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R-13-11-14-H7 - 11/14/2013
RESOLUTION NO. R -13-11-14-H7 WHEREAS, the City of Round Rock ("City") desires to purchase and install security system services, and WHEREAS, the City is a member of the State Department of Information Resources ("DIR"), and WHEREAS, Entech Sales & Service, Inc. ("Entech") is an approved vendor of the DIR, and WHEREAS, the City wishes to enter into an agreement for building security equipment with Entech, Now Therefore BE IT RESOLVED BY THE COUNCIL OF THE CITY OF ROUND ROCK, TEXAS, That the Mayor is hereby authorized and directed to execute on behalf of the City an Agreement For Building Security Equipment With Entech Sales & Service, Inc., a copy of same being attached hereto as Exhibit "A" and incorporated herein for all purposes. The City Council hereby finds and declares that written notice of the date, hour, place and subject of the meeting at which this Resolution was adopted was posted and that such meeting was open to the public as required by law at all times during which this Resolution and the subject matter hereof were discussed, considered and formally acted upon, all as required by the Open Meetings Act, RESOLVED this 14th day of November, 2013. ALAN MCGRAW, Mayor City of Round Rock, Texas ATTEST: SARA L. WHITE, City Clerk 0112.1304;00286161 r EXHIBIT ItA„ CITY OF ROUND ROCK AGREEMENT FOR BUILDING SECURITY EQUIPMENT WITH ENTECH SALES & SERVICE, INC. THE STATE 01? TEXAS § CITY OF ROUND ROCK § KNOW ALL BY THESE PRESENTS: COUNTY OF WILLIAMSON § COUNTY 01? TRAVIS § THAT THIS AGREEMENT for the purchase of security system building equipment, and for related goods (referred to herein as the "Agreement"), is made and entered into on this the day of the month of November, 2013 by and between the CITY OF ROUND ROCK, a Texas home -rule municipality, whose offices are located at 221 East Main Street, Round Rock, Texas 78664-5299 (referred to herein as the "City"), and ENTECH SALES & SERVICES, INC., a Texas Corporation whose offices are located at 3404 Garden Brook, Dallas, Texas 75234 (referred to herein as "Entech"). RECITALS: WHEREAS, City desires to purchase certain deliverables, specifically, security system equipment to be installed in City -owned and City -occupied buildings and to purchase goods and services related to said equipment, and City desires to procure same from Entech; and WHEREAS, City is a member of the State Department of Information Resources ("DIR") and Entech Sales and Services, Inc. is an approved vendor of the DIR; and WHEREAS, City desires to purchase of certain goods and services from Entech as set forth herein; and WHEREAS, the parties desire to enter into this Agreement to set forth in writing their respective rights, duties, and obligations; NOW, THEREFORE, WITNESSETH: That for and in consideration of the mutual promises contained herein and other good and valuable consideration, the sufficiency and receipt of which are hereby acknowledged, it is mutually agreed between the parties as follows: 1.01 DEFINITIONS A. Agreement means the binding legal contract between City and Entech whereby City is obligated to buy specified goods and Entech is obligated to sell same. The Agreement 00286215/ss2 includes the following: (a) State of Texas Department of Information Resources — Contract for Products and Related Services — Entech Sales & Services, Inc. (attached as Exhibit "A"); and (b) Entech's "Scope Proposal" (Proposal # D110413-EJR-R2) (attached as Exhibit "B"): (1) This Agreement; (2) State of Texas Department of Information Resources — Contract for Products and Related Services — Entech Sales & Services, Inc. (Exhibit "A"); and (3) Entech's "Scope Proposal" (Proposal # D110413-EJR-R2) (Exhibit "B"). B. City means the City of Round Rock, Williamson and Travis Counties, Texas. C. Effective Date means the date upon which the binding signatures of both parties to this Agreement are affixed. D. Force Majeure means acts of God, strikes, Iockouts, or other industrial disturbances, acts of the public enemy, orders of any kind from the government of the United States or the State of Texas or any civil or military authority, insurrections, riots, epidemics, landslides, lightning, earthquakes, fires, hurricanes, stones, floods, restraint of the government and the people, civil disturbances, explosions, or other causes not reasonably within the control of the party claiming such inability. E. Goods mean the specified supplies, materials, commodities, or equipment. F. Services mean work performed to meet a demand or effort by Entech to comply with promised delivery dates, specifications, and technical assistance specified. 2.01 EFFECTIVE DATE, TERM, ALLOWABLE RENEWALS, PRICES FIRM A. This Agreement shall be effective on the date this Agreement has been signed by each party hereto, and shall remain in full force and effect unless and until it expires by operation of the term indicated herein, or is terminated or extended as provided herein. B. This Agreement shall terminate upon the purchase of all goods and services described in Exhibit "B" and upon expiration of any warranties set forth in Exhibit "A" and/or Exhibit "B." C. Prices shall be firm for the duration of this Agreement. No separate line item charges shall be permitted for invoicing purposes, including but not limited to equipment rental, demurrage, costs associated with obtaining permits, or any other extraneous charges. 