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Home My WebLink AboutContract 40925DocuSign Envelope ID: D3C3388B-8AEE-473C-9737-3909B2D2C0D1 PROFESSIONAL SERVICES AGREHIBENT f SECRETARY' 'FACT ['3. 9 as This PROFESSIONAL SERVICES AGREEMENT ("Agreement") is made and entered into by and between the CITY OF FORT WORTH (the "City"), a home rule municipal corporation situated in portions of Tarrant, Denton and Wise Counties, Texas, acting by and through Karen L. Montgomery, its duly authorized Assistant City Manager, and F5 NETWORKS INC., a Washington State corporation and acting by and through its duly authorized representative, each individually referred to as a "party" and collectively referred to as the "parties." CONTRACT DOCUMENTS: The Contract documents shall include the following: 1. This Agreement for Professional Services 2. Exhibit A — Statement of Work plus any amendments to the Statement of Work 3. Exhibit B — DIR-SDD-890 4. Exhibit C — Network Access Agreement All Exhibits attached hereto are incorporated herein and made a part of this Agreement for all purposes. In the event of any conflict between the documents, the terms and conditions of this Professional Services Agreement shall control. 1. SCOPE OF SERVICES. 1.1 Consultant hereby agrees to provide the City with professional consulting services for the purpose of providing engineering services by assisting in implementation of the Local Traffic Manager appliance. Attached hereto and incorporated for all purposes incident to this Agreement is Exhibit "A," Statement of Work, more specifically describing the services to be provided hereunder. 1.2 Consultant will provide City with a specified number of hours of professional services ("Services") as set forth in Exhibit A. The parties may choose to define a set of deliverables as described in Exhibit A. If deliverables are defined by the parties in Exhibit A, Consultant will use its commercially reasonable efforts to provide such deliverables (the "Deliverables"), but will not be obligated to provide Services beyond the hours set forth in Exhibit A. 1.3 City agrees to furnish Consultant with adequate technical assistance, network access, materials, and an environment suitable for Consultant to be able to perform the Services. City further agrees to provide Consultant with such technology owned or controlled by City ("Licensed Technology") as required to perform the Services. 1.4 City and Consultant agree to cooperate in good faith to achieve completion of the Services in a timely and professional manner. Consultant shall bear no liability or otherwise be responsible for delays in the provision of Services or any portion thereof occasioned by City's failure to timely complete a City task or adhere to a City schedule. 1.5 Under this Agreement, Consultant is not providing or licensing to City any existing or future Consultant software programs or products. City may acquire licenses to such Consultant products only under the terms of a separate software license agreemen Professional Services Agreement F5 Networks, Inc. Page 1 of 15 OFFICIAL RECORD I CITY SECRETARY FT, WORTH, TX 1 0-V 8 1 0 r, Revised June 4, 2010 DocuSign Envelope ID: D3C33888-8AEE-473C-9737-3909B2D2C0D1 2. TERM. This Agreement shall commence as of the last date that both the City and Consultant have executed this Agreement ("Effective Date") and shall continue in full force and effect for one year ("Initial Term"), unless terminated earlier in accordance with the provisions of this Agreement. 3. COMPENSATION. 3.1 The City shall pay Consultant an amount not to exceed [55,374.96] for all services ,,provided in accordance with the provisions of this Agreement and the City Purchase Order NO 10 - (0a5449 which is incorporated for all purposes herein. City shall reimburse Consultant for actual, approved travel and out-of-pocket expenses incurred in accordance with Consultant's business expense policy. Consultant shall not perform any additional services for the City not specified by this Agreement unless the City requests and approves in writing the additional costs for such services. The City shall not be liable for any additional expenses of Consultant not specified by this Agreement unless the City first approves such expenses in writing. 3.2 Consultant will invoice on a monthly basis for all Services fees and reimbursable expenses that have accrued. Each invoice shall be due and payable within thirty (30) days of date of a proper invoice, and shall be deemed overdue if they remain unpaid beyond that point. If past due amounts owing from City are not paid within thirty (30) days, the unpaid amount shall accrue interest at the rate of 1.0% per month, or at the highest legal interest rate, if less. 4. TERMINATION. 4.1. Written Notice. The City or Consultant may terminate this Agreement at any time and for any reason by providing the other party with 30 days' written notice of termination. 4.2 Non -appropriation of Funds. In the event no funds or insufficient funds are appropriated by the City in any fiscal period for any payments due hereunder, City will notify Consultant of such occurrence and this 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. 4.3 Duties and Obligations of the Parties. In the event that this Agreement is terminated prior to the Expiration Date, the City shall pay Consultant for Services actually rendered up to the effective date of termination and Consultant shall continue to provide the City with Services requested by the City and in accordance with this Agreement up to the effective date of termination. Upon termination of this Agreement for any reason, Consultant shall provide the City with copies of all completed or partially completed documents prepared under this Agreement. 5. DISCLOSURE OF CONFLICTS AND CONFIDENTIAL INFORMATION. Consultant hereby warrants to the City that Consultant has made full disclosure in writing of any existing or potential conflicts of interest related to Consultant's Services under this Agreement. Professional Services Agreement F5 Networks, Inc. Page 2 of 15 Revised June 4, 2010 DocuSign Envelope ID: D3C3388B-8AEE-473C-9737-3909B2D2C0D1 In the event that any conflicts of interest arise after the Effective Date of this Agreement, Consultant hereby agrees immediately to make disclosure of such conflict to the City in writing. Consultant, for itself and its officers, agents and employees, further agrees that it shall treat all information provided to it by the City as confidential and shall not disclose any such information to a third party without the prior written approval of the City. Consultant shall store and maintain City Information in a secure manner and shall not allow unauthorized users to access, modify, delete or otherwise corrupt City Information in any way Consultant shall notify the City immediately if the security or integrity of any City information has been compromised or is believed to have been compromised. Confidential Information shall include sensitive, personal, or confidential information so designated orally or in writing as "Confidential" or "Sensitive" or in like words or which should the other party should reasonably know is sensitive or confidential. Notwithstanding any failure to so designate, information concerning business models and strategies, pre-release product and service information, technical designs trade secrets customer information and pricing shall be Confidential Information. Confidential Information may not be copied without the prior written consent of the other party. Each party agrees to treat Confidential Information as it would its own Confidential Information and to disseminate it within its own organization only to the extent necessary for the purposes for which it has been provided and only to its employees or consultants who are bound to maintain its confidentiality The Licensed Technology, Consultant's proprietary software applications, hardware and the terms and pricing of this Agreement shall automatically be considered Confidential Information under this Agreement. Such restrictions on use or disclosure of Confidential Information described above do not extend to any information which (i) is publicly known at the time of its disclosure (ii) is lawfully received from a third party not bound in a confidential relationship to either party (iii) is published or otherwise made known to the public by either party (iv) is independently developed by a party or a subsidiary of the party without using Confidential Information of the other party or (v) is required to be disclosed pursuant to a court order, duly authorized subpoena, or other governmental or legislative authority. In such cases, notice must be provided to City prior to such disclosure. Each party agrees, for the term of this Agreement and three (3) years after its expiration or termination, to hold the other party's Confidential Information in strict confidence, not to disclose such Confidential Information to third parties not authorized by the disclosing party to receive such Confidential Information and not to use such Confidential Information for any purpose except as expressly permitted hereunder. 6. RIGHT TO AUDIT. Consultant agrees that the City shall, until the expiration of three (3) years after final payment under this contract, have access to and the right to examine at reasonable times any directly pertinent books, documents, papers and records of the consultant involving transactions relating to this Contract at no additional cost to the City. Consultant agrees that the City shall have access during normal working hours to all necessary Consultant facilities and shall be provided adequate and appropriate work space in order to conduct audits in compliance with the provisions of this section The City shall give Consultant reasonable advance notice of intended audits. Such audits shall be limited to once per year In the event Consultant engages any subcontractors, Consultant further agrees to include in all its subcontractor agreements hereunder a provision to the effect that the subcontractor agrees that the City shall, until expiration of three (3) years after final payment of the subcontract have access to and the right to examine at reasonable times any directly pertinent books, documents, papers and records of such subcontractor involving transactions related to the subcontract, and further that City shall have access during normal working hours to all subcontractor facilities and shall be provided adequate and appropriate work space in order to conduct audits in compliance with the provisions of this paragraph. City shall give subcontractor reasonable notice of intended Professional Services Agreement F5 Networks, Inc. Page 3 of 15 Revised June 4, 2010 DocuSign Envelope ID: D3C3388B-8AEE-473C-9737-3909B2D2C0D1 audits. Such audits shall be limited to once per year 7. INTELLECTUAL PROPERTY RIGHTS. Except as described below, the Deliverables which are first produced or created for City by Consultant under a Statement of Work incorporating this Agreement shall be the property of City and shall be considered works made for hire under this Agreement Notwithstanding the foregoing, any developed technology, including patentable and unpatentable ideas, know-how, technical data, or techniques, and all intellectual property rights appurtenant thereto which may be developed by Consultant under this Agreement or in the delivery of any services hereunder that derive from, improve, enhance or modify Consultant's product(s) or pre-existing intellectual property, including but not limited to product enhancements embodied in "iRules" and/or using the "Control" open API, will be the property of Consultant (collectively, "Consultant Developments"). City will have a non-exclusive license to use Consultant's Developments to the extent necessary to enable City to use any Consultant Deliverable(s) Subject to the limitations placed on Consultant by the confidentiality provisions of this Agreement or by any existing non- disclosure agreement between Consultant and City, Consultant may in its sole discretion develop, use, market license, or sell the Consultant Developments and any software, application or product that is similar or related to that which was developed by Consultant for City Consultant shall not be required to disclose information concerning any Consultant Developments which Consultant deems to be proprietary or confidential. 8. INDEPENDENT CONTRACTOR. It is expressly understood and agreed that Consultant shall operate as an independent contractor as to all rights and privileges and work performed under this Agreement, and not as agent, representative or employee of the City. Subject to and in accordance with the conditions and provisions of this Agreement, Consultant shall have the exclusive right to control the details of its operations and activities and be solely responsible for the acts and omissions of its officers, agents, servants, employees, contractors and subcontractors. Consultant acknowledges that the doctrine of respondeat superior shall not apply as between the City its officers, agents, servants and employees, and Consultant, its officers, agents, employees, servants, contractors and subcontractors. Consultant further agrees that nothing herein shall be construed as the creation of a partnership or joint enterprise between City and Consultant. It is further understood that the City shall in no way be considered a Co -employer or a Joint employer of Consultant or any officers, agents, servants, employees or subcontractors of Consultant. Neither Consultant, nor any officers, agents, servants, employees or subcontractors of Consultant shall be entitled to any employment benefits from the City. Consultant shall be responsible and liable for any and all payment and reporting of taxes on behalf of itself, and any of its officers, agents, servants, employees or subcontractors. 9. LIABILITY AND INDEMNIFICATION. A. LIABILITY N. CONSULTANT SHALL BE LIABLE AND RESPONSIBLE TO CITY FOR ANY AND ALL REAL OR TANGIBLE PERSONAL PROPERTY LOSS OR DAMAGE ANDIOR P ERSONAL INJURY, INCLUDING DEATH, TO ANY AND ALL PERSONS, OF ANY KIND OR CHARACTER, WHETHER REAL OR ASSERTED, TO THE EXTENT CAUSED BY THE N EGLIGENT ACT(S) OR OMISSION(S), MALFEASANCE OR INTENTIONAL MISCONDUCT O F CONSULTANT, ITS OFFICERS, AGENTS, SERVANTS OR EMPLOYEES. CITY SHALL BE LIABLE AND RESPONSIBLE TO CONSULTANT FOR ANY AND ALL REAL OR TANGIBLE PERSONAL PROPERTY LOSS OR DAMAGE ANDIOR PERSONAL INJURY, INCLUDING DEATH TO ANY AND ALL PERSONS, OF ANY KIND OR CHARACTER, WHETHER REAL OR ASSERTED, TO THE EXTENT CAUSED BY THE NEGLIGENT ACT(S) Professional Services Agreement F5 Networks, Inc. Page 4 of 15 Revised June 4, 2010 DocuSign Envelope ID: D3C33888-8AEE-473C-9737-390982D2C0D1 OR OMISSION(S), MALFEASANCE OR INTENTIONAL MISCONDUCT OF CITY, ITS OFFICERS, AGENTS, SERVANTS OR EMPLOYEES. B. INDEMNIFICATION - CONSULTANT HEREBY COVENANTS AND AGREES TO INDEMNIFY, HOLD HARMLESS AND DEFEND THE CITY, ITS OFFICERS, AGENTS, SERVANTS AND EMPLOYEES, FROM AND AGAINST ANY AND ALL CLAIMS OR LAWSUITS OF ANY KIND OR CHARACTER, WHETHER REAL OR ASSERTED, FOR EITHER PROPERTY DAMAGE OR LOSS ANDIOR PERSONAL INJURY, INCLUDING DEATH, TO ANY AND ALL PERSONS, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, TO THE EXTENT CAUSED BY THE NEGLIGENT ACTS OR OMISSIONS OR MALFEASANCE OF CONSULTANT, ITS OFFICERS, AGENTS, SERVANTS OR EMPLOYEES C. INFRINGEMENT - Consultant agrees to defend, settle, or pay, at its own cost and expense, any claim or action against the City for infringement of any valid patent, copyright, trade secret, or similar intellectual property right under the laws of the United States arising from City's use of the Services or Deliverables provided by Consultant in accordance with this Agreement. Consultant 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, and City agrees to cooperate with it in doing so. City agrees to give Consultant timely written notice of any such claim or action, with copies of all papers City may receive relating thereto. If the Services or Deliverables 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 Consultant shall, at its own expense and as City's sole remedy either: (a) procure for City the right to continue to use the Services or Deliverables; or (b) modify the Services or Deliverables to make it non -infringing, provided that such modification does not materially adversely affect City's authorized use of the Services or Deliverables; or (c) replace the Services or Deliverables with equally suitable, compatible non -infringing Services or Deliverables at no additional charge to City or (d) if none of the foregoing alternatives is reasonably available to Consultant, terminate this agreement and refund to City the payments actually made to Consultant under this Agreement. Consultant will have no liability for any claim of infringement based on: (i) use of a Services or Deliverables in combination with equipment or software not supplied by Consultant where the Services or Deliverables would not itself be infringing, (ii) software or technology not developed by Consultant or (iii) Services or Deliverables that have been altered or modified in any way by anyone other than Consultant or according to Consultant's instructions. D. LIMITATION OF LIABILITY - EXCEPT FOR DAMAGES OR LOSSES ARISING FROM A PARTY S INDEMNIFICATION OBLIGATIONS OR INFRINGEMENT OR MISAPPROPRIATION OF A PARTY S INTELLECTUAL PROPERTY, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR SPECIAL, CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE OR EXEMPLARY DAMAGES, HOWEVER CAUSED WHETHER FOR BREACH OF WARRANTY, CONTRACT TORT NEGLIGENCE STRICT LIABILITY LOSS OF DATA LOSS OF USE, OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR DAMAGE TO TANGIBLE PROPERTY OR PERSONAL INJURY CAUSED BY CONSULTANT, OR CONSULTANT'S INFRINGEMENT OBLIGATIONS HEREUNDER, CONSULTANT S TOTAL LIABILITY TO CITY SHALL NOT EXCEED THE TOTAL AMOUNT ACTUALLY PAID BY CITY HEREUNDER. Professional Services Agreement F5 Networks, Inc. Page 5 of 15 Revised June 4, 2010 DocuSign Envelope ID: D3C3388B-8AEE-473C-9737-3909B2D2C0D1 10. ASSIGNMENT AND SUBCONTRACTING. Neither party shall assign or subcontract any of its duties, obligations or rights under this Agreement without the prior written consent of the other party If the City grants consent to an assignment, the assignee shall execute a written agreement with the City and the Consultant under which the assignee agrees to be bound by the duties and obligations of Consultant under this Agreement. The Consultant shall be liable for all obligations of the Consultant under this Agreement prior to the effective date of the assignment. If the City grants consent to a subcontract, the subcontractor shall execute a written agreement with the Consultant referencing this Agreement under which the subcontractor shall agree to be bound by the duties and obligations of the Consultant under this Agreement as such duties and obligations may apply The Consultant shall provide the City with a fully executed copy of any such subcontract. 11. INSURANCE. Consultant shall provide the City with certificate(s) of insurance documenting policies of the following minimum coverage limits that are to be in effect prior to commencement of any work pursuant to this Agreement 11.1 Coverage and Limits (a) Commercial General Liability $1,000,000 Each Occurrence $1,000,000 Aggregate (b) Automobile Liability $1,000,000 Each occurrence on a combined single limit basis Coverage shall be on any vehicle used by the Consultant, its employees, agents, representatives in the course of the providing Services under this Agreement. "Any vehicle' shall be any vehicle hired and non -owned. (c) Worker's Compensation - Statutory limits Employer's liability $100,000 Each accident/occurrence $100,000 Disease - per each employee $500,000 Disease - policy limit This coverage may be written as follows: Workers' Compensation and Employers' Liability coverage with limits consistent with statutory benefits outlined in the Texas workers' Compensation Act (Art. 8308 — 1.01 et seq. Tex. Rev. Civ. Stat) and minimum policy limits for Employers' Liability of $100,000 each accident/occurrence, $500,000 bodily injury disease policy limit and $100,000 per disease per employee. (d) Information Security and Privacy Liability $1,000,000 Each Claim Limit $1,000,000 Aggregate Limit Professional Services Agreement F5 Networks, Inc. Page 6 of 15 Revised June 4, 2010 DocuSign Envelope ID: D3C3388B-8AEE-473C-9737-3909B2D2C0D1 Coverage shall include, but not be limited to, the following: (i) Failure to prevent unauthorized access (ii) Unauthorized disclosure of information (iii) Implantation of malicious code or computer virus (iv) Fraud, Dishonest or Intentional Acts exclusion modified to include final adjudication language Any deductible will be the sole responsibility of the Prime Vendor and may not exceed $100,000 without the written approval of the City Coverage shall be claims -made, with a retroactive or prior acts date that is on or before the effective date of this Contract. Coverage shall be maintained for the duration of the contractual agreement and for two (2) years following completion of Services provided. An annual certificate of insurance shall be submitted to the City to evidence coverage. 11.2 General Reauirements (a) The commercial general liability and automobile liability policies shall name the City as an additional insured thereon, as its interests may appear. The term City shall include its employees, officers, officials, agents, and volunteers in respect to the contracted Services. (b) The workers compensation policy shall include a Waiver of Subrogation (Right of Recovery) in favor of the City of Fort Worth. (c) A minimum of Thirty (30) days notice of cancellation or reduction in limits of coverage shall be provided to the City Ten (10) days notice shall be acceptable in the event of non- payment of premium Notice shall be sent to the Risk Manager City of Fort Worth, 1000 Throckmorton, Fort Worth, Texas 76102, with copies to the City Attorney at the same address. (d) The insurers for all policies must be licensed and/or approved to do business in the State of Texas. All insurers must have a minimum rating of A- VII in the current A.M. Best Key Rating Guide, or have reasonably equivalent financial strength and solvency to the satisfaction of Risk Management. If the rating is below that required, written approval of Risk Management is required. (e) Any failure on the part of the City to request required insurance documentation shall not constitute a waiver of the insurance requirement. (f) Certificates of Insurance evidencing that the Consultant has obtained all required insurance shall be delivered to the City prior to Consultant proceeding with any work pursuant to this Agreement. 12. COMPLIANCE WITH LAWS. ORDINANCES, RULES AND REGULATIONS. Both parties agree that in the performance of its obligations hereunder, it will comply with all applicable federal, state and local laws, ordinances, rules and regulations and that any work it produces in connection with this Agreement will also comply with all applicable federal, state and local laws, ordinances, rules and regulations. If the City notifies Consultant of any violation of such laws, ordinances, rules or regulations, Consultant shall immediately desist from and correct the violation. Professional Services Agreement F5 Networks, Inc. Page 7 of 15 Revised June 4, 2010 DocuSign Envelope ID: D3C33888-8AEE-473C-9737-3909B2D2C0D1 13. NON-DISCRIMINATION COVENANT. Consultant, for itself, its personal representatives, assigns, subcontractors and successors in Interest, as part of the consideration herein, agrees that in the performance of Consultant's duties and obligations hereunder, it shall not discriminate in the treatment or employment of any individual or group of individuals on any basis prohibited by law. If any claim arises from an alleged violation of this non-discrimination covenant by Consultant, its personal representatives, assigns, subcontractors or successors in interest, Consultant agrees to assume such liability and to indemnify and defend the City and hold the City harmless from such claim 14. NOTICES. Notices required pursuant to the provisions of this Agreement shall be conclusively determined to have been delivered when (1) hand -delivered to the other party, its agents, employees servants or representatives, (2) delivered by facsimile with electronic confirmation of the transmission, or (3) received by the other party by United States Mail, registered, return receipt requested, addressed as follows: City of Fort Worth Attn: Karen Montgomery, Assistant City Manager 1000 Throckmorton Fort Worth TX 76102-6311 Facsimile (817) 392-8654 15. SOLICITATION OF EMPLOYEES. F5 Networks, Inc. Attn: Legal Department Address 401 Elliott Ave West City, State, Zip: Seattle, WA 98119 Facsimile: (206) 272-5556 Neither the City nor Consultant shall, during the term of this agreement and additionally for a period of one year after its termination, solicit for employment or employ, whether as employee or independent contractor, any person who is or has been employed by the other during the term of this agreement, without the prior written consent of the person's employer provided, however, that this Section shall not restrict general advertisements of employment or the rights of any employee of one party, on that employee's own initiative, or in response to general advertisements, to seek employment from the other party and under such circumstances, for the other party to hire such employee. 