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HomeMy WebLinkAboutContract 52808 r�r00 0, J FORT WORTH 1 � CITY SECRETARY CONTRACT NO. � be r c�rtcSE� .� CITY OF FORT WORTH COOPERATIVE PURCHASE AGREEMENT This Cooperative Purchase Agreement ("Agreement") is entered into by and between Netsync Network Solutions, LLC ("Seller") and the City of Fort Worth, ("Buyer"), a Texas home rule municipal corporation. The Cooperative Purchase Agreement includes the following documents which shall be construed in the order of precedence in which they are listed: 1. This Cooperative Purchase Agreement; 2. Schedule A—Terms and Conditions; 3. Schedule B —Scope of Services 4. Schedule C —Texas DIR Contract No. DIR-TSO-4299 Schedules A, B and C which are attached hereto and incorporated herein, are made a part of this Agreement for all purposes. In the event of a conflict between Schedule A—Terms and Conditions and Schedule C — [Cooperative Agency Contract], then Schedule A — Terms and Conditions shall control, but only to the extent allowable under the [Texas DIR Contract No. DIR-TSO-4299]. The maximum amount to be paid to the Seller for all services performed and goods purchased hereunder shall not exceed Six Hundred Fifty Thousand Dollars and 00/100 ($650,000.00) per year. The undersigned represents and warrants that he or she has the power and authority to execute this Agreement and bind the respective Seller. Seller and Buyer have caused this Agreement to be executed by their duly authorized representatives to be effective as of the date signed below. rO,F MAL RECORD 'CITY SECRETARY F1, WORTH,TX ACCEPTED AND AGREED: CITY: CITY OF FORT WORTH CONTRACT COMPLIANCE MANAGER: By signing I acknowledge that I am the person responsible for the monitoring and administration of this contract, including ensuring all perfbrmance By: and reporting requirements. Name: Kevin Gunn \ \ Title: Assistant City Manager \ \ Date: ' �-"F 20/y By: y Name: Alex Varghese APPROVAL RECOMMENDED: Title: Sr. Contract Compliance Specialist 14 4:�:� APPROVED AS TO FORM AND LEGALITY: By: All Name: Rog Wight Title: Director, IT Solutions By: Name: J .B. rong Title: Assistant City ttorney ATTEST: CONTRACT AUTHORIZATION: M&C: 19-123 01110/ 1 9 By: Name: ary J Kays Title: City Secretary U VENDOR: C Netsync Network Solutions, LLC. B Nicole Nordhougen Y: Name: Nicole Nordhougen Title: General counsel Date: 9/11/2019 OFFICIAL RECORD CITY SECRETARY FT. WORTH,TX Schedule A Terms and Conditions Appendix A Standard Terms and Conditions For Product and Related Services Contracts Table of Contents 1. Contract Scope....................................................................................................................... 1 2. No Quantity Guarantees......................................................................................................... 1 3. Definitions.............................................................................................................................. 1 4. General Provisions.................................................................................................................2 A. Entire Agreement..........................................................................................................2 B. Modification of Contract Terms and/or Amendments..................................................2 C. Invalid Term or Condition............................................................................................2 D. Assignment...................................................................................................................3 E. Survival.........................................................................................................................3 F. Choice of Law...............................................................................................................3 G. Limitation of Authority................................................... .............................................3 H. Proof of Financial Stability............................................. .............................................3 5. Intellectual Property Matters.................................................... .............................................3 A. Definitions....................................................................... .............................................3 B. Ownership....................................................................... .............................................4 C. Further Actions. ............................................................................................................5 D. Waiver of Moral Rights................................................................................................ 5 E. Confidentiality.............................................................................................................. 5 F. Injunctive Relief...........................................................................................................6 G. Return of Materials Pertaining to Work Product..........................................................6 H. Vendor License to Use..................................................................................................6 I. Third-Party Underlying and Derivative Works............................................................6 J. Agreement with Subcontracts.......................................................................................6 K. License to Customer. ....................................................................................................6 L. Vendor Development Rights.........................................................................................7 6. Product Terms and Conditions ..............................................................................................7 A. Electronic and Information Resources Accessibility Standards, As Required by 1 TAC Chapters 206 and 213(Applicable to State Agency and Institution of Higher Education Purchases Only).........................................................7 B. Purchase of Commodity Items(Applicable to State Agency Purchases Only).............................................................................................................................7 7. Contract Fulfillment and Promotion...................................................................................... 8 A. Service,Sales and Support of the Contract...................................................................8 B. Use of Order Fulfillers..................................................................................................8 09/29/2017 i Appendix A Standard Terms and Conditions For Product and Related Services Contracts 1) Designation of Order Fulfillers...............................................................................8 2) Changes in Order Fulfiller list...............................................................................8 3) Order Fulfiller Pricing to Customer........................................................................8 C. Product Warranty and Return Policies..........................................................................9 D. Customer Site Preparation............................................................................................9 E. Internet Access to Contract and Pricing Information...................................................9 1) Vendor Webpage....................................................................................................9 2) Accurate and Timely Contract Information............................................................9 3) Webpage Compliance Checks.............................................................................. 10 4) Webpage Changes................................................................................................. 10 5) Use of Access Data Prohibited............................................................................. 10 6) Responsibility for Content.................................................................................... 10 F. DIR Logo.................................................................................................................... 10 G. Vendor and Order Fulfiller Logo................................................................................ 10 H. Trade Show Participation............................................................................................ 10 I. Orientation Meeting.................................................................................................... 11 J. Performance Review Meetings................................................................................... 11 K. DIR Cost Avoidance................................................................................................... 11 8. Pricing,Purchase Orders,Invoices,and Payments.............................................................. 11 A. Manufacturer's Suggested Retail Price(MSRP)or List Price.................................... 11 B. Customer Discount...................................................................................................... 11 C. Customer Price............................................................................................................11 D. Shipping and Handling Fees....................................................................................... 12 E. Tax-Exempt................................................................................................................. 12 F. Travel Expense Reimbursement................................................................................. 12 G. Changes to Prices........................................................................................................ 12 H. Purchase Orders.......................................................................................................... 12 I. Invoices....................................................................................................................... 13 J. Payments..................................................................................................................... 13 9. Contract Administration....................................................................................................... 13 A. Contract Managers...................................................................................................... 13 1) State Contract Manager......................................................................................... 13 2) Vendor Contract Manager..................................................................................... 13 B. Reporting and Administrative Fees............................................................................ 14 1) Reporting Responsibility...................................................................................... 14 2) Detailed Monthly Report...................................................................................... 14 3) Historically Underutilized Businesses Subcontract Reports................................. 14 4) DIR Administrative Fee........................................................................................ 14 5) Accurate and Timely Submission of Reports....................................................... 15 C. Records and Audit....................................................................................................... 15 D. Contract Administration Notification......................................................................... 16 10. Vendor Responsibilities.......................................................................................................16 A. Indemnification........................................................................................................... 16 09/29/2017 ii [Appendix A Standard Terms and Conditions For Product and Relatgd Services Contracts 1) INDEPENDENT CONTRACTOR.......................... 16 2) ACTS OR OMISSIONS.......................................... ........................................ 16 3) INFRINGEMENTS................................................ ........................................ 17 4) PROPERTY DAMAGE........................................................................................ 17 B. Taxes/Worker's Compensation/UNEMPLOYMENT INSURANCE........................ 18 C. Vendor Certifications.................................................................................................. 18 D. Ability to Conduct Business in Texas.........................................................................20 E. Equal Opportunity Compliance..................................................................................20 F. Use of Subcontractors.................................................................................................20 G. Responsibility for Actions..........................................................................................21 H. Confidentiality...........................................................................................................21 I. Security of Premises,Equipment,Data and Personnel..............................................21 J. Background and/or Criminal History Investigation.........�..........................................21 K. Limitation of Liability................................................................................................21 L. Overcharges..................................................................... ..........................................22 M. Prohibited Conduct....................................................................................................22 N. Required Insurance Coverage....................................................................................22 O. Use of State Property.................................................................................................23 P. Immigration.................................................................................................................23 Q. Public Disclosure........................................................................................................24 R. Product and/or Services Substitutions........................................................................24 S. Secure Erasure of Hard Disk Products and/or Services..............................................24 T. Deceptive Trade Practices;Unfair Business Practices...............................................24 U. Drug Free Workplace Policy.....................................................................................24 V. Accessibility of Public Information...........................................................................24 W. Vendor Reporting Requirements.................................... ..........................................25 11. Contract Enforcement.............................................................. ...........................................25 A. Enforcement of Contract and Dispute Resolution.......... ...........................................25 B. Termination..................................................................... ...........................................25 1) Termination for Non-Appropriation......................... ...........................................25 2) Absolute Right.......................................................... ...........................................26 3) Termination for Convenience...............................................................................26 4) Termination for Cause..........................................................................................26 5) Immediate Termination or Suspension.................................................................27 6) Customer Rights Under Termination....................................................................27 7) Vendor or Order Fulfiller Rights Under Termination...........................................27 C. Force Majeure.............................................................................................................27 12. Notification.................................................................................................... A. Notices............................................................................h...........................................28 B. Handling of Written Complaints.................................................................................28 13. Captions...................................................................................r...........................................28 09/29/2017 iii The following terms and conditions shall govern the conduct of DIR and Vendor during the term of the Contract. 1. Contract Scope Note: NO EXCEPTIONS OR REVISIONS WILL BE CONSIDERED The Vendor shall provide the products and related services specified in Section 3 of the Contract for purchase by Customers. In addition, DIR and Vendor may agree to provisions that allow Vendor and/or Order Fulfiller to lease the products offered under the Contract.Terms used in this document shall have the meanings set forth below in Section 3. 2. No Quantity Guarantees Note: NO EXCEPTIONS OR REVISIONS WILL BE CONSIDERED The Contract is not exclusive to the Vendor. Customers may obtain products and related services from other sources during the term of the Contract. DIR makes no express or implied warranties whatsoever that any particular quantity or dollar amount of products and related services will be procured through the Contract. 3. Definitions A. Customer-any Texas state agency,unit of local government,institution of higher education as defined in Section 2054.003,Texas Government Code,the Electric Reliability Council of Texas,the Lower Colorado River Authority, a private school, as defined by Section 5.001, Education Code, a private or independent institution of higher education, as defined by Section 61.003,Education Code,a volunteer fire department,as defined by Section 152.001, Tax Code, and those state agencies purchasing from a DIR contract through an Interagency Agreement,as authorized by Chapter 771,Texas Government Code,any local government as authorized through the Interlocal Cooperation Act,Chapter 791,Texas Government Code, and the state agencies and political subdivisions of other states as authorized by Section 2054.0565, Texas Government Code and, except for telecommunications services under Chapter 2170, Texas Government Code, assistance organizations as defined in Section 2175.001,Texas Government Code to mean: 1) A non-profit organization that provides educational,health or human services or assistance to homeless individuals; 2) A nonprofit food bank that solicits, warehouses, and redistributes edible but unmarketable food to an agency that feeds needy families and individuals; 3) Texas Partners of the Americas, a registered agency with the Advisory Committee on Voluntary Foreign Aid,with the approval of the Partners of the Alliance Office of the Agency for International Development; 4) A group, including a faith-based group, that enters into a financial or non- financial agreement with a health or human services agency to provide services to that agency's clients; 5) A local workforce development board created under Section 2308.253; 6) A nonprofit organization approved by the Supreme Court of Texas that provides free legal services for low-income households in civil matters; 7) The Texas Boll Weevil Eradication Foundation,Inc.,or an entity designated by the commissioner of agriculture as the foundation's successor entity under Section 74.1011,Texas Agriculture Code; 8) A nonprofit computer bank that solicits,stores,refurbishes and redistributes used computer equipment to public school students and their families;and 9) A nonprofit organization that provides affordable housing. B. Compliance Check—an audit of Vendor's compliance with the Contract may be performed by,but not limited to, a third party auditor, DIR Internal Audit department, or DIR contract 09/29/2017 Page 1 of 28 management staff or their designees. C. Contract—the document executed between DIR and Vendor into which this Appendix A is incorporated. D. CPA—refers to the Texas Comptroller of Public Accounts. E. Day-shall mean business days,Monday through Friday,except for State and Federal holidays, unless otherwise specified as calendar days. If the Contract calls for performance on a day that is not a business day, then performance is intended to occur on the next business day. F. Order Fulfiller—the party,either Vendor or a party that may be designated by Vendor,who is fulfilling a Purchase Order pursuant to the Contract. G. Purchase Order-the Customer's fiscal form or format,which is used when making a purchase (e.g.,formal written Purchase Order, Procurement Card,Electronic Purchase Order, or other authorized instrument). H. State—refers to the State of Texas. 4. General Provisions A. Entire Agreement The Contract, Appendices, and Exhibits constitute the entire agreement between DIR and the Vendor.No statement,promise,condition,understanding,inducement or representation,oral or written,expressed or implied,which is not contained in the Contract,Appendices,or its Exhibits shall be binding or valid. B. Modification of Contract Terms and/or Amendments 1) The terms and conditions of the Contract shall govern all transactions by Customers under the Contract. The Contract may only be modified or amended upon mutual written agreement of DIR and Vendor. 2) Customers shall not have the authority to modify the terms of the Contract; however, additional Customer terms and conditions that do not conflict with the Contract and are acceptable to Order Fulfiller may be added in a Purchase Order and given effect.No additional term or condition added in a Purchase Order issued by a Customer can conflict with or diminish a term or condition of the Contract. Pre-printed terms and conditions on any Purchase Order issued by Customer hereunder will have no force and effect.In the event of a conflict between a Customer's Purchase Order and the Contract,the Contract term shall control. 3) Customers and Vendor will negotiate and enter into written agreements regarding statements of work,service level agreements,remedies,acceptance criteria,information confidentiality and security requirements,and other terms specific to their Purchase Orders under the Contract with Vendors. C. Invalid Term or Condition 1)To the extent any term or condition in the Contract conflicts with the applicable State and/or United States law or regulation,such Contract term or condition is void and unenforceable.By executing a contract which contains the conflicting term or condition, DIR makes no representations or warranties regarding the enforceability of such term or condition and DIR does not waive the applicable State and/or United States law or regulation which conflicts with the Contract term or condition. 