HomeMy WebLinkAboutContract 55977 CSC No. 55977
CITY OF FORT WORTH
COOPERATIVE PURCHASE AGREEMENT
This Cooperative Purchase Agreement ("Agreement") is entered into by and between G4 Spatial
Technologies,LLC. ("Vendor") and the City of Fort Worth, ("City"), a Texas home rule municipality.
The Cooperative Purchase Agreement includes the following documents which shall be construed in the
order of precedence in which they are listed:
1. This Cooperative Purchase Agreement;
2. Exhibit A— Seller's Quote, Scope of Services or Purchase Order;
3. Exhibit B—Cooperative Agency Contract(e.g.,NJPA, DIR, BuyBoard); and
4. Exhibit C—Conflict of Interest Questionnaire.
Exhibits A, B, and C which are attached hereto and incorporated herein, are made a part of this
Agreement for all purposes. Vendor agrees to provide City with the services and goods included in
Exhibit A pursuant to the terms and conditions of this Cooperative Purchase Agreement, including all
exhibits thereto.
City shall pay Vendor in accordance with the fee schedule in Exhibit A and in accordance with
the provisions of this Agreement. Total payment made under this Agreement for the first year by City
shall be in the amount not to exceed One Hundred Thousand Dollars ($100,000.00).Vendor shall not
provide any additional items or services or bill for expenses incurred for City not specified by this
Agreement unless City requests and approves in writing the additional costs for such services. City shall
not be liable for any additional expenses of Vendor not specified by this Agreement unless City first
approves such expenses in writing.
The term of this Agreement shall be for one year beginning on May 28,2021 and ending on May
27, 2022. City shall be able to renew this agreement for four (4) one-year renewal options by written
agreement of the parties.
Vendor agrees that City shall,until the expiration of three(3)years after final payment under this
Agreement, or the final conclusion of any audit commenced during the said three years, have access to
and the right to examine at reasonable times any directly pertinent books,documents,papers and records,
including, but not limited to, all electronic records, of Vendor involving transactions relating to this
Agreement at no additional cost to City. Vendor agrees that City shall have access during normal
working hours to all necessary Vendor facilities and shall be provided adequate and appropriate work
space in order to conduct audits in compliance with the provisions of this section. City shall give Vendor
reasonable advance notice of intended audits.
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:
OFFICIAL RECORD
CITY SECRETARY
FT. WORTH, TX
To CITY: To VENDOR:
City of Fort Worth G4 Spatial Technologies, LLC
Attn: Jesus J. Chapa, Deputy City Manager Attn: John Clark
200 Texas Street 4111 Todd Lane 4H 1100
Fort Worth, TX 76102-6314 Austin, TX 78744
Facsimile: (817) 392-8654 Facsimile: 512-447-9879
With copy to Fort Worth City Attorney's Office
at same address
IP Indemnification. Vendor agrees to indemnify, defend, settle, or pay, at its own cost and
expense, including the payment of attorney's fees, any claim or action against the City for
infringement of any patent,copyright,trade mark,service mark,trade secret,or other intellectual
property right arising from City's use of the Deliverable(s), or any part thereof, in accordance
with the Agreement, it being understood that the agreement to indemnify, defend, settle or pay
shall not apply if City modifies or misuses the Deliverable(s). So long as Vendor bears the cost and
expense of payment for claims or actions against the City pursuant to this section 8,Vendor shall
have the right to conduct the defense of any such claim or action and all negotiations for its
settlement or compromise and to settle or compromise any such claim; however, City shall have
the right to fully participate in any and all such settlement, negotiations, or lawsuit as necessary to
protect the City's interest,and City agrees to cooperate with Vendor in doing so.In the event City,
for whatever reason, assumes the responsibility for payment of costs and expenses for any claim
or action brought against the City for infringement arising under the Agreement, the City shall
have the sole right to conduct the defense of any such claim or action and all negotiations for its
settlement or compromise and to settle or compromise any such claim; however,Vendor shall fully
participate and cooperate with the City in defense of such claim or action. City agrees to give
Vendor timely written notice of any such claim or action,with copies of all papers City may receive
relating thereto. Notwithstanding the foregoing, the City's assumption of payment of costs or
expenses shall not eliminate Vendor's duty to indemnify the City under the Agreement. If the
Deliverable(s), or any part thereof, is held to infringe and the use thereof is enjoined or restrained
or, if as a result of a settlement or compromise, such use is materially adversely restricted,
Vendor shall, at its own expense and as City's sole remedy, either: (a)procure for City the right to
continue to use the Deliverable(s); or (b)modify the Deliverable(s)to make them/it non-infringing,
provided that such modification does not materially adversely affect City's authorized use of the
Deliverable(s); or (c)replace the Deliverable(s)with equally suitable, compatible,and functionally
equivalent non-infringing Deliverable(s) at no additional charge to City; or (d) if none of the
foregoing alternatives is reasonably available to Vendor, terminate the Agreement, and refund all
amounts paid to Vendor by the City, subsequent to which termination City may seek any and all
remedies available to City under law. VENDOR'S OBLIGATIONS HEREUNDER SHALL BE
SECURED BY THE REQUISITE INSURANCE COVERAGE REQUIRED BY CITY.
Data Breach. Vendor further agrees that it will monitor and test its data safeguards from
time to time, and further agrees to adjust its data safeguards from time to time in light of relevant
circumstances or the results of any relevant testing or monitoring. If Vendor suspects or becomes
aware of any unauthorized access to any financial or personal identifiable information ("Personal
Data")by any unauthorized person or third party, or becomes aware of any other security breach
relating to Personal Data held or stored by Vendor under the Agreement or in connection with the
performance of any services performed under the Agreement or any Statement(s)of Work ("Data
Breach"), Vendor shall immediately notify City in writing and shall fully cooperate with City at
Vendor's expense to prevent or stop such Data Breach. In the event of such Data Breach,Vendor
shall fully and immediately comply with applicable laws, and shall take the appropriate steps to
remedy such Data Breach. Vendor will defend, indemnify and hold City, its Affiliates, and their
respective officers,directors,employees and agents,harmless from and against any and all claims,
suits,causes of action,liability,loss,costs and damages,including reasonable attorney fees,arising
out of or relating to any third party claim arising from breach by Vendor of its obligations
contained in this Section, except to the extent resulting from the acts or omissions of City. All
Personal Data to which Vendor has access under the Agreement,as between Vendor and City,will
remain the property of City. City hereby consents to the use, processing and/or disclosure of
Personal Data only for the purposes described herein and to the extent such use or processing is
necessary for Vendor to carry out its duties and responsibilities under the Agreement, any
applicable Statement(s) of Work,or as required by law.Vendor will not transfer Personal Data to
third parties other than through its underlying network provider to perform its obligations under
the Agreement,unless authorized in writing by City.Vendor's obligation to defend,hold harmless
and indemnify City shall remain in full effect if the Data Breach is the result of the actions of a
third party. All Personal Data delivered to Vendor shall be stored in the United States or other
jurisdictions approved by City in writing and shall not be transferred to any other countries or
jurisdictions without the prior written consent of City.
No Boycott of Israel. If Vendor has fewer than 10 employees or the Agreement is for less than
$100,000, this section does not apply. Vendor acknowledges that in accordance with Chapter 2270 of
the Texas Government Code, City is prohibited from entering into a contract with a company for goods
or services unless the contract contains a written verification from the company that it: (1) does not
boycott Israel; and(2)will not boycott Israel during the term of the contract. The terms"boycott Israel"
and "company" shall have the meanings ascribed to those terms in Section 808.001 of the Texas
Government Code. By signing this Addendum, Vendor certifies that Vendor's signature provides written
verification to City that Vendor: (1) does not boycott Israel; and(2) will not boycott Israel during the
term of the Agreement.
Governing Law and 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.
1. Disclosure of Conflicts and Confidential Information.
1.1. Disclosure of Conflicts. Vendor hereby warrants to the City that Vendor has made
full disclosure in writing of any existing or potential conflicts of interest related to Vendor's
services under this Agreement. In the event that any conflicts of interest arise after the Effective
Date of this Agreement, Vendor hereby agrees immediately to make full disclosure to the City
in writing.
1.2. Confidential Information. The City acknowledges that Vendor may use products,
materials, or methodologies proprietary to Vendor. The City agrees that Vendor's provision of
services under this Agreement shall not be grounds for the City to have or obtain any rights in
such proprietary products, materials, or methodologies unless the parties have executed a
separate written agreement with respect thereto. Vendor, for itself and its officers, agents and
employees,agrees that it shall treat all information provided to it by the City("City Information")
as confidential and shall not disclose any such information to a third party without the prior
written approval of the City.
1.3. Public Information Act. City is a government entity under the laws of the State
of Texas and all documents held or maintained by City are subject to disclosure under the Texas
Public Information Act. In the event there is a request for information marked Confidential or
Proprietary, City shall promptly notify Seller. It will be the responsibility of Seller to submit
reasons objecting to disclosure. A determination on whether such reasons are sufficient will not
be decided by City,but by the Office of the Attorney General of the State of Texas or by a court
of competent jurisdiction.
1.4. Unauthorized Access. Vendor 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. Vendor shall notify the City immediately if the security or
integrity of any City information has been compromised or is believed to have been
compromised, in which event, Vendor shall, in good faith, use all commercially reasonable
efforts to cooperate with the City in identifying what information has been accessed by
unauthorized means and shall fully cooperate with the City to protect such information from
further unauthorized disclosure.
2. Termination.
2.1. Convenience.Either the City or Vendor may terminate this Agreement at any time
and for any reason by providing the other party with 30 days written notice of termination.
2.2. Breach. If either party commits a material breach of this Agreement, the non-
breaching Party must give written notice to the breaching party that describes the breach in
reasonable detail. The breaching party must cure the breach ten (10) calendar days after receipt
of notice from the non-breaching party, or other time frame as agreed to by the parties. If the
breaching party fails to cure the breach within the stated period of time, the non-breaching party
may, in its sole discretion, and without prejudice to any other right under this Agreement, law,
or equity, immediately terminate this Agreement by giving written notice to the breaching party.
2.3. Fiscal Funding Out. In the event no funds or insufficient funds are appropriated
by the City in any fiscal period for any payments due hereunder, the City will notify Vendor 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.
2.4. Duties and Obligations of the Parties. In the event that this Agreement is
terminated prior to the Expiration Date, the City shall pay Vendor for services actually rendered
up to the effective date of termination and Vendor 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, Vendor shall provide the City
with copies of all completed or partially completed documents prepared under this Agreement.
In the event Vendor has received access to City information or data as a requirement to perform
services hereunder, Vendor shall return all City provided data to the City in a machine readable
format or other format deemed acceptable to the City.
[SIGNATURE PAGE FOLLOWS]
The undersigned represents and warrants that he or she has the power and authority to execute this
Agreement and bind the respective Vendor.
ACCEPTED AND AGREED:
CITY OF FORT WORTH CONTRACT COMPLIANCE MANAGER:
By signing I acknowledge that I am the
person responsible for the monitoring and
administration of this contract, including
By: Jesus J.Chapa(Ju18, 02117:29CDT) ensuring all performance and reporting
Name: Jesus J. Chapa requirements.
Title: Deputy City Manager
APPROVAL RECOMMENDED: 17
By: Sasha Kane(Jun 30,202116:45 CDT)
Name: Sasha Kane
Title: Sr. Contract Compliance Specialist
By: Neil Noakes(Jul 8,202115:12 CDT)
Name: Neil Noakes APPROVED AS TO FORM AND
Title: Chief of Police LEGALITY:
ATTEST: "F°FORT4-i
000 0 By:
o o* Name: Taylor Paris
By: d� °°°°°°°°°°°° a Title: Assistant City Attorney
Name: Mary J. Kayser aa��nEXA54ap
Title: City Secretary CONTRACT AUTHORIZATION:
M&C: (None Required)
Date Approved:
Form 1295 Certification No.: NIA
G4 SPATIAL TECHNOLOGIES, LLC.