16. GOVERNMENTAL POWERS/IMMUNITIES It is understood and agreed that by execution of this Agreement, the City does not waive or surrender any of its governmental powers or immunities. 17. NO WAIVER. The failure of the City or Consultant to insist upon the performance of any term or provision of this Agreement or to exercise any right granted herein shall not constitute a waiver of the City's or Consultant's respective right to insist upon appropriate performance or to assert any such right on any future occasion. 18. GOVERNING LAW / VENUE. This Agreement shall be construed in accordance with the laws of the State of Texas. If any action, whether real or asserted, at law or in equity, is brought pursuant to this Agreement, venue Professional Services Agreement F5 Networks, Inc. Page 8 of 15 Revised June 4, 2010 DocuSign Envelope ID: D3C3388B-8AEE-473C-9737-3909B2D2C0D1 for such action shall lie in state courts located in Tarrant County, Texas or the United States District Court for the Northern District of Texas, Fort Worth Division. 19. SEVERABILITY. If any provision of this Agreement is held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or Impaired. 20. FORCE MAJEURE. The City and Consultant shall exercise their best efforts to meet their respective duties and obligations as set forth in this Agreement, but shall not be held liable for any delay or omission in performance due to force majeure or other causes beyond their reasonable control, including but not limited to, compliance with any government law, ordinance or regulation, acts of God acts of the public enemy, fires, strikes, lockouts, natural disasters, wars riots, material or labor restrictions by any governmental authority, transportation problems and/or any other similar causes. 21. HEADINGS NOT CONTROLLING. Headings and titles used in this Agreement are for reference purposes only, shall not be deemed a part of this Agreement and are not intended to define or limit the scope of any provision of this Agreement. 22. REVIEW OF COUNSEL. The parties acknowledge that each party and its counsel have reviewed and revised this Agreement and that the normal rules of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of this Agreement or exhibits hereto. 23. AMENDMENTS. No amendment of this Agreement shall be binding upon a party hereto unless such amendment is set forth in a written instrument, which is executed by an authorized representative of each party 24. ENTIRETY OF AGREEMENT. This Agreement, including the schedule of exhibits attached hereto and any documents incorporated herein by reference, contains the entire understanding and agreement between the City and Consultant, their permitted assigns and successors in interest as to the matters contained herein Any prior or contemporaneous oral or written agreement is hereby declared null and void to the extent in conflict with any provision of this Agreement. 25. SIGNATURE AUTHORITY. The person signing this Agreement hereby warrants that he/she has the legal authority to execute this agreement on behalf of the respective party, and that such binding authority has been granted Professional Services Agreement F5 Networks, Inc. Page 9 of 15 Revised June 4, 2010 DocuSign Envelope ID• D3C3388B-8AEE-473C-9737-3909B2D2C0D1 by proper order, resolution, ordinance or other authorization of the entity. The other party is fully entitled to rely on this warranty and representation in entering into this Agreement 26. COUNTERPARTS. This Agreement may be executed in one or more counterparts and each counterpart shall, for all purposes, be deemed an original, but all such counterparts shall together constitute one and the same instrument. 27. WARRANTY OF SERVICES AND EXCEPTIONS. 27.1 Consultant warrants that its Services will be of a professional quality and conform to generally prevailing industry standards. City must give written notice of any breach of this warranty within thirty (30) days from the date that the Services are completed. In such event, at Consultant's option, Consultant shall either (a) use commercially reasonable efforts to re -perform the Services in a manner that conforms with this warranty, or (b) refund the fees paid by the City to Consultant for the nonconforming Services. After such time, any corrective Services requested by City shall be billed to City at F5's standard consulting rates then in effect and subject to scheduling availability of F5 personnel. City's sole remedy for a breach of the warranty described in Section 27.1 shall be re - performance of the non -conforming Services or to receive a refund of the pro rata amount of the fees allocable to such non -conforming Services, at Consultant's option. 27.2 CONSULTANT EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES EXPRESS OR IMPLIED INCLUDING ANY WARRANTIES OF MERCHANTABILITY FITNESS FOR A PARTICULAR PURPOSE OR NON -INFRINGEMENT. 27.3 Consultant's maximum liability for any breach of warranty hereunder shall be a refund of the applicable Services fees paid under this Agreement. City shall, under no circumstances except as specifically set forth in a separate software license agreement, be entitled to a refund of the license fees paid to Consultant. 28 MILESTONE ACCEPTANCE. Consultant shall verify the quality of each deliverable before submitting it to the City for review and approval. If applicable the City will review all deliverables to determine their acceptability and signify acceptance by execution of the Milestone Acceptance Form, which is attached hereto as Exhibit "C.' If the City rejects the submission, it will notify the Consultant in writing as soon as the determination is made listing the specific reasons for rejection. The Consultant shall have ten (10) days to correct any deficiencies and resubmit the corrected deliverable. Payment to the Consultant shall not be authorized unless the City accepts the deliverable in writing in the form attached. The City's acceptance will riot be unreasonably withheld 29. NETWORK ACCESS. If Consultant requires access to the City's computer network in order to provide the Services herein, Consultant shall execute the Network Access Agreement which is attached hereto as Exhibit "D" and incorporated herein for all purposes. Professional Services Agreement F5 Networks, Inc. Page 10 of 15 Revised June 4, 2010 DocuSign Envelope ID: D3C3388B-8AEE-473C-9737-3909B2D2C0D1 30. IMMIGRATION NATIONALITY ACT. The City of Fort Worth actively supports the Immigration & Nationality Act (INA) which includes provisions addressing employment eligibility employment verification, and nondiscrimination. Consultant shall verify the identity and employment eligibility of all employees who perform work under this Agreement. Consultant shall complete the Employment Eligibility Verification Form (1-9) for each employee who performs work under this Agreement Consultant shall establish appropriate procedures and controls so that no Services will be performed by any employee who is not legally eligible to perform such Services. Upon the City's request, Consultant shall provide City with a certification letter that it has complied with the verification requirements required by this Agreement. Consultant shall indemnify City from any penalties or liabilities due to violations of this provision. City shall have the right to immediately terminate this Agreement for violations of this provision by Consultant. 31. INFORMAL DISPUTE RESOLUTION. Except in the event of termination pursuant to Section 4.2, or misuse of a party's intellectual property, if either City or Consultant has a claim, dispute or other matter in question for breach of duty, obligations, Services rendered or any warranty that arises under this Agreement, the parties shall first attempt to resolve the matter through this dispute resolution process The disputing party shall notify the other party in writing as soon as practicable after discovering the claim, dispute, or breach The notice shall state the nature of the dispute and list the party's specific reasons for such dispute Within ten (10) business days of receipt of the notice both parties shall commence the resolution process and make a good faith effort, either through email, mail, phone conference, in person meetings or other reasonable means to resolve any claim, dispute, breach or other matter in question that may arise out of or in connection with this Agreement. If the parties fail to resolve the dispute within sixty (60) days of the date of receipt of the notice of the dispute, then the parties may submit the matter to non -binding mediation in Tarrant County, Texas, upon written consent of authorized representatives of both parties in accordance with the Industry Arbitration Rules of the American Arbitration Association or other applicable rules goveming mediation then in effect. The mediator shall be agreed to by the parties. Each party shall be liable for its own expenses, including attorney's fees; however the parties shall share equally in the costs of the mediation. If the parties cannot resolve the dispute through mediation, then either party shall have the right to exercise any and all remedies available under law regarding the dispute. Notwithstanding the fact that the parties may be attempting to resolve a dispute in accordance with this informal dispute resolution process the parties agree to continue without delay all of their respective duties and obligations under this Agreement not affected by the dispute Either party may, before or during the exercise of the informal dispute resolution process set forth herein, apply to a court having jurisdiction for a temporary restraining order or preliminary injunction where such relief is necessary to protect its interests. [SIGNATURE PAGE FOLLOWS] Professional Services Agreement F5 Networks, Inc. Page 11 of 15 Revised June 4, 2010 DocuSign Envelope ID: D3C3388B-8AEE-473C-9737-3909B2D2C0D1 Date: ATTEST: By: ININITNESS WHFP1E0F, the parties hereto have executed this Agreement in multiples this (I ' day of 0eO131/4.../" , 20 . ACCEPTED AND AGREED: CITY OF FORT !NORTH: Karen L. Montgomery Assistant City Manager /°b. //0 Marty Hend City Secretary APPROVED AS TO FORM AND LEGALITY: By: ..i Maleshla B. Farmer Assistant City Attorney CONTRACT AUTHORIZATION: M&C: OWL QMtUA. Date Approved: Professional Services Agreement F5 Networks, Inc. Page 12 of 15 40( Date: NAME OF CONSULTANT: F5 NETWORKS, INC. 950A74AC58 C D480... By: Petgla------ Nan';u: Paul Ves ierper_j Title: Di rector, consulting 10/6/2010 North Arne ri ca 0 o0() aa noon ` ' UA von �.o-pau�Zg �y FOir4Nz ri 4%r 8 Pf °ID . 1 0 lir °o Ably') 40 o !�M d Pilthd1 a ri r e ao�.? C cf 000 AI OFFICIAL RECORD CITY SECRETARY Ft WORTH, TX Revised June 4, 2010 DocuSign Envelope ID: D3C3388B-8AEE-473C-9737-3909B2D2C0D1 glen townsend 6/22/2010 OV610_718 JUl 1 9 20I0 � M � iees-Pci2- f .• 4: F5 Networks Consulting Services Statement of Work City of Fort Worth BigIP: Local Traffic Manager OFFICIAL RECORD CITY SECRETARY Ft WORTH, TX A 1 DocuSign Envelope ID: D3C3388B-8AEE-473C-9737-3909B2D2C0D1 F5 Networks Consulting Services Statement of Work Table of Contents Revision History 2 Customer Participants 3 F5 Networks Participants 3 F5 Networks Reseller Participants 4 F5 Networks Product(s) 5 S ite Addresses 5 Executive Summary 6 Functional Requirements 7 P roject Outline 8 Consulting Services Estimate 9 S ite Specific Engagement Pre -Requisites 10 General Technical Requirements 11 General Terms and Conditions 12 Glossary 13 Acceptance 14 Deliverables Sign -Off 15 1 Confidential Commercial Communication and Content DocuSign Envelope ID: D3C3388B-8AEE-473C-9737-3909B2D2C0D1 F5 Networks Consulting Services Statement of Work Revision History Revision Author Date Section Comment 000 Glen Townsend 6/21/2010 All Initial revision 001 Glen Townsend 6/28/2010 All Initial revision 2 Confidential Commercial Communication and Content DocuSign Envelope ID: D3C3388B-8AEE-473C-9737-3909B2D2C0D1 F5 Networks Consulting Services Statement of Work Customer Participants Engagement Owner Sean Malone Invoicing Contact Technical Contact Backup Technical Contact FS Networks Participants Professional Services Account Executive Diane Cawley Product Sales Account Executive Shane Collins Phone Phone Phone Phone Phone +1 708-212-6297 I Phone I +1-972-523-1056 Email Sean Malone@fortworthgov.org Email Email Email I Email I d.cawely@f5.com I Email I s.collins@f5.com 3 Confidential Commercial Communication and Content DocuSign Envelope ID: D3C3388B-8AEE-473C-9737-3909132D2C0D1 F5 Networks Consulting Services Statement of Work F5 Networks Reseller Participants Reseller Name Dell Reseller Representatives 1 I Phone Phone Email Email 4 Confidential Commercial Communication and Content DocuSign Envelope ID: D3C3388B-8AEE-473C-9737-3909B2D2C0D1 F5 Networks Consulting Services Statement of Work F5 Networks Product(s) (Example: LTM, GTM, ASM, FirePass, Web Accelerator, EMI ARX, etc) ( F5 Networks Product Chassis Version LTM Location Site Addresses All onsite work is expected to be executed at the address below, unless stated otherwise. Address (Ship To Address) 1000 Throckmorton St Fort Worth TX 76102 Maintenance Window 5 Confidential Commercial Communication and Content DocuSign Envelope ID: D3C3388B-8AEE-473C-9737-3909B2D2C0D1 F5 Networks Consulting Services Statement of Work Executive Summary F5 Networks has received a request from City of Fort Worth to deliv ngineering labor. F5 Networks has responded with this Statement of Work (SOW"). This SOW describes the technical details of the project, the equipment involved and the terms under which F5 Networks will engage to deliver. Finally, this document estimates a number of ngineering hours to fulfill the list of engagement deliverables. 6 Confidential Commercial Communication and Content DocuSign Envelope IDA D3C3388B-8AEE-473C-9737-3909B2D2C0D1 F5 Networks Consulting Services Statement of Work Functional Requirements The City of Fort Worth currently has four servers each running two instances of the Weblogic Peoplesoft application. Instances on two servers are for an external facing web site, and instances on the remaining two servers are for the internal site. F5 Professional services will assist in implanting the Local Traffic Manager (LTM) appliance for the two applications to provide Secure Sockets Layer (SSL) off load to the LTM. 7 Confidential Commercial Communication and Content DocuSign Envelope ID: D3C3388B-8AEE-473C-9737-3909B2D2C0D1 F5 Networks Consulting Services Statement of Work Project Outline F5 Professional services will perform the following tasks: Configure LTM • Two SSL virtual Servers • Import SSL certificates provided by the City of Fort Worth • Enable Cookie Persistence • Assist with testing of applications and provide any necessary trouble shooting. II. Standard Documentation will include: Overview description of the new network design and deployment Equipment configuration information and settings Updated network diagram depicting new implementation Overview of support and maintenance procedures for purchased products Best practices towards the GTM and LTM product lines as applicable to the client. • • • • • III. Knowledge Transfer to Customer IT Staff: As time permits, the assigned F5 engineer will review the new configuration and prepared documentation with Customer and give an overview on the operation procedures of the new equipment. This task will be completed at the end of the project utilizing any remaining time. IV. Support Handoff to Customer IT Staff: The Support handoff call will cover the following: • F5 Company Values • Professional Services Organizational Chart • Customer Support Levels • Professional Services World Wide Overview • How to Access Network Support • Support Portal • AskF5 Online Portal • Opening a Case • Information required to open a Case • Case Prlonty Level Structure • Priority Level Response Time • Escalation flowchart • F5 Network support Charter 8 Confidential Commercial Communication and Content DocuSign Envelope ID: D3C3388B-8AEE-473C-9737-3909B2D2C0D1 F5 Networks Consulting Services Statement of Work Consulting Services Estimate It ►s estimated that the fulfillment of deliverables may take up to 2 consecutive business days. Estimated Total Project Hours up to 16 hours Subtotal Estimated Business Hours (SKU # F5-CST-S) up to 00 hours Subtotal Estimated Non -Business Hours (SKU # F5-CST-P) up to 0 hours (Non -Business hours apply weekends, holidays, and weekdays before 7am and after 6pm) 9 Confidential Commercial Communication and Content DocuSign Envelope ID* D3C3388B-8AEE-473C-9737-3909B2D2C0D1 F5 Networks Consulting Services Statement of Work Site Specific Engagement Pre -Requisites Prior to the consultant making travel plans, the engagement owner must assure • The City of Fort Worth will retrieve SSL certificate (SSL Key and Cert) and provide to the F5 Consultant to import the Key and Cert to the LTM. • Application servers will be configured and ready for application testing. 10 Confidential Commercial Communication and Content DocuSign Envelope ID: D3C3388B-8AEE-473C-9737-3909B2D2C0D1 F5 Networks Consulting Services Statement of Work General Technical Requirements Any items requested "Upon commencement" should be provided as soon as possible after acceptance of this SOW, preferably prior to any travel required. Failure to meet any of these conditions timely may adversely impact F5 Networks Consulting Practice's ability to fulfill one or more stated deliverables or adversely impact the engagement timeline All F5 Networks equipment must be covered by a current support entitlement contract. Evaluation licenses or hardware must be converted to fully licensed and entitled levels before commencement of the engagement. GUI and command line access to F5 Networks hardware and use of a dedicated workstation must be provided for configuration/testing purposes. (The dedicated workstation would preferably be the Consultant's own laptop, however if security prevents connection to the network, a customer -provided workstation for the Consultant's exclusive use must be provided.) Connectivity requirements include: • Administrative IP addresses for all F5 Networks hardware to be configured • Login credentials for all F5 Networks hardware to be configured • Network connectivity to all F5 Networks hardware from the Consultant's location (meeting room, cubicle etc) via SSH (tcp/22) and HTTPS (tcp/443) • Any other requirements such as TACACS and proxy username and password • Direct physical console access may also be required to facilitate network reconfiguration or upgrades During the full course of the engagement, customer will provide F5 Networks with appropriate guidance and technical resources including detailed information and hands-on assistance as required for the successful progress of the project. Specifically, customer's designated network, firewall, and router administrators will be readily available to the F5 Networks engineer as required so progress towards the successful completion of this project can be made. 11 Confidential Commercial Communication and Content DocuSign Envelope ID: D3C3388B-8AEE-473C-9737-3909B2D2C0D1 F5 Networks Consulting Services Statement of Work General Terms and Conditions A purchase order for the full amount of the estimated cost is required prior to scheduling the engagement. This SOW is subject to and incorporated by ttgie reference into the.Cet etrit;61,1 3d1 Due to the flexible nature of F5 Networks products and deployment options, F5 Networks will not provide or infer any guarantee or assurances that the Customer's use of the product is correct from the standpoint of F5 Networks' recommended configurations. All deliverables or consulting efforts that reference recommended practices or configurations may produce several configuration solutions that fall within the recommended practices or configuration umbrella. The Customer's application and business requirements will dictate configuration direction and F5 Networks will provide appropriate and alternate recommendations based on solutions according to a number of factors, including but not limited to security, performance, features, functionality, troubleshooting, supportability, and manageability. Several of these factors may have a contradictory effect on other aspects to the application or network architecture; therefore, judicious application of any configuration recommendations resulting from this engagement will require the Customer to perform a thorough evaluation of any potential advantages or disadvantages Due to the inherent nature of certain support cases and the F5 Support process, F5 Consulting may not be able to address support cases as effectively as the F5 Support center. F5 Consulting will not address existing open support issues during this engagement unless the support case and remedial efforts towards resolution are explicitly defined in this SOW The project hours specified in the Consulting Services Estimate section have been estimated to perform the tasks listed on a time and materials basis. Any additional time required to correct unforeseen problems or to address changes to the initial requirements may affect the ability to complete the deliverables within the time estimated. Any adjustment that adds time to the Consulting Services Estimate will be at the mutual discretion of the Customer and F5 Networks. On -site services must be purchased for a period of time no less than two consecutive calendar days. Customer will be invoiced at the completion of the project and/or at the conclusion of each calendar month for actual hours worked, subject to applicable minimums plus expenses. Customer will not be invoiced for hours that are unused F5 Networks will invoice all hours consumed and expenses accrued at the end of the month regardless of engagement status on the final day of the month. At any time Customer may elect to terminate the engagement for barriers encountered. Exhausted hours will terminate the engagement unless other arrangements are made with F5 Networks. Travel expenses, if quoted, are estimates. Actual expenses will be billable to customer unless quoted as ' not to exceed". 12 Confidential Commercial Communication and Content DocuSign Envelope ID: D3C3388B-8AEE-473C-9737-3909B2D2C0D1 F5 Networks Consulting Services Statement of Work Glossary APM Access Policy Manager ASM Application Security Manager DM Data Manager DNS Domain Name Service EM Enterprise manager FP Fire Pass GTM Global Traffic Manager GUI Graphical User Interface HTTP Hypertext Transfer Protocol IP Internet Protocol LC Link Controller LTM Local Traffic Manager LTM VE Local Traffic Manager Virtual Edition HTTPS Secure Hypertext Transfer Protocol SSH Secure Shell SKU Stock Keeping Unit TACACS Terminal Access Controller Access -Control System TCP Transmit Control Protocol UDP User Datagram Protocol WOM Wan Optimization Module WA Web Accelerator 13 Confidential Commercial Communication and Content DocuSign Envelope ID: D3C3388B-8AEE-473C-9737-3909B2D2C0D1 r F5 Networks Consulting Services Statement of Work Piece ttame If this Statement of Work is acceptable, please sign below and fax back to (206) 272-5568 along with a purchase order for the quoted amount. We look forward to working with you on this project. Thank you for choosing F5 Networks' City of Fort Worth A des. Authorized Signature .t arcn L : Montgomery Assistant City Manaw ...._,...r .._.S.,..•.w ....._.. 0/2/70 Date a. �•�...��a yr.J- Y-W':I�\'AY:a s.J-+NJL.�ti�_._ IVY—NrWG v-'.�W1J '.�uu.- .---. •�•r.�-.•�W��! .A •v a emit • 'J•Y'.�Y�.J�. Printed Name Title F5 Networks '9501\74AC58Cfl4R0... AL l i±4d J1ghki¢-besper Paul vesper Printed Name &IMPROVED _ TO VORN AND Y. ; _ 3ji): Assistan OFFICIAL RECORD CITY SECRETARY Ft WORTH, TX - •..