2)If one or more terms or conditions in the Contract,or the application of any term or condition to any party or circumstance, is held invalid, unenforceable, or illegal in any respect by a final judgment or order of the State Office of Administrative Hearings or a court of competent jurisdiction, the remainder of the Contract and the application of the term or condition to other 09/29/2017 Page 2 of 28 parties or circumstances shall remain valid and in full force and effect. D. Assignment DIR or Vendor may assign the Contract without prior written approval to:i)a successor in interest (for DIR, another state agency as designated by the Texas Legislature), or ii)a subsidiary, parent company or affiliate, or iii)as necessary to satisfy a regulatory requirement imposed upon a party by a governing body with the appropriate authority. Assignment of the Contract under the above terms shall require written notification by the assigning party and,for Vendor, a mutually agreed written Contract amendment. Any other assignment by a party shall require the written consent of the other party and a mutually agreed written Contract amendment. E. Survival All applicable software license agreements,warranties or service agreements that were entered into between Vendor and a Customer under the terms and conditions of the Contract shall survive the expiration or termination of the Contract All Purchase Orders issued and accepted by Vendor or Order Fulfiller shall survive expiration or termination of the Contract for the term of the Purchase Order,unless the Customer terminates the Purchase Order sooner. However,regardless of the term of the Purchase Order,no Purchase Order shall survive the expiration or termination of the Contract for more than five years,unless Customer makes an express finding and justification for the longer term. The finding and justification must either be included in the Purchase Order,or referenced in it and maintained in Customer's procurement record. Rights and obligations under this Contract which by their nature should survive,including,but not limited to the DIR Administrative Fee;and any and all payment obligations invoiced prior to the termination or expiration hereof;obligations of confidentiality;and,indemnification,will remain in effect aftel termination or expiration hereof. F. Choice of Law II The laws of the State shall govern the construction and interpretation of the Contract. Exclusive venue for all actions will be in state court, Travis County, Texas. Nothing in the Contract or its Appendices shall be construed to waive the State's sovereign immunity. G. Limitation of Authority Vendor shall have no authority to act for or on behalf of the Texas Department of Information Resources or the State except as expressly provided for in this Contract;no other authority,power or use is granted or implied.Vendor may not incur any debts,obli ations,expenses,or liabilities of any kind on behalf of the State or DIR. H. Proof of Financial Stability Either DIR or Customer may require Vendor to provide proof of financial stability prior to or at any time during the contract term. 5. Intellectual Property Matters A. Definitions 1)"Work Product"means any and all deliverables produced by Vendor for Customer under a Statement of Work issued pursuant to this Contract,including any and all tangible or intangible items or things that have been or will be prepared,created,developed,invented or conceived at any time following the effective date of the Contract, including but not limited to any(i) works of authorship(such as manuals,instructions,printed material,graphics,artwork,images, illustrations,photographs,computer programs,computer soltware,scripts,object code,source code or other programming code,HTML code,flow charts,notes,outlines,lists,compilations, 09/29/2017 Page 3 of 28 manuscripts, writings, pictorial materials, schematics, formulae, processes, algorithms, data, information,multimedia files,text web pages or web sites, other written or machine readable expression of such works fixed in any tangible media,and all other copyrightable works),(ii) trademarks,service marks,trade dress,trade names,logos,or other indicia of source or origin, (iii)ideas, designs, concepts,personality rights,methods,processes,techniques, apparatuses, inventions, formulas, discoveries, or improvements, including any patents, trade secrets and know-how, (iv)domain names, (v)any copies, and similar or derivative works to any of the foregoing,(vi)all documentation and materials related to any of the foregoing, (vii)all other goods,services or deliverables to be provided to Customer under the Contract or a Statement of Work, and(viii)all Intellectual Property Rights in any of the foregoing, and which are or were created,prepared,developed,invented or conceived for the use or benefit of Customer in connection with this Contract or a Statement of Work, or with funds appropriated by or for Customer or Customer's benefit: (a)by any Vendor personnel or Customer personnel, or (b)any Customer personnel who then became personnel to Vendor or any of its affiliates or subcontractors,where,although creation or reduction-to-practice is completed while the person is affiliated with Vendor or its personnel, any portion of same was created, invented or conceived by such person while affiliated with Customer. 2)"Intellectual Property Rights"means the worldwide legal rights or interests evidenced by or embodied in: (i) any idea, design, concept, personality right, method, process, technique, apparatus, invention, discovery, or improvement, including any patents, trade secrets, and know-how;(ii)any work of authorship,including any copyrights,moral rights or neighboring rights;(iii)any trademark,service mark, trade dress,trade name,or other indicia of source or origin; (iv) domain name registrations; and(v)any other proprietary or similar rights. The Intellectual Property Rights of a party include all worldwide legal rights or interests that the party may have acquired by assignment or license with the right to grant sublicenses. 3) "Statement of Work" means a document signed by Customer and Vendor describing a specific set of activities and/or deliverables,which may include Work Product and Intellectual Property Rights, that Vendor is to provide Customer,issued pursuant to the Contract. 4)"Third Party IP"means the Intellectual Property Rights of any third party that is not a party to this Contract, and that is not directly or indirectly providing any goods or services to Customer under this Contract, 5)"Vendor IP"shall mean all tangible or intangible items or things,including the Intellectual Property Rights therein,created or developed by Vendor(a)prior to providing any Services or Work Product to Customer and prior to receiving any documents,materials, information or funding from or on behalf of Customer relating to the Services or Work Product, or(b)after the Effective Date of the Contract if such tangible or intangible items or things were independently developed by Vendor outside Vendor's provision of Services or Work Product for Customer hereunder and were not created,prepared,developed,invented or conceived by any Customer personnel who then became personnel to Vendor or any of its affiliates or subcontractors,where,although creation or reduction-to-practice is completed while the person is affiliated with Vendor or its personnel, any portion of same was created, invented or conceived by such person while affiliated with Customer. B. Ownership. As between Vendor and Customer,the Work Product and Intellectual Property Rights therein are and shall be owned exclusively by Customer,and not Vendor. Vendor specifically agrees that the Work Product shall be considered"works made for hire" and that the Work Product shall, upon 09/29/2017 Page 4 of 28 creation,be owned exclusively by Customer. To the extent that thq Work Product,under applicable law,may not be considered works made for hire,Vendor hereby agrrees that the Contract effectively transfers, grants, conveys, assigns, and relinquishes exclusively to Customer all right, title and interest in and to all ownership rights in the Work Product, and a4 Intellectual Property Rights in the Work Product,without the necessity of any further consideration,and Customer shall be entitled to obtain and hold in its own name all Intellectual Property Rights in and to the Work Product. Vendor acknowledges that Vendor and Customer do not intend Vendor to be a joint author of the Work Product within the meaning of the Copyright Act of 1976. Customer shall have access,during normal business hours(Monday through Friday, 8AM to 5PM)an(I upon reasonable prior notice to Vendor,to all Vendor materials,premises and computer files containing the Work Product. Vendor and Customer,as appropriate,will cooperate with one another and execute such other documents as may be reasonably appropriate to achieve the objectives herein.No license or other right is granted hereunder to any Third Party IP,except as may be incorporated in the Work Product by Vendor. C. Further Actions. Vendor,upon request and without further consideration,shall perform any acts that may be deemed reasonably necessary or desirable by Customer to evidence more fully the transfer of ownership and/or registration of all Intellectual Property Rights in all Work Product to Customer to the fullest extent possible,including but not limited to the execution,acknowledgement and delivery of such further documents in a form determined by Customer. In the event Customer shall be unable to obtain Vendor's signature due to the dissolution of Vendor or Vendor's unreasonable failure to respond to Customer's repeated requests for such signature on any document reasonably necessary for any purpose set forth in the foregoing sentence, Vendor hereby irrevocably designates and appoints Customer and its duly authorized officers and agents � Vendor's agent and Vendor's attorney-in-fact to act for and in Vendor's behalf and stead to execute and file any such document and to do all other lawfully permitted acts to further any such purpose with the same force and effect as if executed and delivered by Vendor,provided however that no such grant of right to Customer is applicable if Vendor fails to execute any document due to a good faith dispute by Vendor with respect to such document.It is understood that such power is coupled with an interest and is therefore irrevocable. Customer shall have the full and sole power to prosecute such applications and to take all other action concerning the Work Product, and Vendor shall cooperate, at Customer's sole expense, in the preparation and prosecution of all such applications and in any legal actions and proceedings concerning the Work Product. D. Waiver of Moral Rights. Vendor hereby irrevocably and forever waives,and agrees never to assert, any Moral Rights in or to the Work Product which Vendor may now have or which may accrue to Vendor's benefit under U.S.or foreign copyright or other laws and any and all other residual rights and benefits which arise under any other applicable law now in force or hereafter enacted. Vendor acknowledges the receipt of equitable compensation for its assignment and waiver of such Moral Rights. The term"Moral Rights" shall mean any and all rights of paternity or integrity of the Work Product and the right to object to any modification,translation or use of the Work Product, and any similar rights existing under the judicial or statutory law of any country in the world or under any treaty, regardless of whether or not such right is denominated or referred to as a moral right. E. Confidentiality. All documents, information and materials forwarded to Vendor by Customer for use in and preparation of the Work Product shall be deemed the confidential information of Customer, and subject to the license granted by Customer to Vendor under sub- agraph H. hereunder.Vendor shall not use, disclose, or permit any person to use or obtain a Work Product, or any portion thereof,in any manner without the prior written approval of Cust mer. 09/29/2017 Page 5 of 28 F. Injunctive Relief. The Contract is intended to protect Customer's proprietary rights pertaining to the Work Product, and the Intellectual Property Rights therein,and any misuse of such rights would cause substantial and irreparable harm to Customer's business.Therefore,Vendor acknowledges and stipulates that a court of competent jurisdiction may immediately enjoin any material breach of the intellectual property,use, and confidentiality provisions of this Contract,upon a request by Customer,without requiring proof of irreparable injury as same should be presumed. G. Return of Materials Pertaining to Work Product Upon the request of Customer,but in any event upon termination or expiration of this Contract or a Statement of Work,Vendor shall surrender to Customer all documents and things pertaining to the Work Product, including but not limited to drafts,memoranda, notes,records, drawings,manuals, computer software, reports, data, and all other documents or materials (and copies of same) generated or developed by Vendor or furnished by Customer to Vendor, including all materials embodying the Work Product, any Customer confidential information, or Intellectual Property Rights in such Work Product, regardless of whether complete or incomplete. This section is intended to apply to all Work Product as well as to all documents and things furnished to Vendor by Customer or by anyone else that pertain to the Work Product. H. Vendor License to Use. Customer hereby grants to Vendor a non-transferable, non-exclusive, royalty-free, fully paid-up license to use any Work Product solely as necessary to provide the Services to Customer. Except as provided in this Section,neither Vendor nor any Subcontractor shall have the right to use the Work Product in connection with the provision of services to its other customers without the prior written consent of Customer,which consent may be withheld in Customer's sole discretion. I. Third-Party Underlying and Derivative Works. To the extent that any Vendor IP or Third Party IP are embodied or reflected in the Work Product, or are necessary to provide the Services,Vendor hereby grants to the Customer,or shall obtain from the applicable third party for Customer's benefit, the irrevocable, perpetual, non-exclusive, worldwide,royalty-free right and license,for Customer's internal business purposes only,to(i)use, execute,reproduce,display,perform,distribute copies of,and prepare derivative works based upon such Vendor IP or Third Party IP and any derivative works thereof embodied in or delivered to Customer in conjunction with the Work Product, and (ii) authorize others to do any or all of the foregoing. Vendor agrees to notify Customer on delivery of the Work Product or Services if such materials include any Third Party IP. On request, Vendor shall provide Customer with documentation indicating a third parry's written approval for Vendor to use any Third Party IP that may be embodied or reflected in the Work Product. J. Agreement with Subcontracts. Vendor agrees that it shall have written agreement(s)that are consistent with the provisions hereof related to Work Product and Intellectual Property Rights with any employees, agents, consultants, contractors or subcontractors providing Services or Work Product pursuant to the Contract,prior to their providing such Services or Work Product,and that it shall maintain such written agreements at all times during performance of this Contract, which are sufficient to support all performance and grants of rights by Vendor. Copies of such agreements shall be provided to the Customer promptly upon request. K. License to Customer. Vendor grants to Customer,a perpetual,irrevocable,royalty free license,solely for the Customer's internal business purposes, to use, copy, modify, display, perform (by any means), transmit and 09/29/2017 Page 6 of 28 prepare derivative works of any Vendor IP embodied in or delivpred to Customer in conjunction with the Work Product. The foregoing license includes the right�o sublicense third parties,solely for the purpose of engaging such third parties to assist or carryout Customer's internal business use of the Work Product.Except for the preceding license,all rights in Vendor IP remain in Vendor. L. Vendor Development Rights. To the extent not inconsistent with Customer's rights in the W k Product or as set forth herein, nothing in this Contract shall preclude Vendor from developing or itself,or for others,materials which are competitive with those produced as a result of the Ser% es provided hereunder,provided that no Work Product is utilized, and no Intellectual Property Rights of Customer therein are infringed by such competitive materials. To the extent that Vendor wishes to use the Work Product, or acquire licensed rights in certain Intellectual Property Rights, of Customer therein in order to offer competitive goods or services to third parties, Vendor and Customer agree to negotiate in good faith regarding an appropriate license and royalty agreement to allow for such. 6. Product Terms and Conditions Note: NO EXCEPTIONS OR REVISIONS WILL BE CONSIDERED A. Electronic and Information Resources Accessibility Standards, As Required by I TAC Chapters 206 and 213(Applicable to State Agency and Institution of Hlgher Education Purchases Only) 1)Effective September 1,2006 state agencies and institutions of higher education shall procure products which comply with the State Accessibility requirements for Electronic and Information Resources specified in 1 TAC Chapters 206 and 213 when such products are available in the commercial marketplace or when such products are developed in response to a procurement solicitation. 2)Upon request,but not later than thirty(30)calendar days after request,Vendor shall provide DIR with a completed Voluntary Product Accessibility Template (VPAT) of the specified product or a URL to the VPAT for reviewing compliance with the State Accessibility requirements(based on the federal standards established under Section 508 of the Rehabilitation Act). B.Purchase of Commodity Items(Applicable to State Agen�y Purchases Only) 1)Texas Government Code, §2157.068 requires State agen ies to buy commodity items, as defined in 6.B.2, below, in accordance with contracts developed by DIP, unless the agency obtains an exemption from DIR or a written certification that a commodity is not on DIR contract (for the limited purpose of purchasing from a local government purchasing cooperative). 2)Commodity items are commercially available software, hardware and technology services that are generally available to businesses or the public and for which DIR determines that a reasonable demand exists in two or more state agencies.Hardware is the physical technology used to process, manage, store, transmit, receive or deliver information. Software is the commercially available programs that operate hardware and includes all supporting documentation, media on which the software may be contained or stored, related materials, modifications,versions,upgrades,enhancements,updates or replacements.Technology services are the services, functions and activities that facilitate the design,implementation, creation, or use of software or hardware. Technology services include seat management, staffing augmentation, training, maintenance and subscription services. Technology services do not include telecommunications services.Seat management is ser ices through which a state agency transfers its responsibilities to a vendor to manage its personal computing needs,including all 09/29/2017 Page 7 of 28 necessary hardware,software and technology services. 3) Vendor agrees to coordinate all State agency commodity item sales through existing DIR contracts.Institutions of higher education are exempt from this Subsection 6.B. 7. Contract Fulfillment and Promotion A. Service,Sales and Support of the Contract Vendor shall provide service, sales and support resources to serve all Customers throughout the State. It is the responsibility of the Vendor to sell, market, and promote products and services available under the Contract. Vendor shall use its best efforts to ensure that potential Customers are made aware of the existence of the Contract. All sales to Customers for products and services available under the Contract shall be processed through the Contract. B. Use of Order Fulfillers DIR agrees to permit Vendor to utilize designated Order Fulfillers to provide service, sales and support resources to Customers. Such participation is subject to the following conditions: 1) Designation of Order Fulfillers a) Vendor may designate Order Fulfillers to act as the distributors for products and services available under the Contract.In designating Order Fulfillers, Vendor must be in compliance with the State's Policy on Utilization of Historically Underutilized Businesses. In addition to the required Subcontracting Plan, Vendor shall provide DIR with the following Order Fulfiller information: Order Fulfiller name, Order Fulfiller business address,Order Fulfiller CPA Identification Number, Order Fulfiller contact person email address and phone number. b) DIR reserves the right to require the Vendor to rescind any such Order Fulfiller participation or request that Vendor name additional Order Fulfillers should DIR determine it is in the best interest of the State. c) Vendor shall be fully liable for its Order Fulfillers'performance under and compliance with the terms and conditions of the Contract.Vendor shall enter into contracts with Order Fulfillers and use terms and conditions that are consistent with the terms and conditions of the Contract. d) Vendor shall have the right to qualify Order Fulfillers and their participation under the Contract provided that:i)any criteria is uniformly applied to all potential Order Fulfillers based upon Vendor's established,neutrally applied criteria,ii)the criteria is not based on a particular procurement,and iii)all Customers are supported under the different criteria. e) Vendor shall not prohibit Order Fulfiller from participating in other procurement opportunities offered through DIR. 2) Changes in Order Fulfiller List Vendor may add or delete Order Fulfillers throughout the term of the Contract upon written authorization by DIR. Prior to adding or deleting Order Fulfillers,Vendor must make a good faith effort in the revision of its Subcontracting Plan in accordance with the State's Policy on Utilization of Historically Underutilized Businesses. Vendor shall provide DIR with its updated Subcontracting Plan and the Order Fulfiller information listed in Section 7.B.l.a above. 3) Order Fulfiller Pricing to Customer Order Fulfiller pricing to the Customer shall comply with the Customer price as stated within Appendix A, Section 8,Pricing,Purchase Orders,Invoices and Payment, and as set forth in Appendix C, Pricing Index, and shall include the DIR Administrative Fee. This pricing shall 09/29/2017 Page 8 of 28 only be offered by Order Fulfillers to Customers for sales than pass through the Contract. C. Product Warranty and Return Policies Order Fulfiller will adhere to the Vendor's then-currently published policies concerning product warranties and returns. Product warranty and return policies for Customers will not be more restrictive or more costly than warranty and return policies for other similarly situated Customers for like products. D. Customer Site Preparation Customers shall prepare and maintain its site in accordance with written instructions furnished by Order Fulfiller prior to the scheduled delivery date of any product or service and shall bear the costs associated with the site preparation. E. Internet Access to Contract and Pricing Information 1) Vendor Webpage Within thirty(30)calendar days of the effective date of the Contract,Vendor will establish and maintain a webpage specific to the products and services awarded under the Contract that are clearly distinguishable from other, non-DIR Contract offerings on the Vendor's website. The webpage must include: a) the products and services awarded; b) description of product and service awarded c) a current price list or mechanism (for example, a services calculator or product builder)to obtain specific contracted pricing; d) discount percentage(%)off MSRP or List Price; e) designated Order Fulfillers; f) contact information(name, telephone number and email address)for Vendor and designated Order Fulfillers; g) instructions for obtaining quotes and placing Purchase Orders; h) warranty policies; i) return policies; j) the DIR Contract number with a hyperlink to the Contract's DIR webpage; k) a link to the DIR"Cooperative Contracts"webpage;and 1) the DIR logo in accordance with the requirements of this Section. If Vendor does not meet the webpage requirements listed above,DIR may cancel the contract without penalty. 