(All CAPS)
By:
Name: John Clatk
Title: Managing Partners
OFFICIAL RECORD
CITY SECRETARY
FT. WORTH, TX
Exhibit A - Seller's Pricing
G4 Spatial Technologies-DIR-CPO-4752,expires 05/27/2026
Code# Description Unit Price Discount DIR Price
777970 GDF323 Tribrach Pro 345.00 18% 282.90
870985 GAD122 Adapter for GST with 5/8" 110.00 18% 90.20
210710 Industrial Line 2-Way Elevating Tripod 1,529.00 18°I 1,253.78
878411 Pleeve Big to GST80 Tripod Leg 12.80 18% 10.495
878412 Sleeve Middle to GST80 Tripod Leg 12.80 18% 10.495
878413 Sleeve Small to GST80 Tripod Leg 13.70 18% 11.235
6009454 1 year P40 Silver CCP Extension 12,800.00 8% 11,776.00
Cyclone PUBLISHER PRO CCP 3 Yr,
6012198 4/8/2022-4/7/2025 2,860.00 8% 2,631.20
Cyclone SURVEY CCP 3 yr,
6007870 4/8/2022-4/7/2025 3,500.00 8% 3,220.00
Cyclone REGISTER CCP 3 yr,
6007861 4/8/2022-4/7/2025 3,500.00 8% 3,220.00
Truview Cloud Subscription(250sp,1 yr),
5308089 8/1/2022-7/31/2025 1,850.00 8% 1,702.00
6012673 RTC360 Package 78,236.65 18% 64,154.05
6013575 3 yr RTC360 Laser Scanner CCP Silver 11,040.00 18% 10,156.80
842066 GST80 Tripod Carbon 2,300.001 18% 1,986.00
922795 Map360 Pro Software Maintenance 1 yr 1 1,600.001 8% 1 1,472.00
G4 Spatial Technologies, LLC
Vendor ID 1352339336500 DIR Contract Number DIR-CPO-4752
URL NIA Contract Term End 5/27/2023
HUB Type Non HUB Date
Contract Exp Date 5/27/2026
Contact G4 Spatial Technologies. LLC Contact DIR
Contact John Clark Contact J=UilaJackson
Phone (512)569-8376 Phone (512)463-3374
Fax NIA Fax (512)475-4759
G4 Spatial Technologies, LLC
DI R-CPO-4752
Appendix C -Pricing Index
DISCOUN
CATEGORY
BRAND
OFF fASRIP
Leica Geosystems Tier 1-Surveying Hardware&Software 19AGOM
Leica Geosystems Tier 2-High Definition Surveying(HDS)Reality Capture 18 a0%
RC Hardware and Software
Tier 3-Non Hardware and Software(Accessories,
Leica Geosystems Tier
Trainin Customer Care Packages)
Exhibit B —Cooperative Agency Contract(e.g., NJPA, DIR, BuyBoard); and
Department of Information Resources
Geographic Information Systems(GIS) Hardware, Software, and Services and Information
Technology(IT)Based Surveying Hardware, Software and Related Services
AppendixA
Standard Contract Terms and Conditions
Awarded as a result of Request for Offer SIR-CPO-TMP-AA4
Version 1.1
D I R-CPO-4752
Appendix A
Standard Terms and Conditions for Product and Services Contracts
Table of Contents
1. Contract Scope...................................................................................................................................1
2. No Ctuantity 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..........................................................................................................3
D. Assignment................................................................................................................................3
E. Survival......................................................................................................................................3
F. Choice of Law............................................................................................................................4
G. Limitation of Authority..............................................................................................................4
H. Proof of Financial Stability.........................................................................................................4
I. Data Location.............................................................................................................................4
5. Intellectual Property Matters..............................................................................................................4
A. Definitions.................................................................................................................................4
B. Ownership.................................................................................................................................5
C. Further Actions..........................................................................................................................6
D. Waiver of Moral Rights..............................................................................................................6
E. Confidentiality...........................................................................................................................6
F. Injunctive Relief.........................................................................................................................7
G. Return of Materials Pertaining to Work Product......................................................................7
H. Vendor License to Use...............................................................................................................7
I. Third-Party Underlying and Derivative Works..........................................................................7
J. Agreement with Subcontracts...................................................................................................7
K. License to Customer..................................................................................................................8
L. Vendor Development Rights.....................................................................................................8
6. Product Terms and Conditions............................................................................................................8
A. Under Texas Government Code, Chapter 2054, Subchapter M, and DIR
implementing rules, DIR state agency and Institution of Higher Education
Customers must procure E I R that complies with the Accessibility Standards..........................8
8. Purchase of Commodity Items(Applicable to State Agency Purchases Only)..........................9
7. Contract Fulfillment and Promotion...................................................................................................9
A. Service,Sales and Support of the Contract.............................................................................10
B. Use of Order Fulfillers and Resellers.......................................................................................10
1) Designation of Order Fulfillers and Resellers...................................................................10
2) Changes in Order Fulfiller and Reseller List......................................................................10
1 1 16120 1 9 i
DIR-CPC-4752
Appendix A
Standard Terms and Conditions for Product and Services Contracts
3) Order Fulfiller and Reseller Pricing to Customer..............................................................10
C. Product Warranty and Return Policies....................................................................................11
D. Customer Site Preparation......................................................................................................11
E. Internet Access to Contract and Pricing Information..............................................................11
1) Vendor Webpage..............................................................................................................11
2) Accurate and Timely Contract Information......................................................................12
3) Webpage Compliance Checks...........................................................................................12
4) Webpage Changes............................................................................................................12
5) Use of Access Data Prohibited..........................................................................................12
6) Responsibility for Content................................................................................................12
F. DIR Logo...................................................................................................................................12
G. Vendor and Order Fulfiller and Reseller Logo.........................................................................12
H_ Trade Show Participation........................................................................................................13
I. Orientation Meeting................................................................................................................13
J. Performance Review Meetings...............................................................................................13
K. D I R Cost Avoidance.................................................................................................................13
8. Pricing,Purchase Orders,Invoices,and Payments...........................................................................13
A. Manufacturer's 5uggested Retail Price(MS RP)or List Price...................................................13
B. Customer Discount..................................................................................................................14
C. Customer Price........................................................................................................................14
D. Shipping and Handling Fees....................................................................................................14
E. Tax-Exempt..............................................................................................................................14
F. Travel Expense Reimbursement..............................................................................................14
G. Changes to Prices....................................................................................................................15
H_ Purchase Orders......................................................................................................................15
I. Invoices....................................................................................................................................15
J. Payments.................................................................................................................................16
9. Con tract Administration....................................................................................................................16
A. Contract Managers..................................................................................................................16
1) State Contract Manager....................................................................................................16
2) Vendor Contract Manager................................................................................................16
B. Reporting and Administrative Fees.........................................................................................16
1) Reporting Responsibility...................................................................................................16
2) Detailed Monthly Report..................................................................................................16
3) Historically Underutilized Businesses Subcontract Reports.............................................17
4) ❑IR Administrative Fee.....................................................................................................17
5) Accurate and Timely Submission of Reports....................................................................17
C. Records and Audit...................................................................................................................18
D. Contract Administration Notification......................................................................................19
10. Vendor Responsibilities.....................................................................................................................19
A. Indemnification.......................................................................................................................19
1) INDEPENDENT CONTRACTOR...........................................................................................19
2) ACTS OR OMISSIONS.........................................................................................................19
3) INFRINGEMENTS...............................................................................................................20
4) PROPERTY DAMAGE..........................................................................................................20
111612019
❑IR-CPC-4752
Appendix A
Standard Terms and Conditions for Product and Services Contracts
B. Taxes/Worker's Compensation/UNEMPLOYMENT INSURANCE.............................................20
C. Vendor Certifications...............................................................................................................21
D. Education Department General Administrative Regulations(EDGAR)...................................23
E. Ability to Conduct Business in Texas.......................................................................................23
F_ Equal Opportunity Compliance...............................................................................................23
G. Use of Subcontractors.............................................................................................................24
H. Responsibility for Actions........................................................................................................24
I. Confidentiality.........................................................................................................................24
J. Security of Premises,Equipment,Data and Personnel...........................................................24
K. Background and/or Criminal History Investigation.................................................................25
L. Limitation of Liability...............................................................................................................25
M. Overcharges.............................................................................................................................25
N. Prohibited Conduct.................................................................................................................25
0. Required Insurance Coverage.................................................................................................26
P. Use of State Property..............................................................................................................27
Q. Immigration.............................................................................................................................27
R. Public Disclosure......................................................................................................................28
S. Product and/or Services Substitutions....................................................................................28
T. Secure Erasure of Hard Disk Products and/or Services...........................................................28
U. Deceptive Trade Practices;Unfair Business Practices.............................................................28
V. Drug Free Workplace Policy....................................................................................................28
W. Accessibility of Public Information..........................................................................................28
X. Vendor Reporting Requirements............................................................................................29
Y. Cybe rsecu r ity Training.............................................................................................................29
11. Contract Enforcement.......................................................................................................................29
A. Enforcement of Contract and Dispute Resolution..................................................................29
B. Termination.............................................................................................................................29
1) Termination for Non-Appropriation.................................................................................30
2) Absolute Right...................................................................................................................30
3) Termination for Convenience...........................................................................................30
4) Termination for Cause......................................................................................................31
5) Immediate Termination or Suspension............................................................................31
6) Customer Rights Under Termination................................................................................31
7) Vendor or Order Fulfiller or Reseller Rights Under Termination......................................32
C. Force Majeure.........................................................................................................................32
12. Notification........................................................................................................................................32
A. Notices.....................................................................................................................................32
B. Handling of Written Complaints..............................................................................................32
13. Captions 33
11 6:`2019 iii
❑IR-CPC-4752
The following terms anid conditions shall govern the conduct of DIR and Vendor during the term of the
Contract.
1. Contract Scope.
Note: NO EXCEPTIONS OR REVISIONS WILL BE CONSIDERED
The Vendor shall provide the products and 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 Fulfillers and/or ReseIIer 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 Quarrtity Guarantees.
Note: NO EXCEPTIONS OR REVISIONS WILL BE CONSIDERED
The Contract is not exclusive to the Vendor. Customers may obtain products and related services
from other sources during the term of the Contract. DIR makes no express or implied warranties
whatsoever that any particular quantity or dollar amount of products and services will be
procured through the Contract.
3. Definitions
A. Customer-any Texas state agency,unit of local government,institution of higher education
as defined in Section 2054.003,Texas Government Code,the Electric Reliability Council of
Texas,the Lower Colorado River Authority,a private school,as defined by Section 5.001,
Education Code, a private or independent institution of higher education, as defined by
Section 61.003, Education Code, a volunteer fire department, as defined by Section
152.001,Tax Code,a public safety entity,as defined by 47 U.S.C.Section 1401,or a county
hospital,public hospital,or hospital district,_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 InterlocaI 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 non profit organiza tion 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
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DIR-CPC-4752 Page 1 of 33
used computer equipment to public school students and their families;and
9) A nonprofit organization that provides affordable housing.
B. Compliance Check—an audit of Vendor's compliance with the Contract may be performed
by,but not limited to,a third party auditor, DI Internal Audit department,or DIR contract
management staff or their designees.
C. Contract—the document executed between ❑IR and Vendor into which this Appendix A is
incorporated.
D. CPA—refers to the Texas Comptroller of Public Accounts.
E. Day-shall mean business days,Monday through Friday,except for State and Federal holidays,
unless otherwise specified as calendar days. If the Contract calls for performance on a day
that is not a business day,then performance is intended to occur on the next business day.
F. Order Fulfiller—the party,either Vendor or a party that may be designated by Vendor,who
is fulfilling a Purchase Order pursuant to the Contract.
G. Reseller — any third party approved by Vendor to sell to eligible Customers under this
Contract. Vendor will How this Contract's terms and conditions to its Resellers under his
Contract,except that pricing shall be as follows:Vendor offers pricing to its Reseller(s)and
such Resellers shall resell to the eligible Customers products under this Contract at or below
the price(s) in Appendix C, Pricing Index, of this Contract. Resellers may receive Purchase
Orders and fulfill them in their own name.All terms and conditions of this Contract shall apply
to both Vendor and Reseller.
H. 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).
I. State—refers to the State of Texas.
4. General Provisions.
A. Entire Agreement
The Contract,Appendices,and Exhibits constitute the entire agreement between DIR and the
Vendor.No statement,promise,condition,understanding,inducement or representation,oral
or written, expressed or implied,which is not contained in the Contract, Appendices, or its
Exhibits shall be binding or valid.
B. Modification of Contract Terms and/or Amendments
1) The terms and conditions of the Contract shall govern all transactions by Customers under
the Contract. The Contract may only be modified or amended upon mutual written agreement
of DIR and Vendor.
2) DIR may amend the contract upon thirty (30) calendar days written notice to Vendor
without the need for a formal contract amendment: i) as necessary to satisfy a regulatory
requirement imposed upon DIR by a governing body with the appropriate authority,or ii) as
necessary to satisfy a procedural change due to DIR system upgrades or additions.
3) 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 and Reseller may be added in a Purchase Order and given effect.
No additional term or condition added in a Purchase Order issued by a Customer can conflict
with or diminish a term or condition of the Contract.Pre-printed terms and conditions on any
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DIR-CPC-4752 Page 2 of33
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.
4) Customers and Vendor will negotiate and enter into written agreements regarding
statements of work, service level agreements, remedies, acceptance criteria, information
confidentiality and security requirements, price (subject to the maximum prices set forth in
Appendix C), and other terms specific to their Purchase Orders under the Contract with
Vendors.
C. Invalid Term or Condition
1)To the extentany term or condition in the Contract conflicts with the applicable State and/or
United States law or regulation,such Contract term or condition is void and unenforceable.By
executing a contract which contains the conflicting term or condition, DIR makes no
representations or warranties regarding the enforceability of such term or condition and DIR
does not waive the applicable State and/or United States law or regulation which conflicts with
the Contract term or condition.
