HomeMy WebLinkAboutContract 57202 CSC No.57202
FORT WORTH
CITY OF FORT WORTH
COOPERATIVE PURCHASE AGREEMENT
This Cooperative Purchase Agreement ("Agreement") is entered into by and between World Wide
Technology, LLC ("Seller") and the City of Fort Worth, ("Buyer"),a Texas home rule municipality.
The Cooperative Purchase Agreement includes the following documents which shall be construed in the
order of precedence in which they are listed:
1. This Cooperative Purchase Agreement;
2. Exhibit A—City's Terms and Conditions;
3. Exhibit B —Conflict of Interest Questionnaire;
5. Exhibit C —DIR-TSO-3763 Pricing Index; and
6. Exhibit D — Cooperative Agency Contract and Amendment (e.g., NJPA, DIR,
BuyBoard); and
Exhibits A, B, C, and D which are attached hereto and incorporated herein, are made a part of
this Agreement for all purposes. Seller agrees to provide Buyer with the services and goods included in
Exhibit C pursuant to the terms and conditions of this Cooperative Purchase Agreement, including all
exhibits thereto. In the event of a conflict between Exhibit A—City's Terms and Conditions and Exhibit
C — [Cooperative Agency Contract], then Exhibit A — City's Terms and Conditions shall control, but
only to the extent allowable under the Texas Department of Information Resources Contract DIR-TSO-
3763.
Buyer shall pay Seller in accordance with the fee schedule in Exhibit C and in accordance with
the provisions of this Agreement. Total payment made under this Agreement for the first year by Buyer
shall be in the amount of six million, nine hundred and thirty-four thousand Dollars ($6,934,000.00).
Seller shall not provide any additional items or services or bill for expenses incurred for Buyer not
specified by this Agreement unless Buyer requests and approves in writing the additional costs for such
services. Buyer shall not be liable for any additional expenses of Seller not specified by this Agreement
unless Buyer first approves such expenses in writing.
The term of this Agreement is effective beginning on the date signed by the Assistant City
Manager below ("Effective Date") and expires on September 27, 2022 to coincide with the Cooperative
Purchase Agreement. City shall be able to renew this agreement for 2 one-year renewal options by
written agreement of the parties.
The undersigned represents and warrants that he or she has the power and authority to execute
this Agreement and bind the respective Vendor.
OFFICIAL RECORD
CITY SECRETARY
FT. WORTH, TX
CITY OF FORT WORTH:
CONTRACT COMPLIANCE MANAGER:
By signing I acknowledge that I am the person
By. Valerie Washington(Mar3,2.022 17:32 CST) responsible for the monitoring and administration
./ Name: Valerie Washington of this contract,including ensuring all performance
Title: Assistant City Manager and reporting requirements.
Date: Mar 3, 2022
APPROVAL RECOMMENDED: By: Bobby Lee(Feb 18,202211:41 CST)
Name: Bobby Lee
Title: Sr. IT Solutions Manager
By: APPROVED AS TO FORM AND LEGALITY:
Name: Kevin Gunn
Title: IT Solutions Director
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ATTEST: �a�F°FORT°as By:
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C00 Name: Taylor Paris
rJ~o o�1d Title: Assistant City Attorney
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By: �4' �°°°°°°°°°°°°a� CONTRACT AUTHORIZATION:
Jannette S.Goodall(Mar 4,202211:07CST) o 0
Name: Jannette Goodall a���FXpSoa� M&C: 21-0753 9/28/2021
Title: City Secretary
SELLER:
World Wide Technology LLC.
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By:
Name: Gregory Brush
Title: Area VP Public Sector
Date: February 16,2022
OFFICIAL RECORD
CITY SECRETARY
FT.WORTH, TX
Exhibit A
CITY OF FORT WORTH, TEXAS
STANDARD PURCHASING TERMS AND CONDITIONS
1.0 DEFINITION OF BUYER
The City of Fort Worth, its officers, agents, servants, authorized employees, vendors and
subcontractors who act on behalf of various City departments, bodies or agencies.
2.0 DEFINITION OF SELLER
The Vendor(s), consultant, supplier, its officers, agents, servants, employees, vendors and
subcontractors, or other provider of goods and/or services who act on behalf of the entity under
a contract with the City of Fort Worth.
3.0 TERM
This Agreement shall begin on the date signed by the Assistant City Manager below ("Effective
Date") and shall expire on September 27, 2022 ("Expiration Date"), unless terminated earlier in
accordance with this Agreement("Initial Term").
4.0 PUBLIC INFORMATION
Buyer is a government entity under the laws of the State of Texas and all documents held or
maintained by Buyer are subject to disclosure under the Texas Public Information Act. In the
event there is a request for information marked Confidential or Proprietary,Buyer 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 Buyer, but by the
Office of the Attorney General of the State of Texas or by a court of competent jurisdiction
PROHIBITION AGAINST PERSONAL INTEREST IN CONTRACTS
No officer or employee of Buyer shall have a financial interest, direct or indirect,in any contract
with Buyer or be financially interested, directly or indirectly, in the sale to Buyer of any land,
materials, supplies or services, except on behalf of Buyer as an officer or employee. Any willful
violation of this section shall constitute malfeasance in office, and any officer or employee found
guilty thereof shall thereby forfeit his office or position
Any violation of this section with the knowledge, expressed or implied, of the person or
corporation contracting with the City Council shall render the contract invalid by the City
Manager or the City Council. (Chapter XXVII, Section 16, City of Fort Worth Charter).
5.0 ORDERS
5.1 No employees of the Buyer or its officers, agents, servants, vendors or subvendors who
act on behalf of various City departments, bodies or agencies are authorized to place
orders for goods and/or services without providing approved contract numbers,purchase
order numbers, or release numbers issued by the Buyer. The only exceptions are
Purchasing Card orders and emergencies pursuant to Texas Local Government Code
Section 252.022(a)(1), (2), or (3). In the case of emergencies, the Buyer's Purchasing
Division will place such orders.
5.2 Acceptance of an order and delivery on the part of the Seller without an approved contract
number, purchase order number, or release number issued by the Buyer may result in
rejection of delivery, return of goods at the Seller's cost and/or non-payment.
6.0 TITLE AND RISK OF LOSS
The title and risk of loss of the goods shall not pass to Buyer until Buyer actually receives and
takes possession of the goods at the point or points of delivery.
7.0 DELIVERY TERMS AND TRANSPORTATION CHARGES
Freight terms shall be F.O.B. Destination, Freight Prepaid and Allowed.
8.0 PLACE OF DELIVERY
The place of delivery shall be set forth in the "Ship to" block of the purchase order, purchase
change order, or release order.
9.0 RIGHT OF INSPECTION
Buyer shall have the right to inspect the goods upon delivery before accepting them. Seller shall
be responsible for all charges for the return to Seller of any goods rejected as being
nonconforming under the specifications.
10.0 INVOICES
10.1 Seller shall submit separate invoices in duplicate, on each purchase order or purchase
change order after each delivery. Invoices shall indicate the purchase order or purchase
change order number. Invoices shall be itemized and transportation charges, if any, shall
be listed separately. A copy of the bill of lading and the freight waybill,when applicable,
should be attached to the invoice. Seller shall mail or deliver invoices to Buyer's
Department and address as set forth in the block of the purchase order, purchase change
order or release order entitled "Ship to." Payment shall not be made until the above
instruments have been submitted after delivery and acceptance of the goods and/or
services.
10.2 Seller shall not include Federal Excise, State or City Sales Tax in its invoices. The Buyer
shall furnish a tax exemption certificate upon Seller's request.
10.3 Payment. All payment terms shall be "Net 30 Days" unless otherwise agreed to in
writing. Before the 1st payment is due to Seller, Seller shall register for direct deposit
payments prior to providing goods and/or services using the forms posted on the City's
website".
11.0 PRICE WARRANTY
11.1 Seller warrants that no person or selling agency has been employed or retained to solicit
or secure this contract upon an agreement or understanding for commission, percentage,
brokerage or contingent fee,excepting employees of an established commercial or selling
agency that is maintained by Seller for the purpose of securing business. For breach or
violation of this warranty, Buyer shall have the right, in addition to any other right or
rights arising pursuant to said purchase(s), to cancel this contract without liability and to
deduct from the contract price such commission percentage,brokerage or contingent fee,
or otherwise to recover the full amount thereof.
12.0 PRODUCT WARRANTY
To the extent Seller has not notified the Buyer otherwise, Seller warrants that the goods furnished
will conform to Buyer's specifications,drawings and descriptions listed in the proposal invitation,
and the sample(s) furnished by Seller, if any. In the event of a conflict between Buyer's
specifications, drawings, and descriptions, Buyer's specifications shall govern.
13.0 WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY
13.1 The SELLER warrants that to its knowledge all Deliverables provided under a
SOW, or any part thereof, furnished hereunder, including but not limited to:
programs, documentation, software, analyses, applications, methods, ways, and
processes (in this Section each individually referred to as a "Deliverable" and
collectively as the "Deliverables,") do not infringe upon or violate any patent,
copyrights, trademarks, service marks, trade secrets, or any intellectual property
rights or other third party proprietary rights, in the performance of services under
this Agreement.
13.2 SELLER shall be liable and responsible for any and all claims made against the
Buyer for infringement of any patent, copyright, trademark, service mark, trade
secret, or other intellectual property rights by the use of or supplying of any
Deliverable(s) in the course of performance or completion of, or in any way
connected with providing the services, or the Buyer's continued use of the
Deliverable(s) hereunder; provided, however, SELLER shall have no obligation
with respect to any infringement claim based upon (a) any use of the Deliverable
that is not in accordance with SELLER's documentation; (b) any use of the
Deliverable in combination with other products, equipment, software, or data not
supplied by SELLER if such infringement would not have arisen but for such
combination; or (c) any modification or alteration of the Deliverable by any person
other than SELLER.
13.3 SELLER agrees to defend, settle, or pay, at its own cost and expense, any claim or
action against Buyer for infringement of any patent, copyright, trade mark, trade
secret,or similar property right for which Seller is liable under Section 18.2,it being
understood that this agreement to defend, settle or pay shall not apply if Buyer
modifies or misuses the software and/or documentation. So long as SELLER bears
the cost and expense of payment for claims or actions against Buyer pursuant to this
section, SELLER 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,Buyer shall have the right to fully participate
in any and all such settlement, negotiations, or lawsuit as necessary to protect
Buyer's interest, and Buyer agrees to cooperate with SELLER in doing so. In the
event Buyer, for whatever reason, assumes the responsibility for payment of costs
and expenses for any claim or action brought against Buyer for infringement arising
under this Agreement, Buyer 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, SELLER shall fully participate and
cooperate with Buyer in defense of such claim or action. Buyer agrees to give
SELLER timely written notice of any such claim or action,with copies of all papers
Buyer may receive relating thereto. Notwithstanding the foregoing, Buyer's
assumption of payment of costs or expenses shall not eliminate SELLER's duty to
indemnify Buyer under this Agreement. If the software and/or documentation 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, SELLER shall, at its own expense and as Buyer's sole remedy, either: (a)
procure for Buyer the right to continue to use the software and/or documentation;
or (b) modify the software and/or documentation to make it non-infringing,
provided that such modification does not materially adversely affect
Buyer's authorized use of the software and/or documentation; or (c) replace the
software and/or documentation with equally suitable, compatible, and functionally
equivalent non-infringing software and/or documentation at no additional charge to
Buyer; or(d)if none of the foregoing alternatives is reasonably available to SELLER
terminate this Agreement, and refund all amounts paid to SELLER by Buyer,
subsequent to which termination Buyer may seek any and all remedies available to
Buyer under law; and
13.4 The representations, warranties, and covenants of the parties contained in section
13 through 17 of this Agreement will survive the termination and/or expiration of
this Agreement.
13.5 Buyer agrees that it will not intentionally disclose or transmit to Seller any personal
data (meaning any information relating to an identified or identifiable natural
person directly or indirectly), protected health information, customer information
or other structured personal information as defined by applicable data protection
laws(collectively"Protected Data").If Buyer inadvertently provides Protected Data
to Seller, it will promptly notify Seller, Seller will take commercially reasonably
measures to secure such Protected Data.
14.0 OWNERSHIP OF WORK PRODUCT
Seller agrees that any and all analyses, evaluations,reports,memoranda, letters, ideas,processes,
methods, programs, and manuals that were developed, prepared, conceived, made or suggested
by the Seller for the Buyer pursuant to a Work Order, including all such developments as are
originated or conceived during the term of the Contract and that are completed or reduced to
writing thereafter (the "Work Product") and Seller acknowledges that such Work Product may
be considered "work(s) made for hire" and will be and remain the exclusive property of the
Buyer; provided, however, that nothing in this agreement will be construed to restrict, impair or
deprive SELLER of any of its rights or proprietary interest in, and SELLER will own, its
technology, products, skill sets, concepts, tools, general software libraries and their contents,
know-how, techniques, and methods that existed prior to and independent of the performance of
services under this agreement or which SELLER or a third party may have refined during the
course of its performance To the extent that the Work Product, under applicable law, may not be
considered work(s)made for hire, Seller hereby agrees that this Agreement effectively transfers,
grants, conveys, and assigns exclusively to Buyer, all rights, title and ownership interests,
including copyright, which Seller may have in any Work Product or any tangible media
embodying such Work Product, without the necessity of any further consideration, and Buyer
shall be entitled to obtain and hold in its own name, all Intellectual Property rights in and to the
Work Product. Seller for itself and on behalf of its vendors hereby waives any property interest
in such Work Product.
15.0 CANCELLATION
Buyer shall have the right to cancel this contract immediately for default on all or any part of the
undelivered portion of this order if Seller breaches any of the terms hereof, including warranties
of Seller. Such right of cancellation is in addition to and not in lieu of any other remedies,which
Buyer may have in law or equity.