2) Accurate and Timely Contract Information Vendor warrants and represents that the website information specified in the above paragraph will be accurately and completely posted,maintained and displayed in an objective and timely manner. Vendor, at its own expense, shall correct any non-conforming or inaccurate information posted at Vendor's website within ten(10)business days after written notification by DIR. 09/29/2017 Page 9 of 29 3) Webpage Compliance Checks Periodic compliance checks of the information posted for the Contract on Vendor's webpage will be conducted by DIR. Upon request by DIR, Vendor shall provide verifiable documentation that pricing listed upon this webpage is compliant with the pricing as stated in the Contract. 4) Webpage Changes Vendor hereby consents to a link from the DIR website to Vendor's webpage in order to facilitate access to Contract information.The establishment of the link is provided solely for convenience in carrying out the business operations of the State. DIR reserves the right to suspend,terminate or remove a link at any time,in its sole discretion,without advance notice, or to deny a future request for a link. DIR will provide Vendor with subsequent notice of link suspension, termination or removal. Vendor shall provide DIR with timely written notice of any change in URL or other information needed to access the site and/or maintain the link. S) Use of Access Data Prohibited If Vendor stores,collects or maintains data electronically as a condition of accessing Contract information,such data shall only be used internally by Vendor for the purpose of implementing or marketing the Contract and shall not be disseminated to third parties or used for other marketing purposes. The Contract constitutes a public document under the laws of the State and Vendor shall not restrict access to Contract terms and conditions including pricing, i.e., through use of restrictive technology or passwords. 6) Responsibility for Content Vendor is solely responsible for administration, content, intellectual property rights, and all materials at Vendor's website.DIR reserves the right to require a change of listed content if,in the opinion of DIR,it does not adequately represent the Contract. F. DIR Logo Vendor and Order Fulfiller may use the DIR logo in the promotion of the Contract to Customers with the following stipulations: (i)the logo may not be modified in any way, (ii)when displayed, the size of the DIR logo must be equal to or smaller than the Order Fulfiller logo,(iii)the DIR logo is only used to communicate the availability of products and services under the Contract to Customers,and(iv)any other use of the DIR logo requires prior written permission from DIR. G. Vendor and Order Fulfiller Logo If DIR receives Vendor's or Order Fulfiller's prior written approval,DIR may use the Vendor's and Order's Fulfiller's name and logo in the promotion of the Contract to communicate the availability of products and services under the Contract to Customers. Use of the logos may be on the DIR website or on printed materials. Any use of Vendor's and Order Fulfiller's logo by DIR must comply with and be solely related to the purposes of the Contract and any usage guidelines communicated to DIR from time to time. Nothing contained in the Contract will give DIR any right,title,or interest in or to Vendor's or Order Fulfiller'trademarks or the goodwill associated therewith,except for the limited usage rights expressly provided by Vendor and Order Fulfiller. H. Trade Show Participation At DIR's discretion,Vendor and Order Fulfillers may be required to participate in no more than two DIR sponsored trade shows each calendar year.Vendor understands and agrees that participation,at the Vendor's and Order Fulfiller's expense,includes providing a manned booth display or similar presence.DIR will provide four months advance notice of any required participation.Vendor and Order Fulfillers must display the DIR logo at all trade shows that potential Customers will attend. DIR reserves the right to approve or disapprove of the location or the use of the DIR logo in or on the Vendor's or Order Fulfiller's booth. 09/29/2017 Page 10 of 28 L Orientation Meeting Within thirty(30)calendar days from execution of the Contract,Yendor and Order Fulfillers will be required to attend an orientation meeting to discuss the content d procedures of the Contract to include reporting requirements. DIP, at its discretion, may waiv.;the orientation requirement for Vendors who have previously held DIR contracts. The meeting will be held in the Austin, Texas area at a date and time mutually acceptable to DIR and the Ven or by teleconference,at DIR's discretion. DIR shall bear no cost for the time and travel of th Vendor or Order Fulfillers for attendance at the meeting. J. Performance Review Meetings DIR may require the Vendor to attend periodic meetings to review the Vendor's performance under the Contract,at DIR's discretion. The meetings may be held within the Austin,Texas area at a date and time mutually acceptable to DIR and the Vendor or by teleconference. DIR shall bear no cost for the time and travel of the Vendor for attendance at the meeting. K. DIR Cost Avoidance As part of the performance measures reported to state leadership, DIR must provide the cost avoidance the State has achieved through the Contract. Upon request by DIR,Vendor shall provide DIR with a detailed report of a representative sample of products sold under the Contract.The report shall contain:product part number,product description,list price and price to Customer under the Contract. S. Pricing,Purchase Orders,Invoices,and Payments Note: NO EXCEPTIONS OR REVISIONS WILL BE CONSIDERED A. Manufacturer's Suggested Retail Price(MSRP)or List Price Note: NO EXCEPTIONS OR REVISIONS WILL BE CONSIDERED MSRP is defined as the product sales price list published in some form by the manufacturer or publisher of a product and available to and recognized by the trade. A price list especially prepared for a given solicitation is not acceptable. B. Customer Discount Note: NO EXCEPTIONS OR REVISIONS WILL BE CONSIDERED The minimum Customer discount for all products and services will be the percentage off MSRP as specified in Appendix C,Pricing Index. C. Customer Price Note: NO EXCEPTIONS OR REVISIONS WILL BE CONSIDERED FOR SECTION Cl 1)The price to the Customer shall be calculated as follows: Customer Price=(MSRP or List Price—Customer Discount as set forth in Appendix C, Pricing Index)x(1+DIR Administrative Fee,as set forth in the Contract). 2) Customers purchasing products and services under thus Contract may negotiate more advantageous pricing or participate in special promotional offers.In such event,a copy of such better offerings shall be furnished to DIR upon request. 3)If pricing for products or services available under this Contract is provided by the Vendor at a lower price to:(i)an eligible Customer who is not purchasing those products or services under this Contract or(ii)to arry other customer under the same terms and conditions provided for 09/29/2017 Page 11 of 28 the State for the same commodities and services under this contract, then the available Customer Price in this Contract shall be adjusted to that lower price.This requirement applies to products or services quoted by Vendor or its resellers for a quantity of one (1)under like terms and conditions,and does not apply to volume or special pricing purchases.Vendor shall notify DIR within ten(10)days and this Contract shall be amended to reflect the lower price. D. Shipping and Handling Fees Note: NO EXCEPTIONS OR REVISIONS WILL BE CONSIDERED The price to the Customer under this Contract shall include all shipping and handling fees. Shipments will be Free On Board Customer's Destination.No additional fees shall be charged to the Customer for standard shipping and handling. If the Customer requests expedited or special delivery,Customer will be responsible for any charges for expedited or special delivery. E. Tax-Exempt Note: NO EXCEPTIONS OR REVISIONS WILL BE CONSIDERED As per Section 151.309,Texas Tax Code,Customers under this Contract are exempt from the assessment of State sales, use and excise taxes. Further, Customers under this Contract are exempt from Federal Excise Taxes,26 United States Code Sections 4253(i)and 0). Customers shall provide evidence of tax-exempt status to Vendor upon request. F. Travel Expense Reimbursement Note: NO EXCEPTIONS OR REVISIONS WILL BE CONSIDERED Pricing for services provided under this Contract are exclusive of any travel expenses that may be incurred in the performance of those services. Travel expense reimbursement may include personal vehicle mileage or commercial coach transportation,hotel accommodations,parking and meals;provided,however, the amount of reimbursement by Customers shall not exceed the amounts authorized for state employees as adopted by each Customer; and provided, further,that all reimbursement rates shall not exceed the maximum rates established for state employees under the current State Travel Management Program (htti)://www.window.state.tx.us/procurement/t)rog/stmp/).Travel time may not be included as part of the amounts payable by Customer for any services rendered under this Contract. The DIR administrative fee specified in the Contract is not applicable to travel expense reimbursement. Anticipated travel expenses must be pre-approved in writing by Customer. Customer reserves the right not to pay travel expenses which are not pre-approved in writing by the Customer. G. Changes to Prices Subject to the requirements of this section, Vendor may change the price of any product or service at any time, based upon changes to the MSRP, but discount levels shall remain consistent with the discount levels specified in this Contract. Vendor may revise its pricing(but not its discount rate,if any,and not the products or services on its contract pricing list) by posting a revised pricing list. Such revised pricing lists are subject to review by DIR. If DIR finds that a product's or service's price has been increased unreasonably,DIR may request Vendor to reduce its pricing for the product or service to the level published before the revision. Vendor must reduce its pricing, or remove the product from its pricing list. Failure to do so will constitute an act of default by Vendor. H. Purchase Orders Note: NO EXCEPTIONS OR REVISIONS WILL BE CONSIDERED All Customer Purchase Orders will be placed directly with the Vendor or Order Fulfiller. 09/29/2017 Page 12 of 28 Accurate Purchase Orders shall be effective and binding upon Vendor or Order Fulfiller when accepted by Vendor or Order Fulfiller. Customer and Vendor may work together to include specific requirements as to what constitutes a valid Purchase Order. Vendors will be required to comply with the disclosure requirements of Section 2252.908, Texas Government Code, as enacted by House Bill 12515, 8416 Regular Session, when execution of a contract requires an action or vote by the governing body of a governmental entity before the contract may be signed. L Invoices Note: NO EXCEPTIONS OR REVISIONS WILL BE CONSIDERED 1)Invoices shall be submitted by the Vendor or Order Fulfiller directly to the Customer and shall be issued in compliance with Chapter 2251, Texas Goy ernment Code. All payments for products and/or services purchased under the Contract and any provision of acceptance of such products and/or services shall be made by the Customer to the Vendor or Order Fulfiller. For Customers that are not subject to Chapter 2251, Texas Government Code, Customer and Vendor will agree to acceptable terms. 2)Invoices must be timely and accurate.Each invoice must hatch Customer's Purchase Order and include any written changes that may apply,as it relates 1 o products,prices and quantities. Invoices must include the Customer's Purchase Order number or other pertinent information for verification of receipt of the product or services by the Customer. 3)The administrative fee as set forth in the Contract shall nc� be broken out as a separate line item when pricing or invoice is provided to Customer. J. Payments Note: NO EXCEPTIONS OR REVISIONS WILL BE CONSIDERED Customers shall comply with Chapter 2251,Texas Government Code,in making payments to Order Fulfiller. The statute states that payments for goods and services are due thirty (30) calendar days after the goods are provided, the services completed, or a correct invoice is received,whichever is later.Payment under the Contract sha4 not foreclose the right to recover wrongful payments.For Customers that are not subject to Chapter 2251, Texas Government Code,Customer and Vendor will agree to acceptable terms. 9. Contract Administration Note: NO EXCEPTIONS OR REVISIONS WILL BE CONSIDERED FOR A,C-D A. Contract Managers Note: NO EXCEPTIONS OR REVISIONS WILL BE CONSIDERED DIR and the Vendor will each provide a Contract Manager to support the Contract.Information regarding the Contract Manager will be posted on the Internet website designated for the Contract. 1) State Contract Manager DIR shall provide a Contract Manager whose duties shall include but not be limited to: i) advising DIR and Vendor of Vendor's compliance with the terms and conditions of the Contract, ii)periodic verification of product pricing, and iif)verification of monthly reports submitted by Vendor. 2) Vendor Contract Manager Vendor shall identify a specific Contract Manager whose duties shall include but not be limited to: i) supporting the marketing and management of the Contract, ii) facilitating dispute 09/29/2017 Page 13 of 28 resolution between a Order Fulfiller and a Customer,and iii)advising DIR of Order Fulfillers performance under the terms and conditions of the Contract.DIR reserves the right to require a change in Vendor's then-current Contract Manager if the assigned Contract Manager is not, in the reasonable opinion of DIR,adequately serving the needs of the State. R Reporting and Administrative Fees 1) Reporting Responsibility a) Vendor shall be responsible for reporting all products and services purchased through Vendor and Order Fulfillers under the Contract. Vendor shall file the monthly reports, subcontract reports, and pay the administrative fees in accordance with the due dates specified in this section. b) DIR shall have the right to verify required reports and to take any actions necessary to enforce its rights under this section, including but not limited to compliance checks of Vendor's applicable Contract.Vendor will provide all required documentation at no cost. 2) Detailed Monthly Report Vendor shall electronically provide DIR with a detailed monthly report in the format required by DIR showing the dollar volume of any and all sales under the Contract for the previous calendar month period. Reports are due on the fifteenth(15")calendar day of the month following the month of the sale.If the 15`h calendar day falls on a weekend or state or federal holiday, the report shall be due on the next business day. The monthly report shall include, per transaction: the detailed sales for the period, Customer name, invoice date,invoice number,description,quantity,MSRP or List Price,unit price,extended price, Customer Purchase Order number,contact name,Customer's complete billing address,the estimated administrative fee for the reporting period, subcontractor name, EPEAT designation (if applicable), configuration (if applicable), contract discount percentage, actual discount percentage, negotiated contract price (if fixed price is offered instead of discount off of MSRP), and other information as required by DIR. Each report must contain all information listed above per transaction or the report will be rejected and returned to the Vendor for correction in accordance with this section. Vendor shall report in a manner required by DIR which is subject to change dependent upon DIR's business needs. Failure to do so may result in contract termination. 3) Historically Underutilized Businesses Subcontract Reports a) Vendor shall electronically provide each Customer with Vendor's relevant Historically Underutilized Business Subcontracting Report, pursuant to the Contract, as required by Chapter 2161,Texas Government Code. Reports shall also be submitted to DIR. b) Reports shall be due in accordance with the CPA rules. 4) DIR Administrative Fee a) The Vendor shall pay an administrative fee to DIR to defray the DIR costs of negotiating,executing,and administering the Contract. The maximum administrative fee is set by the Texas Legislature in the biennial General Appropriations Act. DIR will review Vendor monthly sales reports, close the sales period, and notify the Vendor of the administrative fee no later than the fourteenth(10)day of the second month following the date of the reported sale.Vendor shall pay the administrative fee by the twenty-fifth(25") calendar day of the second month following the date of the reported sale. For example, Vendor reports January sales by February 15th; DIR closes January sales and notifies Vendor of administrative fee by March 14`°;Vendor submits administrative fee for January sales by March 25th. b) DIR may change the amount of the administrative fee upon thirty (30)calendar days 09/29/2017 Page 14 of 28 written notice to Vendor without the need for a formal contract amendment. c) Vendor shall reference the DIR Contract number,reporting period,and administrative fee amount on any remittance instruments. 5) Accurate and Timely Submission of Reports a) The reports and administrative fees shall be accurle and timely and submitted in accordance with the due dates specified in this section. Vendor shall correct any inaccurate reports or administrative fee payments within three (3) business days upon written notification by DIR. Vendor shall deliver any late reports or late administrative fee payments within three (3)business days upon written notification by DIR. If Vendor is unable to correct inaccurate reports or administrative fee payments or deliver late reports and fee payments within three(3)business days,Vendor must contact DIR and provide a corrective plan of action, including the timeline for completion of correction. The corrective plan of action shall be subject to DIR approval. b) Should Vendor fail to correct inaccurate reports or cure the delay in timely delivery of reports and payments within the corrective plan of action timeline,DIR reserves the right to require an independent third patty audit of the Vendor's records as specified in C.3 of this Section,at Vendor's expense.DIR will select the auditor(and all payments to auditor will require DIR approval). Failure to timely submit three(3)reports or administrative fee payments within any rolling twelve (12)month period may, at DIR's discretion,result in the addition of late fees of $100/day for each day the report or payment is due(up to$1000/month)or suspension or termination of Vendor's Contract.. C. Records and Audit Note: NO EXCEPTIONS OR REVISIONS WILL BE C ONSIDERED IN SUBPARAGRAPH ONE(1) 1) Acceptance of funds under the Contract by Vendor and/or Order Fulfiller acts as acceptance of the authority of the State Auditor's Office,or any successor agency or designee, to conduct an audit or investigation in connection with those funds.Vendor further agrees to cooperate fully with the State Auditor's Office or its successor or designee in the conduct of the audit or investigation,including providing all records requested.Vendor will ensure that this clause concerning the authority to audit funds received indirectly by subcontractors through Vendor or directly by Order Fulfillers and the requirement to cooperate is included in any subcontract or Order Fulfiller contract it awards pertaining to the Contract.Under the direction of the Legislative Audit Committee,a Vendor that is the subject of an audit or investigation by the State Auditor's Office must provide the State Auditor's Office with access to any information the State Auditor's Office considers relevant to the investigation or audit. 2) Vendor and Order Fulfillers shall maintain adequate records to establish compliance with the Contract until the later of a period of seven (7)years after termination of the Contract or until full,final and unappealable resolution of all Compliance Check or litigation issues that arise under the Contract. Such records shall include per transaction: the Order Fulfiller's company name if applicable, Customer name,invoice date,invoice number,description,part number, manufacturer, quantity, MSRP or list price, unit price, extended price, Customer Purchase Order number,contact name,Customer's complete billing address,the calculations supporting each administrative fee owed DIR under the Contract,Historically Underutilized Businesses Subcontracting reports,and such other documentation as DIR may request. 3) Vendor and/or Order Fulfillers shall grant access to all paper and electronic records,books, 09/29/2017 Page 15 of 28 documents, accounting procedures, practices, customer records including but not limited to contracts,agreements,purchase orders and statements of work,and any other items relevant to the performance of the Contract to the DIR Internal Audit department or DIR Contract Management staff, including the compliance checks designated by the DIR Internal Audit department, DIR Contract Management staff, the State Auditor's Office, and of the United States, and such other persons or entities designated by DIR for the purposes of inspecting, Compliance Checking and/or copying such books and records. Vendor and/or Order Fulfillers shall provide copies and printouts requested by DIR without charge. DIR shall provide Vendor and/or Order Fulfillers ten (10) business days' notice prior to inspecting, Compliance Checking, and/or copying Vendor's and/or Order Fulfiller's records. Vendor's and/or Order Fulfillers records, whether paper or electronic, shall be made available during regular office hours. Vendor and/or Order Fulfiller personnel familiar with the Vendor's and/or Order Fulfiller's books and records shall be available to the DIR Internal Audit department,or DIR Contract Management staff and designees as needed. Vendor and/or Order Fulfiller shall provide adequate office space to DIR staff during the performance of Compliance Check. If Vendor is found to be responsible for inaccurate reports,DIR may invoice for the reasonable costs of the audit,which Vendor must pay within thirty(30)calendar days of receipt. 4) For procuring State Agencies whose payments are processed by the Texas Comptroller of Public Accounts, the volume of payments made to Order Fulfillers through the Texas Comptroller of Public Accounts and the administrative fee based thereon shall be presumed correct unless Vendor can demonstrate to DIR's satisfaction that Vendor's calculation of DIR's administrative fee is correct. D. Contract Administration Notification 1) Prior to execution of the Contract,Vendor shall provide DIR with written notification of the following. i)Vendor Contract Administrator name and contact information, ii) Vendor sales representative name and contact information, and iii)name and contact information of Vendor personnel responsible for submitting reports and payment of administrative fees specified herein. 2) Upon execution of the Contract,DIR shall provide Vendor with written notification of the following: i) DIR Contract Administrator name and contact information, and ii) DIR Cooperative Contracts E-Mail Box information. 10. Vendor Responsibilities Note: NO EXCEPTIONS OR REVISIONS WILL BE CONSIDERED IN C-M,O-S,V-W A. Indemnification 1) INDEPENDENT CONTRACTOR VENDOR AGREES AND ACKNOWLEDGES THAT DURING THE EXISTENCE OF THIS CONTRACT,IT IS FURNISHING PRODUCTS AND SERVICES IN TIIE CAPACITY OF AN INDEPENDENT CONTRACTOR AND THAT VENDOR IS NOT AN EMPLOYEE OF THE CUSTOMER OR TBE STATE OF TEXAS. 