2) If one or more terms or conditions in the Contract, or the application of any term or
condition to any party or circumstance,is held invalid,unenforceable,or illegal in any respect
by a final judgment or order of the State Office of Administrative Hearings or a court of
competent jurisdiction, the remainder of the Contract and the application of the term or
condition to other parties or circumstances shall remain valid and in full force and effect.
D. Assignment
1)DIR may assign the Contract to:i)a successor in interest(for DIR,another state agency as
designated by the Texas Legislature),or ii)as necessary to satisfy a regulatory requirement
imposed upon a party by a governing body with the appropriate authority.
2)Vendor may assign the Contract with prior written approval to a subsidiary,pa rentcompany,
affiliate, or successor. Assignment of the Contract by vendor under the above terms shall
require written notification by Vendor and a mutually agreed written Contract amendment.
E. Survival
All applicable software license agreements, warranties or service agreements that were
entered into between Vendor and a Customer under the terms and conditions of the Contract
shall survive the expiration or termination of the Contract All Purchase Orders issued and
accepted by Vendor or Order Fulfiller or Reseller shall survive expiration or termination of the
Contract for the term of the Purchase Order,unless the Customer terminates the Purchase
Order sooner. However,regardless of the term of the Purchase Order, no Purchase Order
shall survive the expiration or termination of the Contract for more than five years, unless
Customer makes an express finding and justification for the longer term. The finding and
justification must either be included in the Purchase Order,or referenced in it and maintained
in Customers procurement record. Rights and obligations under this Contract which by their
nature should survive,including,but not limited to the DIR Administrative Fee;and any and
all payment obligations invoiced prior to the termination or expiration hereof;obligations of
confidentiality; and, indemnification, will remain in effect after termination or expiration
hereof.
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F. Choice of Law
The laws of the State shall govern the construction and interpretation of the Contract.
Exclusive venue for all actions will be in state court, Travis County,Texas. Nothing in the
Contract or its Appendices shall be construed to waive the State's sovereign immunity.
G. Limitation of Authority
Vendor shall have no authority to act for or on behalf of the Texas Department of Information
Resources or the State except as expressly provided for in this Contract;no other authority,
power or use is granted or implied.Vendor may not incur any debts,obligations,expenses,or
liabilities of any kind on behalf of the State or DIR.
H. Proof of Financial Stability
Either DIR or Customer may require Vendor to provide proof of financial stability prior to or
at any time during the contract term.
1. Data Location
Regardless of any other provision of this Contract or its incorporated or referenced
documents, all of the data for State of Texas Customers identified by the State as requiring
their data to remain in the continental United States shall remain,and be stored,processed,
accessed, viewed,transmitted, and received, always and exclusively within the contiguous
United States. A State of Texas Customer can specifically request otherwise. For all local
governments and education customers with in the State of Texas,as well as Customers outside
the State of Texas'jurisdiction,the question of data location shall beat the discretion of such
Customers. NOTE:CLIENTS SHOULD CONSIDER WHETHER THEY REQUIRE CONTINENTAL US-
ONLY DATA LOCATION AND HANDLING AND MAKE VENDOR AWARE OF THEIR
REQUIREMENTS.
5. Intellectual Property Matters
A. Definitions
1)"Work Product"means any and all deliverables produced by Vendor for Customer under a
Statement of Work issued pursuant to this Contract, including any and all tangible or
intangible items or things that have been or will be prepared,created,developed,invented
or conceived at any time fallowing the effective date of the Contract,including but not limited
to any (i) works of authorship (such as manuals, instructions, printed material, graphics,
artwork,images,illustrations,photographs,computer programs,computer software,scripts,
object code, source code or other programming code, HTML code, flow charts, notes,
outlines,lists,compilations,manuscripts,writings,pictorial materials,schematics,formulae,
processes,algorithms,data,information,multimedia files,text web pages or web sites,other
written or machine readable expression of such works fixed in any tangible media, and all
other copyrightable works),(ii)trademarks,service marks,trade dress,trade names,logos,or
other indicia of source or origin, (iii) ideas, designs,concepts, personality rights,methods,
processes, techniques, apparatuses, inventions, formulas, discoveries, or improvements,
including any patents,trade secrets and know-how, (iv)domain names, (v)any copies,and
similar or derivative works to any of the foregoing, (vi) all documentation and materials
related to any of the foregoing,(vii)all other goods,services or deliverables to be provided to
Customer under the Contract or a Statement of Work,and(viii)all Intellectual Property Rights
in any of the foregoing,and which are or were created, prepared, developed, invented or
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conceived for the use or benefit of Customer in connection with this Contract or a Statement
of Work, or with funds appropriated by or for Customer or Customer's benefit: (a)by any
Vendor personnel or Customer personnel,or(b)any Customer personnel who then became
personnel to Vendor or any of its affiliates or subcontractors,where, although creation or
reduction-to-practice is completed while the person is affiliated with Vendor or its personnel,
any portion of same was created,invented or conceived by such person while affiliated with
Customer.
2)"Intellectual Property Rights"means the worldwide legal rights or interests evidenced by
or embodied in:(i)any idea,design,concept,personality right,method,process,technique,
apparatus, invention,discovery,or improvement, including any patents,trade secrets, and
know-how;(ii)any work of authorship,including any copyrights,moral rights or neighboring
rights;(iii)any trademark,service mark,trade dress,trade name,or other indicia of source or
origin; (iv) domain name registrations;and (v) any other proprietary or similar rights. The
Intellectual Property Rights of a party include all worldwide legal rights or interests that the
party may have acquired by assignment or license with the right to grant sublicenses.
3) "Statement of Work" means a document signed by Customer and Vendor describing a
specific set of activities and/or deliverables,which may include Work Product and Intellectual
Property Rights, that Vendor is to provide Customer,issued pursuant to the Contract.
4)`Third Party IP"means the Intellectual Property Rights of any third party that is not a party
to this Contract, and that is not directly or indirectly providing any goods or services to
Customer under this Contract.
5)"Vendor IP"shall mean all tangible or intangible items or things,including the Intellectual
Property Rights therein,created or developed by Vendor(a)prior to providing any Services
or Work Product to Customer and prior to receiving any documents,materials,information
or funding from or on behalf of Customer relating to the Services or Work Product,or(b)after
the Effective Date of the Contract if such tangible or intangible items or things were
independently developed by Vendor outside Vendor's provision of 5ervioes or Work Product
far Customer hereunder and were not created,prepared,developed,invented or conceived
by any Customer personnel who then became personnel to Vendor or any of its affiliates or
subcontractors, where, although creation or reduction-to-practice is completed while the
person is affiliated with Vendor or its personnel,any portion of same was created,invented
or conceived by such person while affiliated with Customer.
B. Ownership.
As between Vendor and Customer,the Work Product and Intellectual Property Rights therein
are and shall be owned exclusively by Customer,and not Vendor. Vendor specifically agrees
that the Work Product shall be considered"works made for hire"and that the Work Product
shall,upon creation,be owned exclusively by Customer. To the extent that the Work Product,
under applicable law,may not be considered works made for hire,Vendor hereby agrees that
the Contract effectively transfers, grants, conveys, assigns, and relinquishes exclusively to
Customer all right,title and interest in and to all ownership rights in the Work Product,and
all Intellectual Property Rights in the Work Product, without the necessity of any further
consideration, and Customer shall be entitled to obtain and hold in its own name all
Intellectual Property Rights in and to the Work Product. Vendor acknowledges that Vendor
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and Customer do not intend Vendor to be a joint author of the Work Product within the
meaning of the Copyright Act of 1976. Customer shall have access,during normal business
hours(Monday through Friday,8AM to 5PM)and upon reasonable prior notice to Vendor,to
all Vendor materials,premises and computer files containing the Work Product. Vendor and
Customer, as appropriate, will cooperate with one another and execute such other
documents as may be reasonably appropriate to achieve the objectives herein.No license or
other right is granted hereunder to any Third Party IP,except as may be incorporated in the
Work Product by Vendor.
C. Further Actions.
Vendor,upon request and without further consideration,shall perform any acts that may be
deemed reasonably necessary or desirable by Customer to evidence more fully the transfer
of ownership and/or registration of all Intellectual Property Rights in all Work Product to
Customer to the fullest extent possible, including but not limited to the execution,
acknowledgement and delivery of such further documents in a form determined by Customer.
In the event Customer shall be unable to obtain Vendor's signature due to the dissolution of
Vendor or Vendor's unreasonable failure to respond to Customer's repeated requests for such
signature on any dacument reasonably necessary for any purpose set forth in the foregoing
sentence, Vendor hereby irrevocably designates and appoints Customer and its duly
authorized officers and agents as Vendor's agent and Vendor's attorney-in-fact to act for and
in Vendor's behalf and stead to execute and file any such document and to d❑ all other
lawfully permitted acts to further any such purpose with the same force and effect as if
executed and delivered by Vendor,provided however that no such grant of right to Customer
is applicable if Vendor fails to execute any document due to a good faith dispute by Vendor
with respect to such document. It is understood that such power is coupled with an interest
and is therefore irrevocable. Customer shall have the full and sole power to prosecute such
applications and to take all other action concerning the Work Product, and Vendor shall
cooperate, at Customer's sole expense, in the preparation and prosecution of all such
applications and in any legal actions and proceedings concerning the Work Product.
D. Waiver of Moral Rights.
Vendor hereby irrevocably and forever waives,and agrees never to assert,any Moral Rights
in or to the Work Product which Vendor may now have or which may accrue to Vendor's
benefit under U.S.or foreign copyright or other laws and any and all other residual rights and
benefits which arise under any other applicable law now in force or hereafter enacted.
Vendor acknowledges the receipt of equitable compensation for its assignment and waiver of
such Moral Rights. The term "Moral Rights" shall mean any and all rights of paternity or
integrity of the Work Product and the right to object to any modification,translation or use
of the Work Product,and any similar rights existing under the judicial or statutory law of any
country in the world or under any treaty, regardless of whether or not such right is
denominated or referred to as a moral right.
E. Confidentiality.
All doCuments,information and materials forwarded to Vendor by Customer for use in and
preparation of the Work Product shall be deemed the confidential information of Customer,
and subject to the license granted by Customer to Vendor under sub-paragraph H. hereunder.
Vendor shall not use,disclose,or permit any person to use or obtain the Work Product,or
any portion thereof,in any manner without the prior written approval of Customer.
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F. Injunctive Relief.
The Contract is intended to protect Customer's proprietary rights pertaining to the Work
Product,and the Intellectual Property Rights therein,and any misuse of such rights would
cause substantial and irreparable harm to Customer's business. Therefore, Vendor
acknowledges and stipulates that a court of competent jurisdiction may immediately enjoin
any material breach of the intellectual property,use,and confidentiality provisions of this
Contract,upon a request by Customer,without requiring proof of irreparable injury as same
should be presumed.
G. Return of Materials Pertaining to Work Product
Upon the request of Customer,butin any event upon termination or expiration of this Contract
or a Statement of Work, Vendor shall surrender to Customer all documents and things
pertaining to the Work Product, including but not limited to drafts, memoranda, notes,
records,drawings, manuals, computer software, reports,data,and all other documents or
materials(and copies of same)generated or developed by Vendor or furnished by Customer
to Vendor, including all materials embodying the Work Product, any Customer confidential
information, or Intellectual Property Rights in such Work Product, regardless of whether
complete or incomplete. This section is intended to apply to all Work Product as well as to all
documents and things furnished to Vendor by Customer or by anyone else that pertain to the
Work Product.
H. Vendor License to Use.
Customer hereby grants to Vendor a non-transferable, non-exclusive,royalty-free,fully paid-
up license to use any Work Product solely as necessary to provide the Services to Customer.
Except as provided in this Section,neither Vendor nor any Subcontractor shall have the right
to use the Work Product in connection with the provision of services to its other customers
without the prior written consent of Customer,which consent may be withheld in Customer's
sole discretion.
I. Third-Party Underlying and Derivative Works.
To the extent that any Vendor IP or Third Party IP are embodied or reflected in the Work
Product,or are necessary to provide the Services,Vendor hereby grants to the Customer,or
shall obtain from the applicable third party for Customer's benefit,the irrevocable,perpetual,
non-exclusive, worldwide, royalty-free right and license, for Customer's internal business
purposes only, to (i) use, execute, reproduce, display, perform, distribute copies of, and
prepare derivative works based upon such Vendor IP or Third Party IP and any derivative works
thereof embodied in or delivered to Customer in conjunction with the Work Product,and(ii)
authorize others to do any or all of the foregoing. Vendor agrees to notify Customer on
delivery of the Work Product or Services if such materials include any Third Party IP. On
request,Vendor shall provide Customer with documentation indicating a third party's written
approval for Vendor to use any Third Party IP that may be embodied or reflected in the Work
Product.