16.0 TERMINATION
16.1 Written Notice. The purchase of goods under this order may be terminated in whole or
in part by Buyer,with or without cause,at any time upon the delivery to Seller of a written
"Notice of Termination" specifying the extent to which the goods to be purchased under
the order is terminated and the date upon which such termination becomes effective. Such
right of termination is in addition to and not in lieu of any other termination rights of
Buyer as set forth herein.
16.2 Non-appropriation of Funds. In the event no funds or insufficient funds are appropriated
by Buyer in any fiscal period for any payments due hereunder, Buyer will notify Seller
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 Buyer of any kind
whatsoever,except as to the portions of the payments herein agreed upon for which funds
have been appropriated.
16.3 Duties and Obligations of the Parties.Upon termination of this Agreement for any reason,
Seller shall only be compensated for items requested by the Buyer and delivered prior to
the effective date of termination, and Buyer shall not be liable for any other costs,
including any claims for lost profits or incidental damages. Seller shall provide Buyer
with copies of all completed or partially completed documents prepared under this
Agreement. In the event Seller has received access to Buyer Information or data as a
requirement to perform services hereunder, Seller shall return all Buyer provided data to
Buyer in a machine readable format or other format deemed acceptable to Buyer.
17.0 ASSIGNMENT/DELEGATION
No interest, obligation or right of Seller, including the right to receive payment, under this
contract shall be assigned or delegated to another entity without the express written consent of
Buyer. Any attempted assignment or delegation of Seller shall be wholly void and totally
ineffective for all purposes unless made in conformity with this paragraph. Prior to Buyer giving
its consent, Seller agrees that Seller shall provide, at no additional cost to Buyer, all documents,
as determined by Buyer, that are reasonable and necessary to verify Seller's legal status and
transfer of rights,interests, or obligations to another entity.The documents that may be requested
include, but are not limited to, Articles of Incorporation and related amendments, Certificate of
Merger, IRS Form W-9 to verify tax identification number, etc. Buyer reserves the right to
withhold all payments to any entity other than Seller, if Seller is not in compliance with this
provision. If Seller fails to provide necessary information in accordance with this section, Buyer
shall not be liable for any penalties, fees or interest resulting therefrom.
18.0 WAIVER
No claim or right arising out of a breach of this contract can be discharged in whole or in part by
a waiver or renunciation of the claim or right unless the waiver or renunciation is supported by
consideration in writing and is signed by the aggrieved party.
19.0 MODIFICATIONS
This contract can be modified or rescinded only by a written agreement signed by both parties.
20.0 THE AGREEMENT
In the absence of an otherwise negotiated contract, or unless stated otherwise, the Agreement
between Buyer and Seller shall consist of these Standard Terms and Conditions together with
any attachments and exhibits. This Agreement is intended by the parties as a final expression of
their agreement and is intended also as a complete and exclusive statement of the terms of their
agreement.No course of prior dealings between the parties and no usage of trade shall be relevant
to supplement or explain any term used in this Agreement. Acceptance of or acquiescence in a
course of performance under this Agreement shall not be relevant to determine the meaning of
this Agreement even though the accepting or acquiescing party has knowledge of the
performance and opportunity for objection. Whenever a term defined by the Uniform
Commercial Code (UCC) is used in this Agreement, the definition contained in the UCC shall
control. In the event of a conflict between the contract documents, the order of precedence shall
be these Standard Terms and Conditions, and the Seller's Quote.
21.0 APPLICABLE LAW/VENUE
This agreement shall be governed by the Uniform Commercial Code wherever the term "Uniform
Commercial Code" or"UCC" is used. It shall be construed as meaning the Uniform Commercial
Code as adopted and amended in the State of Texas. Both parties agree that venue for any
litigation arising from this contract shall be in Fort Worth, Tarrant County, Texas. This contract
shall be governed, construed and enforced under the laws of the State of Texas.
22.0 INDEPENDENT CONTRACTOR(S)
Seller shall operate hereunder as an independent contractor and not as an officer, agent, servant
or employee of Buyer. Seller shall have exclusive control of, and the exclusive right to control,
the details of its operations hereunder, and all persons performing same, and shall be solely
responsible for the acts and omissions of its officers, agents, employees, vendors and
subcontractors. The doctrine of respondent superior shall not apply as between Buyer and Seller,
its officers, agents, employees,vendors and subcontractors.Nothing herein shall be construed as
creating a partnership or joint enterprise between Buyer and Seller, its officers, agents,
employees,vendors and subcontractors.
23.0 LIABILITY AND INDEMNIFICATION.
23.1 LIABILITY- SELLER SHALL BE LIABLE AND RESPONSIBLE FOR ANY AND ALL
PROPERTY LOSS, PROPERTY DAMAGE AND/OR PERSONAL INJURY, INCLUDING
DEATH, TO ANY AND ALL PERSONS, OF ANY KIND OR CHARACTER, WHETHER
REAL OR ASSERTED, TO THE EXTENT CAUSED BY THE GROSSLY NEGLIGENT
ACT(S) OR OMISSION(S), WILLFULLMISCONDUCT OF SELLER, ITS OFFICERS,
AGENTS,SERVANTS OR EMPLOYEES.
23.2 GENERAL INDEMNIFICATION- SELLER HEREBY COVENANTS AND AGREES TO
INDEMNIFY, HOLD HARMLESS AND DEFEND BUYER, ITS OFFICERS, AGENTS,
SERVANTS AND EMPLOYEES, FROM AND AGAINST ANY AND ALL CLAIMS OR
LAWSUITS OF ANY KIND OR CHARACTER, WHETHER REAL OR ASSERTED, FOR
EITHER PROPERTYDAMAGE OR LOSS(INCLUDING ALLEGED DAMAGE OR LOSS
TO SELLER'SBUSINESSAND ANYRESULTING LOST PROFITS)AND/OR PERSONAL
INJURY,INCL UDING DEATH, TO ANY AND ALL PERSONS,ARISING OUT OF OR IN
CONNECTION WITH THIS AGREEMENT, TO THE EXTENT CAUSED BY THE
GROSSLY NEGLIGENT ACTS OR OMISSIONS OR WILLFUL MISCONDUCT OF
SELLER,ITS OFFICERS,AGENTS,SERVANTS OR EMPLOYEES.
24.0 SEVERABILITY
In case any one or more of the provisions contained in this agreement shall for any reason, be
held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provision of this agreement,which agreement shall be
construed as if such invalid, illegal or unenforceable provision had never been contained herein.
25.0 FISCAL FUNDING LIMITATION
In the event no funds or insufficient funds are appropriated and budgeted in any fiscal period for
payments due under this contract, then Buyer will immediately notify Seller of such occurrence
and this contract shall be terminated on the last day of the fiscal period for which funds have
been appropriated without penalty or expense to Buyer of any kind whatsoever, except to the
portions of annual payments herein agreed upon for which funds shall have been appropriated
and budgeted or are otherwise available.
26.0 NOTICES TO PARTIES
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:
TO BUYER: TO SELLER:
City of Fort Worth World Wide Technology, LLC
Attn: Purchasing Manager Attn: Legal and Compliance
200 Texas Street 1 World Wide Way
Fort Worth, TX 76102-6314 St. Louis, MO 63146
Facsimile: (817) 392-8654 ,
With copy to Fort Worth City With a copy to Jake Henne
Attorney's Office at same address Jake.heene@wwt.com
27.0 NON-DISCRIMINATION
Seller, for itself, its personal representatives, assigns, subVendors and successors in interest, as
part of the consideration herein, agrees that in the performance of Seller's duties and obligations
hereunder, it shall not discriminate in the treatment or employment of any individual or group of
individuals on any basis prohibited by law. IF ANY CLAIM ARISES FROM AN ALLEGED
VIOLATION OF THIS NON-DISCRIMINATION COVENANT BY SELLER, ITS
PERSONAL REPRESENTATIVES, ASSIGNS, SUBVENDORS OR SUCCESSORS IN
INTEREST,SELLER AGREES TO ASSUME SUCH LIABILITY AND TO INDEMNIFY
AND DEFEND BUYER AND HOLD BUYER HARMLESS FROM SUCH CLAIM.
28.0 IMMIGRATION NATIONALITY ACT
Seller shall verify the identity and employment eligibility of its employees who perform work
under this Agreement, including completing the Employment Eligibility Verification Form (I-
9). Upon request by Buyer, Seller shall provide Buyer with copies of all I-9 forms and supporting
eligibility documentation for each employee who performs work under this Agreement. Seller
shall adhere to all Federal and State laws as well as establish appropriate procedures and controls
so that no services will be performed by any Seller employee who is not legally eligible to
perform such services. SELLER SHALL INDEMNIFY BUYER AND HOLD BUYER
HARMLESS FROM ANY PENALTIES, LIABILITIES, OR LOSSES DUE TO
VIOLATIONS OF THIS PARAGRAPH BY SELLER, SELLER'S EMPLOYEES,
SUBCONTRACTORS, AGENTS, OR LICENSEES. Buyer, upon written notice to Seller,
shall have the right to immediately terminate this Agreement for violations of this provision by
Seller.
29.0 HEALTH, SAFETY,AND ENVIRONMENTAL REQUIREMENTS
Services, products, materials, and supplies provided by the Seller must meet or exceed all
applicable health, safety, and the environmental laws, requirements, and standards. In addition,
Seller agrees to obtain and pay, at its own expense, for all licenses, permits, certificates, and
inspections necessary to provide the products or to perform the services hereunder. Seller shall
indemnify Buyer from any penalties or liabilities due to violations of this provision. Buyer shall
have the right to immediately terminate this Agreement for violations of this provision by Seller.
30.0 RIGHT TO AUDIT
Seller agrees that Buyer shall, until the expiration of three (3) years after final payment under
this contract, 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 Seller involving
transactions relating to this Agreement at no additional cost to Buyer. Seller agrees that Buyer
shall have access during normal working hours to all necessary Seller facilities and shall be
provided adequate and appropriate work space in order to conduct audits in compliance with the
provisions of this section. Buyer shall give Seller reasonable advance notice of intended audits.
The Buyer's right to audit, as described herein, shall survive the termination and/or expiration of
this Agreement.
31.0 DISABILITY
In accordance with the provisions of the Americans With Disabilities Act of 1990 (ADA), Seller
warrants that it and any and all of its subcontractors will not unlawfully discriminate on the basis
of disability in the provision of services to general public, nor in the availability, terms and/or
conditions of employment for applicants for employment with, or employees of Seller or any of
its subcontractors. Seller warrants it will fully comply with ADA's provisions and any other
applicable federal, state and local laws concerning disability and will defend,indemnify and hold
Buyer harmless against any claims or allegations asserted by third parties or subcontractors
against Buyer arising out of Seller's and/or its subcontractor's alleged failure to comply with the
above-referenced laws concerning disability discrimination in the performance of this agreement.
32.0 DISPUTE RESOLUTION
If either Buyer or Seller has a claim, dispute, or other matter in question for breach of duty,
obligations, services rendered or any warranty that arises under this Agreement, the parties shall
first attempt to resolve the matter through this dispute resolution process. The disputing party
shall notify the other party in writing as soon as practicable after discovering the claim, dispute,
or breach. The notice shall state the nature of the dispute and list the party's specific reasons for
such dispute. Within ten (10) business days of receipt of the notice, both parties shall make a
good faith effort, either through email, mail, phone conference, in person meetings, or other
reasonable means to resolve any claim, dispute,breach or other matter in question that may arise
out of, or in connection with this Agreement. If the parties fail to resolve the dispute within sixty
(60)days of the date of receipt of the notice of the dispute,then the parties may submit the matter
to non-binding mediation upon written consent of authorized representatives of both parties in
accordance with the Industry Arbitration Rules of the American Arbitration Association or other
applicable rules governing mediation then in effect. If the parties submit the dispute to non-
binding mediation and cannot resolve the dispute through mediation,then either party shall have
the right to exercise any and all remedies available under law regarding the dispute.
33.0 PROHIBITION ON CONTRACTING WITH COMPANIES THAT BOYCOTT ISRAEL
If Seller has fewer than 10 employees or this Agreement is for less than $100,000, this
section does not apply. Seller acknowledges that in accordance with Chapter 2270 of the Texas
Government Code, the Buyer 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 contract, Seller certifies that Seller's
signature provides written verification to the Buyer that Seller: (1) does not boycott Israel;
and (2)will not boycott Israel during the term of the contract.
34.0 PROHIBITION ON BOYCOTTING ENERGY COMPANIES
Vendor acknowledges that in accordance with Chapter 2274 of the Texas Government Code, as
added by Acts 2021, 87th Leg., R.S., S.B. 13, § 2, the City is prohibited from entering into a
contract for goods or services that has a value of$100,000 or more that is to be paid wholly or
partly from public funds of the City with a company with 10 or more full-time employees
unless the contract contains a written verification from the company that it: (1) does not boycott
energy companies; and (2)will not boycott energy companies during the term of the contract.
The terms "boycott energy company" and "company" have the meaning ascribed to those
terms by Chapter 2274 of the Texas Government Code, as added by Acts 2021, 87th Leg., R.S.,
S.B. 13, § 2. To the extent that Chapter 2274 of the Government Code is applicable to this
Agreement, by signing this Agreement, Vendor certifies that Vendor's signature provides
written verification to the City that Vendor: (1) does not boycott energy companies; and(2)
will not boycott energy companies during the term of this Agreement.
35.0 PROHIBITION ON DISCRIMINATION AGAINST FIREARM AND AMMUNITION
INDUSTRIES.
