requiring a separate maintenance or support agreement. Subject to an agreed

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limitation on the number of users, the State may use the Services with any computer, computer
system, server, or desktop workstation owned or utilized by the State or other authorized users. User
access to the Services shall be routinely provided by the Vendor and may be subject to a more
specific Service Level Agreement (SLA) agreed to in writing by the parties. The State shall notify the
Vendor of any unauthorized use of any password or account, or any other known or suspected
breach of security access. The State also agrees to refrain from taking any steps, such as reverse
engineering, reverse assembly or reverse compilation to derive a source code equivalent to the
Services or any portion thereof. Use of the Services to perform services for commercial third parties
{so- called ?service bureau" uses) is not permitted, but the State may utilize the Services to perform
its governmental functions. If the Services fees are based upon the number of Users andfor hosted
instances, the number of Userslhosted instances available may be adjusted at any time (subject to
the restrictions on the maximum number of Users specified in the Furnish and Deliver Table herein
above) by mutual agreement and State Procurement approval. All Services and information
designated as ?confidential? or ?proprietary" shall be kept in confidence except as may be required
by the North Carolina Public Records Act: N.C.G.S. 132-1, et. seq.

b) The State's access license for the Services and its associated services neither transfers, vests, nor
infers any title or other ownership right in any intellectual property rights of the Vendor or any third
party, nor does this license transfer, vest. or infer any title or other ownership right in any source
code associated with the Services unless otherwise agreed to by the parties. The provisions of this
paragraph will not be construed as a sale of any ownership rights in the Services. Any Services or
technical and business information owned by Vendor or its suppliers or licensors made accessible
or furnished to the State shall be and remain the property of the Vendor or such other party,
respectively. Vendor has a limited, non-exclusive license to access and use the State Data as
provided to Vendor, but solely for performing its obligations under this Agreement and in confidence
as provided herein.

c) Vendor or its suppliers shall at minimum, and except as otherwise agreed, provide telephone
assistance to the State for all Services procured hereunder during the State's normal business hours
(unless different hours are specified herein). Vendor warrants that its Support and customer service
and assistance will be performed in accordance with generally accepted industry standards. The
State has the right to receive the bene?t of upgrades, updates, maintenance releases or other
enhancements or modifications made generally available to Vendor?s SaaS tenants for similar
Services. Vendor's right to a new use agreement for new version releases of the Services shall not
be abridged by the foregoing. Vendor may, at no additional charge, modify the Services to improve
operation and reliability or to meet legal requirements.

cl) Vendor will provide to the State the same Services for updating, maintaining and continuing optimal
performance for the Services as provided to other similarly situated users or tenants of the Services,
but minimally as provided for and specified herein. Unless otherwise agreed in writing, Support will
also be provided for any other third?party) software provided by the Vendor in connection with
the Vendor?s solution herein. The technical and professional activities required fer establishing,
managing, and maintaining the Services environment are the responsibilities of the Vendor. Any
training specified herein will be provided by the Vendor to certain State users for the fees or costs as
set forth herein or in an SLA.

e) Services provided pursuant to this Solicitation may, in some circumstances, be accompanied by a
user clickwrap agreement. The term clickwrap agreement refers to an agreement that requires the
end user to manifest his or her assent to terms and conditions by clicking an ?ok? or ?agree" button on

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a dialog box or pop-up window as part of the process of access to the Services. All terms and
conditions of any clickwrap agreement provided with any Services solicited herein shall have no force
and effect and shall be non?binding on the State, its employees, agents, and other authorized users
of the Services.

f) The Vendor may utilize partners andfor subcontractors to assist in the provision of the Services, so
long as the State Data is not removed from the United States unless the terms of storage of the State
Data are clearly disclosed, the security provisions referenced herein can still be complied with, and
such removal is done with the prior express written permission of the State. The Vendor shall identify
all of its strategic business partners related to Services provided under this contract, including but
not limited to, all subcontractors or other entities or individuals who may be a party to a joint venture

or similar agreement with the Vendor, who will be involved in any application development andi?or
operations.

9} Vendor warrants that all Services will be performed with professional care and skill, in a workmanlike
manner and in accordance with the Services documentation and this Agreement.

h) An SLA or other agreed writing shall contain provisions for scalability of Services and any variation
in fees or costs as a result of any such scaling.

i) Professional services provided by the Vendor at the request by the State in writing in addition to
agreed Services shall be at the then-existing Vendor hourly rates when provided, unless otherwise
agreed in writing by the parties.

WARRANTY OF REMEDIES.
a) Vendor warrants to the best of its knowledge that:
i) The Services do not infringe any intellectual property rights of any third party; and

ii) There are no actual or threatened actions arising from, or alleged under, any intellectual
property rights of any third party;

b) Should any Services supplied by Vendor become the subject of a claim of infringement of a patent,
copyright, Trademark or a trade secret in the United States, the Vendor, shall at its option and
expense, either procure for the State the right to continue using the Services, or replace or modify
the same to become noninfringing. If neither of these options can reasonably be taken in Vendor's
judgment, or if further use shall be prevented by injunction, the Vendor agrees to cease provision of
any affected Services, and refund any sums the State has paid Vendor and make every reasonable
effort to assist the State in procuring substitute Services. If, in the sole opinion of the State, the
cessation of use by the State of any such Services due to infringement issues makes the retention
of other items acquired from the Vendor under this Agreement impractical, the State shall then have
the option of terminating the Agreement, or applicable portions thereof, without penalty or termination
charge; and Vendor agrees to refund any sums the State paid for unused Services.

