HomeMy WebLinkAboutContract 58910CSC No. 58910
FORT WORTH
CITY OF FORT WORTH
COOPERATIVE PURCHASE AGREEMENT
This Cooperative Purchase Agreement ("Agreement") is entered into by and between World Wide
Technology, LLC ("Seller") and the City of Fort Worth, ("Buyer"), a Texas home rule municipality.
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. Exhibit A — City's Terms and Conditions;
3. Exhibit B — Conflict of Interest Questionnaire.
4. Exhibit C — Texas Department of Information Resources DIR-TSO-3763; and
5. Exhibit D — DIR-TSO-3763 Pricing Index
Exhibits A, B, C, and D which are attached hereto and incorporated herein, are made a part of
this Agreement for all purposes. Seller agrees to provide Buyer with the services and goods included in
Exhibit C pursuant to the terms and conditions of this Cooperative Purchase Agreement, including all
exhibits thereto. In the event of a conflict between Exhibit A — City's Terms and Conditions and Exhibit
C — DIR-TSO-3763, then Exhibit A — City's Terms and Conditions shall control, but only to the extent
allowable under the DIR-TSO-3763.
Buyer shall pay Seller in accordance with the fee schedule in Exhibit C and in accordance with
the provisions of this Agreement. Total payment made annually under this Agreement by Buyer shall
not exceed the amount of Eleven Million Two Hundred Thousand and 00/100 ($11,200,000.00). Seller
shall not provide any additional items or services or bill for expenses incurred for Buyer not specified
by this Agreement unless Buyer requests and approves in writing the additional costs for such services.
Buyer shall not be liable for any additional expenses of Seller not specified by this Agreement unless
Buyer first approves such expenses in writing.
The term of this Agreement is effective beginning on the date signed by the Assistant City
Manager below ("Effective Date") and expires on January 10, 2024 to coincide with the Cooperative
Purchase Agreement. This Agreement may be amended to reflect the successive DIR Cooperative
Agreement to DIR-TSO-4167 and be renewed annually in accordance with the terms of that DIR
Cooperative Agreement.
[signature page following)
OFFICIAL RECORD
CITY SECRETARY
FT. WORTH, TX
The undersigned represents and warrants that he or she has the power and authority to execute
h Agreement and bind the respective Vendor.
CITY OF FORT WORTH:
Vim- L),--
By: Valerie Washington (Feb 21, 2023 09:40 CST)
Name: Valerie Washington
Title: Assistant City Manager
Date: Feb 21, 2023
APPROVAL RECOMMENDED:
By:
Name: Kevin Gunn
Title: Director, IT Solutions Department
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By:
Name: Jannette Goodall
Title: City Secretary
SELLER:
World Wide Technology, LLC
CONTRACT COMPLIANCE MANAGER:
By signing I acknowledge that I am the person
responsible for the monitoring and administration
of this contract, including ensuring all performance
and reporting requirements.
i
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Bobby Lee (Feb 17, 2023 08:33 CST)
Name: Bobby Lee
Title: Sr. IT Solutions Manager
FR99Z1]iI017VV111Iall] 7u/:1►1-1XII-D[el1gY619
By:
Name: Taylor Paris
Title: Assistant City Attorney
CONTRACT AUTHORIZATION:
M&C: 23-0061
Approved: 02/14/2023
Form 1295: 2022-963536
ATTEST:
By: // (/ �/ By:
Name: Gregory Brush Name:
Title: Area VP Public Sector Title:
Date: 2/14/2023
OFFICIAL RECORD
CITY SECRETARY
FT. WORTH, TX
Exhibit A
CITY OF FORT WORTH, TEXAS
TERMS AND CONDITIONS
1. Termination.
a. Convenience. Either City or Vendor may terminate the Agreement at any time
and for any reason by providing the other party with 30 days written notice of termination.
b. Breach. If either party commits a material breach of the Agreement, the non -
breaching Party must give written notice to the breaching party that describes the breach in
reasonable detail. The breaching party must cure the breach ten (10) calendar days after receipt
of notice from the non -breaching party, or other time frame as agreed to by the parties. If the
breaching party fails to cure the breach within the stated period of time, the non -breaching party
may, in its sole discretion, and without prejudice to any other right under the Agreement, law, or
equity, immediately terminate the Agreement by giving written notice to the breaching party.
C. Fiscal Funding Out. In the event no funds or insufficient funds are appropriated
by City in any fiscal period for any payments due hereunder, City will notify Vendor of such
occurrence and the Agreement shall terminate on the last day of the fiscal period for which
appropriations were received without penalty or expense to the City of any kind whatsoever,
except as to the portions of the payments herein agreed upon for which funds have been
appropriated.
d. Duties and Obligations of the Parties. In the event that the Agreement is
terminated prior to the Expiration Date, City shall pay Vendor for services actually rendered up
to the effective date of termination and Vendor shall continue to provide City with services
requested by City and in accordance with the Agreement up to the effective date of termination.
Upon termination of the Agreement for any reason, Vendor shall provide City with copies of all
completed or partially completed documents prepared under the Agreement. In the event Vendor
has received access to City information or data as a requirement to perform services hereunder,
Vendor shall return all City provided data to City in a machine readable format or other format
deemed acceptable to City.
2. Attorneys' Fees, Penalties, and Liquidated Damages. To the extent the attached
Agreement requires City to pay attorneys' fees for any action contemplated or taken, or penalties or
liquidated damages in any amount, City objects to these terms and any such terms are hereby deleted
from the Agreement and shall have no force or effect.
3. Law and Venue. The Agreement and the rights and obligations of the parties hereto shall
be governed by, and construed in accordance with the laws of the United States and state of Texas,
exclusive of conflicts of laws provisions. Venue for any suit brought under the Agreement shall be in a
court of competent jurisdiction in Tarrant County, Texas. To the extent the Agreement is required to be
governed by any state law other than Texas or venue in Tarrant County, City objects to such terms and
any such terms are hereby deleted from the Agreement and shall have no force or effect.
4. Linked Terms and Conditions. If the Agreement contains a website link to terms and
conditions, the linked terms and conditions located at that website link as of the effective date of the
Agreement shall be the linked terms and conditions referred to in the Agreement. To the extent that the
linked terms and conditions conflict with any provision of either this Addendum or the Agreement, the
provisions contained within this Addendum and the Agreement shall control. If any changes are made
to the linked terms and conditions after the date of the Agreement, such changes are hereby deleted and
void. Further, if Vendor cannot clearly and sufficiently demonstrate the exact terms and conditions as of
the effective date of the Agreement, all of the linked terms and conditions are hereby deleted and void.
5. Insurance. The City is a governmental entity under the laws of the state of Texas and
pursuant to Chapter 2259 of the Texas Government Code, entitled "Self -Insurance by Governmental
Units," is self -insured and therefore is not required to purchase insurance. To the extent the Agreement
requires City to purchase insurance, City objects to any such provision, the parties agree that any such
requirement shall be null and void and is hereby deleted from the Agreement and shall have no force or
effect. City will provide a letter of self -insured status as requested by Vendor.
6. Sovereign ImmunitX. Nothing herein constitutes a waiver of City's sovereign immunity.
To the extent the Agreement requires City to waive its rights or immunities as a government entity; such
provisions are hereby deleted and shall have no force or effect.
7. Limitation of Liability and Indemnity. To the extent the Agreement, in any way, limits
the liability of Vendor or requires City to indemnify or hold Vendor or any third party harmless from
damages of any kind or character, City objects to these terms and any such terms are hereby deleted from
the Agreement and shall have no force or effect.
8. IP Indemnification. Vendor agrees to indemnify, defend, settle, or pay, at its own
cost and expense, including the payment of attorney's fees, any claim or action against the City for
infringement of any patent, copyright, trade mark, service mark, trade secret, or other intellectual
property right arising from City's use of the Deliverable(s), or any part thereof, in accordance
with the Agreement, it being understood that the agreement to indemnify, defend, settle or pay
shall not apply if City modifies or misuses the Deliverable(s). So long as Vendor bears the cost and
expense of payment for claims or actions against the City pursuant to this section 8, Vendor shall
have the right to conduct the defense of any such claim or action and all negotiations for its
settlement or compromise and to settle or compromise any such claim; however, City shall have
the right to fully participate in any and all such settlement, negotiations, or lawsuit as necessary to
protect the City's interest, and City agrees to cooperate with Vendor in doing so. In the event City,
for whatever reason, assumes the responsibility for payment of costs and expenses for any claim
or action brought against the City for infringement arising under the Agreement, the City shall
have the sole right to conduct the defense of any such claim or action and all negotiations for its
settlement or compromise and to settle or compromise any such claim; however, Vendor shall fully
participate and cooperate with the City in defense of such claim or action. City agrees to give
Vendor timely written notice of any such claim or action, with copies of all papers City may receive
relating thereto. Notwithstanding the foregoing, the City's assumption of payment of costs or
expenses shall not eliminate Vendor's duty to indemnify the City under the Agreement. If the
Deliverable(s), or any part thereof, is held to infringe and the use thereof is enjoined or restrained
or, if as a result of a settlement or compromise, such use is materially adversely restricted,
Vendor shall, at its own expense and as City's sole remedy, either: (a) procure for City the right to
continue to use the Deliverable(s); or (b) modify the Deliverable(s) to make them/it non -infringing,
provided that such modification does not materially adversely affect City's authorized use of the
Deliverable(s); or (c) replace the Deliverable(s) with equally suitable, compatible, and functionally
equivalent non -infringing Deliverable(s) at no additional charge to City; or (d) if none of the
foregoing alternatives is reasonably available to Vendor, terminate the Agreement, and refund all
amounts paid to Vendor by the City, subsequent to which termination City may seek any and all
remedies available to City under law. VENDOR'S OBLIGATIONS HEREUNDER SHALL BE
SECURED BY THE REQUISITE INSURANCE COVERAGE REQUIRED BY CITY.
9. Data Breach. Vendor further agrees that it will monitor and test its data safeguards
from time to time, and further agrees to adjust its data safeguards from time to time in light of
relevant circumstances or the results of any relevant testing or monitoring. If Vendor suspects or
becomes aware of any unauthorized access to any financial or personal identifiable information
("Personal Data") by any unauthorized person or third party, or becomes aware of any other
security breach relating to Personal Data held or stored by Vendor under the Agreement or in
connection with the performance of any services performed under the Agreement or any
Statement(s) of Work ("Data Breach"), Vendor shall immediately notify City in writing and shall
fully cooperate with City at Vendor's expense to prevent or stop such Data Breach. In the event of
such Data Breach, Vendor shall fully and immediately comply with applicable laws, and shall take
the appropriate steps to remedy such Data Breach. Vendor will defend, indemnify and hold City,
its Affiliates, and their respective officers, directors, employees and agents, harmless from and
against any and all claims, suits, causes of action, liability, loss, costs and damages, including
reasonable attorney fees, arising out of or relating to any third party claim arising from breach by
Vendor of its obligations contained in this Section, except to the extent resulting from the acts or
omissions of City. All Personal Data to which Vendor has access under the Agreement, as between
Vendor and City, will remain the property of City. City hereby consents to the use, processing
and/or disclosure of Personal Data only for the purposes described herein and to the extent such
use or processing is necessary for Vendor to carry out its duties and responsibilities under the
Agreement, any applicable Statement(s) of Work, or as required by law. Vendor will not transfer
Personal Data to third parties other than through its underlying network provider to perform its
obligations under the Agreement, unless authorized in writing by City. Vendor's obligation to
defend, hold harmless and indemnify City shall remain in full effect if the Data Breach is the result
of the actions of a third party. All Personal Data delivered to Vendor shall be stored in the United
States or other jurisdictions approved by City in writing and shall not be transferred to any other
countries or jurisdictions without the prior written consent of City.
10. No Mandatory Arbitration. To the extent the Agreement requires mandatory arbitration
to resolve conflicts, City objects to these terms and any such terms are hereby deleted from the
Agreement and shall have no force or effect.
11. Insurance. Vendor agrees that insurance coverage provided to City by Vendor is sufficient
for purposes of the Agreement only.
12. No Debt. In compliance with Article 11 § 5 of the Texas Constitution, it is understood
and agreed that all obligations of City hereunder are subject to the availability of funds. If such funds are
not appropriated or become unavailable, City shall have the right to terminate the Agreement except for
those portions of funds which have been appropriated prior to termination.
13. Public Information. City is a government entity under the laws of the State of Texas and
all documents held or maintained by City are subject to disclosure under the Texas Public Information
Act. To the extent the Agreement requires that City maintain records in violation of the Act, City hereby
objects to such provisions and such provisions are hereby deleted from the Agreement and shall have no
force or effect. In the event there is a request for information marked Confidential or Proprietary, City
shall promptly notify Vendor. It will be the responsibility of Vendor to submit reasons objecting to
disclosure. A determination on whether such reasons are sufficient will not be decided by City, but by
the Office of the Attorney General of the State of Texas or by a court of competent jurisdiction.
14. Addendum Controlling. If any provisions of the attached Agreement, conflict with the
terms herein, are prohibited by applicable law, conflict with any applicable rule, regulation or ordinance
of City, the terms in this Addendum shall control.