J. Agreement with S u bco rrtra cts.
Vendor agrees that it shall have written agreement(s)that are consistent with the provisions
hereof related to Work Product and Intellectual Property Rights with any employees,agents,
consultants,contractors or subcontractors providing Services or Work Product pursuant to the
Contract,prior to their providing such Services or Work Product,and that it shall maintain such
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written agreements at all times during performance of this Contract,which are sufficient to
support all performance and grants of rights by Vendor. Copies of such agreements shall be
provided to the Customer promptly upon request.
K. License to Customer.
Vendor grants to Customer, a perpetual, irrevocable, royalty free license, solely for the
Customer's internal business purposes,to use,copy,modify,display,perform(by any means),
transmit and prepare derivative works of any Vendor I embodied in or delivered to Customer
in conjunction with the Work Product. The foregoing license includes the right to sublicense
third parties, solely for the purpose of engaging such third parties to assist or carryout
Customer's internal business use of the Work Product. Except for the preceding license, all
rights in Vendor IP remain in Vendor.
L. Vendor Development Rights.
To the extent not inconsistent with Customer's rights in the Work Product or as set forth
herein,nothing in this Contract shall preclude Vendor from developing for itself,or for others,
materials which are competitive with those produced as a result of the Services provided
hereunder, provided that no Work Product is utilized,and no Intellectual Property Rights of
Customer therein are infringed by such competitive materials. To the extent that Vendor
wishes to use the Work Product, or acquire licensed rights in certain Intellectual Property
Rights of Customer therein in order to offer competitive goods or services to third parties,
Vendor and Customer agree to negotiate in good faith regarding an appropriate license and
royalty agreement to allow for such.
5. Product Terms and Conditions
Note: NO EXCEPTIONS OR REVISIONS WILL BE CONSIDERED
A. Under Texas Government Code,Chapter 2054,Subchapter M,and DIR implementing rules,
DIR state agency and Institution of Higher Education Customers must procure EIR that
complies with the Accessibility Standards defined 1nthe Texas Administrative Codes 1 TAC
206,1 TAC 213,and in the Worldwide Web Consortium WCAG 2.0 AA technical standard as
applicable,and when such products or services are available in the commercial marketplace
or when such products are developed in response to procurement solicitations.
1) Upon request, and prior to a DIR customer purchase, Vendors must provide accurate
Accessibility Conformance Reports (ACRs) created using the applicable sections of the
Voluntary Product Accessibility Template"(VPAT�)Revised Section 508 Edition(Version 2.3 or
higher)or links to ACRs located on manufacturer websites for Commercial Off the Shelf(COTS)
products, including Software as a Service (SaaS), for each product or product family (as
applicable)included in the submitted pricelist. Instructions on how to complete this document
are included in the template itself. ACRs based on earlier versions of the VPATI template will
be accepted if such competed ACRs already exist, and there have been no changes to the
product/service since the time of the original document completion.
Vendors claiming that a proposed product or family of products is exempt from
accessibility requirements must specify the product(s) as such in "Notes" located in the
product information section of the VPAT v.2.3 or higher,or as an additional note in the product
information section of older VPAT versions of the form,specifying each exempt product or
product family with a supporting statement(s)for this position.
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2) Upon request,and prior to a DIR customer purchase for IT development services,Vendors
must provide a completed, current, accurate, Vendor Accessiblity Development Services
Information Request(VADSIR) form for non-COTS offerings (such as IT related development
services, services that include user accessed, online components, etc.) which documents
Vendor's capability or ability to produce accessible electronic and information resources.
Additionally,vendors must ensure that FIR Accessibility criteria are integrated into key
phases of the project development lifecycle including but not limited to planning, design,
development, functional testing, user acceptance testing, maintenance; and report
accessibility status at key project checkpoints as defined by DIR customers.
3) Upon request,and prior to a DIR customer purchase for COTS products,or IT development
services Vendors must provide a completed, current, accurate, Policy Driven Adoption for
Accessibility(PDAA)for Vendor Self-Assessment.
Also upon request,vendors must provide additional documentation that supports the
information contained in the formentioned completed forms in#1,2,3.Examples may include
but are not limited to executed accessibility test plans and results,corrective actions plans,
description of accessibility test tools,platforms,and methods, and prior work.
B.Purchase of Commodity Items(Applicable to State Agency Purchases Only)
1)Texas Government Code,§2157.068 requires State agencies to buy commodity items,as
defined in 6.13.2, below, in accordance with contracts developed by DIR, unless the agency
obtains an exemption from DIR or a written certification that a commodity is not on DIR
contract (for the limited purpose of purchasing from a local government purchasing
cooperative).
2)Commodity items are commercially available software,hardware and technology services
that are generally available to businesses or the public and for which DIR determines that a
reasonable demand exists in two or more state agencies.Hardware isthe 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 6.13.
7. Contract Fulfillment and Promotion
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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 a re made awa re of the ex istence of the Contract.All sa Ies to Custom ers for products
and services available under the Contract shall be processed through the Contract.
B. Use of Order Fulfillers and Resellers
DIR agrees to permit Vendor to utilize designated Order Fulfillers and Resellers to provide
service, sales and support resources to Customers. Such participation is subject to the
following conditions:
1) Designation of Order Fulfillers and Resellers
a) Vendor may designate Order Fulfillers and Resellers to act as the distributors for
products and services available under the Contract. In designating Order Fulfillers and
Resellers, 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 and Reseller information:Order
Fulfiller or Reseller name,Order Fulfiller or Reseller business address,Order Fulfiller or
Reseller CPA Identification Number, Order Fulfiller or Reseller contact person email
address and phone number.
b) DIR reserves the right to require the Vendor to rescind any such Order Fulfiller or
Reseller participation or request that Vendor name additional Order Fulfillers and
Resellers should DIR determine it is in the best interest of the State.
c) Vendor shall be fully liable for its Order Fulfillers'and Resellers'performance under
and compliance with the terms and conditions of the Contract. Vendor shall enter into
contracts with Order Fulfillers and Resellers 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 Resellers and their
participation under the Contract provided that:i)any criteria is uniformly applied to all
potential Order Fulfillers and Resellers based upon Vendors 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 or Reseller from participating in other
procurement opportunities offered through DIR.
2) Changes in Order Fulfiller and Reseller List
Vendor may add or delete Order Fulfillers and Re sellers throughout the term of the Contract
upon written authorization by DIR. Prior to adding or deleting Order Fulfillers and Resellers,
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 Fulfillers and Reseller
information listed in Section 7.B.1.a above.
3) Order Fulfiller and Reseller Pricing to Customer
Order Fulfiller and Reseller pricing to the Customer shall comply with the Customer price as
stated within Appendix A, Section 8,Pricing,Purchase Orders,Invoices and Payment,and as
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set forth in Appendix C,Pricing Index,and shall include the DIR Administrative Fee.This pricing
shall only be offered by Order Fulfillers and Resellers to Customers for sales that pass through
the Contract.
C. Product Warranty and Return Policies
Order Fulfiller and Reseller will adhere to the Vendors 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 or Reseller prior to the scheduled delivery date of any product or service and
shall bear the costs associated with the site preparation.
E. Internet Access to Contract and Pricing Information
1] Vendor Webpage
Within thirty(30) calendar days of the effective date of the Contract, Vendor will establish
and maintain a webpage specific to the products and services awarded under the Contract
that are clearly distinguishable from other, non-DIR Contract offerings on the Vendor's
website.Vendor must use a web hosting service that provides a dedicated internet protocol
(IP) address. Vendor's website must have a Secure Sockets layer (SSQ certificate and
customers must access Vendor's website using Hyper Text Transfer Protocol Secure(HTTPS)
and it will encrypt all communication between customer browser and website.The webpage
must include:
a) the products and services awarded;
b} description of product and service awarded
c} a current price list or mechanism (for example,a services calculator or product
builder)to obtain specific contracted pricing;
d} discount percentage(%)off MSRP;
e) MSRP or DIR Customer price;
f} designated Order Fulfillers and Resellers;
g} contact information(name,telephone number and email address)for Vendor and
designated Order Fulfillers and Resellers;
h} instructions for obtaining quotes and placing Purchase Orders;
i) warranty policies;
j) return policies;
k} links to manufacturer Voluntary Product Accessibility Template (VPAT) for
applicable products awarded;
I) the DIR Contract number with a hyperlink to the Contract's DIR webpage;
m} a link to the DIR"Cooperative Contracts"webpage;and
n} the DIR logo in accordance with the requirements of this Section.
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If Vendor does not meet the webpage requirements listed above,DIR may cancel the contract
without penalty.
2) Accurate and Timely Contract Information
Vendor warrants and represents that the website information specified in the above
paragraph will be accurately and completely posted,maintained and displayed in an objective
and timely manner. Vendor, at its own expense, shall correct any non-conforming or
inaccurate information posted at Vendor's website within ten(10)business days after written
notification by DIR.
3) Webpage Compliance Checks
Periodic compliance checks of the information posted for the Contract on Vendor's webpage
will be conducted by DIR. Upon request by DIR, Vendor shall provide verifiable
documentation that pricing listed upon this webpage is compliant with the pricing as stated
in the Contract.
4) Webpage Changes
Vendor hereby consents to a link from the DIR website to Vendor's webpage in order to
facilitate access to Contract information.The establishment of the link is provided solely for
convenience in carrying out the business operations of the State. ❑1R reserves the right to
suspend,terminate or remove a link at any time,in its sole discretion,without advance notice,
or to deny a future request for a link. DIR will provide Vendor with subsequent notice of link
suspension,termination or removal.Vendor shall provide DIR with timely written notice of
any change in URL or other information needed to access the site and/or maintain the link.
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
implementingor 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.
fi) Responsibility for Content
Vendor is solely responsible for administration,content,intellectual property rights,and all
materials at Vendor's website.DIR reserves the right to require a change of listed content if,
in the opinion of DIR,it does not adequately represent the Contract.
F. DIR Logo
Vendor and Order Fulfiller and Reseller may use the DIR logo in the promotion of the Contract to
Customers with the following stipulations: (i)the logo may not be modified in any way,(ii)when
displayed,the size of the DIR logo must be equal to or smaller than the Order Fulfiller or Reseller
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 Girder Fulfiller and Reseller Logo
If DIR receives Vendor's or Order Fulfiller's or Reseller's prior written approval, DIR may use the
Vendor's and Order's Fulfiller's and Reseller's name and logo in the promotion of the Contract to
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communicate the availability of products and services under the Contract to Customers. Use of
the logos may be on the DIR website or on printed materials. Any use of Vendors and Order
Fulfiller's or Reseller'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 Vendors or Order Fulfiller's or
Reseller's trademarks or the goodwill associated therewith, except for the limited usage rights
expressly provided by Vendor and Order Fulfiller and Reseller.
H. Trade Show Participation
At DIR's discretion,Vendor and Order Fulfillers and Resellers may be required to participate in no
more than two DIR sponsored trade shows each calendar year. Vendor understands and agrees
that participation,at the Vendor's and Order Fulfiller's and Reseller'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 and Resellers 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 Fulfillers and Resellers
booth.
1. Orientation Meeting
Within thirty(30)calendar days from execution of the Contract,Vendor and Order Fulfillers and
Resellers will be required to attend an orientation meeting to discuss the content and procedures
of the Contract to include reporting requirements. DIR,at its discretion, may waive the orientation
requirement for Vendors who have previously held DIR contracts. The meeting will be held in the
Austin, Texas area at a date and time mutually acceptable to DIR and the Vendor or by
teleconference or by webinar,at DIR's discretion. DIR shall bear no cost for the time and travel of
the Vendor or Order Fulfillers and Resellers for attendance at the meeting.
J. Performance Review Meetings
DIR may require the Vendor to attend periodic meetings to review the Vendor's performance
under the Contract,at DIR's discretion. The meetings may be held within the Austin,Texas area
at a date and time mutually acceptable to DIR and the Vendor or by teleconference. DIR shall bear
no cost for the time and travel of the Vendor for attendance at the meeting.
K. DIR Cost Avoidance
As part of the performance measures reported to state leadership, DIR must provide the cost
avoidance the State has achieved through the Contract. Upon request by DIR,Vendor shall provide
DIR with a detailed report of a representative sample of products sold under the Contract.The
report shall contain: product part number, product description, list price and price to Customer
under the Contract.
S. Pricing,Purchase Orders,Invoices,and Payments
Note: NO EXCEPTIONS OR REVISIONS WILL BE CONSIDERED
A. Manufacturer's Suggested Retail Price(MSRP)or List Price
Note: NO EXCEPTIONS OR REVISIONS WILL BE CONSIDERED
MSRP is defined as the product sales price list published in some form by the manufacturer
or publisher of a product and available to and recognized by the trade. A price list especially
prepared for a given solicitation is not acceptable.