0) The Vendor, at its own expense, shall defend any action brought against the State to the extent that
such action is based upon a claim that the Services supplied by the Vendor, their use or operation,
infringes on a patent, copyright, trademark or violates a trade secret in the United States. The Vendor
shall pay those costs and damages ?nally awarded or agreed in a settlement against the State in
any such action. Such defense and payment shall be conditioned on the following:

i) That the Vendor shall be notified within a reasonable time in writing by the State of any such

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claim; and,

ii) That the Vendor shall have the sole control of the defense of any action on such claim and all
negotiations for its settlement or compromise provided, however, that the State shall have the
option to participate in such action at its own expense.

d) Vendor will not be required to defend or indemnify the State if any claim by a third party against the
State for infringement or misappropriation results from the State's material alteration of any Vendor-
branded Services, or from the continued use of the good(s) or Services after receiving notice they
infringe on a trade secret of a third party.

4) ACCESS REMEDIES:

a) The Vendor warrants that the Services will be in good working order, and operating in conformance
with Vendor?s standard specifications and functions as well as any other speci?cations agreed to by
the parties in writing, and shall remain accessible 2417, with the exception of scheduled outages for
maintenance and of other service level provisions agreed in writing, in an SLA. Vendor does
not warrant that the operation of the Services will be completely uninterrupted or error free, or that
the Services functions will meet all the State's requirements, unless developed as Customized
Services.

is) The State shall notify the Vendor if the Services are not in good working order or inaccessible during
the term of the Agreement. Vendor shall, at its option, either repair, replace or reperform any Services
reported or discovered as not being in good working order and accessible during the applicable
contract term without cost to the State. If the Services availability averages less than 99.9%
(excluding agreed-upon maintenance downtime), the State shall be entitled to receive automatic
credits as indicated immediately below, or the State may use other contractual remedies such as
recovery of damages, as set forth herein in writing, in Speci?cations, Special Terms or in an
SLA, and as such other contractual damages are limited by N.C.G.S. and the
Limitation of Liability paragraph below. If not otherwise provided, the automatic remedies for
nonavailability of the Subscription Services during a month are:

1. A 10% service credit applied against future fees if Vendor does not reach 999% availability.
2. A 25% service credit applied against future fees if Vendor does not reach 99% availability.

3. A 50% service credit applied against future fees or eligibility for early termination of the
Agreement if Vendor does not reach 95% availability.

If, however, Services meet the 99.9% service availability level for a month, but are not available
for a consecutive120 minutes during that month, the Vendor shall grant to the State a credit of a
pro-rated one-day of the subscription Services fee against future Services charges.
Such credit(s) shall be applied to the bill immediately following the month in which Vendor failed
to meet the performance requirements or other service levels, and the credit will continue to be
deducted from the invoice for each prior month that Vendor fails to meet the support
response times for the remainder of the duration of the Agreement. If Services 
availability averages less than 99.9% (excluding agreed-upon maintenance downtime), for three
(3) or more months in a rolling twelve- month period, the State may also terminate the contract
for material breach in accordance with the Default provisions hereinbelow.

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5i

5)

7)

c) Support Services. If Vendor fails to meet Support Service response times as set forth herein or in an
SLA for a period ofthree consecutive months, a 10% service credit will be deducted from the invoice
in the month immediately following the third month, and the 10% service credit will continue to be
deducted from the invoice for each month that Vendor fails to meet the support response
times for the remainder of the duration of the Agreement.

EXCLUSIONS:

a) Except as stated above in Paragraphs 3 and 4, Vendor and its parent, subsidiaries and affiliates,
subcontractors and suppliers make no warranties, express or implied, as to the Services.

b) The warranties provided in Paragraphs 3 and 4 above do not cover repair for damages, malfunctions
or service failures substantially caused by:

i) Actions of non-Vendor personnel;
ii] Failure to follow Vendor?s written instructions relating to the Services provided to the State; or
Force Majeure conditions set forth hereinbelow.
iv) The State?s sole misuse of, or its own inability to use, the Services.
PERFORMANCE REVIEW AND ACCOUNTABILITY:

N.C.G.S. 1433-13406} and 09 NCAC 063.1207 require provisions for performance review and
accountability in State contracts. For this procurement. these shall include the holding a retainage of
10% of the contract value and withholding the final payment contingent on final acceptance by the State
as provided in 09 NCAC and unless waived or otherwise agreed, in writing. The
Services herein will be provided consistent with and under these Services performance review and
accountability guarantees.

LIMITATION OF LIABILITY: Limitation of Vendor?s Contract Damages Liability:

a) Where Services are under the State's exclusive management and control, the Vendor shall not be
liable for direct damages caused by the State?s failure to fulfill any State reaponsibilities of assuring
the proper use, management and supervision ofthe Services and programs, audit controls, operating
methods, of?ce procedures, or for establishing all proper checkpoints necessary for the State?s
intended use of the Services.

to) The Vendor's liability for damages to the State arising under the contract shall be limited to two times
the value of the Contract.

c) The foregoing limitation of liability shall not apply to claims covered by other specific provisions
including but not limited to Service Level Agreement or DeliverablelProduct Warranty compliance,
or to claims for injury to persons or damage to tangible personal property. gross negligence or willful
or wanton conduct. This limitation of liability does not apply to contributions among joint tortfeasors
under N.C.G.S. 18-1 et seq., the receipt of court costs or attorney's fees that might be awarded by
a court in addition to damages after litigation based on this Contract. For avoidance of doubt, the
Parties agree that the Service Level Agreement and Deliverable/Product Warranty Terms in the
Contract are intended to provide the sole and exclusive remedies available to the State under the
Contract for the Vendor?s failure to comply with the requirements stated therein.

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8) Vendor?s Liability for Iniury to Persons or Qamage to Property:

3} The Vendor shall be liable for damages arising out of personal injuries andlor damage to real or
tangible personal property of the State, employees of the State, persons designated by the State for
training, or person(s) other than agents or employees of the Vendor, designated by the State for
any purpose, prior to, during, or subsequent to delivery, installation, acceptance, and use of the
Deliverables either at the Vendor's site or at the State?s place of business, provided that the injury
or damage was caused by the fault or negligence of the Vendor.

b} The Vendor agrees to indemnify, defend and hold the Agency and the State and its Officers,
employees, agents and assigns harmless from any liability relating to personal injury or injury to real
or personal property of any kind, accruing or resulting to any other person, firm or corporation
furnishing or supplying work, Services, materials or supplies in connection with the performance of
this Agreement, whether tangible or intangible, arising out of the ordinary negligence, willful or
wanton negligence, or intentional acts of the Vendor, its officers, employees, agents, assigns or
subcontractors.

c) Vendor shall not be liable for damages arising out of or caused by an alteration or an attachment not
made or installed by the Vendor.