15. Network Access.
a. City Network Access. If Vendor, and/or any of its employees, officers, agents,
servants or subcontractors (for purposes of this section "Vendor Personnel"), requires access to
the City's computer network in order to provide the services herein, Vendor shall execute and
comply with the Network Access Agreement which is attached hereto as Exhibit "A" and
incorporated herein for all purposes.
b. Federal Law Enforcement Database Access. If Vendor, or any Vendor Personnel,
requires access to any federal law enforcement database or any federal criminal history record
information system, including but not limited to Fingerprint Identification Records System
("FIRS"), Interstate Identification Index System ("III System"), National Crime Information
Center ("NCIC") or National Fingerprint File ("NFF"), or Texas Law Enforcement
Telecommunications Systems ("TLETS"), that is governed by and/or defined in Title 28, Code
of Federal Regulations Part 20 ("CFR Part 20"), for the purpose of providing services for the
administration of criminal justice as defined therein on behalf of the City or the Fort Worth Police
Department, under the Agreement, Vendor shall comply with the Criminal Justice Information
Services Security Policy and CFR Part 20, as amended, and shall separately execute the Federal
Bureau of Investigation Criminal Justice Information Services Security Addendum. No changes,
modifications, alterations, or amendments shall be made to the Security Addendum. The
document must be executed as is, and as approved by the Texas Department of Public Safety and
the United States Attorney General.
16. Immigration Nationality Act. Vendor shall verify the identity and employment eligibility
of its employees who perform work under the Agreement, including completing the Employment
Eligibility Verification Form (I-9). Upon request by City, Vendor shall provide City with copies of all
I-9 forms and supporting eligibility documentation for each employee who performs work under the
Agreement. Vendor shall adhere to all Federal and State laws as well as establish appropriate procedures
and controls so that no services will be performed by any Vendor employee who is not legally eligible
to perform such services. VENDOR SHALL INDEMNIFY CITY AND HOLD CITY HARMLESS
FROM ANY PENALTIES, LIABILITIES, OR LOSSES DUE TO VIOLATIONS OF THIS
PARAGRAPH BY VENDOR, VENDOR'S EMPLOYEES, SUBCONTRACTORS, AGENTS, OR
LICENSEES. City, upon written notice to Vendor, shall have the right to immediately terminate the
Agreement for violations of this provision by Vendor.
17. No Boycott of Israel. If Vendor has fewer than 10 employees or the Agreement is for
less than $100,000, this section does not apply. Vendor acknowledges that in accordance with Chapter
2270 of the Texas Government Code, City is prohibited from entering into a contract with a company
for goods or services unless the contract contains a written verification from the company that it: (1)
does not boycott Israel; and (2) will not boycott Israel during the term of the contract. The terms "boycott
Israel" and "company" shall have the meanings ascribed to those terms in Section 808.001 of the Texas
Government Code. By signing this Addendum, Vendor certifies that Vendor's signature provides written
verification to City that Vendor: (1) does not boycott Israel; and (2) will not boycott Israel during the
term of the Agreement.
18. Right to Audit. Vendor agrees that City shall, until the expiration of three (3) years after
final payment under the Agreement, have access to and the right to examine any directly pertinent books,
documents, papers and records of Vendor involving transactions relating to the Agreement. Vendor
agrees that City shall have access during normal working hours to all necessary Vendor facilities and
shall be provided adequate and appropriate workspace in order to conduct audits in compliance with the
provisions of this section. City shall give Vendor reasonable advance notice of intended audits.
19. Prohibition on BoycottingEnergy nergy Companies. Vendor acknowledges that in accordance
with Chapter 2274 of the Texas Government Code, as added by Acts 2021, 87th Leg., R.S., S.B. 13, §
2, the City is prohibited from entering into a contract for goods or services that has a value of $100,000
or more that is to be paid wholly or partly from public funds of the City with a company with 10 or more
full-time employees unless the contract contains a written verification from the company that it: (1) does
not boycott energy companies; and (2) will not boycott energy companies during the term of the contract.
The terms "boycott energy company" and "company" have the meaning ascribed to those terms by
Chapter 2274 of the Texas Government Code, as added by Acts 2021, 87th Leg., R.S., S.B. 13, § 2. To
the extent that Chapter 2274 of the Government Code is applicable to this Agreement, by signing this
Agreement, Vendor certifies that Contractor's signature provides written verification to the City that
Contractor: (1) does not boycott energy companies; and (2) will not boycott energy companies during
the term of this Agreement.
20. Prohibition on Discrimination Against Firearm and Ammunition Industries. Vendor
acknowledges that except as otherwise provided by Chapter 2274 of the Texas Government Code, as
added by Acts 2021, 87th Leg., R.S., S.B. 19, § 1, the City is prohibited from entering into a contract for
goods or services that has a value of $100,000 or more that is to be paid wholly or partly from public
funds of the City with a company with 10 or more full-time employees unless the contract contains a
written verification from the company that it: (1) does not have a practice, policy, guidance, or directive
that discriminates against a firearm entity or firearm trade association; and (2) will not discriminate
during the term of the contract against a firearm entity or firearm trade association. The terms
"discriminate," "firearm entity" and "firearm trade association" have the meaning ascribed to those terms
by Chapter 2274 of the Texas Government Code, as added by Acts 2021, 87th Leg., R.S., S.B. 19, § 1.
To the extent that Chapter 2274 of the Government Code is applicable to this Agreement, by signing this
Agreement, Vendor certifies that Contractor's signature provides written verification to the City that
Contractor: (1) does not have a practice, policy, guidance, or directive that discriminates against a firearm
entity or firearm trade association; and (2) will not discriminate against a firearm entity or firearm trade
association during the term of this Agreement.
Exhibit B — CONFLICT OF INTEREST QUESTIONNAIRE
Pursuant to Chapter 176 of the Local Government Code, any person or agent of a person who
contracts or seeks to contract for the sale or purchase of property, goods, or services with a local
governmental entity (i.e. The City of Fort Worth) must disclose in the Questionnaire Form CIQ
("Questionnaire") the person's affiliation or business relationship that might cause a conflict of
interest with the local governmental entity. By law, the Questionnaire must be filed with the Fort
Worth City Secretary no later than seven days after the date the person begins contract discussions
or negotiations with the Buyer, or submits an application or response to a request for proposals or
bids, correspondence, or another writing related to a potential agreement with the Buyer. Updated
Questionnaires must be filed in conformance with Chapter 176.
A copy of the Questionnaire Form CIQ is enclosed with the submittal documents. The form is also
available at httu://www.ethics.state.tx.us/forms/CIO.Ddf.
If you have any questions about compliance, please consult your own legal counsel. Compliance
is the individual responsibility of each person or agent of a person who is subject to the filing
requirement. An offense under Chapter 176 is a Class C misdemeanor.
NOTE: If you are not aware of a Conflict of Interest in any business relationship that you
might have with the Buyer, state Seller name in the # 1, use N/A in each of the areas on the
form. However, a signature is required in the #4 box in all cases.
CONFLICT OF INTEREST QUESTIONNAIRE FORM CIO
For vendor doing business with local governmental entity
This questionnaire reflects changes made to the law by H.B. M 84th Leg_, Regular Session_
OFFICEUSEONLY
This questionnaire is being filed in accordance with Chapter 176, Local Government Code,
bat Receved
by a vendorwhe has a business relationship as defined by Section 176.001(I -a) with a local
governmental entity and the vendor meets requirements under Section 176.Q06(a).
By law this q uesti an naire must bet led with the rem rds admin istrator of the local governmental
entity not latet than the 7th business day after the data the vendor becomes aware of facts
that require the statement to be filed_ See 5eotion 176.006(a-t }, Local Government Code.
A vendor commits an offense if the vendor knowingly violates Section 176.006. Local
Government Code.An offense under this section is a misdemeanor.
t Dame of vendot who has a business relationship with local governmental entity.
World Wide Technology, LLC
z Check box ityou are filing an update to a previously filed questionnaire.
(The law requires that you file an updated completed questionnaire with the appropriate tiling authority not
later than the 7tfi business day after the date on which you became aware that the originally filed questionnaire was
incempiete or inaccurate.)
3
Name of Iocal government officer about wham the information in this section Is being disclosed.
N/A
Name of Officar
This section (item 3 including subparts A, B, G, & ❑) must be completed for each officer with whom the vendor has an
employment or other business relationship as defined by Section 176.001 t1-a), Local Government Code. Attach additional
pages W this Form CIO as necessary.
A. Is the local government officer named in this section receiving or likely to receive taxable income, other than investment
income, from the vendor? N/A
Yes F-1No
B. is the vendor receiving or iikaly to receive taxable income, other than investment income, from or at the direction of the local
government officer named in t�rg,s ction AND the taxable income is not received from the cocal governmental entity?
N/1
F7 Yes 1 No
G. Is the filer of this questionnaire employed by a corporation or other business entity with respect to which the local
government officer serves as an officer or director, or holds an ownership interest of one percent OF more?
N/A
Yes F—] No
D. Describe each employment or business and family relationship with the local government officer named in this section.
U :� 2/16/2023
Signature of vendor doing business with the governmental entity Dale
Adapted Bf7?26 t 5
EXHIBIT C
TEXAS DEPARTMENT OF INFORMATION RESOURCES
DIR-TSO-3763
Contract Dumber
DIR-TSO-3763
Vendor Information
Dell Marketing LP
Vendor ID: 1742616805400
HUB Type: Non HUB Q
RFD: DIR-TSO-TMP-251
Contract Status: Active
Contract Overview
VENDOR CONTACT:
Katherine Dunay G'
Phone: (512) 720-3222
Vendor Website pr
Contract Term Date: OIV10124 DD
Contract Expiration Date: 01/10124 Q
DIR CONTACT:
Tiftanay Waller C��
Phone: (512) 475-4962
This contract offers Dell branded computers, Laptops, tablets, servers, printers, peripherals and othertechnotogy
products and services through this contract. Dell offers their entire product catalog through this contract. Contracts may
be used by state and local government, public education, other public entities in Texas, as well as public entities outside
the state. This contract has a number of reseLlers, many of which are HUB vendors. *l IR has exercised the automatic
renewal option for this Contract. This reriewat extends the contract through 1/1012024.
DIR Contract No. MR-TS[)-3763
Vendor Contract No.
STATE OF TEXAS
DEPARTMENT OF INFORMATION RESOURCES
1KOWNa111 MONUailto W 110/11110 RmelQRDIRIVII1111Wti:l1 Coo
DELL MARKETING, L.P.
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 15a' Street, Suite 1300, Austin, "texas 78701,
and Dell Marketing,l..P_ (hereinafter "Vendor"), with its principal place of business at One
Dell Way, Round Rack, 'Texas 78682.
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-251, on September 12, 2016,
for Dell Branded Manufacturer Hardware, Software and Related Services & Cloud
Scrviecs. Upon exceution of this Contract, anotice ofaward for RFO DIR-TSO-TMP-251
shall be posted by DIR on the Electronic Statc Business Daily.
C. Order of Precedence
For purchase transactions wider this Contract, the order of precedence shall be as follows:
this Contract, Appendix A, Standard Tcnns and Conditions For Products and Related
Services Contracts; Appendix B. Vendor's Historically Underutilized Businesses
Subcontracting Plan; Appendix C, Pricing Index; Appendix 1), Services Agreement;
Appendix E:, Master Operalintg Lease Agreement (suhjOct to the provisions of Section I.D.
below); Appendix F, %I aster Lease Agreement (subject to the provisions of Section 1.1:.
below); Appendix G, R-Rate Agreement; Fxhibit L Vendor's Response to RFO DIR-TSO-
TMP-251, including all addenda; and Exhibit 2. RFO llIR-TSO-TMP-251. including all
addenda; are incorporated by reference and constitute the entire agreement between DIR
and Vendor governing purchase transactions_ For I aase transactions under this Contract
the order of precedence shall he as follows: this Contract; Appendix h, Master Operating
Lease Agreement (subject to the provisions of Section LD. below); Appendix F, Master
Lease Agreement (subject to the provisions of Section LE. below), 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, Services Agreement,
Appendix G, E-Rate Agreement; Exhibit 1. Vendor's Response to RFO DIR-TSO-TMP-
251, including all addenda; and Exhibit 2, RFO DIR-TSO-TMP-251, 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 tho documcnts
Page 1 of 31
DIR Contract No. I)IR-T%0-3763
Vendor Contract No.
listed in this paragraph related to purchases. the controlling document shall he this
Contract, then ;Appendix A. then Appendix 13, then Appendix C_ then appendix D_ then
Appendix F (subject to the provisions of section 1.I). below), then Appendix F (subject to
the provisions of Section 1-E- below), then Appendix Cr- then Fxhihit 1. and finally Exhibit
2. In the event of conflict between the documents Iisted in this paragraph related to Icase
transactions, the controlling document shall be this Contract- then Appendix E (suhjOct to
the provisions of Section 1.13. below) or Appendix. F (subject to the provisions of Section
1. E. below), depending on the type ❑f Icase transaction, then .Appendix z1. then Appendix
B. then :Appendix C. then Appendix D. theft Appendix G. theft Exhibit L and finally
Exhibit 2. In the event and to the exlc:nt any provisions contained in multiple documents
address the sanic or substantially the saute subject matter but do not achuilly conflict, the
more rcc:ant provisions shall be deemed to have superseded earlier provisions.