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B. Customer Discount
Note: NO EXCEPTIONS OR REVISIONS WILL BE CONSIDERED
The minimum Customer discount for all products and services will be the percentage off MSRP
as specified in Appendix C,Pricing Index.
C. Customer Price
Note: NO EXCEPTIONS OR REVISIONS WILL BE CONSIDERED FOR SECTION C1
1)The price to the Customer shall be calculated as follows:
Customer Price=(MSRP or List Price—Customer Discount as set forth in Appendix C,Pricing
Index)x(1+DI Administrative Fee,as set forth in the Contract).
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) If pricing for products or services available under this Contract is provided by the Vendor
at a lower price to:(i)an eligible Customer who is not purchasing those products or services
under this Contract or (ii) to any other customer under the same terms and conditions
provided for the State for the same commodities and services under this contract,then the
available Customer Price in this Contract shall be adjusted to that lower price. This
requirement applies to products or services quoted by Vendor or its resellers for a quantity
of one(1) under like terms and conditions,and does not apply to volume or special pricing
purchases.Vendor shall notify DIR within ten(10)days and this Contract shall be amended to
reflect the lower price.
D. Shipping and Handling Fees
Note: NO EXCEPTIONS OR REVISIONS WILL BE CONSIDERED
The price to the Customer under this Contract shall include all shipping and handling fees.
Shipments will be Free On Board Customer's Destination.No additional fees shall be charged
to the Customer for standard shipping and handling. If the Customer requests expedited or
special delivery, Customer will be responsible for any charges for expedited or special
delivery.
E. Tax-Exempt
Note: NO EXCEPTIONS OR REVISIONS WILL BE CONSIDERED
As per Section 151.309,Texas Tax Code,Customers under this Contract are exempt from the
assessment of State sales,use and excise taxes. Further,Customers under this Contract are
exempt from Federal Excise Taxes,26 United States Code Sections 4253(i)and(j). Customers
shall provide evidence of tax-exempt status to Vendor upon request.
F_ Travel Expense Reimbursement
Note: NO EXCEPTIONS OR REVISIONS WILL BE CONSIDERED
Pricing for services provided under this Contract are exclusive of any travel expenses that may
be incurred in the performance of those services. Travel expense reimbursement may include
personal vehicle mileage or commercial coach transportation, hotel accommodations,
parking and meals;provided,however,the amount of reimbursement by Customers shall not
1 11W2019
❑IR-CPO-4752 Pap 14of33
exceed the amounts authorized for state employees as adopted by each Customer; and
provided, further, that all reimbursement rates shall not exceed the maximum rates
established for state employees under the current State Travel Management Program
(https://comptroller.tex as.govlpurchasing/programs/traveI-management/).Travel time may
not be included as part of the amounts payable by Customer for any services rendered under
this Contract.The DIR administrative fee specified in the Contract is not applicable to travel
expense reimbursement. Anticipated travel expenses must be pre-approved in writing by
Customer. Customer reserves the right not to pay travel expenses which are not pre-
approved in writing by the Customer.
G. Changes to Prices
Subject to the requirements of this section,Vendor may change the price of any product or
service at any time, based upon changes to the MSRP, but discount levels shall remain
consistent with the discount levels specified in this Contract.
Vendor may revise its pricing(but not its discount rate,if any,and not the products or services
on its contract pricing list) by posting a revised pricing list. Such revised pricing lists are
subject to review by DIR. If DIR finds that a product's or service's price has been increased
unreasonably,DIR may request Vendor to reduce its pricing for the product or service to the
level published before the revision. Vendor must reduce its pricing,or remove the product
from its pricing list. Failure to do so will constitute an act of default by Vendor.
H. Purchase Orders
Note. NO EXCEPTIONS OR REVISIONS WILL BE CONSIDERED
All Customer Purchase Orders will be placed directly with the Vendor or Order Fulfiller or
Reseller. Accurate Purchase Orders shall be effective and binding upon Vendor or Order
Fulfillers or Reseller when accepted by Vendor or Order Fulfiller or Reseller. Customer and
Vendor may work together to include specific requirements as to what constitutes a valid
Purchase Order.
Vendors will be required to comply with the disclosure requirements of Section 2252.908,
Texas Government Code, as enacted by House Bill 1295, 84`t' Regular Session, when
execution of a contract requires an action or vote by the governing body of a governmental
entity before the contract may be signed.
1. Invoices
Nate: NO EXCEPTIONS OR REVISIONS WILL BE CONSIDERED
1] Invoices shall be submitted by the Vendor or Order Fulfiller or Reseller 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 Vendor or
Order Fulfiller or Reseller. For Customers that are not subject to Chapter 2251, Texas
Government Code,Customer and Vendor will agree to acceptable terms.
2)Invoices must be timely and accurate.Each invoice must 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.
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DIR-CPC-4752 PdL'C 15af33
3)The administrative fee asset forth in the Contract shall not be broken out as a separate line
item when pricing or invoice is provided to Customer.
J. Payments
Note: NO EXCEPTIONS OR REVISIONS WILL BE CONSIDERED
Customers shall corn ply with Chapter 2251,Texas Govern mentCode,in making payments to
Order Fulfiller or Reseller.The statute states that payments for goods and services are due
thirty(30)calendar days after the goods are provided,the services completed,or a correct
invoice is received,whichever is later. Payment under the Contract shall not foreclose the
right to recover wrongful payments. For Customers that are not subject to Chapter 2251,
Texas Government Code,Customer and Vendorwill agree to acceptable terms.
9. Contract Administration
Note: NO EXCEPTIONS OR REVISIONS WILL BE CONSIDERED FOR ABC-D
A. Contract Managers
Note: NO EXCEPTIONS OR REVISIONS WILL BE CONSIDERED
DIR and the Vendor will each provide a Contract Manager to support the Contract. Information
regarding the Contract Manager will be posted on the Internet website designated for the
Contract.
1) State Contract Manager
DIR shall provide a Contract Manager whose duties shall include but not be limited to: i)
advising DIR and Vendor of Vendor's compliance with the terms and conditions of the
Contract, ii) periodic verification of product pricing,and iii)verification of monthly reports
submitted by Vendor.
2) Vendor Contract Manager
Vendor shall identify a specific Contract Manager whose duties shall include but not be limited
to: i) supporting the marketing and management of the Contract, ii) facilitating dispute
resolution between a Order Fulfiller or Reseller and a Customer,and iii)advising DIR of Order
Fulfillers or Resellers performance under the terms and conditions of the Contract. DIR
reserves the right to require a change in Vendor's then-current Contract Manager if the
assigned Contract Manager is not,in the reasonable opinion of DIR,adequately serving the
needs of the State.
B. Reporting and Administrative Fees
1) Reporting Responsibility
a) Vendor shall be responsible for reporting all products and services purchased through
Vendor and Order Fulfillers and Resellers under the Contract. Vendor shall file the
monthly reports,subcontract reports,and pay the administrative fees in accordance with
the due dates specified in this section.
b) DIR shall have the right to verify required reports and to take any actions necessary
to enforce its rights under this section,including but not limited to compliance checks of
Vendor's applicable Contract.Vendor will provide all required documentation at no cost.
2) Detailed Monthly Report
Vendor shall electronically provide DIR with a detailed monthly report in the format
required by DIR showing the dollar volume of any and all sales under the Contract for the
1 11W2019
DIR-CPO-4752 Pate 16of33
previous calendar month period. Reports are due on the fifteenth(15')calendar day of
the month following the month of the sale. If the 15"calendar day falls on a weekend or
state or federal holiday,the report shall be due on the next business day. The monthly
report shall include,per transaction:the detailed sales for the period,Customer name,
invoice date, invoice number, description, quantity, MSRP or List Price, unit price,
extended price,Customer Purchase Order number,contact name,Customer's complete
billing address,the estimated administrative fee for the reporting period,subcontractor
name, EPEAT designation (if applicable),configuration (if applicable),contract discount
percentage,actual discount percentage,negotiated contract price(if fixed price is offered
instead of discount off of MSRP),and other information as required by DIR. Each report
must contain all information listed above per transaction or the report will be rejected
and returned to the Vendor for correction in accordance with this section. Vendor shall
report in a manner required by DIR which is subject to change dependent upon ❑IR's
business needs. Failure to do so may result in contract termination.
3) Historically Underutilized Businesses Subcontract Reports
a) Vendor shall electronically provide each Customer with Vendor's relevant Historically
Underutilized Business Subcontracting Report,pursuant to the Contract,as required by
Chapter 2161,Texas Government Code. Reports shall also be submitted to DIR.
b) Reports shall be due in accordance with the CPA rules.
4) DI R Administrative Fee
a) The Vendor shall pay an administrative fee to DIR to defray the DIR costs of
negotiating,executing,and administering the Contract.The maximum administrative fee
is set by the Texas Legislature in the biennial General Appropriations Act. DIR will review
Vendor monthly sales reports, close the sales period, and notify the Vendor of the
administrative fee no later than the fourteenth(14")day of the second month following
the date of the reported sale.Vendor shall pay the administrative Tree by the twenty-fifth
(25") calendar day of the second month following the date of the reported sale. For
example, Vendor reports January sales by February 15"; DIR closes January sales and
notifies Vendor of administrative fee by March 14"';Vendor submits administrative fee
for January sales by March 25*.
b) DIR may change the amount of the administrative fee upon thirty(30)calendar days
written notice to Vendor without the need for a formal contract amendment.
c) Vendor shall reference the DIR Contract number,re porting period,and administrative
fee amount 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 administrative fee payments within three(3) business days upon
written notification by DIR. Vendor shall deliver any late reports or late administrative
fee payments within three(3)business days upon written notification by DIR. If Vendor
is unable to correct inaccurate reports or administrative fee payments or deliver late
reports and fee payments within three(3) business days,Vendor must contact DIR and
provide a corrective plan of action,including the timeline for completion of correction.
The corrective plan of action shall be subject to DIR approval.
b) Should Vendor fail to correct inaccurate reports or cure the delay in timely delivery
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DIR-CPC-4752 Page 17of33
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 in
C.3 of this Section,at Vendor's expense. DIR will select the auditor(and all payments to
auditor will require DIR approval).
c) Failure to timely submit three(3) reports or administrative fee payments within any
rolling twelve (12) month period may,at DIR's discretion, result in the addition of late
fees of$100/day for each day the report or payment is due (up to$1000/month) or
suspension or termination of Vendor's Contract.
C. Records and Audit
Note: NO EXCEPTIONS OR REVISIONS WILL BE CONSIDERED IN SUBPARAGRAPH ONE(1)
1) Acceptance of funds under the Contract by Vendor and/or Order Fulfiller and/or Reseller
acts as acceptance of the authority of the State Auditors Office,or any successor agency or
designee,to conduct an audit or investigation in connection with those funds.Vendor further
agrees to cooperate fully with the State Auditor's Office or its successor or designee in the
conduct of the audit or investigation,including providing all records requested.Vendor will
ensure that this clause concerning the authority to audit funds received indirectly by
subcontractors through Vendor or directly by Order Fulfillers or Resellersand the requirement
to cooperate is included in any subcontract or Order Fulfillers or Reseller 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 and Resellers shall maintain adequate records to establish
compliance with the Contract until the later of a period of seven (7)years after termination
of the Contract or until full, final and unappealable resolution of all Compliance Check or
litigation issues that arise under the Contract. Such records shall include per transaction:the
Order Fulfiller's or Reseller's company name if applicable, Customer name, invoice date,
invoice number,description,part number, manufacturer,quantity, MSRP or list price, unit
price,extended price,Customer Purchase Order number,contact name,Customer's complete
billing address, the calculations supporting each administrative fee owed DIR under the
Contract, Historically Underutilized Businesses Subcontracting reports, and such other
documentation as DIR may request.
3) Vendor and/or Order Fulfillers and/or Resellers shall grant access to all paper and
electronic records, books, documents,accounting procedures, practices, customer records
including but not limited to contracts,agreements,purchase orders and statements of work,
and any other items relevant to the performance of the Contract to the DIR Internal Audit
department or DIR Contract Management staff,including the compliance checks designated
by the DIR Internal Audit department, ❑1R Contract Management staff,the State Auditor's
Office,and of the United States,and such other persons or entities designated by DIR for the
purposes of inspecting,Compliance Checking and/or copying such books and records. Vendor
and/or Order Fulfiller and/or Resellers shall provide copies and printouts requested by DIR
without charge. DIR shall provide Vendor and/or Order Fulfillers and/or Resellers ten (10)
business days' notice prior to inspecting, Compliance Checking, and/or copying Vendor's
and/or Order Fulfillers records. Vendors and/or Order Fulfillers records,whether paper or
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DIR-CPC-4752 PdLFe 18of33
electronic,shall be made available during regular office hours. Vendor and/or Order Fulfiller
and/or Reseller personnel familiar with the Vendor's and/or Order Fulfiller's and/or Reseiler's
books and records shall be available to the DIR Internal Audit department,or DIR Contract
Management staff and designees as needed. Vendor and/or Order Fulfiller and/or Reseller
shall provide adequate office space to DIR staff during the performance of Compliance Check.