9) MODIFICATION OF SERVICES:

if Vendor modifies or replaces the Services provided to the State and other tenants, and if the State has
paid all applicable Subscription Fees, the State shall be entitled to receive, at no additional charge,
access to a newer version of the Services that supports substantially the same functionality as the then
accessible version of the Services. Newer versions of the Services containing substantiaily increased
functionality may be made available to the State for an additional subscription fee. In the event of either
of such modifications, the then accessible version of the Services shall remain fully available to the State
until the newer version is provided to the State and accepted. If a modification materially affects the
functionality of the Services as used by the State, the State, at its sole option, may defer such
modification.

10) TRANSITION PERIOE

a) For ninety (90) days, either prior to the expiration date of this Agreement, or upon notice of
termination of this Agreement, Vendor shall assist the State, upon written request, in extracting
and/or transitioning all Data in the format determined by the State (?Transition Period?).

b) The Transition Period may be modified in an SLA or as agreed upon in writing by the parties in a
contract amendment.

c) During the Transition Period, Services access shall continue to be made available to the State without
alteration.

d) Vendor agrees to compensate the State for damages or losses the State incurs as a result of
Vendor's failure to comply with this Transition Period section in accordance with the Limitation of
Liability provisions above.

e) Upon termination, and unless otherwise stated in an SLA, and after providing the State Data to the
State as indicated above in this section with acknowledged receipt by the State in writing, the Vendor
shall permanently destroy or render inaccessible any portion of the State Data in Vendor?s andlor

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subcontractor?s possession or control following the completion and expiration of all obligations in this

section. Within thirty (30) days, Vendor shall issue a written statement to the State confirming the
destruction or inaccessibility of the State's Data

f) The State at its option, may purchase additional Transition services as may be agreed upon in a
supplemental agreement.

11) TRANSPORTATION:

Transportation charges for any Deliverable sent to the State other than electronically or by download,
shall be FOB Destination unless delivered by internet or file-transfer as agreed by the State, or otherwise
specified in the solicitation document or purchase order.

12) TRAVEL EXPENSES:

         


In the event that the Vendor may be eligible to be reimbursed for
travel expenses specifically agreed to in writing and arising under the performance of this Agreement,
reimbursement will be at the out-of?state rates set forth in GS. ?138-6; as amended from time to time.
Vendor agrees to use the lowest available airfare not requiring a weekend stay and to use the lowest
available rate for rental vehicles. All Vendor incurred travel expenses shall be billed on a basis,
shall be supported by receipt and shall be paid by the State within thirty (30} days after invoice approval.
Travel expenses exceeding the foregoing rates shall not be paid by the State. The State will reimburse
travel allowances only for days on which the Vendor is required to be in North Carolina performing
Services under this Agreement.

13) PROHIBITION AGAINST CONTINGENT FEES AND GRATUITIES:

Vendor warrants that it has not paid, and agrees not to pay, any bonus, commission, fee, or gratuity to
any employee or of?cial of the State for the purpose of obtaining any contract or award issued by the
State. Subsequent discovery by the State of non-compliance with these provisions shall constitute
suf?cient cause for immediate termination of ail outstanding Agreements with the Vendor. Violations of
this provision may result in debarment of the Vendor(s} or Vendor(s) as permitted by 9 NCAC 068.1207,
or other provision of law.

14) AVAILABILITY OF FUNDS:

Any and ail payments by the State are expressly contingent upon and subject to the appropriation,
allocation and availability of funds to the State for the purposes set forth in this Agreement. If this
Agreement or any Purchase Order issued hereunder is funded in whole or in part by federal funds, the
State?s performance and payment shall be subject to and contingent upon the continuing availability of
said federal funds for the purposes of the Agreement or Purchase Order. If the term of this Agreement
extends into fiscal years subsequent to that in which it is approved such continuation of the Agreement
is expressly contingent upon the appropriation, allocation, and availability of funds by the NC. Legislature
for the purposes set forth in the Agreement. if funds to effect payment are not available, the State will
provide written notification to Vendor. If the Agreement is terminated under this paragraph, Vendor
agrees to terminate any Services supplied to the State under this Agreement, and relieve the State of
any further obligation thereof. The State shall remit payment for Services accepted on or prior to the
date of the aforesaid notice in conformance with the payment terms.

15) PAYMENT TERMS:
a) Payment may be made by the State in advance of or in anticipation of subscription Services to be

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actually performed under the Agreement or upon proper invoice for other Services rendered.
Payment terms are Net 30 days after receipt of correct invoice. Initial payments are to be made after
final acceptance of the Services. Payments are subject to any retainage requirements herein. The
Purchasing State Agency is responsible for all payments under the Agreement. Subscription fees
forterm years afterthe initial year shail be as quoted under State options herein, but shall not increase
more that 5% over the prior term, except as the parties may have agreed to an alternate formula to
determine such increases in writing. No additional charges to the State will be permitted based upon,
or arising from, the State?s use of a Business Procurement Card. The State may exercise any and all
rights of Set Off as permitted in Chapter 105A-?l ef seq. of the NC. General Statutes and applicable
Administrative Rules.

b) Upon Vendor?s written request of not less than 30 days and approval by the State, the State may:

i) Forward the Vendor's payment check(s) directly to any person or entity designated by the
Vendor, or

ii) Include any person or entity designated in writing by Vendor as a joint payee on the Vendor?s
payment check(s], however,