�..,._�. -, No 10/6/2010 Date 11. Director, consulting North Americz Title 14 Confidential Commercial Communication and Content DocuSign Envelope ID: D3C3388B-8AEE-473C-9737-3909B2D2C0D1 F5 Networks Consulting Services Statement of Work Deliverables Sign -Off Delivery Consultant: Designated Frigagerrnent Manager A single customer employee must be identified below as the party responsible for engagement management. This person will guide the Consultant's efforts to achieve goals, and is hereby authorized to sign off on the completed deliverables to facilitate billing. Name: Title: Desk Phone: Deliverable Configure LTM Standard Documentation Email: Authorized Signature Date D=Delivered A=Abandoned Date Initials Status Printed Name Title 15 Confidential Commercial Communication and Content OFFICIAL RECORD CITY SECRETARY FT. WORTH, TX EXHI DIR Contract No. DIR-SDD-890 STATE OF TEXAS DEPARTMENT OF INFORMATION RESOURCES CONTRACT FOR PRODUCTS AND RELATED SERVICES DELL MARKETING, L.P. 1. Introduction A. Parties This Contract for products and related services is entered into between the State of Texas, acting by and through the Department of Information Resources (hereinafter "DIR") with its principal place of business at 300 West 15th Street, Suite 1300, Austin, Texas 78701, and Dell Marketing, L.P. (hereinafter "Vendor"), with its principal place of business at One Dell Way, MS RR8-06, Round Rock, 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-SDD-TMP-120, on April 1, 2008, for Dell -Branded Hardware Products and Related Services. Upon execution of this Contract, a notice of award for RFO DIR-SDD-TMP-120 shall be posted by DIR on the Electronic State Business Daily. C. Order of Precedence This Contract; Appendix A, Standard Terms and Conditions For Products and Related Services Contracts; Appendix B, Vendor's Historically Underutilized Businesses Subcontracting Plan; Appendix C, Product and Pricing Index; Appendix D, Customer Master Services Agreement; Exhibit 1, Vendor's Response to RFO DIR-SDD-TMP-120, including all addenda; and Exhibit 2, RFO DIR-SDD-TMP-120, including all addenda; are incorporated by reference and constitute the entire agreement between DIR and Vendor. In the event of a conflict between the documents listed in this paragraph, the controlling document shall be this Contract, then Appendix A, then Appendix B, then Appendix C, then Appendix D, then Exhibit 1 and finally Exhibit 2. In the event and to the extent any provisions contained in multiple documents address the same or substantially the same subject matter but do not actually conflict, the more recent provisions shall be deemed to have superseded earlier provisions. 2. Term of Contract The term of this Contract shall be one (1) year commencing on the last date of approval by DIR and Vendor. Prior to expiration of the original term, DIR and Vendor may extend the Contract, upon mutual agreement, for up to three (3) optional one- ear terms. OFFICIAL RECORD CITY SECRETARY Ft WORTH, TX Page 1 of 15 DIR Contract No. DIR-SOD-890 3. Product and Service Offerings A. Products Products available under this Contract are limited to IT technology products, as defined in the State of Texas Government Code, Chapter 2157 as sold by Vendor, whether Dell -branded or third party products. Vendor may incorporate changes to their product offering however, any changes must be within the scope of products awarded based on the posting described in Section 1.B above. B. Services Services available under this Contract are limited to services related to IT Technology Products descnbed in Section 3.A. above Vendor may incorporate changes to their service offering; however, any changes must be within the scope of services awarded based on the posting described in Section 1.B above 4. Pricing A. Manufacturer's Suggested Retail Price (MSRP) MSRP is defined as Dell s published retail price. B. Customer Discount The minimum Customer discount for all products and services will be the percentage off MSRP as detailed in Appendix C Product and Pricing Index. Vendor agrees that the DIR standard pricing discounts contained in Appendix C will remain one percent (1%) better than the Western States Contracting Alliance (WSCA) Category A level, standardized discounts. This extension of competitive volume sales pricing is intended solely to insure that DIR will, at a minimum, remain competitive with the standard price rates set for WSCA as a whole. DIR may not apply, without the express consent of Vendor, any pre-existing discount structure to the WSCA pricing being offered to DIR by Vendor. DIR may either use DIR discounted pricing or the WSCA pricing but may not combine or compound the two. In the event that DIR pricing fails to remain competitive to WSCA standardized, category level pncmg, Vendor shall extend such pricing to DIR Vendor shall use its commercially reasonable best efforts to notify DIR of such WSCA pnce change and amend this Contract within thirty (30) days after the amendment to the Vendor's WSCA contract The introduction of the WSCA pricing to the DIR contract shall be effective from the date of execution into the Contract by amendment. Both parties agree that the pricing shall not be retroactive for DIR and shall not extend back to the date that Vendor reduced WSCA catalog pricing. Further, the parties agree that DIR, or the State of Texas, does not have the right to audit the WSCA contract held by the Vendor. References to the Vendor's WSCA contract are only contained in this Contract for purposes of referencing the pricing discounts contained therein. Both parties acknowledge that the Vendor's WSCA contract and pricing are readily available to the public and may be freely accessed by the internet for the purposes of validation under the terms and conditions of this Contract. Page 2 of 15 DIR Contract No. DIR-SDD-890 C. Customer Price 1) The price to the Customer shall be calculated as follows: Customer Price = MSRP - Customer Discount 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 DIR upon request. 3) During the term of this Contract, and except for promotional offers, if substantially the same or a smaller quantity of the same product or type of service is sold by the Vendor under like terms and conditions outside of this Contract at a lower price the price under this Contract shall be immediately reduced to the lower price. D. DIR Administrative Fee The administrative fee specified in Section 5 below shall not be broken out as a separate line item when pricing or invoice is provided to Customer E. Shipping and Handling Fees The price to the Customer under this Contract shall include all shipping and handling fees Shipments will be Free On Board Customer's destination. No additional fees shall be charged to the Customer for standard shipping and handling. If the Customer requests expedited delivery, Customer will be responsible for any charges for expedited delivery. Title to all products shall pass upon shipment from Vendor's dock Risk of loss shall pass to the Customer upon delivery. F. Tax -Exempt As per Section 151.309, Texas Tax Code, Customers under this Contract are exempt from the assessment of State sales, use and excise taxes Further, Customers under this Contract are exempt from Federal Excise Taxes, 26 United States Code Sections 4253(i) and (j). For any Customers who are not tax exempt, Vendor reserves the right to charge applicable taxes. G. Travel Expense Reimbursement Pricing for services provided under this Contract are exclusive of any travel expenses that may be incurred in the performance of those services. Travel expense reimbursement may include personal vehicle mileage or commercial coach transportation, hotel accommodations, parking and meals; provided, however, the amount of reimbursement by Customers shall not exceed the amounts authorized by the current State Travel Regulations. Travel time may not be included as part of the amounts payable by Customer for any services rendered under this Contract. The DIR administrative fee specified in Section 5 below is not applicable to travel expense reimbursement. Anticipated travel expenses must be pre -approved in writing by Customer Page 3 of 15 DIR Contract No. DIR-SDD-890 H. Changes to Prices Vendor may change the price of any product or service at any time, based upon changes to the MSRP, but discount levels shall remain consistent with the discount levels specified in this Contract. Price decreases shall take effect automatically during the term of this Contract and shall be passed onto the Customer immediately at the time of submission of a purchase order, but shall not be retroactive to products for which a purchase order has been received, or for services currently being rendered under a prior purchase order. 5. DIR Administrative Fee A) The administrative fee to be paid by the Vendor to DIR based on the dollar value of all sales to Customers pursuant to this Contract Contract is one quarter of one percent (0.25%). Payment will be calculated for all sales, net of returns and credits. For example the admimstrative fee for sales totaling $100,000 shall be $250.00. B) All prices quoted to Customers shall include the administrative fee. DIR reserves the nght to change this fee upwards or downwards during the term of this Contract, upon wntten notice to Vendor. Any change in the administrative fee shall be incorporated in the price to the Customer. 6. Notification All notices under this Contract shall be sent to a party at the respective address indicated below. If sent to the State: Sherri Parks, Director Contracting & Procurement Services Department of Information Resources 300 W. 15th St. Suite 1300 Austin, Texas 78701 Phones (512) 475-4700 Facsimile: (512) 475-4759 Email: sherri parks@dir.state.tx.us 7. Software License and Service Agreements If sent to the Vendor: Lorri Bailey Dell Marketing L.P. One Dell Way, M/S RR8-35 Austin, TX 78682 Phone: (512) 723-0016 Facsimile: (877) 248 3734 Email: LorriBailey@Dell com A. Software License Agreement Compliance with any Software License Agreement sold through this Contract is the responsibility of the Customer DIR shall not be responsible for any Customer's compliance with any Software License Agreement. If DIR purchases software licenses for its own use under this Contract, it shall be responsible for its compliance with the Software License Agreement terms and conditions. B. Shrink/Click-wrap License Agreement Vendor may sell third -party shrink/chck-wrap software products as awarded under this Contract. All software sold is subject to the license agreement provided with the Page 4 of 15 DIR Contract No. DIR-SDD-890 software by the publisher. Customers are bound by, and will abide by all such software licensing agreements. C. Service Agreement Services provided under this Contract shall be in accordance with the Service Agreement as set forth in Appendix D of this Contract. No changes to the Service Agreement terms and conditions may be made unless previously agreed to by Vendor and DIR. 8. Authorized Exceptions to Appendix A, Standard Terms and Conditions for Product and Related Services Contracts. 1. Appendix A, Section 5.A.2., Electronic and Information Resources Accessibility Standards, As Required by 1 TAC Chapter 213 (Applicable to State Agency and Institution of Higher Education Purchases Only), is hereby restated in its entirety as follows: 2) Upon request by DIR, Vendor shall provide DIR with the URL to its Voluntary Product Accessibility Template (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 product/service accessibility information is available from the General Services Administration "Buy Accessible Wizard" (htto://www.buvaccessible 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 the ' Buy Accessible Wizard' or obtaining a copy of the VPAT is located at http://www.section508.gov/. 2. Appendix A, Section 5.B.3., Purchase of Commodity Items (Applicable to State Agency Purchases Only) is hereby restated in its entirety as follows: 3) Vendor agrees to coordinate all State agency commodity item sales by Vendor are through existing DIR contracts. Vendor shall use commercially reasonable efforts so that Order Fulfillers shall sell or license commodity items under this Contract. Vendor will include this term as a standard term in its Order Fulfiller contracts. Institutions of higher education are exempt from this Subsection 5 B 3. Appendix A, Section 6.A , Service, Sales and Support of the Contract is hereby restated in its entirety as follows: A. Service, Sales and Support of the Contract Vendor shall provide service, sales and support resources to serve all Customers throughout the State. It is the responsibility of the Vendor to sell, market, and promote products and services available under the Contract. Vendor shall use its best efforts to ensure that potential Texas Customers are made aware of the existence of the Contract All sales to Customers for products and services available under the Page 5 of 15 DIR Contract No. DIR-SDD-890 Contract shall be processed through the Contract when Customer specifies this Contract number on the Purchase Order. 4. Appendix A, Section 6.D., Customer Site Preparation is hereby restated in its entirety as follows: D. Customer Site Preparation Customers shall prepare and maintain its site in accordance with written instructions furnished by Vendor or Order Fulfiller prior to the scheduled delivery date of any product or service and shall bear the costs associated with the site preparation. 5. Appendix A, Section 6.E.1., Vendor Website is hereby restated in its entirety as follows: 1) Vendor Website Vendor will maintain a website specific to the products and services being offered under the Contract which is clearly distinguishable from other, non-DIR contract offerings at the Vendor's website. The website must include at a minimum: A. The Contract number and a statement that the customer must reference the Contract Number on their purchase order B. A statement designating who can procure through the Contract C. All products and services offered under the contract D All product and services specifications for products offered under the contract E Current Contract pricing F. Contact information for Vendor business segments (i.e. State and Local, Higher Education, K-12, Health, etc.) G. Named Order Fulfillers and contact information for each designated Order Fulfiller H. Instructions for obtaining quotes and placing Purchase Orders through Dell direct or through a designated Order Fulfiller I. Warranty policy terms and conditions J. Return policy terms and conditions. The Vendor's website shall list the DIR Contract number, reference the DIR Go DlRect program, display the DIR logo in accordance with the requirements in paragraph F of this Section, and contain a link to the DIR website for the Contract. 6. Appendix A, Section 6.E.3., Website Compliance Checks is hereby restated in its entirety as follows: 3) Website Compliance Checks Periodic compliance checks of the mformation posted for the Contract on Vendor's website will be conducted by DIR Upon request by DIR, Vendor shall use commercially reasonable efforts to provide verifiable documentation that pricing listed upon this website is uniform with the pricing as stated in Section 4 of the Page 6 of 15 DIR Contract No. DIR-SDD-890 Contract within thirty (30) days of the request. 7. Appendix A, Section 6.E.5., Use of Access Data Prohibited is hereby restated in its entirety as follows: 5) Use of Access Data Prohibited If Vendor stores, collects or maintains data electronically as a condition of accessing Contract information, such data shall only be used internally by Vendor for the purpose of implementing or marketing the Contract, and shall not be disseminated to third parties other than Order Fulfillers or Subcontractors, as necessary, or used for other marketing purposes. The Contract constitutes a public document under the laws of the State and Vendor shall not restrict access to Contract terms and conditions including pricing, so long as DIR publically posts the document. However, Vendor may agree with an individual Customer to implement security measures such as password protected online ordering. Upon request, Vendor shall provide DIR with a list of any Premier Pages existing under this Contract. By purchasing under this Contract, a Customer acknowledges that DIR may request from Customer "read only access" to Customer s online ordering page with Vendor that is under this Contract (also known as a Dell Premier Page). 8. Appendix A, Section 6.H., Trade Show Participation is hereby restated in its entirety as follows: H. Trade Show Participation At DIR'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 four months advance notice of any required participation. Vendor must display the DIR logo at all trade shows in the State 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. 9. Appendix A, Section 6.K., DIR Cost Avoidance is hereby restated in its entirety as follows: K. DIR Cost Avoidance As part of the performance measures reported to state leadership, DIR must provide the cost avoidance the State has achieved through the Contract. Vendor shall make available to DIR a detailed report of the following information regarding a representative sample of products sold under the Contract: product part number and price to Customer under the Contract. Such information may be made available through Vendor's website. Page 7 of 15 DIR Contract No. DIR-SDD-890 10. Appendix A, Section 7.A., Purchase Orders is hereby restated in its entirety as follows: A Purchases Orders All Customer Purchase Orders will be placed directly with the Vendor and/or the Order Fulfiller Accurate Purchase Orders shall be effective and binding upon Vendor when accepted by Vendor. Customer shall have the ability to order products through electronic or paper submissions of purchase orders. 11. Appendix A, Section 7.B., Invoices is hereby restated in its entirety as follows: B. Invoices 1) Invoices shall be submitted by Vendor or the Order Fulfiller directly to the Customer and shall be issued in compliance with Chapter 2251, Texas Government Code. All payments for products and/or services purchased under the Contract and any provision of acceptance of such products and/or services shall be made by the Customer to Vendor or the Order Fulfiller. 2) Invoices must be timely and accurate Each invoice must match Customer's Purchase Order and include any written changes that may apply, as it relates to products, prices and quantities. Invoices must include the Customer's Purchase Order number or other pertinent information for verification of receipt of the product or services by the Customer. 12. Appendix A, Section 7.D., Acceptance is hereby added in its entirety as follows: D. Acceptance A Customer shall determine whether all Products and Services delivered meet the Vendor's published specifications. No payment shall be made for any Products or Services until the Customer has accepted the Products or Services. Unless otherwise agreed upon between the Customer and the Vendor, the Customer shall within fifteen (15) calendar days from the date of the receipt of the Vendor's invoice issue a written notice of partial acceptance or rejection of the Products or Services; otherwise, the Product or Services shall be deemed accepted 13. Appendix A, Section 8.A.2., Vendor Contract Administrator is hereby restated in its entirety as follows: 2) Vendor Contract Administrator Vendor shall provide a dedicated Contract Administrator whose duties shall include but not be limited to: i) supporting the marketing and management of the Contract, ii) facilitating dispute resolution between Vendor or a Order Fulfiller and a Customer, and iii) advising DIR of Vendor s or Order Fulfiller's performance under the terms and conditions of the Contract. DIR reserves the right to require a change in Vendor's then -current Contract Administrator if the assigned Contract Administrator is not, in Page 8 of 15 DIR Contract No. DIR-SDD-890 the opinion of DIR, adequately serving the needs of the State. In such instance, Vendor requests twenty (20) calendar days notice. 14. Appendix A, Section 8.B.1., Reporting Responsibility is hereby restated in its entirety as follows: 1) Reporting Responsibility a) Vendor shall be responsible for reporting all products and services purchased from Vendor or through Order Fulfillers under the Contract. Vendor shall file the monthly reports which contain sales by Order Fulfillers and pay the administrative fees in accordance with the due dates specified in this section. b) DIR shall have the right to verify required reports and to take any actions necessary to enforce its rights under this section, including but not limited to compliance checks of Vendor's purchase orders and invoices at DIR's expense. Upon receipt of ten (10) days notice, Vendor shall grant DIR, during normal business hours, necessary access to Customer purchase orders and invoices generated under and pertaining to this Contract. 15. Appendix A, Section 8.B.2., Detailed Monthly Report is hereby restated in its entirety as follows: 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 month period. Reports shall be submitted to the DIR Go DlRect Coordinator. Reports are due on the fifteenth (15th) calendar day after the close of the previous month period, unless such day falls on a weekend or holiday, and then the report shall be sent to DIR on the first business day thereafter It is the responsibility of the Vendor to collect and compile all sales under the Contract from participating Order Fulfillers and submit one (1) monthly report. The monthly report shall include, per transaction: the detailed sales for the period the Order Fulfiller's company name, Customer name, invoice date, invoice number, description, part number, manufacturer, quantity, unit price, extended price, Customer Purchase Order number, contact name, Customer's complete billing address, and other information as required by DIR Each report must contain all information listed above per transaction or the report will be rejected and returned to the Vendor for correction in accordance with this section 16. Appendix A, Section 8.B.3.a., Historically Underutilized Businesses Subcontract Report is hereby restated in its entirety as follows: a) Vendor shall electronically provide DIR with a listing of their relevant purchases from Vendor or through Order Fulfillers under this Contract so DIR and Customer can compile the appropriate Historically Underutilized Business Subcontracting Report, pursuant to the Contract as required by Chapter 2161, Texas Government Code. Such listing of purchases shall be on the monthly report Page 9 of 15 DIR Contract No. DIR-SDD-890 17. Appendix A, Section 8.B.4.a., DIR Administrative Fee is hereby restated in its entirety as follows: a) An administrative fee shall be paid by Vendor to DIR to defray the DIR costs of negotiating, executing, and administering the Contract. The administrative fee is specified in Section 5 of the Contract. Payment of the administrative fee shall be due thirty (30) calendar days after the close of the previous month period. 18. Appendix A, Section 8.C.2., Records and Audit is hereby restated in its entirety as follows: 2) Vendor shall maintain adequate records to establish compliance with the Contract until the later of a period of four (4) years after termination of the Contract or until full, final and unappealable resolution of all Compliance Check or litigation issues that arise under the Contract. Such records shall include the monthly DIR reports that contain: Customer name, invoice date, invoice number description, quantity, unit price, extended price, Customer Purchase Order number, contact name Customer's complete billing address, the calculations supporting each administrative fee owed DIR under the Contract Historically Underutilized Businesses Subcontracting reports, and such other reasonable documentation as DIR may request. 19. Appendix A, Section 8.C.3., Records and Audit is hereby restated in its entirety as follows: 3) Vendor shall grant access to items retained by Vendor in accordance with generally accepted accounting principles relating to the requirements of this Contract and relevant to the performance of the Contract to DIR, including the compliance checks designated by DIR, the State Auditor's Office and of the United States, and such other persons or entities designated by DIR for the purposes of inspecting, Compliance Checking and/or copying such books and records. Vendor shall provide electronic copies requested by DIR without charge. DIR shall provide Vendor ten (10) business days notice prior to inspecting, Compliance Checking, and/or electronic records, shall be made available during regular office hours. Vendor personnel familiar with the Vendor's books and records shall be available to DIR staff and designees as needed. Page 10 of 15 DIR Contract No. DIR-SDD-890 20. Appendix A, Section 9.A., Indemnification is hereby restated in its entirety as follows: A. Indemnification 1) Acts or Omissions Vendor shall indemnify and hold harmless the State of Texas and Customers, AND/OR THEIR OFFICERS, AGENTS, EMPLOYEES, REPRESENTATIVES, FROM AND AGAINST ANY AND ALL ACTIONS, CLAIMS, DEMANDS, OR SUITS, AND ALL RELATED COSTS, ATTORNEY FEES AND EXPENSES arising out of, and that result in personal injury or damage to physical property resulting from any acts or omissions of the Vendor or its agents, employees, subcontractors, Order Fulfillers, in the execution or performance of the Contract and any Purchase Orders issued under the Contract. THE DEFENSE SHALL BE COORDINATED BY THE OFFICE OF THE ATTORNEY GENERAL FOR TEXAS STATE AGENCIES AND BY CUSTOMER'S LEGAL COUNSEL FOR NON -STATE AGENCY CUSTOMERS. 