HomeMy WebLinkAboutContract 46555 CITY SECRErAW
CONTRACTNo.-4455,�,
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Statement of Work for:
City of Fort Worth
Peoplesoft Stress Testing
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OFFICIAL RECORD
CITY SECRETARY
FT.WORTH$TX
Contents
1 INTRODUCTION ......................................................................3
2 TERM ....................................................................................3
3 NA........................................................................................3
4 SCOPE OF SERVICE...................................................................3
4.1 PeopleSoft Performance Testing ...........................................................4
5 Pre-Requisites.........................................................................9
5.1 Connectivity to Offshore....................................................................9
5.2 Execution........................................................................................9
5.3 Support ..........................................................................................9
5.4 Service Hours................................................................................. 10
5.5 Deliverables................................................................................... 10
5.6 System Performance Criteria............................................................. 10
5.7 Personnel, Sample Skills and Qualifications ............................................ 11
6 PRICING .............................................................................. 13
6.1 Hourly Charges .............................................................................. 13
7 CHANGE MANAGEMENT PROCESS.............................................. 14
8 OTHER PROVISIONS ............................................................... 14
9 GENERAL ............................................................................. 16
10 SIGNATURES......................................................................... 17
11 Appendix A- Supported Sites.................................................... 18
12 Appendix B -Test Plan ............................................................ 19
12.1 Approach..................................................................... .. 19
..............
13 Appendix C — Business Scenarios............................................... 22
14 Contact Summary .................................................................. 23
0 Copyright 2015. Dell Inc. All rights reserved.
1 INTRODUCTION
This Statement of Work ("SOW") is signed between and sets forth the Services (as defined herein) to be
provided by Dell Marketing L.P. ("Dell") to City of Fort Worth("Customer").
The Service shall be performed in accordance with this SOW and the State of Texas Department of
Information Resources Contract DIR SDD 1951. htt)://ciir.texas.,-,cw/VievN-Search/Contracts-
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The following appendices are attached hereto and incorporated by reference:
Appendix A - Supported Sites
Appendix B - Test Plan
Appendix C - Business Scenarios
z TERM
The term of this SOW shall begin on the date of the last signature ("Effective Date") as set forth in the
Signature Section of this SOW and unless terminated in accordance with this SOW or the Agreement,
shall expire on the earlier of the date Dell completes the provision of services in accordance with the
milestone(s) as set forth in section S of this SOW or thirty two (32) weeks from the Effective Date.
Customer hereby acknoweldgees and agrees that the Effective Date shall be at least three (3) weeks
from the date of signing of the SOW by both parties.
3 NA
INTENTIONALLY LEFT BLANK
Dell will provide the services as specifically described herein (the"Services"), namely, PeopleSoft 9.2
performance testing services.
1. PeopleSoft Performance Testi-mg
4.1.1 Objective
Customer has requested Dell Services for conducting performance/stress testing for their PeopleSoft
financial implementation project.
Objective of this SOW is for Dell to conduct performance testing on PeopleSoft 9.2 and Buy
Speed and validate if the current production environment will sustain the expected user load of
approximately 600 users.
Assess system capacity for maximum user load and transaction volumes.
The approach, methodology and other related activities for the above Services are set out in in
Appendix B (Test Plan):
In-scope Services and obligations of Dell and Customer with respect to the Services are specified
below in detail:
-t.'.% In Scope
Dell will conduct performance testing of PeopleSoft 9.2 and BuySpeed application licensed by the
Customer.
Dell will build the test scripts, execute tests and set up the test data provided by the Customer
for the scenarios described in Appendix B(Test Plan) based on such test scripts.
Dell will provide monitoring and recommendations for technology stack tuning.
Dell will conduct performance testing of 6 end to end performance related business flows of
PeopleSoft 9.2 and BuySpeed application and these are listed in Appendix C.
Dell will make recommendations for Customer's proposed test scenarios based on PeopleSoft
9.2 workload analysis provided by Customer during the requirement gathering phase
1 cycle of performance testing (with 3 Load tests, 3 stress tests and 2 endurance/SOAK tests)
have been planned for this estimation.
Dell's obligation to conduct performance assessment is limited to the below listed PeopleSoft
9.2 modules currently used by the Customer:
Asset management
ACCOUn Pavable
Accounts Receivable
General Ledcer
Cash [;iaracement
Cor mitr:�en:Control
6..ySpeed (Periscope Holdings
OUt Of SCOpe
For the avoidance of doubt, the parties acknowledge that the following activities are not included in
the scope of this SOW for Dell.
Setting up Performance Test Environment for Performance Testing
Any remediation/performance tuning of Customer PeopleSoft applications / infrastructure for
performance improvements.
Non - PeopleSoft 9.2, BuySpeed applications or PeopleSoft 9.2 modules other than those
specified in Section 4.1.2.
Any services, tasks or activities other than those specifically noted in this SOW.
Any Dell training or certification services not specifically described in this SOW.
Production migration and upgrade
Formal training
Except as set forth herein, Dell is not responsible (including financial responsibility) for any
Customer and/or third party personnel, hardware, software, equipment or other assets currently
utilized in the Customer's operating environment.
Dell is not responsible for the performance of any underlying hardware or third party software,
equipment or other assets, which are out of scope of this SOW.
Assumptions
Dell has made the following specific assumptions while specifying the Services detailed in this SOW:
The provision of the Services does not include the development of any intellectual property
created solely and specifically for the Customer under this SOW.
The Services will be delivered from offshore - India(Bangalore).
If the project timelines extend due to circumstances arising out of environmental issues or any
change in the scope, tasks not included in this SOW, efforts for Dell caused due to lack of inputs
from the Customer such efforts will be taken as a change request by Dell.
Performance testing for in-scope modules will be limited to maximum of approximately 600
users of Customer. If the number of users is more than 600, then it will be considered as a
change and the parties will mutually agree through change request having an impact on the
scope, timing and the charges.
Applications of the in-scope modules are primarily https and Java based.
WAN emulation is out of scope.
Project start is April 2015 granted SOW is signed by both parties three weeks prior.
Customer will provide Dell team the existing response times, user load, transaction volumes and
server utilization metrics.
Any delay in remediation of issues by Customer which impact schedule, timelines and cost will
be handled by change request.
Changes to the system during performance test scripting/execution will have an impact in the
overall performance testing schedule and such changes will be handled through change
request.
Changes in functional and technical requirements during the SOW Term will have an impact on
the schedule, effort, and cost of the project and such changes will be handled through change
request.
Effort estimates, charges and timelines are based on current understanding of project
requirements. The current estimate of charges, efforts and timelines will be revisited
during detail requirement analysis phase and a detailed performance test plan will be prepared
based on the new estimate. These changes will be documented through change request. This
may impact overall timeline, fees and effort. Customer hereby agrees that it will reasonably co-
operate with Dell in agreeing to such change request
Scripting and execution will start only after Customer makes available to Dell at its offshore
center the Oracle OATS (Oracle Application Testing Suite) tool within Customer network.
Start of the project will depend on successful validation of application and environment from
offfshore. Dell will be sharing the names of the resources for creating user credentials and
necessary access upon signature of the SOW. If there is any delay in the validation of the
application and environment offshore, such delay shall be managed through change request.
In case Customer wants DELL to extend the term to complete essential services, DELL can
continue to provide services for the additional period on time and materials (T&M) basis at then
Dell's standard time and materials rates.
If any of these assumptions are not correct or fail or if any dependency is not met, then the impact of
the same on the charges, scope and schedule of this SOW shall be addressed through change request.
Customer Obligations
Customer agrees generally to cooperate with Dell in its delivery of the Services.Customer agrees to
the following responsibilities:
Customer will provide timely and complete access to Customer's critical support personnel such
as database administrators, network administrators, etc., to the Dell performance testing team
during performance test execution.
Customer will provide timely access to Customer's subject matter experts ("SMEs") including
business, operations, compliance,and development
Customer will provide SME support to Dell to identify workflows, user loads, transaction load
mix, and for proceeding with performance testing
Customer will provide timely and complete access to the test environment and other interfacing
applications to the Dell performance testing team at onsite, offsite and offshore.
Customer will validate the test scenarios for performance testing and sign off on the test scripts.
PeopleSoft 9.2 related batch processes will be executed by a Customer analyst during test
execution.
Functionally Stable performance test environment will be provided by Customer to proceed
with performance testing
Connectivity to access application will be made available from Dell offshore location as well as
Dell onsite location
Necessary resource support and access to databases for setting up test data will be provided by
Customer.
All key performance indicators and acceptance/success criteria to be available before the start of
the project
SME, Network Engineer,database engineer from Customer should be available on demand
during the load tests.
In case the stress test fail and the results does not meet the success criteria, then appropriate
remediation, tuning measures recommended by Dell will be taken by Customer to fix the
bottlenecks and achieve the success criteria, unless otherwise agreed by Customer stake
holders.
Necessary access credentials to be provided by Customer for all the related servers and
desktops to carry out the assignment smoothly.
During the term of this SOW, Customer is responsible for promptly notifying Dell in writing of a)
any changes Customer makes to its information technology environment that may impact Dell's
delivery of the Services; and b) if Customer becomes aware that any of the Assumptions set
forth herein are incorrect.
Prior to the start of this SOW,Customer will indicate to Dell in writing a person to be the single
point of contact, according to project plan, to ensure that all tasks can be completed within the
specified time period.All Services communications will be addressed to such point of contact
(the"Customer Contact"). Failure to do so might result in an increase in project hours and/or
length in schedule.
Customer will provide technical points-of-contact, who have a working knowledge of the
PeopleSoft 9.2 and its interfacing applications to be considered during the Services ("Technical
Contacts"). Dell may request that meetings be scheduled with Technical Contacts.
The Customer Contact will have the authority to act for Customer in accordance with
Customer's approved policies including bringing issues to the attention of the appropriate
persons within Customer's organization and resolving conflicting requirements.
The Customer Contact will ensure that any communication between Customer and Dell,
including any scope-related questions or requests, are made through the appropriate Dell
Project Manager.
The Customer Contact will provide timely access to technical and business points of contact
and required data/information for matters related to the scope of Service.
The Customer Contact will obtain and provide project requirements, information, data,
decisions and approvals within one working day of the request, unless both parties agree to a
different response time.