In no event shall such approval and action obligate the State to anyone other than the Vendor
and the Vendor shall remain responsible for ful?llment of all Agreement obligations.

c) For any third party software iicensed by Vendor or its subcontractors for use by the State, a copy of
the software license including terms acceptable to the State, an assignment acceptable to the State,
and documentation of license fees paid by the Vendor must be provided to the State before any
related license fees or costs may be billed to the State.

d) An undisputed invoice is an invoice for which the State and/or the Purchasing State Agency has not
disputed in writing within thirty (30) days from the invoice date, unless the agency requests more time
for review of the invoice. Upon Vendor's receipt of a disputed invoice notice, Vendor will work to
correct the applicable invoice error, provided that such dispute notice shall not relieve the State or
the applicable Purchasing State Agency from its payment obligations for the undisputed items on the
invoice or for any disputed items that are ultimately corrected. The Purchasing State Agency is not
required to pay the Vendor for any Software or Services provided without a written purchase order
from the appropriate Purchasing State Agency. In addition, all such Services provided must meet all
terms, conditions. and specifications of this Agreement and purchase order and be accepted as
satisfactory by the Purchasing State Agency before payment will be issued.

e) The Purchasing State Agency shall release any amounts held as retainages for Services completed
within a reasonable period after the end of the period(s) or term(s) for which the retainage was
withheld. Payment retainage shall apply to all invoiced items, excepting only such items as Vendor
obtains from Third Parties and for which costs are chargeable to the State by agreement of the
Parties. The Purchasing State Agency, in its sole discretion, may release retainages withheld from
any invoice upon acceptance of the Services identified or associated with such invoices.

16) ACCEPTANCE CRITERIA:

a) Initial acceptance testing is required for all Vendor supplied Services before going live, unless
provided otherwise in the solicitation documents or a Statement of Work. The State may define such
processes and procedures as may be necessary or proper, in its opinion and discretion, to ensure

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compliance with the State's speci?cations and Vendor?s technical representations. Acceptance of
Services may be controlled by additional written terms as agreed by the parties.

b) After initial acceptance of Services, the State shall have the obligation to notify Vendor, in writing
and within ten (10) days following provision of any Deliverable described in the contract if it is not
acceptable. The notice shall specify in reasonable detail the reason(s) a Deliverable is unacceptable.
Acceptance by the State of any Vendor or correction shall not be unreasonably
withheld, but may be conditioned or delayed as required for con?rmation by the State that the issue(s)
in the notice have been successfully corrected.

17} CONFIDENTIALITY:

The State may maintain the confidentiality of certain types of information described in N.C. Gen. Stat.
?132?1, et seq. Such information may include trade secrets defined by N.C. Gen. Stat. ?66-152 and
other information exempted from the Public Records Act pursuant to N.C. Gen. Stat. ?132-1.2. Vendor
may designate information, Products, Services or appropriate portions of its response as confidential,
consistent with and to the extent permitted under the Statutes and Rules set forth above, by marking the
top and bottom of pages containing confidential information with a legend in boldface type
By so marl-ting any page, or portion of a page, the Vendor warrants that it has formed
a good faith opinion, having received such necessary or proper review by counsel and other
knowledgeable advisers, that the portions marked ?confidential" meet the requirements of the Rules and
Statutes set forth above. However, under no circumstances shaii price information be designated
as con?dentiai. The State agrees to notify the Vendor in writing of any action seeking to
compel the disclosure of Vendor's confidential information. If an action is brought pursuant to N.C. Gen.
Stat. ?132~9 to compel the State to disclose information marked ?confidential," the Vendor agrees that it
will intervene in the action through its counsel and participate in defending the State, including any public
officialts) or public employee(s). The Vendor agrees that it shall hold the State and any officialts) and
individual(s) harmless from any and all damages, costs, and attorneys? fees awarded against the State
in the action. The State shall have the right, at its option and expense, to participate in the defense of
the action through its counsel. The State shall have no liability to Vendor with respect to the disclosure
of Vendor's confidential information ordered by a court of competent jurisdiction pursuant to N.C. Gen.
Stat. ?132?9 or other applicable law.

18} SECURITY OF STATE DATA:

a) All materials, including software, Data, information and documentation provided by the State to the
Vendor (State Data) during the performance or provision of Services hereunder are the property of
the State of North Carolina and must be kept secure and returned to the State. The Vendor will
protect State Data in its hands from unauthorized disclosure, loss, damage, destruction by natural
event, or other eventuality. Proprietary Vendor materials shall be identified to the State by Vendor
prior to use or provision of Services hereunder and shall remain the property of the Vendor. Derivative
works of any Vendor proprietary materials prepared or created during the performance of provision
of Services hereunder shall be provided to the State as part of the Services. The Vendor shall not
access State User accounts, or State Data, except during data center operations, (ii) in response
to service or technical issues, as required by the express terms of this contract, or (iv) at State's
written request. The Vendor shall protect the confidentiality of all information, Data, instruments,
studies, reports, records and other materials provided to it by the State or maintained or created in
accordance with this Agreement. No such infon'naticn, Data, instruments, studies, reports, records

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and other materials in the possession of Vendor shall be disclosed in any form without the prior
written agreement with the State. The Vendor will have written policies governing access to and
duplication and dissemination of all such information, Data, instruments, studies, reports, records
and other materials

b} The Vendor shall not store or transfer non-public State data outside of the United States. This
includes backup data and Disaster Recovery locations. The Service Provider will permit its
personnel and contractors to access State of North Carolina data remotely only as required to
provide technical support.