D. Master []Iterating Lease Agreement
DIR and Vendor hereby agree that, until DIR directs Vendor otherwise} Vendor is
authorized to utilize the Master Operating Lease Agreement in appendix F 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 Ili -at, until DIR directs Vendor otltc•rwise, 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.
'ferns of Contract
'Ilse tetra of this Contract shall he two (2) yew-, commencing on January ] il. 2019. Prior to
expiration of the original term_ the contract will renew automatically in two (2) year
increment.% for two additional terms underthe santeternts 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.
Product and Service Offerings
A. Products
This Contract is a ftdl Catalog contract, offering all products DOI is authorized to sell or
manufacture.
B. Services
Rclated services include but arc not limited tw deployment. help desk. managed services,
storage and server asscssntcnt sea is cs, product installation, Custom, F actors, Integration of`
Page 2 of 31
IHR Contract uNo. MR-TSO-370
Vendor Contract No_
Customer Imaged Software ("CFI'), maintenance and support, a, -,set recovery services,
product training, and future services Dell may offer upon DIR approval.
4. Pricing
A. Nlanufactuivr's Suggested Retail Price (NLSRP)
MSRP is defined as Dell's published retail price list as found on
htm,' ftnbt,x.us. del l.comisIvweeklv�de11oricereDort. ndf.
B. Customer Discount
The nunimuni Customer discount for all products and services Will be set Forth in
Appendix C Pricing Index.
Vendor agrec s that the DIR standard pricing discounts contained in Appendix C will
renzaiul at least one percent (1%) better than the NASPO (the National Association of
Stalc Procurement Officials N alulePoint (NASPO VP) Category A level, standardized
diSCOLU11S. 77his extension of competitive volume sales priding is intended solely to
ensure that DIR will, at a minimum, remain competitive with the standard price rates
set for NASPO VP as a whole. DIR may not apply, without the express consent of
Vendor, tiny pre-existing discount structure to the NASPO VP pricing being offered to
D1R by Vendor. DIR may either use DIR discounted pricing or the NASPO VP pricing
but may not combine, or compound the two.
In the event that DIR pricing Fails to remain competitive with (i-e.. at least one percent
[I%kj better than) NASPO V1' standardized, category level pricing as described in the
foregoing paragraph_ Vendor shall extend such pricing to ❑IR. Vendor shall use its
conuncrcially reasonable best cflorts to notify DIR of such NASPO VP price .hangs
and amend this Contract within thirty (30) days after the amendment to the Vendor's
NASPO VP contract, Tlte introduction of the NASPO VP pricing to the DIR contract
shall be cffcctivc froin the date of execution into the Contract by amendment. Both
parties agree that the pricing shall not be retroactive for DIR and shall not eslend back
to dic date that Vendor reduced NASPO VP catalog pricing. Further, tlic parties agree
that DIR. or the State of Tots. does not have: the right to audit the NASPO VP contravi
held by the Vendor. References to the Vendors N_1SPO VP contract are only
contained in this Contract for purposes of reteren4mg the pricing discounts contained
therein. Both parties ackrnowiedge that the Vendor's NASPO VP contract mid pricing
are readily available to the public and may be f'rc:ely accessed by the Vendors DIR web
page and by the bitemet for the purposes of validation under the terms and conditions
of this Contract.
f'. "stotner. Price.
1) 'llte price to the Customer shall be as set forth in Appendix C, Pricing hide-,.
Page 3 of 31
VIR Contract No. I7IK-'1'SO-3763
Vendor Contract No.
2) 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 1]II2 upon request.
3) During the tcntn of this Contract. if pricing for products or tton-customized services
(e.g_, CFI. Imaging, and Asset Tagging) 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 tbosc products or services under this Contract. then the
available Customer Price in this Contract shall be adjusted to that louver price. This
regiacincnt applies to products or anon -customized services actually charged by
Vendor for a quantity of one (1) under substantially similar terms and conditions, for
substantially similar configurations or deliverables. Tanis rcquirerncnt does not apply
10 volume or special pricing purchases, This Contract shall be amendcd within ten (10)
business days to reflect the lower price.
D. DIR Administrative Fee
'llne administrative fee specified in Section 5 below shall not he broken out as a separate
line item when pricing or invoice is provided to Customer.
E. Shipping and Handling Fees
'Ilse price to the Customer under this Contract shall include all shipping and handling
fees_ Shipments wil I he Free On Board Customer's destination- provided the products
are shipped to locations in the State of Texas. Except as noted, no additional fees shall
be charged to the Customer for standard shipping and handling. If the Customer
requests expedited delivery, Customer will he responsible for any charges for expedited
delivery. Title to all products shall pass upon shipment to Customer's dock; however_
risk of loss shall pass to the Customer upon delivery to Customer-
F. DeAivr y
Shipment of Deli -branded systetns From Doll's facility is estimated at between fifteen
(15) and twenty-five (25) days after receipt ofa. valid and complete order. While Lhc:rc
may be industry -wide situatitms of constrained product, current manufacturing lead
times for dcgktop and notebook systems are ten (10) to fourteen (14) business days,
Current lead times for server syst. ms are nine (9) to hvcIvc (12) business days, this is
specifically designed for extensive testing on these mission -critical systems.
Shipment of third party software and peripheral items is cslinnated at between seven (7)
and ten (10) days after receipt of a valid and complete order.
Please note that eustontization through Dell's Configuration Services may increase Iead
times. While Dell does not guarantee specific delivery dates. Customers providing Dell
with an accurate quarterly forecast will greatly enhance Dell's ability to he prepared for
Cntstonner orders and to meet your needed del iver• thitef canes.
G. Tax -Exempt
As per Section 151.309. Texas Tax Code, Customers tinder elms Contract are exempt
£ram the assessment of State sales_ use and excise taxes. Further. Customers under this
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t)IR Contract No. 1)IR-IPSO-3763
Vendor Contract No.
Contract are exempt from Federal Fxcise 'faxes, 26 United States Code Sections
4253(i) and 6)_ Customers tvill provide Vender with tax exempt certificate upon
request.
H. Travel Expense Reimbursement
Pricitng 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 Ior
state employees as adopted by each Customer; .utd provided, further, that all
reinibtuNcment rates shall not exceed the maximum rates established for state
employees under the Current State Travel Management Program
hops:/'eomptroIfer.texas.Poviyurchasinp_!pro erannsltrave l-manaQementr. 'Travel time
may not be ineluded as part of the amounts payable by Customer for any services
rendered under this Contract. 'Ilia DIR adni hiistrati vo fee speciliad i11 Section 5 below
is not applicable to travel expense reimbursement. anticipated travel expenses must
be pre -approved in vvriting by CUSIOnrer.
I. Changes to Prices
Vendor or (Eder 1-it ltiller may change the price of an product or service at any time,
hased upon changes to the MSRP, but discount levels shall remain consistent with the
discount levels specified in thus Contract. Price decreases shall take ef'Fect automatically
during the term ❑rthis Contract acid shalt be passed onto the Customer immediately at
the- time of suhmission of a purchase order_ but shall not be retroactive to products for
which a purchase order has been received_ or 1br services currently being rendered
under a prior purchase order_
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 C;ustonters pursuant to this Contract is one halt of one percent (.50%). Payment
will he calculated for all sales, net of returns and credits. For example, the administrative
fee for sales totaling SI00,OOQ shall be S500.
B. All prices quoted w Customers shall include the administrative tee_ DIR may change
administrative fee ainounts1 hovvcver. no revision will take effect before ninety (90) days
fo I I o w i n g w ritte n notice_ Vendor may revise pricing to reflect the change in administrative
fees.
b. Notification
All notices under this Contract shall he sent to a party at the respective address indicated
below.
If scrit to the State:
Kelly Parker. CTPM, CTC.M
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DIR Contract No. MR-1'SO-3763
Vendor Contract No.
Director, Cooperative Contracts
❑apartment of infonnatinn Resources
300 W. 15t' St„ Suite 1300
Austin, Texas 78701
Phone.: (512) 475-1647
Facsimile: (512) 475-4759
Email: Kellv.Parker(ei:dir.texas.P-o%,
If sent to the Vendor:
Contract Managor
Dell Marketing, L.P.
One Dell Way, MaH Stop RR1-33
Round Rock. Texts 78682
Phone: (231) 747-9294
Facsimile: (512) 293-9492
l:mitil: C y'ndi Radel(iNell.com- and Dudley McClellanAdell.com
7. Software License, Services acid 1,easin g Agreements
A. Software License Agreement
1) Software shall mean any software, library, utility, tool, or other computer or program
code, in object (hinaty) or source -code form, as well as the related documentation.
Provided lay° Bell to you_ Software includes software locally installed on your systems
and software accessed by you through the Intemtt or other remote means (such as
websites, portals, and "cloud -based" solutions),
2) Software is subject to the separate software license agreements accompanying the
soflWarc, along with any product guides, operating manuals, or other documentation
included with the sollware media packaging or presented to Customer during the
installation or use of the Software. Customer agrees that Costotner will be bound by
such license agreement.
3) Willi respect to Software provided or otherwise made available to you by Dell in
c annection with any Services hereunder, if no license tens wcompnny the Sollware,
then subject to your compliance with the terms set forth in this Agreement, including
payment for such Software, Dell hereby grants Customer a personal, non-exclusive
license to access and use such Software only during the duration of the Services and
solely as necessary for Customer to enjoy the henefit of the Services as stated in the
applicable Set -vice Agreements (or Statements of Work (SOW's)).
a) Restrictions. Customer may not copy, modify, or create a derivative work.
collective work. or compilation of the Software, and may not reverse angineer,
deconpile or otherwise attempt to extract the code of the Software or any part
thereof Customer may not license, sell, assign, sublicense, or otherwise transfer
or oneumber the Software: may not use the Software in a managed-sctirices
arrangement and may not use the Software in excess of the authorized nutnher of
licensed seats for concurrent users, sites, or other criteria specified in the
Page 6 of 31
Rift Canrract No. DrK-7'50-3763
Vendor Contract No_
applicable Service Agreements or Statement- of Work-. In addition, Customer may
not access the Software to monitor its availability_ performance, or functionality,
or for atty other benchmarhing or competitive purpose.
b) Customer is further prohibited from (l) attempting to use or gain unauthorized
access to Dell or to any third parry's networks or equipment; (2) pennitting other
individuals or entities to use the Software or copy the Software or Services; (3)
attempting to probe. scan_ or test the vulnerability of Software or a system_
account. or network of Dell or any of its customers or suppliers: (4) interfering or
attempting to interfere with service to any user, host_ or network; (5) engaging in
i'raudulent activity of any natMec; (6) transi n it I in g unsoIicil.ed bull, or comm are ial
messages; (7) restricting, inhibiting, or other►misc interi'cring with the ability of any
other person, regardless of intent, purpose•, or kno►vlcdgc, to use or enjoy the
Soltwarc (except for tools with safct_y and security fltnctions); or (8) restricting,
inhibiting, interfering with, or otherwise disrupting or causitmg a performance
degradation to any Dell (or Dell Service supplier) Iacilitics used to dclivcr the
Services.
c) Audit. DI R, on behalf of Custoiners, hereby grants Dell, or an agent designated by
Dell. the right to perform an audit of any Customers' use ofihe Software during
normal business hours; and to cooperate with Dell in such audit. and such
Customer agrees it) provide dell with all records reasonably related to Customers'
use of the Software. 'I9me audit will he limited to verification of Customer's
compliance with the terms of this Agreement.
d) Open Source Software. A portion of time Software May contain or consist of open
source sofhvare, which you may use under the terms and conditions of the specific
license under which the open source software is distributed.
THIS OPEN SOURCE SOFTWARE IS DISTRIBUTED IN THE HOPE THAT
IT WILL BE USEFUL, BUT IS PROVIDED "AS IS" WITHOUT ANY
WARRANTY, EXPRESS, INIPLIED, OR OTHERWISE, INCLUDING BUT
NOT LIMITED TO THE INIPLIED NVARRXNTY OF MERCHANTABILITY
OR FITNESS FOR A PARTICULAR PURPOSE, OR ANY WARRANTY
REGARDING 'TITLE OR AGAINST INFRINGEMENT. IN NO EVENT
SHALL DELL, THE COPYRIGHT HOLDERS, OR THE CONTRIBUTORS BE
LIABLE FOR ANY DIRECT. INDIRECT, INCIDENTAL, SPECIAL.
EXEMPLARY, OR C'ONSFIQUEirTIAL ❑AMAC.ES (INCI,I)DING, itur NOT
LIMITED TO, PROCURENIENT OF SUBSTITUTE GOODS OR SERVICES;
LOSS OF USE, DATA, OR PROFITS; OR BUSINESS INTERRUPTION)
HOWEVER CAUSED AND ON A\Y THEORY OF LIABILITY, WHETHER
IN CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING
NF(.I.Ii.H;N('It OR OTHERWISE) AIUSINC. IN ANY WAY OUT OF THE: USE
OF THIS OPEN SOURCE SOFTWARE, EVEN IF ADVISED OF THE
POSSIBILI TY OF SUCH DAMAGE,
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DItZ Contract No. I)IK-T%0-3763
Vendor Contract No.