Customer will be responsible for developing or providing documentation, materials and
assistance to Dell and agrees to do so in a timely manner. Dell shall not be responsible for any
delays in completing its assigned tasks to the extent that they result from Customer's failure to
provide such timely documentation, materials and assistance.
The Customer Contact will ensure the Services personnel have reasonable and safe access to
the Project site, a safe working environment and an adequate office space.
Customer will inform Dell of all access issues and security measures, and provide access to all
necessary hardware and facilities in accordance with Customer's access policies.
Customer will be responsible for providing all hardware, software, internet access, and facilities
for the successful completion of the Services. Facilities and power must meet Dell's
requirements for the products and Services purchased.
Customer will provide necessary access to the environment where the performance testing of
PeopleSoft 9.2 and BuySpeed applications are to be tested, in accordance with Customer's
access policies.
Customer will provide necessary access credentials for all the related servers and desktops to
carry out the assignment smoothly.
Customer will create necessary VPN access credentials for accessing their network for both
onsite and offshore resources
Customer will provide all required license for Dell to use Oracle OATS tool from its offshore
premises for conducting performance testing. Oracle OATS license will be used for test
executions. Customer should allow Dell team members to download the tool and use it within
its network. Necessary licenses for other related software tools (Microsoft office) shall be
provided by Customer.
Customer will provide Dell team the screen shots of the functional steps to be followed for each
scenario at least thirty (30) days prior to the Effective Date.
Customer will ensure that all the in-scope applications are functionally stable to proceed with
performance testing as of the Effective Date. If there are any application stability issues while
scripting or execution, there may be a delay in the performance testing schedule, such delay will
be routed through change request.
Other obligations specified in Section 5 below and other provisions of this SOW.
Upon request by Customer, Dell will provide a proposal for such out of scope services pursuant to the
Change Management Process as defined in Section 7.
5 Pre-Requisites
5.1 Connectivity to Offshore
Internet connectivity to offshore through Leased line or VPN needs to be established between
Dell offshore facilities and Customer facilities in accordance with Customer's access policies.
Customer will provide the intemet connectivity to Dell's offshore premises prior to the Effective
Date of this SOW.
Customer will ensure that the Load generator machines/servers should be present in the same
LAN in which applications servers are present and(b) Load Generator machines will have a
combined memory of about 64 GB.
Customer will provide to Dell 2 additional windows machines with Microsoft office software for
collating test data,preparing reports,conduct analysis and for the Dell resources to check mails.
Customer will make changes to its firewall settings changes at Customer's end to allow traffic
from offshore location(s) to the load generators and workstations where applications are
installed.
5.2 Execution
Customer will provide the IP addresses of the load generators.
Customer will provide necessary admin access rights on the Oracle OATS, Controller and load
generators machines for Dell to install Oracle OATS software.Customer will provide the
systems with the below configuration:
S1 No System ,- CPU Memary • ;• _
k Required
1 Controller Quad Core 16 GB Windows Server 2008 R2 100 GB 1
Machine SPI 64 Bit
2 Load Generators Quad Core 32 GB Windows Server 2008 R2 100 GB 2
SP1 64 Bit
3 Work Stations for Dual core 8-12 GB Windows 7 40 GB2
Creating Oracle
OATS Scripts
Customer will enable the connectivity between all the machines mentioned in the table above.
5.3 Support
Customer will make available points of contact from Customer Network team, SMTP
Administrators,etc., in case of any outages,server crashes/hangs,etc.
5. Service Hours
Dell intends to provide the Services during the scheduled hours stated below (the `Service Hours") on
working days at Dell's offshore facilities.
Dell's personnel providing Services from offshore at Dell's (Bangalore/Noida) offices will work during
the Indian working hours (IST) and hours worked will be between 8.30AM and 6 PM, 40 hours per
week.
If any Dell personnel are required to work beyond the working hours specified above or during any
weekend or on holidays, Dell will charges for such work at the rate of 1.5 times the hourly rates
specified in Section 6.1 below, which shall be in addition to the proposed price.
5.5 Deliverables
The following is a list of tangible deliverables to be provided by Dell to Customer under this SOW:
Dell will be delivering the following during performance testing the PeopleSoft 9.2 application
("Deliverables"):
Key Mile Stones Deliverables
Identify the Performance Test
Scenario Identification
Requirements
Define acceptance criteria SLA and KPI definition
Workload Model and Traversal flow Workload Model and Transaction Traversal
flow document
Prepare Test Plan document-
according to the baseline benchmarks Performance Test plan
and 3 test scenatios given
Performance Test Scripts Oracle OATS Scripts for the identified
scenarios
Preliminary results of each test
preliminary analysis reports
executions
Final Report with Observations and
recommendation Final Summary report
To avoid iterative process, Dell will share Dell's standard sample templates for performance test
plan, traversal template and report template with Customer during the first week from the
Effective Date and Customer shall review such templates and revert to Dell with queries and
comments within 5 working days from the date of submission, failing which Dell will move
ahead using the sample templates as agreed templates.
6 )ystefl`1i pet fo`t'naianc Criie-f"1?
Customer will compare the performance test results provided by Dell in the test report Deliverable
with the acceptance/success criteria mutually agreed by Customer and Dell and decide whether
further testing is required or not within the Term of this SOW. If Customer asks Dell to conduct further
testing, then such testing will be done based on an extension of the SOW and on time and materials
basis.
During the Term of this SOW, Dell will assist Customer in reading the system performance criteria
from the test results in the test report Deliverable provided by Dell. In the event Customer requires Dell
to assist the Customer in the above beyond the Term of this SOW, any such extension shall be
handled through change control process.
Project Exit Criteria:
Deliverables have been submitted and accepted by Customer
5.7 Personnel, Sample Shills and Qualifications
Dell will assign a team of three (3) Dell personnel:
a. Three (3) Dell personnel at offshore at Dell's India locations.
Following are the sample (non-binding) skills/profiles of resources that are expected to be working on
this project. Upon Customer's request, Dell shall remove any Dell personnel not performing to
Customers satisfaction.
5.7.1 Performance Test Lead
Single point of contact and accountability for successful delivery of the Services
Maintain focus on time, cost and scope
Coordinate and facilitate kick-off, status,deliverable review and closeout meetings
Establish and manage the Services schedule, communications and status reporting
Provide up to one status call and brief status report per week
Identify, monitor and manage Services risk, issues and escalations
Facilitate change management as needed
Confirm the Services delivered are in accordance with the SOW
Obtain deliverable and Services completion acceptance from Customer
Up to one deliverable review or phase completion call per week
Monitor the Services budget and invoices
Manage the Customer relationship
Track and report progress against milestones (if milestones are noted within SOW)
All Project management activities will be conducted remotely.
Interact with Onsite coordinator and assign tasks to the offshore team.
Gather performance test requirements
Prepare the workload Model and application traversal document.
Prepare Oracle OATS scripts and enhance the scripts.
Execute the performance tests for PeopleSoft 9.2 applications for the desired scenarios.
Monitor servers during the test execution.
Collate,compile and analyze the stress results.
Identify client and server side performance bottlenecks.
Prepare a preliminary report with observations and recommendations
Prepare summary report.
Performance Test Senior Analyst
Prepare Oracle OATS scripts and enhance the scripts.
Execute the stress tests for PeopleSoft 9.2 applications for the desired scenarios.
Monitor servers during the test execution.
Collate, compile and analyze the stress results.
Identify client and server side performance bottlenecks.
Prepare a preliminary report with observations and recommendations
Prepare summary report.
6 PRICING
This section describes the methodology for determining invoice amounts (the "Charges") for the
Services provided under this SOW. Customer hereby agrees to pay the Charges in accordance with
the Invoicing and Payment terms of the Agreement and as further supplemented within this SOW.
6.1 Hourly Charges
Dell will invoice Customer the applicable Hourly Charges in accordance with this SOW, irrespective of
whether those charges were incurred prior to the Effective Date. The Hourly Charges will be invoiced
on a monthly basis based upon the actual number of hours (subject to any applicable minimums)
expended by Dell in the prior billing period multiplied by the applicable hourly rates as set forth in the
table below:
The table below sets out the hourly service rates for the different Dell Personnel assigned and the total
estimated charges.
Hourly Service Rates Table (USD):
Resource Role #of Resources Effort Hourly Rate Estimated Labor Location
(Hours) (USD) Cost (USD)
Performance 1 480 58 27840 Dell Bangalore
Test Lead India
Performance 1 480 41 19680 Dell Bangalore
Test Sr.Analyst India
Performance 1 320 27 8640 Dell Bangalore
Test Analyst India
VPN/Network Connectivity Cost 1050
Total Indicative Cost(USD) 57210
..,.: Pricing Terms & Conditions:
1) Pricing - The terms of this SOW (including but not limited to the pricing) shall be valid for thirty
(30) days following initial delivery date ("Initial Delivery Date") of this SOW to Customer. In the
event this SOW is executed by Customer and returned to Dell after such thirty (30) day period,
Dell may, in its sole discretion, (i) accept the SOW on the stated terms or (ii) reject the SOW and
provide Customer with a revised SOW setting forth any necessary updates to the terms of the
previous SOW.
2) The price for the Service is based on Customer's environment as disclosed to Dell. If the
assumptions, client responsibilities and parameters within the scope of the Service used to
develop the SOW are found to be incorrect or have changed, the parties agree to pursue
resolution through the Change Management Process set forth in this SOW.
3) If any of the volumetric assumptions used in this SOW (including, time on task, locations, service
consumption, and/or configuration factors and excluding estimated hours or expenses) relied
upon by Dell vary by +/-ten (10%) percent, Dell has the right to adjust the pricing to reflect such
changes.
4) Customer is a tax exempt entity and not responsible for taxes under this SOW.
5) Invoices for this assignment will be billed monthly. Payment is due thirty (30) days from date of
invoice
6) The invoices billed will be based on actual efforts spent.The total mentioned in the SOW is only
a numerical total of rates applied to efforts or number of resources and not a commitment to a
fixed USD value.
7 CHANGE MANAGEMENT PROCP;SS
The Change Management Process ("Change Management Process") is the process that governs
changes to the scope of the Service during the Term of this SOW,as described below. The Change
Management Process may be used to modify the Service described in this SOW.