o) Protection of personal privacy and sensitive data. The Vendor acknowledges its responsibility for
securing any restricted or highly restricted data, as defined by the Statewide Data Classification and
Handling Policy that is
collected by the State and stored in any Vendor site or other Vendor housing systems including, but
not limited to, computer systems, networks. servers, or databases, maintained by Vendor or its
agents or subcontractors in connection with the provision of the Services. The Vendor warrants, at
its sole cost and expense, that it shall implement processes and maintain the security of data
classified as restricted or highly restricted; provide reasonable care and efforts to detect fraudulent
activity involving the data; and notify the State of any breaches of security within 24 hours of
confirmation as required by 

d) The Vendor will provide and maintain secure backup of the State Data. The Vendor shall implement
and maintain secure passwords for its online system providing the Services, as well as all appropriate
administrative, physical, technical and procedure! safeguards at all times during the term of this
Agreement to secure such Data from Data Breach, protect the Data and the Services from loss,
corruption, unauthorized disclosure, and the introduction of viruses, disabling devices, malware and
other forms of malicious or inadvertent acts that can disrupt the State?s access to its Data and the
Services. The Vendor will allow periodic back-up of State Data by the State to the State?s
infrastructure as the State requires or as may be provided by law.

e) The Vendor shall certify to the State:

i) The sufficiency of its security standards, tools, technologies and procedures in providing
Services underthis Ag reement;

ii) That the system used to provide the Subscription Services under this Contract has and will
maintain a valid 3rd party security certi?cation not to exceed 1 year and is consistent with the
data classification level and a security controls appropriate for low or moderate information
system(s) per the National institute of Standards and Technology NIST 800-53 revision 4The
State reserves the right to independently evaluate, audit, and verify such requirements.

That the Services will comply with the following:

(1) Any DIT security policy regarding Cloud Computing, and the DIT Statewide information
Security Policy Manual; to include requirements as defined below:

The Vendor shall all non-public data in transit regardless of the transit
mechanism.

For engagements where the Vendor stores sensitive personally identifiable or
otherwise confidential information, this data shall be at rest.
Examples are social security number, date of birth, driver?s license number,

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financial data, federalistate tax information, and hashed passwords. The
Vendor?s shall be consistent with validated standards
as specified in National Institute of Standards and Technology

IP81 40-2, Security Requirements. The key location and other key
management details will be discussed and negotiated by both parties. When
the Service Provider cannot offer at rest, it must maintain, for the
duration of the contract, cyber security liability insurance coverage for any
loss resulting from a data breach. Additionally, where of data at
rest is not possible, the Vendor must describe existing security measures
that provide a similar level of protection;

(2) Privacy provisions of the Federal Privacy Act of 1974;

(3) The North Carolina Identity Theft Protection Act, N.C.G.S. Chapter 75, Article 2A 
N.C.G.S. 65 and -66):

(4) The North Carolina Public Records Act, N.C.G.S. Chapter 132; and

Applicable Federal, State and industry standards and guidelines including, but not limited
to, relevant security provisions of the Payment Card industry (PCI) Data Security Standard
including the PCIDSS Cloud Computing Guidelines, Criminal Justice
Information, The Family Educational Rights and Privacy Act (F ERPA), Health insurance
Portability and Accountability Act 

Any requirements implemented by the State under N.C.G.S. 1438-137'6 and 4377.

t) Security Breach. "Security Breach" under the NC Identity Theft Protection Act (N.C.G.S. 75-6015?)
means (1) any circumstance pursuant to which applicable Law requires notification of such breach
to be given to affected parties or other activity in response to such circumstance N.C.G.S. 7'5-
65}; or (2) any actual, attempted, suspected, threatened, or reasonably foreseeable circumstance
that compromises, or could reasonably be expected to compromise, either Physical Security or
Systems Security (as such terms are defined below) in a fashion that either does or oculd reasonably
be expected to permit unauthorized Processing (as defined below), use, disclosure or acquisition of
or access to any the State Data or state con?dential information. ?Physical Security" means physical
security at any site or other location housing systems maintained by Vendor or its agents or
subcontractors in connection with the Services. ?Systems Security" means security of computer,
electronic or telecommunications systems of any variety (including data bases, hardware, software,
storage, switching and interconnection devices and mechanisms), and networks of which such
systems are a part or communicate with, used directly or indirectly by Vendor or its agents or
subcontractors in connection with the Services. ?Processing? means any operation or set of
operations performed upon the State Data or State con?dential information, whether by automatic
means, such as creating, collecting, procuring, obtaining, accessing, recording, organizing, storing,
adapting, altering, retrieving, consulting, using, disclosing or destroying.

g) Breach Notification. In the event Vendor becomes aware of any Security Breach due to Vendor acts
or omissions other than in accordance with the terms of the Agreement, Vendor shall, at its own
expense, (1) immediately notify the State?s Agreement Administrator of such Security Breach and
perform a root cause analysis thereon, (2) investigate such Security Breach, provide a
remediation plan, acceptable to the State, to address the Security Breach and prevent any further
incidents, (4) conduct a forensic investigation to determine what systems, data and information have

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been affected by such event; and (5) cooperate with the State, and any law enforcement or regulatory
of?cials, credit reporting companies, and credit card associations investigating such Security
Breach. The State shall make the final decision on notifying the State's persons, entities, employees.
service providers andror the public of such Security Breach. and the implementation of the
remediation plan. If a notification to a customer is required under any Law or pursuant to any of the
State's privacy or security policies, then notifications to all persons and entities who are affected by
the same event (as reasonably determined by the State} shall be considered legally required.

h) Notification Related Costs. Vendor shall reimburse the State for all Notification Related Costs
incurred by the State arising out of or in connection with any such Security Breach due to Vendor
acts or omissions other than in accordance with theterms ofthe Agreement resulting in a requirement
for legally required notifications. ?Notification Related Costs? shall include the State's internal and
external costs associated with addressing and responding to the Security Breach, including but not
limited to: (1) preparation and mailing or other transmission of legally required notifications; 
preparation and mailing or other transmission of such other communications to customers, agents or
others as the State deems reasonably appropriate; (3) establishment of a call center or other
communications procedures in response to such Security Breach (eg, customer service FAQs,
talking points and training); (4) public relations and other similar crisis management services; (5)
legal and accounting fees and expenses associated with the State's investigation of and response
to such event; and (6) costs for credit reporting services that are associated with legally required
notifications or are advisable, in the State's opinion, under the circumstances. If the Vendor becomes
aware of any Security Breach which is not due to Vendor acts or omissions other than in accordance
with the terms of the Agreement, Vendor shall immediately notify the State of such Security Breach,
and the parties shall reasonably cooperate regarding which of the foregoing or other activities may
be appropriate under the circumstances, including any applicable Charges for the same.