Vendor acknowledges that except as otherwise provided by Chapter 2274 of the Texas
Government Code, as added by Acts 2021, 87th Leg., R.S., S.B. 19, § 1, the City is prohibited
from entering into a contract for goods or services that has a value of$100,000 or more that is to
be paid wholly or partly from public funds of the City with a company with 10 or more full-time
employees unless the contract contains a written verification from the company that it: (1) does
not have a practice,policy, guidance, or directive that discriminates
36.0 INSURANCE REQUIREMENTS
36.1 Insurance.
36.1.1 The Vendor shall carry the following insurance coverage with a company that is
licensed to do business in Texas or otherwise approved by the City:
36.1.1.1 Commercial General Liability:
36.1.1.1.1 Combined limit of not less than $1,000,000 per occurrence;
$2,000,000 aggregate; or
36.1.1.1.2 Combined limit of not less than $1,000,000 per occurrence;
$2,000,000 aggregate and Umbrella Coverage in the amount
of$2,000,000. Umbrella policy shall contain a follow-form
provision and shall include coverage for personal and
advertising injury.
36.1.1.1.3 Defense costs shall be outside the limits of liability.
36.1.1.1.4 Automobile Liability Insurance covering any vehicle used in
providing services under this Agreement, including owned,
non-owned, or hired vehicles,with a combined limit of not
less than $1,000,000 per occurrence.
36.1.1.1.5 Professional Liability (Errors & Omissions) including
Network Security and Privacy Liability in the amount of
$2,000,000 per claim and $4,000,000 aggregate limit.
36.1.1.1.6 Statutory Workers' Compensation and Employers' Liability
Insurance requirements per the amount required by statute.
36.1.1.1.7 Coverage shall include, but not be limited to, the following:
36.1.1.1.7.1 Failure to prevent unauthorized access;
36.1.1.1.7.2 Unauthorized disclosure of information;
36.1.1.1.7.3 Technology coverage may be provided through an
endorsement to the Commercial General Liability
(CGL)policy, a separate policy specific to
Technology E&O, or an umbrella policy that picks up
coverage after primary coverage is exhausted. Either
is acceptable if coverage meets all other
requirements. Coverage shall be claims-made,with a
retroactive or prior acts date that is on or before the
effective date of this Agreement. Coverage shall be
maintained for the duration of the contractual
agreement and for two (2) years following completion
of services provided. An annual certificate of
insurance, shall be submitted to the City to evidence
coverage; and
36.2 General Insurance Requirements:
36.2.1 All applicable policies, except for Professional Liability, shall name the City as
an additional insured thereon, as its interests may appear. The term City shall
include its employees, officers, officials, agents, and volunteers in respect to the
contracted services.
36.2.2 The workers' compensation policy shall include a Waiver of Subrogation (Right
of Recovery) in favor of the City of Fort Worth.
36.2.3 A minimum of Thirty (30) days' notice of cancellation shall be provided to the
City. Ten (10) days' notice shall be acceptable in the event of non-payment of
premium. Notice shall be sent to the Risk Manager, City of Fort Worth, 1000
Throckmorton, Fort Worth, Texas 76102,with copies to the City Attorney at the
same address.
36.2.4 The insurers for all policies must be licensed and/or approved to do business in
the State of Texas. All insurers must have a minimum rating of A-VII in the
current A.M. Best Key Rating Guide, or have reasonably equivalent financial
strength and solvency to the satisfaction of Risk Management. If the rating is
below that required,written approval of Risk Management is required.
36.2.5 Any failure on the part of the City to request required insurance documentation
shall not constitute a waiver of the insurance requirement.
36.2.6 Certificates of Insurance evidencing that the Vendor has obtained all required
insurance shall be delivered to and approved by the City's Risk Management
Division prior to execution of this Agreement.
Exhibit B—CONFLICT OF INTEREST QUESTIONNAIRE
Pursuant to Chapter 176 of the Local Government Code, any person or agent of a person who
contracts or seeks to contract for the sale or purchase of property, goods, or services with a local
governmental entity (i.e. The City of Fort Worth) must disclose in the Questionnaire Form CIQ
("Questionnaire") the person's affiliation or business relationship that might cause a conflict of
interest with the local governmental entity. By law, the Questionnaire must be filed with the Fort
Worth City Secretary no later than seven days after the date the person begins contract discussions
or negotiations with the Buyer, or submits an application or response to a request for proposals or
bids, correspondence, or another writing related to a potential agreement with the Buyer.Updated
Questionnaires must be filed in conformance with Chapter 176.
A copy of the Questionnaire Form CIQ is enclosed with the submittal documents.The form is also
available at http://www.ethics.state.tx.us/forms/CIo.pdf.
If you have any questions about compliance, please consult your own legal counsel. Compliance
is the individual responsibility of each person or agent of a person who is subject to the filing
requirement. An offense under Chapter 176 is a Class C misdemeanor.
NOTE: If you are not aware of a Conflict of Interest in any business relationship that you
might have with the Buyer, state Seller name in the # 1, use N/A in each of the areas on the
form. However, a signature is required in the #4 box in all cases.
CONFLICT OF INTEREST QUESTIONNAIRE FORM CIO
For vendor doing business with local governmental entity
This questionnaire reflects changes made to the law by H.B. 23, 84th Leg., Begular Session. OFRCE USE ONLY
This questionnaire is being filed in accordance with Chapter 176,Local GovemmentCode, Date Received
by a vendorwho has a business relationship as defined by Section 176.001(f-a)with a local
governmental entity and the vendor meets requirements under Section 176.006(a).
By law this questionnaire must be filedwith the records administrator ofthe local governmental
entity not later than the 7th business day after the date the vendor becomes aware of facts
that require the statementto be filed. See Section 176.006(a-1),Local GovernmentCode.
A vendor commits an offense if the vendor knowingly violates Section 176.006, Local
Government Code.An offense underthis section is a misdemeanor.
Name of vendor who has a business relationship with local governmental entity.
Check this box ifyou are 111Ing an update to a previously filed questlonnalre.
(The law requires that you file an updated completed questionnaire with the appropriate filing authority not
later than the 7th business day after the date on which you became aware that the originally filed questionnaire was
incomplete or inaccurate_)
3
Name of local government offioer about whom the information Inthis section is being disclosed.
Name of Officer
This section(item 3 including subparts A, B. G, & D) must be completed for each officer with whom the vendor has ar
employment or other business relationship as defined by Section 176 001(1-a), Local Government Code_ Attach additional
pages to this Form CIQ as necessary.
A. Is the local government officer named in this section receiving or likely to receive taxable income,other than investment
income,from the vendor?
F] Yes F7 No
B. Is the vendor receiving or likely to receive taxable income,other than investment income,from or at the direction of the local
governmer officer named in this section AND the taxable income is not received from the local governmental entity?
Yes F-1 No
C. Is the filer of this questionnaire employed by a corporation or other business entity with respect to which the local
government officer serves as an officer or director,or holds an ownership interest of one percent or more?
F] Yes = No
D. Describe each employment or business and family relationship with the local government officer named in this section.
4
Signature of vendor doing business with the governmental entity Date
Adopted 817f2015
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DIR Contract No. DIR-TSO-3763
Vendor Contract No.
STATE OF TEXAS
DEPARTMENT OF INFORMATION RESOURCES
CONTRACT FOR PRODUCTS AND RELATED SERVICES
DELL MARKETING,L.P.
1. Introduction
A. Parties
This Contract for products and related services is entered into between the State of Texas,
acting by and through the Department of Information Resources (hereinafter"DIR") with
its principal place of business at 300 West 15t' Street, Suite 1300, Austin, Texas 78701,
and Dell Marketing,L.P. (hereinafter"Vendor"),with its principal place of business at One
Dell Way, Round Rock, Texas 78682.
B. Compliance with Procurement Laws
This Contract is the result of compliance with applicable procurement laws of the State of
Texas. DIR issued a solicitation on the Comptroller of Public Accounts' Electronic State
Business Daily, Request for Offer (RFO) DIR-TSO--TMP-251, on September 12, 2016,
for Dell Branded Manufacturer Hardware, Software and Related Services & Cloud
Services. Upon execution of this Contract, a notice of award for RFO DIR-TSO-TMP-251
shall be posted by DIR on the Electronic State Business Daily.
C. Order of Precedence
For purchase transactions under this Contract, the order of precedence shall be as follows:
this Contract; Appendix A, Standard Terms and Conditions For Products and Related
Services Contracts; Appendix B, Vendor's Historically Underutilized Businesses
Subcontracting Plan; Appendix C, Pricing Index; Appendix D, Services Agreement;
Appendix E,Master Operating Lease Agreement(subject to the provisions of Section I.D.
below); Appendix F, Master Lease Agreement (subject to the provisions of Section I.E.
below); Appendix G,E-Rate Agreement;Exhibit 1,Vendor's Response to RFO DIR-TSO-
TMP-251, including all addenda; and Exhibit 2, RFO DIR-TSO-TMP-251, including all
addenda; are incorporated by reference and constitute the entire agreement between DIR
and Vendor governing purchase transactions. For Lease transactions under this Contract
the order of precedence shall be as follows: this Contract; Appendix E, Master Operating
Lease Agreement (subject to the provisions of Section I.D. below); Appendix F, Master
Lease Agreement(subjectto the provisions of Section I.E.below),as applicable depending
on the type of lease;Appendix A,Standard Terms and Conditions For Products and Related
Services Contracts; Appendix B, Vendor's Historically Underutilized Businesses
Subcontracting Plan; Appendix C, Pricing Index; Appendix D, Services Agreement;
Appendix G, E-Rate Agreement; Exhibit 1, Vendor's Response to RFO DIR-TSO-TMP-
251, including all addenda; and Exhibit 2, RFO DIR-TSO-TMP-251, including all
addenda; are incorporated by reference and constitute the entire agreement between DIR
and Vendor governing lease transactions. In the event of a conflict between the documents
Page 1 of 31
DIR Contract No. DIR-TSO-3763
Vendor Contract No.
listed in this paragraph related to purchases, the controlling document shall be this
Contract, then Appendix A, then Appendix B, then Appendix C, then Appendix D, then
Appendix E (subject to the provisions of Section I.D. below),then Appendix F (subject to
the provisions of Section I.E.below),then Appendix G,then Exhibit 1, and finally Exhibit
2. In the event of a conflict between the documents listed in this paragraph related to lease
transactions, the controlling document shall be this Contract, then Appendix E (subject to
the provisions of Section I.D. below) or Appendix F (subject to the provisions of Section
I.E. below), depending on the type of lease transaction, then Appendix A, then Appendix
B, then Appendix C, then Appendix D, then Appendix G, then Exhibit 1, and finally
Exhibit 2. In the event and to the extent any provisions contained in multiple documents
address the same or substantially the same subject matter but do not actually conflict, the
more recent provisions shall be deemed to have superseded earlier provisions.
D. Master Operating Lease Agreement
DIR and Vendor hereby agree that, until DIR directs Vendor otherwise, Vendor is
authorized to utilize the Master Operating Lease Agreement in Appendix E of this Contract
for Lessees that are Texas State Agencies or otherwise authorized to conduct lease
transactions through DIR contracts.
E. Master Lease Agreement
DIR and Vendor hereby agree that, until DIR directs Vendor otherwise, Vendor is
authorized to utilize the Master Lease Agreement in Appendix F of this Contract for DIR
authorized entities as Lessees that are not Texas State Agencies or otherwise required by
statute to utilize the Texas Public Finance Authority for such leasing transactions.
2. Term of Contract
The term of this Contract shall be two (2)years commencing on January 10,2018. Prior to
expiration of the original term, the contract will renew automatically in two (2) year
increments for two additional terms under the same terms and conditions unless either party
provides notice to the other party 60 days in advance of the renewal date stating that the
party wishes to discuss modification of terms or not renew. Additionally, the parties by
mutual agreement may extend the term for up to ninety (90) additional calendar days.
3. Product and Service Offerings
A. Products
This Contract is a full Catalog contract, offering all products Dell is authorized to sell or
manufacture.
B. Services
Related services include but are not limited to: deployment, help desk, managed services,
storage and server assessment services,product installation, Custom Factory Integration of
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DIR Contract No. DIR-TSO-3763
Vendor Contract No.
Customer Imaged Software ("CFI'), maintenance and support, asset recovery services,
product training, and future services Dell may offer upon DIR approval.
4. Pricing
A. Manufacturer's Suggested Retail Price (MSRP)
MSRP is defined as Dell's published retail price list as found on
hllp://ftpbox.us.dell.com/sl /g weekly /�pricereport.pdf.
B. Customer Discount
The minimum Customer discount for all products and services will be set forth in
Appendix C Pricing Index.
Vendor agrees that the DIR standard pricing discounts contained in Appendix C will
remain at least one percent (1%) better than the NASPO (the National Association of
State Procurement Officials ValuePoint(NASPO VP) Category A level, standardized
discounts. This extension of competitive volume sales pricing is intended solely to
ensure that DIR will, at a minimum, remain competitive with the standard price rates
set for NASPO VP as a whole. DIR may not apply, without the express consent of
Vendor, any pre-existing discount structure to the NASPO VP pricing being offered to
DIR by Vendor. DIR may either use DIR discounted pricing or the NASPO VP pricing
but may not combine, or compound the two.
In the event that DIR pricing fails to remain competitive with (i.e., at least one percent
[1%] better than) NASPO VP standardized, category level pricing as described in the
foregoing paragraph, Vendor shall extend such pricing to DIR. Vendor shall use its
commercially reasonable best efforts to notify DIR of such NASPO VP price change
and amend this Contract within thirty (30) days after the amendment to the Vendor's
NASPO VP contract. The introduction of the NASPO VP pricing to the DIR contract
shall be effective from the date of execution into the Contract by amendment. Both
parties agree that the pricing shall not be retroactive for DIR and shall not extend back
to the date that Vendor reduced NASPO VP catalog pricing. Further,the parties agree
that DIR, or the State of Texas,does not have the right to audit the NASPO VP contract
held by the Vendor. References to the Vendor's NASPO VP contract are only
contained in this Contract for purposes of referencing the pricing discounts contained
therein. Both parties acknowledge that the Vendor's NASPO VP contract and pricing
are readily available to the public and may be freely accessed by the Vendors DIR web
page and by the internet for the purposes of validation under the terms and conditions
of this Contract.