Changes permitted to be made pursuant to this Change Management Process will be limited to
changes to Section 4 (Scope of Service) and adjustments in Section 6 (Pricing) associated with
changes to Sections 4 and 5 of this SOW.
Either party may request a permitted change in the Scope of the Service by completing a Change
Order Form at
http://www_delt.com/downloads/global/services!sd/Reg_uest for Change RFC-Form-pdf
The receiving party will review the proposed Change Order and will (i) approve it, (ii) agree to further
investigation, or (iii) reject it. Changes agreed pursuant to the Change Management Process will not
be effective until mutually executed by both parties.
Any desired modifications to this SOW which are not permitted above in this Section 7,will require
that a written amendment to this SOW or a new SOW be mutually executed by the parties.
8 OTHER PROVISIONS
1) Dell may perform all or part of the Services off-site at a Dell or other location.
2) Services may be performed outside the country in which Customer and/or Dell is located. From
time to time, Dell may change the location where Services are performed and/or the party
performing the Services; provided however, Dell shall remain responsible to Customer for the
delivery of Services.
3) If a conflict arises between the terms of the Purchase Order, SOW and Agreement,the following
order of precedence shall be followed: first, the SOW; second, the Agreement; and third, the
Purchase Order (if any). Provided, however, in no event will any terms and conditions contained
in any Purchase Order apply irrespective of whether such terms and conditions are in conflict
with or merely ancillary to any terms and conditions in the SOW or Agreement.
4) INSURANCE.
The Consultant shall carry the following insurance coverage with a company that is licensed to do
business in Texas or otherwise approved by the City:
1. Commercial General Liability
a.Combined limit of not less than$2,000,000 per occurrence; $4million aggregate or
b. Combined limit of not less than $1,000,000 per occurrence; $2,000,000 aggregate and
Umbrella Coverage in the amount of $4,000,000. Umbrella policy shall contain a follow-form
provision and shall include coverage for personal and advertising injury.
c. Defense costs shall be outside the limits of liability.
2. 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.
.i. Statutory Workers' Compensation and Employers' Liability Insurance requirements per the
amount required by statute.
4. Technology Liability (Errors &Omissions)
a.Combined limit of not less than$2,000,000 per occurrence; $4million aggregate or
b. Combined limit of not less than $1,000,000 per occurrence; $2,000,000 aggregate and
Umbrella Coverage in the amount of $4,000,000. Umbrella policy shall contain a follow-form
provision and shall include coverage for personal and advertising injury. The umbrella policy
shall cover amounts for any claims not covered by the primary Technology Liability policy.
Coverage shall include,but not be limited to, the following:
(i) Failure to prevent unauthorized access
(ii) Unauthorized disclosure of information
(iii) Implantation of malicious code or computer virus
(ivy Intellectual Property Infringement coverage, arising out of software and/or context
(excluding patent infringement and misappropriation of trade secrets).
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.
5. Any other insurance as reasonably requested by City.
General Insurance Requirements:
1, The Commercial General Liability and Automobile Liability policies shall name the City as an
additional insured thereon, as respects insurable liabilities assumed by Consultant under this
Agreement. The term City shall include its employees, officers, officials, agents, and volunteers
in respect to the contracted services.
2. The workers' compensation policy shall include a Waiver of Subrogation (Right of Recovery) in
favor of the City of Fort Worth.
3. 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.
4, Any failure on the part of the City to request required insurance documentation shall not
constitute a waiver of the insurance requirement.
5. Certificates of Insurance evidencing that the Consultant has obtained all required insurance
shall be delivered to and approved by the City's Risk Management Division prior to execution
of this Agreement.
9 GENERAL
Dell shall not be responsible for any delay or failure to provide Service to the extent caused by: (1)
failures by Customer to perform its responsibilities under this SOW, (2) materially inaccurate
assumptions; (3) a defect, deficiency or failure with respect to Customer's network, systems, software,
data or other equipment; or (4) modifications to Customer's network, systems, or other equipment
made by a party other than Dell or its representatives. In the event that either party becomes aware of
the occurrence of one or more of the foregoing events, they shall notify the other party accordingly.
Notwithstanding such occurrence, Dell may, following discussion with Customer regarding the impact
of such incident, continue to provide the Service and shall use commercially reasonable efforts to
perform the Service under this SOW. Customer shall reimburse Dell for its reasonable additional costs
of providing the Service and out of pocket expenses for such efforts and only to the extent attributable
to the items defined above.
lo SIGNATURES
Dell and Customer have caused this SOW to be signed and delivered by their duly authorized
representatives.
Count— ernarts
This Agreement may be executed in in one or more counterparts and each counterpart shall, for all
Purposes, be deemed an original, but all such counterparts shall together constitute one and the same.
An executed Agreement, modification, amendment, or separate signature page shall constitute a
duplicate if it is transmitted through electronic means, such as fax or e-mail, and reflects the signing of
the document by any party Duplicates are valid and binding even if an original paper document
bearing each party's original signature is not delivered.
City of Fort Worth Dell Marketing L.P.
By. B,
Printed:
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AsSiStaat City bkMg r
Title: 1'ttic
Date- ✓ ( a—e o Date:
Please note that for administrative purposes only. Service. rnay not be scheduled or commenced
until Dell's receipt of this fully executed SOW At that time a Dell Project Manager Will contact you
to begin Services scheduling. Any additional and/or conflicting terms and conditions stated on the
Customer purchase order shdll be void and have no effect on this SOW
Please fax a copy of your purchase order and this signed SOW (with all pages in full) to 512-283-
7899,Attention Dell -- Intake Manager, RE 4362790 The purchase order amount should incl
estimated expenses, it they are billable
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OFFICIAL RECORD
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Append(^ A - Supported Sues
The Services will be provided for the following supported sites during the term of this SOW. Additional
supported sites may be included as mutually agreed using the Change Management process as
defined in section 7.
Dell International 123,EPIP Phase 2,Whitefield Bangalore Karnata 560066
Services ka
12 Appendix B - Test Plan
12.1 Approach
12.1.1 Test Approach
Response Time. use,Demand. Transaction time.mixcd Test Infrastructure.Test
wofktoad Pattern. Scenarios.Load generators,
Monitors
_ User behaviour Patterns. ilf . .
n r I!-IV,fume of tr„ p+ r I
r,r•t,response time
Script System setup. Proposed N
Recording. App Setup Data capacity prollles Meet
Parameterization Loading, Pei funnar Requirements
Functional I—Itty-
Integrated Approach verification
Performance
End User Business Technology Tuning, Y
Experience Drivers Drivers DI
eptoyrrx:nt
;�9` Production/
• ResponseTlmes Business Performance Software Performance QePlaytnent
• Availability Past S.Future Growth Tuning Options
In terms of load and System Utilizations
volume Deployment Architecture
System Efficiency
• Agility.FlexibiUty
Cost
12.1.2 Performance Test Methodology
Following is the performance test approach that Dell will follow to undertake this engagement.
Anivsk
117
Ki
Modeulng Ek
L Wng L
Objective •Volumetric Analysis •Execute Load&stress Capture client side and
•Discussion with •Work Load Modeling test to determine the server side metrics
stakeholders •Test Script application performance while executing the
•Non functional development &stress level tests
requirements gathering -Scripts customization& •Conduct Endurance test Analyze the test results
•Environment Validation validation
to identify the application Determine the baseline
•Identification& •Testing&Monitoring
stability w° capacity of the system
prioritization of critical tool setup •Simulate batch process Identify issues and
business flows • Perform connectivity and repeat the tests to provide fix
•Tool identification&setup test identify the application recommendation
• Assist AECOM in
•Test Planning • Define metrics to be performance in Capacity planning
captured and analyzed production like scenario
•Monitor various metrcis
r
4�—_ Output F7ihat Summary submitted with recommendations
2.1.:.; Analysis E Panning
The analysis and planning phase will consists of the following activities:
Discussion with Customer SMEs in understanding the application functionality
Discussion with SMEs in finalizing the scenarios that needs to be performance tested.
Analyzing the non-functional requirements and validate the types of testing to be conducted
Validate test environment and ensure access to the environment and applications are provided
to performance testing team.
Setup and configure the performance testing and monitoring tools (Based on the current
understanding Dell will install the tool on the Customer premises and will execute the
performance tests.)
Plan for test execution and come out with a detailed performance test plan
12.1.2.2 Y/orktoad t,,lodellina Et Scriptinn
The workload modeling and scripting phase will consists of the following activities:
Volumetric Analysis in terms of user growth and data growth
Model workload for test scenario execution
Test Script development, parameterization, correlation and customization
Validate test scripts with the data provided
Perform connectivity test
Define metrics to be captured and analyzed by discussion with SMEs in finalizing the scenarios
that needs to be performance tested.
•2.1.2.3 Test Execurlion E ��'.onirorin�
This phase consists of the following activities:
Execute Load and stress tests to determine the application performance
Conduct Endurance test to identify the application stability
Simulate batch and other background process while simulating user load and repeat the tests to
identify the application performance in production like scenario
Monitor various performance metrics
_.: Analysis Et. Reporting
This phase consists of the following activities:
Capture client side and server side metrics while executing the tests
Analyze the test results
Determine the baseline capacity of the system
Identify issues and provide fix recommendation
1 I Ufi.ri() and Renn`c-cjiaLio:n
Dell will conduct analysis and make recommendations to City of Fort Worth.Customer will tune or
remediate the application or hardware resources based on Dell's recommendation if PeopleSoft 9.2
systems fail to meet the success criteria. Dell will continue with the second round of tests.