i} Vendor shall allow the State reasonable access to Services security logs, latency statistics, and
other related Services security data that affect this Agreement and the State's Data, at no cost to
the State.

j) In the course of normal operations, it may become necessary for Vendor to copy or move Data to
another storage destination on its online system, and delete the Data found in the original location.
In any such event, the Vendor shall preserve and maintain the content and integrity of the Data,
except by prior written notice to, and prior written approval by, the State.

k) Remote access to Data from outside the continental United States, including, without limitation,
remote access to Data by authorized Services support staff in identified support centers, is prohibited
unless approved in advance by the State Chief Information Officer or the Using Agency.

In the event of temporary loss of access to Services, Vendor shall restore continuity of
Services, restore Data in accordance with this Agreement and as may be set forth in an SLA, restore
accessibility of Data and the Services to meet the performance requirements stated herein or in an
SLA. As a result, Service Level remedies will become available to the State as provided herein, in
the SLA or other agreed and relevant documents. Failure to remedy any such temporary
loss of access may result in the State exercising its options for assessing damages under this
Agreement.

m} In the event of disaster or catastrophic failure that results in signi?cant State Data loss or extended
loss of access to Data or Services, Vendor shall notify the State by the fastest means available and
in writing, with additional notification provided to the State Chief Information Officer or designee of

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the contracting agency. Vendor shall provide such notification within twenty?four (24) hours after
Vendor reasonably believes there has been such a disaster or catastrophic failure. In the noti?cation,
Vendor shall inform the State of:

(1) The scale and quantity of the State Data loss;

(2) What Vendor has done or will do to recover the State Data from backups and mitigate
any deleterious effect of the State Data and Services loss; and

What corrective action Vendor has taken or will take to prevent future State Data and
Services loss.

(4) If Vendor fails to respond immediately and remedy the failure, the State may exercise
its options for assessing damages or other remedies under this Agreement._Vendor
shall investigate of the disaster or catastrophic failure and shall share the report of the
investigation with the State. The State andfor its authorized agents shall have the right
to lead (if required by law) or participate in the investigation. Vendor shall cooperate
fully with the State, its agents and law enforcement.

n} In the event of termination of this contract, cessation of business by the Vendor or other event
preventing Vendor from continuing to provide the Services, Vendor shall not withhold the State Data
or any other State confidential information or refuse for any reason, to return to the State
the State Data and any other State confidential information (including copies thereof) if requested to
do so on such media as reasonably requested by the State, even if the State is then or is alleged to
be in breach of the Agreement. As a part of Vendor?s obligation to provide the State Data pursuant
to this Paragraph 1 B) Vendor will also provide the State any data maps, documentation, software,
or other materials necessary, including, without limitation, handwritten notes, materials, working
papers or documentation, for the State to use, translate, interpret, extract and convert the State Data.

0) Secure Data Disposal. When requested by the State, the Vendor shall destroy all requested data in
all of its forms, for example: disk, CDIDVD, backup tape, and paper. Data shall be permanently
deleted and shall not be recoverable, according to National Institute of Standards and Technology
(NIST) approved methods and certificates of destruction shall be provided to the State.

19) ACCESS TO PERSONS AND RECORDS:

Pursuant to NC. General Statute 147-647, the State, the State Auditor, appropriate federal officials,
and their respective authorized employees or agents are authorized to examine all books, records, and
accounts of the Vendor insofar as they relate to transactions with any department, board, of?cer,
commission, institution, or other agency of the State of North Carolina pursuant to the performance of
this Agreement or to costs charged to this Agreement. The Vendor shall retain any such books, records,
and accounts for a minimum of three (3) years after the completion of this Agreement. Additional audit
or reporting requirements may be required by any State, if in the State?s opinion, such requirement is
imposed by federal or state law or regulation. The Vendor shall allow the State to audit conformance
including contract terms, system security and data centers as appropriate. The State may perform this
audit or contract with a third party at its discretion at the State?s expense. Such reviews shall be
conducted with at least 30 days? advance written notice and shall not unreasonably interfere with the
Service Provider?s business.

20) ASSIGNMENT:

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Vendor may not assign this Agreement or its obligations hereunder except as permitted by 09 NCAC
065.1003 and this Paragraph. Vendor shall provide reasonable notice of not less than thirty (30} days
of any consolidation, acquisition, or merger. Any assignee shall affirm this Agreement attorning to the
terms and conditions agreed, and that Vendor shall affirm that the assignee is fully capable of performing
all obligations of Vendor under this Agreement. An assignment may be made, if at all, in writing by the

Vendor, Assignee and the State setting forth the foregoing obligation of Vendor and Assignee.

21) NOTICES:

Any notices required under this Agreement should be delivered to the Agreement Administrator for each
party. Unless otherwise specified in the Solicitation Documents, any notices shall be delivered in writing
by US Mail, Commercial Courier, facsimile or by hand.

22) TITLES AND HEADINGS:

Titles and Headings in this Agreement are used for canvenience only and do not define, limit or proscribe
the language of terms identified by such Titles and Headings.

23) AMENDMENT:

This Agreement may not be amended orally or by performance. Any amendment must be made in written
form and signed by duly authorized representatives of the State and Vendor.