2) Infringements a) Vendor shall indemnify and hold harmless the State of Texas and Customers, AND/OR THEIR EMPLOYEES AGENTS, REPRESENTATIVES, from any and all third -party claims involvmg infringement of United States patents, copyrights, trade and service marks, and any other intellectual or intangible property rights for Vendor branded products or Vendor provided services in connection with the PERFORMANCES OR ACTIONS OF VENDOR PURSUANT TO THIS CONTRACT. VENDOR and the CUSTOMER agree to furnish timely written notice to each other of any such claim. VENDOR AGREES TO DEFEND AGAINST ANY AND ALL THIRD PARTY CLAIMS WITH REGARDS TO VENDOR —BRANDED PRODUCT OR SERVICES, AT VENDOR'S EXPENSE WHETHER OR NOT SUCH CLAIMS BECOME THE SUBJECT OF LITIGATION SHALL BE LIABLE TO PAY ALL COSTS OF DEFENSE INCLUDING REASONABLE ATTORNEYS' FEES PROVIDED THAT CUSTOMER (i) NOTIFIES VENDOR PROMPTLY OF SUCH CLAIM (ii) GRANTS VENDOR CONTROL OVER THE DEFENSE AND SETTLEMENT THEREOF AND (iii) REASONABLY COOPERATES IN RESPONSE TO VENDOR S REQUEST FOR ASSISTANCE The defense shall be coordinated by the Office of the Attorney General FOR TEXAS STATE AGENCY CUSTOMERS AND BY CUSTOMER'S LEGAL COUNSEL FOR NON -STATE AGENCY CUSTOMERS. b) If Vendor becomes aware of an actual or potential claim, or Customer provides Vendor with timely notice of an actual or potential claim, Vendor may (or in the case of an injunction against Customer, shall), at Vendor's sole option and expense: (i) procure for the Customer the right to continue to use the affected portion of the product or service, or (ii) modify or replace the affected portion of the product or service with functionally equivalent or superior product or service so that Customer's use is non -infringing or (iii) accept return of the Product freight collect and provide a reasonably depreciated refund for the Product. Page 11 of 15 DIR Contract No. DIR-SDD-890 3) Independent Contractor VENDOR AGREES AND ACKNOWLEDGES THAT DURING THE EXISTENCE OF THIS CONTRACT, IT IS FURNISHING SERVICES IN THE CAPACITY OF AN INDEPENDENT CONTRACTOR AND THAT VENDOR IS NOT AN EMPLOYEE OF THE CUSTOMER DIR OR THE STATE OF TEXAS 21. Appendix A, Section 9.B., Taxes/Worker's Compensation/UNEMPLOYMENT INSURANCE is hereby restated in its entirety as follows: B. Taxes/Worker's Compensation/UNEMPLOYMENT INSURANCE 1) VENDOR AGREES AND ACKNOWLEDGES THAT DURING THE EXISTENCE OF THIS CONTRACT, VENDOR SHALL BE ENTIRELY RESPONSIBLE FOR THE LIABILITY AND PAYMENT OF VENDOR S AND VENDOR'S EMPLOYEES' TAXES OF WHATEVER KIND, ARISING OUT OF THE PERFORMANCES IN THIS CONTRACT. VENDOR AGREES TO COMPLY WITH ALL APPLICABLE STATE AND FEDERAL LAWS APPLICABLE TO ANY SUCH PERSONS, INCLUDING LAWS REGARDING WAGES, TAXES, INSURANCE AND WORKERS' COMPENSATION. VENDOR AGREES AND ACKNOWLEDGES THAT VENDOR ITS EMPLOYEES, REPRESENTATIVES, AGENTS OR SUBCONTRACOTRS SHALL NOT BE ENTITLED TO ANY STATE BENEFIT OR BENEFIT OF ANOTHER GOVERNMENTAL ENTITY CUSTOMER AS A RESULT OF THIS CONTRACT AND/OR THE STATE SHALL NOT BE LIABLE TO THE VENDOR ITS EMPLOYEES AGENTS OR OTHERS FOR THE PAYMENT OF TAXES OR THE PROVISION OF UNEMPLOYMENT INSURANCE AND/OR WORKERS' COMPENSATION OR ANY BENEFIT AVAILABLE TO A STATE EMPLOYEE OR EMPLOYEE OF ANOTHER GOVERNMENTAL ENTITY CUSTOMER. 2) VENDOR AGREES TO INDEMNIFY AND HOLD HARMLESS CUSTOMERS, THE STATE OF TEXAS AND/OR THEIR EMPLOYEES, AGENTS AND/OR REPRESENTATIVES FROM ANY AND ALL ACTIONS, CLAIMS DEMANDS, OR SUITS, AND ALL RELATED COSTS ATTORNEY FEES, AND EXPENSES, RELATING TO VENDOR'S TAX LIABILITY, VENDOR'S UNEMPLOYMENT INSURANCE AND/OR WORKERS COMPENSATION OR EXPECTATIONS OF BENEFITS BY VENDOR ITS EMPLOYEES VENDOR'S AGENTS OR VENDOR'S SUBCONTRACTORS IN ITS PERFORMANCE UNDER THIS CONTRACT. VENDOR SHALL BE LIABLE TO PAY ALL COSTS OF DEFENSE FOR CLAIMS RELATED TO THIS CLAUSE INCLUDING ATTORNEYS' FEES. THE DEFENSE SHALL BE COORDINATED BY THE OFFICE OF THE ATTORNEY GENERAL FOR TEXAS STATE AGENCY CUSTOMERS AND BY CUSTOMER'S LEGAL COUNSEL FOR NON -STATE AGENCY CUSTOMERS, IF REQUESTED BY THE STATE OF TEXAS OR CUSTOMER THAT IS A NON - STATE AGENCY. Page 12 of 15 DIR Contract No. DIR-SDD-890 22. Appendix A, Section 9.C., Vendor Certifications is hereby restated in its entirety as follows: C. Vendor Certifications Vendor certifies that it: (i) has not given, offered to give, and do not intend to give at any time hereafter any economic opportunity, future employment, gift, loan, gratuity, special discount, trip, favor, or service to a public servant in connection with the Contract (ii) is not currently delinquent in the payment of any franchise tax owed the State of Texas and is not ineligible to receive payment under §231.006 of the Texas Family Code and acknowledge the Contract may be terminated and payment withheld if this certification is inaccurate, (iii) neither they, nor to the best of Vendor's knowledge anyone acting for them, has violated the antitrust laws of the United States or the State of Texas, nor 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) has not received payment from DIR or any of its employees for participating in the preparation of the Contract, (v) under Section 2155.004, Texas Government Code, the vendor certifies that the individual or business entity named in this bid or contract is not ineligible to receive the specified contract and acknowledges that this contract may be terminated and payment withheld if this certification is maccurate, (vi) to the best of its knowledge and belief, there are no suits or proceedings pending or threatened against or affecting it which if determined adversely to it will have a material adverse effect on the ability to fulfill its obligations under the Contract, (vii) is not suspended or debarred from doing business with the federal government as listed in the Excluded Parties List System (EPLS) maintained by the General Services Administration, and (viii) as of the effective date of the Contract is not listed in the prohibited vendors list authorized by Executive Order #13224, ' Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism" published by the United States Depai liuent of the Treasury, Office of Foreign Assets Control In addition, Vendor acknowledges the applicability of §2155 444 and §2155.4441, Texas Government Code, in fulfilling the terms of the Contract 23. Appendix A, Section 9 I, Security of Premises, Equipment, Data and Personnel is hereby restated in its entirety as follows: I. Security of Premises, Equipment, Data and Personnel Vendor may from time to time during the performance of the Contract, have access to the personnel, premises, equipment, and other property, including data, files and /or materials (collectively referred to as `Data') belonging to the Customer Vendor shall use their best efforts to preserve the safety, security, and the integrity of the personnel, premises, equipment, Data and other property of the Customer, in accordance with the instruction of the Customer. Vendor shall be responsible for damage to Customer's equipment, workplace, and its contents when such damage is caused by its employees or subcontractors. Customer shall be solely responsible for backing up data on a routine basis as mutually agreed to by Vendor and Customer Page 13 of 15 DIR Contract No. DIR-SDD-890 24. Appendix A, Section 9.K, Limitation of Liability is hereby restated in its entirety as follows: K. Limitation of Liability EXCEPT AS SPECIFICALLY SET FORTH IN SECTIONS 9.A.1 AND 9.A.2, AND FOR PAYMENT OBLIGATIONS UNDER THIS CONTRACT, VENDOR AND DIR EACH EXPRESSLY AGREE AND UNDERSTAND THAT THE OTHER PARTY WILL NOT HAVE ANY LIABILITY FOR PRODUCTS NOT BEING AVAILABLE FOR USE, OR FOR LOST OR CORRUPTED DATA OR SOFTWARE NEITHER PARTY SHALL BE LIABLE FOR ANY CLAIM OR CAUSE OF ACTION ARISING UNDER OR RELATED TO THE CONTRACT: I) NONE OF THE PARTIES SHALL BE LIABLE TO THE OTHER FOR INCIDENTAL, INDIRECT, PUNITIVE SPECIAL, OR CONSEQUENTIAL DAMAGES, EVEN IF IT IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND II) VENDOR'S LIABILITY FOR DAMAGES OF ANY KIND TO THE CUSTOMER SHALL BE LIMITED TO THE LESSER OF ONE MILLION DOLLARS ($1,000 000) OR THE U.S. DOLLAR EQUIVALENT OF THE TOTAL DOLLAR VALUE OF PRODUCTS AND SERVICES PURCHASED FROM VENDOR BY SUCH CUSTOMER UNDER THE CONTRACT DURING THE TWELVE MONTHS IMMEDIATELY PRECEDING THE ACCRUAL OF THE CLAIM OR CAUSE OF ACTION IN THE EVENT THE LAW OF ANY JURISDICTION WHICH APPLIES TO THIS CONTRACT PROHIBITS IN ANY PART ANY LIMITATION IN THIS PARAGRAPH, THE PARTIES AGREE THAT SUCH LIMITATION SHALL BE MODIFIED, WITHOUT FURTHER ACTION OF EITHER PARTY, SO AS TO BROADLY APPLY TO THE MAXIMUM EFFECT ALLOWED BY GOVERNING LAWS. 25. Appendix A, Section 9.L, Overcharges is hereby restated in its entirety as follows: L. Overcharges Vendor hereby assigns to DIR any and all of its claims for overcharges associated with this contract which arise under the antitrust laws of the United States, 15 U.S.C.A. Section 1, et seq., and which arise under the antitrust laws of the State of Texas, Tex. Bus. and Comm. Code Section 15.01 et seq. to the extent that the overcharge suffered by the Vendor was, in fact, passed on the DIR or its Customers in the products or other goods and/or services purchased by DIR or is Customers under this Contract during the time period referenced in the litigation. Page 14 of 15 DIR Contract No. DIR-SDD-890 This Contract is executed to be effective as of the date of last signature. Dell Marketing, L.P. The State of Texas, acting by and through the Department of Information Resources Authorized By: Signature on File Name: John Mullen Title: VP & GM Major Public Accounts Education and State & Local Government Authorized By: Signature on File Name. Cindy Reed Title: Deputy Executive Director Operations & Statewide Technology Sourcing Date: January 14, 2009 Date: 1/14/09 Legal: Signature on File Page 15 of 15 Appendix A Standard Terms and Conditions For Product and Related Services Contracts Table of Contents 1. Contract Scope 1 2. No Quantity Guarantees 1 3. Definitions 1 4. General Provisions 2 A. Entire Agreement 2 B. Modification of Contract Terms and/or Amendments 2 C. Invalid Term or Condition 2 D. Assignment 3 E. Survival 3 F. Choice of Law 3 5. Product Terms and Conditions 3 A. Electronic and Information Resources Accessibility Standards, As Required by 1 TAC Chapter 213 (Applicable to State Agency and Institution of Higher Education Purchases Only) 3 B. Purchase of Commodity Items (Applicable to State Agency Purchases Only) 3 6. Contract Fulfillment and Promotion 4 A. Service, Sales and Support of the Contract 4 B. Use of Order Fulfillers 4 1) Designation of Order Fulfillers 4 2) Changes in Order Fulfiller List 5 3) Order Fulfiller Pricing to Customer 5 C. Product Warranty and Return Policies 5 D. Customer Site Preparation 5 E. Internet Access to Contract and Pricing Information 5 1) Vendor Website 5 2) Accurate and Timely Contract Information 6 3) Website Compliance Checks 6 4) Website Changes 6 5) Use of Access Data Prohibited 6 6) Responsibility for Content 6 F. DIR Logo 6 G. Vendor and Order Fulfiller Logo 6 H. Trade Show Participation 7 I. Orientation Meeting 7 J. Performance Review Meetings 7 K. DIR Cost Avoidance 7 7. Purchase Orders, Invoices, and Payments 7 02/ 11 /08 i OFFICIAL RECORD CITY SECRETARY Ft WORTH, TX Appendix A Standard Terms and Conditions For Product and Related Services Contracts A. Purchase Orders 7 B. Invoices 8 C. Payments 8 8. Contract Administration 8 A. Contract Administrators 8 1) State Contract Administrator 8 2) Vendor Contract Administrator 8 B. Reporting and Administrative Fees 8 1) Reporting Responsibility 8 2) Detailed Monthly Report 9 3) Historically Underutilized Businesses Subcontract Reports 9 4) DIR Administrative Fee 9 5) Accurate and Timely Submission of Reports 9 C. Records and Audit 10 D. Contract Administration Notification 11 9. Vendor Responsibilities 11 A. Indemnification 11 B. Taxes/Worker's Compensation/UNEMPLOYMENT INSURANCE 12 C. Vendor Certifications 13 D. Ability to Conduct Business in Texas 13 E Equal Opportunity Compliance 13 F. Use of Subcontractors 14 G. Responsibility for Actions 14 H. Confidentiality 14 I. Security of Premises, Equipment, Data and Personnel 14 J. Background and/or Criminal History Investigation 14 K. Limitation of Liability 15 L Overcharges 15 M. Prohibited Conduct 15 10. Contract Enforcement 15 A. Enforcement of Contract and Dispute Resolution 15 B. Termination 15 1) Termination for Non -Appropriation 15 2) Absolute Right 16 3) Termination for Convenience 16 4) Termination for Cause 16 a) Contract 16 b) Purchase Order 16 5) Customer Rights Under Termination 16 6) Vendor or Order Fulfiller Rights Under Termination 17 C. Force Majeure 17 11. Notification 17 02/11/08 ii Appendix A Standard Terms and Conditions For Product and Related Services Contracts A. Notices 17 B. Handling of Written Complaints 17 12. Captions 17 02/11/08 iii Appendix A Standard Terms and Conditions For Product and Related Services Contracts The following terms and conditions shall govern the conduct of DIR and Vendor during the term of the Contract. 1. Contract Scope The Vendor shall provide the products and related services specified in Section 3 of the Contract for purchase by Customers. In addition, DIR and Vendor may agree to provisions that allow Vendor and/or Order Fulfiller to lease the products offered under the Contract. Terms used in this document shall have the meanings set forth below in Section 3. 2. No Quantity Guarantees The Contract is not exclusive to the Vendor. Customers may obtain products and related services from other sources during the term of the Contract. DIR makes no express or implied warranties whatsoever that any particular quantity or dollar amount of products and related services will be procured through the Contract. 3. Definitions A. Customer - any Texas state agency, unit of local government, institution of higher education as defined in Section 2054.003, Texas Government Code, and those state agencies purchasing from a DIR contract through an Interagency Agreement, as authorized by Chapter 771, Texas Government Code, any local government as authorized through the Interlocal Cooperation Act, Chapter 791, Texas Government Code, and the state agencies and political subdivisions of other states as authorized by Section 2054.0565, Texas Government Code and, except for telecommunications services under Chapter 2170, Texas Government Code, assistance organizations as defined in Section 2175.001, Texas Government Code to mean: 1) A non-profit organization that provides educational, health or human services or assistance to homeless individuals; 2) A nonprofit food bank that solicits, warehouses, and redistributes edible but unmarketable food to an agency that feeds needy families and individuals; 3) Texas Partners of the Americas, a registered agency with the Advisory Committee on Voluntary Foreign Aid, with the approval of the Partners of the Alliance Office of the Agency for International Development; 4) A group, including a faith -based group, that enters into a financial or non -financial agreement with a health or human services agency to provide services to that agency's clients; 5) A local workforce development board created under Section 2308.253; 6) A nonprofit organization approved by the Supreme Court of Texas that provides free legal services for low-income households in civil matters; 7) The Texas Boll Weevil Eradication Foundation, Inc., or an entity designated by the commissioner of agriculture as the foundation's successor entity under Section 74.1011, Texas Agriculture Code; 8) A nonprofit computer bank that solicits, stores, refurbishes and redistributes used computer equipment to public school students and their families; and 9) A nonprofit organization that provides affordable housing. 02/ 11 /08 Page 1 of 17 1 OFFICIAL RECORD CITY SECRETARY Ft WORTH, TX Appendix A Standard Terms and Conditions For Product and Related Services Contracts B. Contract - the document executed between DIR and Vendor into which this Appendix A is incorporated. C. CPA - refers to the Texas Comptroller of Public Accounts D. 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. E. Order Fulfiller - the party, either Vendor or a party that may be designated by Vendor, who is fulfilling a Purchase Order pursuant to the Contract. F. Purchase Order - the Customer's fiscal form or format, which is used when making a purchase (e.g., formal written Purchase Order, Procurement Card, Electronic Purchase Order or other authorized instrument). G. State - refers to the State of Texas. 4. General Provisions A. Entire Agreement The Contract and its Appendices constitute the entire agreement between DIR and the Vendor. No statement, promise, condition, understanding, inducement or representation, oral or written, expressed or implied, which is not contained in the Contract or its Appendices shall be binding or valid. B. Modification of Contract Terms and/or Amendments 1) The terms and conditions of the Contract shall govern all transactions by Customers under the Contract The Contract may only be modified or amended upon mutual written agreement of DIR and Vendor. 2) Customers shall not have the authority to modify the terms of the Contract; however, additional Customer terms and conditions that do not conflict with the Contract and are acceptable to Order Fulfiller may be added in a Purchase Order and given effect. No additional term or condition added in a Purchase Order issued by a Customer can weaken a term or condition of the Contract. Pre-printed terms and conditions on any Purchase Order issued by Customer hereunder will have no force and effect. In the event of a conflict between a Customer's Purchase Order and the Contract, the Contract term shall control. C. Invalid Term or Condition 1) To the extent any term or condition in the Contract conflicts with the applicable Texas and/or United States law or regulation, such Contract term or condition is void and unenforceable. By executing a contract which contains the conflicting term or condition, DIR makes no representations or warranties regarding the enforceability of such term or condition and DIR does not waive the applicable Texas and/or United States law or regulation which conflicts with the Contract term or condition. 2) If one or more term or condition in the Contract, or the application of any term or condition to any party or circumstance is held invalid unenforceable, or illegal in any respect by a final judgment or order of the State Office of Administrative Hearings or a court of competent jurisdiction, the remainder of the Contract and the application of the term or condition to other parties or circumstances shall remain 02/11/08 Page 2 of 17 Appendix A Standard Terms and Conditions For Product and Related Services Contracts valid and in full force and effect. D. Assignment DIR or Vendor may assign the Contract without prior written approval to: i) a successor m mterest (for DIR, another state agency as designated by the Texas Legislature), or ii) a subsidiary, parent company or affiliate, or iii) as necessary to satisfy a regulatory requirement imposed upon a party by a governing body with the appropriate authority. Assignment of the Contract under the above terms shall require written notification by the assigning party. Any other assignment by a party shall require the written consent of the other party Each party agrees to cooperate to amend the Contract as necessary to maintain an accurate record of the contracting parties. E. Survival All applicable software license agreements, warranties or service agreements that were entered into between Vendor and a Customer under the terms and conditions of the Contract shall survive the expiration or termination of the Contract. All Purchase Orders issued and accepted by Order Fulfiller shall survive expiration or termination of the Contract. F. Choice of Law The laws of the State of Texas shall govern the construction and interpretation of the Contract. Nothing in the Contract or its Appendices shall be construed to waive the State's sovereign immunity 5. Product Terms and Conditions A. Electronic and Information Resources Accessibility Standards, As Required by 1 TAC Chapter 213 (Applicable to State Agency and Institution of Higher Education Purchases Only) 1) Effective September 1, 2006 state agencies and institutions of higher education shall procure products which comply with the State of Texas Accessibility requirements for Electronic and Information Resources specified in 1 TAC Chapter 213 when such products are available in the commercial marketplace or when such products are developed in response to a procurement solicitation. 2) Vendor shall provide DIR with the URL to its Voluntary Product Accessibility Template (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 product/service accessibility information is available from the General Services Administration "Buy Accessible Wizard" (htta://www.buvaccessible.aov). 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 the ` Buy Accessible Wizard' or obtaining a copy of the VPAT is located at httn://www.section508.gov/. B. Purchase of Commodity Items (Applicable to State Agency Purchases Only) 1) Texas Government Code, §2157.068 requires State agencies to buy commodity 02/11/08 Page 3 of 17 Appendix A Standard Terms and Conditions For Product and Related Services Contracts items, as defined in 5 B 2 below, in accordance with contracts developed by DIR, unless the agency obtains an exemption from DIR 2) Commodity items are commercially available software, hardware and technology services that are generally available to businesses or the public and for which DIR determines that a reasonable demand exists in two or more state agencies. Hardware is the physical technology used to process manage, store, transmit receive or deliver information. Software is the commercially available programs that operate hardware and includes all supporting documentation, media on which the software may be contained or stored, related materials, modifications, versions, upgrades enhancements, updates or replacements. Technology services are the services, functions and activities that facilitate the design, implementation, creation or use of software or hardware. Technology services include seat management, staffing augmentation training, maintenance and subscription services. Technology services do not include telecommunications services. Seat management is services through which a state agency transfers its responsibilities to a vendor to manage its personal computing needs, including all necessary hardware, software and technology services 3) Vendor agrees to coordinate all State agency commodity item sales through existing DIR contracts. Institutions of higher education are exempt from this Subsection 5.B. 6. Contract Fulfillment and Promotion A. Service, Sales and Support of the Contract Vendor shall provide service, sales and support resources to serve all Customers throughout the State. It is the responsibility of the Vendor to sell, market and promote products and services available under the Contract. Vendor shall use its best efforts to ensure that potential Customers are made aware of the existence of the Contract. All sales to Customers for products and services available under the Contract shall be processed through the Contract. B. Use of Order Fulfillers DIR agrees to permit Vendor to utilize designated Order Fulfillers to provide service, sales and support resources to Customers. Such participation is subject to the following conditions: 1) Designation of Order Fulfillers a) Vendor may designate Order Fulfillers to act as the distributors for products and services available under the Contract In designating Order Fulfillers Vendor must be in compliance with the State s Policy on Utilization of Historically Underutilized Businesses In addition to the required Subcontracting Plan, Vendor shall provide DIR with the following Order Fulfiller information: Order Fulfiller name Order Fulfiller business address, Order Fulfiller CPA Identification Number, Order Fulfiller contact person email address and phone number. b) DIR reserves the right to require the Vendor to rescind any such Order Fulfiller participation or request that Vendor name additional Order Fulfillers should DIR determine it is in the best interest of the State. 