,t.,. Performance Measurel gents
By using Oracle OATS tool, following metrics will be captured, measured, analyzed and reported as per
requirement during performance testing
12.1.3 Client / Server Side
Running Vusers
Transaction Response Time
Hits per second
Throughput
HTTP status code&responses
Pages downloaded per second
Successful/Failed Transaction details
Error Statistics
12.1.4 System resources
CPU, memory,disk i/o
Web server resources
Threads,cache hit ratio
Application server resources
Database server resources
Wait events, SQL queries, connection pools
Transaction profiling
Memory Leak analysis
Paging details
Infrastructure Side
Bandwidth utilization
!Network delay time
!Network segment delay time
13 Appendix C — Business Scena-ri®s
Sl No PeopleSoft 9.2 Module
1 Asset management
2 Account Payable
3 Accounts Receivable
4 General Ledger
5 Cash management
6 Commitment Controls
7 Bu Speed
The above mentioned business scenarios will be finalized in discussion with City of Fort Worth SME's
during requirement gathering phase
DIR Contract No. DIR-SDD-1951
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 15th 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-SDD-TMP-190, on August 6, 2012, for
Dell Branded Manufacturer Hardware, Software and Related Services. Upon execution
of this Contract, a notice of award for RFO DIR-SDD-TMP-I90 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; Appendix F, Master Lease Agreement;
Exhibit 1, Vendor's Response to RFO DIR-SDD-TMP-190, including all addenda; and
Exhibit 2, RFO DIR-SDD-TMP-190, including all addenda; are incorporated by
reference and constitute the entire agreement between DIR and Vendor governing
purchase transactions. For Lease transactions under this Contract the order of precedence
shall be as follows: this Contract; Appendix E, Master Operating Lease Agreement;
Appendix F, Master Lease Agreement, as applicable depending on the type of lease;
Appendix A, Standard Terms and Conditions For Products and Related Services
Contracts; Appendix B, Vendor's Historically Underutilized Businesses Subcontracting
Plan; Appendix C, Pricing Index; Appendix D, Services Agreement; Exhibit 1, Vendor's
Response to RFO DIR-SDD-TMP-190, including all addenda; and Exhibit 2, RFO DIR-
SDD-TMP-190, including all addenda; are incorporated by reference and constitute the
entire agreement between DIR and Vendor governing lease transactions. In the event of a
conflict between the documents listed in this paragraph related to purchases, the
controlling document shall be this Contract, then Appendix A, then Appendix B, then
Appendix C, then Appendix D, then Appendix E, then Appendix F, then Exhibit 1, and
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DIR Contract No. DIR-SDD-1951
Vendor Contract No.
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 or Appendix F, depending on the type of lease transaction, then Appendix A,
then Appendix B, then Appendix C, then Appendix D, then Exhibit 1, and finally Exhibit
2. In the event and to the extent any provisions contained in multiple documents address
the same or substantially the same subject matter but do not actually conflict, the more
recent provisions shall be deemed to have superseded earlier provisions.
2. Term of Contract
The term of this Contract shall be one (1) year commencing on the last date of approval
by DIR and Vendor. Prior to expiration of the original term, DIR and Vendor may extend
the Contract, upon mutual agreement, for up to three (3) optional one-year terms.
Protracted contract negotiations may, in DIR's sole discretion, result in fewer optional
terms.
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 Customer Imaged Software ("CFI'), maintenance and support, asset recovery services,
product training, and future services Dell may offer upon DIR approval (note Deliverable
Based IT Services are offered under a separate contract, DIR-SDD-1961).
4. Pricing
A. Manufacturer's Suggested Retail Price (MSRP)
MSRP is defined as Dell's published retail price.
B. Customer Discount
The minimum Customer discount for all products and services will be set forth in
Appendix C Pricing Index.
Vendor agrees that the DIR standard pricing discounts contained in Appendix C will
remain one percent (1%) better than the Western States Contracting Alliance
(WSCA) Category A level, standardized discounts. This extension of competitive
volume sales pricing is intended solely to insure that DIR will, at a minimum, remain
competitive with the standard price rates set for WSCA as a whole. DIR may not
apply, without the express consent of Vendor, any pre-existing discount structure to
the WSCA pricing being offered to DIR by Vendor. DIR may either use DIR
discounted pricing or the WSCA pricing but may not combine, or compound the two.
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DIR Contract No. DIR-SDD-1951
Vendor Contract No.
In the event that DIR pricing fails to remain competitive to WSCA standardized,
category level pricing, Vendor shall extend such pricing to DIR. Vendor shall use its
commercially reasonable best efforts to notify DIR of such WSCA price change and
amend this Contract within thirty (30) days after the amendment to the Vendor's
WSCA contract. The introduction of the WSCA pricing to the DIR contract shall be
effective from the date of execution into the Contract by amendment. Both parties
agree that the pricing shall not be retroactive for DIR and shall not extend back to the
date that Vendor reduced WSCA catalog pricing. Further, the parties agree that DIR,
or the State of Texas, does not have the right to audit the WSCA contract held by the
Vendor. References to the Vendor's WSCA contract are only contained in this
Contract for purposes of referencing the pricing discounts contained therein. Both
parties acknowledge that the Vendor's WSCA contract and pricing are readily
available to the public and may be freely accessed by the internet for the purposes of
validation under the terms and conditions of this Contract.
C. Customer Price
1) The price to the Customer shall be as set forth in Appendix C, Pricing Index.
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 Customer 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.
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DIR Contract No. DIR-SDD-1951
Vendor Contract No.
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 in accordance with the
Deployment Plan outlined below.
Sample Deployment Plan for Dell's Configuration Services Projects
Activity Timeframe
Customer to select Dell as vendor. One(1)business day
Dell will begin to manufacture Customer's evaluation Six(6)business days
unit.The Project Manager will work directly with
manufacturing to ensure that lead times are not exceeded
and that the agreed upon schedule for delivery is met.
Evaluation unit is received by Customer.
Customer will create ghost images and return these Three(3)to five(5)business days
images to Dell within 24 hours to factory install on all
remaining units prior to shipment.
Dell will produce hard copy Technical One(1)business day—Technical
Specifications within twenty-four(24)hours for Specifications
Customer's approval. Customer will review and One(1)business day—Review,approve.
approve the specifications and return to Dell return to Dell
within twenty-four(24) hours.Once approval is Ten(10)business days—Hardware
received,the Configuration Services engineering Customization engineering
process can begin provided the image has also
been received.
A Customer Master Services Agreement must be Two(2)business days—Customer executes
executed prior to the release of any First Article units by and returns IS Agreement.
Dell Marketing L.P.
Dell will manufacture the First Article order.Customer Six(6)business days—First Article
will receive the First Article and approve. manufacture
Three(3)business days—Receive and approve
Upon approval of First Article order,Dell will begin Ten(10)business days—Manufacture
production of the balance of units in accordance with the additional units
Customer's mutually agreed to delivery schedule. Five(5)business days-Shipping
All systems will be delivered according to the mutually On-going
agreed upon schedule.
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DIR Contract No. DIR-SDD-1951
Vendor Contract No.
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 Contract are exempt from Federal Excise Taxes, 26 United States Code Sections
4253(1) 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
(http://www.window.state.tx.us/procurement/pro�/stmp/). Travel time may not be
included as part of the amounts payable by Customer for any services rendered under
this Contract. The DIR administrative fee specified in 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 quarter of one percent (.25%).
Payment will be calculated for all sales, net of returns and credits. For example, the
administrative fee for sales totaling$100,000 shall be $250.
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.
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DIR Contract No. DIR-SDD-1951
Vendor Contract No.
6. Notification
All notices under this Contract shall be sent to a party at the respective address indicated
below.
If sent to the State:
Robin Abbott, Manager
Contract and Vendor Management
Department of Information Resources
300 W. 15`" St., Suite 1300
Austin, Texas 78701
Phone: (512) 475-4700
Facsimile: (512)475-4759
If sent to the Vendor:
Diane Wigington
Dell Marketing, LP
One Dell Way, Mail Stop RR8-06
Round Rock, Texas 78682
Phone: (512) 728-4805
Facsimile: (512) 283-9092
Email: Diane Wi in ton ,Dell.com
7. Software License, Services and Leasing Agreements
A. Software License Agreement
A. 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).
B. 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.
C. 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 SOW's).
I. Restrictions. Customer may not copy, modify, or create a derivative work,
collective work, or compilation of the Software, and may not reverse engineer,
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DIR Contract No. DIR-SDD-1951
Vendor Contract No.
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
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.
II. 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.
III. 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.
IV. 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
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DIR Contract No. DIR-SDD-1951
Vendor Contract No.
USE OF THIS OPEN SOURCE SOFTWARE, EVEN IF ADVISED OF THE
POSSIBILITY OF SUCH DAMAGE.
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 Vendor is authorized to utilize the Master
Operating Lease Agreement in Appendix E of this Contract for Lessees that are Texas
State Agencies or otherwise authorized to conduct lease transactions through DIR
contracts.
E. Master Lease Agreement
DIR and Vendor hereby agree that Vendor is authorized to utilize the Master Lease
Agreement in Appendix F of this Contract for DIR authorized entities as Lessees that
are not Texas State Agencies or otherwise required by statute to utilize the Texas
Public Finance Authority for such leasing transactions.
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
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DIR Contract No. DIR-SDD-1951
Vendor Contract No.
to (a) 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 Request for Offer DIR-SDD-TMP-190 for Dell Branded
Manufacturer Hardware, Software and Related Services.
A. Section 2. Scope, 2.1 Products is hereby replaced in its entirety:
DIR intends to contract for all Dell branded product categories, including but not
limited to desktops, laptops, printers, servers, and the related accessories, software,
and/or supplies applicable to each product category.
This Contract is a full Catalog contract, offering all products Dell is authorized to sell
or manufactures and services Dell offers, including, but not limited to deployment,
help desk, outsourcing, IT security services, managed services, storage and server
assessment services, and future services Dell may offer subject to DIR approval (note
Deliverable Based IT Services are offered under a separate contract, DIR-SDD-1961).
In addition, third party products are included, with the exception noted herein. NOTE:
DIR has established Microsoft Volume Licensing agreements directly with the
Publisher of the software, Microsoft Licensing, GP to consider the State of Texas as a
single customer and grant discounts based on the volume of the State of Texas as a
whole. Therefore, for any contract awarded as a result from this RFO, Customers may
not issue purchase orders and Vendors are prohibited from selling any Microsoft
Volume Licensing software licenses that may infringe on any Volume Licensing
program and related agreements that DIR has established directly with the Publisher.
Vendors may sell software that is installed/loaded as part of an operating system at
the time of configuration.
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DIR Contract No. DIR-SDD-1951
Vendor Contract No.
Customers may submit or request that Vendor prepare a statement of work
when obtaining a quote based on their service needs.