2) ACTS OR OMISSIONS Vendor shall indemnify and hold harmless the State of Texas and Customers,AND/OR THEIR OFFICERS, AGENTS, EMPLOYEES, REPRESENTATIVES, CONTRACTORS, ASSIGNEES, AND/OR DESIGNEES FROM ANY AND ALL LIABILITY, ACTIONS, CLAIMS,DEMANDS,OR SUITS,AND ALL RELATED COSTS,ATTORNEY FEES,AND EXPENSES arising out of,or resulting from any acts or omissions of the Vendor or its agents, employees, subcontractors, Order Fulfillers, or suppliers of subcontractors in the execution or 09/29/2017 Page 16 of 28 performance of the Contract and any Purchase Orders issued under the Contract. THE DEFENSE SHALL BE COORDINATED BY VENDOR WITH THE OFFICE OF THE ATTORNEY GENERAL WHEN TEXAS STATE AGENCIES ARE NAMED DEFENDANTS IN ANY LAWSUIT AND VENDOR MAY NOT AGREE TO ANY SETTLEMENT WITHOUT FIRST OBTAINING THE CONCURRENCE FROM THE OFFICE OF THE ATTORNEY GENERAL. VENDOR AND THE CUSTOMER AGREE TO FURNISH TIMELY WRITTEN NOTICE TO EACH OTHER OF ANY SUCH CLAIM. 3) INFRINGEMENTS a)Vendor shall indemnify and hold harmless the State of Texas and Customers,AND/OR THEIR EMPLOYEES, AGENTS, REPRESENTATIVES, CONTRACTORS, ASSIGNEES, AND/OR DESIGNEES from any and all third party claims involving infringement of United States patents, copyrights,trade and service marks, and any other intellectual or intangible property rights in connection with the PERFORMANCES OR ACTIONS OF VENDOR PURSUANT TO THIS CONTRACT. VENDOR AND THE CUSTOMER AGREE TO FURNISH TIMELY WRITTEN NOTICE TO EACH OTHER OF ANY SUCH CLAIM. VENDOR SHALL BE LIABLE TO PAY ALL COSTS OF DEFENSE INCLUDING ATTORNEYS' FEES. t1iE DEFENSE SHALL BE COORDINATED BY VENDOR WITH THE OFFICE OF THE ATTORNEY GENERAL WHEN TEXAS STATE AGENCIES ARE NAMED DEFENDANTS IN ANY LAWSUIT AND VENDOR MAY NOT AGREE TO ANY SETTLEMENT WITHOUT FIRST OBTAINING THE CONCURRENCE FROM THE OFFICE OF THE ATTORNEY GENERAL. b)Vendor shall have no liability under this section if the alleged infringement is caused in whole or in part by:(i)use of the product or service for a purpose or in a manner for which the product or service was not designed,(ii)any modification made to the product without Vendor's written approval, (iii) any modifications made to the product by the Vendor pursuant to Customer's specific instructions,(iv)any intellectual property right owned by or licensed to Customer, or(v)any use of the product or service by Customer that is not in conformity with the terms of any applicable license agreement. c) If Vendor becomes aware of an actual or potential claim,or Customer provides Vendor with notice of an actual or potential claim, Vendor may (or in the case of an injunction against Customer,shall),at Vendor's sole option and exPense:(i)procure for the Customer the right to continue to use the affected portion of the product or service,or(ii)modify or replace the affected portion of the product or service with functionally equivalent or superior product or service so that Customer's use is non-infringing. 4) PROPERTY DAMAGE IN THE EVENT OF LOSS, DAMAGE, OR DESTRUCTION OF ANY PROPERTY OF CUSTOMER OR THE STATE DUE TO THE NEGLIGENCE, MISCONDUCT, WRONGFUL ACT OR OMISSION ON THE PART OF THEE VENDOR,ITS EMPLOYEES, AGENTS,REPRESENTATIVES,OR SUBCONTRACTORS,THE VENDOR SHALL PAY THE FULL COST OF EITHER REPAIR,RECONSTRUC'fiON, OR REPLACEMENT OF THE PROPERTY, AT THE CUSTOMER'S SOLE ELECTION. SUCH COST SHALL BE DETERMINED BY THE CUSTOMER AND SHALL BE DUE AND PAYABLE BY THE VENDOR NINETY (90) CALENDAR DAYS AFTER TlJE DATE OF THE VENDORS RECEIPT FROM THE CUSTOMER OF A WRITTEN NOTICE OF THE AMOUNT DUE. 09/29/2017 Page 17 of 28 R Taxes/Worker's Compensation/UNEMPLOYMENT INSURANCE 1)VENDOR AGREES AND ACKNOWLEDGES THAT DURING THE EXISTENCE OF THIS CONTRACT, VENDOR SHALL BE ENTIRELY RESPONSIBLE FOR THE LIABILITY AND PAYMENT OF VENDOR'S AND VENDOR'S EMPLOYEES' TAXES OF WHATEVER KIND, ARISING OUT OF THE PERFORMANCES IN THIS CONTRACT. VENDOR AGREES TO COMPLY WITH ALL STATE AND FEDERAL LAWS APPLICABLE TO ANY SUCH PERSONS, INCLUDING LAWS REGARDING WAGES,TAXES,INSURANCE,AND WORKERS'COMPENSATION. THE CUSTOMER AND/OR THE STATE SHALL NOT BE LIABLE TO THE VENDOR,ITS EMPLOYEES, AGENTS, OR OTHERS FOR THE PAYMENT OF TAXES OR THE PROVISION OF UNEMPLOYMENT INSURANCE AND/OR WORKERS' COMPENSATION OR ANY BENEFIT AVAILABLE TO A STATE EMPLOYEE OR EMPLOYEE OF ANOTHER GOVERNMENTAL ENTITY CUSTOMER. 2)VENDOR AGREES TO INDEMNIFY AND HOLD HARMLESS CUSTOMERS, THE STATE OF TEXAS AND/OR THEIR EMPLOYEES, AGENTS, REPRESENTATIVES, CONTRACTORS,AND/OR ASSIGNEES FROM ANY AND ALL LIABILITY,ACTIONS, CLAIMS,DEMANDS, OR SUITS, AND ALL RELATED COSTS, ATTORNEYS' FEES, AND EXPENSES, RELATING TO TAX LIABILITY, UNEMPLOYMENT INSURANCE AND/OR WORKERS' COMPENSATION IN ITS PERFORMANCE UNDER THIS CONTRACT. VENDOR SHALL BE LIABLE TO PAY ALL COSTS OF DEFENSE INCLUDING ATTORNEYS' FEES. THE DEFENSE SHALL BE COORDINATED BY VENDOR WITH THE OFFICE OF THE ATTORNEY GENERAL WHEN TEXAS STATE AGENCIES ARE NAMED DEFENDANTS IN ANY LAWSUIT AND VENDOR MAY NOT AGREE TO ANY SETTLEMENT WITHOUT FIRST OBTAINING THE CONCURRENCE FROM THE OFFICE OF THE ATTORNEY GENERAL. VENDOR AND THE CUSTOMER AGREE TO FURNISH TIMELY WRITTEN NOTICE TO EACH OTHER OF ANY SUCH CLAIM. C. Vendor Certifications Note: NO EXCEPTIONS OR REVISIONS WILL BE CONSIDERED Vendor certifies on behalf of Vendor and its designated Order Fulfillers that they: (i) have not given,offered to give,and do not intend to give at any time hereafter any economic opportunity, future employment, gift, loan, gratuity, special discount, trip,favor,or service to a public servant in connection with the Contract; (ii) are not currently delinquent in the payment of any franchise tax owed the State and are not ineligible to receive payment under§231.006 of the Texas Family Code and acknowledge the Contract may be terminated and payment withheld if this certification is inaccurate; (iii) neither they, nor anyone acting for them, have violated the antitrust laws of the United States or the State, nor communicated directly or indirectly to any competitor or arty other person engaged in such line of business for the purpose of obtaining an unfair price advantage; (iv) have not received payment from DIR or any of its employees for participating in the preparation of the Contract; (v) under Section 2155.004, Texas Government Code, the vendor certifies that the individual or business entity named in this bid or contract is not ineligible to 09/29/2017 Page 18 of 28 receive the specified contract and acknowledges that this contract may be terminated and payment withheld if this certification is inaccurate; (vi) to the best of their knowledge and belief,there are;no suits or proceedings pending or threatened against or affecting them,which if determined adversely to them will have a material adverse effect on the ability to WIfill their obligations under the Contract; (vii) Vendor and its principals are not suspended or debarred from doing business with the federal government as listed in the System for Award Management (S,4M) maintained by the General Services Administration; (viii) as of the effective date of the Contract,are not listed in the prohibited vendors list authorized by Executive Order #13224, 'Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism",published by the United States Department of the Treasury,Office of Foreign Assets Control; (ix) Vendor represents and warrants that, for its performance of this contract, it shall purchase products and materials produced in the State of Texas when available at the price and time comparable to products and materials produced outside the state, to the extent that such is required under Texas Government Code, Section 2155.4441; (x) agrees that all equipment and materials used in fulfilling the requirements of this contract are of high-quality and consistent with or better than applicable industry standards, if any. All Works and Services performed pursuant to this Contract shall be of high professional quality and workmanship and according consistent with or better than applicable industry standards,if any; (xi) to the extent applicable to this scope of this Contract,Vendor hereby certifies that it is in compliance with Subchapter Y,Chapter 361,Health and Safety Code related to the Computer Equipment Recycling Program and its rules,30 TAC Chapter 328; (xii) agree that any payments due under this contract will be applied towards any debt, including but not limited to delinquent taxes and child support that is owed to the State of Texas; (xiii) are in compliance Section 669.003, Texas Government Code, relating to contracting with executive head of a state agency; (xiv) represent and warrant that the provision of goods and services or other performance under the Contract will not constitute an actual or potential conflict of interest and certify that they will not reasonably create the appearance of impropriety, and, if these facts change during the course of the Contract, certify they shall disclose the actual or potential conflicfi of interest and any circumstances that create the appearance of impropriety; (xv) under Section 2155.006,and Section 2261.053, Texas Government Code,are not ineligible to receive the specified contract and acknowledge that this contract may be terminated and payment withheld if this certification is inaccurate; (xvi) have complied with the Section 556.0055,Texas Government Code,restriction on lobbying expenditures. In addition, they acknowledge the applicability of §2155.444 and§2155.4441,Texas Government Code,in fulfilling the terms of the Contract;and (xvii) represent and warrant that the Customer's payment and their receipt of 09/29/2017 Page 19 of 28 appropriated or other funds under this Agreement are not prohibited by Sections 556.005 or Section 556.008,Texas Government Code;and (xviii) to the extent applicable to this scope of this contract,Vendor hereby certifies that it is authorized to sell and provide warranty support for all products and services listed in Appendix C of this contract;and (xix) represent and warrant that in accordance with Section 2270.002 of the Texas Government Code,by signature hereon,Vendor does not boycott Israel and will not boycott Israel during the term of this Contract. During the term of the Contract,Vendor shall,for itself and on behalf of its Order Fulfillers, promptly disclose to DIR all changes that occur to the foregoing certifications, representations and warranties. Vendor covenants to fully cooperate in the development and execution of resulting documentation necessary to maintain an accurate record of the certifications,representations and warranties. In addition, Vendor understands and agrees that if Vendor responds to certain Customer pricing requests or Statements of Work, then, in order to contract with the Customer, Vendor may be required to comply with additional terms and conditions or certifications that an individual customer may require due to state and federal law (e.g., privacy and security requirements). D. Ability to Conduct Business in Texas Note:NO EXCEPTIONS OR REVISIONS WILL BE CONSIDERED Vendor and its Order Fulfiller shall be authorized and validly existing under the laws of its state of organization,and shall be authorized to do business in the State of Texas in accordance with Texas Business Organizations Code,Title 1,Chapter 9. E. Equal Opportunity Compliance Note:NO EXCEPTIONS OR REVISIONS WILL BE CONSIDERED Vendor agrees to abide by all applicable laws,regulations,and executive orders pertaining to equal employment opportunity,including federal laws and the laws of the State in which its primary place of business is located.In accordance with such laws,regulations,and executive orders,the Vendor agrees that no person in the United States shall, on the grounds of race, color,religion,national origin,sex,age,veteran status or handicap,be excluded from employment with or participation in, be denied the benefits of,or be otherwise subjected to discrimination under any program or activity performed by Vendor under the Contract.If Vendor is found to be not in compliance with these requirements during the tern of the Contract,Vendor agrees to take appropriate steps to correct these deficiencies.Upon request,Vendor will furnish information regarding its nondiscriminatory hiring and promotion policies,as well as specific information on the composition of its principals and staff,including the identification of minorities and women in management or other positions with discretionary or decision-making authority. F. Use of Subcontractors Note:NO EXCEPTIONS OR REVISIONS WILL BE CONSIDERED If Vendor uses any subcontractors in the performance of this Contract,Vendor must make a good faith effort in the submission of its Subcontracting Plan in accordance with the State's Policy on Utilization of Historically Underutilized Businesses (HUB). A revised Subcontracting Plan approved by DIR's HUB Office shall be required before Vendor can engage additional subcontractors in the performance of this Contract. A revised Subcontracting Plan approved by DIR's HUB Office shall be required before Vendor can remove subcontractors currently engaged in the performance of this Contract.Vendor shall remain solely responsible for the performance of 09/29/2017 Page 20 of 28 its obligations under the Contract. C. Responsibility for Actions Note:NO EXCEPTIONS OR REVISIONS WILL BE CONSIDERED 1) Vendor is solely responsible for its actions and those of its agents, employees, or subcontractors, and agrees that neither Vendor nor any of the foregoing has any authority to act or speak on behalf of DIR or the State. 2)Vendor,for itself and on behalf of its subcontractors,shall report to DIR promptly when the disclosures under Certification Statement of Exhibit A to the RFO and/or Section I.O.C.(xiii), Vendor Certifications of this Appendix A to the Contract change. Vendor covenants to fully cooperate with DIR to update and amend the Contract to y disclose the status of conflicts of interest. H. Confidentiality Note:NO EXCEPTIONS OR REVISIONS WILL BE CONSIDERED 1)Vendor acknowledges that DIR and Customers that are governmental bodies as defined by Texas Government Code, Section 552.003 are subject to the Texas Public Information Act. Vendor also acknowledges that DIR and Customers that are governmental bodies will comply with the Public Information Act,and with all opinions of the Texas Attorney General's office concerning this Act. 2) Under the terms of the Contract, DIR may provide Vendor with information related to Customers.Vendor shall not re-sell or otherwise distribute or release Customer information to any party in any manner. I. Security of Premises,Equipment,Data and Personnel Note:NO EXCEPTIONS OR REVISIONS WILL BE CONSIDERED Vendor and/or Order Fulfiller may,from time to time during the performance of the Contract,have access to the personnel, premises, equipment, and other property, includirtg data, files and/or materials (collectively referred to as "Data") belonging to the Customer. Vendor and/or Order Fulfiller shall use their best efforts to preserve the safety,security,and the integrity of the personnel, premises,equipment,Data and other property of the Customer,in accordance with the instruction of the Customer. Vendor and/or Order Fulfiller shall be responsible for damage to Customer's equipment, workplace, and its contents when such damage is caused by its employees or subcontractors. If a Vendor and/or Order Fulfiller fails to comply with Customer's security requirements, then Customer may immediately terminate its Purchase Order and related Service Agreement. J. Background and/or Criminal History Investigation Note:NO EXCEPTIONS OR REVISIONS WILL BE CONSIDERED Prior to commencement of any services,background and/or crirninal history investigation of the Vendor and/or Order Fulfiller's employees and subcontractors*ho will be providing services to the Customer under the Contract may be performed by the Customer.. Should any employee or subcontractor of the Vendor and/or Order Fulfiller who will be providing services to the Customer under the Contract not be acceptable to the Customer as a result of the background and/or criminal history check,then Customer may immediately terminate its Purchase Order and related Service Agreement or request replacement of the employee or subcontractor in question. K. Limitation of Liability Note:NO EXCEPTIONS OR REVISIONS WILL BE CONSIDERED 09/29/2017 Page 21 of 28 For any claims or cause of action arising under or related to the Contract:i)to the extend permitted by the Constitution and the laws of the State, none of the parties shall be liable to the other for punitive,special,or consequential damages,even if it is advised of the possibility of such damages; and ii)Vendor's liability for damages of any kind to the Customer shall be limited to the total amount paid to Vendor under the Contract during the twelve months immediately preceding the accrual of the claim or cause of action. However, this limitation of Vendor's liability shall not apply to claims of bodily injury;violation of intellectual property rights including but not limited to patent,trademark,or copyright infringement;indemnification requirements under this Contract; and violation of State or Federal law including but not limited to disclosures of confidential information and any penalty of any kind lawfully assessed as a result of such violation. L. Overcharges Note:NO EXCEPTIONS OR REVISIONS WILL BE CONSIDERED Vendor hereby assigns to DIR any and all of its claims for overcharges associated with this contract which arise under the antitrust laws of the United States, 15 U.S.C.A.Section 1,et seq.,and which arise under the antitrust laws of the State of Texas,Tex.Bus. and Comm.Code Section 15.01,et seq. M. Prohibited Conduct Note:NO EXCEPTIONS OR REVISIONS WILL BE CONSIDERED Vendor represents and warrants that,to the best of its knowledge as of the date of this certification, neither Vendor nor any Order Fulfiller,subcontractor,firm,corporation,partnership,or institution represented by Vendor,nor anyone acting for such Order Fulfiller,subcontractor,firm,corporation or institution has: (1)violated the antitrust laws of the State of Texas under Texas Business & Commerce Code,Chapter 15,or the federal antitrust laws;or(2)communicated its response to the Request for Offer directly or indirectly to any competitor or any other person engaged in such line of business during the procurement for the Contract. N. Required Insurance Coverage As a condition of this Contract with DIR,Vendor shall provide the listed insurance coverage within 5 business days of execution of the Contract if the Vendor is awarded services which require that Vendor's employees perform work at any Customer premises and/or use employer vehicles to conduct work on behalf of Customers.In addition,when engaged by a Customer to provide services on Customer premises, the Vendor shall, at its own expense, secure and maintain the insurance coverage specified herein, and shall provide proof of such insurance coverage to the related Customer within five(5)business days following the execution of the Purchase Order.Vendor may not begin performance under the Contract and/or a Purchase Order until such proof of insurance coverage is provided to,and approved by,DIR and the Customer.All required insurance must be issued by companies that have an A rating and a Financial Size Category Class of VII from A.M. Best and are licensed in the State of Texas and authorized to provide the corresponding coverage. The Customer and DIR will be named as Additional Insureds on all required coverage.Required coverage must remain in effect through the term of the Contract and each Purchase Order issued to Vendor there under.The minimum acceptable insurance provisions are as follows: 1) Commercial General Liability Commercial General Liability must include$1,000,000 per occurrence for Bodily Injury and Property Damage,with a separate aggregate limit of$2,000,000;Medical Expense per person of $5,000; Personal Injury and Advertising Liability of $1,000,000; Products/Completed Operations Aggregate Limit of $2,000,000; and Damage to Premises Rented: $50,000. Agencies may require additional Umbrella/Excess Liability insurance. The policy shall contain the following provisions: 09/29/2017 Page 22 of 28 a)Blanket contractual liability coverage for liability assumed under the Contract; b)Independent Contractor coverage; c)State of Texas,DIR and Customer listed as an additional i ured;and d)Waiver of Subrogation 2) Workers'Compensation Insurance WORKERS' COMPENSATION INSURANCE AND EMPLOYERS' LIABILITY COVERAGE MUST INCLUDE LIMITS CONSISTENT WITH STATUTORY BENEFITS OUTLINED IN THE TEXAS WORKERS' COMPENSATION ACT(ART. 8308-1.01 ET SEQ.TEX.REV. CIV. STAT)AND MINIMUM POLICY LIMITS FOR EMPLOYERS' LIABILITY OF $1,000,000 BODILY INJURY PER ACCIDENT, $1,000,000 BODILY INJURY DISEASE PER EMPLOYEE AND $1,000,000 PER DISEASE POLICY LIMIT. 3) Business Automobile Liability Insurance Business Automobile Liability Insurance must cover all owned,non-owned and hired vehicles with a minimum combined single limit of$500,000 per occurrence for bodily injury and property damage.The policy shall contain the following endorsements in favor of DIR and/or Customer: a)Waiver of Subrogation;and b)Additional Insured. O. Use of State Property Note:NO EXCEPTIONS OR REVISIONS WILL BE CONSIDERED Vendor is prohibited from using the Customer's equipment,the customer's location, or any other resources of the Customer or the State for any purpose other than performing services under this Agreement. For this purpose,equipment includes,but is not limited to,copy machines,computers and telephones using State long distance services. Any charggs incurred by Vendor using the Customer's equipment for any purpose other than performing services under this Agreement must be fully reimbursed by Vendor to the Customer immediately upon demand by the Customer. Such use shall constitute breach of contract and may result in ternni ation of the contract and other remedies available to DIR and Customer under the contract and 7plicable law. P. Immigration f Note:NO EXCEPTIONS OR REVISIONS WILL BE CONSIDERED The Vendor shall comply with all requirements related to federal immigration laws and regulations, to include but not be limited to,the Immigration and Reform Act of 1986,the Illegal Immigration Reform and Immigrant Responsibility Act of 1996("ITRIRA")and the Immigration Act of 1990(8 U.S.C.1101,et seq.)regarding employment verification and retention of verification forms for any individual(s)who will perform arty labor or services under this Contract. Pursuant to Executive Ceder No.RP-80,issued by the Governor of Texas on December 3,2014, and as subsequently clarified, the Vendor shall, as a condition cf this Contract, also comply with the United States Department of Homeland Security's E-Verify stem to determine the eligibility of: ly • all persons 1)to whom the E-Verify system apP#lies,and 2)who are hired by the Vendor during the term of this Contract to perform dutr'ds within Texas;and 09/29/2017 Page 23 of 28 • all subcontractors'employees 1)to whom the E-Verify system applies,and 2)who are hired by the subcontractor during the term of this Contract and assigned by the subcontractor to perform work pursuant to this Contract. The Vendor shall require its subcontractors to comply with the requirements of this Section and the Vendor is responsible for the compliance of its subcontractors.Nothing herein is intended to exclude compliance by Vendor and its subcontractors with all other relevant federal immigration statutes and regulations promulgated pursuant thereto. Q. Public Disclosure Note:NO EXCEPTIONS OR REVISIONS WILL BE CONSIDERED No public disclosures or news releases pertaining to this contract shall be made by Vendor without prior written approval of DIR. R. Product and/or Services Substitutions Note:NO EXCEPTIONS OR REVISIONS WILL BE CONSIDERED Substitutions are not permitted without the written permission of DIR or Customer. S. Secure Erasure of Hard Disk Products and/or Services Note:NO EXCEPTIONS OR REVISIONS WILL BE CONSIDERED Vendor agrees that all products and/or services equipped with hard disk drives (i.e. computers, telephones,printers,fax machines,scanners,multifunction devices,etc.)shall have the capability to securely erase data written to the hard drive prior to final disposition of such products and/or services, either at the end of the Customer's Managed Services product's useful life or the end of the related Customer Managed Services Agreement for such products and/services,in accordance with 1 TAC 202. T. Deceptive Trade Practices;Unfair Business Practices 1)Vendor represents and warrants that neither Vendor nor any of its Subcontractors has been (i)found liable in any administrative hearing,litigation or other proceeding of Deceptive Trade Practices violations as defined under Chapter 17, Texas Business&Commerce Code, or(ii) has outstanding allegations of any Deceptive Trade Practice pending in any administrative hearing,litigation or other proceeding. 