C. Customer Price
1) The price to the Customer shall be as set forth in Appendix C, Pricing Index.
Page 3 of 31
DIR Contract No. DIR-TSO-3763
Vendor Contract No.
2)Customers purchasing products and services under this Contract may negotiate more
advantageous pricing or participate in special promotional offers. In such event,a copy
of such better offerings shall be furnished to DIR upon request.
3) During the term of this Contract,if pricing for products or non-customized services
(e.g., CFI, Imaging, and Asset Tagging) available under this Contract are provided by
Vendor at a lower price to an Eligible Texas Customer (headquartered in the State of
Texas) who is not purchasing those products or services under this Contract, then the
available Customer Price in this Contract shall be adjusted to that lower price. This
requirement applies to products or non-customized services actually charged by
Vendor for a quantity of one (1) under substantially similar terms and conditions, for
substantially similar configurations or deliverables. This requirement does not apply
to volume or special pricing purchases. This Contract shall be amended within ten (10)
business days to reflect the lower price.
D. DIR Administrative Fee
The administrative fee specified in Section 5 below shall not be broken out as a separate
line item when pricing or invoice is provided to Customer.
E. Shipping and Handling Fees
The price to the Customer under this Contract shall include all shipping and handling
fees. Shipments will be Free On Board Customer's destination, provided the products
are shipped to locations in the State of Texas. Except as noted, no additional fees shall
be charged to the Customer for standard shipping and handling. If the Customer
requests expedited delivery,Customer will be responsible for any charges for expedited
delivery. Title to all products shall pass upon shipment to Customer's dock; however,
risk of loss shall pass to the Customer upon delivery to Customer.
F. Delivery
Shipment of Dell-branded systems from Dell's facility is estimated at between fifteen
(15) and twenty-five (25) days after receipt of a valid and complete order. While there
may be industry-wide situations of constrained product, current manufacturing lead
times for desktop and notebook systems are ten (10) to fourteen (14) business days.
Current lead times for server systems are nine (9) to twelve (12) business days; this is
specifically designed for extensive testing on these mission-critical systems.
Shipment of third party software and peripheral items is estimated at between seven (7)
and ten (10) days after receipt of a valid and complete order.
Please note that customization through Dell's Configuration Services may increase lead
times. While Dell does not guarantee specific delivery dates, Customers providing Dell
with an accurate quarterly forecast will greatly enhance Dell's ability to be prepared for
Customer orders and to meet your needed delivery timeframes.
G. Tax-Exempt
As per Section 151.309, Texas Tax Code, Customers under this Contract are exempt
from the assessment of State sales,use and excise taxes. Further, Customers under this
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DIR Contract No. DIR-TSO-3763
Vendor Contract No.
Contract are exempt from Federal Excise Taxes, 26 United States Code Sections
4253(i) and 0). Customers will provide Vendor with tax exempt certificate upon
request.
H. Travel Expense Reimbursement
Pricing for services provided under this Contract are exclusive of any travel expenses
that may be incurred in the performance of those services. Travel expense
reimbursement may include personal vehicle mileage or commercial coach
transportation, hotel accommodations, parking and meals; provided, however, the
amount of reimbursement by Customers shall not exceed the amounts authorized for
state employees as adopted by each Customer; and provided, further, that all
reimbursement rates shall not exceed the maximum rates established for state
employees under the current State Travel Management Program
hllps://comptroller.texas.gov/purchasing/programs/travel-mana eg ment/. Travel time
may not be included as part of the amounts payable by Customer for any services
rendered under this Contract. The DIR administrative fee specified in Section 5 below
is not applicable to travel expense reimbursement. Anticipated travel expenses must
be pre-approved in writing by Customer.
I. Changes to Prices
Vendor or Order Fulfiller may change the price of any product or service at any time,
based upon changes to the MSRP, but discount levels shall remain consistent with the
discount levels specified in this Contract.Price decreases shall take effect automatically
during the term of this Contract and shall be passed onto the Customer immediately at
the time of submission of a purchase order,but shall not be retroactive to products for
which a purchase order has been received, or for services currently being rendered
under a prior purchase order.
5. DIR Administrative Fee
A. The administrative fee to be paid by the Vendor to DIR based on the dollar value of all
sales to Customers pursuant to this Contract is one half of one percent (50%). Payment
will be calculated for all sales, net of returns and credits. For example, the administrative
fee for sales totaling $100,000 shall be $500.
B. All prices quoted to Customers shall include the administrative fee. DIR may change
administrative fee amounts; however, no revision will take effect before ninety (90) days
following written notice. Vendor may revise pricing to reflect the change in administrative
fees.
6. Notification
All notices under this Contract shall be sent to a parry at the respective address indicated
below.
If sent to the State:
Kelly Parker, CTPM, CTCM
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DIR Contract No. DIR-TSO-3763
Vendor Contract No.
Director, Cooperative Contracts
Department of Information Resources
300 W. 15t' St., Suite 1300
Austin, Texas 78701
Phone: (512) 475-1647
Facsimile: (512) 475-4759
Email: Kelly.Parker2dir.texas.gov
If sent to the Vendor:
Contract Manager
Dell Marketing, L.P.
One Dell Way,Mail Stop RR1-33
Round Rock, Texas 78682
Phone: (231) 747-9294
Facsimile: (512) 283-9092
Email: Cyndi_Radel(cr�,dell.com; and Dudley_McClellangdell.com
7. Software License, Services and Leasing Agreements
A. Software License Agreement
1) Software shall mean any software, library, utility, tool, or other computer or program
code, in object (binary) or source-code form, as well as the related documentation,
provided by Dell to you. Software includes software locally installed on your systems
and software accessed by you through the Internet or other remote means (such as
websites, portals, and "cloud-based" solutions).
2) Software is subject to the separate software license agreements accompanying the
software, along with any product guides, operating manuals, or other documentation
included with the software media packaging or presented to Customer during the
installation or use of the Software. Customer agrees that Customer will be bound by
such license agreement.
3) With respect to Software provided or otherwise made available to you by Dell in
connection with any Services hereunder, if no license terms accompany the Software,
then subject to your compliance with the terms set forth in this Agreement, including
payment for such Software, Dell hereby grants Customer a personal, non-exclusive
license to access and use such Software only during the duration of the Services and
solely as necessary for Customer to enjoy the benefit of the Services as stated in the
applicable Service Agreements (or Statements of Work(SOW's)).
a) Restrictions. Customer may not copy, modify, or create a derivative work,
collective work, or compilation of the Software, and may not reverse engineer,
decompile or otherwise attempt to extract the code of the Software or any part
thereof. Customer may not license, sell, assign, sublicense, or otherwise transfer
or encumber the Software; may not use the Software in a managed-services
arrangement; and may not use the Software in excess of the authorized number of
licensed seats for concurrent users, sites, or other criteria specified in the
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DIR Contract No. DIR-TSO-3763
Vendor Contract No.
applicable Service Agreements or Statements of Work. In addition,Customer may
not access the Software to monitor its availability, performance, or functionality,
or for any other benchmarking or competitive purpose.
b) Customer is further prohibited from (1) attempting to use or gain unauthorized
access to Dell or to any third party's networks or equipment; (2) permitting other
individuals or entities to use the Software or copy the Software or Services; (3)
attempting to probe, scan, or test the vulnerability of Software or a system,
account, or network of Dell or any of its customers or suppliers; (4) interfering or
attempting to interfere with service to any user, host, or network; (5) engaging in
fraudulent activity of any nature; (6) transmitting unsolicited bulk or commercial
messages; (7)restricting,inhibiting,or otherwise interfering with the ability of any
other person, regardless of intent, purpose, or knowledge, to use or enjoy the
Software (except for tools with safety and security functions); or (8) restricting,
inhibiting, interfering with, or otherwise disrupting or causing a performance
degradation to any Dell (or Dell Service supplier) facilities used to deliver the
Services.
c) Audit. DIR, on behalf of Customers,hereby grants Dell, or an agent designated by
Dell, the right to perform an audit of any Customers' use of the Software during
normal business hours; and to cooperate with Dell in such audit; and such
Customer agrees to provide Dell with all records reasonably related to Customers'
use of the Software. The audit will be limited to verification of Customer's
compliance with the terms of this Agreement.
d) Open Source Software. A portion of the Software may contain or consist of open
source software,which you may use under the terms and conditions of the specific
license under which the open source software is distributed.
THIS OPEN SOURCE SOFTWARE IS DISTRIBUTED IN THE HOPE THAT
IT WILL BE USEFUL, BUT IS PROVIDED "AS IS" WITHOUT ANY
WARRANTY, EXPRESS, IMPLIED, OR OTHERWISE, INCLUDING BUT
NOT LIMITED TO THE IMPLIED WARRANTY OF MERCHANTABILITY
OR FITNESS FOR A PARTICULAR PURPOSE, OR ANY WARRANTY
REGARDING TITLE OR AGAINST INFRINGEMENT. IN NO EVENT
SHALL DELL,THE COPYRIGHT HOLDERS,OR THE CONTRIBUTORS BE
LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL,
EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT
LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES;
LOSS OF USE, DATA, OR PROFITS; OR BUSINESS INTERRUPTION)
HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER
IN CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING
NEGLIGENCE OR OTHERWISE)ARISING IN ANY WAY OUT OF THE USE
OF THIS OPEN SOURCE SOFTWARE, EVEN IF ADVISED OF THE
POSSIBILITY OF SUCH DAMAGE.
Page 7 of 31
DIR Contract No. DIR-TSO-3763
Vendor Contract No.
B. Shrink/Click-wrap License Agreement
Customer understands and agrees that the third-party software is subject to the license
agreement shipped with the software or in a separate agreement between Customer and
the software licensor. Dell is authorized to provide the software provided hereunder.
It is the Customer's responsibility to read the Shrink/Click-wrap License
Agreement and determine if the Customer accepts the license terms. If the
Customer does not agree with the license terms, Dell shall provide reasonable
assistance; however, Customer shall be responsible for negotiating with the reseller to
obtain additional changes in the Shrink/Click-wrap License Agreement language from
the software publisher.
C. Services Agreement
Services provided under this Contract shall be in accordance with the Services
Agreement as set forth in Appendix D of this Contract. No changes to the Services
Agreement terms and conditions may be made unless previously agreed to by Vendor
and DIR.
D. Master Operating Lease Agreement
DIR and Vendor hereby agree that, until DIR directs Vendor otherwise, Vendor is
authorized to utilize the Master Operating Lease Agreement in Appendix E of this
Contract for Lessees that are Texas State Agencies or otherwise authorized to conduct
lease transactions through DIR contracts.
E. Master Lease Agreement
DIR and Vendor hereby agree that, until DIR directs Vendor otherwise, Vendor is
authorized to utilize the Master Lease Agreement in Appendix F of this Contract for
DIR authorized entities as Lessees that are not Texas State Agencies or otherwise
required by statute to utilize the Texas Public Finance Authority for such leasing
transactions.
8. Intellectual Property Matters
Customer shall own all right, title and interest to the Deliverables and Dell agrees to grant
to Customer a perpetual,non-exclusive,non-transferable,royalty-free license to use Dell's
Background IP (defined below), Utilities, and Residual IP solely for Customer to use the
Deliverables, subject to the following:
(i) each party will retain all Intellectual Property Rights that it owned or controlled prior
to the effective date of this Agreement or that it develops or acquires from activities
independent of the Services performed under this Agreement(`Background IP"),
(ii) Dell will retain all right,title and interest in and to all Intellectual Property Rights in or
related to the Services, or tangible components thereof,including but not limited to (a)
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all know-how, intellectual property, methodologies, processes, technologies,
algorithms, software or development tools used in performing the Services
(collectively, the "Utilities"), and (b) such ideas, concepts, know-how, processes and
reusable reports,designs,charts,plans,specifications,documentation,forms,templates
or output which are developed,created or otherwise used by or on behalf of Dell in the
course of performing the Services or creating the Deliverables, other than portions that
specifically incorporate proprietary or Confidential Information or data of Customer
(collectively, the"Residual IP"), even if embedded in the Deliverable, and
(iii) Customer use of software, online services, or software-enabled services in connection
with the Services is pursuant to the terms of the applicable software license or Cloud
Computing Terms.
As used herein, "Deliverables" means the work product or tangible embodiment of the
Services that are (i) prepared or performed by Dell or its subcontractors uniquely and
exclusively for a Customer and (ii) specifically identified in a signed Statement of
Work as Deliverables. "Intellectual Property Rights" means rights to patents, utility
models, mask works, copyrights, trademarks, trade secrets, and any other form of
protection afforded by law to inventions, models, designs, technical information, and
applications.
9. Authorized Exceptions to Appendix A, Standard Terms and Conditions for Product
and Related Services Contracts.