Any Vendor responding to this RFO must submit pricing for the products requested
herein. A representative sample of Dell branded products has been included for the
purposes of obtaining pricing and evaluating the responses to this RFO. This sample
is contained in the Excel spreadsheet attached as "bid package 2" to the posting for
this RFO, requisition number DIR-SDD-TMP-190, on the Electronic State Business
Daily, http://esbd.epa.state.tx.us/. "Bid package 2" is a representative sample only.
All products of Dell Marketing, L.P. may be made available through a Contract.
In addition to purchase sales, DIR and any Vendor awarded a Contract as a result of
this RFO may agree to provisions that allow leasing of the products offered under the
resulting Contract.
DIR is not soliciting Dell branded hardware, software and related services for the
agency. DIR establishes statewide master contracts for use by DIR eligible customers
(state agencies, higher education, K-12 independent school districts, and local
governments). DIR competitively bids for information technology products and
services.
Note to customers: This Contract complies with state purchasing requirements.
Eligible customers may procure directly from the Contract and are not required to
issue requests for proposals or take other additional procurement actions.
Customers must identify their own needs, then contact an awarded DIR Vendor and
obtain a price quote for products/services. Customers may submit a statement of
work to the vendor when obtaining a quote based on their needs. The Customer
makes the best value determination and issues a purchase order directly to the
Vendor.
Vendors may propose their catalog of Dell branded hardware, software, and related
services.
Under Texas Government Code, Chapter 2054, Subchapter M, and DIR
implementing rules, DIR state agency Customers must procure products that comply
with the Accessibility Standards defined in the Texas Administrative Code, 1 TAC
206 and 1 TAC 213, when such Products are available in the commercial marketplace
or when such products are developed in response to a procurement solicitation.
Accordingly, Vendor must provide electronic and information resources and
associated Product documentation and technical support that comply with these
Accessibility Standards in its response to this RFO. Vendors who do not already
have accessibility documentation should complete the form located here:
http://www.itic.org:8080/dotAsset/5644ecd2-5024-417f-bc23-a52650f47etS.doc.
Vendors that claim their products are exempt from accessibility requirements must
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DIR Contract No. DIR-SDD-1951
Vendor Contract No.
present that position to DIR as a question to be handled in the question and answer
period of the solicitation.
Customer may go to this page to request VPATs:
http://content.del l.com/us/en/corp/d/corp-comm/cr-diversity-customer-
disabilities.aspx
B. Section 3.7.3, Mandatory Response Documents, 6. Voluntary Product
Accessibility Templates, is hereby replaced in its entirety:
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.section 508.gov/.
http://content.del l.com/us/en/corp/d/corp-comm/cr-diversity-customer-
disabilities.aspx
C. Appendix A of the RFO, Item 20B, Certification Statement, is hereby replaced in
its entirety:
The undersigned hereby certifies on behalf of Dell Marketing, L.P. that RFO DIR-
SDD-TMP-190 has been read and understood. In submitting its response Dell
Marketing, L.P. represents to DIR the following:
i) Vendor is capable of providing the products and services as described in the RFO;
ii) Vendor is offering true and correct pricing and discounts for the products and
services;
iii) Vendor agrees, if awarded a contract, to abide by the terms and conditions of the
resulting contract;
iv) as of the date of signature below, Vendor is not listed in the prohibited vendors list
authorized by Executive Order 9I3224, '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;
v) Vendor is not suspended or debarred from doing business with the federal
government as listed in the Excluded Parties List System (EPLS) maintained by the
General Services Administration;
vi) Vendor certifies, under Texas Government Code, Sections 2155.004 and
2155.006, that the individual or business entity named in this bid or contract is not
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ineligible to receive the specified contract and acknowledges that this contract may
be terminated and payment withheld if this certification is inaccurate;
(vii) Vendor certifies that, to the extent applicable to this scope of this RFO, Vendor
is in compliance with Health and Safety Code, Chapter 361, Subchapter Y, related to
the Computer Equipment Recycling Program, and the related rules found at 30 TAC
Chapter 328;
(viii) Vendor has not given, offered to give, nor intends 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 submitted response;
(ix) Vendor has not received compensation for participation in the preparation of
specifications for this solicitation as required by Texas Government Code, Section
2155.004(a);
(x) Vendor has not, nor has anyone acting for Vendor, violated the antitrust laws of
the United States or the State of Texas, nor communicated directly or indirectly to
any competitor or any other person engaged in such line of business for the purpose
of obtaining an unfair price advantage;
(xi) Vendor is not currently delinquent in the payment of any franchise tax owed the
State of Texas and is not ineligible to receive payment under Section 231.006 of the
Texas Family Code and acknowledges the Contract may be terminated and payment
withheld if this certification is inaccurate, and any Vendor subject to Section 231.006
must include names and social security numbers of each person with at least 25%
ownership of the business entity submitting the response, prior to award (the parties
agree that Vendor may submit these Social Security numbers marked as confidential
so that disclosure or confidentiality will determined by the Office of the Attorney
General);
(xii) Vendor agrees 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) Vendor agrees to comply with Texas Government Code, Section 2155.4441,
relating to use of service contracts for products produced in the State of Texas;
(xiv) Vendor certifies it is in compliance with Texas Government Code, Section
669.003, relating to contracting with executive head of a state agency;
(xv) Vendor certifies for itself and its subcontractors that it has identified all current
or former, within the last five years, employees of the State of Texas assigned to work
on this DIR Contract 20% or more of their time and has disclosed them to DIR and
has disclosed or does not employ any relative of a current or former state employee
within two degrees of consanguinity, and, if these facts change during the course of
the Contract, Vendor certifies it shall disclose for itself and on behalf of
subcontractors the name and other pertinent information about the employment of
current and former employees and their relatives within two degrees of
consanguinity;
(xvi) Vendor represents and warrants that the provision of goods and services or other
performance under the Contract will not constitute an actual or potential conflict of
interest;
(xvii) Vendor certifies that if a Texas address is shown as the Principle Place of
Business in Appendix A, Vendor Information Form, Vendor qualifies as a Texas
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Resident Bidder as defined in Texas Administrative Code, Title 34, Part I, Chapter
20;
(xviii) Vendor understands and agrees that Vendor may be required to comply with
additional terms and conditions (that do not conflict with the terms and conditions of
this Contract) or certifications that an individual Customer may require due to state
and federal law (e.g., privacy and security requirements); and
(xix) Vendor agrees that these representations will be incorporated into any
subsequent agreement(s) between Vendor and Customer that result from this RFO.
10. 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, and those state
agencies purchasing from a D1R contract through an Interagency Agreement, as
authorized by Chapter 771, Texas Government Code, any local government as authorized
through the Interlocal Cooperation Act, Chapter 791, Texas Government Code, and the
state agencies and political subdivisions of other states as authorized by Section
2054.0565, Texas Government Code and, except for telecommunications services under
Chapter 2170, Texas Government Code, assistance organizations as defined in Section
2175.001, Texas Government Code to mean:
1) A non-profit organization that provides educational, health or human
services or assistance to homeless individuals;
2) A nonprofit food bank that solicits, warehouses, and redistributes edible
but unmarketable food to an agency that feeds needy families and
individuals;
3) Texas Partners of the Americas, a registered agency with the Advisory
Committee on Voluntary Foreign Aid, with the approval of the Partners
of the Alliance Office of the Agency for International Development;
4) A group, including a faith-based group, that enters into a financial or
non-financial agreement with a health or human services agency to
provide services to that agency's clients;
5) A local workforce development board created under Section 2308.253;
6) A nonprofit organization approved by the Supreme Court of Texas that
provides free legal services for low-income households in civil matters;
7) The Texas Boll Weevil Eradication Foundation, Inc., or an entity
designated by the commissioner of agriculture as the foundation's
successor entity under Section 74.1011, Texas Agriculture Code;
8) A nonprofit computer bank that solicits, stores, refurbishes and
redistributes used computer equipment to public school students and
their families; and
9) A nonprofit organization that provides affordable housing.
B. Compliance Check — an audit of Vendor's compliance with the Contract may be
performed by, but not limited to, a third party auditor, DIR Internal Audit department, or
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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.
L State—refers to the State of Texas.
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 5. 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:
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
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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.del l.com/us/en/corp/d/corp-comm/cr-diversity-customer-
disabilities.aspx
D. Section 6. 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.
E. Section 6. 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
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TO BE OBTAINED FROM THE PRODUCTS, SOFTWARE, SERVICES, OR
THE RESULTS OF ANY RECOMMENDATION BY DELL.
C. High-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-Party Product is provided by the publisher, provider, or original
manufacturer. All 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.
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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)
Dell offers Customers the option to return most products Customer purchases
directly from Dell. Customer may return eligible products for a credit or a refund of
the purchase price paid, less shipping and handling and any applicable restocking
fees, as set forth in detail below.
30-Day Return Period for Certain Hardware and Software Products and
Accessories: Except as provided below, all hardware, accessories, peripherals, parts,
and certain media-based software that is unopened and still in its sealed package may
be returned within 30 days from the date on the packing slip or invoice for a credit or
a refund of the purchase price paid, less shipping and handling and any applicable
restocking fees. Any product returned to Dell without prior authorization from Dell
will be considered an unauthorized return, and the customer will not receive credit
for the product and Dell will not ship the product back to you.
Notations and Exceptions to Dell's 30-Day Return Period:
N
ew PowerEdge, PowerConnect, and PowerVault products purchased directly
from Dell may be returned within 30 days from the date on the packing slip or
invoice.
New
Vostro, Optiplex, Latitude, and Dell Precision systems purchased directly
from divisions designated by Dell as Commercial or Public may be returned
within 30 days from the date on the packing slip or invoice.
Application
software and operating systems that have been installed by Dell may be
returned only if installed on a returnable system, and only if Customer returns
that system within the applicable return period.
Software licenses purchased
under any type of volume license agreement may be returned only with the
express approval of the publisher, which in many circumstances will not be
granted.
Restocking Fees: Unless the product is defective or the return is a direct result of a
Dell error, Dell may charge a restocking fee of up to 15% of the purchase price paid,
plus any applicable sales tax.
How to Return a Product: Before returning a product, Customer must first contact
Dell customer service and obtain a Credit Return Authorization (CRA) number before
the end of the applicable return period. Dell will not accept returns without a CRA
number. To find the appropriate phone number or to send an e-mail to customer
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service to request a CRA number, go to www.dell.com/contact, or see the
"Contacting Dell" or "Getting Help" section of a Customer's specific documentation.