02/11/08 Page 4 of 17 Appendix A Standard Terms and Conditions For Product and Related Services Contracts c) Vendor shall be fully liable for its Order Fulfillers' performance under and compliance with the terms and conditions of the Contract. Vendor shall enter into contracts with Order Fulfillers and use terms and conditions that are consistent with the terms and conditions of the Contract. d) Vendor shall have the right to qualify Order Fulfillers and their participation under the Contract provided that: i) any criteria is uniformly applied to all potential Order Fulfillers based upon Vendor's established, neutrally applied criteria, ii) the criteria is not based on a particular procurement, and iii) all Customers are supported under the different criteria. e) Vendor shall not prohibit Order Fulfiller from participating in other procurement opportunities offered through DIR. 2) Changes in Order Fulfiller List Vendor may add or delete Order Fulfillers throughout the term of the Contract upon written authorization by DIR. Prior to adding or deleting Order Fulfillers, Vendor must make a good faith effort in the revision of its Subcontracting Plan in accordance with the State's Policy on Utilization of Historically Underutilized Businesses. Vendor shall provide DIR with its updated Subcontracting Plan and the Order Fulfiller information listed in Section 6.B.1.a above. 3) Order Fulfiller Pricing to Customer Order Fulfiller pricing to the Customer shall comply with the Customer price as stated within Section 4 of the Contract. This pricing shall only be offered by Order Fulfillers to Customers for sales that pass through the Contract. C. Product Warranty and Return Policies Order Fulfiller will adhere to the Vendor's then -currently published policies concerning product warranties and returns Product warranty and return policies for Customers will not be more restrictive or more costly than warranty and return policies for other similarly situated Customers for like products. D. Customer Site Preparation Customers shall prepare and maintain its site in accordance with written instructions furnished by Order Fulfiller prior to the scheduled delivery date of any product or service and shall bear the costs associated with the site preparation. E. Internet Access to Contract and Pricing Information 1) Vendor Website Within thirty days of the effective date of the Contact, Vendor will establish and maintain a website specific to the product and service offerings under the Contract which is clearly distinguishable from other, non-DIR Contract offerings at Vendor's website. The website must include: the product and services offered, product and service specifications, Contract pricing, designated Order Fulfillers, contact information for Vendor and designated Order Fulfillers instructions for obtaining quotes and placing Purchase Orders, and warranty and return policies The Vendor's website shall list the DIR Contract number reference the DIR Go DlRect program, display the DIR logo in accordance with the requirements in paragraph F of this 02/11/08 Page 5 of 17 Appendix A Standard Terms and Conditions For Product and Related Services Contracts Section, and contain a link to the DIR website for the Contract. 2) Accurate and Timely Contract Information Vendor warrants and represents that the website information specified in the above paragraph will be accurately and completely posted, maintained and displayed in an objective and timely manner. Vendor, at its own expense, shall correct any non- conforming or inaccurate information posted at Vendor's website within ten (10) business days after written notification by DIR. 3) Website Compliance Checks Periodic compliance checks of the information posted for the Contract on Vendor's website will be conducted by DIR. Upon request by DIR, Vendor shall provide verifiable documentation that pricing listed upon this website is uniform with the pricing as stated in Section 4 of the Contract 4) Website Changes Vendor hereby consents to a link from the DIR website to Vendor s website in order to facilitate access to Contract information The establishment of the link is provided solely for convenience in carrying out the business operations of the State. DIR reserves the right to terminate or remove a link at any time, in its sole discretion, without advance notice or to deny a future request for a link. DIR will provide Vendor with subsequent notice of link termination or removal. Vendor shall provide DIR with timely written notice of any change in URL or other information needed to access the site and/or maintain the link. 5) Use of Access Data Prohibited If Vendor stores, collects or maintains data electronically as a condition of accessing Contract information, such data shall only be used internally by Vendor for the purpose of implementing or marketing the Contract, and shall not be disseminated to third parties or used for other marketing purposes. The Contract constitutes a public document under the laws of the State and Vendor shall not restrict access to Contract terms and conditions including pricing, i.e., through use of restrictive technology or passwords. 6) Responsibility for Content Vendor is solely responsible for administration, content, intellectual property rights, and all materials at Vendor's website. DIR reserves the right to require a change of listed content if in the opinion of DIR, it does not adequately represent the Contract. F. DIR Logo Order Fulfiller may use the DIR logo in the promotion of the Contract to Customers with the following stipulations* (i) the logo may not be modified m any way (ii) when displayed, the size of the DIR logo must be equal to or smaller than the Order Fulfiller logo (iii) the DIR logo is only used to communicate the availability of products and services under the Contract to Customers, and (iv) any other use of the DIR logo requires prior written permission from DIR G. Vendor and Order Fulfiller Logo DIR may use the Vendor's and Order Fulfiller's name and logo in the promotion of the Contract to communicate the availability of products and services under the Contract to 02/11/08 Page 6 of 17 Appendix A Standard Terms and Conditions For Product and Related Services Contracts Customers. Use of the logos may be on the DIR website or on printed materials. Any use of Vendor's and Order Fulfiller's logo by DIR must comply with and be solely related to the purposes of the Contract and any usage guidelines communicated to DIR from time to time. Nothing contained in the Contract will give DIR any right, title, or interest in or to Vendor's or Order Fulfiller' trademarks or the goodwill associated therewith, except for the limited usage rights expressly provided by Vendor and Order Fulfiller H. Trade Show Participation At DIR's discretion, Vendor and Order Fulfillers may be required to participate in one or more DIR sponsored trade shows each calendar year. Vendor understands and agrees that participation, at the Vendor's and Order Fulfiller's expense, includes providing a manned booth display or similar presence DIR will provide four months advance notice of any required participation. Vendor and Order Fulfillers must display the DIR logo at all trade shows that potential Customers will attend. DIR reserves the right to approve or disapprove of the location or the use of the DIR logo in or on the Vendor's or Order Fulfiller's booth. I. Orientation Meeting Upon thirty (30) calendar days from execution of the Contract, Vendor and Order Fulfillers will be required to attend an orientation meeting to discuss the content and procedures of the Contract. The meeting will be held within the Austin, Texas area at a date and time mutually acceptable to DIR and the Vendor. DIR shall bear no cost for the time and travel of the Vendor or Order Fulfillers for attendance at the meeting. J. Performance Review Meetings DIR will require the Vendor to attend periodic meetings to review the Vendor's performance under the Contract. The meetings will be held within the Austin, Texas area at a date and time mutually acceptable to DIR and the Vendor. DIR shall bear no cost for the time and travel of the Vendor for attendance at the meeting. K. DIR Cost Avoidance As part of the performance measures reported to state leadership DIR must provide the cost avoidance the State has achieved through the Contract. Upon request by DIR, Vendor shall provide DIR with a detailed report of a representative sample of products sold under the Contract. The report shall contain: product part number, product description, list price, price to Customer under the Contract and pricing from three (3) alternative sources under which DIR customers can procure the products. 7. Purchase Orders, Invoices, and Payments A. Purchase Orders All Customer Purchase Orders will be placed directly with the Order Fulfiller Accurate Purchase Orders shall be effective and binding upon Order Fulfiller when accepted by Order Fulfiller. 02/11/08 Page 7 of 17 Appendix A Standard Terms and Conditions For Product and Related Services Contracts B. Invoices 1) Invoices shall be submitted by the Order Fulfiller directly to the Customer and shall be issued in compliance with Chapter 2251 Texas Government Code. All payments for products and/or services purchased under the Contract and any provision of acceptance of such products and/or services shall be made by the Customer to the Order Fulfiller. 2) Invoices must be timely and accurate Each invoice must match Customer's Purchase Order and include any written changes that may apply, as it relates to products, prices and quantities Invoices must include the Customer's Purchase Order number or other pertinent information for verification of receipt of the product or services by the Customer. C. Payments Customers shall comply with Chapter 2251, Texas Government Code, in making payments to Order Fulfiller. Payment under the Contract shall not foreclose the right to recover wrongful payments. 8. Contract Administration A. Contract Administrators DIR and the Vendor will each provide a Contract Administrator to support the Contract. Information regarding the Contract Administrators will be posted on the Internet website designated for the Contract. 1) State Contract Administrator DIR shall provide a Contract Administrator whose duties shall include but not be limited to: i) supporting the marketing and management of the Contract ii) advising DIR of Vendor's performance under the terms and conditions of the Contract, and iii) periodic verification of product pncing and monthly reports submitted by Vendor. 2) Vendor Contract Administrator Vendor shall provide a dedicated Contract Administrator whose duties shall include but not be lunited to: i) supporting the marketing and management of the Contract, ii) facilitating dispute resolution between a Order Fulfiller and a Customer, and iii) advising DIR of Order Fulfillers performance under the terms and conditions of the Contract. DIR reserves the right to require a change in Vendor's then -current Contract Administrator if the assigned Contract Administrator is not, in the opinion of DIR adequately serving the needs of the State. B. Reporting and Administrative Fees 1) Reporting Responsibility a) Vendor shall be responsible for reporting all products and services purchased through Order Fulfillers under the Contract. Vendor shall file the monthly reports subcontract reports, and pay the administrative fees in accordance with the due dates specified in this section. b) DIR shall have the right to verify required reports and to take any actions necessary to enforce its rights under this section, including but not limited to, 02/11/08 Page 8 of 17 Appendix A Standard Terms and Conditions For Product and Related Services Contracts compliance checks of Vendor's applicable Contract books at DIR's expense 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 month period. Reports shall be submitted to the DIR Go DlRect Coordinator. Reports are due on the fifteenth (15th) calendar day after the close of the previous month period. It is the responsibility of Vendor to collect and compile all sales under the Contract from participating Order Fulfillers and submit one (1) monthly report. The monthly report shall include per transaction: the detailed sales for the period the Order Fulfiller's company name, if applicable, Customer name invoice date, invoice number, description, part number, manufacturer, quantity, unit price, extended price, Customer Purchase Order number, contact name Customer's complete billing address, and other information as required by DIR Each report must contam all information listed above per transaction or the report will be rejected and returned to the Vendor for correction in accordance with this section 3) Historically Underutilized Businesses Subcontract Reports a) Vendor shall electronically provide each Customer with their relevant Historically Underutilized Business Subcontracting Report, pursuant to the Contract, as required by Chapter 2161, Texas Government Code. Reports shall also be submitted to DIR. b) Reports shall be due in accordance with the CPA rules. 4) DIR Administrative Fee a) An administrative fee shall be paid by Vendor to DIR to defray the DIR costs of negotiating, executing, and administering the Contract. The admmistrative fee is specified in Section 5 of the Contract. Payment of the administrative fee shall be due on the fifteenth (15th) calendar day after the close of the previous month period. b) Vendor shall reference the DIR Contract number on any remittance instruments. 5) Accurate and Timely Submission of Reports 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 admmistrative fee payments within three (3) business days upon written notification by DIR. Vendor shall deliver any late reports or late administrative fee payments within three (3) business days upon written notification by DIR If Vendor is unable to correct inaccurate reports or administrative fee payments or deliver late reports and fee payments within three (3) busmess days Vendor must contact DIR and provide a corrective plan of action, including the timeline for completion of correction The corrective plan of action shall be subject to DIR approval. b) Should Vendor fail to correct inaccurate reports or cure the delay in timely delivery of reports and payments within the corrective plan of action timeline, DIR reserves the right to require an independent third party audit of the Vendor's records as specified m C 3 of this Section, at DIR s expense. 02/11/08 Page 9 of 17 Appendix A Standard Terms and Conditions For Product and Related Services Contracts C. Records and Audit 1) Acceptance of funds under the Contract by Vendor and/or Order Fulfiller acts as acceptance of the authority of the State Auditor's Office, or any successor agency to conduct an audit or investigation in connection with those funds. Vendor further agrees to cooperate fully with the State Auditor's Office or its successor in the conduct of the audit or investigation, including providing all records requested. Vendor will ensure that this clause concerning the authority to audit funds received indirectly by subcontractors through Vendor or directly by Order Fulfillers and the requirement to cooperate is included m any subcontract or Order Fulfiller contract it awards pertaining to the Contract. Under the direction of the Legislative Audit Committee, a Vendor that is the subject of an audit or investigation by the State Auditor's Office must provide the State Auditor's Office with access to any information the State Auditor's Office considers relevant to the investigation or audit. 2) Vendor and Order Fulfillers shall maintain adequate records to establish compliance with the Contract until the later of a period of four (4) years after termination of the Contract or until full, fmal and unappealable resolution of all Compliance Check or litigation issues that arise under the Contract. Such records shall mclude per transaction: the Order Fulfiller's company name if applicable, Customer name, invoice date, invoice number, description, part number, manufacturer, quantity, unit price, extended price, Customer Purchase Order number, contact name, Customer's complete billing address, the calculations supporting each administrative fee owed DIR under the Contract, Historically Underutilized Businesses Subcontracting reports, and such other documentation as DIR may request. 3) Vendor and/or Order Fulfillers shall grant access to all paper and electronic records, books, documents, accounting procedures, practices and any other items relevant to the performance of the Contract to DIR, including the compliance checks designated by DIR, the State Auditor s Office and of the United States, and such other persons or entities designated by DIR for the purposes of inspecting, Compliance Checking and/or copying such books and records. Vendor and/or Order Fulfillers shall provide copies and printouts requested by DIR without charge. DIR shall provide Vendor and/or Order Fulfillers ten (10) busmess days' notice prior to inspecting, Compliance Checking, and/or copying Vendor's and/or Order Fulfiller's records. Vendor s and/or Order Fulfillers records, whether paper or electronic, shall be made available during regular office hours. Vendor and/or Order Fulfiller personnel familiar with the Vendor's and/or Order Fulfiller s books and records shall be available to DIR staff and designees as needed. Vendor and/or Order Fulfiller shall provide adequate office space to DIR staff during the performance of Compliance Check. 4) For procuring State Agencies whose payments are processed by the Texas Comptroller of Public Accounts, the volume of payments made to Order Fulfillers through the Texas Comptroller of Public Accounts and the administrative fee based thereon shall be presumed correct unless Vendor can demonstrate to DIR' s satisfaction that Vendor's calculation of DIR's administrative fee is correct. 02/11/08 Page 10 of 17 Appendix A Standard Terms and Conditions For Product and Related Services Contracts D. Contract Administration Notification 1) Upon execution of the Contract, Vendor shall provide DIR with written notification of the following: i) Vendor Contract Administrator name and contact information, ii) Vendor sales representative name and contact information and iii) name and contact information of Vendor personnel responsible for submitting reports and payment of administrative fees specified herein. 2) Upon execution of the Contract, DIR shall provide Vendor with written notification of the following: i) DIR Contract Administrator name and contact information, and ii) DIR Go DlRect Coordinator name and contact information. 9. Vendor Responsibilities A. Indemnification 1) Acts or Omissions Vendor shall indemnify and hold haiuiless the State of Texas and Customers, AND/OR THEIR OFFICERS AGENTS, EMPLOYEES REPRESENTATIVES, CONTRACTORS, ASSIGNEES, AND/OR DESIGNEES FROM AND AGAINST ANY AND ALL LIABILITY, ACTIONS, CLAIMS DEMANDS OR SUITS, AND ALL RELATED COSTS, ATTORNEY FEES, AND EXPENSES arising out of or resulting from any acts or omissions of the Vendor or its agents, employees, subcontractors, Order Fulfillers, or suppliers of subcontractors in the execution or performance of the Contract and any Purchase Orders issued under the Contract REGARDLESS OF THE NEGLIGENCE OF THE CUSTOMER, THE STATE OF TEXAS AND/OR THEIR EMPLOYEES, AGENTS, REPRESENTATIVES, CONTRACTORS ASSIGNEES AND/OR DESIGNEES. VENDOR SHALL PAY ALL COSTS OF DEFENSE INCLUDING ATTORNEYS FEES. THE DEFENSE SHALL BE COORDINATED BY THE OFFICE OF THE ATTORNEY GENERAL FOR TEXAS STATE AGENCIES AND BY CUSTOMER'S LEGAL COUNSEL FOR NON -STATE AGENCY CUSTOMERS. 2) Infringements a) Vendor shall indemnify and hold harmless the State of Texas and Customers, AND/OR THEIR EMPLOYEES, AGENTS REPRESENTATIVES, CONTRACTORS, ASSIGNEES, AND/OR DESIGNEES, from any and all third party claims involving infringement of United States patents copyrights, trade and service marks and any other intellectual or intangible property rights in connection with the PERFORMANCES OR ACTIONS OF VENDOR PURSUANT TO THIS CONTRACT. VENDOR AND THE CUSTOMER AGREE TO FURNISH TIMELY WRITTEN NOTICE TO EACH OTHER OF ANY SUCH CLAIM VENDOR SHALL BE LIABLE TO PAY ALL COSTS OF DEFENSE INCLUDING ATTORNEYS' FEES THE DEFENSE SHALL BE COORDINATED BY THE OFFICE OF THE ATTORNEY GENERAL FOR TEXAS STATE AGENCY CUSTOMERS AND BY CUSTOMER'S LEGAL COUNSEL FOR NON -STATE AGENCY CUSTOMERS. b) If Vendor becomes aware of an actual or potential claim, or Customer provides Vendor with notice of an actual or potential claim, Vendor may (or in the case of an 02/11/08 Page 11 of 17 Appendix A Standard Terms and Conditions For Product and Related Services Contracts injunction against Customer, shall), at Vendor's sole option and expense: (i) procure for the Customer the right to continue to use the affected portion of the product or service, or (ii) modify or replace the affected portion of the product or service with functionally equivalent or superior product or service so that Customer's use is non - infringing 3) Independent Contractor VENDOR AGREES AND ACKNOWLEDGES THAT DURING THE EXISTENCE OF THIS CONTRACT, IT IS FURNISHING SERVICES IN THE CAPACITY OF AN INDEPENDENT CONTRACTOR AND THAT VENDOR IS NOT AN EMPLOYEE OF THE CUSTOMER, DIR OR THE STATE OF TEXAS. B. Taxes/Worker's Compensation/UNEMPLOYMENT INSURANCE 1) VENDOR AGREES AND ACKNOWLEDGES THAT DURING THE EXISTENCE OF THIS CONTRACT, VENDOR SHALL BE ENTIRELY RESPONSIBLE FOR THE LIABILITY AND PAYMENT OF VENDOR'S AND VENDORS EMPLOYEES' TAXES OF WHATEVER KIND, ARISING OUT OF THE PERFORMANCES IN THIS CONTRACT. VENDOR AGREES TO COMPLY WITH ALL STATE AND FEDERAL LAWS APPLICABLE TO ANY SUCH PERSONS, INCLUDING LAWS REGARDING WAGES, TAXES, INSURANCE AND WORKERS' COMPENSATION. VENDOR AGREES AND ACKNOWLEDGES THAT VENDOR ITS EMPLOYEES, REPRESENTATIVES, AGENTS OR SUBCONTRACTORS SHALL NOT BE ENTITLED TO ANY STATE BENEFIT OR BENEFIT OF ANOTHER GOVERNMENTAL ENTITY CUSTOMER. THE CUSTOMER AND/OR THE STATE SHALL NOT BE LIABLE TO THE VENDOR ITS EMPLOYEES, AGENTS, OR OTHERS FOR THE PAYMENT OF TAXES OR THE PROVISION OF UNEMPLOYMENT INSURANCE AND/OR WORKERS' COMPENSATION OR ANY BENEFIT AVAILABLE TO A STATE EMPLOYEE OR EMPLOYEE OF ANOTHER GOVERNMENTAL ENTITY CUSTOMER 2) VENDOR AGREES TO INDEMNIFY AND HOLD HARMLESS CUSTOMERS, THE STATE OF TEXAS AND/OR THEIR EMPLOYEES, AGENTS, REPRESENTATIVES CONTRACTORS ASSIGNEES AND/OR DESIGNEES FROM ANY AND ALL LIABILITY, 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 PERFORMANCE UNDER THIS CONTRACT. VENDOR SHALL BE LIABLE TO PAY ALL COSTS OF DEFENSE INCLUDING ATTORNEYS' FEES THE DEFENSE SHALL BE COORDINATED BY THE OFFICE OF THE ATTORNEY GENERAL FOR TEXAS STATE AGENCY CUSTOMERS AND BY CUSTOMER'S LEGAL COUNSEL FOR NON -STATE AGENCY CUSTOMERS. 