B. Shrink/Ckuk-wrap License Agreement
Customer understands and agrees that the third -party software is subject to the license
agreement shipped with the software or in a separate agreement between Customer and
the software licensor. Dell is authorized to provide the software provided hereunder.
It is the Customer's responsibility to read the Shrink/Click-wrap License
Agreement and determine if the Customer accepts the license terms. If the
Customer does not agree with the license terms. Dell shall provide reasonable
assistance-, however, Customer shall he responsible for negotiating with the rescllcr to
obtain additional changes in the Sltrink/Click•wrap License Agreement language from
the sotlwarc publisher.
C. Services Agreement
Services provided under this Contrad sliall be in accordance with the Services
Agreement as set forth in Appendix D of this Contract. No changes to the Services
Agreement terms and conditions Wray be made unless previot>sly agreed to by Vendor
anti DIR.
D. Master Operating Lease Agreement
DIR and Vendor hereby agree that. until DIR directs Vcndor otlicrwise, Vendor is
authorized to utilize the Master Operating Lease Agreement in Appendix E of this
Contract for Ussccs that arc Texas State Agencies or otlicrwise authorized to conduct
Icasc transaCtians llu•❑ugh DIR contracts,
E. Master Lease Agreement
DIR and Vendor hereby agree that until DIR directs Vendor otherwise, 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 'l MIS Public finance Authority for such leasing
transactions.
S. Intellectual Property Matters
Customer shall own all right_ title and interest to the Deliverables and Deli agrees to grant
to Customer a perpetual, non-excli live, note-transferahle, royalty -free license to use Dell's
Background IP (defined below), Utilities, and Residual IP solely for Customer to use the
Delivorables, subject to the rulloFving:
(i) each party will retain all Intellectual Property Rights that it owned or controlled prior
to the cf ecti%a date of this Agreement or that it develops or acquires from activities
independent of the Ser►iccs performcd under this agreement ("Background IF'),
(ii) Dell will retain all riglit. title and interest in and to all ltttellectual Property bights in or
related to the Services, or tangible components thereof_ including but not limited to (a)
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UIR Contract No. MR-7':iCJ-3763
Vendor Contract No.
all know-how, intellectual property, methodologies, processes, technologies,
algoritlinis, software or development tools used in performing the Services
(collectively, die "Utilities"), acid (b) such ideas, concepts, know-hoN , processes and
reusable reports, designs, charts, plans_ specifications, documentation, forms, templates
or output which are developed, created or othenvise used by or on behalf of'Dcll in the
course of performing the Son ices or creating the Deliverables_ other than portions that
specifically incorporate proprietary or Confidential Information or data of Customer
(collectively, the "Residual IP"), even if embcdded in the DeIiA,crnblc. and
(iii) Customer use of software, online services, or snftivare-enabled services in connection
with the 'Services is pursuant to the teens of the .applicable software license or Cloud
Computing 'Terms.
As uscxf herein. "Deliverables" means the ►York product or tangible embodiment of the
Services that are (i) prepared or performed by Dell Or its subcontractors uniquely and
exclusively for a Customer and (ii) specifically idenlificd in a sighed Slatemenl of
Work a, ❑e:livcrables. -hitallectual Properly lights" means rights to patents, utility
models, mask vvcn-ks, copyrights, trademarks, trade secrets, and any other form of
protection afforded by law to inventions. models. designs, technical infonnation. and
application-,.
9. Authorized Exeeptiotns to Appendix A, Standard 'rernts and Conditions for Product
and Related Services Contracts.
A. Section 3. Dentitions, is hereby replaced in its entirety:
A. Customer - any Texas state agency, unit of local govcrtnmentt. institution of higher
education as defined in Section 2054-003, Texas Govennnent Code. the Electric
Reliability Council of Texas, the Lower Colorado River Authority, a private school, as
defined by Scclion 5.00L Education Code, a private or independent institution of
higher education, as defined by Section 61.003. Education Code, a volunteer fire
department, as deleted by Section 152.001. Tax Code. and those stale agencies
purchasing tsoni a DIR contract through an Interagency Agrcemcnt, 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 stale
agencies and political subdivisions of other states as authorized by Section 2054.0565,
Texas Government Code and, except for telecommunications services larder Chapter
2170. 'texas (3ovenunent Code, assistance organizations as defined in Section
2175.001, Texas Government Code to memt:
1) A non-profit organization that provides educational, licalth or human services or
assistance to homeless individuals;
2) A nonprofit food hank 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 .Lid, with the approval of the Partners of the Alliance Office of
the Agency for International Development;
Page 9 of 31
VIR (:ontract No. I)IK-TSO-3763
Vendor Contract No.
4) A group, including a faith -based group, that enters into a financial or nonfinancial
agreement with a health or Iiunian services agency to provide services to that agency's
clients,.
5) _L local %vorkforce development board created under Section 2308.251
G) N 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
conunissioncr of agriculture as the foundation's successor entity under Scction
74.1011. Texas :agriculture Code:
8) A nonprofiL computer bank that solicits, stores, refurbishes and redistributes used
computer equipment to public school students xnd their farnilics; and
9) A nonprofit organization that provides atlordablc housing.
IL Connpliance Check — an audit of Vendor's compliance with the Contract may be
performed by, but not Iimited to, a third -party auditor, DIR Internal Audit department.
or DIR contract management staff or their designees,
C. Conti -act — the document executed between DLR and Vendor into which this
Appendix A is incorporated,
1). CPA —refer~ to the Texas Comptroller of Public Accourns.
E, Day - shall mean business days, Monday through Friday, except for State and
Federal holidays. 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. Ogler Fulfiller the party_ either Vendor or a party that may he designated by
Vendor. who is fulfilling a Purchase Order pursuant to the Contract. May include Order
Fulfillers. ResclIcrs and/or Agents.
O. Purchase ❑rder - the Customer's fiscal form or format. which is used when making
a purelime (e.g., formal written Purchase Order, Prockwement Card. Eiectrowc
Purchase Order. or oilier authorized instrurnent). Neither Dell nor Customer is or shall
be bound by any terms and conditions imprinted on or embedded in orders, order
acknowledgments or other cornmuni cations between the parties relating to orders.
II. Resellrr — any third party approved by Dell to sell to Eligible Customers under this
Contract. Dell will flow this Contract's terms and conditions to its Resellers under this
Contract, except that pricing sliall he as follows: Dell offers pricing to its Reseller(s)
and such Resellers shall resale to Eligible Customers products under this Contract at a
price it sets and that will not exceed the maximum price as set forth in Appendix C.
Pricing Index, of this Contract_
I. State — refers to the State of 'Texas.
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DI R Contract No. DIR-T` O-37G3
Vendor Contract No-
H. Section 4. General Provisions, I.. Survival, is hereby replaced in its entirety
Each applicable service agreement that was entered into between Vendor and a
CLlMMCr under the temas and conditions of the Contract that is still in existence as of
the date of the expiration or termination of the Contract shall survive the expiration or
tennination of the Contract until the expiration or termination of such service
agreement. Each Purchasc Order issued and accepted by Vendor that is still in cxi. steticc
on the date of the expiration or termination of the Contract shall sunive expiration or
tc:rinination of the Contract Until the expiration or termination of such Purchase Order.
C. Section &A. 2) Product Terms and Conditions, 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 Daly),
L, bcrebv rcplaicd in its cntircl_y:
2) Upon request by 17I1t, Vendor shall provide DIR with the URL to it% Voluntary
Product _accessibility Cemplaie (VPAT) or a copy of the applicable VPAT for
reviewing compliance with the State of Texas Accessibility requirements (based on the
federal standards established under Section 508 of the Rehabilitation Act), or indicate
that the producU'service accessibility information is available from the General Services
Administration "Buy Accessible Wizard"(littl):llwww_bLiyaccessihle.gov). Vendors
not listed with the "Buy :Accessible Wizard" or supplying a URL to their VPAT must
provide DIR with a report that addresses the same accessibility criteria in substantively
the same Format. Additional information regarding die '`Buy :accessible Wizard" or
obtaining a copy of the VPAT is located at li(lp:llwww.5ec[ioii5O8.govr .
Customer may go to this page to request VPATs:
httP: ,!C.onlcnt.dell.cotu us:cil'corp'd c«rp-comrn�cr-diversity-custotncr-
disabilitics.asnx
D. Section 7. Contract TullliWrhent and Promotion, A. Service, Sales and Support of
the Contract, is hereby replaced in its crilirety.
Vendor shall provide service, sales and support resources available under the Contract
to serve all Customers throughout the Slate:. It is the responsibility of the Vendor to
Sell, market, and promote services available under the Contract. Vendor shall use
connnercially reasonable efforts to ensure that potential Customers are made aware of
the existence of the Conti -act.
Page 1 I of 31
DTIZ Contract No. 01R-T50-3763
Vendor Contract No-
h
. Section 7. Contract Fulfillment and Promotion, C. Product Warranty and Return
Policies, is herehy replaced in its entirety -
Products Warranty:
A. Limited Warranty. Dell warrants that the Dell -branded hardware Products will
conform to the Dell speaiiiccations cunctri ►vhcn the Product is slapped and will be free
fronr material defects in niaterials and workmanship during the applicable warranty
period ("I.amited Warranty"). 'I1ie Limited Warranty period for Product begins on the
Product slip date, Dell has the right to gram the licenses to the Software licensed under
this Agreement, and such Software will substantially conform to the functional
specifications and current documentation provided by Dell.
B. Disclaimers. EXCEPT AS EXPRESSLY STATED IN THE PRECEDING
PARAGRAPH, DELL, (INCLI.+DING ITS AFFILIATES, CONTRACTORS,
AND AGENTS, AND EACH OF THEIR RESPECTIVE EMPLOYEES,
DIRECTORS, AND OFFICERS), ON BEHALF OF ITSELF AND ITS
SUPPLIERS (COLLECTIVELY, THE "DELL PARTIES") DISC'LAIMS, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ALL
WARRANTIES, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO
ANY OF THE PRODUCTS, SOFTWARE. OR SERVICES, INCLUDING BUT
NOT LIIVIITED TO ANY WARRANTY (1) OF MERCILANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE, PERFORMANCE,
SUITABILITY, OR NON-11 FRLNGEMENT; (2) RELATING TO THIRD -
PARTY PRODUCTS, SOFTWARE, OR SERVICES; (3) RELATING TO TILE
PERFORMANCE OF ANY IL1RDWARE OR SOFTWARE, OR DELL'S
PERFORMANCE OF TIIF. SERVICES; OR (4) REGARDING TIIF. RESULTS
TO BE OBTAINED FROM TIIF PRODUCTS, SOFTWARE, SERVICES, OR
TIIF: Rl$SULTS OF ANY REC'0MIUENDATION BY DELI,.
t ". IIiQh-Risk Activities. The Products, Software, mid Services are not fault -tolerant
and are not designed or intended for use in hazardous enviromnents requiring fail-safe
perforinance, such a5 in the operation of nuclear facilities, aircraft navigation nr
communication systems, air traffic control, weapons systems, life-support machines. or
any other application in vdiich the failure of the Products, Soffivare, or Services could
lead directly to death. personal injury, or seven physical or property damage
(collectively, "High -Risk Activities")_ Dell expressly disclaims any express or
implied warranty of fitness for High -Risk Activities.
D. Warranty Exclusions. Warranties do not cover damage due to external causes,
such as accident, abuse, misuse, problenis with electrical power_ service not performed
or authorized by Dell (including installation or de -installation), usage not ifl accordance
with product or sofhvare instructions, normal wear and tear, or use of parts and
components not supplied or intended Iur Usc wvith the products, soltwa re, or services.
These warranties do not apply to Third -Party Products. Any warranty on a Third -
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DI R C:ontract No. MR-T`i(J-3763
Vendor Contract No.
Party Product is provided by the publisher, provider, or original manufacturer. To the
extent that Dell is contractually authorized by the applicable Third -Party, Dell will
assign to Ctt.Gtomer any additional warranty provided to Dell, otherwise the Third -
Party Products are provided by Dell "as is_" WHETHER DIRECT OR INDIRECT,
NEITHER 1`2LRTY SHALL HAVE LIABILITY FOR THE FOLLOWING, (A) LOSS
OF REVENUE. INCOME, PROFIT. OR SAVINGS, (B) LOST OR CORRUPTED
DATA OR SOFTWARE- LOSS OF USE OF SYSTEM(S) OR NETWORK. OR THE
RECOVERY OF SUCH, (C) LOSS OF BUSINESS OPPORTLtNITV. (D) BUSINESS
INTERRUPTION OR DOWNTIME, OR (E) SERVICES, VENDOR PRODUCTS OR
THIRD-P,'1RTY PRODUCTS NOT BEING AVAILABLE FOR USE BY
CLrSTOMr R.
rL With respcet to Customer's use of the Software (1 ) neither De11 nor any of the
Dell Parties wakes any express or implied warranty that Soll.ware provided to
Customer in cornnection with this :kgreenhent is or will he secure. accurate,
complctc, uninterrupted, without error, or free of viruses, wonns, otherliarifttf
components, or outer program limitations: or that any errors in the Software
will lac corrected_ (2) CLIStUlnter assumes the cntirc cost of all necessary
servicing, repair, or correction ol'problcrns caused by \ muses or other harrniul
components, unless such errors or viruses are the direct result of dell's gross
negligence or will-ful misconduct; (3) Dell anti the Dell Parties_ jointly and
severally, disclaim and make no warranties or representations as to the
accuracy, gtialitl'. reliability, suitability, completerness, truthfulness, usefulness.
or effectiveness of any reports, dnUi. results. or other infornnation obtained or
generated by Customer related to Customer's use of the Software, and (4) use
of the Software is entirely at Customer's own risk and neither Del nor the Del
Parties shall Rave any liability' relating to such use.