2)Vendor certifies that it has no officers who have served as officers of other entities who(i) have been found liable in any administrative hearing, litigation or other proceeding of Deceptive Trade Practices violations or (ii) have outstanding allegations of any Deceptive Trade Practice pending in any administrative hearing,litigation or other proceeding. U. Drug Free Workplace Policy Vendor shall comply with the applicable provisions of the Drug-Free Work Place Act of 1988 (41 U.S.C. §§8101-8106) and maintain a drug-free work environment; and the final rule, government-wide requirements for drug-free work place(Financial Assistance),issued by the Office of Management and Budget(2 C.F.R.Part 182)to implement the provisions of the Drug- Free Work Place Act of 1988 is incorporated by reference and the contractor shall comply with the relevant provisions thereof,including any amendments to the final rule that may hereafter be issued. V. Accessibility of Public Information Note:NO EXCEPTIONS OR REVISIONS WILL BE CONSIDERED 09/29/2017 Page 24 of 28 1) Pursuant to S.B. 1368 of the 83nd Texas Legislature,RegulaGr Session,Vendor is required to make any information created or exchanged with the State pursuant to this Contract, and not otherwise excepted from disclosure under the Texas Public Information Act, available in a format that is accessible by the public at no additional charge t)the State. 2) Each State government entity should supplement the provision set forth in Subsection 1, above, with the additional teens agreed upon by the parties regarding the specific format by which the Vendor is required to make the information accessible by the public. W. Vendor Reporting Requirements Note:NO EXCEPTIONS OR REVISIONS WILL BE CONSIDERED Vendor shall comply with Subtitle C,Title 5,Business&Commerce Code,Chapter 109 as added by BB 2539 of the 83`d Texas Legislature,Regular Session,requiring computer technicians to report images of child pornography. 11. Contract Enforcement Note:NO E_l'CEPTIONS OR REVISIONS WILL BE CONSIDERED TO A,B2,5-7 A. Enforcement of Contract and Dispute Resolution Note:NO EXCEPTIONS OR REVISIONS WILL BE CONSIDERED 1) Vendor and DIR agree to the following: (i)a parry's failure to require strict performance of any provision of the Contract shall not waive or diminish that parry's right thereafter to demand strict compliance with that or any other provision, (ii)for disputes not resolved in the normal course of business,the dispute resolution process provided for in Chapter 2260,Texas Government Code, shall be used, and(iii) actions or proceedings arising from the Contract shall be heard in a state court of competent jurisdiction in Travis County,Texas. 2) Disputes arising between a Customer and the Vendor shall be resolved in accordance with the dispute resolution process of the Customer that is not inconsistent with subparagraph A.1 above.DIR shall not be a party to any such dispute unless DIR, Customer,and Vendor agree in writing. 3)State agencies are required by rule(34 TAC§20.115)to report vendor performance through the Vendor Performance Tracking System(VPTS)on every purchase over$25,000. B. Termination Note:NO EXCEPTIONS OR REVISIONS WILL BE CONSIDERED FOR 2,5-7 1) Termination for Non-Appropriation a)Termination for Non-Appropriation by Customer Customer may terminate Purchase Orders if funds suffi;ient to pay its obligations under the Contract are not appropriated:i)by the governing body on behalf of local governments; ii)by the Texas legislature on behalf of state agencies;or iii)by budget execution authority provisioned to the Governor or the Legislative Budget P-oard as provided in Chapter 317, Texas Government Code. In the event of non-appropriati on,Vendor and/or Order Fulfiller will be provided ten (10) calendar days written. notice of intent to terminate. Notwithstanding the foregoing, if a Customer issues a:Purchase Order and has accepted delivery of the product or services,they are obligated to pay for the product or services or they may return the product and discontinue using services under any return provisions that Vendor offers.In the event of such termination,the Customer will not be considered to be in default or breach under this Contract, nor shall it be liable for any further payments ordinarily due under this Contract, nor shall it be liable for any damages or any other amounts which are caused by or associated with such termination. 09/29/2017 Page 25 of 28 b)Termination for Non-Appropriation by DIR DIR may terminate Contract if funds sufficient to pay its obligations under the Contract are not appropriated: by the i) Texas legislature or ii) by budget execution authority provisioned to the Governor or the Legislative Budget Board as provided in Chapter 317, Texas Government Code. In the event of non-appropriation,Vendor and/or Order Fulfiller will be provided thirty(30)calendar days written notice of intent to terminate.In the event of such termination, DIR will not be considered to be in default or breach under this Contract,nor shall it be liable for any further payments ordinarily due under this Contract, nor shall it be liable for any damages or any other amounts which are caused by or associated with such termination. 2) Absolute Right Note:NO EXCEPTIONS OR REVISIONS WILL BE CONSIDERED DIR shall have the absolute right to terminate the Contract without recourse in the event that: i)Vendor becomes listed on the prohibited vendors list authorized by Executive Order#13224, "Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism", published by the United States Department of the Treasury, Office of Foreign Assets Control; ii) Vendor becomes suspended or debarred from doing business with the federal government as listed in the System for Award Management(SAM) maintained by the General Services Administration; or (iii)Vendor is found by DIR to be ineligible to hold this Contract under Subsection(b)of Section 2155.006,Texas Government Code. Vendor shall be provided written notice in accordance with Section 12.A, Notices, of intent to terminate. 3) Termination for Convenience DIR may terminate the Contract, in whole or in part, by giving the other party thirty (30) calendar days written notice. A Customer may terminate a Purchase Order or other contractual document or relationship by giving the other party thirty(30)calendar days written notice. 4) Termination for Cause a) Contract Either DIR or Vendor may issue a written notice of default to the other upon the occurrence of a material breach of any covenant, warranty or provision of the Contract, upon the following preconditions:first,the parties must comply with the requirements of Chapter 2260,Texas Government Code in an attempt to resolve a dispute;second,after complying with Chapter 2260,Texas Government Code,and the dispute remains unresolved,then the non-defaulting party shall give the defaulting party thirty(30)calendar days from receipt of notice to cure said default. If the defaulting party fails to cure said default within the timeframe allowed,the non-defaulting party may,at its option and in addition to any other remedies it may have available,cancel and terminate the Contract.Customers purchasing products or services under the Contract have no power to terminate the Contract for default. b) Purchase Order Customer or Order Fulfiller may terminate a Purchase Order or other contractual document or relationship upon the occurrence of a material breach of any term or condition:(i)of the Contract, or (ii) included in the Purchase Order or other contractual document or relationship in accordance with Section 4.13.2 above, upon the following preconditions: first,the parties must comply with the requirements of Chapter 2260,Texas Government Code,in an attempt to resolve a dispute;second,after complying with Chapter 2260,Texas 09/29/2017 Page 26 of 28 Government Code,and the dispute remains unresolved,then the non-defaulting party shall give the defaulting party ten(10)calendar days from rec pt of notice to cure said default. If the defaulting party fails to cure said default within a timeframe allowed, the non- defaulting party may, at its option and in addition to *1y other remedies it may have available,cancel and terminate the Purchase Order. Customer may immediately suspend or terminate a Purchase Order without advance notice in the event Vendor fails to comply with confidentiality, privacy, security requirements, environmental or safety laws or regulations,if such non-compliance relates or may relate to vendor provision of goods or services to the Customer. 5) Immediate Termination or Suspension Note:NO EXCEPTIONS OR REVISIONS WILL BE CONSIDERED DIR may immediately suspend or terminate this Contract without advance notice if DIR receives notice or knowledge of potentially criminal violations by Vendor or Order Fulfiller (whether or not such potential violations directly impact tho provision of goods or services under this Contract). In such case, the Vendor or Order Fulfiller may be held ineligible to receive further business or payment but may be responsible for winding down or transition expenses incurred by Customer. DIR or Customer will use reasonable efforts to provide notice (to the extent allowed by law) to vendor within five (5) business days after imposing the suspension or termination. Vendor may provide a response and request an opportunity to present its position. DIR or Customer will review vendor presentation, but is under no obligation to provide formal response. 6) Customer Rights Under Termination Note: NO EXCEPTIONS OR REVISIONS WILL BE CONSIDERED In the event the Contract expires or is terminated for any reason, a Customer shall retain its rights under the Contract and the Purchase Order issued prior to the termination or expiration of the Contract.The Purchase Order survives the expiration or termination of the Contract for its then effective term. 7) Vendor or Order Fulfiller Rights Under Terminaisori Note:NO EXCEPTIONS OR REVISIONS WILL BE CONSIDERED In the event a Purchase Order expires or is terminated,a Customer shall pay: 1)all amounts due for products or services ordered prior to the effective termination date and ultimately accepted,and 2)any applicable early termination fees agreed to in such Purchase Order. C. Force Majeure DIR,Customer,or Order Fulfiller may be excused from perfonnance under the Contract for any period when performance is prevented as the result of an act of(�d,strike,war,civil disturbance, epidemic, or court order, provided that the party experiencing the event of Force Majeure has prudently and promptly acted to take any and all steps that are thin the party's control to ensure performance and to shorten the duration of the event of Force Majeure. The party suffering an event of Force Majeure shall provide notice of the event to the other parties when commercially reasonable. Subject to this provision, such non-performance shall not be deemed a default or a ground for termination.However,a Customer may terminate a]Purchase Order if it is determined by the Customer that Order Fulfiller will not be able to deliver product or services in a timely manner to meet the business needs of the Customer. 09/29/2017 Page 27 of 28 12. Notification Note:NO EXCEPTIONS OR REVISIONS WILL BE CONSIDERED A.Notices All notices, demands, designations, certificates, requests, offers, consents, approvals and other instruments given pursuant to the Contract shall be in writing and shall be validly given on:(i)the date of delivery if delivered by email,facsimile transmission,mailed by registered or certified mail, or hand delivered, or(ii)three business days after being mailed via United States Postal Service. All notices under the Contract shall be sent to a party at the respective address indicated in Section 6 of the Contract or to such other address as such party shall have notified the other party in writing. B. Handling of Written Complaints In addition to other remedies contained in the Contract,a person contracting with DIR may direct their written complaints to the following office: Public Information Office Department of Information Resources Atha:Public Information Officer 300 W. 151s Street,Suite 1300 Austin,Texas 78701 (512)475-4759,facsimile 13. Captions Note:NO EXCEPTIONS OR REVISIONS WILL BE CONSIDERED The captions contained in the Contract,Appendices, and its Exhibits are intended for convenience and reference purposes only and shall in no way be deemed to define or limit any provision thereof. 09/29/2017 Page 28 of 28 Schedule B Scope of Services 4NETSYNC U TX WZ�he4s°510 Quote#: AAAQ74632 Date: Jul 3, 2019 NETWORK SO A I ()NI 459-325-9505 Vo@net"n metYro&cwn Prepared For: Inside Sales: Qaan T1an city of Fort worth gtran@netWtmetwo&com phi 469-315-3505 1000 Throrkmonce St. Fart Worth,i7(76102 Please send Plydwse porter hog us P0v 1 c4of Fart worth 1,mn 2 A200 M 3 Hardraie 4 ICH-N0RM BASE CHASSIS-NORMAL 1 $2"A4 $ZjwA4 5 1FE10-10GSE-B 2X e=PP+lUNw/oDims 4 $10t122 S"Zis 6 251-0296 FP+1"0GWa GENE 4 S89 7B SM 12 7 tBE14iB0lOR INFNIBAND NIC-IOGBE M1G W/OOP TICS 4 $786.15 $3444.60 8 800.0073 F&E D/7r FOR GENE NORMAL CHASSIS 2 511.16 ULM 9 UL200-tT-400G A20P-2.26tQf2CJ16G+i5XFM SAT/4001GB 4 $12.77014 S5 AN.% 10 851-0210 CNRE.III am O$FP-QSFP,SM 8 5205-mi $1.643-52 11 251-0229 RACK ASSYTITAN-040USINGLEPHASE 1 $9,87CL93 $9.27093 12 800-0061 P1N%CRQ.1.TTAIq,15F,L6-30P,250VNOAM/1AP 4 $1z99Q $519.20 13 M-PS461-FIW-1-m P%O5UPFORT W/t4SAON CRTMAL-tfAREWARE 1 SZOA07-S1 S20A07.51 14 SaRrare 15 458-Wl-363 ONEF3 PRODUCT 1 $Q00 $0_00 li 456111-837 ONEFS BASE LICENSE TIER 4-iD 4 53 963-12 SISASZI a Page--- lot 3 1 OF --- z500 west LOOP south Ste � �7,�z NETSYN%* H6�,TX 77027 1N f1 R - S r? it Q N 5 USA N F T TRW Sul 9, 2hdi9 469-315-BWS PO@netsync-vlc-twGrk.com 17 456-111-141 OKEISCAPAC11YUC NSETlER4=B 480 $"39 521,307.ZC 13 Y-PSilid 44W PRMLWP0RT%'.eM5i0N CRITICA1-SOFTWARE --- 1 513.37731 $13,377.31 ---- --- —- —_ -- -- ---—~---- --- 19 4594MI-M HOPS FOR ONEFS{$0 OD] 4 %an so 00 --- ---- --- --- ---- '-- ----h----- --- --- --- 20 M-PSIA-SW-44)02 PROSWPORTwl11lSS1ONCRMCAL-SOFIWARf 1 $gO0 $OAo — ---- --- --- ---- --- --- ---- --- --- --- 21 a140940 !< E�tl1/6otEE3PA1�lRsr� s ,N 22 M-PSIA-SW4-002 PPOSUPPORTW,,9MS1ONCInVAL-SOFTWARE silmss - ---- --- --- ---- --- --- ---- --- --- --- 23 M-OQ1-04 ERfIMME AWAMM B1MOEf7M 4= 4 $2 Ooio do $R 32160 24 M-P9A-SW44002 ►ROSUPPORTWIMS90NCRMCAL-SOFTWARE 1 S4A§3." S4AM3" 25 451-OOI-S" SMARTDEDUPE 1 %a0 $100 26 AW122443 9/M WICLNd1TEm 1=43O SUM 5713�� 27 AW1124M ---- --- --- ---- -- --- ---- --- --- --- 21 M-PSRt-SW 1-00I PROdUPPORTWfNESUM WftCAL-SOFMAAE 1 r 6&3� 21 1Ea�C -- - - ---- --- ------ ----- --- -- 30 PS-BDAD-ISIADIDNIN BD ADDO14 ISIU?N ADD 1 DENSE NODE 3 5240AD Syzi - ---- --- --- ---- --- ---- 31 Mo B� Bo m l�BIm NO>A6 1 q dp $1,40M 32 SrnAurroomp eer 33 Sohxxe ---- --- --- ---- --- --- -- 34 2104ROZ-0 m $3,203-73 54435x.9z 35 M419r4dW44301 PROSUPPORT W/MISSION CRMCAL SOFTWARE 1 SWIM $3.07350 36 200-0332-U HIM FOR ONEFS GEMS=10 14 $&GO So.00 Paqe 2 of 3 2or3 .... N E TSY N C 2500'JYest Loop South ste 41o;310 Quote#: AAAQ74S3 2 Houston,T:o:77027 USA Date: Jul 3, 219 469-315-S505 P06_0 netsyncnetwork.com 37 Mt-PSM-SW-1-001 PROSLIPPORT W G415SIGN CRIT CAL-SOFPA'ARE i Sgap $e,OO 39 OER-TSO-AM 1 $CLqp spip SubTOtfl SM8,342.44 Quote is valid for 30 days Tax/VAT $0.00 Shipping $0.00 TOTAL 3of3' r • NETSYNC 2SOO West Loop������e410/510 Quote#: rQ751I6 Date: J 115, 20I9 NETWORK S4LU_, lQ '- S 469-315-8505 POftetsyrawrworlt-com Prepared For Inside Sales: Quan Tran City of Fort Worth 4eraw%&xTWncrwtwarkcoM Phone 469-315-85M 1000 Throciarmon SL Fort Wortk TX 76102 Please send Purchase order to: 1 LIS PD@rle"cnetwork.comMoo J 1-.. �. 1 1 w"PaairYP11 wo Weil 2 MILONUMEWAL Won Reaeml wa"20U 1 S386,295 as S336,295_" I: 3 IMR-CYO-"30 1 $0.00 Sm-00 SubTotal $3862%-48 Quote is valid for 30 days Tax/VAT $0.00 Shipping $0.00 TOTAL $386,295.48 Page of 1 of 1 Schedule C Texas Department of Information Resources Contract No. DIR-TSO-4299 DIR Contract No. DIR-TSO-4299 Vendor Contract No. STATE OF TEXAS DEPARTMENT OF INFORMATION RESOURCES CONTRACT FOR PRODUCTS AND RELATED SERVICES EMC Corporation,dba System Peripherals,Inc. 1. Introduction A. Parties This Contract for products and related services is entered into between the State of Texas,acting by and through the Department of Information Resources (hereinafter"DIR") with its principal place of business at 300 West 151h Street,Suite 1300,Austin,Texas 78701,and EMC Corporation, dba System Peripherals, Inc. (hereinafter"Vendor"), with its principal place of business at 176 South Street, Hopkinton, Massachusetts 01748. B.Compliance with Procurement Laws This Contract is the result of compliance with applicable procurement laws of the State of Texas. DIR issued a solicitation on the Comptroller of Public Accounts' Electronic State Business Daily, Request for Offer (RFO) DIR-TSO-TMP-422, on March 20, 2018, for Data Storage, Data Communications & Networking Equipment and Related Services. Upon execution of this Contract, a notice of award for RFO DIR-TSO-TMP-422 shall be posted by DIR on the Electronic State Business Daily. C. Order of Precedence For purchase transactions under this Contract,the order of precedence shall be as follows:this Contract; Appendix A, Standard Terms and Conditions For Products and Related Services Contracts; Appendix B, Vendor's Historically Underutilized Businesses Subcontracting Plan; Appendix C, Pricing Index; Appendix D, Support Service and Professional Service Agreement; Appendix E, Master Operating Lease Agreement;Appendix F, Master Lease Agreement; Exhibit 1, Vendor's Response to RFO DIR-TSO-TMP-422,including all addenda;and Exhibit 2, RFO DIR-TSO- TMP-422, including all addenda; are incorporated by reference and constitute the entire agreement between DIR and Vendor governing purchase transactions. For Lease transactions under this Contract the order of precedence shall be as follows:this Contract;Appendix E,Master Operating Lease Agreement; Appendix F, Master Lease Agreement, as applicable depending on the type of lease;Appendix A,Standard Terms and Conditions For Products and Related Services Contracts; Appendix B, Vendor's Historically Underutilized Businesses Subcontracting Plan,- Appendix C, Pricing Index; Appendix D. Support Service and Professional Services Agreement; Exhibit 1,Vendor's Response to RFO DIR-TSO-TMP-422,including all addenda;and Exhibit 2, RFO DIR-TSO-TMP-422,including all addenda;are incorporated by reference and constitute the entire agreement between DIR and Vendor governing lease transactions. In the event of a conflict between the documents listed in this paragraph related to purchases,the controlling document shall be this Contract,then Appendix A,then Appendix B,then Appendix C,then Appendix D,then Appendix E, then Appendix F, then Exhibit 1, and finally Exhibit 2. In the event of a conflict between the documents listed in this paragraph related to lease transactions, the controlling Deportment of Information Resources Page 1 of 24 (DIR rev 03/2018) DIR Contract No. DIR-TSO-4299 Vendor Contract No. document shall be this Contract,then Appendix E or Appendix F,depending on the type of lease transaction,then Appendix A, then Appendix B, then Appendix C,then Appendix D,then Exhibit 1, and finally Exhibit 2. In the event and to the extent any provisions contained in multiple documents address the same or substantially the same subject mlatter but do not actually conflict, the more recent provisions shall be deemed to have superseded earlier provisions. 2. Term of Contract The initial term of this Contract shall be two(2)years commencing on the last date of approval by DIR and Vendor,with one(1)optional two-year renewal and one (1)optional one-year renewal. Prior to expiration of each term,the contract will renew automatically under the same terms and conditions unless either party provides notice to the other party 60 days in advance of the renewal date stating that the party wishes to discuss modification of terms or not renew. Additionally,the parties by mutual agreement may extend the term for up to ninety(90)additional calendar days. 3. Product and Service Offerings A. Products Products available under this Contract are limited to Data Storage, Data Communications& Networking Equipment as specified in Appendix C, Pricing Index. Vendor may incorporate changes to their product offering;however,any changes mush be within the scope of products awarded based on the posting described in Section 1.13 above. Vendor may not add a manufacturer's product line which was not included in the Vendor's response to the solicitation described in Section 1.8 above. B. Services Services available under this Contract are limited to Data Storage, Data Communications & Networking related services as specified in Appendix C,Pricing Index.Vendor may incorporate changes to their service offering;however,any changes must be within the scope of services awarded based on the posting described in Section 1.6 above. 4. Pricing Pricing to the DIR Customer shall be as set forth in Appendix A,Section 8,Pricing,Purchase Orders, Invoices and Payment, and as set forth in Appendix C, Pricing Index, and shall include the DIR Administrative Fee. 5. DIR Administrative Fee A)The administrative fee to be paid by the Vendor to DIR based on the dollar value of all sales to Customers pursuant to this Contract is three quarters of one percent (.75%). Payment will be calculated for all sales, net of returns and credits. For example, the administrative fee for sales totaling$100,000 shall be$750.00. B)All prices quoted to Customers shall include the administrative fee. DIR reserves the right to change this fee upwards or downwards during the term of this Contract, upon written notice to Vendor without further requirement for a formal contract amendment. Any change in the administrative fee shall be incorporated in the price to the Customer. Department of Information Resources Page 2 of 24 (DIR rev 03/2018) DIR Contract No. DIR-TSO-4299 Vendor Contract No. 6. Notification All notices under this Contract shall be sent to a party at the respective address indicated below. If sent to the State: Kelly A Parker,CTPM,CTCM Director,Cooperative Contracts Department of Information Resources 300 W.151h St.,Suite 1300 Austin,Texas 78701 Phone: (512)475-1647 Facsimile:(5121 475-47 59 Email: kelly.parker(a dir.texas.gov If sent to the Vendor: Tiffany Pabst EMC Corporation,dba System Peripherals, Inc. 3017 Douglas Blvd.,Ste 300 Roseville,CA 95661 Phone: 774-350-8224 Email:tiffany.pabst@dell.com 7. Software License,Service and Leasing Agreements A. Software License Agreement 1) Customers acquiring software licenses under the Contract shall hold, use and operate such software subject to compliance with the Software License Terms belowand the End User License Agreement (EULA). No changes to the Software License Agreement terms and conditions may be made unless previously agreed to between Vendor and DIR. Customers may not add, delete or alter any of the language in the Software License Terms and EULA, however, that the Customer and Vendor may agree to additional terms and conditions that do not diminish a term or condition in the Software License Terms,or in any manner lessen the rights or protections of Customer or the responsibilities or liabilities of Vendor. Order Fulfiller shall make the Software License Agreement Terms available to all Customers at all times. 