2 D. City reserves the right to review the relationship with Entech at any time, and may elect to terminate this Agreement with or without cause or may elect to continue. 3.01 CONTRACT DOCUMENTS AND EXHIBITS The goods and services which are the subject matter of this Agreement are described in Exhibit "A" and Exhibit "B" and, together with this Agreement, comprise the total Agreement and they are fully a part of this Agreement as if repeated herein in full. 4.01 SCOPE OF WORK Vendor shall satisfactorily provide all goods and complete all services described in the three (3) separate "Scope Proposal" documents, collectively Exhibit "B" and attached hereto. This Agreement shall evidence the entire understanding and agreement between the parties and shall supersede any prior proposals, correspondence or discussions. Entech shall satisfactorily provide all deliverables and services described in Exhibit B" within the contract term here in specified. A change in the Scope of Services must be negotiated and agreed to in all relevant details, and must be embodied in a valid Supplemental Agreement as described herein. 5.01 CONTRACT AMOUNT In consideration for the deliverables and services related to the deliverables, the City agrees to pay Entech Four Hundred Thirty Thousand Seven Hundred Thirty -Seven Dollars and no/cents ($430,737.00) for the goods and services set forth in Exhibit "B." 6.01 INVOICES All invoices shall include, at a minimum, the following information: A. Name and address of Entech; B. Purchase Order Number; C. Description and quantity of items received or services provided; and D. Delivery or performance dates. 7.01 INTERLOCAL COOPERATIVE CONTRACTING / PURCHASING Authority for local governments to contract with one another to perform certain governmental functions and services, including but not limited to purchasing functions, is 3 granted under Government Code, Title 7, Chapter 791, Interlocal Cooperation Contracts, Subchapter- B and Subchapter C, and Local Government Code, Title 8, Chapter 271, Subchapter F, Section 271.101 and Section 271.102. Other governmental entities within the State of Texas may be extended the opportunity to purchase off of the City's bid, with the consent and agreement of the successful vendor(s) and the City. Such agreement shall be conclusively inferred for the vendor from lack of exception to this clause in the vendor's response. However, all parties hereby expressly agree that the City is not an agent of, partner to, or representative of those outside agencies or entities and that the City is not obligated or liable for any action or debts that may arise out of such independently -negotiated "piggyback" procurements. 8.01 NON -APPROPRIATION AND FISCAL FUNDING This Agreement is a commitment of City's current revenues only. It is understood and agreed that City shall have the right to terminate this Agreement at the end of any City fiscal year if the governing body of City does not appropriate fiends sufficient to purchase the services as determined by City's budget for the fiscal year in question. City may effect such termination by giving Entech a written notice of termination at the end of its then current fiscal year. 9.01 PROMPT PAYMENT POLICY In accordance with Chapter 2251, V.T.C.A., Texas Government Code, payment to Entech will be made within thirty (30) days of the day on which City receives the perfonnance, supplies, materials, equipment, and/or deliverables, or within thirty (30) days of the day on which the performance of services was complete, or within thirty (30) days of the day on which City receives a correct invoice for the performance and/or deliverables or services, whichever is later. Entech may charge interest on an overdue payment at the "rate in effect" on September 1 of the fiscal year in which the payment becomes overdue, in accordance with V.T.C.A., Texas Government Code, Section 2251.025(b); however, this Policy does not apply to payments made by City in the event: A. There is a bona fide dispute between City and Entech, a contractor, subcontractor or supplier about the goods delivered or the service perfonned that cause the payment to be late; or B. The terns of a federal contract, grant, regulation, or statute prevent City from making a timely payment with federal funds; or C. There is a bona fide dispute between Entech and a subcontractor or between a subcontractor and its supplier about the goods delivered or the service performed that causes the payment to be late; or 4 D. Invoices are not mailed to City in strict accordance with instructions, if any, on the purchase order or the Agreement or other such contractual agreement. 10.01 GRATUITIES AND BRIBES City may, by written notice to Entech, cancel this AD -cement without liability to Entech if it is determined by City that gratuities or bribes in the form of entertainment, gifts, or otherwise were offered or given by Entech or its agents or representatives to any City officer, employee or elected representative with respect to the performance of this Agreement. In addition, Entech may be subject to penalties stated in Title 8 of the Texas Penal Code. 11.01 TAXES City is exempt from Federal Excise and State Sales Tax; therefore, tax shall not be included in Entech's charges. 