A. Section 3. Definitions, is hereby replaced in its entirety:
A. Customer - any Texas state agency,unit of local government, institution of higher
education as defined in Section 2054.003, Texas Government Code, the Electric
Reliability Council of Texas,the Lower Colorado River Authority, a private school, as
defined by Section 5.001, Education Code, a private or independent institution of
higher education, as defined by Section 61.003, Education Code, a volunteer fire
department, as defined by Section 152.001, Tax Code, and those state agencies
purchasing from a DIR contract through an Interagency Agreement, as authorized by
Chapter 771,Texas Government Code, any local government as authorized through the
Interlocal Cooperation Act, Chapter 791, Texas Government Code, and the state
agencies and political subdivisions of other states as authorized by Section 2054.0565,
Texas Government Code and, except for telecommunications services under Chapter
2170, Texas Government Code, assistance organizations as defined in Section
2175.001, Texas Government Code to mean:
1) A non-profit organization that provides educational, health or human services or
assistance to homeless individuals;
2) A nonprofit food bank that solicits, warehouses, and redistributes edible but
unmarketable food to an agency that feeds needy families and individuals;
3) Texas Partners of the Americas, a registered agency with the Advisory Committee
on Voluntary Foreign Aid, with the approval of the Partners of the Alliance Office of
the Agency for International Development;
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4) A group, including a faith-based group,that enters into a financial or non-financial
agreement with a health or human services agency to provide services to that agency's
clients;
5) A local workforce development board created under Section 2308.253;
6) A nonprofit organization approved by the Supreme Court of Texas that provides
free legal services for low-income households in civil matters;
7) The Texas Boll Weevil Eradication Foundation,Inc., or an entity designated by the
commissioner of agriculture as the foundation's successor entity under Section
74.1011, Texas Agriculture Code;
8) A nonprofit computer bank that solicits, stores, refurbishes and redistributes used
computer equipment to public school students and their families; and
9) A nonprofit organization that provides affordable housing.
B. Compliance Check — an audit of Vendor's compliance with the Contract may be
performed by,but not limited to, a third-party auditor, DIR Internal Audit department,
or DIR contract management staff or their designees.
C. Contract — the document executed between DIR and Vendor into which this
Appendix A is incorporated.
D. CPA—refers to the Texas Comptroller of Public Accounts.
E. Day - shall mean business days, Monday through Friday, except for State and
Federal holidays. 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.May include Order
Fulfillers, Resellers and/or Agents.
G.Purchase Order-the Customer's fiscal form or format,which is used when making
a purchase (e.g., formal written Purchase Order, Procurement Card, Electronic
Purchase Order, or other authorized instrument). Neither Dell nor Customer is or shall
be bound by any terms and conditions imprinted on or embedded in orders, order
acknowledgments or other communications between the parties relating to orders.
H. Reseller—any third party approved by Dell to sell to Eligible Customers under this
Contract. Dell will flow this Contract's terms and conditions to its Resellers under this
Contract, except that pricing shall be as follows: Dell offers pricing to its Reseller(s)
and such Resellers shall resale to Eligible Customers products under this Contract at a
price it sets and that will not exceed the maximum price as set forth in Appendix C,
Pricing Index, of this Contract.
I. State—refers to the State of Texas.
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B. Section 4. General Provisions,E. Survival, is hereby replaced in its entirety:
Each applicable service agreement that was entered into between Vendor and a
Customer under the terms and conditions of the Contract that is still in existence as of
the date of the expiration or termination of the Contract shall survive the expiration or
termination of the Contract until the expiration or termination of such service
agreement.Each Purchase Order issued and accepted by Vendor that is still in existence
on the date of the expiration or termination of the Contract shall survive expiration or
termination of the Contract until the expiration or termination of such Purchase Order.
C. Section 6.A. 2) Product Terms and Conditions, Electronic and Information
Resources Accessibility Standards,As Required by 1 TAC Chapters 206 and 213
(Applicable to State Agency and Institution of Higher Education Purchases Only),
is hereby replaced in its entirety:
2) Upon request by DIR, Vendor shall provide DIR with the URL to its Voluntary
Product Accessibility Template (VPAT) or a copy of the applicable VPAT for
reviewing compliance with the State of Texas Accessibility requirements(based on the
federal standards established under Section 508 of the Rehabilitation Act), or indicate
that the product/service accessibility information is available from the General Services
Administration "Buy Accessible Wizard" (http://www.buyaccessible.gov). Vendors
not listed with the "Buy Accessible Wizard" or supplying a URL to their VPAT must
provide DIR with a report that addresses the same accessibility criteria in substantively
the same format. Additional information regarding the "Buy Accessible Wizard" or
obtaining a copy of the VPAT is located at http://www.section508.gov/.
Customer may go to this page to request VPATs:
http://content.dell.com/us/en/core/d/corp-comm/cr-diversity-customer-
disabilities.aspx
D. Section 7. Contract Fulfillment and Promotion, A. Service, Sales and Support of
the Contract,is hereby replaced in its entirety:
Vendor shall provide service, sales and support resources available under the Contract
to serve all Customers throughout the State. It is the responsibility of the Vendor to
sell, market, and promote services available under the Contract. Vendor shall use
commercially reasonable efforts to ensure that potential Customers are made aware of
the existence of the Contract.
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E. Section 7. Contract Fulfillment and Promotion, C. Product Warranty and Return
Policies, is hereby replaced in its entirety:
Products Warranty:
A. Limited Warranty. Dell warrants that the Dell-branded hardware Products will
conform to the Dell specifications current when the Product is shipped and will be free
from material defects in materials and workmanship during the applicable warranty
period ("Limited Warranty"). The Limited Warranty period for Product begins on the
Product ship date. Dell has the right to grant the licenses to the Software licensed under
this Agreement, and such Software will substantially conform to the functional
specifications and current documentation provided by Dell.
B. Disclaimers. EXCEPT AS EXPRESSLY STATED IN THE PRECEDING
PARAGRAPH, DELL, (INCLUDING ITS AFFILIATES, CONTRACTORS,
AND AGENTS, AND EACH OF THEIR RESPECTIVE EMPLOYEES,
DIRECTORS, AND OFFICERS), ON BEHALF OF ITSELF AND ITS
SUPPLIERS (COLLECTIVELY, THE "DELL PARTIES") DISCLAIMS, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ALL
WARRANTIES, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO
ANY OF THE PRODUCTS, SOFTWARE, OR SERVICES, INCLUDING BUT
NOT LIMITED TO ANY WARRANTY (1) OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE, PERFORMANCE,
SUITABILITY, OR NON-INFRINGEMENT; (2) RELATING TO THIRD-
PARTY PRODUCTS, SOFTWARE, OR SERVICES; (3) RELATING TO THE
PERFORMANCE OF ANY HARDWARE OR SOFTWARE, OR DELL'S
PERFORMANCE OF THE SERVICES; OR (4) REGARDING THE RESULTS
TO BE OBTAINED FROM THE PRODUCTS, SOFTWARE, SERVICES, OR
THE RESULTS OF ANY RECOMMENDATION BY DELL.
C. Hi2h-Risk Activities. The Products, Software, and Services are not fault-tolerant
and are not designed or intended for use in hazardous environments requiring fail-safe
performance, such as in the operation of nuclear facilities, aircraft navigation or
communication systems,air traffic control,weapons systems,life-support machines,or
any other application in which the failure of the Products, Software, or Services could
lead directly to death, personal injury, or severe physical or property damage
(collectively, "High-Risk Activities"). Dell expressly disclaims any express or
implied warranty of fitness for High-Risk Activities.
D. Warranty Exclusions. Warranties do not cover damage due to external causes,
such as accident, abuse,misuse,problems with electrical power, service not performed
or authorized by Dell(including installation or de-installation),usage not in accordance
with product or software instructions, normal wear and tear, or use of parts and
components not supplied or intended for use with the products, software, or services.
These warranties do not apply to Third-Party Products. Any warranty on a Third-
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Party Product is provided by the publisher, provider, or original manufacturer. To the
extent that Dell is contractually authorized by the applicable Third-Party, Dell will
assign to Customer any additional warranty provided to Dell; otherwise the Third-
Party Products are provided by Dell "as is." WHETHER DIRECT OR INDIRECT,
NEITHER PARTY SHALL HAVE LIABILITY FOR THE FOLLOWING, (A)LOSS
OF REVENUE, INCOME, PROFIT, OR SAVINGS, (B) LOST OR CORRUPTED
DATA OR SOFTWARE, LOSS OF USE OF SYSTEM(S) OR NETWORK, OR THE
RECOVERY OF SUCH,(C)LOSS OF BUSINESS OPPORTUNITY,(D)BUSINESS
INTERRUPTION OR DOWNTIME,OR(E) SERVICES,VENDOR PRODUCTS OR
THIRD-PARTY PRODUCTS NOT BEING AVAILABLE FOR USE BY
CUSTOMER.
A. With respect to Customer's use of the Software (1) neither Dell nor any of the
Dell Parties makes any express or implied warranty that Software provided to
Customer in connection with this Agreement is or will be secure, accurate,
complete,uninterrupted,without error, or free of viruses,worms,other harmful
components, or other program limitations; or that any errors in the Software
will be corrected; (2) Customer assumes the entire cost of all necessary
servicing, repair, or correction of problems caused by viruses or other harmful
components, unless such errors or viruses are the direct result of dell's gross
negligence or willful misconduct; (3) Dell and the Dell Parties, jointly and
severally, disclaim and make no warranties or representations as to the
accuracy,quality,reliability, suitability,completeness,truthfulness,usefulness,
or effectiveness of any reports, data, results, or other information obtained or
generated by Customer related to Customer's use of the Software; and (4) use
of the Software is entirely at Customer's own risk and neither Dell nor the Dell
Parties shall have any liability relating to such use.
THIRD PARTY PRODUCTS. To the extent Dell has the right to do so under its
agreements with any third parties Dell shall pass through to Customer all Third Party
warranties as Dell receives from such third party in its contracts.
Dell Return Policy (U.S. only)
For any Product return, Customer agrees to follow and comply with the terms and
process applicable according to Dell's return policy at www.Dell.com/retumspolicy.
Note: Before a Customer returns the product to Dell,make sure to back-up any data on
the hard drive(s) and on any other storage device in the product. Remove any and all
confidential,proprietary, and personal information as well as removable media such as
floppy disks, CDs, and PC Cards. Dell is not responsible for any confidential,
proprietary, or personal information; lost or corrupted data; or damaged or lost
removable media that may be included with a Customer's return.
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Services Warranty:
Limited Warranty. VENDOR WARRANTS THAT SERVICES WILL BE
PERFORMED IN A GOOD AND WORKMANLIKE MANNER. EXCEPT AS
EXPRESSLY STATED IN THE PRECEDING SENTENCE, VENDOR
(INCLUDING ITS AFFILIATES, SUBCONTRACTORS AND AGENTS) AND
EACH OF THEIR RESPECTIVE EMPLOYEES, DIRECTORS AND
OFFICERS (COLLECTIVELY, THE "VENDOR PARTY(IES)") MAKES NO
EXPRESS OR IMPLIED WARRANTIES WITH RESPECT TO ANY OF THE
SERVICES OR DELIVERABLES,INCLUDING BUT NOT LIMITED TO,ANY
WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE,PERFORMANCE,SUITABILITY OR NON-INFRINGEMENT;OR
ANY WARRANTY RELATING TO THIRD-PARTY PRODUCTS OR THIRD-
PARTY SERVICES.
High-Risk Application Disclaimer. THE SERVICES ARE NOT FAULT-
TOLERANT AND ARE NOT DESIGNED OR INTENDED FOR USE IN
HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE
PERFORMANCE, INCLUDING WITHOUT LIMITATION, IN THE
OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR
COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, WEAPONS
SYSTEMS, LIFE-SUPPORT MACHINES, OR ANY OTHER APPLICATION
IN WHICH THE FAILURE OF THE SERVICES COULD LEAD DIRECTLY
TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR PROPERTY
DAMAGE (COLLECTIVELY, "HIGH-RISK ACTIVITIES"). VENDOR
EXPRESSLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY OF
FITNESS FOR HIGH-RISK ACTIVITIES.
F. Section 7. Contract Fulfillment and Promotion, E. Internet Access to Contract
and Pricing Information, 1)Vendor Website,is hereby replaced in its entirety:
1) Within thirty (30) calendar days of the effective date of the Contract, Vendor will
establish and maintain a webpage specific to the products and related services and cloud
services awarded under the Contract that are clearly distinguishable from other, non-
DIR Contract offerings on the Vendor's website. The webpage must include:
a) the products and related services and cloud services awarded;
b) description of product and service awarded;
c) a current price list or mechanism (for example, a services calculator or product
builder)to obtain specific contracted pricing;
d) discount percentage (%) off MSRP or List Price;
e) a link(updated no less than monthly)to the Full Pricing Catalog,listing all products
and services by product description, manufacturer part number, Dell part number,
MSRP;
f) designated Order Fulfillers;
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g) contact information (name, telephone number and email address) for Vendor and
designated Order Fulfillers;
h) instructions for obtaining quotes and placing Purchase Orders;
i) warranty policies;
j) return policies;
k) the DIR Contract number with a hyperlink to the Contract's DIR webpage;
1) a link to the DIR"Cooperative Contracts" webpage; and
m) the DIR logo in accordance with the requirements of this Section.
G. Section 7.Contract Fulfillment and Promotion,F. Services Warranty and Return
Policies,is hereby replaced in its entirety:
Vendor and Order Fulfiller will adhere to the Vendor's then-currently published
generally applicable U.S. policies concerning services warranties and returns.
H. Section 7. Contract Fulfillment and Promotion, H. Vendor and Order Fulfiller
Logo,is hereby replaced in its entirety:
DIR may use the Vendor's and Order Fulfiller's name and logo in the promotion of the
Contract to communicate the availability of products and services under the Contract
to Customers. Use of the logos may be on the DIR website or on printed materials.
Any use of Vendor's and Order Fulfiller's logo by DIR must comply with and be solely
related to the purposes of the Contract and any usage guidelines communicated to DIR
from time to time. Nothing contained in the Contract will give DIR any right, title, or
interest in or to Vendor's or Order Fulfiller' trademarks or the goodwill associated
therewith, except for the limited usage rights expressly provided by Vendor and Order
Fulfiller. Dell's logo is subject to Dell's corporate compliance usage rules.