02/11/08 Page 12 of 17 Appendix A Standard Terms and Conditions For Product and Related Services Contracts C. Vendor Certifications Vendor certifies that it and its designated Order Fulfillers: (i) have not given, offered to give, and do not intend to give at any time hereafter any economic opportunity, future employment, gift loan, gratuity, special discount, trip, favor, or service to a public servant in connection with the Contract, (ii) are not currently delinquent in the payment of any franchise tax owed the State of Texas and are not ineligible to receive payment under §231.006 of the Texas Family Code and acknowledge the Contract may be terminated and payment withheld if this certification is inaccurate, (iii) neither they, nor anyone acting for them have violated the antitrust laws of the United States or the State of Texas, nor 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 its employees for participating in the preparation of the Contract, (v) under Section 2155 004, Texas Government Code, the vendor certifies that the individual or business entity named in this bid or contract is not ineligible to receive the specified contract and acknowledges that this contract may be terminated and payment withheld if this certification is inaccurate, (vi) to the best of their knowledge and belief, there are no suits or proceedings pending or threatened against or affecting them which if determined adversely to them will have a material adverse effect on the ability to fulfill their obligations under the Contract, (vii) are not suspended or debarred from doing business with the federal government as listed in the Excluded Parties List System (EPLS) maintained by the General Services Administration, and (viii) as of the effective date of the Contract, are not listed in the prohibited vendors list authorized by Executive Order #13224, "Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism", published by the United States Department of the Treasury, Office of Foreign Assets Control In addition Vendor acknowledges the applicability of §2155.444 and §2155.4441, Texas Government Code, in fulfilling the terms of the Contract. D. Ability to Conduct Business in Texas Order Fulfiller shall be an entity authorized and validly existing under the laws of its state of organization, and shall be authorized to do business in the State of Texas. E. Equal Opportunity Compliance Vendor agrees to abide by all applicable laws, regulations, and executive orders pertaining to equal employment opportunity, including federal laws and the laws of the State in which its primary place of business is located. In accordance with such laws, regulations, and executive orders the Vendor agrees that no person in the United States shall, on the grounds of race, color, religion, national origin, sex, age, veteran status or handicap, be excluded from employment with or participation in, be denied the benefits of, or be otherwise subjected to discrimination under any program or activity performed by Vendor under the Contract. If Vendor is found to be not in compliance with these requirements during the term of the Contract, Vendor agrees to take appropriate steps to correct these deficiencies. Upon request Vendor will furnish information regarding its nondiscnminatory hiring and promotion policies, as well as specific information on the composition of its principals and staff, including the identification of minorities and 02/11/08 Page 13 of 17 Appendix A Standard Terms and Conditions For Product and Related Services Contracts women in management or other positions with discretionary or decision -making authority. F. Use of Subcontractors If Vendor uses any subcontractors in the performance of this Contract, Vendor must make a good faith effort in the submission of its Subcontracting Plan in accordance with the State's Policy on Utilization of Historically Underutilized Businesses. A revised Subcontracting Plan shall be required before Vendor can engage additional subcontractors in the performance of this Contract. Vendor shall remain solely responsible for the performance of its obligations under the Contract. G. Responsibility for Actions Vendor is solely responsible for its actions and those of its agents, employees, or subcontractors, and agrees that neither Vendor nor any of the foregoing has any authority to act or speak on behalf of DIR or the State H. Confidentiality 1) Vendor acknowledges that DIR is a government agency subject to the Texas Public Information Act. Vendor also acknowledges that DIR will comply with the Public Information Act, and with all opinions of the Texas Attorney General's office concerning this Act. 2) Under the terms of the Contract, DIR may provide Vendor with information related to Customers. Vendor shall not re -sell or otherwise distribute or release Customer information to any party in any manner I. Security of Premises Equipment, Data and Personnel Vendor and/or Order Fulfiller may, from time to time during the performance of the Contract, have access to the personnel, premises, equipment and other property, mcluding data, files and /or materials (collectively referred to as ' Data") belonging to the Customer Vendor and/or Order Fulfiller shall use their best efforts to preserve the safety, security, and the integrity of the personnel premises, equipment, Data and other property of the Customer, in accordance with the instruction of the Customer. Vendor and/or Order Fulfiller shall be responsible for damage to Customer's equipment, workplace, and its contents when such damage is caused by its employees or subcontractors. J. Background and/or Criminal History Investigation Prior to commencement of any services, background and/or criminal history investigation of the Vendor and/or Order Fulfiller's employees and subcontractors who will be providing services to the Customer under the Contract may be performed by certain Customers having legislative authority to require such investigations Should any employee or subcontractor of the Vendor and/or Order Fulfiller who will be providing services to the Customer under the Contract not be acceptable to the Customer as a result of the background and/or criminal history check, then Customer may immediately terminate its Purchase Order and related Service Agreement or request replacement of the employee or subcontractor in question. 02/11/08 Page 14 of 17 Appendix A Standard Terms and Conditions For Product and Related Services Contracts K. Limitation of Liability For any claim or cause of action arising under or related to the Contract: i) none of the parties shall be liable to the other for punitive, special, or consequential damages, even if it is advised of the possibility of such damages; and ii) Vendor's liability for damages of any kind to the Customer shall be limited to the total amount paid to Vendor under the Contract during the twelve months immediately preceding the accrual of the claim or cause of action. L Overcharges Vendor hereby assigns to DIR any and all of its claims for overcharges associated with this contract which arise under the antitrust laws of the United States, 15 U.S.C.A. Section 1, et seq., and which arise under the antitrust laws of the State of Texas, Tex. Bus. and Comm. Code Section 15.01, et seq M. Prohibited Conduct Vendor represents and warrants that, to the best of its knowledge as of the date of this certification, neither Vendor nor any Order Fulfiller, subcontractor, firm, corporation, partnership, or institution represented by Vendor nor anyone acting for such Order Fulfiller subcontractor, firm, corporation or institution has: (1) violated the antitrust laws of the State of Texas under Texas Business & Commerce Code, Chapter 15, or the federal antitrust laws; or (2) communicated its response to the Request for Offer directly or indirectly to any competitor or any other person engaged in such line of business during the procurement for the Contract. 10. Contract Enforcement A. Enforcement of Contract and Dispute Resolution 1) Vendor and DIR agree to the following: (i) a party's failure to require strict performance of any provision of the Contract shall not waive or diminish that party's right thereafter to demand strict compliance with that or any other provision, (ii) for disputes not resolved in the normal course of business, the dispute resolution process provided for in Chapter 2260, Texas Government Code, shall be used, and (iii) actions or proceedings arising from the Contract shall be heard in a state court of competent jurisdiction in Travis County, Texas. 2) Disputes arising between a Customer and the Vendor shall be resolved in accordance with the dispute resolution process of the Customer that is not inconsistent with subparagraph A.1 above. DIR shall not be a party to any such dispute unless DIR, Customer, and Vendor agree in writing. B. Termination 1) Termination for Non -Appropriation Customer may terminate Purchase Orders if funds sufficient to pay its obligations under the Contract are not appropriated by the governing body on behalf of local governments, or by the Texas legislature on behalf of state agencies. In the event of non -appropriation, Vendor and/or Order Fulfiller will be provided ten (10) calendar days written notice of intent to terminate. Notwithstanding the foregoing if a 02/11/08 Page 15 of 17 Appendix A Standard Terms and Conditions For Product and Related Services Contracts Customer issues a Purchase Order and has accepted delivery of the product or services, they are obligated to pay for the product or services or they may return the product and discontinue using services under any return provisions that Vendor offers. 2) Absolute Right DIR shall have the absolute right to terminate the Contract without recourse in the event that: i) Vendor becomes listed on the prohibited vendors list authorized by Executive Order #13224, "Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism ", published by the United States Department of the Treasury, Office of Foreign Assets Control or ii) Vendor becomes suspended or debarred from doing business with the federal government as listed in the Excluded Parties List System (EPLS) maintained by the General Services Administration. Vendor shall be provided written notice in accordance with Section 11.A, Notices, of intent to terminate. 3) Termination for Convenience DIR or Vendor may terminate the Contract, in whole or in part by giving the other party thirty (30) calendar days written notice. A Customer may terminate a Purchase Order if it is determined by the Customer that Order Fulfiller will not be able to deliver product or services in a timely manner to meet the business needs of the Customer. 4) Termination for Cause a) Contract Either DIR or Vendor may issue a written notice of default to the other upon the occurrence of a material breach of any covenant, warranty or provision of the Contract. The non -defaulting party shall give the defaulting party thirty (30) calendar days from receipt of notice to cure said default. If the defaulting party fails to cure said default within the timeframe allowed, the non -defaulting party may, at its option and in addition to any other remedies it may have available, cancel and terminate the Contract. Customers purchasing products or services under the Contract have no power to terminate the Contract for default. b) Purchase Order Customer or Order Fulfiller may terminate a Purchase Order upon the occurrence of a material breach of any term or condition: (i) of the Contract, or (ii) included in the Purchase Order m accordance with Section 4 B 2 above The non-defaultmg party shall give the defaulting party thirty (30) calendar days from receipt of notice to cure said default If the defaulting party fails to cure said default within the timeframe allowed, the non -defaulting party may at its option and in addition to any other remedies it may have available, cancel and terminate the Purchase Order. 5) Customer Rights Under Termination In the event the Contract expires or is terminated for any reason, a Customer shall retain its rights under the Contract and the Purchase Order issued with respect to all 02/11/08 Page 16 of 17 Appendix A Standard Terms and Conditions For Product and Related Services Contracts products or services ordered and accepted prior to the effective termination date. 6) Vendor or Order Fulfiller Rights Under Termination In the event a Purchase Order is terminated or the Contract expires or is terminated for any reason, a Customer shall pay all amounts due for products or services ordered prior to the effective termination date and ultimately accepted C. Force Majeure DIR, Customer, or Order Fulfiller may be excused from performance under the Contract for any period when performance is prevented as the result of an act of God, strike, war civil disturbance, epidemic, or court order, provided that the party experiencing the event of Force Majeure has prudently and promptly acted to take any and all steps that are within the party's control to ensure performance and to shorten the duration of the event of Force Majeure. The party suffering an event of Force Majeure shall provide notice of the event to the other parties when commercially reasonable. Subject to this provision, such non-performance shall not be deemed a default or a ground for termination. However, a Customer may terminate a Purchase Order if it is determined by the Customer that Order Fulfiller will not be able to deliver product or services in a timely manner to meet the business needs of the Customer 11. Notification A. Notices All notices, demands, designations, certificates, requests, offers, consents, approvals and other instruments given pursuant to the Contract shall be in writing and shall be validly given on (i) the date of delivery if delivered by email, facsimile transmission, mailed by registered or certified mail, or hand delivered, or (ii) three business days after being mailed via United States Postal Service. All notices under the Contract shall be sent to a party at the respective address indicated in Section 6 of the Contract or to such other address as such party shall have notified the other party in writing. B. Handling of Written Complaints In addition to other remedies contained in the Contract, a person contracting with DIR may direct their written complaints to the following office: Public Information Office Department of Information Resources Attn: Public Information Officer 300 W. 15th Street, Suite 1300 Austin Texas 78701 (512) 475-4759, facsimile. 12. Captions The captions contained in the Contract and its Appendices are intended for convenience and reference purposes only and shall in no way be deemed to define or limit any provision thereof. 02/11/08 Page 17 of 17 Appendix C Product and Pricing Index xi r- o e al purchases, Dell is offering fixed discounts as identified in the following table. Please note that these discounts will be based upon then -current retail <rtireserves the right to change retail prices, and therefore discounted prices, without notice. Standard shipping and handling is waived, however pal tac or express/custom delivery charges will be added at the time of order. Category Products Classifications Direct from Dell Dell Prime with HUB Order Fulfillers Discount from Dell Retail Price List A F H K L M 0 R S T U V w X Z PowerEdge Departmental Servers, PowerVault Storage Products, Fixed Workstations, Mobile Workstations, Selected OptiPlex Desktops, Selected Latitude Notebooks, Customer Kits Toner Value: Latitude, OptiPlex, Workstation; Future Products to be Determined. S&P — Commodity Software/Non-stocked: Selected Application Software, Non -stock Peripherals and Accessories Third Party Software and Peripherals — Mainstream Selected Service on Poweredge Departmental Servers; Selected Dell Pro -Support Services; Directline Service; Selected 4-Hr On -Site; 15.25% 15.25% Business Care Plus On -Site Service (all years) Selected On -site Service - NBD On -site Service (extended yrs) 9.6% 9.6% Selected Promotional Offers; Inspiron; Selected Latitude; Selected Power Edge; SC PowerEdge; Power Connect; EqualLogic; Dell/EMC; 4% 4% Imaging; Vostro Notebooks; XPS Notebooks NBD Service Parts Contracts (extended yrs 3,4) 2% 2% Spare Parts 0% 0% Peripherals and Accessories with Discounts that Vary Based upon the Same discount as Same discount as System on Which the Item is Installed. system system Selected Dimension Desktops 4% 4% S&P Specific - Non -discountable Products 2% 2% Selected Dimensions; Other Non -discountable Services 0% 0% 13% 13% 3% 6% 2% 2% 12% 3% 6% 2% 2% 12% Dell Direct Online Minimum Additional Discount** 0% .5% .5% 0% 0% Additional -- Matches Base .5% 0% 0% **Additional Online Discount: This is defined as the additional discount off of list to be applied for offerings procured through the State of Texas online store only. Quoting and ordering must be initiated and completed online to qualify. Additional discounting applies only to the discounts noted in this table and are not offered in addition to promotional pricing offered to customers under the Dell / Texas DIR contract or Premier Pages maintained qualified to procure under the Dell / Texas DIR contract. Dell reserves the right to increase the online State of Texas procurement discounts at anytime without changing the contractually required discounting noted above for the term of the agreement. Additional Tiered Discountine Thresholds: Dell's proposal is to increase the discount for DIR Customers purchasing from Dell through the Texas DIR - Dell Master Contract every time the cumulative spend of all Customers purchasing from Dell through the Texas DIR - Dell Master Contract crosses the Proposed Gates gates as listed below: The discount adjustment will occur on the first day of Dell's fiscal -quarter following the point at which the cumulative spend through the Dell MPA group crosses a gate. Proposed Gates: $600M Total Sales: Increase Category A by'/4% for Dell Direct and Dell HUB Orders. No change to Additional Online Discount. $1.2B Total Sales: Increase Category A by 1/4% for Dell Direct and Dell HUB Orders. No change to Additional Online Discount. $1.6B Total Sales: Increase Category A by 1/4% for Dell Direct and Dell HUB Orders. No change to Additional Online Discount. Category A Only, Single Purchase Order, Maximum of 10 Ship -to Locations Minimum Dollar Maximum Dollar Volume Category A Discount in addition to Volume Associated Associated with Single Initial Pricing Level Discount with Single Purchase Order Transaction $50,000.00 $99,999.99 Greater than or equal to 1% $100,000.00 $199,999.99 Greater than or equal to 2% $200,000.00 $499,999.99 Greater than or equal to 4% $500,000.00 $999,999.99 Greater than or equal to 6% $1,000,000.00 No Maximum Greater than or equal to 8% Dell I Services 1 Appendix D Customer Master Services Agreement Dell Marketing L.P. One Dell Way Round Rock, TX 78682 "Dell" Between and "DIR Customer" THIS CUSTOMER MASTER SERVICES AGREEMENT, effective as of the invoice date (the "Agreement"), is made between the DIR customer ("Customer") and the Dell entity identified on Customer's invoice ("Dell"). These Terms are a part of DIR Contract No DIR-SDD-890. In the event of a conflict between the provisions herein and those in the DIR Contract, DIR Contract No DIR-SDD-890 shall control. "Customer" shall include any DIR eligible Customer, including any of its Affiliates, as defined in DIR Contract No DIR-SDD-890 approved by Dell to receive Services under this Agreement who purchase Services hereunder and "Dell" shall include any affiliate of Dell with whom an order is placed Dell and Customer agree to the following terms and conditions: 1. SERVICES DIR Contract No DIR-SDD-890 and this Agreement shall apply each time Customer engages Dell to provide services. All services provided must be within the scope of DIR Contract No. DIR-SDD-890, and will be described in one or more of the following: (1) "Service Descriptions" detailed in the services agreements available at www.dell.com/servirnenntracts or Customer's separate signed service contract with Dell; (2) any mutually agreed "Statement of Work" ("SOW"); or (3) "Technical Specification Form" as applicable (collectively, the "Services"). In the event of a conflict between the terms of this Agreement and a Service Description, SOW, or Technical Specification Form, the terms of these documents will be followed according to the following order of preference: (1) the SOW or Technical Specification Form, (2) the Agreement; and (3) Service Descriptions. "Services" does not include third party branded services ("Third Party Services') that may be purchased from a third party by Customer or sold by Dell as a distributor or sales agent (e.g. extended warranty on third party branded peripherals offered by the manufacturer). 2. TERMS 2.1 Reauests for Service: Quotes and Orders. All orders for Services must specify DIR Contract No DIR-SDD-890, Dell's quotation (if any), and reference the Service(s) requested and invoice address. Customer may place orders in writing, by telephone or by facsimile transmission. Telephone orders must be confirmed in writing or by facsimile. All orders are subject to acceptance by Dell. If Customer orders on-line, Dell may issue to Customer user names and passwords (the "Purchase Codes"). By accepting and using the Purchase Codes, Customer acknowledges the validity of an electronic order, which shall be deemed to be a writing for all purposes hereunder, and agrees to be responsible for full payment of any Services ordered using Customer's Purchase Codes. Customer is responsible for keeping the Purchase Codes confidential and controlling their use. 2.2 Purchases by Affiliates. Unless otherwise agreed in writing, any Customer Affiliate who submits an order to Dell shall have thereby agreed to abide by the terms of this Agreement Dell, in its sole discretion, may discontinue selling Services to any Customer Affiliate or may require additional payment and/or credit conditions for such Customer Affiliate. 2.3 Customer Affiliate Guaranty. In accordance with Chapter 2251, Texas Government Code, in making payments under this Agreement. and subject to the terms regarding "Purchases by Customer Affiliates" above, in consideration of Dell's agreement to extend credit to Customer's Affiliates at the same or similar level as the credit extended to Customer, Customer hereby unconditionally guarantees complete and timely payment of any and all amounts due to Dell from any Customer Affiliate. 2.4 Prices. The prices charged for Services purchased under this Agreement will be in accordance with DIR-SDD-890 and Dell's then current charges for such services in each Dell region or as quoted by Dell. If the Services are being performed Dell Services pa% US CMSA Rev. 3 041408 Page 1 of 6 on a time and materials basis, any estimates provided by Dell are for planning purposes only. Any required deposits are non- refundable. 2.5 Additional Fees: Taxes. As per Section 151.309 Texas Tax Code, certain Customers under this Agreement are exempt from the assessment of State sales, use and excise taxes. Further, Customers under this Agreement are exempt from Federal Excise Taxes, 26 United States Codes Sections 4253(i) and (j). Dell agrees to not bill for inapplicable taxes. For any Customers that are not included under Section 151.309 or 26 United States Code Sections 4253(i) and (j), and who cannot produce a tax exemption certificate at Vendor's request, Vendor may charge or bill such Customer for applicable taxes. 2.6 Invoicina and Payment. DIR Customers shall comply with Chapter 2251, Texas Government Code, in making payments under this Agreement. Customer will pay Dell in US dollars, as invoiced by Dell or an affiliate of Dell. Additional charges may apply if Customer requests services that are performed outside contracted hours or are beyond the normal coverage for the particular service. To the extent allowable by Chapter 2251, Texas Government Code, for invoices not paid within thirty (30) days of the invoice date, Dell reserves the right to charge Customer a late penalty charge of one and a half percent (1.5%) per month applied against undisputed overdue amounts, or the maximum rate permitted by law, whichever is less. To the extent authorized by Chapter 2251, Texas Government Code, Dell may, without waiving any other rights or remedies to which it may be entitled, decide not to accept additional orders from Customer and/or seek collection of all amounts due, including reasonable legal fees and costs of collection. 2.7 Term. Unless otherwise stated in DIR Contract No. DIR-SDD-890, this Agreement will begin on the effective date stated above and will continue until terminated in accordance with its terms. Each Service Description, SOW or Technical Specification Form, as applicable, will continue for the term stated therein, unless otherwise terminated pursuant to this Agreement. 2.8 Termination. Unless otherwise stated in DIR Contract No DIR-SDD-890, either party may terminate this Agreement by providing at least thirty (30) days prior written notice to the other. Termination of the Agreement will not terminate any outstanding Service Description, SOWs, or Technical Specification Forms and the terms of this Agreement will survive such termination to the extent that such terms are incorporated into any outstanding Service Description, SOWs, or Technical Specification Forms. Either party may terminate an individual Service Description, SOW or Technical Specification Form if the other party commits a material breach of such an agreement and the breach is not cured within thirty (30) days of receipt of written notice from the injured party. Termination of one or more Service Description, SOW, or Technical Specification Form, will not terminate this Agreement. Upon termination, all rights and obligations of the parties under this Agreement will automatically terminate except for rights of action accruing prior to termination, payment obligations and any obligations that expressly or by implication are intended to survive termination. 