NOTE: Customer must ship the product to Dell within5 days of the date that Dell
issues the Credit Return Authorization number as follows:
Ship back all products Customer is
seeking to return to Dell and for which Customer received a CRA number. For
partial returns, a Customer's credit may be less than the invoice or individual
component price due to bundled or promotional pricing or any unadvertised
discounts or concessions.
Return the products in their original packaging, in as-
new condition, along with any media, documentation, and any other items that
were included in Customer's original shipment.
Ship the products at Customer's expense, and insure the
shipment or accept the risk of loss or damage during shipment.
Upon receipt of Customer's return, Dell will issue a credit or a refund of the purchase
price paid, less shipping and handling and any applicable restocking fees subject to
this policy.
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.
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
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Vendor Contract No.
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 6. Contract Fulfillment and Promotion, E. Internet Access to Contract
and Pricing Information 1) Vendor Website, is hereby replaced in its entirety:
Vendor will maintain a website specific to the products and services being offered
under the Contract which is clearly distinguishable from other, non-DIR contract
offerings at the Vendor's website. The website must include at a minimum:
A. The Contract number and a statement that the customer must reference the
Contract Number on their purchase order.
B. A statement designating who can procure through the Contract.
C. Examples of products and services offered under the Contract.
D. Examples of product and services specifications, to the extent they exist and are
offered under the Contract.
E. Current Contract pricing—or how to obtain pricing.
F. Contact information for Vendor business segments (i.e., State and Local, Higher
Education, K-12, Healthcare, etc.).
G. Named Order Fulfillers and contact information for each designated Order
Fulfiller.
H. Instructions for obtaining quotes and placing Purchase Orders through Vendor
direct or through a designated Order Fulfiller.
I. Warranty policy terms and conditions, if applicable.
J. Return policy terms and conditions, if applicable.
The Vendor's website shall list the DIR Contract number, reference the DIR
Cooperative Contracts program, display the DIR logo in accordance with the
requirements in paragraph F of this Section, and contain a link to the DIR' website for
the Contract.
G. Section 6. Contract Fulfillment and Promotion, G. 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
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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.
H. Section 6. Contract Fulfillment and Promotion, H. 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.
1. Section 7. 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.
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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 ten (10)
calendar days from the date such product or service is delivered, issue to Vendor a
written notice of partial acceptance or rejection of the product 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.
J. Section 8. Contract Administration, B. Reporting and Administrative Fees, 2)
Detailed Monthly Report, is hereby replaced in its entirety:
Vendor shall electronically provide DIR with a detailed monthly report in the format
required by DIR showing the dollar volume of any and all sales under the Contract
for the previous month period. Reports shall be submitted to the DIR ICT
Cooperative Contracts E-Mail Box at ict.salesadir.texas.gov. Reports are due on the
fifteenth (15th) calendar day after the close of the previous month period. If such
date falls on a holiday or weekend, the report shall be due the first business day
following. It is the responsibility of Vendor to collect and compile all sales under the
Contract from participating Order Fulfillers and submit one (1) monthly report. The
monthly report shall include, per transaction: the detailed sales for the period, the
Order Fulfiller's company name, if applicable, Customer name, invoice date, invoice
number, description, SKU, manufacturer, quantity, unit price, extended price,
Customer Purchase Order number, contact name if provided, Customer's complete
billing address, Manufacturer's Suggested Retail Price and other information as
reasonably 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.
K. Section 8. Contract Administration, B. Reporting and Administrative Fees, 4)
DIR Administrative Fee, is hereby replaced in its entirety:
a) An administrative fee shall be paid by Vendor to DIR to defray the DIR costs of
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negotiating, executing, and administering the Contract. The maximum administrative
fee is set by the Texas Legislature in the biennial General Appropriations Act.
Payment of the administrative fee shall be due on the fifteenth (15th) calendar day
after the close of the previous month period. 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.
b) Vendor shall reference the DIR Contract number on any remittance instruments.
L. Section 8. 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 a maximum of five business
days upon written notification by DIR. Vendor shall deliver any late reports or late
administrative fee payments within a maximum of five 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 a maximum of five
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 DIR's expense.
c) Failure to timely submit three (3) reports within any rolling twelve (12) month
period may, at DIR's discretion, result in termination of Vendor's Contract.
M. Section 8. 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.
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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, 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%.
N. Section 9. Vendor Responsibilities, A. Indemnification, 1) Acts and
Omissions is hereby replaced in its entirety:
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
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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 ARE NOT SUBJECT TO OR LIMITED BY CONTRIBUTORY
NEGLIGENCE. VENDOR SHALL PAY ALL COSTS OF DEFENSE INCLUDING
REASONABLE ATTORNEYS FEES. The defense shall be coordinated by the
Office 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.
O. Section 9. Vendor Responsibilities, A. Indemnification, 2) 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.
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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,
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.
P. Section 9. Vendor Responsibilities, B. Taxes/Worker's Compensation/
UNEMPLOYMENT INSURANCE is hereby replaced in its entirety:
VENDOR AGREES AND ACKNOWLEDGES THATDURING 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,
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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
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.
Q. Section 9. Vendor Responsibilities, C. Vendor Certifications, is hereby
replaced in its entirety:
Vendor certifies as of the effective date of this Contract, 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 obtaining the
Contract;
(ii) are not currently delinquent in the payment of any franchise tax owed the State of
Texas and are not ineligible to receive payment under §231.006 of the Texas
Family Code and acknowledge the Contract may be terminated and payment
withheld if this certification is inaccurate;
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(iii)neither they, nor anyone acting for them, have violated the antitrust laws of the
United States or the State of Texas, nor communicated directly or indirectly to
any competitor or any other person engaged in such line of business for the
purpose of obtaining an unfair price advantage;
(iv)have not received payment from DIR or any of its employees for participating in
the preparation of the Contract;
(v) under Section 2155.004, Texas Government Code, the vendor certifies that the
individual or business entity named in this bid or contract is not ineligible to
receive the specified contract and acknowledges that this contract may be
terminated and payment withheld if this certification is inaccurate;
(vi)to the best of their knowledge and belief, there are no suits or proceedings
pending or threatened against or affecting them, which if determined adversely
to them will have a material adverse effect on the ability to fulfill their
obligations under the Contract;
(vii) are not suspended or debarred from doing business with the federal
government as listed in the Excluded Parties List System (EPLS) maintained by
the General Services Administration;
(viii) as of the effective date of the Contract, are not listed in the prohibited vendors
list authorized by Executive Order #13224, 'Blocking Property and
Prohibiting Transactions tivith Persons Who Commit, Threaten to Commit, or
Support Terrorism", published by the United States Department of the
Treasury, Office of Foreign Assets Control; (ix) to the extent applicable to this
scope of this Contract, Vendor 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;
(ix)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 by
Vendor to the State of Texas;
(x) are in compliance Section 669.003, Texas Government Code, relating to
contracting with executive head of a state agency;
(xi)have identified all current or former, within the last five years, employees of the
State of Texas assigned to work on the DIR Contract 20% or more of their time
and have disclosed them to DIR and have disclosed or do not employ any
relative of a current or former state employee within two degrees of
consanguinity, and, if these facts change during the course of the Contract,
certify they shall disclose the name and other pertinent information about the
employment of current and former employees and their relatives within two
degrees of consanguinity;
(xii) represent and warrant that the provision of goods and services or other
performance under the Contract will not constitute an actual conflict of
interest, and, if these facts change during the course of the Contract, certify
they shall disclose the actual or potential conflict of interest and any
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circumstances that create the appearance of impropriety;
(xiii) under Section 2155.006, 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; and
(xiv) they acknowledge the applicability of §2155.444 and §2155.4441, Texas
Government Code, in fulfilling the terms of the Contract.
During the term of the Contract, Vendor shall, for itself and on behalf of its
Order Fulfillers, promptly disclose to DIR all changes that occur to the
foregoing certifications, representations and warranties. Vendor covenants to
fully cooperate in the development and execution of resulting documentation
necessary to maintain an accurate record of the certifications, representations
and warranties.
In addition, Vendor understands and agrees that Vendor may be required to
comply with additional terms and conditions or certifications that an individual
customer may require due to applicable state and federal law (e.g, privacy and
security requirements).
R. Section 9. 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.
S. Section 9. 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 hosted either at
Customer's or a third party's premises (other than premises of Vendor's Affiliates or
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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 9.1, except as otherwise expressly provided in a Statement of Work
executed by Customer and Vendor: (A) Customer is responsible for backing up
its own Data, (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 party 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 applicable
Customer before performing such restoration, and the applicable Customer may,
at its discretion. direct Vendor not to restore the Data.
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T. Section 9. 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.
U. Section 9. 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 9.A.3.
V. Section 9. 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
or other goods and/or services purchased by DIR or its Customers under this Contract
during the time period referenced in the litigation.
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W. Section 9. Vendor Responsibilities, M. Prohibited Conduct, is hereby
deleted in its entirety.
X. Section 9. Vendor Responsibilities, N. Required Insurance Coverage, is
hereby replaced in its entirety:
As a condition of this Contract with DIR, Vendor shall provide the listed insurance
coverage within 5 days of execution of the Contract if the Vendor is awarded services
which require that Vendor's employees perform work at any Customer premises
and/or use employer vehicles to conduct work on behalf of Customers. 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 are A- financially rated and
duly licensed evaluated by AM Best Company as having financial strength ratings of
"A-" or better, and are admitted and authorized to do business in the State of Texas.
The Customer and DIR will be named as Additional Insureds on all required coverage
with the exception of Workers' Compensation and Employers Liability 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 a combined single limit of$500,000 per
occurrence for coverage A, B, & C including products/completed operations, where
appropriate, with a separate aggregate of $500,000. The policy shall contain the
following provisions:
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;
d) Notice of Termination in favor of DIR and/or Customer; and
e) Waiver of Transfer Right of Recovery Against Others in favor of DIR and/or
Customer.
2) Workers' Compensation Insurance
Workers' Compensation Insurance and Employers' Liability coverage must include
limits consistent with statutory benefits outlined in the Texas Workers' Compensation
Act (Art. 8308-1.01 et seq. Tex. Rev. Civ. Stat) and minimum policy limits for
Employers' Liability of$250,000 bodily injury per accident, $500,000 bodily injury
disease policy limit and $250,000 per disease per employee.