THIRD PARTY PRODUCTS. To the ement Dell has the right to do so under its
agreements with any third parties Deli shall pass through to Customer all Third Party
warranties as Dell receives rrom such third party in its contracts.
Dill Return Poilu (U.S. Only)
For any Product return. Customer agrees to follow and comply with the tennis and
process applicable according to Deli's return policy at www.Dell.com,retuntspolity.
Note; Defore a Customer returns the product to I]el1, snake sure to hack -kip any data on
The }hard drive(s) and on any other storage device in tine product, Remove any and all
confidential, proprietary, and personal information as well as rentovahle media such as
floppy disks, CDs, and PC Cards. Dell is not responsible for any confidential,
proprietary_ or personal information; lost or corrupted data; or damaged or lost
removable media that may be included with a Customer's return.
Pago 13 of 31
DI K C'ontract No. 01R--r%0-3763
Vendor Contract No.
ServiceR Warranty:
Limited Warranty. VENDOR WARRANTS THAT SERVICES WILL BF
PFRFORMED IN A GOOD AND WORKMANLIKE MANNER. EXCEPT AS
ENPRESSLY STATED IN THE PRECEDING SENTENCE. VENDOR
(INCLUDING ITS AFFILIATES, SUBCONTRACTORS AND AGENTS) AND
EACH OF THEIR RESPECTIVE EMPLOYEES, DIRECTORS AND
OFFICERS (COLLECTIVELY, THE "VENDOR P.ARTY(IES)") MAKES NO
EXPRESS OR IMPLIED WARILANTHES WITH RESPECT TO ANY OF THE
SERVICES OR DELIVERABLES, INCLUDING BUT NOT LIMIT Ell TO, ANY
WARRANTY OF NIERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, PERFORMANCE, SUITABILITY OR NON -INFRINGEMENT; OR
ANY WARRANTY RELATING TO THIRD -PARTY PRODUCTS OR THIRD -
PARTY SERVICES.
High-Visk :application Disclaimer. THE SERVICES ARE NOT FAUL.T-
TOLEPLALNT AND ARE NOT DESIGNED OR INTENDEI) FOR USE IN
ILIGARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE
PERFORMANCE, INCLUDING WITHOUT LINJITATION, IN T1lie
OPERATION OF NUCLFAR FACILITIES, AIRCRAFT NAVIGATION OR
C'O1IMUNIC'ATION sys'rEMS, Alit TRAFFIC.' CONTROL, WEAPONS
SYSTEMS, LIFT -SUPPORT MACHINES, OR ANY OTHER APPLICATION
IN WHICH THE FAILURE OF THE SERVICES COULD LEAD DIRECTLY
TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL. OR PROPi?lt'r
DAMAGE (COLLECTIVELY, "HIGH -RISK ACTIVITIES"). VENDOR
EXPRESSLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY OF
FITNESS FOR NIGH -RISK ACTIVITIES.
F. Section 7. Contract Fullidlment and Promotion, E. Internet Access to Contract
and Pricing Information, 1) Vendor Wehsite, is hereby replaced in its entirety:
1) Within thirty (30) calendar days of the effective date of the Contract. Vendor will
establish and maintain a webpage spec-ific to the products and related serxices and cloud
services awarded under the Contract that are clearly distinguishable front other. non-
D11Z Contract offerings on the. Vendor's website. 'llie webpage must include:
a) the products and related servicas and cloud sen,ices awarded:
h) description of product and service awarded;
c) a current price list or mechanism (For cxamplc, a SCrvices calculator or prudue(
builder) to obtain specific contracted pricing;
d) diSCOunt percentage (%) oir itMSRP or List Price:
e) a link (updated no ]egg than monthly) to the Full Pricing Catalog, listing all products
and services by product description, manufacturer part number- Dell part number-
lvf skp,
f) designated Order Fulfillcrs;
Pago 14 of 31
VIR Contract No. MR-7'5t}-3763
Vendor Contract No.
g) contact information (name. telephone number and email address) for Vendor and
designated Order Fulfillers;
h) instructions for obtaining quotes and placing Purchase Orders_
i) warranty policies;
j) retUrn policies.
k) the DIR Contract nurnber with a hyperlink to the Contract's DIR wcbpagu:
l} a link to the I]IR "Cooperative Contracts" webpage; and
m) the DIR logo in accordance with the requirements of this Scclion.
G. Section 7. Contract Fulfillment and Promotion, F. Services Warrant-v and Return
Policies, is hemby replaced in its entirety:
Vendor and Order Fulfiller will adhere to the Vendor's then -currently published
generally applicable tr.S. policies concerning services warranties and returns.
H. Section 7. Contraacl Fulf hnent and Promotion, H. Vendur and Order Fulfiller
Logo, is hereby replaced in its entirety:
IMR may use the Vendor's and Order Fulfiller's name and Iago in the promotion of the
Contract to communicate the availability of products and services under die Contract
to Customers. Use of the logos may be on the DIR website or on printed materials.
Anv use of Vendor's and Order Fulfiller's logo by DIR must comply with and he solely
related to the purposes of the Contract and any usage guidelines communicated to DIR
front time to time. Nothing contained in the Contract will give DIR any right, title, or
interest in or to Vendor's or Order FulfilleC trademarks or the goodwill associated
therewith, except for the limited usage rights expressly provided by Vendor and Order
Fultiller. Dell's logo is sulijoct to Dell's corporate eoinpliancc usage 171,11C.;.
1. Section 7. Contract Fulfillment and Promotion, 1. Trade Show Participation, is
herehv replaced in its entirety_
kt I]IR's discretion, Vendor may be required to participate in no more than two (2)
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 tour months advance notice of any required
participation. Vendor must display the DIR logo at all such trade shows in the stale of
Texas 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.
Page 13 of 31
VIR Contract No. MR-' %0-3763
Vendor Contract No.
.1. Section R. Pricing, Purchase Orders, Invoices, and Payments, is hereby replaced in
its entirety:
A. Purchase Orders
All Customer Purchase Carders will he placed directly with the Order Fulfiller, Accurate
Purchase Orders shall he effective and binding upon Order Fulfil ler when accepted by
Order Fulfiller.
B. Invoices
Invoices shall he submitted by the Vendor directly to the Customer and shall he issued
in compliance with Chapter 2251. Texas C,oyenimeni Lade, All payments for services
purchased under the Contract and any provision and receipt of such services shall he
made by the Customer to the Vendor.
Invoices forest be timely and accurate. Lach itrvaice must match Customer's Purchase
Order and include any written ch-ing4s that may apply. as it relates to services, prices
and rluantities. 1nvoiCe5 must include the Customer's Purchase Order number or other
pertinent information for verification of receipt of the services by the Custt?mer.
C. Payments
Ale parties shall comply with Chapter 2251. Texas Govertuuent Code. in hivoicing and
making payments. PaNincros for goods and services are due thirty (30) days after the
goods are provided, the services completed, or a s;oMCI invoice is received, whichever
is later. Payment under- the ['attract shall not foreclose the right to recover
wrongtitl payments.
1). Acceptance
Customer and V"c-ndor may establish terms for acceptance or Products and Scrviccs.
Absent other terms of acceptance agreed to by Customer and Vendor, the following
terms will apply. Willi respect to Vendorbranded products delivered to Custorncrs
under the Contract that have Vendor -published specifications. and with respect to
Services provided to Customers by Vendor under the Contract that have mutually
agreed upon specitivations dcscribcd in a Purchase order exccutrd by the C:usiorner
and Vendor (respectively, the "Specifications"), Customer shall detentline whether
such products and Services meet the applicable Specifications. If the product or
Service meets the Specifications applicable to it, the Customer agrees to accept such
product or Service. Unless otherwise agreed upon by the Customer and Vendor, a
product or service shal I he deemed accepted if the Customer does not, within Twentv
(20) twenty calendar days from the date such product or service is delivered, issue: to
Vendor a written notice of partial acceptance or rejection of the product orsen,iee based
on the fact that the product or service did not meet tite Specifications applicable to it
("Deemed Acceptance" or "Deemed Accepted)).
No payment shall duc For any such product or Service: until the Customer either acLcpts
the product or service or such product or service is Deemed Accepted.
Page 16 of 31
VIER Contract No. INH-TW-370
Vendor Contract No.
K. Section 9. ('ontract Administration, B. Reporting and Administrative Fees, 2)
Detailed Monthly licpart, is hereby replaced in its entirety:
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 nnonth period. Reports are due oat the fifteenth (15th) calendar
day of the month following the month of the sale. If the 15th calendar day falls on a
weekend or state or federal holiday, the report shrill be due on the ne-ml business day.
The -monthly report shall include, per transaction: the detailed sales for the period,
Customer naive, invoice date, invoice number, description, quantity. MSRP or List
Price, unit prig, extended prig, Customer Purchase Order nuunbcr, contact name..
Customer's complete billing address, the estimated administrative fez for the reporting
period, subcontractor mine. EPEAT designation (i1' applicable), configuration (if
applicable), contract discount percentage, actual discount percentage, negotiated
contract price (if fixed price is offered instead of discount off of iMSRP), and other
inf nnnation as required by DIR. Each report must conWiu all inforivation 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 MR's business -needs. Failure to do so
rnav result in contract termination-
L. Section 9. ('ontract Administration, R. Reporting and Administrative Nees, 4) DIR
Administrative Fee, is hereby replaced in its entirety:
a) The Vendor shall pay an administrative fee to DIR to defray the DIR costs of
negotiating, executing, and administering the Contract. The maxintttm
administrative fee is set by the: Texas Legislature In the biennial amoral
Appropriations Act. DIR will review Vendor monthly sales reports, close the sales
period, and noldy the Vendor of the administrative fee no later [hart the fourteenth
(10') clay of lhz Sccond month followi ig the elate of the reported sale. Vend(yr shall
pay the administrative fee by the twenty -filth (25a') calendar day of the second
month following the date of the reported sale. I or exai nplC. Vendor reports January
sales by I:ehruary 150': DIR closes .ianuary sales and notifies Vendor of
administrative fee by March 141h; Vendor submits admiuistr:hive fcc for January
sales by March 25a'.
b) MR may change the amount of the administrative Fee upon thirty (30) calendar
days written -notice to Vendor without the need fora formal contract arnendrnient.
c) Vendor shall reference the D1IZ Contract nun-ber, reporting period, and
administrative fee amount con anv remittance instrlunents.
Pago 17 of 31
nrR Contract No. MR-TSO-3763
Vendor Contract No-
M. Section 9. C'onti:tct Administration, 13. Reporting and Administrative Fees, 5)
Accur-ate and Timely Submission of Reports, is hereby replaced in its entirety:
a) The reports and administrative fees shall be accurate 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 laic
administrative fez payments within three (3) business days upon written notification
by DIR. if Vendor is tunable to correct inaccurate reports or administrative fee
payments or deliver laic reports and f.cc payments within three (3) business days,
Vendor must contact DIR and provide a corrective plan of action, including the
timeline ror completion of correction. The corrective plan of action shall be subject
to DIR approval.
b) Should Vendor fail to conrcct inaccurate reports or cure the delay in tinncly
delivery of reports and payments N ithin late corrective phut of actiott timeline. DIR
reserves the right tan require all independent third -party audit ❑ftlne 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 I]IR's discretion, result in the addition of
late fees of $100/dav for each day the report or paynnent is due (up to $1000imonth)
or suspension or tern>ination of Vendor's Contract.
N. Section 9. C'ontract Administration, C'. Records and Audit, is hereby replaced in its
entirety:
1) Acceptance of funds tender the Contract by Vendor and/or Order Fulfiller acts as
acceptance of the authority of tho State Auditor's Office;, OF any successor agency, to
conduct an audit or investigation in connection with those funds. Vendor further agrees
to cooperate fully with the Staic auditor's 011icc or its successor in the conduct ofthc
audit or investigation, including providing all records requested, Vendor will cusure
that this clause concerning the authority to audit #funds received indirectly by
subcontractors through V4-ndor or directly by Order Fulfillers and the requirement to
cooperate is included in any subcontract or Order FulfiHer contract it awards pertaining
to the Contract. U ndcr the direction of the Legislative Audit Committee. a Vendor that
is the subjecct of an audit or inrvestigation by ilia State Auditor's Office must provide
ilea State Auditor's Office with access to any information the Stare auditor's Office
considers relevant to the investigation or audit.