3. THIRD PARTY PRODUCTS, THIRD PARTY SERVICES, SOFTWARE INSTALLATION "Third Party Products" means any hardware or software, other than parts that are Dell branded or originally listed on Dell's standard parts list. Third Party Products and/or Third Party Services may be provided by Customer or procured for Customer by Dell, as described by the applicable Service. In the event the Third Party Products procured by Dell are not used for the Services within a reasonable time following purchase of the parts by Dell, the Third Party Products will be shipped and invoiced to Customer and Customer will pay for these parts within thirty (30) days after the date of invoice. Dell is not responsible for the specifications of Third Party Products selected by Customer, including revisions or engineering changes. Some manufacturers' warranties or service contract terms and conditions may become void if Dell or anyone else, other than the manufacturer or its authorized representative, works on the hardware or software. DELL DOES NOT TAKE RESPONSIBILITY FOR THIRD PARTY WARRANTIES OR FOR ANY EFFECT THAT THE DELL SERVICES MAY HAVE ON THOSE WARRANTIES. Except as agreed to in DIR Contract No. DIR-SDD-890, Third Party Services shall be exclusively subject to terms and conditions between the third party and Customer. For software provided by Customer, Customer authorizes Dell (or otherwise obtains the rights for Dell) to copy, install and modify, if necessary (and as required by the Technical Specification Form), all software to be used in the Services or to be recorded in electronic media for subsequent re -installation of backup. Customer warrants to Dell that it has obtained any licenses, consents, regulatory certifications or approvals required to give Dell and its subcontractors or employees the right or license to access, copy, distribute, use and/or install any Third Party Products to be used in the Services, without infringing the ownership or license rights (including patent and copyright) of the providers or owners of such products. 4. PROPRIETARY RIGHTS 4.1. Deliverables. Unless otherwise stated in DIR Contract No DIR-SDD-890, Dell will retain exclusive ownership in all Deliverables created by Dell hereunder and will own all intellectual property rights, title and interest in any ideas, concepts know how, documentation or techniques developed by Dell under this Agreement. Subject to payment in full for the applicable Services, Dell grants Customer a perpetual, non-exclusive, non -transferable, royalty -free right to use the Deliverables solely in Dell d Services POPIPIIIMS US CMSA Rev. 3 Page 2 of 6 041408 041408 the country(ies) in which Customer does business and solely for Customer's internal use. "Deliverables" means the tangible and intangible materials, including reports, studies, base cases, drawings, findings, software, manuals, procedures and recommendations that are prepared uniquely and exclusively for use by Customer by Dell or its subcontractors in the course of performing the Services and that are specifically identified in a signed Statement of Work as Deliverables. 4.2. Tools & Software. Dell will retain all intellectual property rights with respect to the tools and/or software that Dell uses to deliver the Services. To the extent this provision is consistent with the Texas Public Information Act, any use by Customer, including the execution, reproduction, modification, distribution, transmission, republication, display, transfer or performance, except as specifically permitted by Dell during the term of Services and for the delivery of Services, is strictly prohibited. Additionally, Customer use of software, online services, or software -enabled services in connection with the Services is pursuant to the terms of DIR Contract No. DIR-SDD-890 and the Dell Services Acceptable Use Policy, which is available for review at,www.dell.com/terrnsandcunditioi ts. 5. EXPORT; REGULATORY REQUIREMENTS 5.1 Export. Customer acknowledges that the Services sold under this Agreement, which may include technology and software, are subject to the customs and export control laws and regulations of the United States ("U.S.") and may also be subject to the customs and export laws and regulations of the country in which the Services are rendered and/or received. Customer agrees to abide by those laws and regulations. Customer further represents 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 make the preceding representation, Customer agrees to provide Dell with all of the information needed for Dell to obtain export licenses from the United States government and to provide Dell 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 software if a license is needed. Dell may also require export certifications from Customer for Customer provided software. Dell's acceptance of any order for Services is contingent upon the issuance of any applicable export license required by the United States Government; Dell is not liable for delays or failure to deliver Services or a product resulting from Customer's failure to obtain such license or to provide such certification, 5.2 Reaulatory Reauirements. Dell is not responsible for determining if Third Party Products to be used in performance of the Services satisfy the local regulatory requirements of the country to which the products are to be shipped, nor shall Dell be obligated to perform any Services where the resulting products or software do not satisfy the local regulatory requirements. 6. CUSTOMER RESPONSIBILITIES It is the Customer's responsibility to backup data on Customer's system DELL IS NOT RESPONSIBLE FOR LOSS OF OR RECOVERY OF DATA, PROGRAMS, OR LOSS OF USE OF SYSTEM(S) OR NETWORK arising out of the Services or support or any act or omission, including negligence, by Dell or a third -party service provider. Customer acknowledges that Dell's performance and delivery of the Services are contingent upon: (i) Customer providing safe and hazard -free access to its personnel, facilities, equipment, hardware, software, network and information, and (ii) Customer's timely decision -making, notification of relevant issues or information and granting of approvals and/or permission. Customer will promptly obtain and provide to Dell any required licenses, approvals or consents necessary for Dell's performance of the Services. To the extent this provision is consistent with the Texas Public Information Act, Information disclosed by Customer pursuant to a separate Nondisclosure Agreement ("NDA") signed by both parties will be protected under the terms of the NDA. To the extent consistent with the Texas Public Information Act, Customer acknowledges that any information or data disclosed or sent to Dell that is not protected under a separate NDA is not confidential or proprietary to Customer. 7. LIMITATION OF SERVICES Except as stated below, when Services consist of repair of Dell -branded systems, such Services shall be those repair services that are necessary because of any existing defect or a defect occurs in materials or workmanship in the system or in any system component covered by this Agreement. Preventive maintenance is not included. Repairs necessitated by software problems, or as a result of alteration, adjustment, or repair by anyone other than Dell (or its representatives) are not included. Unless otherwise provided in the SOW, Services do not include repair of any system or system component which has been damaged as a result of: (i) accident, misuse, or abuse of the system or component (such as, but not limited to, use of incorrect line voltages, use of incorrect fuses, use of incompatible devices or accessories, improper or insufficient ventilation, or failure to follow operating instructions) by anyone other than Dell (or its representatives), (ii) an act of God such as, but not Dell I Services US CMSA Rev. 3 Page 3 of 6 limited to, lightning, flooding, tornado, earthquakes, and hurricanes, or (iii) the moving of the system from one geographic location to another or from one entity to another. 8. LIMITED WARRANTY & LIMITATION OF LIABILITY 8.1 Limited Warranty. TO THE EXTENT CONSISTENT WITH DIR CONTRACT NO DIR-SDD-890, DELL WARRANTS THAT SERVICES WILL BE PERFORMED IN A GOOD AND WORKMANLIKE MANNER. EXCEPT AS EXPRESSLY STATED IN THE PRECEDING SENTENCE, DELL MAKES NO EXPRESS OR IMPLIED WARRANTIES WITH RESPECT TO THE S ERVICES, INCLUDING BUT NOT LIMITED TO, ANY WARRANTY RELATING TO THIRD PARTY PRODUCTS OR THIRD PARTY SERVICES; ANY WARRANTY WITH RESPECT TO THE PERFORMANCE OF ANY HARDWARE OR SOFTWARE U SED IN CONDUCTING SERVICES; ANY WARRANTY CONCERNING THE RESULTS TO BE OBTAINED FROM THE S ERVICES OR THE RESULTS OF ANY RECOMMENDATION DELL MAY MAKE; AND,ANY IMPLIED WARRANTIES CONCERNING THE PERFORMANCE, MERCHANTABILITY, SUITABILITY, NON -INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE OF ANY OF THE DELIVERABLES OR OF ANY SYSTEM THAT MAY RESULT FROM THE IMPLEMENTATION OF ANY RECOMMENDATION DELL MAY PROVIDE 8.2 Limitation of Liability. TO THE EXTENT CONSISTENT WITH DIR CONTRACT NO DIR-SDD-890, NEITHER CUSTOMER, DELL NOR DELL'S SUBCONTRACTORS WILL BE LIABLE FOR ANY INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE SERVICES PROVIDED BY DELL EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES DELL SHALL NOT HAVE LIABILITY FOR (I) LOSS OF INCOME, PROFIT, OR SAVINGS, WHETHER DIRECT OR INDIRECT, (II) LOST OR CORRUPTED DATA OR SOFTWARE, OR (III) PRODUCTS NOT BEING AVAILABLE FOR USE EXCEPT FOR CLAIMS THAT THE SERVICES (EXCLUDING THIRD PARTY PRODUCTS) CAUSED BODILY INJURY (INCLUDING DEATH) DUE TO DELL'S NEGLIGENCE OR WILLFUL MISCONDUCT, DELL'S TOTAL LIABILITY ARISING OUT OF, OR IN CONNECTION WITH, ANY SERVICES PURCHASED PURSUANT TO THIS AGREEMENT SHALL NOT EXCEED THE AMOUNTS PAID BY CUSTOMER FOR THE S PECIFIC SERVICE(S) GIVING RISE TO SUCH CLAIM DURING THE PRIOR TWELVE MONTH PERIOD 8.3 Hiah Risk Application Disclaimer. Dell has not tested or certified its products, Services or deliverables for use in high risk applications including medical life support, medical device, direct physical patient contact, water treatment, nuclear facilities, weapon systems, mass and air transportation control, flammable environments, or any other potentially life critical uses. Customer understands and agrees that Dell makes no assurances that the products, Services or deliverables are suitable for any high -risk uses. 9. INDEMNIFICATION In accordance with DIR Contract No DIR-SDD-890, and to the extent allowed by Texas law and constitution, Customer accepts responsibility for, and agrees to indemnify and hold Dell harmless from, any and all liability, damages, claims or proceedings arising out of (I) the failure of Customer to obtain the appropriate license, intellectual property rights, or any other permissions, regulatory certifications or approvals required to support any Service Description, SOW, or Technical Specification Form or Dell's performance of the Services, or (ii) any inaccurate representations regarding the existence of an export license. 10. MISCELLANEOUS ITEMS 10.1 Assignment: Subcontracting. Unless otherwise provided in DIR Contract No. DIR-SDD-890, Service Description, SOW or Technical Specification Form, Customer may not assign this Agreement without the prior written consent of Dell. Subject to compliance with Chapter 2161, Texas Government Code, as required in DIR Contract No DIR-SDD-890, Dell has the right to hire subcontractors to perform the Services provided that Dell shall remain responsible for the performance of Services under this Agreement, or to assign Services to its affiliates. 10.2 Entire Agreement: Severabilitv. DIR Contract No DIR-SDD-890 and this Agreement (with attachments) is the entire agreement between Dell and Customer with respect to its subject matter and supersedes all prior oral and written understandings, communications or agreements between Dell and Customer. No amendment to or modification of this Agreement, in whole or in part, will be valid or binding unless it is in writing and executed by authorized representatives of both parties. If any provision of this Agreement is void or unenforceable, the remainder of this Agreement will remain in full force and will not be terminated. 10.3 Independent Contractor. The parties are independent contractors. Neither party will have any rights, power or authority to act or create an obligation, express or implied, on behalf of another party except as specified in this Agreement. 10.4 Force Maieure. Unless otherwise stated in DIR Contract No DIR-SDD-890, neither party shall be liable to the other party for any failure to perform any of its obligations (except payment obligations) under this Agreement during any period in Services U S CMSA Rev. 3 Page 4 of 6 041408 which such performance is delayed by circumstances beyond its reasonable control including, but not limited to, fire, flood, war, embargo, strike, riot or the intervention of any governmental authority (a "Force Majeure"). In such event, however, the delayed party must promptly provide the other party with written notice of the Force Majeure. The delayed party's time for performance will be excused for the duration of the Force Majeure, but if the Force Majeure events lasts longer than thirty (30) days, the other party may immediately terminate the applicable Service Description, SOW or Technical Specification Form by giving written notice to the delayed party. 10.5 Notices. To give notice under this Agreement, the notice must be in writing and sent by postage prepaid first-class mail, receipted courier service, facsimile telecommunication or electronic mail to the address which appears below each party's signature below or to such other address as any party shall specify by notice in writing to the other party and will be effective upon receipt. 10.6 Section Headings. The section headings contained in this Agreement are inserted for reference purposes only and shall not affect the meaning or interpretation of this Agreement. 10.7 Governing Law, Jurisdiction and Language. THE CONSTRUCTION AND PERFORMANCE OF THIS AGREEMENT SHALL BE GOVERNED BY THE FOLLOWING: For disputes arising out of Services performed for Customers, the law of the State of Texas, excluding its conflict of laws provisions, shall control and venue shall be in Travis County, Texas. This Agreement will be interpreted and construed in accordance with the English language. 10.8 Dispute Resolution. Unless otherwise stated in DIR Contract No. DIR-SDD-890, the parties will attempt to resolve any claim, or dispute or controversy (whether in contract, tort or otherwise) against Dell, its agents, employees, successors, assigns, or affiliates (collectively for purposes of this paragraph, "Dell") arising out of or relating to this Agreement, Dell's advertising, or any related purchase (a "Dispute") through face to face negotiation with persons fully authorized to resolve the Dispute or through mediation utilizing a mutually agreeable mediator, rather than through litigation. To the extent authorized by Texas law, the existence or results of any negotiation or mediation will be treated as confidential. To the extent authorized by Texas law and constitution, notwithstanding the foregoing, either party will have the right to obtain from a court of competent jurisdiction a temporary restraining order, preliminary injunction or other equitable relief to preserve the status quo, prevent irreparable harm, avoid the expiration of any applicable limitations period, or preserve a superior position with respect to other creditors, although the merits of the underlying Dispute will be resolved in accordance with this paragraph. In the event the parties are unable to resolve the Dispute within thirty (30) days of notice of the Dispute to the other party, the parties shall be free to pursue all remedies available at law or equity. Chapter 2260, Texas Government Code, shall govern dispute resolution for Texas state agency Customers. 10.9 Limitation Period. Unless otherwise stated in DIR Contract No DIR-SDD-890, neither party may institute any action in any form arising out of this Agreement more than four (4) years after the cause of action has arisen, or in the case of nonpayment, more than two (2) years from the date of last payment. 10.10 Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all such counterparts shall together constitute one and the same instrument. By their signature below, Dell and Customer indicate their acceptance of the terms and conditions set forth in this Agreement. Dell Marketing L.P. Signature: Name: Position: Date: Services i � Signature: Name: Position: Date: US CMSA Rev. 3 Page 5 of 6 041408 Notices Addresses: Notices Addresses: (if different from above) Dell Marketing L.P. Attn: Mgr Contracts One Dell Way Round Rock, TX 78682 This agreement form does not constitute an offer by Dell, and will become valid only upon execution by an authorized representative of Dell. Dell Services Pill DOLL US CMSA Rev. 3 Page 6 of 6 041408 Amendment Number 1 to Contract Number DIRSDD=89O between State of Texas, acting by and through the Department of Information Resources and Dell Marketing, L.P. This Amendment Number 1 to Contract Number DIR-SDD-390 ("Contract") is between the Department of Information Resources (DIR) and Dell Marketing, L.P. ("Vendor"). DIR and Vendor agree to modify the terms and conditions of the Contract as follows: 1. Contract, Section 1.C, Order of Precedence, is hereby restated as follows: This Contract; Appendix A, Standard Terms and Conditions For Products and Related Services Contracts; Appendix B, Vendor's Historically Underutilized Businesses Subcontracting Plan; Appendix C, Product and Pricing Index; Appendix D, Customer Master Services Agreement; Appendix E, Master Lease Agreement, Exhibit 1, Vendor's Response to RFO DIR-SDD-TMP-120, including all addenda; and Exhibit 2, RFO DIR-SDD-TMP-120, including all addenda; are incorporated by reference and constitute the entire agreement between DIR and Vendor. In the event of a conflict between the documents listed in this paragraph, the controlling document shall be this Contract, then Appendix A, then Appendix B, then Appendix C, then Appendix D, then Appendix E, then Exhibit 1 and finally Exhibit 2. In the event and to the extent any provisions contained in multiple documents address the same or substantially the same subject matter but do not actually conflict, the more recent provisions shall be deemed to have superseded earlier provisions. • 2. Appendix A, Section 1. Contract Scope, is hereby restated as follows: 1. Contract Scope The Vendor shall provide the products and related services specified in Section 3 of the Contract for purchase by Customers. In addition, DIR and Vendor agree to provisions that allow Vendor and/or Order Fulfiller to lease the products offered under the Contract as detailed in Appendix E. Master Lease Agreement. Terms used in this document shall have the meanings set forth below in Section 3. 3. Appendix E, Master Lease Agreement, is hereby added in its entirety as attached. Amendment Number 1 1 of DIR-SDD-890 OFFICIAL RECORD CITY SECRETARY Ft WORTH, TX IN WITNESS WHEREOF, the parties hereby execute this amendment to be effective as of the date of last signature. Dell Marketing, L.P. The State of Texas, acting by and through the Department of Information Resources By Signature on File By Signature on File Name. John Mullen Name: Cindy Reed Title: V.P. & G M Public Accounts Title: Deputy Executive Director Education and State & Local Operations & Statewide Technology Sourcing Date: 01/29/09 Date: 1/29/09 Amendment Number 1 DIR-SDD-890 Legal: Signature on File 2 of Amendment Number 2 to Contract Number DIR=SDD=890 between State of Texas, acting by and through the Department of Information Resources and Dell Marketing, L.P. This Amendment Number 2 to Contract Number DIR-SDD-890 ("Contract") is between the Department of Information Resources ("DIR") and Dell Marketing, L.P. ("Vendor") DIR and Vendor agree to modify the terms and conditions of the Contract as follows: 1. Contract, Section 2, Terra of Contract, is hereby amended as follows: DIR and Vendor hereby agree to extend the term of the Contract for one (1) year through January 13, 2011. Prior to expiration of the term, DIR and Vendor may extend the Contract, upon mutual agreement, for up to two (2) optional one-year renewal periods. 2. Contract, Section 4.G, Travel Expense Reimbursement, is hereby updated and restated in its entirety as follows: G. Travel Expense Reimbursement Pricing for services provided under this Contract are exclusive of any travel expenses that may be incurred in the performance of those services. Travel expense reimbursement may include personal vehicle mileage or commercial coach transportation, hotel accommodations, parking and meals; provided, however, the amount of reimbursement by Customers shall not exceed the amounts authorized for state employees as adopted by each Customer and as provided to Vendor; and provided, further, that all reimbursement rates shall not exceed the maximum rates established for state employees under the current State Travel Management Program. Travel time may not be included as part of the amounts payable by Customer for any services rendered under this Contract. The DIR administrative fee specified in Section 5 below is not applicable to travel expense reimbursement. Anticipated travel expenses must be pre -approved in writing by Customer. 3. Contract, Section 6, Notification is hereby updated as follows: If sent to the Vendor: Ashleigh Lane Dell Marketing L.P. One Dell Way, M/S RR8-07 Round Rock TX 78682 Phone: (512) 723-1033 Fax: (512) 283-9092 Email: Ashleigh Lane@Dell.com Amendment 2 Contract Number DIR-SDD-890 Page 1 of 8 OFFICIAL RECORD CITY SECRETARY Ft WORTH, TX J 4. Contract, Section 7 B, Software License, Shrink/Click-wrap License Agreement, is hereby updated and restated in its entirety as follows: B Shrink/Click-wrap License Agreement Vendor may sell third -party shnnk/click-wrap software products as awarded under this Contract. All software sold is subject to the license agreement provided with the software by the publisher Customers are bound by, and will abide by all such software licensing agreements. 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, Customer shall be responsible for negotiating with the software publisher to obtain changes in the Shrink/Click-wrap License Agreement language from the software publisher. 5. Appendix Al Section 4.A Entire Agreement, is hereby updated and restated in its entirety as follows: A Entire Agreement The Contract, Appendices, and Exhibits constitute the entire agreement between DIR and the Vendor. No statement, promise, condition, understanding, inducement or representation, oral or written expressed or implied, which is not contained in the Contract, Appendices, or its Exhibits shall be binding or valid. 6. Appendix Al Section 4, General Provisions, G. Limitation of Authority, is hereby added to the Contract as follows. G. Limitation of Authority Vendor shall have no authority to act for or on behalf of the Texas Department of Information Resources or the State of Texas except as expressly provided for in this Contract; no other authority, power or use is granted or implied. Contractor may not incur any debts, obligations, expenses, or liabilities of any kind on behalf of the State of Texas or Texas Department of Information Resources 7. Appendix Al Section 7, Purchase Orders, Invoices, and Payments, C. Payments, is hereby updated and restated in its entirety as follows: C. Payments Customers shall comply with Chapter 2251, Texas Government Code, in making payments to Order Fulfiller The statute states that payments for goods and services are due thirty (30) days after the goods are provided, the services completed, or a correct invoice is received, whichever is later. Payment under the Contract shall not foreclose the right to recover wrongful payments. Amendment 2 Contract Number DIR-SDD-890 Page 2 of 8 8. Appendix A, Section 8, Contract Administration, D. Reporting and Administrative Fees, 2) Detailed Monthly Reporting, is hereby updated and restated in its entirety as follows: 2) Detailed illionthly Repoli 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 month period. Reports shall be submitted to the DIR Go DlRect E-Mail Box at(3oDirect.Sales@dir.state.tx.us. Reports are due on the fifteenth (15th) calendar day after the close of the previous month period. It is the responsibility of Vendor to collect and compile all sales under the Contract from participating Order Fulfillers and submit one (1) monthly report. The monthly report shall include, per transaction: the detailed sales for the period, the Order Fulfiller's company name, if applicable, Customer name, invoice date, invoice number, description, part number, manufacturer, quantity, unit price, extended price, Customer Purchase Order number, contact name, Customer's complete billing address, and other information as required by DIR. Each report must contain all information listed above per transaction or the report will be rejected and returned to the Vendor for correction in accordance with this section. 