I. Section 7. Contract Fulfillment and Promotion, I. Trade Show Participation, is
hereby replaced in its entirety:
At DIR's discretion, Vendor may be required to participate in no more than two (2)
DIR sponsored trade shows each calendar year. Vendor understands and agrees that
participation, at the Vendor's expense, includes providing a manned booth display or
similar presence. DIR will provide four months advance notice of any required
participation. Vendor must display the DIR logo at all such trade shows in the State of
Texas that potential Customers will attend. DIR reserves the right to approve or
disapprove of the location or the use of the DIR logo in or on the Vendor's or Order
Fulfiller's booth.
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J. Section 8. Pricing, Purchase Orders, Invoices, and Payments,is hereby replaced in
its entirety:
A. Purchase Orders
All Customer Purchase Orders will be placed directly with the Order Fulfiller.Accurate
Purchase Orders shall be effective and binding upon Order Fulfiller when accepted by
Order Fulfiller.
B. Invoices
Invoices shall be submitted by the Vendor directly to the Customer and shall be issued
in compliance with Chapter 2251, Texas Government Code. All payments for services
purchased under the Contract and any provision and receipt of such services shall be
made by the Customer to the Vendor.
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 services, prices
and quantities. Invoices must include the Customer's Purchase Order number or other
pertinent information for verification of receipt of the services by the Customer.
C. Payments
The parties shall comply with Chapter 2251,Texas Government Code,in invoicing and
making payments. Payments for goods and services are due thirty (30) days after the
goods are provided,the services completed, or a correct invoice is received,whichever
is later. Payment under the Contract shall not foreclose the right to recover
wrongful payments.
D. Acceptance
Customer and Vendor may establish terms for acceptance of Products and Services.
Absent other terms of acceptance agreed to by Customer and Vendor, the following
terms will apply. With respect to Vendor-branded products delivered to Customers
under the Contract that have Vendor-published specifications, and with respect to
Services provided to Customers by Vendor under the Contract that have mutually
agreed upon specifications described in a Purchase Order executed by the Customer
and Vendor (respectively, the "Specifications"), Customer shall determine whether
such products and Services meet the applicable Specifications. If the product or
Service meets the Specifications applicable to it, the Customer agrees to accept such
product or Service. Unless otherwise agreed upon by the Customer and Vendor, a
product or service shall be deemed accepted if the Customer does not, within Twenty
(20) twenty calendar days from the date such product or service is delivered, issue to
Vendor a written notice of partial acceptance or rej ection of the product or service based
on the fact that the product or service did not meet the Specifications applicable to it
("Deemed Acceptance" or"Deemed Accepted)).
No payment shall due for any such product or Service until the Customer either accepts
the product or service or such product or service is Deemed Accepted.
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K. Section 9. Contract Administration, B. Reporting and Administrative Fees, 2)
Detailed Monthly Report,is hereby replaced in its entirety:
2) Detailed Monthly Report
Vendor shall electronically provide DIR with a detailed monthly report in the format
required by DIR showing the dollar volume of any and all sales under the Contract for
the previous calendar month period. Reports are due on the fifteenth (15th) calendar
day of the month following the month of the sale. If the 15th calendar day falls on a
weekend or state or federal holiday, the report shall be due on the next business day.
The monthly report shall include, per transaction: the detailed sales for the period,
Customer name, invoice date, invoice number, description, quantity, MSRP or List
Price, unit price, extended price, Customer Purchase Order number, contact name,
Customer's complete billing address,the estimated administrative fee for the reporting
period, subcontractor name, EPEAT designation (if applicable), configuration (if
applicable), contract discount percentage, actual discount percentage, negotiated
contract price (if fixed price is offered instead of discount off of MSRP), and other
information as required by DIR. Each report must contain all information listed above
per transaction or the report will be rejected and returned to the Vendor for correction
in accordance with this section. Vendor shall report in a manner required by DIR
which is subject to change dependent upon DIR's business needs. Failure to do so
may result in contract termination.
L. Section 9.Contract Administration,B.Reporting and Administrative Fees,4)DIR
Administrative Fee,is hereby replaced in its entirety:
a) The Vendor shall pay an administrative fee to DIR to defray the DIR costs of
negotiating, executing, and administering the Contract. The 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 fee by the twenty-fifth (25') calendar day of the second
month following the date of the reported sale. For example,Vendor reports January
sales by February 15''; DIR closes January sales and notifies Vendor of
administrative fee by March 14t'; 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, reporting period, and
administrative fee amount on any remittance instruments.
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M. Section 9. Contract Administration, B. Reporting and Administrative Fees, 5)
Accurate and Timely Submission of Reports,is hereby replaced in its entirety:
a) The reports and administrative fees shall be accurate and timely and submitted in
accordance with the due dates specified in this section. Vendor shall correct any
inaccurate reports or administrative fee payments within three (3) business days
upon written notification by DIR. Vendor shall deliver any late reports or late
administrative fee payments within three(3)business days upon written notification
by DIR. If Vendor is unable to correct inaccurate reports or administrative fee
payments or deliver late reports and fee payments within three (3) business days,
Vendor must contact DIR and provide a corrective plan of action, including the
timeline for completion of correction. The corrective plan of action shall be subject
to DIR approval.
b) Should Vendor fail to correct inaccurate reports or cure the delay in timely
delivery of reports and payments within the corrective plan of action timeline, DIR
reserves the right to require an independent third-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).
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.
N. Section 9. Contract Administration,C.Records and Audit,is hereby replaced in its
entirety:
1) Acceptance of funds under the Contract by Vendor and/or Order Fulfiller acts as
acceptance of the authority of the State Auditor's Office, or any successor agency, to
conduct an audit or investigation in connection with those funds.Vendor further agrees
to cooperate fully with the State Auditor's Office or its successor in the conduct of the
audit or investigation, including providing all records requested. Vendor will ensure
that this clause concerning the authority to audit funds received indirectly by
subcontractors through Vendor or directly by Order Fulfillers and the requirement to
cooperate is included in any subcontract or Order Fulfiller contract it awards pertaining
to the Contract. Under the direction of the Legislative Audit Committee, a Vendor that
is the subject of an audit or investigation by the State Auditor's Office must provide
the State Auditor's Office with access to any information the State Auditor's Office
considers relevant to the investigation or audit.
2) Vendor shall maintain adequate records relating to the requirements of this Contract
and relevant to the performance of the Contract to DIR, to establish compliance with
the Contract until the later of a period of four(4)years 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:
Customer name, invoice date, invoice number, description, quantity, unit price,
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extended price, Customer Purchase Order number, contact name, Customer's complete
billing address, the calculations supporting each administrative fee owed DIR under
the Contract, Historically Underutilized Businesses Subcontracting reports, and such
other documentation as DIR may request.
3) Vendor and/or Order Fulfillers shall grant access to all paper and electronic records,
books, documents, accounting procedures,practices and any other items relevant to the
performance of the Contract to the DIR Internal Audit department or DIR Contract
Management staff, including the compliance checks designated by the DIR Internal
Audit department, DIR Contract Management staff, the State Auditor's Office, and of
the United States, and such other persons or entities designated by DIR for the purposes
of inspecting, Compliance Checking and/or copying such books and records. Vendor
and/or Order Fulfillers shall provide copies and printouts requested by DIR without
charge. DIR shall provide Vendor and/or Order Fulfillers ten(10)business days' notice
prior to inspecting, Compliance Checking, and/or copying Vendor's and/or Order
Fulfiller's records. Vendor's and/or Order Fulfillers records, whether paper or
electronic, shall be made available during regular office hours. Vendor and/or Order
Fulfiller personnel familiar with the Vendor's and/or Order Fulfiller's books and
records shall be available to the DIR Internal Audit department, or DIR Contract
Management staff and designees as needed. Vendor and/or Order Fulfiller shall
provide adequate office space to DIR staff during the performance of Compliance
Check. If any audit reveals a Material Accounting Error,Vendor must reimburse DIR
for actual and reasonable costs of such audit. Material Accounting Error means(a)with
regard to audits of invoices, an aggregate variance from all applicable invoices of
Vendor reviewed during such audit in excess of 1.5% of the aggregate amount shown
on all of the invoices reviewed during such audit; and(b)with regard to audits of fees,
an aggregate underpayment of all fees due to DIR under this Contract during a Vendor
fiscal quarter in excess of 5%.
O. Section 10. Vendor Responsibilities, A. Indemnification, 2) ACTS OR
ONIISSIONS is hereby replaced in its entirety:
2)ACTS OR ONIISSIONS
Vendor shall indemnify and hold harmless the State of Texas and Customers,AND/OR
THEIR OFFICERS, AGENTS, EMPLOYEES, REPRESENTATIVES,
CONTRACTORS, ASSIGNEES, AND/OR DESIGNEES FROM AND AGAINST
ANY AND ALL THIRD PARTY CLAIMS FOR LIABILITY,ACTIONS, CLAIMS,
DEMANDS, OR SUITS, AND ALL RELATED COSTS, ATTORNEY FEES, AND
EXPENSES arising out of, or resulting from any acts or omissions of the Vendor or its
agents, employees, subcontractors, Order Fulfillers, or suppliers of subcontractors in
the execution or performance of the Contract and any Purchase Orders issued under the
Contract resulting in bodily injury(including death)or damage to tangible property and
to the extent caused by Dell or its Order Fulfillers,Agents, Resellers or subcontractors.
VENDOR'S OBLIGATIONS TO INDEMNIFY AND HOLD HARMLESS BY
NEGLIGENCE VENDOR SHALL PAY ALL COSTS OF DEFENSE INCLUDING
REASONABLE ATTORNEYS FEES. The defense shall be coordinated by the Office
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of the Attorney General FOR TEXAS STATE AGENCIES OR BY CUSTOMER'S
LEGAL COUNSEL FOR NON-STATE AGENCY CUSTOMERS, VENDOR'S
COUNSEL FOR VENDOR,AND BY CUSTOMERS COUNSEL FOR NON-STATE
AGENCY CUSTOMERS AND VENDOR MAY NOT AGREE TO ANY
SETTLEMENT AS TO CLAIMS AGAINST TEXAS STATE AGENCIES
WITHOUT FIRST OBTAINING CONCURRENCE FROM THE OFFICE OF THE
ATTORNEY GENERAL.
P. Section 10. Vendor Responsibilities, A. Indemnification, 3) Infringements is
hereby replaced in its entirety:
a) Vendor shall indemnify and hold harmless the State of Texas and Customers,
AND/OR THEIR EMPLOYEES, AGENTS, REPRESENTATIVES,
CONTRACTORS,ASSIGNEES,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 of Services or the provision of Dell-branded Products by
VENDOR PURSUANT TO THIS CONTRACT. "Dell-Branded Products" shall mean
hardware products (including all Dell standard components and parts contained within
the Dell system), components, or parts bearing the Dell logo that are included on
Seller's standard price list.
VENDOR and the CUSTOMER agree to furnish timely written notice to each other of
any such claim.VENDOR SHALL BE LIABLE TO PAY ALL COSTS OF DEFENSE
OF THE CLAIMS AS SPECIFIED IN THIS SECTION INCLUDING ATTORNEYS'
FEES. The defense shall be coordinated by the Office of the Attorney General FOR
TEXAS STATE AGENCY CUSTOMERS, Vendor's Counsel for Vendor, AND BY
CUSTOMER'S LEGAL COUNSEL FOR NON-STATE AGENCY CUSTOMERS
AND VENDOR MAY NOT AGREE TO ANY SETTLEMENT AS TO CLAIMS
AGAINST TEXAS STATE AGENCIES WITHOUT FIRST OBTAINING
CONCURRENCE FROM THE OFFICE OF THE ATTORNEY GENERAL. In
addition, the foregoing IP obligations shall extend to third party claims involving
infringement of United States patents, copyrights, trade and service marks, and any
other intellectual or intangible property rights in connection with Vendor's sale of third
party equipment and license of third party software under this Contract, if and to the
extent the applicable third party equipment manufacturer or third party software
licensor is contractually obligated to Vendor to provide indemnification for such
claims.
b)Notwithstanding the foregoing, Vendor shall have no obligation under this Section
for any claim to the extent that it results or arises from (1) Customer's modifications of
such products, services or deliverables that were not performed by or on behalf of
Vendor; (2) the combination, operation or use of such product, service or deliverable
in connection with a third-party product or service (the combination of which causes
the infringement); or (3) Vendor's compliance with Customer's written specifications
(to the extent such specifications were not developed by Vendor) or directions,
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including the incorporation of any software or other materials or process provided by
or requested by Customer, provided that, in the first case, Vendor's employees who
complied with Customer's specifications did not have actual knowledge that such
specifications infringe one or more United States patents, copyrights,trade and service
marks, and any other intellectual or intangible property rights and fails to so inform
Customer. In the event Vendor has no obligation for a claim as set forth above,Vendor
agrees to provide such assistance (e.g., producing documents and its employees as
witnesses) as is reasonably requested by the Attorney General in connection with the
Attorney General's defense of such claim.
c) If Vendor becomes aware of an actual or potential claim, or Customer provides
Vendor with notice of an actual or potential claim, Vendor may (or in the case of an
injunction against Customer, shall), at Vendor's sole option and expense: (i) procure
for the Customer the right to continue to use the affected portion of the product or
service, or (ii) modify or replace the affected portion of the product or service with
functionally equivalent or superior product or service so that Customer's use is non-
infringing,or(iii)provide a refund that reflects reasonable depreciation for time of use,
and for services/custom software.(iii)applies only if the remedies described in subparts
(i) and (ii) are not obtainable despite Vendor's commercially reasonable efforts. This
subsection states Customer's exclusive remedies for any third-party intellectual
property claim. Notwithstanding the foregoing, if Vendor provides the remedy
described in subpart(iii) and the affected Customer incurs transition expenses relating
to the replacement in such Customer's IT environment of the affected portion of Dell-
Branded Products or services, such Customer may tender to Vendor a claim for such
actual and reasonable transition expenses in an amount up to the difference between
(y) the original purchase price for the affected portion of the product or service being
removed and(z)the refund provided to such Customer pursuant to subpart(iii), above,
and Vendor will pay such claim.