2) Vendor shall maintain adequate records relating to the requirements ofthis Contract
and relevant to the performance of the Contract to DIR., to establish compliance with
the Contract until the later of a period of four (4) years idler temnination of the Contntcl
or until full, final and unappcalable resolution of all Compliaucc Check: or litigation
i,""es that arise under the Contract. Such records shall include per transaction.
Customer nanne, invoice date, invoice number, description, quantit-v, unit price,
Pago 19 of 31
M R Contract No. 1)IR-7 %0-37G3
Vendor Contract No.
extended price, Customer Purchase Order number, contact name, CVstotner"s complete
billing address, the calculations supporting each administrative fee owed DIR under
the Contract, Historically Underutilized Busina-sses Subcontracting reports, and such
other documentation as DIR may request.
3) Vender and.'or Carder Fulfillers shall grant access to all paper and electronic records,
books, documenLs, accountiirg procedures, practices 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 lam• the DIR Internal
Audit department, DIR Contract Management staff, the State Auditor`s Office, and of
the ITnited States_ and such other persons or entities designated by DIR for the purpases
of inspecting, Compliance Checking and/or copying such books and records. Vendor
and/or Carder 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 mask available during regular oilicc hours. Vendor and/or Order
Fulfiller personnel familiar with the Vendors and,'or Order FullilICT-s books and
records shall be available to the DIR Internal Audit departincut. or DIR Contract
Management stall' and designev-s as needed. Vendor and/or Order Fullillcr small
provide adequate office space to DIR staff during the performance of Compliance
Check. Ll' any audit reveals a Material Accounting Error_ Vendor nuI.st nimbiu-se DIR
for actual and reasonable costs of such audit. Material Accounting L,rror means (a) with
regard to audits of invoices, an aggregate variance from all applicable invoices of
Vendor reviewed during such audit in excess of 1.5% of the aggregate amount shown
oil al of the invoices reviewed during such audit: and (b) w�ith regard to audits of fees,
an aggregate miderpayment of all fees due to DIR under this Contract during a Vendor
fiscal quarter in excess of 5%.
O. Section 10. Vendor Responsibilities, A. indemnification, z) ACTS OR
OMISSIONS is hereby replaced in its entirety:
2) ACTS OR ONUSSIONS
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 AND AGAINST
ANY AND ALL TH1RD PARTYCLAIMS FOR LIABILITY. ACTIONS, CLAIMS,
DEMANDS, OR SUITS, AND ALL RELATED COSTS, ATTORNEY FEES, AND
EXPENSES arising out of, or resulting frorn any acts or omissions of the Vcndor or its
agents. employees, suhcoulractors, 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 caresed by Dell or its Order Fulfillers, Agents, Rescllcrs or subcontractors,
VENDOR'S OBLiGNUIONS TO INDEMNIFY AND HOLD HARMLESS BY
NF: LIGENCE VFNIX)R SHALT, PAY" ALL COSTS OF DFFENSF INCLL'DINU
REASONABLE A170RNEYS F EL;S. The defense sliall be coordurated by the Office
Page 19 of 31
DIR Contract No. MR-TISA)-3763
Vendor Contract No.
of the Attorney General FOR TEXAS STATE AGENCIES OR BY CUSTOMER'S
LEGAL. COUNSEL FOR NON -STATE. AGENCY CUSTOMERS- VENDOR'S
COO T'NSEl. FOR VF:NNDOR, AN1) BY CUSTOMERS 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 ❑FFICE OF THE
ATTORNEY GENERAL.
P. Section 10. Vendor Responsibilities, A. Intlenntitscattion, 3) Infringements is
hereby replaced in its entirety:
a) Vendor shall indemnify and hold harmless the State of Texas and Customers,
AND/OR THEIR EMPLOYEES, AGENTS, REPRESENTATIVES,
CONTRACTORS, ASSIGNEES, ANDIOR 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 of Services or the provision of Dell -branded Products by
VENDOR PURSUANT TO TRIS CONTRACT. "Dell -Branded Products" shall mean
hardware products (including all Dell standard components and parts contained within
the hell system), components, or parts bearing the Dell logo that are included on
Seller's standard price list.
VENDOR and the CUSTOMER agree to Rimish timely written notice to each other of
any such claim. VENDOR SHALL HK LIABLE TO PAY ALL COSTS OF DEFENSE.
OF THE CLAIMS AS SPECIFIED IN THIS SECTION INCLUDING ATTORNEYS'
FEES. The defense shall be coordinated by the Office of the Attorney Gencral 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, the foregoing IP obligations shall extend to third party claims involving
infringement of United Slatcs 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.
h) Notwithstanding the foregoing, Vendor shall have no obligation under this Section
for any claim to the extent that it results or arises from (I) 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,
Page 20 of 31
TNR Contract No. MR-T%0-3763
Vendor Contract No.
including the incorporation of any software or other materials or process provided by
or requested b-y Customer, provided that, in the first case, Vendor's employees who
Compiied with Customer's specifications did not have actual knowledge that such
specifications infringe one or more United States patents. copyrights_ trade and service
marks- and ativ other intellectual or intangible property rights and fails to so inform
Customer_ In the event Vendor has no ohligat ion for a claim as set forth above,. Vendor
agrees to provide such assistance (e.g., producing documents acid its employees as
witnesses) as is reasonably requested by the Attorncv Gencral in connection with the
Attorney General's defense of such claim.
e) 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 cast of an
injunction against Customer, shall). at Vendor's sole option and expense: (i) procurc
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 ar service $o that CtISt011ler's use is non -
infringing or (iii) provide a refund that reelects reasonable depreciation for time of use,
and for serviceslcustom software. (ii i) applies only if the remedies described in subparts
(i) and (ii) are not obtainable despite Vendor's contntetcially 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 envirotunent of the affected portion of Dell -
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 service being
removed and (7) the refund Provided to such Custarner pursuant to subpart (iii), above,
and Vendor will pay such claim.
Q. Section 10. Vendor Responsibilities, B. TaxeslWorker's C'ompenssationl
UNEMPLOYMENT INSURANCE is hereby replaced in its entirety:
1) VENDOR AGREES AND ACKNOWLEDGES THAT DURING THE
EXISTENCE 01� THIS CONTRACT, VENDOR SMALL BE ENTIRELY
RF'SPONSIBLE FOR 'I HF' LIABILITY AND PAYMEINT OF V1:NDOWS AND
VENDOR'S Ek4'IPLO7TES' TA.NES OF WIIATEVER KIND. ARISING OUT OF
TIIL PLRl'ORMANCI;S bN'1'111S CON'IRACT. VENDOR AGREES TO COMPLY
WITH ALL STATE ANI] FEDERAL 1,AWS APPLICABLE TO ANY SUCH
PERSONS, INCLUDING LAWS REGARDING WAGES, TAXES. INSURANCE.
AND WORKERS' COMPENSA710N. VENDOR AGRFE'S AND
ACICNO"AILEDGF.S THAT VENDOR ITS EMPLOYERS, RS, REPRESENTATIVES,
AGI:NTS OR SUBC47 ,TRACT ORS SHALI. NGF 13F ENTITLED TO ANN"
STATE B NF.FIT OR RENF.FU OF ANOTHF,R CrO VERNMFNTAL ENTITY
CUSTOMER AS A RESULT OF WORKING UNDER THIS CONTRACT. THE
CUSTOMER ,kND!OR THE STATE. SHALL. NOT BE LIABLE TO THE VENDOR
ITS EMPLOYEES, AGENTS, OR OTHERS FOR THE PAYMENT OF TAXES OR
Page 21 of 31
M R Contract No. 1)fR-T%0-3763
Vendor Contract No_
THE PROVISION OF IJNE:MPLOYMF:N'T' INSURANCE ANIYOR WORKERS,
COMPENSATION OR ANY BENEFIT AVAILABLE TO A ST_TF. FMPLOYFE
OR FMPLOYEF OF ANOTHER (1OVFRNMENTAL ENTITY Ct?ST0%1FR AS A
RFS1 iI..T OF ITS PFRFORMANCE I JNDFR THIS CONTRACT_
2) VENDOR AGREES TO INDEMNIFY _1NT) HOLD HARMLESS CUSTOMERS,
THE STATE OF TEXAS AND/OR THEIR EMPLOYEES, AGENTS,
REPRESENTATIVES. CONTRACTORS, ASSIGNEES, AND/OR DESIGNEES
FROM ANY AND ALL LIAABILITY, ACTIONS_ CLAIMS, DEMANDS, OR SUITS,
AND ALL RELATED COSTS, ATTORNEY FEES, AND EXPENSES_ RELATING
TO TAX LIABILITY, UNEMPLOYMENT INSURANCE AND/OR WORKERS'
COMPENSATION OR EXPECTATIONS OF BENEFITS BY VENDOR, ITS
EMPLOYEES, REPRESENTATIVES_ AGENTS OR SUBCONTRACTORS IN ITS
PERFOR.NIA1r1C E UNDER'11IIS CONTRACT. VENDOR SILALL 13E LIABLE TO
PAY ALL COSTS OF DEFENSE INCLUDING REASONABLE ATTORNEYS'
FLES FOR CLAIN-IS UNDER THIS CLAUSE AS A RLSUL'I' OF ITS
PERFORMANCE i,'NDF.R THIS CONTRACT.
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 TIIE
OFFICE OF THL AI-FOI?NLY GENERAL.
R. Section 10. Vendor Responsibilities, C. Vendor Certifications, is hereby replaced in
its entirety:
C. Vendor C:ertifrcations
Vendor certifies on belialf'of Vendor and its designated Order Fulfillers that they:
(i) have not given. offered to give, and do not intend to give at arty time hereafter any,
economic opportunity, fixture employment, giii, loans, grahfity, special discount, trip,
favor, or service to a public servant in connection with the Contract;
(ii) are not currently delinytteut in the payment of any franchise tax owed the State and
are tint ineligible to receive payment under §231_f)OG of the Texas Family Code and
acknowledge the Contract may be terminated and payment withheld ifthis certification
is inaccurate:
(iii) neither they, nor anyone acting for thonL have violated the antitrust laws of the
United Stales or the Slate, uor communicated directly or indirectly to any competitor
or any 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 ifs employees [or participating in
the preparation of the Contra&
(v) under Section 2135.004, Texas Government Code_ the vendor certifies that the
individual or business entity narned in this bid or contract is not ineligible to receive
PaV 22 of 31
UIFR Contract No. MR-?':iU-3763
Vendor Contract No.
the specified contract and acknowledges that this contract may he terminated avid
pa}mnent withlield if this certification is inaccurate_
(vi) to the best of their knowledge and belief, there are tit) suits or proceadirtgs pendsrtg
or threatened against or affecting thorn, which if determined adversely to them will
have a material adverse cifect on the ability to tirlfill their obligations voider the
Contract_
(vii) Vendor and its principals are not suspended or debarred from doing business with
the Federal govcntnt4nt as listed in the System For !!ward Managuincnt (SAM)
maintained by the General Services Administration.,
(►'iii) is orthe effective date oftltc Contract, art not lislcd in the prohibited vendors list
authorized by Executive Order 413224, "Blocking Property and Prohibiting
Transactions with Pcoons Who Conunit, Tlurcatcn to Commit, or Support Tcrroristu",
published by the Unitcd States Department ol' the Treasury. Office of Foreign Assets
Control.
(ix) Vendor ccrt.ifcs that, for its pertbrmancc 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 eN"tent that such
is required under Texas Government Code, Section 2155.4441. '17tis certification ation will
not be interpreted to prohibit or impair Vendor's provision of product front its then
current and commercially available inventory-
(x) agrees that all equipment and materials used in fulfilling the requirements of this
contract are of high -quality avid consistent with or !fetter than applicable industry
standards, if any. M) Works and Services perfomned 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 cxIctit applicable to this scope of (his Contract, Vendor hereby certifies that
it is in compliance with Subehapter 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 dobl_
including but not limited to delinquent taxes and child support that is owed to the State
of Tcxas;
(xiii) are in compliance Section 669,003, Texas Government Code, relating to
contracting with executive head of a slate agune_y:
(xiv) ccrtifjr 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 appearaucc of impropriety, and, if these facts change
during the course of the Contract, certify they shall disclose the actual or potential
conflict of interest, and any circumstances that create the appearance of impropriety;
(%v) under Section 2155,006, and Section 2261,053, TaKas Government Code, are not
ineligible to receive the specitied contract and acknowledge that this contract may he
Terminated and payment withheld if this certification is inaccurate;
(4-vi) have complied with the Section 556.0055. Texas Government Code. restriction
on lobbying expenditures_ In addition, they acknowledge the applicability of §2155.444
and §21-95.4441, Texas Government Code, in fulfilling the terns of the Contract; and
Pago 23 of 31
DIR Contract No. DIR-TISA)-3763
Vendor Contract No.
(xvii) certify that the Customer's payment and their receipt of appropriated or other
funds under this Agreement are not prohibited by Sections 556_005 or Section 556-00g7
Texas Government Code.