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3) Business Automobile Liability Insurance
Business Automobile Liability Insurance must cover all owned, non-owned and hired
vehicles with a minimum combined single limit of $500,000 per occurrence for
bodily injury and property damage. Alternative acceptable limits are $250,000 bodily
injury per person, $500,000 bodily injury per occurrence and at least $100,000
property damage liability per accident. The policy shall contain the following
endorsements in favor of DIR and/or Customer:
a) Waiver of Subrogation;
b) Notice of Termination; and
c) Additional Insured.
Y. Section 9. 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.
Z. Section 9. Vendor Responsibilities, T. Deceptive Trade Practices; Unfair
Business Practices, is hereby replaced in its entirety:
Vendor represents and warrants 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.
AA.Section 9. 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.
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BB. Section 10. 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.
CC. Section 10. 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 Return Policy in Appendix A, Section
6C.
DD.Section 10. 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 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
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(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.
EE. Section 13. 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.
{remainder of this page intentionally left blank}
Page 35 of 36
DIR Contract No. DIR-SDD-1951
Vendor Contract No.
This Contract is executed to be effective as of the date of last signature.
Dell Marketing, L.P.
Authorized By: signature on file
Name: Kellv L. O'Shieles
Title: Contracts Consultant
Date: 1/8/13
The State of Texas, acting by and through the Department of Information Resources
Authorized By: signature on file
Name: Carl Marsh
Title: Chief Operating Officer
Date: 1/9/13
Office of General Counsel: sip_nature on file 1/9/13
Page 36 of 36
R
AMENDMENT NUMBER 3
TO
CONTRACT NO. DIR-SDD-1951
BETWEEN
THE STATE OF TEXAS, DEPARTMENT OF INFORMATION RESOURCES
AND
DELL MARKETING, L.P.
This Amendment Number 3 to Contract Number DIR-SDD-1951 ("Contract") is between the
Department of Information Resources ("DIR") and Dell Marketing, L.P. ("Vendor"). DIR and
Vendor agree to modify the terms and conditions of the Contract as follows:
1. Contract, Section 2, Term of Contract, is hereby amended as follows:
DIR and Vendor hereby agree to extend the term of the Contract for one (1) year through
January 9, 2015 or until terminated pursuant to the termination clauses contained in the
Contract. Prior to expiration of the term, DIR and Vendor may extend the Contract, upon
mutual agreement, for up to two (2) additional one-year terms.
2. Contract, Section 5. DIR Administrative Fee, A) is hereby restated in its entirety as
follows:
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 will be one half of one percent (.50%) effective
September 1, 2014, throughout the term of the contract terminating on January 9, 2017.
Effective September 1, 2014, payment will be calculated at .50% for all sales, net of returns
and credits. For example, the administrative fee for sales totaling $100,000 shall be $500.00.
The effective date of this change will be September 1, 2014.
3. Appendix A, Section 4. General Provisions, F. Choice of Law is hereby restated in its
entirety as follows:
F. Choice of Law
The laws of the State of Texas shall govern the construction and interpretation of the
Contract. Exclusive venue for all actions will be in state court, Travis County, Texas.
Nothing in the Contract or its Appendices shall be construed to waive the State's sovereign
immunity.
4. Appendix A, Section 8. Contract Administration, B. Reporting and Administrative
Fees,2) Detailed Monthly Report is hereby restated in its entirety as follows:
2) Detailed Monthly Report
Vendor shall electronically provide DIR with a detailed monthly report in the format required
by DIR showing the dollar volume of any and all sales under the Contract for the previous
month period. Reports shall be submitted to the DIR ICT Cooperative Contracts E-Mail Box
Amendment Number 3 to Contract#DIR-SDD-1951 Page 1
at ict.salesgdir.texas.gov. Reports are due on the fifteenth (15`h) calendar day after the close
of the previous month period. If such date falls on a holiday or weekend, the report shall be
due the first business day following. The monthly report shall include, per transaction: the
detailed sales for the period, Customer name, invoice date, invoice number, description,
quantity, manufacturer's suggested retail price, unit price, extended price, Customer Purchase
Order number, contact name if provided, Customer's complete billing address, and other
information as required by DIR. Each report must contain all information listed above per
transaction or the report will be rejected and returned to the Vendor for correction in
accordance with this section.
5. Appendix A, Section 9. Vendor Responsibilities, A. Indemnification is hereby
renumbered and restated as follows:
A. Indemnification
1) INDEPENDENT CONTRACTOR
VENDOR AGREES AND ACKNOWLEDGES THAT DURING THE EXISTENCE OF
THIS CONTRACT, IT IS FURNISHING PRODUCTS AND SERVICES IN THE
CAPACITY OF AN INDEPENDENT CONTRACTOR AND THAT VENDOR IS NOT
AN EMPLOYEE OF THE CUSTOMER OR THE STATE OF TEXAS.
2) Acts or Omissions
Vendor shall indemnify and hold harmless the State of Texas and Customers, AND/OR
THEIR OFFICERS, AGENTS, EMPLOYEES, REPRESENTATIVES,
CONTRACTORS, ASSIGNEES, AND/OR DESIGNEES FROM ANY AND ALL
THIRD PARTY CLAIMS FOR LIABILITY, ACTIONS, CLAIMS, DEMANDS, OR
SUITS, AND ALL 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 extend caused
by Dell or its Order Fulfillers, Agents, Resellers, or subcontractors. VENDOR SHALL
PAY ALL COSTS OF DEFENSE INCLUDING REASONABLE ATTORNEYS FEES.
THE DEFENSE SHALL BE COORDINATED BY VENDOR WITH THE OFFICE OF
THE ATTORNEY GENERAL WHEN TEXAS STATE AGENCIES ARE NAMED
DEFENDANTS IN ANY LAWSUIT AND VENDOR MAY NOT AGREE TO ANY
SETTLEMENT WITHOUT FIRST OBTAINING THE CONCURRENCE FROM THE
OFFICE OF THE ATTORNEY GENERAL. VENDOR AND THE CUSTOMER
AGREE TO FURNISH TIMELY WRITTEN NOTICE TO EACH OTHER OF ANY
SUCH CLAIM.
3) Infringements
a) Vendor shall indemnify and hold harmless the State of Texas and Customers,
AND/OR THEIR EMPLOYEES, AGENTS, REPRESENTATIVES, CONTRACTORS,
ASSIGNEES, AND/OR DESIGNEES from any and all third party claims involving
infringement of United States patents, copyrights, trade and service marks, and any other
intellectual or intangible property rights in connection with the PERFORMANCES of
Services or the provision of Dell-branded Products by VENDOR PURSUANT TO THIS
Amendment Number 3 to Contract#DIR-SDD-1951 Page 2
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 Vendor'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 SPECIFED IN THIS SECTION
INCLUDING ATTORNEYS' FEES. THE DEFENSE SHALL BE COORDINATED BY
VENDOR WITH THE OFFICE OF THE ATTORNEY GENERAL WHEN TEXAS
STATE AGENCIES ARE NAMED DEFENDANTS IN ANY LAWSUIT AND
VENDOR MAY NOT AGREE TO ANY SETTLEMENT WITHOUT FIRST
OBTAINING THE CONCURRENCE FROM THE OFFICE OF THE ATTORNEY
GENERAL. 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) Vendor shall have no liability under this section if the alleged infringement is caused
in whole or in part by: (i) use of the product or service for a purpose or in a manner for
which the product or service was not designed, (ii) any modification made to the
products, services, or deliverables without Vendor's written approval, (iii) any
modifications made to the products, services, or deliverables by the Vendor pursuant to
Customer's specific instructions, (iv) any intellectual property right owned by or licensed
to Customer, or (v) any use of the product or service by Customer that is not in
conformity with the terms of any applicable license agreement.
c) If Vendor becomes aware of an actual or potential claim, or Customer provides
Vendor with notice of an actual or potential claim, Vendor may (or in the case of an
injunction against Customer, shall), at Vendor's sole option and expense; (i) procure for
the Customer the right to continue to use the affected portion of the product or service, or
(ii) modify or replace the affected portion of the product or service with functionally
equivalent or superior product or service so that Customer's use is non-infringing.
6. Appendix A, Section 9. Vendor Responsibilities, B. Taxes/Worker's
Compensation/UNEMPLOYMENT INSURANCE is hereby restated in its entirety as
follows:
B. Taxes/Worker's Compensation/UNEMPLOYMENT INSURANCE
1) VENDOR AGREES AND ACKNOWLEDGES THAT DURING THE EXISTENCE OF
THIS CONTRACT, VENDOR SHALL BE ENTIRELY RESPONSIBLE FOR THE
LIABILITY AND PAYMENT OF VENDOR'S AND VENDOR'S EMPLOYEES' TAXES
OF WHATEVER KIND, ARISING OUT OF THE PERFORMANCES IN THIS
CONTRACT. VENDOR AGREES TO COMPLY WITH ALL STATE AND FEDERAL
LAWS APPLICABLE TO ANY SUCH PERSONS, INCLUDING LAWS REGARDING
WAGES, TAXES, INSURANCE, AND WORKERS' COMPENSATION. THE
Amendment Number 3 to Contract#DIR-SDD-1951 Page 3
CUSTOMER AND/OR THE STATE SHALL NOT BE LIABLE TO THE VENDOR, ITS
EMPLOYEES, AGENTS, OR OTHERS FOR THE PAYMENT OF TAXES OR THE
PROVISION OF UNEMPLOYMENT INSURANCE AND/OR WORKERS'
COMPENSATION OR ANY BENEFIT AVAILABLE TO A STATE EMPLOYEE OR
EMPLOYEE OF ANOTHER GOVERNMENTAL ENTITY CUSTOMER.