Q. Section 10. Vendor Responsibilities, B. Taxes/Worker's Compensation/
UNEMPLOYMENT INSURANCE is hereby replaced in its entirety:
1) VENDOR AGREES AND ACKNOWLEDGES THAT DURING THE
EXISTENCE OF THIS CONTRACT, VENDOR SHALL BE ENTIRELY
RESPONSIBLE FOR THE LIABILITY AND PAYMENT OF VENDOR'S AND
VENDOR'S EMPLOYEES' TAXES OF WHATEVER KIND, ARISING OUT OF
THE PERFORMANCES IN THIS CONTRACT. VENDOR AGREES TO COMPLY
WITH ALL STATE AND FEDERAL LAWS APPLICABLE TO ANY SUCH
PERSONS, INCLUDING LAWS REGARDING WAGES, TAXES, INSURANCE,
AND WORKERS' COMPENSATION. VENDOR AGREES AND
ACKNOWLEDGES THAT VENDOR ITS EMPLOYEES, REPRESENTATIVES,
AGENTS OR SUBCONTRACTORS SHALL NOT BE ENTITLED TO ANY
STATE BENEFIT OR BENEFIT OF ANOTHER GOVERNMENTAL ENTITY
CUSTOMER AS A RESULT OF WORKING UNDER THIS CONTRACT. THE
CUSTOMER AND/OR THE STATE SHALL NOT BE LIABLE TO THE VENDOR
ITS EMPLOYEES,AGENTS, OR OTHERS FOR THE PAYMENT OF TAXES OR
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THE PROVISION OF UNEMPLOYMENT INSURANCE AND/OR WORKERS'
COMPENSATION OR ANY BENEFIT AVAILABLE TO A STATE EMPLOYEE
OR EMPLOYEE OF ANOTHER GOVERNMENTAL ENTITY CUSTOMER AS A
RESULT OF ITS PERFORMANCE UNDER THIS CONTRACT.
2) VENDOR AGREES TO INDEMNIFY AND HOLD HARMLESS CUSTOMERS,
THE STATE OF TEXAS AND/OR THEIR EMPLOYEES, AGENTS,
REPRESENTATIVES, CONTRACTORS, ASSIGNEES, AND/OR DESIGNEES
FROM ANY AND ALL LIABILITY,ACTIONS,CLAIMS,DEMANDS,OR SUITS,
AND ALL RELATED COSTS, ATTORNEY FEES, AND EXPENSES, RELATING
TO TAX LIABILITY, UNEMPLOYMENT INSURANCE AND/OR WORKERS'
COMPENSATION OR EXPECTATIONS OF BENEFITS BY VENDOR, ITS
EMPLOYEES, REPRESENTATIVES, AGENTS OR SUBCONTRACTORS IN ITS
PERFORMANCE UNDER THIS CONTRACT. VENDOR SHALL BE LIABLE TO
PAY ALL COSTS OF DEFENSE INCLUDING REASONABLE ATTORNEYS'
FEES FOR CLAIMS UNDER THIS CLAUSE AS A RESULT OF ITS
PERFORMANCE UNDER THIS CONTRACT.
THE DEFENSE SHALL BE COORDINATED BY THE OFFICE OF THE
ATTORNEY GENERAL FOR TEXAS STATE AGENCY CUSTOMERS,
VENDOR'S COUNSEL FOR VENDOR AND BY CUSTOMER'S LEGAL
COUNSEL FOR NON-STATE AGENCY CUSTOMERS, AND VENDOR MAY
NOT AGREE TO ANY SETTLEMENT AS TO CLAIMS AGAINST TEXAS STATE
AGENCIES WITHOUT FIRST OBTAINING CONCURRENCE FROM THE
OFFICE OF THE ATTORNEY GENERAL.
R. Section 10.Vendor Responsibilities,C.Vendor Certifications,is hereby replaced in
its entirety:
C. Vendor Certifications
Vendor certifies on behalf of Vendor and its designated Order Fulfillers that they:
(i) have not given, offered to give, and do not intend to give at any time hereafter any
economic opportunity, future employment, gift, loan, gratuity, special discount, trip,
favor, or service to a public servant in connection with the Contract;
(ii) are not currently delinquent in the payment of any franchise tax owed the State and
are not ineligible to receive payment under §231.006 of the Texas Family Code and
acknowledge the Contract may be terminated and payment withheld if this certification
is inaccurate;
(iii) neither they, nor anyone acting for them, have violated the antitrust laws of the
United States or the State, nor communicated directly or indirectly to any competitor
or 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
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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 not suspended or debarred from doing business with
the federal government as listed in the System for Award Management (SAM)
maintained by the General Services Administration;
(viii) as of the effective date of the Contract, are not listed in the prohibited vendors list
authorized by Executive Order 913224, "Blocking Property and Prohibiting
Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism",
published by the United States Department of the Treasury, Office of Foreign Assets
Control;
(ix)Vendor certifies 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. This certification will
not be interpreted to prohibit or impair Vendor's provision of product from its then
current and commercially available inventory.
(x) agrees that all equipment and materials used in fulfilling the requirements of this
contract are of high-quality 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) certify 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) have complied with the Section 556.0055, Texas Government Code, restriction
on lobbying expenditures.In addition,they acknowledge the applicability of§2155.444
and §2155.4441, Texas Government Code, in fulfilling the terms of the Contract; and
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(xvii) certify that the Customer's payment and their receipt of appropriated or other
funds under this Agreement are not prohibited by Sections 556.005 or Section 556.008,
Texas Government Code.
(xviii)certify that in accordance with Section 2270.002 of the Texas Government Code,
by signature hereon, Vendor does not boycott Israel and will not boycott Israel during
the term of this Contract.
During the term of the Contract, Vendor will, for itself and on behalf of its Order
Fulfillers, promptly disclose to DIR any changes that occur to the foregoing
certifications. Vendor covenants to fully cooperate in the development and execution
of resulting documentation necessary to maintain an accurate record of the
certifications.
In addition,Vendor understands and agrees that if Vendor responds to certain Customer
pricing requests or Statements of Work, then, in order to contract with the Customer,
Vendor may be required to comply with additional terms and conditions or
certifications that an individual customer may require due to state and federal law(e.g.,
privacy and security requirements).
S. Section 10. Vendor Responsibilities, G. Responsibility for Actions, is hereby
replaced in its entirety:
1) Vendor is solely responsible for its actions and those of its agents, employees,
or subcontractors,and agrees that neither Vendor nor any of the foregoing has any
authority to act or speak on behalf of DIR or the State.
T. Section 10.Vendor Responsibilities,I. Security of Premises,Equipment,Data and
Personnel, is hereby replaced in its entirety:
a) Vendor and/or Order Fulfiller may, from time to time during the performance
of the Contract, have access to the personnel of Customers and the premises,
equipment,and other tangible property belonging to the Customer.Vendor shall
use commercially reasonable efforts to preserve the safety of such personnel
and the safety,security,and the integrity of such premises,equipment,and other
tangible property,in accordance with the instruction of the applicable Customer
provided to Vendor or the applicable Order Fulfiller by the Customer in writing
or in the manner that Customer generally provides such instructions to its own
employees and other contractors. Vendor shall be responsible for damage to
Customer's premises, equipment and other tangible property when such
damage is caused by its employee or subcontractor. If Vendor and/or an Order
Fulfiller materially fails to comply with the applicable Customer's security
requirements, then such Customer may immediately terminate its Purchase
Order and related Service Agreement.
b) In addition, Vendor and/or Order Fulfiller may, from time to time during
performance of the Contract, have access to Customer's data ("Data") that is
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hosted either at Customer's or a third party's premises (other than premises of
Vendor's Affiliates or subcontractors)(collectively, "Customer Premises")or at
Vendor's premises or the premises of Vendor's Affiliates or subcontractors
(collectively, "Vendor Premises").
i. As to Data hosted at any Customer Premises, Vendor shall comply with
Customer's instructions related to preserving the safety, security and
integrity of such Data provided to Vendor or the applicable Order Fulfiller
by the Customer in writing or in the manner that Customer generally
provides such instructions to its own employees and other contractors.
ii. As to Data hosted at any Vendor Premises, Vendor will comply with its
generally applicable security standards designed to preserve the safety,
security and integrity of such Data, as well as any additional security
obligations expressly agreed in the applicable Statement of Work executed
by Customer and Vendor.
iii. Notwithstanding anything to the contrary in this Agreement, including this
Section 10.I,except as otherwise expressly provided in a Statement of Work
executed by Customer and Vendor: (A) Customer is responsible for
backing up its own Data, (B) Vendor and Order Fulfiller shall not have
operational or financial responsibility for refreshes,upgrades,modifications
or improvements to Customer-provided facilities, equipment or software
that may be required to preserve the safety, security and integrity of such
Data, and (C) if Vendor or Order Fulfiller's compliance with Customer's
instructions constitutes a material change to the scope of Services or their
other obligations,the parties will equitably adjust the charges to account for
such material change. Vendor and Order Fulfiller shall not be responsible,
or liable for any damages,for any Data losses to the extent such Data cannot
be retrieved due to Customer's (or Customer's applicable Third-Parry
Vendor's)failure to use standard industry practices relating to data backups
and retrieval of Data.
iv. If Vendor has Data backup responsibility under the applicable Statement of
Work, Vendor shall be operationally and financially responsible for
restoring such Data that is lost or corrupted as soon as reasonably
practicable in accordance with its Data restore responsibilities set forth in
the Statement of Work, provided that, if the loss or corruption of Data
results from a Force Majeure Event or other event for which Vendor's non-
performance is excused, then Vendor and Customer will equitably adjust
the charges to account for the additional effort incurred by Vendor in
restoring the Data to the extent such additional charges result from activities
in addition to the responsibilities Vendor is expressly obligated to perform
under the applicable Statement of Work. In either of the foregoing cases in
which additional charges may apply, Vendor will consult with the
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applicable Customer before performing such restoration, and the applicable
Customer may, at its discretion, direct Vendor not to restore the Data.
U. Section 10. Vendor Responsibilities, J. Background and/or Criminal History
Investigation,is hereby replaced in its entirety:
Prior to commencement of any services, background and/or criminal history
investigation of the Vendor's employees and subcontractors who will be providing
services to the Customer under the Contract may be performed by Vendor or Customers
(as required by Customer),provided this requirement is added to the applicable specific
Purchase Order between such Customer and Vendor. Should any employee or
subcontractor of the Vendor who will be providing services to the Customer under such
Purchase Order not be acceptable to the Customer as a result of the background and/or
criminal history check, then Customer may immediately require replacement of the
employee or subcontractor in question. If Vendor fails to promptly replace the
employee or subcontractor personnel, then Customer may immediately terminate its
Purchase Order and related Service Agreement.
V. Section 10. Vendor Responsibilities, K. Limitation of Liability, is hereby replaced
in its entirety:
For any claim or cause of action arising out of or related to the Contract: i) to
the extent permitted by the Constitution and the laws of the State of Texas,
none of the parties shall be liable to the other for indirect,punitive, special, or
consequential damages,even if it is advised of the possibility of such damages;
and ii)Vendor's cumulative liability for all claims and damages of any kind to
all Customers under the Contract shall be limited, in the aggregate, to
$5,000,000. The foregoing limitations shall apply regardless of whether the claim
for such damages is based in contract, warranty, strict liability, negligence, tort or
otherwise. Insofar as applicable law prohibits any limitation herein, the parties
agree that such limitation will be automatically modified, but only to the extent so
as to make the limitation permitted to the fullest extent possible under such law.
However, this limitation of Vendor's liability shall not apply to Vendor's
indemnification obligations for claims of patent, trademark, or copyright
infringement of Vendor-branded products or Vendor-provided services and
deliverables as set forth in Section 10.A.3 ("Infringements").
W. Sectionl0. Vendor Responsibilities, L. Overcharges, is hereby replaced in its
entirety:
Vendor hereby assigns to DIR any and all of its claims for overcharges associated
with this contract which arise under the antitrust laws of the United States, 15
U.S.C.A. Section 1, et seq., and which arise under the antitrust laws of the State of
Texas, Tex. Bus. and Comm. Code Section 15.01, et seq., to the extent that such
overcharge was,in fact,passed on to DIR or its Customers in the computer products
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or other goods and/or services purchased by DIR or its Customers under this
Contract during the time period referenced in the litigation.
X. Section 10 Vendor Responsibilities,M.Prohibited Conduct,is hereby deleted in its
entirety because the subject matter is addressed in 10.C.iii.