2) Compliance with the Software License Terms is the responsibility of the Customer. DIR shall not be responsible for any Customer's compliance with the Software License Terms. If DIR purchases software licenses for its own use under this Contract,it shall be responsible for its compliance with the Software License Term or shrink/click wrap license agreement, as applicable. 3) Shrink/Click-wrap License Agreement It is the Customer's responsibility to read the Shrink/Click-wrap License Agreement and determine if the Customer accepts the license terms as amended by this Contract. If the Customer does not agree with the license terms, Customer shall be responsible for negotiating with the reseller to obtain additional changes in the Shrink/Click-wrap License Agreement language from the software publisher. Deportment of information Resources Page 3 of 24 (DIR rev 03/2018) DIR Contract No. DIR-TSO-4299 Vendor Contract No. B. Software License Terms: Definitions: a) "Documentation" means the then-current, gewrally available, written user manuals and online help and guides provided by EMC for Products. b) "Products"mean "Equipment"(which is the EMC branded hardware delivered by EMC to Customer)and/or"Software"(which is any programming code provided by EMC to Customer as a EMC branded standard product, also including microcode, firmware and operating system software). c) Product Notice"means the Product and Services related information posted at the applicable EMC website at the time of the EMC quote, currently located at http://www.emc.com/products/warranty mainter)ance/index.isp. d) "Software Release" means any subsequent version of Software provided by EMC after initial Delivery of Software,but does not mean a new Product. e) General License Grant. Vendor grants to Customer a non-exclusive, non- transferable(except as specified in this Contract)license to use the Software and the Documentation during the period of the license solely for Customer's internal business operations,and subject to the provisions of this Contract.Unless otherwise Indicated in this Contractor or the applicable quote, licenses granted to Customer will be perpetual, will be for use of object code orly,and will commence on either delivery of the physical media or the date Customer is notified of availability for electronic download.Use of Software may require Customer to complete Vendor's then current product registration process, if any, to obtain and input an authorization key or license file. f) Licensing Models. Software is licensed for use only in accordance with the commercial terms and restrictions of the Software's relevant licensing model,which are stated in the Product Notice and/or Vendor quote. For example, the licensing model may provide that Software is licensed for use solely (i)for a certain number of licensing units; (ii)on or in connection with al certain piece equipment, CPU, network or other hardware environment; and/or (iii)for a specified amount of storage capacity. Microcode,firmware or operating system software needed by the Equipment with which it is shipped to perform its basic functions,is licensed for use solely on such Equipment. g) Copying Permitted. Customer may copy the Software and Documentation as necessary to install and run the quantity of copies licensed, but otherwise for archival purposes only. h) License Restrictions. Without Vendor's prior writ-:en consent, Customer must not, and must not allow any third party to: (i)use Software in an application services provider,service bureau,or similar capacity for third parties;(ii)disclose to any third party the results of any benchmarking testing or comparative or competitive analyses of Vendor's Products done by or on behalf of Customer;(iii)make available Software in any form to anyone other than Customer's employees or contractors reasonably acceptable to Vendor and which require access to use Software on behalf of Customer in a matter permitted by this Contract; (iv)transfer or sublicense Software or Documentation to any third party; (v)use Software in conflict with the terms and restrictions of the Software's licensing; model and other requirements specified in the Product Notice and/or Vendor quote; (vi)except to the extent Department of Information Resources Page 4 of 24 (DIR rev 03/2018) DIR Contract No. DIR-TSO-4299 Vendor Contract No. permitted by applicable mandatory law, modify, translate, enhance, or create derivative works from the Software, or reverse assemble or disassemble, reverse engineer,decompile,or otherwise attempt to derive source code from the Software; (vii)remove any copyright or other proprietary notices on or in any copies of Software; or (viii)violate or circumvent any technological restrictions within the Software or specified in this Contract,such as via software or services. i) Software Releases. Software Releases shall be subject to the license terms applicable to Software. j) Records and Audit. Records and Audit shall be in accordance with DIR contract number DIR-TSO-4299. k) Termination of License. Termination of licenses shall be in accordance with DIR contract number DIR-TSO-4299. 1) Reserved Rights. Vendor reserves all rights not expressly granted to Customer and does not transfer any ownership rights in any Software. m) Other License Terms. If a particular Product or component is provided with its own license terms ("Separate License Terms"), typically in the form of a (i)"click-to- accept"agreement included as part of the installation and/or download process,or (ii)"shrink-wrap"agreement included in the packaging for the Product,or(iii)notice indicating that by installation and/or use thereof the related license terms apply, then,in case of conflict with the terms of this Contract,such Separate License Terms shall (a)prevail with regard to Products or components for which Vendor is not the licensor;and(b)not prevail with regard to Product or component for which Vendor Is the licensor. C. Service Agreement Services provided under this Contract shall be in accordance with, Support Service and Professional Services Agreement as set forth in Appendix D or in a Statement of Work or other services agreement of this Contract . No changes to the Service Agreement terms and conditions may be made unless previously agreed to by Vendor and DIR. D. Master Operating Lease Agreement DIR and Vendor hereby agree that Vendor is authorized to utilize the Master Operating Lease Agreement in Appendix E of this Contract for Lessees that are Texas State Agencies or otherwise authorized to conduct lease transactions through DIR contracts. E. Master Lease Agreement DIR and Vendor hereby agree that Vendor is authorized to utilize the Master Lease Agreement in Appendix F of this Contract for DIR authorized entities as Lessees that are not Texas State Agencies or otherwise required by statute to utilize the Texas Public Finance Authority for such leasing transactions. Texas State Agencies that have the requisite capital authority and who are not required to utilize such authority via the Texas Public Finance Authority may or may not be eligible to utilize the Master Lease Agreement;each such agency must confer with its own counsel to make this determination. F. Conflicting or Additional Terms In the event of a conflict,any linked documents(other than and those referenced in software license terms in Section 7) may not take precedence over the printed or referenced Department of Information Resources Page 5 of 24 (DIR rev 03/2018) DIR Contract No. DIR-TSO-4299 Vendor Contract No. documents comprising this contract; provided further that any update to such linked documents shall only apply to purchases or leases of the associated Vendor product or service offering after the effective date of the update; and, provided further, that, if Vendor has responded to a solicitation or request for pricing,no update of such linked documents on or after the initial date of Vendor's initial response shall apply to that purchase unless Vendor directly informs Customer of the update before the purchase is consummated. Vendor shall not [without prior written agreement from Customer's authorized signatory,] require any document that: 1)diminishes the rights,benefits,or protections of the Customer, or that alters the definitions, measurements, or method for determining any authorized rights, benefits,or protections of the Customer;or 2)imposes additional costs,burdens,or obligations upon Customer, or that alters the definitions, measurements, or method for determining any authorized costs,burdens,or obligations upon Customer. The foregoing requirements apply to all contracts, including, but not limited to, contracts between Customer and a reseller who attempts to pass through documents and obligations from its Manufacturer or Publisher. a. Authorized Exceptions to Appendix A,Standard Terms and Conditions for Product and Related Services Contracts. A. Appendix A,Section 3,Definitions,is hereby replaced in its entirety as follows: A. Customer - any Texas state agency, unit of local government, institution of higher education as defined in Section 2054.003, Texas Government Code, the Electric Reliability Council of Texas, the Lower Colorado Rive, Authority, a private school, as defined by Section 5.001, Education Code,a private or ndependent institution of higher education,as defined by Section 61.003, Education Ccde,a volunteer fire department, as defined by Section 152.001,Tax Code,and those state agencies purchasing from a DIR contract through an Interagency Agreement, as authorized by Chapter 771, Texas Government Code, any local government as authorized through the Interlocal Cooperation Act, Chapter 791, Texas Government Code, and the state agencies and political subdivisions of other states as authorizes) by Section 2054.0565, Texas Government Code and, except for telecommunicatioths services under Chapter 2170, Texas Government Code,assistance organizations as defined in Section 2175.001,Texas Government Code to mean: 1) A non-profit organization that provides educational,health or human services or assistance to homeless individuals; 2) A nonprofit food bank that solicits,warehouses,and redistributes edible but unmarketable food to an agency that feeds needy families and individuals; 3) Texas Partners of the Americas, a registjered agency with the Advisory Committee on Voluntary Foreign Aid,with t-ie approval of the Partners of the Alliance Office of the Agency for International Development; 4) A group, including a faith-based group, that enters into a financial or non- financial agreement with a health or human services agency to provide services to that agency's clients; 5) A local workforce development board created under Section 2308.253; Department of Information Resources Page 6 of 24 (DIR rev 03/2018) DIR Contract No. DIR-TSO-4299 Vendor Contract No. 6) A nonprofit organization approved by the Supreme Court of Texas that provides free legal services for low-income households in civil matters; 7) The Texas Boll Weevil Eradication Foundation, Inc., or an entity designated by the commissioner of agriculture as the foundation's successor entity under Section 74.1011,Texas Agriculture Code; 8) A nonprofit computer bank that solicits,stores,refurbishes and redistributes used computer equipment to public school students and their families;and 9) A nonprofit organization that provides affordable housing. B. Compliance Check — an audit of Vendor's compliance with the Contract may be performed by, but not limited to, a third party auditor, DIR Internal Audit department, or DIR contract management staff or their designees. C. Contract—the document executed between DIR and Vendor into which this Appendix A is incorporated. D. CPA—refers to the Texas Comptroller of Public Accounts. E. Day-shall mean business days, Monday through Friday, except for State and Federal holidays, unless otherwise specified as calendar days. If the Contract calls for performance on a day that is not a business day,then performance is intended to occur on the next business day. F. Order Fulfiller—means the party,either Vendor or a party that may be designated by Vendor as a Reseller,who is authorized to quote and fulfiller Purchase Order and receive payment pursuant to the Contract. G. Purchase Order - means the Customer's fiscal form or format, which is used when making a purchase (e.g. formal written Purchase Order, Procurement Card, Electronic Purchase Order,or other authorized instrument). Neither Vendor or Customer is or shall be bound by a terms and conditions imprinted on or embedded in orders, order acknowledgements or other communications between the parties relating to orders. H. State—refers to the State of Texas. I. Documentation means the then-current, generally available, written user manuals and online help and guides provided by EMC for Products. J. Products mean"Equipment"(which is the EMC branded hardware delivered by EMC to Customer) and/or "Software" (which is any programming code provided by EMC to Customer as an EMC branded standard product,also including microcode,firmware and operating system software). K. Reseller means any third party approved by Vendor to sell to Customers under this Contract. Vendor will flow the terms and conditions of this Contract to its Resellers authorized under this Contract except,the pricing Reseller resales to Eligible Customers will be established by the Reseller. Reseller will not resale products or services that exceed the maximum price as set forth in Appendix C,Pricing Index,of this Contract. B. Appendix A, Section 4. General Provision, E. Survival, is hereby replaced in its entirety as follows: All applicable software license agreements, warranties or service agreements that were entered into between Vendor and a Customer under the terms and conditions of the Contract prior to expiration or termination of the Contract shall survive the expiration or termination of the Contract. All Purchase Orders, Statements of Work or Service Agreements issued to and accepted by Vendor or Order Fulfiller shall survive expiration or termination of the Contract for the term of the Purchase Order, Statement of Work or Department of Information Resources Page 7 of 24 (DIR rev 03/2018) DIR Contract No. DIR-TSO-4299 Vendor Contract No. service agreement unless the Customer terminates the Purchase Order,Statement of Work or Service Agreement sooner. However, regardless of the-term of the Purchase Order, no Purchase Order shall survive the expiration or termination of the Contract for more than five years, unless Customer incudes a statement of its internal approval of such longer period on the Purchase Order. Rights and obligations under this Contract which by their nature should survive will apply to such Purchase Order that survives after expiration or termination of the Contract,including,but not limited to the DIR Administrative Fee;and any and all payment obligations that occurred prior to the termination or expiration hereof; obligations of confidentiality; and, indemnification, will remain in effect after termination or expiration hereof. C. Appendix A,Section S.Intellectual Property Matters,A.Definitions,is hereby replaced in its entirety as follows: A. Definitions. 1)"Work Product"means anyand all reports,analyses,scripts,code or other work results which have been developed by Vendor for Customer within the framework of fulfilling obligations by Vendor for Customer under a Statement of Work issued pursuant to this Contract. 2) "Property Rights" mean all patents, copyrights, trade! secrets, methodologies, ideas, concepts:inventions,know-how,techniques or other intellectual property rights of a party. 3) "Statement of Work" means a document signed by Customer and Vendor describing a specific set of activities and/or deliverables,which may include Work Product and Property Rights,that Vendor is to provide Customer,issued pursuant to the Contract. 4)"Third Party IP"means the Intellectual Property Rights of any third party that is not a party to this Contract, and that is not directly or indirectly providing any goods or services to Customer under this Contract. 5)"Vendor IV' shall mean all tangible or intangible items or things, including the Property Rights therein,created or developed by Vendor. (a) prior to providing any Services or Work Product to Customer and prior to receiving any documents, materials, information or funding from or on behalf of Customer relating to the Services or Work Product,or(b)after the Effective Date of the Contract if such tangible or intangible items or things were independently developed by Vendor outside Vendor's provision of Professional Services or Work Product for Customer hereunder and were not created,prepared,developed,invented or conceived by any Customer personnel who then became personnel to Vendor or any of its affiliates or subcontractors, where, although creation or reduction-to-practice is completed while the person is affiliated with Vendor or its personnel, any portion of same was created, invented or conceived by such person while affiliated with Customer. Vendor shall not be limited in developing, using or marketing services or products which are similar to the Work Product or Professional Services provided hereunder, or, subject to Vendor's confidentiality obligations to Customer, in using the Work Product or performing similar Professional Services forany other project. Department of Information Resources Page 8 of 24 (DIR rev 03/2018) DIR Contract No. DIR-TSO-4299 Vendor Contract No. 6) "Services" mean (i)services for the support and maintenance of Products ("Support Services")as set forth in the Support Services and Professional Services Agreement,Appendix D to this Contract; or (ii)consulting, installation, implementation, or other services that are not Support Services ("Professional Services") as set forth in the Support Services and Professional Services Agreement,Appendix D to this Agreement. D. Appendix A Section 5. Intellectual Property Matters, B. Ownership through L. Vendor Development right is hereby replaced in its entirety as follows: B. Property Rights: 1) Grant of Copyright Rights in Work. Subject to Customer's payment of the applicable amounts due Vendor and to Vendor's Proprietary Rights in any underlying intellectual property embodied therein or used by Vendor to perform Professional Services, Customer shall own all copyright rights to the portion of Work Product that consists solely of written reports,analyses and other working papers prepared and delivered by Vendor to Customer in the performance of EMC's obligations under the SOW. 2) Grant of License Rights in Work Product. For the portion of Work Product that consists of scripts and code,Vendor grants Customer a non-exclusive,non-transferable,irrevocable(except in case of breach of the Contract or SOW) perpetual right to use, copy and create derivative works from such (without the right to sublicense) for Customer's internal business operations, as contemplated by the applicable SOW.The license granted in this section does not apply to(i)Customer furnished materials, and (ii)any other Products or items licensed, or otherwise provided, under a separate agreement. 3) Customer Furnished Materials. Customer does not relinquish any of its rights in materials it furnishes for use by Vendor in connection with the performance of Professional Services. Pursuant to Customer's Proprietary Rights therein, Customer grants EMC a non-exclusive, non-transferable right to use such solely for the benefit of Customer in fulfillment of Vendor's obligations under the SOW. 4) Reservation of Proprietary Rights. Each party reserves for itself all Proprietary Rights that it has not expressly granted to the other. Vendor shall not be limited in developing, using or marketing services or products which are similar to the Work Product or Professional Services provided hereunder, or, subject to Vendor's confidentiality obligations to Customer, in using the Work Product or performing similar Professional Services for any other projects. 5) Confidentiality. All documents, information and materials forwarded to Vendor by Customer for use in and preparation of the Work Product shall be deemed the confidential information of Customer, and subject to the license granted by Customer to Vendor under subparagraph 5.3.13.5, Customer Furnished Materials, hereunder. Vendor shall not use, disclose, or permit any Department of Information Resources Page 9 of 24 (DIR rev 03/2018) DIR Contract No. DIR-TSO-4299 Vendor Contract No. person to use or obtain the Work Product,or any portion thereof,in any manner without the prior written approval of Customer. 