DIR may invoice for the reasonable costs of the audit,which Vendor must pay within thirty
(30)calendar days of receipt.
4) For procuring State Agencies whose payments are processed by the Texas Comptroller of
Public Accounts, the volume of payments made to Order Fulfillers or Resellers through the
Texas Comptroller ❑f Public Accounts and the administrative fee based thereon shall be
presumed correct unless Vendor can demonstrate to DIR's satisfaction that Vendor's
calculation of DIR's administrative fee is correct.
D. Contract Administration Notification
1) Prior to execution of the Contract,Vendor shall provide DIR with written notification of
the following: i)Vendor Contract Administrator name and contact information, ii) Vendor
sales representative name and contact information,and ii i)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) ❑IR Contract Administrator name and contact information, and ii) ❑IR
Cooperative Contracts Director contact information.
10. Vendor Responsibilities
Note: NO EXCEPTIONS OR REVISIONS WILL BE CONSIDERED IN C-M,O-S,V-W
A. Indemnification
1) INDEPENDENT CONTRACTOR
VENDOR AGREES AND ACKNOWLEDGES THAT DURING THE EXISTENCE OF THIS CONTRACT, IT
IS FURNISHING PRODUCTS AND SERVICES IN THE CAPACITY OF AN INDEPENDENT
CONTRACTOR AND THAT VENDOR IS NOT AN EMPLOYEE OF THE CUSTOMER OR THE STATE OF
TEXAS.
2) ACTS OR❑MISSIONS
Vendor shall indemnify and hold harmless the State of Texas and Customers,AND/OR THEIR
OFFICERS, AGENTS, EMPLOYEES, REPRESENTATIVES, CONTRACTORS, ASSIGNEES, AND/OR
❑ESIGNEES FROM ANY AND ALL LIABILITY,ACTIONS,CLAIMS, DEMANDS,OR SUITS,AND ALL
RELATED COSTS,ATTORNEY FEES,AND EXPENSES arising out of,or resulting from any acts or
omissions of the Vendor or its agents,employees,subcontractors,Order Fulfillers or Resellers,
or suppliers ❑f subcontractors in the execution or performance of the Contract and any
Purchase Orders issued under the Contract. THE DEFENSE SHALL BE COORDINATED BY
VENDOR WITH THE OFFICE OF THE ATTORNEY GENERAL WHEN TEXAS STATE AGENCIES ARE
NAMED DEFENDANTS IN ANY LAWSUIT AND VENDOR MAY NOT AGREE TO ANY SETTLEMENT
WITHOUT FIRST OBTAINING THE CONCURRENCE FROM THE OFFICE OF THE ATTORNEY
GENERAL. VENDOR AND THE CUSTOMER AGREE TO FURNISH TIMELY WRITTEN NOTICE TO
EACH OTHER OF ANY SUCH CLAIM.
1 11W2019
❑IR-CPO-4752 Pap 19of33
3) INFRINGEMENTS
a)Vendor shall indemnify and hold harmless the State of Texas and Customers,AND/OR
THEIR EMPLOYEES, AGENTS, REPRESENTATIVES, CONTRACTORS, ASSIGNEFS, 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 NOTICETO EACH OTHEROF ANYSUCH CLAIM.VENDORSHALLBE LIABLE
TO PAY ALL COSTS OF DEFENSE INCLUDING ATTORNEYS' FEES.THE DEFENSE SHALL BE
COORDINATED BY VENDOR WITH THE OFFICE OF THE ATTORNEY GENERAL WHEN TEXAS
STATE AGENCIES ARE NAMED DEFENDANTS IN ANY LAWSUIT AND VENDOR MAY NOT
AGREE TO ANY SETTLEMENT WITHOUT FIRST OBTAINING THECONCURRENCE FROM THE
OFFICE OFTHEATTORNEY GENERAL.
b]Vendor shall have no liability under this section if the alleged infringement is caused in
whole or in part by:(i)use of the product or service fora purpose or in a manner for which
the product or service was not designed, (ii) any modification made to the product
without Vendor's written approval, (iii) any modifications made to the product by the
Vendor pursuant to Customer's specific instructions,(iv) any intellectual property right
owned by or licensed to Customer,or(v)any use of the product or service by Customer
that is not in conformity with the terms of any applicable license agreement.
c) If Vendor becomes aware of an actual or potential claim,or Customer provides Vendor
with notice of an actual or potential claim,Vendor may(or in the case of an injunction
against Customer, shall), at Vendor's sole option and expense: (i) procure for the
Customer the right to continue to use the affected portion of the product or service,or
(ii) modify or replace the affected portion of the product or service with functionally
equivalent or superior product or service so that Customer's use is non-infringing.
4) PROPERTY DAMAGE
IN THE EVENT OF LOSS, DAMAGE, OR DESTRUCTION OF ANY PROPERTY OF CUSTOMER OR
THE STATE DUE TNTHE NEGLIGENCE,MISCONDUCT,WRONGFUL ACT OR OMISSION ONTHE
PART OF THE VENDOR,ITS EMPLOYEES,AGENTS,REPRESENTATIVES,OR SUBCONTRACTORS,
THE VENDOR SHALL PAY THE FULL COST OF EITHER REPAIR, RECONSTRUCTION, OR
REPLACEMENT OF THE PROPERTY,AT THE CUSTOMER'S SOLE ELECTION. SUCH COST SHALL
BE DETERMINED BY THE CUSTOMER AND SHALL BE DUE AND PAYABLE BY THE VENDOR
NINETY (90) CALENDAR DAYS AFTER THE DATE OF THE VENDORS RECEIPT FROM THE
CUSTOMER OF A WRITTEN NOTICE OF THE AMOUNT DUE.
B. Taxes/Worker's Compensation/UNEMPLOYMENT INSURANCE
1)V ENDOR AGREES AND ACKNOWLEDG ES THAT DURING THE EXISTENCE OF THIS CONTRACT,
VENDOR SHALL BE ENTIRELY RESPONSIBLE FOR THE LIABILITY AND PAYMENT OF VENDOR'S
AND VENDOR'S EMPLOYEES' TAXES OF WHATEVER KIND, ARISING OUT OF THE
PERFORMANCES IN THIS CONTRACT. VENDOR AGREES TO COMPLY WITH ALL STATE AND
FEDERAL LAWS APPLICABLE TO ANY SUCH PERSONS,INCLUDING LAWS REGARDING WAGES,
TAXES, INSURANCE,AND WORKERS'COMPENSATION. THE CUSTOMER AND/OR THE STATE
SHALL NOT BE LIABLE TO THE VENDOR, ITS EMPLOYEES, AGENTS, OR OTHERS FOR THE
PAYMENT OF TAXES OR THE PROVISION OF UNEMPLOYMENT INSURANCE AND/OR
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❑IR-CPC-4752 Pdge 29of33
WORKERS' COMPENSATION OR ANY BENEFIT AVAILABLE TO A STATE EMPLOYEE OR
EMPLOYEE OF ANOTHER GOVERNMENTAL ENTITY CUSTOMER.
2)VEN DOR AG REES TO INDEMNIFY AND HOLD HARMLESS CUSTOM ERS,TH E STATE OF TEXAS
AND/OR THEIR EMPLOYEES, AGENTS, REPRESENTATIVES, CONTRACTORS, AND/OR
ASSIGNEES FROM ANY AND ALL LIABILITY,ACTIONS,CLAIMS,DEMANDS,OR SUITS,AND ALL
RELATED COSTS, ATTORNEYS' FEES, AND EXPENSES, RELATING TO TAX LIABILITY,
UNEMPLOYMENT INSURANCE AND/OR WORKERS' COMPENSATION IN ITS PERFORMANCE
UNDER THIS CONTRACT. VENDOR SHALL BE LIABLE TO PAY ALL COSTS Of DEFENSE
INCLUDING ATTORNEYS'FEES. THE DEFENSE SHALL BE COORDINATED BY VENDOR WITH THE
OFFICE OF THE ATTORNEY GENERAL WHEN TEXAS STATE AGENCIES ARE NAMED
DEFENDANTS IN ANY LAWSUIT AND VENDOR MAY NOT AGREE TO ANY SETTLEMENT
WITHOUT FIRST OBTAINING THE CONCURRENCE FROM THE OFFICE OF THE ATTORNEY
GENERAL. VENDOR AND THE CUSTOMER AGREE TO FURNISH TIMELY WRITTEN NOTICE TO
EACH OTHER OF ANY SUCH CLAIM.
C. Vendor Certifications
Note: NO EXCEPTIONS OR REVISIONS WILL BE CONSIDERED
Vendor certifies on behalf of Vendor and its designated Order Fulfillers or Resellers that they:
(i) have not given,offered to give,and do not intend to give at any time hereafter
any economic opportunity, future employment, gift, loan, gratuity, special
discount, trip, favor, or service to a public servant in connection with the
Contract;
(ii) are not currently delinquent in the payment of any franchise tax owed the State
and are not ineligible to receive payment under §231.006 of the Texas Family
Code and acknowledge the Contract may be terminated and payment withheld if
this certification is inaccurate;
(iii) neither they,nor anyone acting for them,have violated the antitrust laws of the
United States or the State, nor communicated directly or indirectly to any
competitor or 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) Vendor and its principals are notsuspended or debarred from doing business with
the federal government as listed in the System for Award Management(SAM)
maintained by the General Services Administration;
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❑IR-CPC-4752 fate 21 of33
(viii) as of the effective date of the Contract,are not listed in any of the Divestment
Statute Lists published on the Texas State Comptroller's website
(https://comptroIler.texas.gov/purchasing/pubIications/divestment.ph p);
(ix) Vendor represents and warrants that,for its performance of this contract,it shall
purchase products and materials produced in the State of Texas when available
at the price and time comparable to products and materials produced outside the
state,to the extent that such is required under Texas Government Code,Section
2155.4441;
(x) agrees that all equipment and materials used in fulfilling the requirements of this
contract are of high-quality and consistent with or better than applicable industry
standards, if any. All Works and Services performed pursuant to this Contract
shall be of high professional quality and workmanship and according consistent
with or better than applicable industry standards,if any;
(xi) to the extent applicable to this scope of this Contract, Vendor hereby certifies
that it is in compliance with Subchapter Y,Chapter 361,Health and Safety Code
related to the Computer Equipment Recycling Program and its rules, 30 TAC
Chapter 328;
(xii) agree that any payments due under this contract will be applied towards any
debt,including but not limited to delinquent taxes and child support that is owed
to the State of Texas;
(xiii) are in compliance Section 669.003, Texas Government Code, relating to
contracting with executive head of a state agency;
(xiv) represent and warrant that the provision of goods and services or other
performance under the Contract will not constitute an actual or potential conflict
of interest and certify that they will not reasonably create the appearance of
impropriety,and,if these facts change during the course of the Contract,certify
they shall disclose the actual or potential conflict of interest and any
circumstances that create the appearance of impropriety;
(xv) under Section 2155.006,and Section 2261.053,Texas Government Code,are not
ineligible to receive the specified contract and acknowledge that this contract
may be terminated and payment withheld if this certification is inaccurate;
(xvi) havecompIied with the Section 556.0055,Texas Government Code,restriction on
lobbying expenditures. In addition, they acknowledge the applicability of
§2155.444 and§2155.4441,Texas Government Code,in fulfilling the terms of the
Contract;and
(xvii) represent and warrant that the Customer's payment and their receipt of
appropriated or other funds under this Agreement are not prohibited by Sections
556.005 or Section 556.009,Texas Government Code;and
(xviii) to the extent applicable to this scope of this contract,Vendor hereby certifies that
it is authorized to sell and provide warranty support for all products and services
listed in Appendix C of this contract;and
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❑IR-CPC-4752 Page 22of33
(xix) represent and warrant that in accordance with Section 2270.0D2 of the Texas
Government Code,by signature hereon,Vendor does not boycott Israel and will
not boycott Israel during the term of this Contract.
(xx) represent and warrant with Section 2155.0061, Government Code, the vendor
certifies that the individual or business entity named 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
During the term of the Contract,Vendor shall,for itself and on behalf of its Order Fulfillers
and Resellers, promptly disclose to DIR all changes that occur to the foregoing
certifications,representations and warranties.Vendor covenants to fully cooperate in the
development and execution of resulting documentation necessary to maintain an
accurate record of the certifications,representations and warranties.
In addition,Vendor understands and agrees that if Vendor responds to certain Customer
pricing requests or Statements of Work, then, in order to contract with the Customer,
Vendor may be required to comply with additional terms and conditions or certifications
that an individual customer may require due to state and federal law(e.g.,privacy and
security requirements).