9. Appendix A, Section 8, Contract Administration, D. Contract Administration Notification, is hereby updated and restated in its entirety as follows: D. Contract Administration Notification 1) Upon execution of the Contract, Vendor shall provide DIR with written n otification of the following: i) Vendor Contract Administrator name and contact information, ii) Vendor sales representative name and contact information, and iii) n ame and contact information of Vendor personnel responsible for submitting reports and payment of administrative fees specified herein. 2) Upon execution of the Contract, DIR shall provide Vendor with written n otification of the following: i) DIR Contract Administrator name and contact information, and ii) DIR Go DlRect E-Mail Box information. 10. Appendix A, Section 9, Vendor Responsibilities, C. Vendor Certifications, is hereby updated and restated in its entirety as follows: C. Vendor Certifications Vendor certifies that it: (i) has not given, offered to give, and do not intend to give at any time hereafter any economic opportunity, future employment, gift, loan, gratuity, special discount, trip, favor, or service to a public servant in connection with the Contract; (ii) is not currently delinquent in the payment of any franchise tax owed the State of Texas and is not ineligible to receive payment under §231.006 of the Texas Family Code and acknowledges the Contract may be terminated and payment withheld if this certification is inaccurate; (iii) neither Vendor, nor, to the best of Vendor's knowledge and belief, anyone acting for Vendor, has violated the antitrust laws of the United States or the State of Texas, nor 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) has not received payment from Amendment 2 Contract Number DIR-SDD-890 Page 3 of 8 DIR or any of its employees for participating in the preparation of the Contract; (v) under Section 2155.004, Texas Government Code the vendor certifies that the individual or business entity named in this bid or contract is not ineligible to receive the specified contract and acknowledges that this contract may be terminated and payment withheld if this certification is inaccurate; (vi) to the best of Vendor's knowledge and belief, there are no suits or proceedings pending or threatened against or affecting them, which if determined adversely to them will have a material adverse effect on the ability to fulfill their obligations under the Contract; (vii) is not suspended or debarred from doing business with the federal government as listed in the Excluded Parties List System (EPLS) maintained by the General Services Administration; (viii) as of the effective date of the Contract, is not listed in the prohibited vendors list authorized by Executive Order #13224, 'Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism", published by the United States Department of the Treasury, Office of Foreign Assets Control; (ix) to the extent applicable to this scope of this Contract, Vendor is in compliance with Subchapter Y, Chapter 361, Health and Safety Code related to the Computer Equipment Recycling Program and its rules 30 TAG Chapter 328; (x) Vendor agrees that any payments due under this contract will be applied towards any debt owed by Vendor, including but not limited to delinquent taxes and child support that is owed to the State of Texas; (xi) Vendor certifies that it is in compliance Section 669.003, Texas Government Code, relating to contracting with executive head of a state agency; (xii) Vendor represents and warrants that the Customer's payment to Vendor and Vendor's receipt of appropriated or other funds under this Agreement are not prohibited by Sections 556.005 or Section 556 008, Texas Government Code and (xiii) under Section 2155.006, Government Code, Vendor certifies that the individual or business entity in this contract is not ineligible to receive the specified contract and acknowledges that this contract may be terminated and payment withheld if this certification is inaccurate. In addition, Vendor acknowledges the applicability of §2155.444 and §2155.4441, Texas Government Code, in fulfilling the terms of the Contract. 11. Appendix A Section 9, Vendor Responsibilities, D. Ability to Conduct Business in Texas, is hereby updated and restated in its entirety as follows. D. Ability to Conduct Business in Texas Vendor shall be an entity authorized and validly existing under the laws of its state of organization and shall be authorized to do business in the State of Texas. 12. Appendix Al Section 9, Vendor Responsibilities, H. Confidentiality, is hereby updated and restated in its entirety as follows: H. Confidentiality 1) Vendor acknowledges that DIR and Customers that are state agencies are government agencies subject to the Texas Public Information Act. Vendor also acknowledges that DIR and Customers that are state agencies will comply with the Public Information Act, and with all opinions of the Texas Attorney General's office concerning this Act. 2) Under the terms of the Contract, DIR may provide Vendor with information related to Customers. Vendor shall not re -sell or otherwise distribute or release Customer information to any party in any manner Amendment 2 Contract Number DIR-SDD-890 Page 4 of 8 13. Appendix A, Section 9, Vendor Responsibilities, I. Security of Premises, Equipment, Data and Personnel, is hereby updated and restated in its entirety as follows: I. Security of Premises, Equipment, Data and Personnel Vendor and/or Order Fulfiller may, from time to time during the performance of the Contract, have access to the personnel, premises, equipment, and other property, including data, files and /or materials (collectively referred to as "Data") belonging to the Customer Vendor and/or Order Fulfiller shall use their best efforts to preserve the safety security, and the integrity of the personnel, premises equipment, Data and other property of the Customer, in accordance with the instruction of the Customer Vendor and/or Order Fulfiller shall be responsible for damage to Customer's equipment, workplace, and its contents when such damage is caused by its employees or subcontractors. If a Vendor and/or Order Fulfiller fails to comply with Customer's security requirements, then Customer may immediately terminate its Purchase Order and shall be responsible for services performed and products delivered. 14. Appendix A, Section 9, Vendor Responsibilities, N. Required Insurance Coverage, is hereby added to the Contract as follows: N. Required Insurance Coverage As a condition of this Contract with DIR, Vendor shall, upon request, provide to requesting Customer evidence the listed insurance coverage within 5 days of execution of the Contract if the Vendor is awarded services which require that Vendor's employees perform work at any Customer premises and/or use employer vehicles to conduct work on behalf of Customers. Upon Customer request, when engaged by a Customer to provide services on Customer premises, the Vendor shall, at its own expense, secure and maintain the insurance coverage specified herein, and shall provide proof of such insurance coverage to the related Customer, upon request within five (5) business days following the execution of the Purchase Order. Vendor may not begin performance under the Contract and/or a Purchase Order until such proof of insurance coverage is provided toDIR and the Customer. All required insurance must be issued by companies that are A- financially rated and duly licensed admitted, and authorized to do business in the State of Texas. If requested, Vendor will add the Customer and DIR as Additional Insureds on Commercial Liability and Automobile Liability Insurance coverages. Required coverage must remain in effect through the term of the applicable Purchase Order issued to Vendor there under. The minimum acceptable insurance provisions are as follows: 1) Commercial General Liability Commercial General Liability must include a combined single limit of $500,000 per occurrence for coverage A, B, & C including products/completed operations, where appropriate, with a separate aggregate of $500,000. The policy shall contain the following provisions: Amendment 2 Contract Number DIR-SDD-890 Page 5 of 8 a) Blanket contractual liability coverage for liability assumed under the Contract; b) Independent Contractor coverage; c) State of Texas, DIR and upon Customer request, Customer will be listed as an additional insured; d) Vendor's insurers shall endeavor to provide a 30-day Notice of Termination in favor of DIR and/or Customer; and e) Blanket Waiver of Transfer Right of Recovery Against Others in favor of DIR and/or Customer 2) Workers' Compensation Insurance Workers' Compensation Insurance and Employers' Liability coverage must include limits consistent with statutory benefits outlined in the Texas Workers' Compensation Act (Art. 8308-1.01 et seq. Tex Rev. Civ. Stat) and minimum policy limits for Employers' Liability of $250 000 bodily injury per accident, $500,000 bodily injury disease policy limit and $250,000 per disease per employee. 3) Business Automobile Liability Insurance Business Automobile Liability Insurance must cover all owned, non -owned and hired vehicles with a minimum combined single limit of $500,000 per occurrence for bodily injury and property damage. Alternative acceptable limits are $250,000 bodily injury per person, $500,000 bodily injury per occurrence and at least $100 000 property damage liability per accident. The policy shall contain the following endorsements in favor of DIR and/or Customer: a) Blanket Waiver of Subrogation; b) Vendor's insurers shall endeavor to provide a 30-day Notice of Termination; and c) Blanket Additional Insured. 15. Appendix A Section 9, Vendor Responsibilities, O. Use of State Property, is hereby added to the Contract as follows: O. Use of State Property Vendor is prohibited from using the Customer's equipment, the Customer's Location, or any other resources of the Customer or the State of Texas for any purpose other than performing services under this Agreement For this purpose, equipment includes, but is not limited to copy machines, computers and telephones using State of Texas long distance services. Any charges incurred by Vendor using the Customer's equipment for any purpose other than performing services under this Agreement must be fully reimbursed by Vendor to the Customer immediately upon demand by the Customer. Such use shall constitute breach of contract and may result in termination of the contract and other remedies available to DIR and Customer under the contract and applicable law. 16. Appendix Al Section 9, Vendor Responsibilities, P. Immigration, is hereby added to the Contract as follows: P. Immigration Vendor shall comply with the requirements of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA") and the Immigration Act of 1990 (8 U S.C.1101, et seq.) regarding employment verification and retention of verification forms for any individual(s) hired on or after the effective date of 1996 Act., who will perform any labor or services under this Contract. Amendment 2 Contract Number DIR-SDD-890 Page 6 of 8 17. Appendix A, Section 9, Vendor Responsibilities, Q. Public Disclosure, is hereby added to the Contract as follows. Q. Public Disclosure No public disclosures or news releases pertaining to this contract shall be made without prior written approval of DIR. 18. Appendix Al Section 9, Vendor Responsibilities, R. Substitutions, is hereby added to the Contract as follows: R. Substitutions Substitutions are not permitted without the written permission of DIR or Customer. 19. Appendix Al Section 10, Contract Enforcement, B Termination, 2) Absolute Rights, is hereby updated and restated in its entirety as follows: 2) Absolute Right DIR shall have the absolute right to terminate the Contract without recourse in the event that: i) Vendor becomes listed on the prohibited vendors list authorized by Executive Order #13224, "Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism'; published by the United States Department of the Treasury, Office of Foreign Assets Control; ii) Vendor becomes suspended or debarred from doing business with the federal government as listed in the Excluded Parties List System (EPLS) maintained by the General Services Administration or (iii) Vendor is found by DIR to be ineligible to hold this Contract under Subsection (b) of Section 2155.006, Texas Government Code. Vendor shall be provided written notice in accordance with Section 11.A, Notices, of intent to terminate 20. Appendix A, Section 10, Contract Enforcement, B Termination, 5) Customer Rights Under Termination, is hereby updated and restated in its entirety as follows. 5) Customer Rights Under Termination In the event the Contract expires or is terminated for any reason, a Customer shall retain its rights under the Contract and the Purchase Order issued prior to the termination or expiration of the Contract. The Purchase Order survives the expiration or termination of the Contract for its then effective term. 21. Appendix Al Section 10, Contract Enforcement, B Termination, 6) Vendor or Order Fulfiller Rights Under Termination, is hereby updated and restated in its entirety as follows: 6) Vendor or Order Fulfiller Rights Under Termination In the event a Purchase Order expires or is terminated, a Customer shall pay: 1) all amounts due for products or services ordered prior to the effective termination date and ultimately accepted, and 2) any applicable early termination fees agreed to in such Purchase Order or Statement of Work. Amendment 2 Contract Number DIR-SDD-890 Page 7 of 8 22. Appendix E, Master Lease Agreement, is hereby replaced in its entirety as follows with Appendix E Dated: December 2009: 23. All other terms and conditions of the Contract as amended, not specifically modified herein, shall remain in full force and effect. DIR retains the right to require further amendment to the Contract to update its terms and conditions as may be reasonable, necessary or required. In the event of conflict among the provisions, the order of precedence shall be this Amendment Number 2, Amendment Number 1 and then the Contract. IN WITNESS WHEREOF, the parties hereby execute this amendment to be effective as of January 13, 2010. Dell Marketing, L.P. By: sicjnature on file Name: Ashleigh Lane Title: Public Contract Manager Date: January 8, 2010 The State of Texas, acting by and through the Department of Information Resources By: sicinature on file Name: Cindy Reed Title: Deputy Executive Director, Operations & Statewide Technology Sourcing Date: 1 /12/2010 Legal: Cynthia Kreider. 1/12/10 Amendment 2 Contract Number DIR-SDD-890 Page 8 of 8 DocuSign Envelope ID: D3C3388B-8AEE-473C-9737-3909B2D2C0D1 EXHIBIT C NETWORK ACCESS AGREEMENT This NETWORK ACCESS AGREEMENT ("Agreement") is made and entered into by and between the CITY OF FORT WORTH ("City"), a home rule municipal corporation with its principal location at 1000 Throckmorton Street, Fort Worth, Texas 76102, organized under the laws of the State of Texas and situated in portions of Tarrant, Denton and Wise Counties, Texas, and F5 Networks, Inc. with its principal location at 401 Elliott Ave West, Seattle, WA 98119, ("Contractor"). 1. The Network. The City owns and operates a computing environment and network (collectively the "Network"). Contractor wishes to access the City's network in order to provide Services set forth in the Professional Services Agreement executed between the parties on , 2010 ("PSA"). In order to provide the necessary support, Contractor needs access to the City's two F5 LTM devices serial numbered f5-neys-nrps and f5-mxlc-pupj. 2. Grant of Limited Access. Contractor is hereby granted a limited right of access to the City's Network for the sole purpose of providing such services as set forth in the PSA. Such access is granted subject to the terms and conditions forth in this Agreement and applicable provisions of the City's Administrative Regulation D-7 (Electronic Communications Resource Use Policy), of which such applicable provisions are hereby incorporated by reference and made a part of this Agreement for all purposes herein and are available upon request. 3. Network Credentials. The City will provide Contractor with Network Credentials consisting of user IDs and passwords unique to each individual requiring Network access on behalf of the Contractor. Access rights will automatically expire one (1) year from the date of this Agreement. If this access is being granted for purposes of completing services for the City pursuant to a separate contract, then, this Agreement will expire at the completion of the contracted services, or upon termination of the contracted services, whichever occurs first. Services are being provided in accordance with City Secretary Contract N o. 4. Renewal. At the end of the first year and each year thereafter, this Agreement may be renewed annually if the following conditions are met: 4.1 Contracted services have not been completed. 4.2 Contracted services have not been terminated. 4.3 Within the thirty (30) days prior to the scheduled annual expiration of this Agreement, the Contractor has provided the City with a current list of its officers, agents, servants, employees or representatives requiring Network credentials. N otwithstanding the scheduled contract expiration or the status of completion of services, Contractor shall provide the City with a current list of officers, agents, servants, employees or representatives that require N etwork credentials on an annual basis. Failure to adhere to this requirement may result in denial of access to the Network and/or termination of this Agreement. 5. Network Restrictions. Contractor officers, agents, servants, employees or representatives may not share the City -assigned user IDs and passwords. Contractor acknowledges, agrees and hereby gives its authorization to the City to monitor, as reasonably necessary, Contractor's use of the City's Network such as login/logoff events and Internet usage through proxy log reporting tools in order to ensure Contractor's compliance with this Agreement. A breach by Contractor, its officers, agents, servants, employees or representatives, of this Agreement and any other written instructions or guidelines that the City provides to Contractor pursuant to this Agreement shall be grounds for the City immediately to deny Contractor access to the Network and Contractor's Data, terminate the Agreement, and pursue any other remedies that the City may have under this Agreement or at law or in equity. err Vendor NAA OFFICIAL 6tECuRD CITY SECRETARY Ft WORTH, TX Rev. 2/23/2009 DocuSign Envelope ID: D3C3388B-8AEE-473C-9737-3909B2D2C0D1 6. Termination. In addition to the other rights of termination set forth herein, the City may terminate this Agreement at any time and for any reason with or without notice, and without penalty to the City. Upon termination of this Agreement, Contractor agrees to remove entirely any client or communications software provided by the City from all computing equipment used and owned by the Contractor, its officers, agents servants, employees and/or representatives to access the City's Network. 7. Information Security. Contractor agrees to make every reasonable effort in accordance with industry accepted security practices to protect the Network credentials and access methods provided by the City from unauthorized disclosure and use. Contractor agrees to notify the City immediately upon discovery of a breach or threat of breach which could compromise the integrity of the City's Network, including but not limited to, theft of Contractor -owned equipment that contains City -provided access software, termination or resignation of officers, agents, servants, employees or representatives with access to City -provided Network credentials, and unauthorized use or sharing of Network credentials 8. LIABILITY AND INDEMNIFICATION. CONTRACTOR SHALL BE LIABLE AND RESPONSIBLE FOR ALL DAMAGES THAT THE CITY MAY INCUR DIRECTLY ON ACCOUNT OF ANY BREACH OF THIS AGREEMENT BY CONTRACTOR, ITS OFFICERS AGENTS, SERVANTS OR EMPLOYEES. THE CITY, ITS OFFICERS, AGENTS SERVANTS AND EMPLOYEES, SHALL NOT BE LIABLE FOR ANY DAMAGES THAT CONTRACTOR MAY INCUR AS A RESULT OF THE CITY'S RESTRICTIONS TO OR DENIAL OF ACCESS TO DATA ON ACCOUNT OF ANY BREACH OF THIS AGREEMENT BY CONTRACTOR, ITS OFFICERS AGENTS, SERVANTS OR EMPLOYEES, OR FOR ANY REASONABLE SECURITY MEASURES TAKEN BY THE CITY. IN ADDITION, CONTRACTOR SHALL BE LIABLE AND RESPONSIBLE TO THE CITY FOR ANY AND ALL REAL OR TANGIBLE PERSONAL PROPERTY LOSS, PROPERTY DAMAGE AND/OR PERSONAL INJURY, INCLUDING DEATH, AND ALL CLAIMS, DEMANDS AND JUDGMENTS THEREFOR, TO THE EXTENT CAUSED BY THE NEGLIGENT ACT(S) OR OMISSION(S) OR INTENTIONAL MISCONDUCT OF CONTRACTOR ITS OFFICERS AGENTS, SERVANTS AND/OR EMPLOYEES. CONTRACTOR, AT CONTRACTOR'S OWN COST OR EXPENSE, HEREBY AGREES TO INDEMNIFY, DEFEND AND HOLD HARMLESS THE CITY, ITS OFFICERS, AGENTS, SERVANTS AND/OR EMPLOYEES FROM AND AGAINST ANY CLAIM, LAWSUIT, DEMAND OR OTHER ACTION TO THE EXTENT THAT THE SAME ARISES FROM THE NEGLIGENT ACT(S) OR OMISSION(S) OR INTENTIONAL MISCONDUCT OF CONTRACTOR ITS OFFICERS, AGENTS, SERVANTS OR EMPLOYEES. CITY SHALL BE LIABLE AND RESPONSIBLE TO CONTRACTOR FOR ANY AND ALL REAL OR TANGIBLE PERSONAL PROPERTY LOSS, PROPERTY DAMAGE AND/OR PERSONAL INJURY, INCLUDING DEATH, AND ALL CLAIMS, DEMANDS AND JUDGMENTS THEREFOR, TO THE EXTENT CAUSED BY THE NEGLIGENT ACT(S) OR OMISSION(S) OR INTENTIONAL MISCONDUCT OF THE CITY, ITS OFFICERS, AGENTS, SERVANTS AND/OR EMPLOYEES. 9. Confidential Information. Confidential Information shall be governed by Section 5 of the PSA, Disclosure of Conflicts and Confidential Information 10. Right to Audit. Contractor agrees that the City shall, during the initial term, any renewal terms, and until the expiration of two (2) years after termination or expiration of this contract have access to and the right to examine during normal business hours any directly pertinent books, data, documents, papers and records, both hard copy and electronic, of the Contractor involving Contractor's use of the Network under this Agreement. Contractor agrees that the City shall have access during normal working hours to all necessary Contractor facilities and shall be provided adequate and appropriate work space in order to conduct audits in compliance with the provisions of this section. The City shall give Contractor reasonable advance notice of intended audits 11. Agreement Cumulative. This Agreement is governed by the PSA and incorporated fully therein as Exhibit C. 12 Amendments. The terms of this Agreement shall not be waived, altered, modified, supplemented, or amended in any manner except by written instrument signed by an authorized representative of both the City and Contractor. Vendor Network Access Agreement 2 F5 Networks, Inc. Rev. 2/23/2009 DocuSign Envelope ID: D3C3388B-8AEE-473C-9737-3909B2D2C0D1 13. Assignment. Neither party may assign or in any way transfer any of its interest in this Agreement without the other party's written consent. Any attempted assignment or transfer of all or any part hereof shall be null and void. 14. Severabilitv. If any provision of this Agreement is held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired. 15. Force Maieure. Each party shall exercise its best efforts to meet its respective duties and obligations as set forth in this Agreement, but shall not be held liable for any delay or omission in performance due to force majeure or other causes beyond their reasonable control (force majeure), including, but not limited to, compliance with any government law, ordinance or regulation, acts of God, acts of the public enemy, fires, strikes, lockouts, natural disasters, wars, riots, material or labor restrictions by any governmental authority, transportation problems and/or any other similar causes. 16. Governing Law / Venue. This Agreement shall be construed in accordance with the laws of the State of Texas. If any action, whether real or asserted, at law or in equity, is brought on the basis of this Agreement, venue for such action shall lie in state courts located in Tarrant County, Texas or the United States District Court for the Northern District of Texas, Fort Worth Division. 17. Signature Authority. The signature below of an authorized representative acknowledges that the Contractor has read this Agreement and agrees to be bound by terms and conditions set forth herein. ACCEPTED AND AGREED: CITY OF FO"T WORTH: JOULV2 By: Karen L. Montgomery Assistant City Manager !� / Date: ! 0/ / 6 !� ver ATTEST: By: Inn OtAi Marty Hendrix City Secretary I O MREQUIRED &C COKRACTOR: F5 Networks, Inc. 950A74AC C D49R By: R mi9n uw1L PX&I riier__ Title: Di rector, Consu I ti ng North America Date: 1U/ b/LULU ATTEST: APPROVED AS • FORM D LEGALITY: 1 Assistant City ttorney M & C: none required Vendor Network Access Agreement F5 Networks, Inc. By: 3 Title: AVeitq ©Qoa agog ri or) ° cos 0 p" o p! J'' r %' _�gpU .', Cit,5c-s.ce 4•11,tatc)iss' OFFICIAL RECORD CITY SECRETARY Ft WORTH, TX Rev. 2/23/2009