(x-viii) certify that in accordance with Section 2270.002 ofdme Texas Governmclit 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 will, for itself and on behalf of its Order
Fulfillers, promptly disclose to DIR any changes that occur to the foregoing
certifications. Vendor covenants to fully cooperate in the development amid execution
of resulting documentation necessary to maintain an accurato rcCord of the
certifications -
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 reyuiremenls),
S. Section 10. Vendor Responsibilities, G. Responsibility for Actions, is hereby
replaced in its entirety:
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 hehalf of DIR or the State.
'1'. yeetirni 10. Vendom• lte5pommsibilities, 1.5ecur•ity nY Ym•emises, I?quipment, lluta :ind
Personnel, is hereby replaced in its entirety:
a) Vendor and/or Order Fulfiller may, from time to time during the performance
of the Contract, bane access to the personnel of Customers and the premises,
equipment, and other tangible property belonging to the Customer. Vendor shall
use commercially reasonable efforts to preserve the safety of such personnel
and the safety, security, and the integrity of such premises, equipment, and other
tangible property, in accordance with the instruction ofthe applicable 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 shall be responsible for damage to
Customer's premises, equipment and other tangible property when such
damage is caused by its cmployce or subcontractor. If Vcndor and/or an Order
Fulfiller materially fails to comply with the applicable Customer's security
requirements, then such Customer may immediately terminate its Purchase
Order and related Service Agreement.
b) In addition, Vendor and/or Order Fulfiller inay, from time to timc during
performance of the Contract, have access to Customer's data ("Data') that is
Page 24 of 31
UIR Contract No. MR-TSO-3763
Vendor Contract No.
hosted either at CUStomer'S or a third parhy's premises [other than premises of
Vetdor's Affiliates orsuLx;ontractors] (collectively, "Customer Premises") or at
Vendor-s premises or the premises of Vendor's Affiliates or subcontractors
(collectively, "Vendor Premises" )-
i. As to 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 Vcndor or the applicable Order Fulfil icr
by the Customer in writing or in the manner that Customer generally
provides such instructions to its own employees and other contractors.
it. As to Data hosted at any Vendor Pre vises, Vendor will comply with its
generally applicable security standards designed to preserve the safety,
security and integrity of such Data, as well as auv additional security
obligations expressly agreed hi the applicable. Statement of Work executed
by Customer and Vendor,
iii. Notwitlistauiding anything to the contrary in this Agreement, including this
Section 10J, except as otherwise expressly provided in a Statement of Work
executed by Customer and Vendor: (A) Customer is responsible for
backing tip its own Data, (13) Vendor and Order Fulfiller shall not have
operational or financial responsibility forrefrashes. upgrades, modifications
or improvements to Customer -provided facilities, equipment or software
that may he required to preserve the safety!, security and integrity of such
Data. and (C) if Vendor or Order Fulfiller's compliance with Customer's
instnictions constitutes a material change to the scope of Services or their
other obligations, the parries will equitably adjust the charges to acuxint 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 (or Customer's applicable Tliird-Party
Vendor's) failure to use standard industry practices relating to data backups
and retrieval of Data.
iv. II' Vendor has Data backup responsibility under the applicable Statenicnl of
Work 1`cndor shall be operationally and financially responsible for
restoring such Data that is lost or corrupted as soon as reasonably
practicable in accordance with its Data restore responsibilities set forth in
the Statement of Work provided that, if the loss or corruption of Data
results from a Force Majeurc Event or other event for which Vendor's non-
pei'kornimice is excused, then Vendor and Customer will equitably adjust
the charges to account for the additional effort incurred by Vendor in
restoring the Data to the extent such additional charges result from activities
in addition to the responsibilities Venchir is expressly obligated to perform
underthe applicable Statement of Work_ In either ofthe foregoing cases in
which additional charges may apply. Vendor will consult ►vith the
Page 25 of 31
011? Contract No. DIRA SO-3763
Vendor Contract No.
applicable Customer before performing such restoration, and the applicable
Customer may, at its discretion_ direct Vendor not to restore the Data-
U. Section 10. Vendor Responsibilities, J. Background and/or C'ritminal History
Investigation, is hereby replaced in its ent1rety .
Prior to commenecruci t of any ser ices, background an&or criminal history
investigation of the Vendor's employees and subcontractors who will be providing
services to the Customer under the Contruc9 may be perfonued by Vendoror Customers
(as required by Customer), provided This requirement is added to the applicable specific
Purchase Order between such Customer and Vendor. Should any employee or
subcontractor of the Vendor who will be providing services to the Customer raider such
Purviiase Order not be acceptable to the Customer as a result (if the backgrOUnd and'or
criminal history check then Customer may inumediadely rcgLtin rephlComent of the
employee or subcontractor in question, if Vendor tails to promptly replace the
employee or subcontractor personnel. then C'nm)mer tray immediately terminate its
Purchase C7rdcr and related 5crviLc Agrecnicilt.
V. Section 10. Vendor Responsibilities, K. Limitation of Liability, is hereby replaced
in its eiltirety:
For any claim or cause of action arising out of or related to the Contract: i) to
the extent permitted by the Constitution and the laws of the State of Texas,
none of the parties shall he liahie to the other fear indirect, punitive, special, or
consequential damages, even if it is advised of the possibility of such damages;
and ii) Vendor's euinuIative liability for all riaiins and darn ages of any ldnd to
all Customers under the Contract shall be limited, in the aggregate, to
S5,000,000. The lbregoing limitations shall apply regardless of ,�t,hethcr the claim
for such damages is based in contract, warranty, strict liability, negligence, tort or
othcrr-isc. Insofar as applicable law prohibits any limitation licrein, the parties
agree that such limitation will be automatically modified, but only to the L:xtc:nl so
as to make [lie limitation permitted to the fullest extent possible Larder such law.
IIowever, lli.is limitation of Vendor's liability shall not apply to Vendor's
indemnification obligations for claims of patent, tratfernar- or copyright
infringement at' Vendor -branded products or Vendor -provided services and
deliverables as set forth in Section 10.A.3 (`Iri ingements").
W. Sectionl0. Vendor Responsibilities, L. Overcha rges, is hereby replaced in its
entirety:
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 I Inited States_ 15
U-S.C_A_ Section 1, et seq__ and which arise under the antitrust laws of the State of
Texas_ Tex. 13us. and Comm. Code Section 15.01, et seq., to the extent that such
overcharge was, in fact, passed on to DIR or its CIWOtttM in the computer products
Page 26 of 31
VIR Contract No. I)IR-7 %0-37G3
Vendor Contract No.
or other goods and/or services purchased by D11Z or its Customers under this
Contract during the time period referenced in the litigation.
X. Section 10 Vendor Responsibilities, M. Prohibited Conduct, is hereby deleted in its
entirety because the subject matter is addressed m 1 i1.C.iti.
Y. Section 10. Vendor Responsibilities, N. Required Insurance Coverage, is hereby
replaced in its entirely:
N. Required Insurance Coverage
As a condition orthis Contract with DIR, Vendor shall provide the listed nnsuranee
coverage within 5 business days of execution or the Contract if the Vendor is
awarded services which require that Vendor's c-inployees perform work at any
C ILstomer premises and/or use employer vehicles to conduct work on behalf of
Customers. In addition, when engaged by a Crkstomer to provide sen-kcs 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 CLIStOnner within five (5) business days following the
execution of the Put -chase Order. Vender may not begin perf6inance tinder the
Contract and/or a Purchase Order until such proof of insurance coverage is provided
to, and approved by. 131R 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
L.M. Best and are licensed ki the State of Ter -as and authorized to provide the
corresponding coverage. 'llne Customer and INIZ will he nanned as Additional
Insureds on all required coverage. Required coverage must remain in effect through
the tern or the Contract and each Purchase Order issued to Vendor there under. The
rniniunum acceptable insurance provisions are as follows-
1) Commercial General Liability
Commercial General Liability must include $1,000,000 per Occurrence for Bodily
Injury and Properly Damage, with a separato a.ggr-Qgatc limit at- $2,000.000;
Medical Expense per parson of$5.000; Personal Injruy and Advertising Liability
of $1.000,000; Prodtrcts/Compleled Operations Aggregate Limit of $2,000,000,
and Damage to Premises Rcnted: 550,000. Agencies may require additional
Vnibrella/Excess l.aability insurance, 'llte policy shall contain the foilrnN ing
provisions:
aj F31astket contractual liability coverage for liability assumed unnder the Contract.
b) Independent Contractor coverage;
c] State of'l'exas, DIR and Customer listed as an additional insured: and
d) Waiver of Subrogation
2) Workers' Compensation Insurance
WORKERS' COMPENSATION INSURANCE AND EMPLOYERS'
LIABILJTY COVERAGE IvfiJST INCLUDE LIMITS CONSISTENT WITH
STATUTORY BENEFITS OUTLINED IN THE TEXAS WORKERS'
Page 27 of 31
tlt R Contract No. MR-7' -37G3
Vendor Contract No.
COMPENSATION ACT (ART. 9309-1,01 I:i' SF.Q. 'I'FX. REV. CIV. Sr['A'I)
AND MINIMUM POLICY LIMITS FOR EMPLOYERS' LIABILITY OF
$1,000,000 HODILY INJURY PEI? ACCIDENT. $1.000.000 HODII,Y IN1URN,
DISFASE PFR EMPLOYEF AND $1,000,000 PER DISEASE POLICY LIMIT_
3) Business Automobile Liability Insurance
Business Automobile Liability Irtsurance must cover all owned, non -owned and
hired vchicics with a minimum combined single limit of S500.000 per occurrencc
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.
L Section 10. Vendor Responsibilities, S. Secure Erasure of Hard Disk Products
and/or Services, is bcrcbv replaced in its cn1 iroty:
Vendor agrees that all products that are equipped with hard disk drives (e.g.,
computers, servers, printers, scanners, midtifunclion devices) shall have the
capability to erase data written to the hard drive prior to final disposition of such
managed service products and/or services_ either at the end of the managed service
product and/or services' useftil Iife or at the end ofthe Customer's managed service
product and/or services' useful life or the end of the related Customer Managed
Services Agreement for such products and/or services, in accordance with 1 TAC
202.28.
AA. Section 10. Vendor Responsibilities, T. Deceptive Trade Practices; Unfair
Business Practices, is hereby replaced in its entirety:
Vendor certifies as o£the EiFccti►c Dale 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 Tradc Practices violations as defined
Under C:lwpter 17, 'l,exas Business & Conuncrec Code, or (ii) has outstanding
allegations of any Deceptive Trade Practice pending in any administrative hcaringr
litigation or other proceeding,
Vcttdor cerlifics 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 1eceptive Trade Practices violations or (ii) have outstanding
allegations of any Deceptive Trade Practice pending in any administrative /rearin&
litigation or other proceeding.
011. Section Ill. Vendor Responsibilities, If. Drug Free Workplace Policy, is herebv
replaced in its entirety,
Vendor will comply with drug and alcohol rules mid regulatiotrs that are legally
mandated for employers in the State of Texas. Vendor and Customers may agree to
Page 28 of 31
DIFR Contract No. DIK-M-370
Vendor Contract No.
more specific requirements for onsite services in a mutually agreed statement of
work_
CC_'. Section 11. Conti -Act Enforcement, R. Termination, a) Termination for Non -
Appropriation by Customer. is hereby replaced in its entirety:
Custonner shall not place Pnr4hasC Orders if futn(Is sutficicril la pay its obligations
tinder the Contract are not appropriated: i) by the governing body on behalf of local
governments; i0 by the Texas legislature on hehalf of state agencies; or iii) by budget
execution authority provisioned to the Governor or the Legislative 13udget Board as
provided in Chapter 317, 'Texas Government Code. in the event of non-
appropr iation, Vendor and/or 0rder Fulfiller veilI he provided ten [10) calendar days
written notice of intent to terminate. Notwithstanding the foregoing, if a C'ustonner
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 raider 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 Iur any lurther payments ordinarily
due under this Contract_ nor shall it be liable for any damages or any other amounts
vt,Inich are caused by or associated with such termination. Notwithstanding the
foregoing, if a Customer issues a Purchase Order and has "ccpted delivery ol'the
product or services, they arc obligated to pay for the product or sen^ices or they may
return products and discontinue using services tinder any return provisions that
Vendor offiers.
DD. Section 111. Contract Enf'orccuient, B. 'Termination, 3) 'Termination for
Convenience, is herehv replaced in its entirety:
DIR may terminate the Contract, in whole or in part. by giving the other parts' thirty
(30) calendar days written notice_ A Customer may terminate a Purchase Order i F
it is determined by the Customer that Order Fulfiller will not be able to deliver
product or services prior to manufacturing process for products, and for services,
in accordance with a mutually agreed Statement of Work_ For qualifying products,
Customer may return Following receipt. in accordance with the Vendor's Return
Policy.