Y. Section 10. Vendor Responsibilities, N. Required Insurance Coverage, is hereby
replaced in its entirety:
N. Required Insurance Coverage
As a condition of this Contract with DIR,Vendor shall provide the listed insurance
coverage within 5 business days of execution of the Contract if the Vendor is
awarded services which require that Vendor's employees perform work at any
Customer premises and/or use employer vehicles to conduct work on behalf of
Customers. In addition, when engaged by a Customer to provide services on
Customer premises, the Vendor shall, at its own expense, secure and maintain the
insurance coverage specified herein, and shall provide proof of such insurance
coverage to the related Customer within five (5) business days following the
execution of the Purchase Order. Vendor may not begin performance under the
Contract and/or a Purchase Order until such proof of insurance coverage is provided
to, and approved by, DIR and the Customer. All required insurance must be issued
by companies that have an A rating and a Financial Size Category Class of VII from
A.M. Best and are licensed in the State of Texas and authorized to provide the
corresponding coverage. The Customer and DIR will be named as Additional
Insureds on all required coverage.Required coverage must remain in effect through
the term of the Contract and each Purchase Order issued to Vendor there under. The
minimum acceptable insurance provisions are as follows:
1) Commercial General Liability
Commercial General Liability must include $1,000,000 per occurrence for Bodily
Injury and Property Damage, with a separate aggregate limit of $2,000,000;
Medical Expense per person of$5,000; Personal Injury and Advertising Liability
of $1,000,000; Products/Completed Operations Aggregate Limit of $2,000,000;
and Damage to Premises Rented: $50,000. Agencies may require additional
Umbrella/Excess Liability insurance. The policy shall contain the following
provisions:
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'
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COMPENSATION ACT (ART. 8308-1.01 ET SEQ. TEX. REV. CIV. STAT)
AND MINIMUM POLICY LIMITS FOR EMPLOYERS' LIABILITY OF
$1,000,000 BODILY INJURY PER ACCIDENT, $1,000,000 BODILY INJURY
DISEASE PER EMPLOYEE AND $1,000,000 PER DISEASE POLICY LIMIT.
3) Business Automobile Liability Insurance
Business Automobile Liability Insurance must cover all owned, non-owned and
hired vehicles with a minimum combined single limit of$500,000 per occurrence
for bodily injury and property damage. The policy shall contain the following
endorsements in favor of DIR and/or Customer:
a) Waiver of Subrogation; and
b)Additional Insured.
Z. Section 10. Vendor Responsibilities, S. Secure Erasure of Hard Disk Products
and/or Services,is hereby replaced in its entirety:
Vendor agrees that all products that are equipped with hard disk drives (e.g.,
computers, servers, printers, scanners, multifunction devices) shall have the
capability to erase data written to the hard drive prior to final disposition of such
managed service products and/or services, either at the end of the managed service
product and/or services' useful life or at the end of the Customer's managed service
product and/or services' useful life or the end of the related Customer Managed
Services Agreement for such products and/or services, in accordance with 1 TAC
202.28.
AA. Section 10. Vendor Responsibilities, T. Deceptive Trade Practices; Unfair
Business Practices, is hereby replaced in its entirety:
Vendor certifies as of the Effective Date of this Contract, that neither Vendor nor
any of its Subcontractors has been (i) found liable in any administrative hearing,
litigation or other proceeding of Deceptive Trade Practices violations as defined
under Chapter 17, Texas Business & Commerce Code, or (ii) has outstanding
allegations of any Deceptive Trade Practice pending in any administrative hearing,
litigation or other proceeding.
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.
BB. Section 10. Vendor Responsibilities, U. Drug Free Workplace Policy, is hereby
replaced in its entirety:
Vendor will comply with drug and alcohol rules and regulations that are legally
mandated for employers in the State of Texas. Vendor and Customers may agree to
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more specific requirements for onsite services in a mutually agreed statement of
work.
CC. Section 11. Contract Enforcement, B. Termination, a) Termination for Non-
Appropriation by Customer, is hereby replaced in its entirety:
Customer shall not place 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 iii)by budget
execution authority provisioned to the Governor or the Legislative Budget Board as
provided in Chapter 317, Texas Government Code. In the event of non-
appropriation,Vendor and/or Order Fulfiller will be provided 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. 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 products and discontinue using services under any return provisions that
Vendor offers.
DD. Section 11. Contract Enforcement, B. Termination, 3) Termination for
Convenience,is hereby replaced in its entirety:
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 if
it is determined by the Customer that Order Fulfiller will not be able to deliver
product or services prior to manufacturing process for products, and for services,
in accordance with a mutually agreed Statement of Work. For qualifying products,
Customer may return following receipt, in accordance with the Vendor's Return
Policy.
EE. Section 11. Contract Enforcement, C. Force Majeure, is hereby replaced in its
entirety:
DIR, Customer, or Vendor may be excused from performance under the Contract
for any period when performance is prevented as the result of an act of God, strike,
war,civil disturbance,epidemic,or court order,provided that the party experiencing
the event of Force Majeure has prudently and promptly acted to take any and all
steps that are within the party's control to ensure performance and to shorten the
duration of the event of Force Majeure. The party suffering an event of Force
Majeure shall provide notice of the event to the other parties when commercially
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reasonable. Subject to this provision, such non-performance shall not be deemed a
default or a ground for termination. However, a Customer may terminate a Purchase
Order if 1) its performance is or will be delayed by 20 days or more by event(s) of
Force Majeure (or a longer period if agreed to by the Customer) and 2) if it is
reasonably determined by the Customer that Vendor will not be able to deliver
services in a timely manner to meet the business needs of the Customer.
FF. Section 14. Export Compliance,is hereby added:
Compliance/Export Restrictions. Dell and Customer acknowledge that Products
licensed or sold under this Agreement are subject to the export control laws and
regulations of the United States or those of other countries from which they were
supplied and in which they are used. Under U.S. laws and regulations, Products
purchased under this Agreement may not be sold, leased or otherwise transferred
to restricted end-users or to restricted countries. In addition, the products may not
be sold, leased or otherwise transferred to, or utilized by, an end-user engaged in
activities related to weapons of mass destruction, including but not necessarily
limited to,activities related to the design,development,production or use of nuclear
materials, nuclear facilities, or nuclear weapons, missiles or support of missile
projects, or chemical or biological weapons. Customer warrants that any software
provided by Customer and used as part of the Services contains no encryption or,
to the extent that it contains encryption, such software is approved for export
without a license. If Customer cannot make the preceding representation,Customer
agrees to provide Dell with all of the information needed for Dell to obtain export
licenses from the United States government and to provide Dell with such
additional assistance as may be necessary to obtain such licenses.Notwithstanding
the foregoing, Customer is solely responsible for obtaining any specific licenses
relating to the export of software if a license is needed. Dell may also require export
certifications from Customer for Customer provided software. Dell's acceptance
of any order for Services is contingent upon the issuance of any applicable export
license required by the United States Government; Dell is not liable for delays or
failure to deliver a product resulting from Customer's failure to obtain such license
or to provide such certification.
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This Contract is executed to be effective as of January 10, 2018.
Dell Marketing, L.P.
Authorized By: Signature on File
Name: Dudley McClellan
Title: Commercial Counsel, Dell Legal
Date: December 15, 2017
The State of Texas, acting by and through the Department of Information Resources
Authorized By: _Signature on File
Name: Hershel Becker
Title: Chief Procurement Officer
Date: December 18 2017
Office of General Counsel: _DB _12/15/2017
Initials Date
Page 31 of 31
City of Fort Worth, Texas
Mayor and Council Communication
DATE: 09/28/21 M&C FILE NUMBER: M&C 21-0753
LOG NAME: 13PINFRASTRUCTURE MULTI-COOP ITS ADK
SUBJECT
(ALL)Authorize Non-Exclusive Purchase Agreements for Information Technology Infrastructure,with Netsync Network Solutions, Inc., Presidio
Networked Solutions Group, LLC, Future Com, LTD., and World Wide Technology LLC using Multiple State of Texas Department of Information
Resources(DIR)and The Interlocal Purchasing System Cooperative Contracts(TIPS)with a Combined Annual Amount up to$6,934,000.00, and
Five One-Year Renewal Options with DIR in the Amount of$5,534,000.00 for the First Renewal, $5,184,000.00 for the Second Renewal,
$4,434,000.00 for the Remainder Renewals and Two One-Year Renewal Options for TIPS and Ratify Expenditures in the Amount of$70,200.00 for
the Information Technology Solutions Department(ITS)
RECOMMENDATION:
It is recommended to authorize non-exclusive purchase agreements for Information Technology Infrastructure with Netsync Network Solutions, Inc.,
Presidio Networked Solutions Group, LLC, Future Com, LTD., and World Wide Technology LLC using Multiple State of Texas Department of
Information Resources(DIR)and The Interlocal Purchasing System Cooperative Contracts(TIPS)with a combined annual amount up to
$6,934,000.00, and Five one-year renewal options with DIR in the amount of$5,534,000.00 for the first renewal, $5,184,000.00 for the second
renewal, $4,434,000.00 for the remainder renewals and two one-year renewal options for TIPS and ratify expenditures in the amount of
$70,200.00 for the Information Technology Solutions Department(ITS).
DISCUSSION:
The Information Technology Solutions Department(ITS)will use these agreements to purchase equipment and services from Netsync Network
Solutions, Inc., Presidio Networked Solutions Group, LLC, Future Com., LTD and World Wide Technology LLC.to support the City's information
technology infrastructure. This infrastructure includes equipment and software supporting the City's servers, data storage,virtual desktop
environment, and network and telephone systems. These agreements will be used to support the refreshes for the equipment that has reached
the end of life cycle as well as new projects for City departments using the following cooperative contracts:
Vendor Co-op Expiration RFO Published Responses Due
Date
DIR-TSO-
WWT 4135 5/2/2022 5/23/2016 6/23/2016
WWT, Presidio, DIR-TSO-
Netsync 4167 7/3/2023 12/20/2017 2/5/2018
WWT, Presidio, DIR-TSO-
Netsync 3763 1/10/2024 9/12/2016 10/13/2016
WWT, Presidio, DIR-TSO-
Netsync 4299 12/17/2023 3/20/2018 5/4/2018
DIR-TSO-
WWT, Future Com 4160 10/2/2024 1/12/2018 2/26/2018
DIR-TSO-
Presidio, Future Com 4288 2/21/2025 2/26/2018 4/9/2018
Future Com TIPS 200105 5/31/2023 1/9/2020 2/21/2020
On September 15, 2020, City Council approved M&C 20-0650 authorizing similar agreements for information technology infrastructure purchases.
Due to unanticipated projects related to COVID and a new City Hall additional spending authority is being requested. To avoid any confusion,
approval of this M&C will eliminate prior spending authority and contracts authorized under Mayor and Council Communication P-12248, 19-0123,
19-0270 and 20-0650.
In the previous years,the Information Technology Solutions Department spent approximately$1.7 million in authorized expenditures out of the
operating and capital fund. Approval of this M&C will allow a total of$6,934,000.00 in expenditures for the initial year, $5,534,000.00 for the first
renewal, $5,184,000.00 for the second renewal, $4,434,000.00 for the remainder renewals for projects such as safety and security, new building
projects, building upgrades, building renovations and building expansion projects. Staff anticipate additional needs with the purchase of a new City
Hall building and the technology upgrade project at the Fort Worth Convention Center. These agreements and spending authority will be made
available to Radio Services, Desktop, Hardware and Security divisions to purchase hardware and software for City departments as requested.
It is requested that City Council ratify expenditures in the amount of$70,200.00. In anticipation of a new M&C, ITS staff executed a contract with
Word Wide Technology LLC in the amount of$70,200.00. This expenditure was for professional services needed to upgrade our Unified
Communications platforms. The platform was overdue for security and performance updates and there was limited in house experience. The
quick turnaround was based on FY21 operational spend timelines.
ITS Department will ensure that each vendor is given equal opportunity to earn a minimum of 10%of the business. No specific contract amount is
guaranteed.
PRICE ANALYSIS-The Texas Department of Information Resources Contracts(DIR)and The Interlocal Purchasing System Cooperative
Contracts offer discounted pricing. Staff has reviewed the pricing and determined it to be fair and reasonable.
COOPERATIVE PURCHASE-State law provides that a local government purchasing an item under a cooperative purchasing agreement
satisfies any state law requiring that the local government seek competitive bids for the purchase of items. DIR and TIPS Contracts are
competitively bid to increase and simplify the purchasing power of government entities.
M/WBE- An MBE/SBE goal is not assigned when purchasing from an approved purchasing cooperative or public entity.
ADMINISTRATIVE CHANGE ORDER: An administrative change order or increase may be made by the City Manager up to the amount allowed
by relevant law and the Fort Worth City Code and does not require specific City Council approval as long as sufficient funds have been
appropriated.
SUCCESSOR LANGUAGE: The City will initially use these DIR Contracts to make purchases authorized by this M&C. The Cooperative
Contracts are set to expire on various dates. If the DIR contracts are extended,this M&C authorizes the City to purchase similar equipment and
supplies under the extended contract. If the DIR contracts are not extended, but DIR executes new cooperative contracts with substantially similar
terms,this M&C authorizes the City to purchase the same equipment and supplies under the new DIR contracts. If this occurs, in no event will the
City continue to purchase goods and services under the new DIR agreements past 2026 without seeking Council approval.
AGREEMENT TERM: Upon City Council's approval,these agreements will be executed and continue for a term of 12 months in accordance with
approval date of this request. The agreements will renew on an annual basis thereafter. The renewals do not require specific City Council approval
as long as sufficient funds have been appropriated.
RENEWAL TERMS-The Texas Department of Information Resources Contracts(DIR)Agreement may be renewed annually for five(5)one-year
terms for the same annual amount. The Interlocal Purchasing System Cooperative Contracts may be renewed for one-year for the same annual
amount. The renewals do not require specific City Council approval as long as sufficient funds have been appropriated.
FISCAL INFORMATION/CERTIFICATION:
The Director of Finance certifies that funds are available in the current capital and operating budgets, as previously appropriated, in the ITS
Capital&Culture&Tourism Cap Projects Funds for the Technology Infrastructure-IT&Technology SCN FWCC projects and the General Fund to
support the approval of the above recommendation and exection of the purchase agreements. Prior to any expenditure being incurred,the
Information Technology Services Department has the responsibility to validate the availability of funds.
Submitted for City Manager's Office by: Jay Chapa 5804
Valerie Washington 6192
Originating Business Unit Head: Reginald Zeno 8517
Kevin Gunn 2015
Additional Information Contact: Cynthia Garcia 8525
Ashley Kadva 2047
Expedited