24) TAXES:

The State of North Carolina is exempt from Federal excise taxes and no payment will be made for any
personal property taxes levied on the Vendor or for any taxes levied on employee wages. Agencies of
the State may have additional exemptions or exclusions for federal or state taxes. Evidence of such
additional exemptions or exclusions may be provided to Vendor by Agencies, as applicable, during the
term of this Agreement. Applicable State or local sales taxes shall be invoiced as a separate item.

25) GOVERNING LAWS, JURISDICTION, AND VENUE:

This Agreement is made under and shall be govemed and construed in accordance with the laws of the
State of North Carolina. The place of this Agreement or purchase order, its situs and forum, shall be
Wake County, North Carolina, where all matters, whether sounding in contract or in tort, relating to its
validity, construction, interpretation and enforcement shall be determined. Vendor agrees and submits,
solely for matters relating to this Agreement, to thejurisdiction of the courts of the State of North Carolina,
and stipulates that Wake County shall be the proper venue for all matters.

26) DEFAULT:

In the event Services or other Deliverable furnished or performed by the Vendor during performance of
any Contract term fail to conform to any material requirement(s) of the Contract specifications, notice of
the failure is provided by the State and if the failure is not cured within ten (10) days, or Vendor fails to
meet the material requirements and specifications herein, the State may cancel the contract. Default
may be cause for debarment as provided in 09 NCAC 0531206. The rights and remedies of the State
provided above shall not be exclusive and are in addition to any other rights and remedies provided by
law or under the Contract.

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a) If Vendorfails to deliver or provide correct Services within the time required by this Contract, the State
shall provide written notice of said failure to Vendor. and by such notice require performance
assurance measures pursuant to N.C.G.S. 1433-13400). Vendor is responsible for the delays
resulting from its failure to deliver or provide Services or other Deliverables.

b} Should the State fail to perform any of its obligations upon which Vendor's performance is conditioned,
Vendor shall not be in default for any delay, cost increase or other consequences resulting from the
State's failure. Vendor will use reasonable efforts to mitigate delays, costs or expenses arising from
assumptions in the Vendor's offer documents that prove erroneous or are otherwise invalid. Any
deadline that is affected by any such Vendor failure in assumptions or performance by the State
shall be extended by an amount of time reasonably necessary to compensate for the effect of such
failure. Vendor shall provide a plan to cure any delay or default if requested by the State. The plan
shall state the nature of the delay or default, the time required for cure, any mitigating factors causing
or tending to cause the delay or default, and such other information as the Vendor may deem
necessary or proper to provide.

27) FORCE MAJEURE:

Except as provided for herein, neither party shall be deemed to be in default of its obligations hereunder
if and so long as it is prevented from performing such obligations as a result of events beyond its
reasonable control, including without limitation, ?re, power failures, any act of war, hostile foreign action,
nuclear explosion, riot, strikes or failures or refusals to perform under subcontracts, civil insurrection,
earthquake, hurricane, tornado, or other catastrophic natural event or act of God.

28} COMPLIANCE WITH LAWS:

The Vendor shall comply with all laws, ordinances, codes, rules, regulations, and licensing
requirements that are applicable to the conduct of its business and the provision of Services
hereunder, including those of federal, state, and local agencies having jurisdiction andior
authority.

29) TERMINATION:

Any notice or termination made under this Agreement shall be transmitted via US Mail, Certified
Return Receipt Requested. The period of notice for termination shall begin on the day the return
receipt is signed and dated. The parties may mutually terminate this Agreement by written agreement
at any time.

a) The State may terminate this Agreement, in whole or in part, pursuant to the Paragraph entitled
"Default," above, or pursuant to Special Terms and Conditions in the Solicitation Documents, if any,
or for any of thefollowing

i) Termination for Cause: In the event any goods, Services, or service furnished by the Vendor
during performance fails to conform to any material specification or requirement of the
Agreement, and the failure is not cured within the specified time after providing written notice
thereof to Vendor, the State may cancel and procure the articles or Services from other
sources; holding Vendor liable for any excess costs occasioned thereby, subject only to the
limitations provided in Paragraph 7), entitled ?Limitation of Liability.? The rights and remedies
of the State provided above shall not be exclusive and are in addition to any other rights and
remedies provided by law or under the Agreement. Vendor shall not be relieved of liability to
the State for damages sustained by the State arising from Vendor's breach of this Agreement;

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and the State may, in its discretion, withhold any payment due as a setoff until such time as
the damages are ?nally determined or as agreed by the parties. Voluntary or involuntary
Bankruptcy or receivership by Vendor shall be cause for termination.

ii) Termination for Convenience Without Cause: The State may terminate service and indefinite
quantity contracts, in whole or in part by giving thirty (30} days prior notice in writing to the
Vendor. Vendor shall be

entitled to sums due as compensation for Services performed in conformance with the
Agreement. In the event the Agreement is terminated for the convenience of the State the
State will pay for all Services and work performed or delivered in conformance with the
Agreement up to the date of termination.

30) DISPUTE RESOLUTION:

The parties agree that it is in their mutual interest to resolve disputes informally. A claim by the State
shail be submitted in writing to the Vendor?s Agreement Administrator for decision. The Parties shall
negotiate in good faith and use all reasonable efforts to resolve such dispute(s). During the time the
Parties are attempting to resolve any dispute, each shall proceed diligently to perform their respective
duties and responsibilities under this Agreement. If a diapute cannot be resolved between the Parties
within thirty (30) days after delivery of notice, either Party may elect to exercise any other remedies
available under this Agreement, or at law. This term shall not constitute an agreement by either party to
mediate or arbitrate any dispute.

31) SEVERABILITY:

In the event that a court of competent jurisdiction holds that a provision or requirement of this Agreement
violates any applicable law, each such provision or requirement shall be enforced only to the extent it is
not in violation of law or is not othenivise unenforceable and all other provisions and requirements of this
Agreement shall remain in full force and effect. All promises, requirement, terms, conditions. provisions.
representations, guarantees and warranties contained herein shall survive the expiration or termination
date unless speci?cally provided otherwise herein, or unless superseded by applicable federal or State
statute, including statutes of repose or limitation.