ER. Section 11. Contract Enforcement. C. Force Nhajeure, is hereby replaced in its
entirety:
DIR, Customer, or Vendor may be cxcus.:d from perfonnance tinder the Contract
for any period when perlunmtncc is prevented as the rosult of an act oi' God, strike,
war. civil disturbance, epidemic, or court order, provided that the party + xperiencing
the event of force lvlajeure has prudently and promptly acted to take any and all
steps that arc within the parry's control to 4nsurc perlormancc and to shorten the
duration of the event of force M, jeur e. The party suffering an event of Force
hlajcure shill provide notice of the event to the other parties when cormnercialIy
Page 29 of 31
OTR Contract No. MR-7':iC7-3763
Vendor Contract No.
reasonable. Subject to this provision, such non-performance shall not be deemed a
default or a ground for termination. However, a CiWonter may terminate a Purchase
Order if 1) its performance is or will lie delayed by 20 days or more by events) of
Force Majeure (or a longer period if agreed to by the Customer) and 2) if it is
reasonably determined by the Customer that Vcndor will not be able to deliver
services in a timely nianner to tneet the business needs of the Customer.
FF. Section 14. Export Compliance, is hereby- added:
CompliancclExporl Restrictions. Dell and Customer acknowledge that Products
licensed or sold under this Agreement are, subject to tlic export control laws and
regulations of the United States or those of other countries from which they wcrc
supplied and in which they are twsed. Undcr U.S. laws and regulations. Products
purchased under this Agreement nray not be sold, leased or otherwise transferred
to restricted end -users or to restricted counirics. In addition, the products may not
be sold, leased or otherwise transferred to, or utilized by. an end -user engaged in
activities related to weapons of mass destruction, including but not necessarily
limited to, activities related to the design, development, production or use of nuclear
materials, nuclear facilities, or nuclear weapons, missiles Or supptrrt of missile
projects, or chemical or biological weapons- Customer warrants that any software
provided by Customer and used as part of the Services contains no encryption or,
to the extent that it contains encryption, such software is approved for export
without a license. If Customer cannot snake the preceding representation, Customer
agrees to pro%ide Dell with all of the information needed for Dell to obtain export
licensers from the united States government acid to provide hell with such
additional assistance as may be necessary to obtain such licenses. Notwithstanding
the foregoing, Customer is solely responsible for obtaining any specific licenses
relating to the export of sotlwvare if'a license is needed. Dell may also require export
cerLdications from Customer for Customer provided software. Dell's acceptance
of any order for Services is contingent upon the issuance of any applicable export
license requircd by the United States Government: Dell is not liable Isar delays or
failure to deliver a product resulting from C:tr_141orrier's fail tire to obtain stJch license
or to provide such certification.
Remainder of this page intentionally left blank
Page 30 of 31
➢]IR Contract No. 01142NO-3763
Vendor Contract No.
11tis Contract is executed to he effective as of Jan Uary 10.. 2018.
DO Marketing, L.P.
Authorized By: Signature on File
Name: Dudlc v %IcClrllutt
Title: Conunercial Counsel_ Dell Legal
Date: December 15, 2017
flee State of Texas, acting by and thnmugh the ❑epariment of information Resources
-uthoriaed By 5ig!iature on File
'wine_ Hershel Becker
Title: Chief Procurement Officer
Date: December 1.8_ 2017
onicc of C"cm:ral C ounscl: DB 12115; 2017
Initials Date
Page 31 of 31
EXHIBIT D
Texas Department of Information Resources DIR-TSO-3763
Pricing Index
DIR TSO-3763 Amendment 1
Appendix C Pricing index
Dell Marketing, L.P.
Category
Products Classifications
Direct Purchase from Dell
Purchase from Resellers
A
Bard 1 Dell Desktops;
UIR Customer Discount
16 00 0A
% from Dell MSRP
16.00 %
Band 2 Dell laptops
Band 4 Dell Servers;
h
Band 5 dell Storage
14 50 %
14.50 %
k
Networking. IoT, Printers, Monitors, Tablets, Projectors. DLII-branded
14 50 %
14 50 %
Customer Kits
Selected Pnrrter Related ProdudslAccessaries
3 00 %
3.00 %
H
Ships Fast Pre -Configured Latitude, OptlPlex, Warkstabons
6.00 %
B-OG %
PA
Select Third Party Software (Adobe Perpetual Licemes or>iy)
6.00 %
Not autho rind
rn
Select Third Party Software & Hardware
12 00 %
Not authorized (Software)
Software & Hardware
12.00% Hardware
PA
Some Dell -branded memory, Sari leWalI, Wyse, RSA Security,
92 g5
12 00 %
Compellent, Credant
Imaging, Latitude, PowerEdge server, Vostro and XPS Notebooks,
5
Selected Latitude; Selected PowerBdge; Power cohmect, EquaiL.ogic;
4.00 %
4 00 %
Monitors
U
Spare Parts
0%
0%
V
Standard upgrade) downgrade options with discounts that Crary based
Same discount as system
Same discount as system
upon the system in which the item Is installed
X
Select Third Marty Software Maintenance Support, Subscriptions and
2 00 %
2.00 %
Renewals & Peripherals
--IZSlZ7
On -site — Next Business day On -site (extended yrs ), Cmbcai Care On-
0%
0%
site Service (all yrs ); other services
DIR-TSO-3763 Amendment 7
Appendix C Pricing Index
For general purcheses [jell "it provide the minimum discounts identifed below For select offerings generally described in the above table. The
dlspdunfs are based on Dell's then current Manufacturer Suggested Retail Pricing (MSRP) and Deli reserves the right to Change the MSRP (which
would al5d change the discounted selling price) at any time to apply m future orders
Dell's published Manufacturer Suggested Retail Price List Is at nttv.liftprcx iis-dell G3mISIClweeklyldeI pr icereoorl. M
In the event Customers purchasing products and services under this Conlract negotiate more advantageous pricing or partla+pate in special
proreotional offers (Included those that prawde addiiionat discounted or specially priced and bundled opt ons), the above discounts will not be
apoicable The final Customer -approved Dell Quote or Dell procurement response will contain the applicable pricing for the ordered individual
orfenngs or far iatndled offering configurations or special offers {jell will work with DIR arid with Customers to Create pre -approved bundled
configurations at agreed pricing to be available for stated true periods Customer understands that the bundled offering or special promotional
orfenlrgs may include other discounted or reduced cost or no additional cast products and services and the CLeomer may compare the bundled
cffaring and any additional services lc the line item pricing and. minimum dieceurpts to the Dell Manufacturer Suggested Retail Pnce List
City of Fort Worth, Texas
Mayor and Council Communication
DATE: 02/14/23 M&C FILE NUMBER: M&C 23-0061
LOG NAME: 041NFRASTRUCTURE MULTI -COOP
SUBJECT
(ALL) Authorize Non -Exclusive Purchase Agreements for Information Technology Infrastructure, with Netsync Network Solutions, Inc., Presidio
Networked Solutions Group, LLC, ePlus Technology, Inc., and World Wide Technology LLC using Multiple State of Texas Department of Information
Resources, OMNIA Partners and The Interlocal Purchasing System Cooperative Contracts With a Combined Annual Amount Up to
$11,200,000.00, and Four One -Year Renewal Options with State of Texas Department of Information Resources and OMNIA Partners in the
Amount of $10,000,000.00 for the First Renewal and $6,200,000.00 for the Remainder Renewals for the Information Technology
Solutions Department
RECOMMENDATION:
It is recommended that City Council to authorize non-exclusive purchase agreements for Information Technology Infrastructure with Netsync
Network Solutions, Inc., Presidio Networked Solutions Group, LLC, ePlus Technology, Inc. and World Wide Technology LLC using Multiple State of
Texas Department of Information Resources, OMNIA Partners and The Interlocal Purchasing System Cooperative Contract with a combined annual
amount up to $11,200,000.00, and four one-year renewal options with Texas Department of Information Resources and OMNIA Partners in the
amount of $10,000,000.00 for the first renewal and $6,200,000.00 for the remainder renewals for the Information Technology Solutions
Department.
DISCUSSION:
The Information Technology Solutions Department (ITS) will use these agreements to purchase equipment and services from Netsync Network
Solutions, Inc., Presidio Networked Solutions Group, LLC, ePlus Technology, Inc and World Wide Technology LLC. to support the City's information
technology infrastructure. This infrastructure includes equipment and software supporting the City's servers, data storage, virtual desktop
environment, and network and telephone systems. These agreements will be used to support the refreshes for the equipment that has reached
the end of life cycle as well as new projects for City departments using the following cooperative contracts:
Vendor
Co-op
Expiration
Date
F RFO
JPublished
Responses
Due
Presidio, Netsync
DIR-TSO-
�4167
7/3/2023
12/20/2017
2/5/2018
and WWT
Presidio, Netsync
R-TSO-
063
1/10/2024
9/12/2016
10/13/2016
and WWT
Presidio, Netsync
DIR-TSO-
12/17/2023
3/20/2018
5/4/2018
and WWT
14299
WWT and ePlus
DIR-TSO-
�4160
10/2/2024
1/12/2018
2/26/2018
Presidio and ePlus
R-TSO-
02/21/2025
88
2/26/2018
4/9/2018
DIR-CPO-
��4444
1/23/2025
3/15/2019
4/25/2019
Netsync and ePlus
��200105
TIPS
5/31/2023
1/9/2020
2/21/2020
AOMNIA
5/31 /2026
12/1 /2020
1 /19/2021
R210407
On September 28, 2021, City Council approved Mayor & Council communication (M&C) 21-0753 authorizing similar agreements for information
technology infrastructure purchases. Due to several larger projects, Infrastructure refresh, Future City Hall, planned American Rescue Plan
Act spend, and ongoing City growth, additional spending authority is being requested. To avoid any confusion, approval of this M&C will eliminate
prior spending authority and contracts authorized under Mayor and Council Communication P-12248, 19-0123, 19-0270, 20-0650 and 21-0753.
Approval of this M&C will allow a total of $11,200,000.00 in expenditures for the initial year, $10,000,000.00 for the first renewal
and $6,200,000.00 for the remainder renewals for projects such as safety and security, new building projects, building upgrades, building
renovations and building expansion projects. These agreements and spending authority will be made available to Radio Services, Desktop,
Hardware and Security divisions to purchase hardware and software for City departments as requested.
On May 24, 2022 Mayor and Council Communication (M&C) 22-0366 and 22-0367 were approved to allocate American Rescue Plan Act (ARPA)
Subtitle M (Coronavirus State and Local Fiscal Recovery Funds) to the Information Technology Solutions (ITS) Department providing up to
$3,675,000.00 and $3,595,000.00 in support of infrastructure, data protection initiatives, information security and cyber security. The Information
Technology Solutions Department (ITS) will use these agreements to purchase equipment and services to support the City's information technology
infrastructure based on initiatives identified in (M&C) 22-0366 and 22-0367.
ITS Department will ensure that each vendor is given equal opportunity to earn a minimum of 10% of the business. No specific contract amount is
guaranteed.
PRICE ANALYSIS - The Texas Department of Information Resources Contracts (DIR), OMNIA Partners (OMNIA) and The Interlocal Purchasing
System Cooperative Contracts offer discounted pricing. Staff has reviewed the pricing and determined it to be fair and reasonable.
COOPERATIVE PURCHASE - State law provides that a local government purchasing an item under a cooperative purchasing agreement
satisfies any state law requiring that the local government seek competitive bids for the purchase of items. DIR, OMNIA and TIPS Contracts are
competitively bid to increase and simplify the purchasing power of government entities.
M/WBE - An MBE/SBE goal is not assigned when purchasing from an approved purchasing cooperative or public entity.
ADMINISTRATIVE CHANGE ORDER: An administrative change order or increase may be made by the City Manager up to the amount allowed
by relevant law and the Fort Worth City Code and does not require specific City Council approval as long as sufficient funds have been
appropriated.
SUCCESSOR LANGUAGE: The City will initially use these contracts to make purchases authorized by this M&C. The Cooperative Contracts are
set to expire on various dates. If the contracts are extended, this M&C authorizes the City to purchase similar equipment and supplies under the
extended contract. If the contracts are not extended, but DIR, OMNIA and/or TIPS executes new cooperative contracts with substantially similar
terms, this M&C authorizes the City to purchase the same equipment and supplies under the new contracts. If this occurs, in no event will the City
continue to purchase goods and services under the new agreements past 2027 without seeking Council approval.
AGREEMENT TERM: Upon City Council's approval, these agreements will be executed and continue for a term of 12 months in accordance with
approval date of this request. The agreements will renew on an annual basis thereafter. The renewals do not require specific City Council approval
as long as sufficient funds have been appropriated.
RENEWAL TERMS - The Texas Department of Information Resources Contracts (DIR) Agreement may be renewed annually for four (4) one-year
terms for the same annual amount. The Interlocal Purchasing System Cooperative Contracts may be renewed for one-year for the same annual
amount. The OMNIA Partners may be renewed for three (3) one-year terms the the same annual amount. The renewals do 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 capital and operating budgets, as previously appropriated, in the ITS
Capital Projects Funds for the Technology Infrastructure -IT and the General Fund to support the approval of the above recommendation and
exection of the purchase agreements. Prior to any expenditure being incurred, the Information Technology Services Department has the
responsibility to validate the availability of funds.
Submitted for City Manager's Office by. Valerie Washington 6192
Originating Business Unit Head: Kevin Gunn 2015
Additional Information Contact: Kevin Gunn 2015