2) VENDOR AGREES TO INDEMNIFY AND HOLD HARMLESS CUSTOMERS, THE
STATE OF TEXAS AND/OR THEIR EMPLOYEES, AGENTS, REPRESENTATIVES,
CONTRACTORS, AND/OR ASSIGNEES FROM ANY AND ALL LIABILITY,
ACTIONS, CLAIMS, DEMANDS, OR SUITS, AND ALL RELATED COSTS,
ATTORNEYS' FEES, AND EXPENSES, RELATING TO TAX LIABILITY,
UNEMPLOYMENT INSURANCE AND/OR WORKERS' COMPENSATION IN ITS
PERFORMANCE UNDER THIS CONTRACT. VENDOR SHALL BE LIABLE TO PAY
ALL COSTS OF DEFENSE INCLUDING REASONABLE ATTORNEYS' FEES FOR
CLAIMS UNDER THIS CLAUSE AS A RESULT OF ITS PERFORMANCE UNDER
THIS CONTRACT. THE DEFENSE SHALL BE COORDINATED BY VENDOR WITH
THE OFFICE OF THE ATTORNEY GENERAL WHEN TEXAS STATE AGENCIES ARE
NAMED DEFENDANTS IN ANY LAWSUIT AND VENDOR MAY NOT AGREE TO
ANY SETTLEMENT WITHOUT FIRST OBTAINING THE CONCURRENCE FROM
THE OFFICE OF THE ATTORNEY GENERAL. VENDOR AND THE CUSTOMER
AGREE TO FURNISH TIMELY WRITTEN NOTICE TO EACH OTHER OF ANY SUCH
CLAIM.
7. Appendix A, Section 9. Vendor Responsibilities, C. Vendor Certifications, from vii is
hereby restated in its entirety and the rest of the section renumbered as follows:
C. Vendor Certifications
(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 #13224, "Blocking Property and Prohibiting
Transactions with Persons Who Commit, Threaten to Commit, or Support
Terrorism", published by the United States Department of the Treasury, Office of
Foreign Assets Control;
(ix) to the extent applicable to this scope of this Contract, Vendor 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;
(x) 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;
(xi) are in compliance Section 669.003, Texas Government Code, relating to
contracting with executive head of a state agency;
Amendment Number 3 to Contract#DIR-SDI)-1951 Page 4
(xii) have identified all current or former, within the last five years, employees of the
State of Texas assigned to work on the DIR Contract 20% or more of their time
and have disclosed them to DIR and have disclosed or do not employ any relative
of a current or former state employee within two degrees of consanguinity, and, if
these facts change during the course of the Contract, certify they shall disclose the
name and other pertinent information about the employment of current and former
employees and their relatives within two degrees of consanguinity;
(xiii) represent and warrant that the provision of goods and services or other
performance under the Contract will not constitute an actual or potential conflict
of interest and certify that they will not reasonably create the appearance of
impropriety, and, if these facts change during the course of the Contract, certify
they shall disclose the actual or potential conflict of interest and any
circumstances that create the appearance of impropriety;
(xiv) under Section 2155.006, 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; and
(xv) 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.
During the term of the Contract, Vendor shall, for itself and on behalf of its Order Fulfillers,
promptly disclose to DIR all changes that occur to the foregoing certifications,
representations and warranties. Vendor covenants to fully cooperate in the development and
execution of resulting documentation necessary to maintain an accurate record of the
certifications, representations and warranties.
In addition, Vendor understands and agrees that 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).
8. Appendix A, Section 9. Vendor Responsibilities, G. Responsibility for Actions, 2) is
hereby restated in its entirety as follows:
2) Vendor, for itself and on behalf of its subcontractors, shall report to DIR promptly when
the disclosures under Certification Statement of Appendix A to the RFO and/or Section 9.C.
(xii) and (xiii), Vendor Certifications of this Appendix A to the Contract change. Vendor
covenants to fully cooperate with DIR to update and amend the Contract to accurately
disclose employment of current or former State employees and their relatives and/or the
status of conflicts of interest.
Amendment Number 3 to Contract#DIR-SDD-1951 Page 5
9. Appendix A, Section 10. Contract Enforcement, B. Termination, 2) Absolute Right is
hereby restated in its entirety as follows:
2) Absolute Right
DIR shall have the absolute right to terminate the Contract without recourse in the event that:
i) Vendor becomes listed on the prohibited vendors list authorized by Executive Order
#13224, 'Blocking Property and Prohibiting Transactions with Persons Who Commit,
Threaten to Commit, or Support Terrorism", published by the United States Department of
the Treasury, Office of Foreign Assets Control; ii) Vendor becomes suspended or debarred
from doing business with the federal government as listed in the System for Award
Management (SAM) maintained by the General Services Administration; or (iii) Vendor is
found by DIR to be ineligible to hold this Contract under Subsection (b) of Section 2155.006,
Texas Government Code. Vendor shall be provided written notice in accordance with Section
I LA, Notices, of intent to terminate.
10. Appendix A, Section 10. Contract Enforcement, B. Termination, 4) Termination for
Cause, b) Purchase Order is hereby restated in its entirety as follows:
b) Purchase Order
Customer or Order Fulfiller may terminate a Purchase Order upon the occurrence of a
material breach of any term or condition: (i) of the Contract, or (ii) included in the Purchase
Order in accordance with Section 10.13.2 above, upon the following preconditions: first, the
parties must comply with the requirements of Chapter 2260, Texas Government Code, in an
attempt to resolve a dispute; second. after complying with Chapter 2260, Texas Government
Code, and the dispute remains unresolved, then the non-defaulting party shall give the
defaulting party thirty (30) calendar days from receipt of notice to cure said default. If the
defaulting party fails to cure said default within the timeframe allowed, the non-defaulting
party may, at its option and in addition to any other remedies it may have available, cancel
and terminate the Purchase Order.
All other terms and conditions of the Contract not specifically modified herein shall remain in full
force and effect. In the event of a conflict among provisions, the order of precedence shall be this
Amendment Number 3, then Amendment Number 2, then Amendment Number 1 and then
Contract DIR-SDD-1951.
(Remainder of page intentionally left blank)
Amendment Number 3 to Contract 41)IR-SDD-1951 Page 6
4.
IN WITNESS WHEREOF, the parties hereby execute this amendment to be effective as of the
date of the last signature, but in all events, no later than February 23, 2014.
DELL MARKETING, L.P.
By: Si nature on File
Name: Diane Wi in ton
Title: Public Contracts Manager
Date: 02/21/2014
The State of Texas, acting by and through the Department of Information Resources
By: Signature on File
Name: Todd Kimbriel on behalf of Karen Robinson
Title: Executive Director
Date: 2/24/2014
Office of
General Counsel: DRBrown 2-24-14
Amendment Number 3 to Contract M R-SDD-1951 Page 7
M&C Review Page 1 of 2
Official site of the City of Fort Worth,Texas
CITY COUNCIL AGENDA FoR` 11
COUNCIL ACTION: Approved on 1/29/2013
DATE: 1/29/2013 REFERENCE NO.:P-11485 LOG NAME: 13P13-0032 DELL
HARDWARE HAR
CODE: P TYPE: NON- PUBLIC CONSENT HEARING: NO
SUBJECT: Authorize Purchase Agreement with Dell Marketing, L.P., for Replacement and New
Hardware, Software, Technology Services and Maintenance and Support Services for the
Information Technology Solutions Department Using a State of Texas Department of
Information Resources Contract in the Amount of$4,800,000.00 for the First Year(ALL
COUNCIL DISTRICTS)
RECOMMENDATION:
It is recommended that the City Council authorize a Purchase Agreement with Dell Marketing, L.P.,
for replacement and new hardware, software, technology services, and maintenance and support
services for the Information Technology Solutions Department using State of Texas Department of
Information Resources Contract No. DIR-SDD-1951, in the amount of$4,800,000.00 for the first year.
DISCUSSION:
The Information Technology Solutions (ITS) Department will use this Agreement to purchase new
and replacement hardware, technology services, and maintenance and support services from Dell
Marketing, L.P. (Dell), for all City departments on an as needed basis. ITS will also use this
Agreement to purchase new equipment, maintenance, software, asset recovery services and support
services for all City departments from departmental operating funds.
ITS is working with each City department to replace only the most critically needed computers and
servers in order to reduce the risk of disruption and lack of productivity due to equipment failure. The
criteria for replacement systems include performance problems, obsolescence and unavailable or
cost prohibitive replacement parts. Problems with the current hardware include the inability to run
applications and to run multiple programs simultaneously, systems locking up, slow processing, and
screen damage which may lead to the loss of work. Further, the needs to run current generations of
Microsoft Office and operating systems, and new technical software packages (GIS, Autocad, and
video streaming) are also considered. Municipal Court, Library, Police and Parks and Community
Services Departments have laptops and desktops that meet the replacement criteria.
In the previous year, the authorization and expenditures were in the amount of$4,800,000.00 and
Staff anticipates using the same amount this year.
PRICE ANALYSIS - The Department of Information Resources (DIR) contract offers fixed discounts
ranging from 3 to 14 percent less than Dell's current retail price list. There is an additional minimum
discount for equipment purchased through the State of Texas online store. Staff 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 purchase of the item. The Department of Information Resources contract was
competitively bid to increase and simplify the purchasing power of government entities.
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M&C Review Page 2 of 2
4
M/WBE -A waiver of the goal for M/SBE subcontracting requirements was requested by the
Purchasing Division and approved by the M/WBE Office because the purchase of goods or services
is from sources where subcontracting or supplier opportunities are negligible.
ADMINISTRATIVE CHANGE ORDER -An administrative change order or increase may be made by
the City Manager in the amount up to $50,000.00 and does not require specific City Council approval
as long as sufficient funds have been appropriated.
AGREEMENT TERM - Upon City Council's approval, this Agreement shall begin on January 30, 2013
and expire on January 9, 2014 to align with the term of the DIR contract.
RENEWAL OPTIONS - This Agreement may be renewed for up to three additional one-year terms at
the City's option, in accordance with the terms of the DIR contract. This action does not require
specific City Council approval provided that the City Council has appropriated sufficient funds to
satisfy the City's obligations during the renewal term. Staff anticipates the cost for renewal years will
be the same as for the first year.
FISCAL INFORMATION/CERTIFICATION:
The Financial Management Services Director certifies that funds are available in the current operating
budgets, as appropriated, of the participating departments.
BQN\13-0032\HAR
TO Fund/Account/Centers FROM Fund/Account/Centers
Submitted for City Manager's Office by: Susan Alanis (8180)
Originating Department Head: James Mauldin (2438)
Additional Information Contact: Jack Dale (8357)
ATTACHMENTS
http://apps.cfwnet.org/council_packet/me_review.asp?1D=17975&councildate=1/29/2013 3/3/2015