6) Vendor License to Use. Customer hereby grants to Vendor a non-transferable, non-exclusive, royalty-free, fully paid-up license to use any Work Product solely as necessary to provide the Services to Customer. Except as provided in this Section, neither Vendor nor any Subcontractor shall have the right to use the Work Product in connection with the provision of services to its other customers without the prior written consent of Customer, which consent may be withheld in Customer's sole discretion. E. Appendix A,Section 7.Contract Fulfillment and Promotion,A.Services,Sales and Support of the Contract,is hereby replaced in its entirety as follows: Vendor shall provide service, sales and support resources available under the Contract to serve all Customers throughout the State. It is the responsibility of the Vendor to sell, market, and promote products and services available under the Contract.Vendor shall use its commercially reasonable efforts to ensure that potential Customers are made aware of the existence of the Contract. F. Appendix A,Section 7.Contract Fulfillment and Promotion,C.Product Warranty and Return Policies,is hereby replaced in its entirety as follows: Order Fulfiller will adhere to the Vendor's then-currently published policies concerning product warranties and returns. Product warranty and return policies for Customers will not be more restrictive or more costly than warranty and return policies for other similarly situated Customers for like products. Vendor's Warranty: 1. Product Warranty A. Equipment and Software Media. Vendor warrants that (i)Equipment, and Equipment upgrades installed into Equipment, when purchased from Vendor and operated with normal usage and regular recommended service;and (ii)the physical media, if any,on which software is provided by Vendor,shall be free from material defects in materials and workmanship,and perform substantially in accordance with Documentation provided for Equipment or the physical media until the expiration of the warranty period.Unless otherwise noted on the Product Notice or Vendor quote, the warranty coverage for the microcode, firmware or operating system software that enables Equipment to perform as described in i-s Documentation shall be no less than that which applies to such Equipment.To the, extent specified in the Product Notice, Support Services in the form of the Support Option noted on the Product Notice are included free of charge during the Equipment warranty period. In some cases, a Support Option upgrade during the Equipment warranty period may be available by separate purchase. B. Equipment and Software Media Warranty Duration. Unless otherwise stated on the Vendor quote, the warranty period from Vendor for Products shall be as set forth at Department of Information Resources Page 10 of 24 (DIR rev 03/2018) DIR Contract No. DIR-TSO-4299 Vendor Contract No. the Product Notice. Equipment warranty commences upon Delivery. Equipment upgrades are warranted in the same manner as the Equipment in which the upgrades are installed from Delivery of the upgrade until the end of the warranty period for the Equipment into which the upgrades are installed.The warranty for physical media for Software provided by EMC,if any,is ninety(90)days and commences upon Delivery. C. Equipment and Software Media Warranty Remedies. Vendor's entire liability and Customer's exclusive remedies under the Equipment and physical media for Software warranties described in this Section 6 shall be for Vendor,at its option,to remedy the non-compliance or to replace the affected Product,and if Vendor is unable to effect such within a reasonable time, then Vendor shall refund the amount paid by Customer for the affected Product as depreciated on a straight line basis over a five (5) year period, upon return of such Product to Vendor. All replaced Products or portions thereof shall be returned to and become the property of Vendor. If such replacement is not so returned,Customer shall pay Vendor's then current spare parts price therefore. Vendor shall have no liability hereunder after expiration of the applicable warranty period. D. Software Warranty, Duration and Remedy. Vendor warrants to Customer that the Software will, for a period of ninety (90) days following Delivery or notice of availability for electronic download("Warranty Period"),substantially conform to the applicable Documentation,provided that the Software:(i)has been properly installed and used at all times in accordance with the applicable Documentation;and (ii)has not been modified or added to by persons other than Vendor or its authorized representative. Vendor will, at its own expense and as its sole obligation and Customer's exclusive remedy for any breach of this warranty, either replace that Software or correct any reproducible error in that Software reported to Vendor by Customer in writing during the Warranty Period.If Vendor determines that it is unable to correct the error or replace the Software, Vendor will refund to Customer the amount paid by Customer for that Software, in which case the license for that Software will terminate. E. Exclusions. Warranty does not cover problems that arise from(i)accident or neglect by Customer or any third party; (ii)any third party items or services with which the Product is used or other causes beyond Vendor's control;(iii)installation, operation or use not in accordance with Vendor's instructions or the applicable Documentation; (iv)use in an environment, in a manner or for a purpose for which the Product was not designed; (v)modification, alteration or repair by anyone other than Vendor or its authorized representatives; or (vi)in case of Equipment only, causes not attributable to normal wear and tear. Vendor has no obligation whatsoever for Software installed or used beyond the licensed use,for Equipment which was moved from the Installation Site without Vendor's consent or whose original identification marks have been altered or removed. F. Disclaimer of Warranty. OTHER THAN THE WARRANTIES SET FORTH IN THIS CONTRACT, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, VENDOR AND ITS SUPPLIERS MAKE NO OTHER EXPRESS WARRANTIES UNDERTHIS CONTRACT, AND DISCLAIM ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,TITLE AND NON-INFRINGEMENT, AND ANY WARRANTY ARISING BY STATUTE, OPERATION OF LAW, COURSE OF DEALING OR PERFORMANCE, OR USAGE OF TRADE. VENDOR AND ITS SUPPLIERS DO NOT Deportment of Information Resources Page 11 of 24 (DIR rev 03/2018) DIR Contract No. DIR-TSO-4299 Vendor Contract No. WARRANT THAT THE SOFTWARE WILL OPERATE UN,NTERRUPTED OR THAT IT WILL BE FREE FROM DEFECTS OR THAT IT WILL MEET CUSTOMER'S REQUIREMENTS. 2. Support Services Warranty: A. Support Services. Vendor shall perform the labor portion of Support Services in a workmanlike manner in accordance with generally accepted industry standards. Customer shall notify Vendor of any failure to so perform as soon as reasonably possible,and in no event more than ten(10)days after the date on which such failure first occurs. A replacement part receives the remainder of the warranty or Support Services coverage applicable to the Product containing the replacement part. B. Customer Remedies. Customer's exclusive remedy and Vendor's entire liability under the foregoing warranties shall be for Vendor to,at its option,(1)use reasonable efforts to (a)re-perform the deficient labor services within a reasonable time, or (b)replace any replacement parts which become defective during the remainder of the warranty or Support Services coverage applicable to the Product containing the replacement part,or sixty(60)days after installation thereof,whichever occurs later; and (ii)if,after reasonable efforts,Vendor is not able correct such deficiencies,then Customer has the right to terminate for breach in accordance with Section 7 D below. C. No Further Warranties. EXCEPT AS EXPRESSLY STATED HEREIN, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW,WITH REGARD TO PRODUCTS, SERVICES OR ANY OTHER ITEMS OR MATTERS ARISING HEREUNDER, VENDOR (INCLUDING ITS SUPPLIERS) MAKES NO OTHER EXPRESS WARRANTIES, WRITTEN OR ORAL, AND DISCLAIMS ALL IMPLIED WARRANTIES.IINSOFAR AS PERMITTED UNDER APPLICABLE LAW, ALL OTHER WARRANTIES ARE SPECIFICALLY EXCLUDED, INCLUDING,BUT NOT LIMITEDTO,THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND ANY WARRANTY ARISING BY STATUTE, OPERATION OF LAW, COURSE OF DEALING OR PERFORMANCE,OR USAGE OF TRADE. 3. Professional Services. A. Professional Services. Vendor shall perform Professional Services in a workmanlike manner in accordance with generally accepted industry standards. Customer must notify Vendor of any failure to so perform within ter (10)days after the performance of the applicable portion of Professional Services. B. Customer Remedies. Vendor's entire liability and Customer's sole remedy for Vendor's failure to so perform shall be for Vendor to, at its option, (i)correct such failure; and/or(ii)terminate the applicable SOW and refund that portion of any fees received that correspond to such failure to perform. C. No Further Warranties. EXCEPT AS EXPRESSLY STATED HEREIN, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WITH REGARD TO PRODUCTS, SERVICES OR ANY OTHER ITEMS OR MATTERS ARISING HEREUNDER, VENDOR (INCLUDING ITS SUPPLIERS) MAKES NO OTHER EXPRESS WARRANTIES, WRITTEN OR ORAL, AND DISCLAIMS ALL IMPLIED WARRANTIES. INSOFAR AS PERMITTED UNDER APPLICABLE LAW,ALL OTHER WARRANTIES ARE SPECIFICALLY EXCLUDED,INCLUDING, BUT NOT LIMITED TO,THE IMPLIED WARRANTIES OF MERCHANTABILITY,FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRIN�EMENT, AND ANY WARRANTY ARISING BY STATUTE, OPERATION OF LAW,COURSEiOF DEALING OR PERFORMANCE, OR USAGE OF TRADE. Department of Information Resources Page 12 of 24 (DIR rev 03/2018) DIR Contract No. DIR-TSO-4299 Vendor Contract No. F. Appendix A,Section 7.Contract Fulfillment and Promotion,H.Trade Show Participation,is hereby replaced in its entirety as follows: At DIR's discretion,Vendor maybe required to participate in no more than two DIR sponsored trade shows each calendar year. Vendor understands and agrees that participation, at the Vendor's expense, includes providing a manned booth display or similar presence. DIR will provide four months advance notice of any required participation.Vendor must display the DIR logo at all trade shows that potential Customers will attend. DIR reserves the right to approve or disapprove of the location or the use of the DIR logo in or on the Vendor's booth. G. Appendix A,Section 8.Pricing,Purchase Orders,Invoices,and Payments,C.Customer Price, is hereby replaced in its entirety as follows: The price to the Customer shall be calculated as follows: Customer Price=(MSRP or List Price—Customer Discount asset forth in Appendix C, Pricing Index)x(1+DIR Administrative Fee,as set forth in the Contract). 1)Customers purchasing products and services under this Contract may negotiate more advantageous pricing or participate in special promotional offers.In such event,a copy of such better offerings shall be furnished to DIR upon request. 2) During the term of this Contract,if pricing for products or non-custom services available under this Contract are provided by Vendor at a lower price to an Eligible Texas Customer (headquartered in the State of Texas)who is not purchasing those products or services under this Contract,then the available Customer Price in this Contract shall be adjusted to that lower price. This requirement applies to products or non-customized services actually charged by Vendor for a quantity of one (1) under substantially similar terms and conditions, for substantially similar configurations or deliverables.This requirement does not apply to volume or special pricing purchases. This Contract shall be amended within ten(10)business days to reflect the lower price. H. Appendix A, Section B. Pricing, Purchase Orders, Invoices, and Payments, G. Changes to Prices,is hereby replaced in its entirety as follows: Vendor or Order Fulfiller may change the price of any product or service at any time, based upon changes to the MSRP, but discount levels shall remain consistent with the discount levels specified in this Contract. Price decreases shall take effect automatically during the term of this Contract and shall be passed onto the Customer immediately at the time of submission of a purchase order,but shall not be retroactive to products for which a purchase order has been received, or for services currently being rendered under a prior purchase order. I. Appendix A, Section 8. Pricing, Purchase Orders, Invoices,and Payments,K.Acceptance is amended by adding the following: K.Acceptance. All Products will be deemed to be delivered and accepted, meaning that Product operates in Department of Information Resources Page 13 of 24 (DIR rev 03/2018) DIR Contract No. DIR-TSO-4299 Vendor Contract No. substantial conformity to the Product's Documentation upon(i)Delivery of the Equipment or physical media; or(ii) transmission of a notice of availability for download(accomplished by the license key when required by EMC). Notwithstanding such acceptance,Customer retains all rights and remedies set forth in the Section entitled"Product Warranty". J. Appendix A,Section 9.Contract Administration,C.Records.and Audit,is hereby replaced in its entirety as follows: 1) Acceptance of funds under the Contract by Vendor and/or Order Fulfiller acts as acceptance of the authority of the State Auditor's Office,or any successor agency or designee, to conduct an audit or investigation in connection with those funds.Vendor further agrees to cooperate fully with the State Auditor's Office or its successor or designee in the conduct of the audit or investigation, including providing all records requested.Vendor will ensure that this clause concerning the authority to audit funds received indirectly by subcontractors through Vendor or directly by Order Fulfillers and the requilrement to cooperate is included in any subcontract or Order Fulfiller contract it awards pertaining to the Contract.Under the direction of the Legislative Audit Committee, a Vendor that is the subject of an audit or investigation by the State Auditor's Office must provide the:Mate Auditor's Office with access to any information the State Auditor's Office considers relevant to the investigation or audit. 2) Vendor and Order Fulfillers shall maintain adequate records relevant to the performance of the Contract to establish compliance with the Contract until the later of a period of four(4) years after termination of the Contract or until full, final and unappealable resolution of all Compliance Check or litigation issues that arise under the Contract. Such records shall include per transaction: the Order Fulfiller's company name if applicable, Customer name, invoice date, invoice number,description, part number, manufacturer, quantity, MSRP or list price, unit price, extended price, Customer Purchase Order number, contact name, Customer's complete billing address, the calculations supporting each administrative fee owed DIR under the Contract, Historically Underutilized Businesses`.subcontracting reports,and such other documentation as DIR may request. 3) Vendor and/or Order Fulfillers shall grant access to all paper and electronic records, books, documents, accounting procedures, practices, customer records including but not limited to contracts, agreements, purchase orders and statements of work, and any other items relevant to the performance of the Contract to the DIR Internal Audit department or DIR Contract Management staff, including the compliance checks designated by the DIR Internal Audit department,DIR Contract Management staff,the State Auditor's Office,and of the United States,and such other persons or entities designated by DIR for the purposes of inspecting, Compliance Checking and/or copying such books and records. Vendor and/or Order Fulfillers shall provide copies and printouts requestec by DIR without charge. DIR shall provide Vendor and/or Order Fulfillers ten (10) business days' notice prior to inspecting, Compliance Checking, and/or copying Vendor's and/or Oder Fulfiller's records. Vendor's and/or Order Fulfillers records, whether paper or electronic,shall be made available during regular office hours. Vendor and/or Order Fulfiller personnel familiar with the Vendor's and/or Order Fulfiller's books and records shall be ava fable to the DIR Internal Audit department, or DIR Contract Management staff and designees as needed. Vendor and/or Order Fulfiller shall provide adequate office space to DIR staff during the performance of Compliance Check. If Vendor is found to be responsible for inaccurate reports, DIR may Department of Information Resources Page 14 of 24 (DIR rev 03/2018) DIR Contract No. DIR-TSO-4299 Vendor Contract No. invoice for the reasonable costs of the audit, which Vendor must pay within thirty (30) calendar days of receipt. 4) For procuring State Agencies whose payments are processed by the Texas Comptroller of Public Accounts, the volume of payments made to Order Fulfillers through the Texas Comptroller of Public Accounts and the administrative fee based thereon shall be presumed correct unless Vendor can demonstrate to DIR's satisfaction that Vendor's calculation of DIR's administrative fee is correct. K. Appendix A,Section 10.Vendor Responsibilities,A.Indemnification,2)Acts or Omissions, is hereby replaced in its entirety as follows: 2) ACTS OR OMISSIONS Vendor shall indemnify and hold harmless the State of Texas and Customers,AND/OR THEIR OFFICERS, AGENTS, EMPLOYEES, REPRESENTATIVES, CONTRACTORS, ASSIGNEES, AND/OR DESIGNEES FROM ANY AND ALL THIRD PARTY CLAIMS FOR LIABILITY, ACTIONS, CLAIMS, DEMANDS,OR SUITS,AND ALL RELATEDCOSTS,ATTORNEY FEES,AND EXPENSES arising out of, or resulting from any acts or omissions of the Vendor or its agents, employees, subcontractors, Order Fulfillers, or suppliers of subcontractors in the execution or performance of the Contract and any Purchase Orders issued under the Contract resulting in bodily injury(including death) or damage to tangible property and to the extent caused by Vendor or its Order Fulfillers,Agents,Resellers or subcontractors.VENDOR'S OBLIGATIONS TO INDEMNIFY AND HOLD HARMLESS WILL BE LIMITED TO CLAIMS CAUSED SOLELY BY VENDOR NEGLIGENCE. VENDOR SHALL PAY ALL COSTS OF DEFENSE INCLUDING REASONABLE ATTORNEYS FEES AWARDED BY A COURT OF FINAL DETERMINATION.THE DEFENSE SHALL BE COORDINATED BY VENDOR WITH THE OFFICE OF THE ATTORNEY GENERAL FORTEXAS STATE AGENCIES ARE NAMED DEFENDANTS IN ANY LAWSUIT OR BY CUSTOMER'S LEGALCOUNSEL FOR NON-STATE AGENCY CUSTOMERS. VENDOR MAY NOT AGREE TO ANY SETTLEMENT AS TO CLAIMS AGAINST STATE AGENCIES WITHOUT FIRST OBTAINING THE CONCURRENCE FROM THE OFFICE OF THE ATTORNEY GENERAL VENDOR AND THE CUSTOMER AGREE TO FURNISH TIMELY WRITTEN NOTICE TO EACH OTHER OF ANY SUCH CLAIM. L. Appendix A,Section 10. Vendor Responsibilities, A. Indemnification, 3)Infringements, is hereby replaced in its entirety as follows: 3) INFRINGEMENTS a) Vendor shall indemnify the State of Texas and Customers, AND/OR THEIR EMPLOYEES, AGENTS, REPRESENTATIVES, CONTRACTORS,ASSIGNEES, AND/OR DESIGNEES("Indemnified Party"), from any and all third- party claims involving infringement of United States patents, copyrights, trade and service marks, and any other intellectual or intangible property rights in connection with the performance of Services or the provision of Vendor- branded Products by Vendor pursuant to this contract by paying(i)the resulting costs and damages finally awarded against Indemnified Party by courtof competent jurisdiction to the extent that such are the result of the third party claims,or(ii)the amounts stated in a written settlement negotiated and approved by Vendor. "Vendor-Branded Products" shall mean hardware products (including all EMC standard components and parts contained within the Deportment of Information Resources Page 15 of 24 (DIR rev 03/2018) DIR Contract No. DIR-TSO-4299 Vendor Contract No. EMC system),components,or parts bearing the Vendor's logo that are included on Vendor's standard price list. Vendor and Customer agrees to furnish timely written notice to each other of any such claim.The defense shall be coordinated by the Office of the Attorney General for Texas State Agency Customers, Vendor's Counsel for Vendor, and by Customer's legal counsel for non- state agency customers and Vendor may not agree to any settlement as to claims against Texas State agencies without first obtaining concurrence from the Office of the Attorney General. In addition, without any additional payment of liability by Vendor,the foregoing IP obligations shall extend to third party claims involving infringement of United States patents, copyrights, trade and service marks, and any other intellectual or intangible property rights in connection with Vendor's sale of third party equipment and license of third party software under this Contract, if and to the extent the applicable third party equipment manufacturer or third party software licensor is contractually obligated to Vendor to provide indemnification for such claims and such indemnification by its own terms can be extended to Indemnified Party. b) Notwithstanding the foregoing, Vendor shall have no obligation under this Section 10.A.3 for any claim to the extent that it results or arises from (1) Customer's modifications of such products, services or deliverables that were not performed by or on behalf of Vendor; (2) the combination, operation or use of such product, service or deliverable in connection with a third-party product or service (the combination of which causes the infringement);or(3)Vendor's compliance with Customer's written specifications (to the extent such specifications were not developed by Vendor)or directions, including the incorporation of any software or other materials or process provided by or requested by Customer. In the event Vendor has no obligation for a claim as set forth above, Vendor agrees to provide such assistance (e.g., producing documents and its employees as witnesses) as is reasonably requested by the Attorney General in connection with the Attorney General's defense of such claim. c)If Vendor becomes aware of an actual or potential claim, or Customer provides Vendor with notice of an actual or potential claim, Vendor may (or in the case of an injunction against Customer,shall),at Vendor's sole option and expense: (1)procure for the Customer the right to continue to use the affected portion of the product or service, or (ii) modify or replace the affected portion of the product or service with functionally equivalent or superior product or service so that Customer's use is non- infringing, or (iii) provide a refund that reflects reasonable depreciation for time of use, and for services/custom software. (iii) applies only if the remedies described in subparts (i) and (ii) are not obtainable despite Vendor's commercially reasonable efforts. This subsection states Customer's exclusive remedies for any third-party intellectual property claim. Notwithstanding the foregoing, if Vendor provides the remedy described in subpart(iii)and the affected Customer incurs transition expenses relating to the replacement in such Customer's IT environment of the affected portion of Dell Vendor-Branded Products or services, such Customer may tender to Vendor a claim for such actual and reasonable transition expenses in an amount up to the difference between (y) the original purchase price for the affected portion of the product or servii;e being removed and (z) the Department of Information Resources Page 16 of 24 (DIR rev 03/2018) DIR Contract No. DIR-TSO-4299 Vendor Contract No. refund provided to such Customer pursuant to subpart(iii), above,and Vendor will pay such claim. M. Appendix A,Section 10.Vendor Responsibilities,A.Indemnification,4)Property Damage,is hereby replaced in its entirety as follows: 4) PROPERTY DAMAGE IN THE EVENT OF LOSS, DAMAGE, OR DESTRUCTION OF ANY REAL AND TANGIBLE PROPERTY OF CUSTOMER OR THE STATE DUE TO THE SOLE NEGLIGENCE, MISCONDUCT, WRONGFUL ACT OR OMISSION ON THE PART OF THE VENDOR, ITS EMPLOYEES, AGENTS, REPRESENTATIVES, OR SUBCONTRACTORS, THE VENDOR SHALL; 1) FOR LOSS, DAMAGE OR DESTRUCTION OF EMC PRODUCT, EMC WILL REPAIR OR REPLACE THE EMC PRODUCT OR PROVIDETHE REFUND EACH AS SPECIFIED IN THE TERMS AND CONDITIONS OF THE APPLICABLE WARRANTY OR SUPPORT SERVICE TERMS, OR 2) FOR PRODUCTS OTHER THAN AN EMC PRODUCT,AND AFTER VENDOR'S INVESTIGATION AND SUMMARY OF PROPOSED REMEDY,PAY THE FULLCOSTOF EITHER REPAIR, RECONSTRUCTION,OR REPLACEMENT OF THE PROPERTY, AT THE CUSTOMER'S ELECTION, TAKING INTO CONSIDERATION THE VENDOR'S RECOMMENDATION.IF SUCH LOSS DAMAGE OR DESTRUCTION IS CAUSED SOLELY BY VENDOR, ITS EMPLOYEES,AGENTS, REPRESENTATIVES OR SUBCONTRACTORS NEGLIGENCE. FOR LOSS, DAMAGE OR DISTRUCTION NOT CAUSED SOLELY BY VENDOR, ITS EMPLOYEES, AGENTS, REPRESENTATIVES OR SUBCONTRACTORS SOLE NEGLEGENCE VENDOR WILL PAY THAT PORTION OF THE COST OF EITHER REPAIR, RECONSTRUCTION OR REPLACEMENT OF THE PROPERTY TO THE DEGREE RESPONSIBLE.SUCH COST SHALL BE DETERMINED BY AND SHALL BE DUE AND PAYABLE BY THE VENDOR NINETY (90) CALENDAR DAYS AFTER THE DATE OF THE VENDORS RECEIPT FROM THE CUSTOMER OF A WRITTEN NOTICE OF THE AMOUNT DUE. N. Appendix A, Section 10. Vendor Responsibilities, B. Taxes/Worker's Compensation/UNEMPLOYMENT INSURANCE,is hereby replaced in its entirety as follows: 1) VENDOR AGREES AND ACKNOWLEDGES THAT DURING THE EXISTENCE OF THIS CONTRACT, VENDOR SHALL BE ENTIRELY RESPONSIBLE FOR THE LIABILITY AND PAYMENT OF VENDOR'S AND VENDOR'S EMPLOYEES' TAXES OF WHATEVER KIND, ARISING OUT OF THE PERFORMANCES IN THIS CONTRACT. VENDOR AGREES TO COMPLY WITH ALL STATE AND FEDERAL LAWS APPLICABLE TO ANY SUCH PERSONS, INCLUDING LAWS REGARDING WAGES,TAXES,INSURANCE,AND WORKERS'COMPENSATION.THE CUSTOMER AND/OR THE STATE SHALL NOT BE LIABLE TO THE VENDOR,-ITS EMPLOYEES, AGENTS, OR OTHERS FOR THE PAYMENT OF TAXES OR THE PROVISION OF UNEMPLOYMENT INSURANCE AND/OR WORKERS' COMPENSATION OR ANY BENEFIT AVAILABLE TO A STATE EMPLOYEE OR EMPLOYEE OF ANOTHER GOVERNMENTAL ENTITY CUSTOMER AS A RESULT OF ITS PERFORMANCE UNDER THIS CONTRACT. 