D. Education Department General Administrative Regulations(EDGAR)
The Education Department of General Administrative Regulations (EDGAR) are the federal
regulations that govern all federal grants awarded by the U.S. Department of Education on or
after December 26, 2014. EDGAR encourages the use of cooperative agreements for
procurement or use of common or share goods and services in order to foster greater economy
and efficiency. DIR uses an open market competitive procurement process to award contracts as
required by Texas Government Code 2054 and 2157. If Vendor provides evidence of its EDGAR
compliance that DIR to the best of information and belief,finds to be satisfatory,then DIR may
identify Vendor as certifying that all or a portion of Vendor's listings are EDGAR eligible,and DIR
may then permit Vendor to so identify all or part of its offerings on Vendor's DIR website.In such
cases, upon request from eligible DIR customer, Vendor must complete EDGAR certification
affirmation forms to satisfy customer requirement.
E. Ability to Conduct Business in Texas
Note:NO EXCEPTIONS OR REVISIONS WILL BE CONSIDERED
Vendor and its Order Fulfiller and Reseller shall be authorized and validly existing under the laws
of its state of organization, and shall be authorized to do business in the State of Texas in
accordance with Texas Business Organizations Code,Title 1,Chapter 9.
F. Equal Opportunity Compliance
Note:NO EXCEPTIONS OR REVISIONS WILL BE CONSIDERED
Vendor agrees to abide by all applicable laws, regulations,and executive orders pertaining to
equal employment opportunity, including federal laws and the laws of the State in which its
primary place of business is located. In accordance with such laws, regulations, and executive
orders,the Vendor agrees that no person in the United States shall,on the grounds of race,color,
religion,national origin,sex,age,veteran status or handicap,be excluded from employment with
or participation in,be denied the benefits of,or be otherwise subjected to discrimination under
any program or activity performed by Vendor under the Contract.If Vendor is found to be not in
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DIR-CPC-4752 YRdge 23Of33
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 nondiscriminatory hiring and promotion policies,as well as specific information on
the composition of its principals and staff,including the identification of minorities and women in
management or other positions with discretionary or decision-making authority.
G. Use of Subcontractors
Note:NO EXCEPTIONS OR REVISIONS WILL BE CONSIDERED
If Vendor uses any subcontractors in the performance of this Contract,Vendor must make a
good faith effort in the submission of its Subcontracting Plan in accordance with the State's
Policy on Utilization of Historically Underutilized Businesses(HUB). A revised Subcontracting
Plan approved by ❑IR's HUB Office shall be required before Vendor can engage additional
subcontractors in the performance of this Contract.A revised Subcontracting Plan approved
by DIR's HUB Office shall be required before Vendor can remove subcontractors currently
engaged in the performance of this Contract. Vendor shall remain solely responsible for the
performance of its obligations under the Contract.
H. Responsibility for Actions
Note:NO EXCEPTIONS OR REVISIONS WILL BE CONSIDERED
1) Vendor is solely responsible for its actions and those of its agents, employees, or
subcontractors,and agrees that neither Vendor nor any of the foregoing has any authority to
act or speak on behalf of DIR or the State.
2)Vendor,for itself and on behalf of its subcontractors,shall report to DIR promptly when
the disclosures under Certification Statement of Exhibit A to the RFO and/or Section 10.C.
(xiii),Vendor Certifications of this Appendix A to the Contract change. Vendor covenants to
fully cooperate with DIR to update and amend the Contract to accurately disclose the status
of conflicts of interest.
I. Confidentiality
Note:NO EXCEPTIONS OR REVISIONS WILL BE CONSIDERED
1)Vendor acknowledges that DIR and Customers that are governmental bodies as defined by
Texas Government Code,Section 552.003 are subject to the Texas Public Information Act.
Vendor also acknowledges that DIR and Customers that are governmental bodies will comply
with the Public Information Act,and with all opinions of the Texas Attorney General's office
concerning this Act.
2) Under the terms of the Contract, DIR may provide Vendor with information related to
Customers.Vendor shall not re-sell or otherwise distribute or release Customer information
to any party in any manner.
J. Security of Premises,Equipment,Data and Personnel
Note:NO EXCEPTIONS OR REVISIONS WILL BE CONSIDERED
Vendor and/or Order Fulfiller and/or Reseller 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 and/or Reseller 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 and/or Reseller shall be responsible for damage to Customer's equipment,
11/6/2019
DIR-CPC-4752 YMdge 24af33
workplace,and its contents when such damage is caused by its employees or subcontractors.
If a Vendor and/or Order Fulfiller and/or Reseller fails to comply with Customer's security
requirements, then Customer may immediately terminate its Purchase Order and related
Service Agreement.
K. Background and/or Criminal History Investigation
Note:NO EXCEPTIONS OR REVISIONS WILL BE CONSIDERED
Prior to commencement of any services,background and/or criminal history investigation of
the Vendor and/or Order Fulfiller's and/or Reseller's employees and subcontractors who will
be providing services to the Customer under the Contract may be performed by the Customer..
Should any employee or subcontractor of the Vendor and/or Order Fulfiller and/or Reseller
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 ❑r request
replacement of the employee or subcontractor in question.
L. Limitation of Liability
For any claims or Cause of action arising under or related to the Contract: i) to the extend
permitted by the Constitution and the laws of the State,none of the parties shall be liable to
the other for punitive,special,or consequential damages,even if it is advised of the possibility
of such damages;and ii)Vendor's liability for damages of any kind to the Customer shall be
limited to the total amount paid to Vendor under the Contract during the twelve months
immediately preceding the accrual of the claim or cause of action. However,this limitation of
Vendor's liability shall not apply to claims of bodily injury; violation of intellectual property
rights including but not limited to patent, trademark, or copyright infringement;
indemnification requirements under this Contract; and violation of State or Federal law
including but not limited to disclosures of confidential information and any penalty of any kind
lawfully assessed as a result of such violation.
N- Overcharges
Note:NO EXCEPTIONS OR REVISIONS WILL BE CONSIDERED
Vendor hereby assigns to DIR any and all of its claims for overcharges associated with this
contract which arise under the antitrust laws of the United States,15 U.S.C.A. Section 1,et
seq.,and which arise under the antitrust laws of the State of Texas,Tex.Bus.and Comm.Code
Section 15.01,et seq.
N. Prohibited Conduct
Note.NO EXCEPTIONS OR REVISIONS WILL BE CONSIDERED
Vendor represents and warrants that, to the best of its knowledge as of the date of this
certification, neither Vendor nor any Order Fulfiller nor Reseller, subcontractor, firm,
corporation, partnership, or institution represented by Vendor, nor anyone acting for such
Order Fulfiller, Reseller, 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.
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❑IR-CPC-4752 Page 25of33
D. Required Insurance Coverage
As a condition of this Contract with DIR,Vendor shall provide the listed insurance coverage
within 5 business days of execution of the Contract if the Vendor is awarded services which
require that Vendor's employees perform work at any Customer premises and/or use
employer vehicles to conduct work on behalf of Customers. In addition,when engaged by a
Customer to provide services on Customer premises, the Vendor shall, at its own expense,
secure and maintain the insurance coverage specified herein,and shall provide proof of such
insurance coverage to the related Customer within five (5) business days following the
execution of the Purchase Order. Vendor may not begin performance under the Contract
and/or a Purchase Order until such proof of insurance coverage is provided to,and approved
by,DIR and the Customer.
If Vendor's services contracted under this Contract will not require Vendor to perform work
on Customer's premises,or to use employer vehicles(whether owned or otherwise)to conduct
work on behalf of Customers,Vendor may certify to the foregoing facts,and agree to provide
notice and the required insurance if the foregoing facts change. The certification and
agreement must be provided by executing a Certification of Off-Premise Customer Services,
which shall serve to meet the insurance requirements.
All required insurance must be issued by companies that have an A rating and a Financial Size
Category Class of VII from A.M.Best and are licensed in the State of Texas and authorized to
provide the corresponding coverage. The Customer and DIR will be named as Additional
Insureds on all required coverage. Required coverage must remain in effect through the term
of the Contract and each Purchase Order issued to Vendor there under. The minimum
acceptable insurance provisions are as follows:
1) Commercial General Liability
Commercial General Liability must include$1,00D,00D per occurrence for Bodily Injury and
Property Damage,with a separate aggregate limit of$2,000,000;Medical Expense per person
of $5,000; Personal Injury and Advertising Liability of $1,000,000; Products/Completed
Operations Aggregate Limit of $2,ODO,000; and Damage to Premises Rented: $50,000.
Agencies may require additional Umbrella/Excess Liability insurance. The policy shall contain
the following provisions:
a)Blanket contractual liability coverage for liability assumed under the Contract;
b)Independent Contractor coverage;
c)State of Texas,DIR and Customer listed as an additional insured;and
d)Waiver of Subrogation
2) Workers'Compensation Insurance
WORKERS' COMPENSATION INSURANCE AND EMPLOYERS' LIABILITY COVERAGE MUST
INCLUDE LIMITS CONSISTENT WITH STATUTORY BENEFITS OUTLINED IN THE TEXAS
WORKERS' COMPENSATION ACT (ART. 8308-1.01 ET SEC!, TEX. REV. CIV. STAT) AND
MINIMUM POLICY LIMITS FOR EMPLOYERS' LIABILITY OF$1,000,000 BODILY INJURY PER
ACCIDENT, $1,000,000 BODILY INJURY DISEASE PER EMPLOYEE AND $1,000,000 PER
DISEASE POLICY LIMIT.
1 11W2019
DIR-CPO-4752 Pmgo-26 c+f 33
3) Business Automobile Liability Insurance
Business Automobile Liability Insurance must cover all owned,non-owned and hired vehicles
with a minimum combined single limit of$500,000 per occurrence for bodily injury and
property damage.The policy shall contain the following endorsements in favor of DIR and/or
Customer:
a)Wa iver of Subroga tion;a nd
b)Additional Insured.
P. Use of State Property
Note:NO EXCEPTIONS OR REVISIONS WILL BE CONSIDERED
Vendor is prohibited from using the Customers equipment,the customer's location,or any
other resources of the Customer or the State for any purpose other than performing services
under this Agreement. For this purpose, equipment includes, but is not limited to, copy
machines,computers and telephones using State long distance services. Any charges incurred
by Vendor using the Customers 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.
�. Immigration
Note:NO EXCEPTIONS OR REVISIONS WILL BE CONSIDERED
The Vendor shall comply with all requirements related to federal immigration laws and
regulations,to include but not be limited to,the Immigration and Reform Act of 1986, the
Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA") and the
Immigration Act of 1990 (S U.S.C.1101, et seq.) regarding employment verification and
retention of verification forms for any individual(s) who will perform any labor or services
under this Contract.
Pursuant to Chapter 673 of Texas Government Code, Vendor shall, as a condition of this
Contract, also comply with the United States Department of Homeland Security's E-Verify
system to determine the eligibility of:
•all persons 1)to whom the E-Verify system applies,and 2)who are hired by the Vendor
during the term of this Contract to perform duties within Texas;and
■all subcontractors'employees 1)to whom the E-Verify system applies,and 2)who are
hired by the subcontractor during the term of this Contract and assigned by the
subcontractor to perform work pursuant to this Contract.
The Vendor shall require its subcontractors to comply with the requirements of this Section
and the Vendor is responsible for the compliance of its subcontractors.Nothing herein is
intended to exclude compliance by Vendor and its subcontractors with all other relevant
federal immigration statutes and regulations promulgated pursuant thereto.
11/6/2019
DIR-CPC-4752 Page Z7of33
R. Public Disclosure
Note:NO EXCEPTIONS OR REVISIONS WILL BE CONSIDERED
No public disclosures or news releases pertaining to this contractshall he made by Vendor without
prior written approval of DIR.
S. Product and/or Services Substitutions
Note:NO EXCEPTIONS OR REVISIONS WILL BE CONSIDERED
Substitutions are not permitted without the written permission of DIR or Customer.
T. Secure Erasure of Hard Disk Products and/or Services
Note:NO EXCEPTIONS OR REVISIONS WILL BE CONSIDERED
Vendor agrees that all products and/or services equipped with hard disk drives(i.e.computers,
telephones, printers, fax machines, scanners, multifunction devices, etc.) shall have the
capability to securely erase data written to the hard drive prior to final disposition of such
products and/or services, either at the end of the Customer's Managed Services product's
useful life or the end of the related Customer Managed Services Agreement for such products
and/services,in accordance with 1 TAC 202.
U. Deceptive Trade Practices;Unfair Business Practices
1)Vendor represents and warrants that neither Vendor nor any of its Subcontractors has been
(i)found liable in any administrative hearing,litigation or other proceeding of Deceptive Trade
Practices violations as defined under Chapter 17,Texas Business&Commerce Code,or(ii)has
outstanding allegations of any Deceptive Trade Practice pending in any administrative
hearing,litigation or other proceeding.
2)Vendor certifies that it has no officers who have served as Officers of other entities who(i)
have been found liable in any administrative hearing, litigation or other proceeding of
Deceptive Trade Practices violations or (ii) have outstanding allegations of any Deceptive
Trade Practice pending in any administrative hearing,litigation or other proceeding.