32) FEDERAL INTELLECTUAL PROPERTY BANKRUPTCY PROTECTION ACT:

The Parties agree that the State shall be entitled to any and all rights and benefits of the Federal
Intellectual Property Bankruptcy Protection Act, Public Law 100-506, codified at 11 USS. 365(n), and
any amendments thereto.

33) ELECTRONIC PROCUREMENT:

(Applies to all contracts that include E-Procurement and are identified as such in the body of the
solicitation document}: Purchasing shall be conducted through the Statewide E-Prccurernent Service.
The State's third party agent shall serve as the Supplier Manager for this E-Prccurement Service. The
Vendor shall register for the Statewide E-Procurement Service within two (2) business days of
notification of award in orderto receive an electronic purchase order resulting from award of this contract.
The E-Procurement fee does not normally apply to services.

a) Reserved.
b} Reserved.

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C)

The Supplier Manager will capture the order from the State approved user, including the shipping
and payment information. and submit the order in accordance with the E-Procurement Service.
Subsequently. the Supplier Manager will send those orders to the appropriate Vendor on State
Agreement. The State or State approved user, not the Supplier Manager, shall be responsible for the
solicitation, bids received, evaluation of bids received, award of contract, and the payment for goods
delivered.

Vendor agrees at all times to maintain the confidentiality of its user name and password for the
Statewide E- Procurement Services. if a Vendor is a corporation, partnership or other legal entity.
then the Vendor may authorize its employees to use its password. Vendor shall be responsible for
all activity and all charges for such employees. Vendor agrees not to permit a third party to use the
Statewide E-Procurement Services through its account. If there is a breach of security through the
Vendor?s account, Vendor shall immediately change its password and notify the Supplier Manager of
the security breach by e?mail. Vendor shall cooperate with the state and the Supplier Manager to
mitigate and correct any security breach.

Attachment A: Change Speci?cations and Terms of Use

El .5 

1. AW The vendor will provide high-contrast ADA-compliant versions of
reports throughout the life of the contract for a one?time cost of $12.500.00.

2. The vendor agrees to provide the Oral Reading Fluency

Assessment at no additional cost to the Stateadditional
professional development is desired and agreed to by the state the cost will be $5 800. 00 per
day of professional development and $550. 00 per webinar

 

4. W: The vendor agrees to provide the Lectura Temprana no

additional costs to state.

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5. W: The vendor agrees to create norms (percentile ranks) and growth
expectations speci?c to the state of North Carolina throughout the life of the contract for a
one?time cost of $25,000.00.

6. The vendor agrees to provide the following

customizations and enhancements at no additional cost to the State, throughout the life of the
contract:

A. Customized communications (eg. emails, newsletters, etc);
Customized training;
Customized webinars;

Customized videos;

?11.09!?

Customized enrollment webpages; and
F. Customized surveys and evaluation templates.

Customization of training and webinars shall consist of development of materials, agendas,
content speci?c to North Carolina, etc. and does not include the delivery of the physical
sessions speci?ed above in Section 1.3 

lstation's Terms of Use and Privacy Policy, as modified herein, is incorporated by reference.
These modi?cations are restated below and comprise the Licensor's Agreement for the State's
use. Such modi?ed terms comprise the License grant and agreement for the State's use of the
[station Resources.

General Modifications to the lstation Terms of Use and Privacy Policy:

a) Third Party Software, Open Source Software, and ?ow down terms: Notwithstanding
terms and conditions, hyperlinks, or similar references to additional license agreements of third
Parties presented in lstation's Terms of Use, the State has no ?nancial obligation or liability to
lstation or such third parties under such additional license agreements. The State will not
knowingly violate the licensing limitations stated in such additional license agreements.

h) universal license by use or installation: Notwithstanding terms of the lstation's
Terms of Use conditioning the license grant upon acceptance of terms when downloading,
installing, using, etc. the software (eg. by using the software, you accept and agree to the terms
and conditions of this agreement), such conditions shall not bind the State or its agencies, and
such conditions shall be superseded by these General Modi?cations to the Terms oste.

c) IP Indemnity: Notwithstanding lstation's rights to defend its IP and its obtigations to
indemnify the State, the State shall have the right to participate in any litigation, alternative
dispute resolution and settlement of such claims to the extent the State seeks to assert any
immunities or defenses applicable to the State as a sovereign government.

d) Neither party to this Agreement is entitled to obtain judgment from the other party for
attorney fees it has incurred in any litigation between the parties or in defense of any claim
asserted by a third party. Either party may seek such equitable relief, costs and fees as
permitted by applicable law.

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e) Notwithstanding any term in the lstation Agreement or Terms of Use prohibiting
assignment or transfer of the agreement, transfers authorized by N.C.G.S. are not
prohibited or limited.

1) Notwithstanding any merger clauses in the Istation Terms of Use, these General
Modi?cations shall be read together with the RFP and Terms of Use as the agreement of the
Parties.

g) Notwithstanding any term in the Istation Terms of Use providing for data transfers, no
data or records may be transferred outside of the United States unless speci?cally authorized
by the State.

h) Notwithstanding any term in the Istation Terms of Use, the State shall retain all right,
title and interest in information, data. and other content that is collected, downloaded, or
otherwise received, directly or indirectly from the State along with any information, data and
other content that incorporates or is othenivise derived from the processing of such
information, data, and content by or through the licensed software. These rights retained by
the State include the unencumbered right to use this data for any purpose whatsoever with no
further obligation by the State to Istation for the use of this data.

Notwithstanding any term in the Istation Terms of Use, the State has no obligation to
obtain speci?c parental consent for a child under thirteen to use the products or services
provided by this Agreement. The State acknowledges that it will comply with the Children's
Online Privacy Protection Act of 1998 and rules and regulations when
administering the products or services provided by the Agreement.

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