2) VENDOR AGREES TO INDEMNIFY AND HOLD HARMLESS CUSTOMERS, THE STATE OF TEXAS AND/OR THEIR EMPLOYEES, AGENTS, REPRESENTATIVES, CONTRACTORS,AND/OR ASSIGNEES FROM ANYAND ALL LIABILITY,ACTIONS, CLAIMS, DEMANDS, OR SUITS, AND ALL RELATED COSTS,ATTORNEYS' FEES,AND EXPENSES, RELATING TO EMPLOYEE TAX LIABILITY, UNEMPLOYMENT INSURANCE AND/OR WORKERS' COMPENSATION IN ITS PERFORMANCE UNDER THIS CONTRACT. VENDOR SHALL BE LIABLE TO PAY ALL COSTS OF DEFENSE Department of Information Resources Page 17 of 24 (DIR rev 03/2018) DIR Contract No. DIR-TSO-4299 Vendor Contract No. INCLUDING ATTORNEYS' FEES FOR CLAIMS MADE BY VENDOR VENDOR'S EMPLOYEES, VENDOR'S SUBCONTRACTORS IN ITS PERFORMANCE UNDER THIS CONTRACT. THE DEFENSE SHALL BE COORDINATED BY VENDOR WITH THE OFFICE OWTHE ATTORNEY GENERAL WHEN TEXASSTATE AGENCIES ARE NAMED DEFENDANTS IN ANY LAWSUIT AND VENDOR ORFORWITH CUSTOMER'S LEGAL COUNSEL FOR NON-STATE AGENCIES. VENIDOR MAY NOT AGREE TO ANY SETTLEMENT WITHOUT FIRST OBTAINING THE CONCURRENCE FROM THE OFFICE OF THE ATTORNEYGENERAL OR NON-STATE COUNSEL IFSUCH SETTLEMENT REQUIRESTHE STATE OR STATE AGENCYTO MAKE ANY PAYMENT. VENDOR AND THEjCUSTOMER AGREE TO FURNISH TIMELY WRITTEN NOTICE TO EACH OTHER OF ANY SUCH CLAIM. L. O. Appendix A, Section 10.Vendor Responsibilities, I. Security of Premises, Equipment, Data and Personnel,is hereby replaced in its entirety as follows: a) Vendor and/or Order Fulfiller may, from time to time during the performance of the Contract, have access to the personnel, premises, equ�pment, and other tangible property, belonging to the Customer. Vendor shall use ccmmercially reasonable efforts to preserve the safety,security,and the integrityof the premises,equipment,and other tangible property of the Customer, in accordance with the instruction of the Customer provided to Vendor or the applicable Order Fulfiller by the Customer in writing or in the manner that Customer generally provides such instructions to its own employees and other contractors. Vendor and/or Order Fulfiller shall be responsible for damage to Customer's equipment, premises,and other tangible property when and to the deg•ee such damage is caused by its employees or subcontractors. If a Vendor and/or Order Fulfiller materially fails to comply with Customer's security requirements, then Customer Tray terminate its Purchase Order and related Service Agreement in accordance with Section 11.13.Termination of the Contract. b) In addition,Vendor and/or Order Fulfiller may, during performance of the Contract,have access to Customer's data ("Data") that is hosted either at Customer's or a third party's premises (other than premises of Vendor's Affiliates or subcontractors) (collectively, "Customer Premises") or at Vendor's premises or the premises of Vendor's Affiliates or subcontractors (collectively, "Vendor Premises"). i) As t� Data hosted at any Customer Premises,Vendor shall comply with Customer's instructions)related to preserving the safety, security and integrity of such Data provided to Vendor or the applicable Order Fulfiller by the Customer in writing or in the manner that Customer generally provides such instructions to its own employees and other contractors. ii) As to Data hosted at any Vendor Premises, Vendor will comply with its generally applicable security standards designed to preserve the safety, security and integrity of such Data, as well as any additional security obligations expressly agreed in the applicable Statement of Work executed by Customer and Vendor. III) Notwithstanding anything to the contrary in this Contract,including this Section 10.1, except as otherwise expressly provided in a Statement of Work executed by Customer and Vendor: (A)Customer is responsible for backing up its own Data, (E)Vendor and Order Fulfiller shall not have operational or financial responsibility for refreshes, upgrades, modifications or improvements to Customer-provided facilities,equipment or software that may be required to preserve the safety,securityand integrityof such Data,and(C)if VendororOrder Fulfiller's compliance with Customer's instructions constitutes a material change to the scope of Services or their other obligations,the parties will equitably)adjust the charges to account for such material change. Vendor and Order Fulfiller shall not be responsible, or liable for any damages,for any Data losses to the extent such Data cannot be retrieved due to Customer's Department of Information Resources Page 18 of 24 (DIR rev 03/2018) DIR Contract No. DIR-TSO-4299 Vendor Contract No. (or Customer's applicable Third-Party Vendor's) failure to use standard industry practices relating to data backups and retrieval of Data. P. Appendix A, Section 10. Vendor Responsibilities, J. Background and/or Criminal History Investigation,is hereby replaced in its entirety as follows: Prior to commencement of any services, background and/or criminal history investigation of the Vendor and/or Order Fulfiller's employees and subcontractors who will be providing services to the Customer under the Contract may be performed by the Customer (as required by Customer),provided the Customer gives prior notice of such investigation.Should any employee or subcontractor of the Vendor and/or Order Fulfiller who will be providing services to the Customer under the Contract not be acceptable to the Customer as a result of the background and/or criminal history check, then Customer may immediately require replacement of the Vendor or Order Fulfiller employee or subcontractor in question. If Vendor fails to replace the employee or subcontractor personnel as soon as practicable, then Customer may terminate its Purchase Order and related Service Agreement in accordance with the applicable termination sections of this Contract. Q. Appendix A,Section 10.Vendor Responsibilities,K.Limitation of Liability,is hereby replaced in its entirety as follows: For any claims or cause of action arising under or related to the Contract: i)to the extent permitted by the Constitution and the laws of the State, none of the parties shall be liable to the other for indirect, punitive,special,or consequential damages,even if it is advised of the possibility of such damages; and ii) Vendor's cumulative liability for all claims and damages of any kind to the Customer under the Contract shall be limited in the aggregate, to$5,000,000.The foregoing limitations shall apply regardless of whether the claim for such damages is based in contract,warranty,strict liability,negligence,tort or otherwise. Insofar as applicable law prohibits any limitation herein, the parties agree that such limitation will be automatically modified,but only to the extent so as to make the limitation permitted to the fullest extent possible under such law. However,this limitation of Vendor's liability shall not apply to Vendor's indemnification obligations for claims of patent, trademark, or copyright infringement of Vendor-branded products or Vendor provided services and deliverables as set forth in Section 10.A.3("Infringements"). R. Appendix A,Section 10.Vendor Responsibilities,M.Prohibited Conduct,is hereby replaced in its entirety as follows: Vendor certifies that,to the best of its knowledge as of the date of this certification, neither Vendor nor any Reseller Order Fulfiller, subcontractor has: (1)violated the antitrust laws of the State of Texas under Texas Business & Commerce Code, Chapter 15, or the federal antitrust laws;or(2)communicated its response to the Request for Offer directly or indirectly to any competitor or any other person engaged in such line of business during the procurement for the Contract S. Appendix A,Section 10.Vendor Responsibilities,N.Required Insurance Coverage,is hereby replaced in its entirety as follows: Deportment of Information Resources Page 19 of 24 (DIR rev 03/2018) DIR Contract No. DIR-TSO-4299 Vender Contract No. As a condition of this Contract with DIR,Vendor shall provide the listed insurance coverage within 5 business days of execution of the Contract if the Vendor is awarded services which require that Vendor's employees perform work at any Customer premises and/or use employer vehicles to conduct work on behalf of Customers.In addition,when engaged by a Customer to provide services on Customer premises, the Vendor shall, at its own expense, secure and maintain the insurance coverage specified herein, and shall provide proof of such insurance coverage to the related Customer within five(5)business days following the execution of the Purchase Order.Vendor may not begin performance under the Contract and/or a Purchase Order until such proof of insurance coverage is provided to, and approved by, DIR and the Customer.All required insurance must be issued by companies that have an A rating and a Financial Size Category Class of VII from A.M. Best and are licensed in the State of Texas and authorized to provide the corresponding coverage. The Customer and DIR will be named as Additional Insureds on Commercial General Liability and Business Auto Liability policies.Required coverage must remain in effect through the term of the Contract and each Purchase Order issued to Vendor there under. The minimum acceptable insurance provisions are as follows: 1) Commercial General Liability Commercial General Liability must include $1,000,000 per occurrence for Bodily Injury and Property Damage, with a separate aggregate limit of$2,000,000; Medical Expense per person of $5,000; Personal Injury and Advertising Liability of $1,000,000; Products/Completed Operations Aggregate Limit of$2,000,000;and Damage to Premises Rented:$50,000. Agencies mayrequire additional Umbrella/Excess Liability insurance.The policy shall contain the following provisions: a) Blanket contractual liability coverage for liability assimed under the Contract; b) Independent Contractor coverage; c) State of Texas, DIR and Customer listed as an additional insured;and d) Waiver of Subrogation 2) Workers'Compensation Insurance WORKERS' COMPENSATION INSURANCE AND EMPLOYERS' LIABILITY COVERAGE MUST INCLUDE LIMITS CONSISTENT WITH STATUTORY BENEFITS OUTLINED IN THE TEXAS WORKERS'COMPENSATION ACT(ART. 8308-1.01 ET SEQ. TEX. REV.CIV.STAT) AND MINIMUM POLICY LIMITS FOR EMPLOYERS' LIABILITY OF $1,000,000 BODILY INJURY PER ACCIDENT, $1,000,000 BODILY INJURY DISEASE PER EMPLOYEE AND $1,000,000 PER DISEASE POLICY LIMIT. 3) Business Automobile Liability Insurance Business Automobile Liability Insurance must cover all owned, non-owned and hired vehicles with a minimum combined single limit of$500,000 per occurrence for bodily injury and property damage.The policy shall contain the following endorsements in favor of DIR and/or Customer: a) Waiver of Subrogation;and b) Additional Insured. Department of Information Resources Page 20 of 24 (DIR rev 03/2018) DIR Contract No. DIR-TSO-4Z99 Vendor Contract No. T. Appendix A,Section 10.Vendor Responsibilities,S. Secure Erasure of Hard Disk Products and/or Services,is hereby replaced in its entirety as follows: Vendor agrees that all products that are equipped with hard disk drives (i.e. computers, servers etc.)shall have the capability to securely erase data written to the hard drive prior to final disposition of such products and/or services. Erasure services are available at additional cost. U. Appendix A, Section 10. Vendor Responsibilities, T. Deceptive Trade Practices, Unfair Business Practices,is hereby replaced in its entirety as follows: 1) Vendor certifies as of the Effective Date of this Contract,that neither Vendor nor any of its Subcontractors has been (i)found liable in any administrative hearing,litigation or other proceeding of Deceptive Trade Practices violations as defined under Chapter 17, Texas Business & Commerce Code, or (ii) has outstanding allegations of any Deceptive Trade Practice pending in any administrative hearing,litigation or other proceeding. 2)Vendor certifies,as of the Effective Date of this Contract,that it has no officers who have served as officers of other entities who (i) have been found liable in any administrative hearing, litigation or other proceeding of Deceptive Trade Practices violations or (ii) have outstanding allegations of any Deceptive Trade Practice pending in any administrative hearing,litigation or other proceeding. V. Appendix A,Section 10.Vendor Responsibilities, U. Drug Free Workplace Policy,is hereby replaced in its entirety as follows: Vendor will comply with drug and alcohol rules and regulations that are legally mandated for employers in the State of Texas. Vendor and Customers may agree to more specific requirements for onsite services in a mutually agreed statement of work. W. Appendix A, Section 11. Contract Enforcement, B. Termination, 1) Termination for Non- Appropriation,a).Termination for Non-Appropriation by Customer is hereby replaced in its entirety as follows: "Customer will endeavor to ensure appropriated funds have been appropriated prior to placing orders. In the event of non-appropriation, Vendor and/or Order Fulfiller will be provided ten(10)calendar days written notice of intent to terminate. Notwithstanding the foregoing,if a Customer issues a Purchase Order and has accepted delivery of the product or services,they are obligated to pay for the product or services or they may return the product and discontinue using services under any return provisions that Vendor offers.In the event of such termination,the Customer will not be considered to be in default or breach under this Contract, nor shall it be liable for any further payments ordinarily due under this Contract, nor shall it be liable for any damages or any other amounts which are caused by or associated with such termination. Deportment of Information Resources Page 21 of 24 (DIR rev 03/2018) DIR Contract No. DIR-TSO-4299 Vendor Contract No. X. Appendix A, Section 11. Contract Enforcement, B. Termination, 3) Termination for Convenience,is hereby replaced in its entirety as follows: DIR may terminate the Contract, in whole or in part, by giving the other party thirty (30) calendar days written notice. A Customer may terminate a Purchase Order by giving the other party thirty(30)calendar days written notice. Customer will be responsible for all payments for products and services delivered prior to termination and ubr any agreed to costs associated with termination of a services as agreed to in a lease agreement,Statement of Work or other service agreement. Y. Appendix A,Section 11. Contract Enforcement, C. Force Majeure, is hereby replaced in its entirety as follows: DIR, Customer, or Order Fulfiller may be excused from perrormance under the Contract for any period when performance is prevented as the result of an act of God, strike, war, civil disturbance, epidemic, or court order, provided that the party experiencing the event of Force Majeure has prudently and promptly acted to take any and all steps that are within the party's control to ensure performance and to shorten the duration of the event of Force Majeure. The party suffering an event of Force Majeure shall provide notice of the event to the other parties when commercially reasonable. Subject to this provision, such non- performance shall not be deemed a default or a ground for termination. However, a Customer may terminate a Purchase Order if 1) its performance is or will be delayed by 20 days or more by event(s)of Force Majeure (or a longer period if agreed to by the Customer) and 2)if it is reasonably determined by the Customer that Order Fulfiller will not be able to deliver services in a timely manner to meet the business needs of the Customer Z. Appendix A,Section 14.Trade Compliance,is hereby added as follows: The parties agree to comply with US Export and Import laws. All content, Services and the technology included therein (collectively the "Materials") provided under this Contract are subject to governmental restrictions on exports and imports including without limitation (i)exports from the U.S and the European Union as well as re- export from third countries in the form received; (ii) exports from other countries in which the Materials may be produced or located;(ki)disclosures of technology to non-U.S persons,- (iv)exports from other countries of the same or products derivative of Materials;and(v)the importation and/or use the Materials outside of the U.S. or other countries (collectively, "Trade Laws").Customer must comply with all Trade Laws. Diversion contrary to U.S. law or other Trade Laws is expressly prohibited. In addition, Customer shall not send or deliver to EMC any data controlled by the International Traffic in Arras ("ITAR"),and shall not request Materials or Service from EMC where an)TAR license is required in order for EMC to provide such Materials or Service,unless the EMC Global Trade Compliance Group Office has signed a specific agreement consenting to provide ITAR controlled Materials or Service Customer. Customer represents and warrants that it is not (a)listed on any of the lists of restricted parties found at http://www.bis.doc.gov/index.php/policy-guidance/lists-of-parties-of- concern; (b)located in any country subject to embargo by the U.S. (identified as an E:1 country in Supplement 1 to Part 740 of the United States Export Administration Regulations Deportment of fnformotion Resources Page 22 of 24 (DIR rev 03/2018) DIR Contract No. DIR-TSO-4299 Vendor Contract No. ("EAR"), as shown here and updated from time to time: http://www.ecfr.gov/cgi-bin/text- idx?SID=7f51b38428b0614519eea4b4fdc8640e&node=15:2.1.3.4.25.0.1.21.28&rgn=div9; or (c)engaged in the proliferation of weapons of mass destruction (i.e., nuclear, chemical or biological weapons or missiles).Customer will not participate or ask EMC to participate in any illegal boycott. AA.Appendix A,Section 15.EMC Select or Brokerage Products,shall be added at a later date. (Remainder of Page Intentionally Left Blank) Department of Information Resources Page 23 of 24 (DIR rev 03/2018) DIR Contract No. DIR-TSO-4299 Venc or Contract No. This Contract is executed to be effective as of the date of last signature. EMC Corporation,dba System Peripherals,Inc. Authorized By: _ Signature on file Name: Rita Roles Title: Sr.Contracts Manager Date: 12/10/2018 The State of Texas,acting by and through the Department of Information Resources Authorized By: Signature on file Name: Hershel Becker Title: Chief Procurement Officer Date: 12/17/2018 Office of General Counsel: DB 12/14/2018 Department of Information Resources Page 24 of 24 (DIR rev 03/2018) 9/20/2019 City of Fort Worth-File#:M&C 19-0123 Sign In Home Legislation Calendar City Council Departments -.-n . r]RSS 1d Alerts Details Reports File#: M&C 19-0123 Version: 1 Name: Type: Purchase of Equipment,Materials,and Status: Passed Services Consent File created: 9/3/2019 In control: CITY COUNCIL On agenda: 9/10/2019 Final action: 9/10/2019 Authorize Purchase Agreements for Information Technology Storage Software,Hardware,Maintenance and Related Services with Netsync Title: Network Solutions,Inc.,for the Information Technology Solutions Department Using Cooperative Agreements in an Amount Up to$650,000.00 for One Term and One One-Year Option to Renew(ALL COUNCIL DISTRICTS) Attachments: 1.M&C 19-0123,2.DIR-TSO-4299,Contract Detail.pdf History(1) Text 1 record Group Export Date Ver. Action By Action Result Action Details Meeting Details Video 9/10/2019 1 CITY COUNCIL approved Action details Meeting details Not available https://fbrtworthgov.legistar.com/LegislationDetaii.aspx?ID=4123816&GUID=991B380E-485F-4C37-AA32-586D2434BE7F&Options=&Search= 1/1 M&C Review Page 1 of 2 Official site of the City of Fort Worth,Texas CITY COUNCIL AGENDA FOR+ TWOR,_- DATE: 9/10/2019 REFERENCE NO.:**M&C 19- LOG NAME: 04PDATA STORAGE 0123 SERVICES CC ITS CODE: P TYPE: CONSENT PUBLIC NO HEARING: SUBJECT: Authorize Purchase Agreements for Information Technology Storage Software, Hardware, Maintenance and Related Services with Netsync Network Solutions, Inc., for the Information Technology Solutions Department Using Cooperative Agreements in an Amount Up to$650,000.00 for One Term and One One-Year Option to Renew (ALL COUNCIL DISTRICTS) RECOMMENDATION: It is recommended that the City Council authorize Purchase Agreements for Information Technology storage software, hardware, maintenance and related services with Netsync Network Solutions, Inc. using Texas Department of Information Resources contract DIR-TSO-4299 in an amount up to$650,000.00 for one term and authorize one one-year option to renew. DISCUSSION: The Information Technology Solutions (ITS) Department will utilize this Agreement to purchase information technology storage related software, hardware, maintenance and related professional services for the Police Department and other City departments. This supports growth and maintenance of the exisitng City data storage. COOPERATIVE PURCHASE: State Law provides that a local government purchasing an item under a Cooperative Purchasing Agreement satisfies state laws requiring that the local government seek competitive bids for purchase of the item. The Texas Department of Information Resources (DIR) contracts have been competitively bid to increase and simplify the purchasing power of government entities across the State of Texas. PRICE ANALYSIS: The DIR contract offers fixed discounts. Staff reviewed pricing and determined it to be fair and reasonable. M/WBE:A MBE/SBE goal is not assigned when purchasing from an approved purchasing cooperative or public entity. SUCCESSOR CONTRACTS: To facilitate planning and budgeting Staff would prefer to have annual Agreements that align with the Fiscal year. However, the DIR Agreements are out of alignment with the City's Fiscal Year and the current term for DIR-TSO-4299 will expire December 17, 2020. In order for this purchase to align with the City's Fiscal Year, adoption of this Mayor and Council Communication (M&C) technically authorizes(i)a series of Purchase Agreements, each of which will align to a term of the DIR Agreement to ensure legal authority exists for the contract, and (ii) an annual spend amount, future years of which would be subject to City Council appropriation. In the event the DIR Agreement is not renewed, Staff would cease purchasing at the end of the last purchase Agreement coinciding with a valid DIR Agreement. If the City Council were to not appropriate funds for a future year, Staff would stop making purchases when the last appropriation expires, regardless of whether the then-current purchase Agreement has expired. AGREEMENT TERM: Upon City Council's approval, this Agreement will commence and continue in accordance with the terms and conditions of DIR contract DIR-TSO-4299. Terms are as follows: Year 1 —August 13, 2019- December 17, 2019 Year 2- December 18, 2019 -December 17, 2020 http://apps.cfwnet.org/council_packet/mc—review.asp?ID=2727 I&councildate=9/10/2019 9/4/2019 M&C Review Page 2 of 2 RENEWAL OPTIONS: This Agreement may be renewed for one additional one-term at the City's option. This action does not require specific City Council approval provided that the City Council has appropriated sufficient funds to satisfy the City's obligations during the renewal term, Staff anticipates the cost for renewal years will be the same as for the first year. ADMINISTRATIVE CHANGE ORDER: An administrative change orde or increase may be made by the City Manager for an amount up to$100,000.00 and does not require specific City Council approval as long as sufficient funds have been appropriated. FISCAL INFORMATION/CERTIFICATION: The Director of Finance certifies that funds are available in the current operating and capital budgets, as appropriated, of the General Fund, Crime Control and Prevention Distr ct Fund, and the ITS Capital Fund. The Information Technology Solutions Department has the responsibility to validate the availability of funds prior to the expenditure of funds. BQN\\ TO Fund Department Account Project Program Activity Budget Reference# Amount ID ID Year (Chartfield 2 FROM Fund Department Account Project Program ActivityTb—ud—g—et-F Reference# Amount ID ID Year I (Chartfield 2) Submitted for City Manager's Office by: Kevin Gunn (2015) Originating Department Head: Reginald Zeno(8517) Cynthia Garcia(8525) Additional Information Contact: Cristina Camarillo (8355) ATTACHMENTS DIR-TSO-4299,Contract Detaii.odf http://apps.cfwnet.org/council_packet/mc_review.asp?ID=27271&cduncildate=9/10/2019 9/4/2019