V. Drug Free Workplace Policy
Vendor shall comply with the applicable provisions of the Drug-Free Work Place Act of 1988
(41 U.S.C. §§8101-8106) and maintain a drug-free work environment; and the final rule,
government-wide requirements for drug-free work place(Financial Assistance),issued by the
Office of Management and Budget(2 C.F.R.Part 192)to implement the provisions of the Drug-
Free Work Place Act of 1988 is incorporated by reference and the contractor shall comply
with the relevant provisions thereof, including any amendments to the final rule that may
hereafter be issued.
W. Accessibility of Public Information
Note: NO EXCEPTIONS OR REVISIONS WILL BE CONSIDERED
1) Pursuant to S.B.1368 of the$3rd Texas Legislature, Regular Session,Vendor is required to
make any information created or exchanged with the State pursuant to this Contract,and not
otherwise excepted from disclosure under the Texas Public Information Act, available in a
format that is accessible by the public at no additional charge to the State.
1 11W2019
DIR-CPO-4752 Pap 28 c+f 33
2) Each State government entity should supplement the provision set forth in Subsection 1,
above,with the additional terms agreed upon by the parties regarding the specific format by
which the Vendor is required to make the information accessible by the public.
X. Vendor Reporting Requirements
Note:NO EXCEPTIONS OR REVISIONS WILL BE CONSIDERED
Vendor shall comply with Subtitle C,Title 5,Business&Commerce Code,Chapter IN as added
by HB 2539 of the 83r"Texas Legislature, Regular Session,requiring computer technicians to
report images of child pornography.
Y. Cybersecurity Training
Note:NO EXCEPTIONS OR REVISIONS WILL BE CONSIDERED
In accordance with Section 2054.5192,Texas Government Code,for any contract with a state
agency or institution of higher education,if Vendor,or a subcontractor,officer,or employee
of Vendor,will have access to a state computer system or database,then Vendor shall ensure
that such officer,employee,or subcontractor shall complete a cybersecurity training program
certified under Section 2054.519, Texas Government Code, as selected by Customer state
agency.The cybersecurity training program must be completed by such officer,employee,or
subcontractor during the term of the contract and during any renewal period. Vendor shall
verify to the Customer state agency or institution of higher education completion of the
program by each such officer,employee,or subcontractor.
11. Contract Enforcement
Note:NO EXCEPTIONS OR REVISIONS WILL BE CONSIDERED TO A,B2,5-7
A. Enforcement of Contract and Dispute Resolution
Note:NO EXCEPTIONS OR REVISIONS WILL BE CONSIDERED
1) Vendor and DIR agree to the following:(i)a 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.
3)State agencies are required by rule(34 TAC§20.115)to reportvendor performance through
the Vendor Performance Tracking System(VPTS)on every purchase over$25,000.
B. Termination
Note:NO EXCEPTIONS OR REVISIONS WILL BE CONSIDERED FOR 2,5-7
In all instances of termination or expiration, Vendor shall be required to provide a list of all
Purchase Orders, and Purchase Order detail that are open as of the date of termination or
expiration. Further,Vendor shall continue to report sales and pay administrative fees for the
duration of all such Purchase Orders.
1 11W2019
DIR-CPO-4752 t'ate 29of33
1) Termination for Non-Appropriation
a)Termination for Non-Appropriation by Customer
Customer may terminate Purchase Orders if funds sufficient to pay its obligations under
the Contract are not appropriated: i) by the governing body on behalf of local
governments; ii) by the Texas legislature on behalf of state agencies;or iiij by budget
execution authority provisioned to the Governor or the Legislative Budget Board as
provided in Chapter 317,Texas Government Code. In the event of non-appropriation,
Vendor and/or Order Fulfiller and/or Reseller will be provided ten (10) calendar days
written notice of intent to terminate.Notwithstanding the foregoing,if a Customer issues
a Purchase Order and has accepted delivery of the product or services,they are obligated
to pay for the product or services or they may return the product and discontinue using
services under any return provisions that Vendor offers.In the event of such termination,
the Customer will not be considered to be in default or breach under this Contract,nor
shall it be liable for any further payments ordinarily due under this Contract,nor shall it
be liable for any damages or any other amounts which are caused by or associated with
such termination.
b)Termination for Non-Appropriation by DIR
DIR may terminate Contract if funds sufficient to pay its obligations under the Contract
are not appropriated: by the i) Texas legislature or ii) by budget execution authority
provisioned to the Governor or the Legislative Budget Board as provided in Chapter 317,
Texas Government Code. In the event of non-appropriation, Vendor and/or Order
Fulfiller and/or Reseller will be provided thirty(30)calendar days written notice of intent
to terminate.In the event of such termination,DIR will not be considered to be in default
or breach under this Contract, nor shall it be liable for any further payments ordinarily
due under this Contract,nor shall it be liable for any damages or any other amounts which
are caused by or associated with such termination.
2) Absolute Right
Note:NO EXCEPTIONS OR REVISIONS WILL BE CONSIDERED
DIR shall have the absolute right to terminate the Contract without recourse in the event that:
i) Vendor becomes listed on the prohibited vendors list authorized by Executive Order
#13224,'Blocking Property and Prohibiting Transactions with Persons Who Commit Threaten
to Commit,or Support Terrorism",published by the United States Departmentof the Treasury,
Office of Foreign Assets Control; ii) Vendor becomes suspended or debarred from doing
business with the federal government as listed in the System for Award Management(SA A,1)
maintained by the General Services Administration; or (iii) Vendor is found by DIR to be
ineligible to hold this Contract under Subsection(b)of Section 2155.006,Texas Government
Code.Vendor shall be provided written notice in accordance with Section 12.A, Notices,of
intent to terminate.
3) Termination for Convenience
DIR may terminate the Contract, in whole or in part, by giving the other party thirty (30)
calendar days written notice. A Customer may terminate a Purchase Order or other
contractual document or relationship by giving the other party thirty (30) calendar days
written notice.
11/6/2019
DIR-CPC-4752 PdL.0 30 af33
4) Termination for Cause
a) Contract
Either DIR or Vendor may issue a written notice of default to the other upon the
occurrence of a material breach of any covenant,warranty or provision of the Contract,
upon the following preconditions:first,the parties must comply with the requirements of
Chapter 2260,Texas Government Code in an attempt to resolve a dispute;second,after
complying with Chapter 2260, Texas Government Code, and the dispute remains
unresolved, then the non-defaulting party shall give the defaulting party thirty (30)
calendar days from receipt of notice to cure said default. If the defaulting party fails to
cure said default within the timeframe allowed, the non-defaulting party may, at its
option and in addition to any other remedies it may have available,cancel and terminate
the Contract. Customers purchasing products or services under the Contract have no
power to terminate the Contract far default.
b) Purchase Order
Customer or Order Fulfiller or Reseller may terminate a Purchase Order or other
contractual document or relationship upon the occurrence of a material breach of any
term or condition: (i) of the Contract, or {ii) included in the Purchase Order or other
contractual document or relationship in accordance with Section 4.B.2 above,upon the
following preconditions:first,the parties must comply with the requirements of Chapter
2260, Texas Government Code, in an attempt to resolve a dispute; second, after
complying with Chapter 2260, Texas Government Code, and the dispute remains
unresolved,then the non-defaulting party shall give the defaulting party ten(10)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 parry may,at its option and in
addition to any other remedies it may have available,cancel and terminate the Purchase
Order. Customer may immediately suspend or terminate a Purchase Order without
advance notice in the event Vendor fails to comply with confidentiality,privacy,security
requirements,environmental orsafety laws or regulations,if such non-compliance relates
or may relate to vendor provision of goods or services to the Customer.
5) Immediate Termination or Suspension
Note:NO EXCEPTIONS OR REVISIONS WILL BE CONSIDERED
DIR may immediately suspend or terminate this Contract without advance notice if DIR
receives notice or knowledge of potentially criminal violations by Vendor or Order Fulfiller or
Reseller(whether or not such potential violations directly impact the provision of goods or
services under this Contract). In such case,the Vendor or Order Fulfiller or Reseller may be
held ineligible to receive further business or payment but may be responsible for winding
down or transition expenses incurred by Customer. DIR or Customer will use reasonable
efforts to provide notice(to the extent allowed by law)to vendor within five(5)business days
after imposing the suspension or termination. Vendor may provide a response and request
an opportunity to present its position. DIR or Customer will review vendor presentation,but
is under no obligation to provide formal response.
6) Customer Rights Under Termination
Note:NO EXCEPTIONS OR REVISIONS WILL BE CONSIDERED
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DIR-CPC-4752 Pap 31 of 33
In the event the Contract expires or is terminated for any reason,a Customer shall retain its
rights under the Contract and the Purchase Order issued prior to the termination or expiration
of the Contract.The Purchase Order survives the expiration or termination of the Contract for
its then effective term.
7) Vendor or Order Fulfiller or Reseller Rights Under Termination
Note:NO EXCEPTIONS OR REVISIONS WILL BE CONSIDERED
In the event a Purchase Order expires or is terminated,a Customer shall pay:1]all amounts
due for products or services ordered prior to the effective termination date and ultimately
accepted,and 2)any applicable early termination fees agreed to in such Purchase Order.
C. Force Majeure
❑IR, Customer, or Order Fulfiller or Reseller 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 a1I 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 or
Reseller will not be able to deliver product or services in a timely manner to meet the business
needs of the Customer.
12. Notification
Note:NO EXCEPTIONS OR REVISIONS WILL BE CONSIDERED
A.Notices
All notices,demands,designations,certificates,requests,offers,consents,approvals and other
instruments given pursuant to the Contract shall be in writing and shall be validly given on:(i)
the date of delivery if delivered by email, facsimile transmission, mailed by registered or
certified mail,or hand delivered,or(ii)three business days after being mailed via United States
Postal Service.All notices under the Contract shall be sent to a party at the respective address
indicated in Section 5 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 ❑IR may
direct their written complaints to the following office:
Public Information Office
Department of Information Resources
Attn:Public Information Officer
300 W.15"Street,Suite 1300
Austin,Texas 78701
(512)475-4759,facsimile
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❑IR-CPC-4752 gage 32 of33
13. Captions
Note:NO EXCEPTIONS OR REVISIONS WILL BE CONSIDERED
The captions contained in the Contract, Appendices, and its Exhibits are intended for
convenience and reference purposes only and shall in noway be deemed to define or limit any
provision thereof.
1 11W2019
❑IR-CPO-4752 Pag.—33 of33
Exhibit C—Conflict of Interest Questionnaire.
CONFLICT OF INTEREST QUESTIONNAIRE FORM CIO
For vendor doing business with local governmental entlty
Ris questiarmalre relletts changes made to the law by H.B.23,Mth Leg,Rep ular Sun lam 4FFICEUS£ONLY
i his questionnaire is being tiled in accordance with Chapter 176,Local Government Code,
by a vendor who has ab lsiness relation ship as defined by Section 17&001(1a)w 1h a local
governmental entity and pie vendor rrleets requirements under Section 176.006[a].
By law this questionnairo must be filed with the records admirlistratarof tha local goverrptlental
entity not late rthan the 7th business day after the date the vendor becomes aware of facts
that require the statement to be Cited.See Section 176,006(a.1),Local Government Code.
A vendor commits an offense i1 the vendor knowingly violates Section 176.008,Local
Government Code.An offense under this section is a misdemeanor.
i Name ol vendor who has a Cosiness relationship with local governmental entity,
4 5��-�fi a 17-act v loj 1'-es, I L C
Z17
Check this box if you are Hill nganupdatetoa previously filed question hat re.
(The law requires that you file an updated completed questionnaire wlth the appropriale riling authority hot
later than the 7th business day alter the date on which you became aware that the originally riled questionnaire was
incomplete or Inaccurate.)
3
Name:of local government officer about whomthe information in this section is being disclosed.
0iAe—
Name of Moor
This section(item 3 including subparts A.B.C.a DI must be completed for each olicer with whom the vendor has an
employment or other business relationship as defined by Section 176.DD1(1-a),Loral Government Code.Attach additional
pages to this Form CIO as necessary.
A. Is the local government officer named in this section receiving or Ikely to remtve taxable income,other Thor investment
lncome,From ihe vendor?
F7 Yes F—]No
B.Is the vendor receiving or likely to receive taxable income,other than investment income,from or a,lhedireCtca of the local
govamment officer named In this seclion AND the taxable income is not received from the local governmental entity?
Yes =No
C. Is the filar of this questionnaire employed by a corporation or other bualne66 entity with respect to which the local
government officer serves as an oflicer or director,or holds an ownerahlp irdemat of one percent or more?
Ll Yes ONO
D.Describe each employment or business and(amity relationship wish the local government officer named in this section.
r 0 re-I its�, �o ri t't y a ►`C e p
el
Signatdre of vendor doing business with I-lo govemrWW aunty Data
Adopted SM2016