12.01 ORDERS PLACED WITH ALTERNATE SERVICES PROVIDERS If Entech cannot provide the goods as specified, City reserves the right and option to obtain the products from another supplier or suppliers. 13.01 CITY'S REPRESENTATIVE City hereby designates the following representative authorized to act in its behalf with regard to this Agreement: Chad McDowell General Services Director City of Round Rock 221 E. Main Street Round Rock, Texas 78664 (512) 218-5552 14.01 RIGHT TO ASSURANCE Whenever either party to this Agreement, in good faith, has reason to question the other party's intent to perform hereunder, then demand may be made to the other party for written assurance of the intent to perform. In the event that no written assurance is given within the reasonable time specified when demand is made, then and in that event the demanding party may treat such failure as an anticipatory repudiation of this Agreement. 5 15.01 DEFAULT If Entech abandons or defaults under this Agreement and is a cause of City purchasing the specified goods elsewhere, Entech agrees that it may be charged the difference in cost, if any, and that it will not be considered in the re -advertisement of the service and that it may not be considered in future bids for the same type of work unless the scope of work is significantly changed. Entech shall be declared in default of this Agreement if it does any of the following: A. Fails to make any payment in full when due; B. Fails to fully, timely and faithfully perform any of its material obligations under this Agreement; C. Fails to provide adequate assurance of performance under the "Right to Assurance" section herein; or D. Becomes insolvent or seeks relief under the bankruptcy laws of the United States. 16.01 TERMINATION AND SUSPENSION A. City has the right to terminate this Agreement, in whole or in part, for convenience and without cause, at any time upon thirty (30) days' written notice to Entech. B. In the event of any default by Entech, City has the right to terminate this Agreement for cause, upon ten (10) days' written notice to Entech. C. Entech has the right to terminate this Agreement only for cause, that being in the event of a material and substantial breach by City, or by mutual agreement to terminate evidenced in writing by and between the parties. D. In the event City terminates under subsections (A) or (B) of this section, the following shall apply: Upon .City's delivery of the referenced notice to Entech, Entech shall discontinue all services in connection with the performance of this Agreement and shall proceed to cancel promptly all existing orders and contracts insofar as such orders and contracts are chargeable to this Agreement. Within thirty (30) days after such notice of termination, Entech shall submit a statement showing in detail the goods and/or services satisfactorily performed under this Agreement to the date of termination. City shall then pay Entech that portion of the charges, if undisputed. The parties agree that Entech is not entitled to compensation for services it would have performed under the remaining term of the Agreement except as provided herein. 6 17.01 INDEMNIFICATION Entech shall defend (at the option of City), indemnify, and hold City, its successors, assigns, officers, employees and elected officials harmless from and against all suits, actions, legal proceedings, claims, demands, damages, costs, expenses, attorney's fees, and any and all other costs or fees arising out of, or incident to, concerning or resulting from the fault of Entech's, or Entech's agents, employees or subcontractors, in the performance of Entech's obligations under this Agreement, no matter how, or to whom, such loss may occur. Nothing herein shall be deemed to limit the rights of City or Entech (including, but not limited to the right to seek contribution) against any third party who may be liable for an indemnified claim. 18.01 COMPLIANCE WITH LAWS, CHARTER AND ORDINANCES Entech, its agents, employees and subcontractors shall use best efforts to comply with all applicable federal and state laws, the Charter and Ordinances of the City of Round Rock, as amended, and with all applicable rules and regulations promulgated by local, state and national boards, bureaus and agencies. 19.01 ASSIGNMENT AND DELEGATION The parties each hereby bind themselves, their successors, assigns and legal representatives to each other with respect to the terms of this Agreement. Neither party shall assign, sublet or transfer any interest in this Agreement without prior written authorization of the other party. 20.01 NOTICES All notices and other communications in connection with this Agreement shall be in writing and shall be considered given as follows: 1. When delivered personally to the recipient's address as stated in this Agreement; or 2. Three (3) days after being deposited in the United States mail, with postage prepaid to the recipient's address as stated in this Agreement. Notice to Entech: Entech Sales & Services, Inc. 3404 Garden Brook Dallas, Texas 75234 7 'Notice to City: Steve Norwood, City Manager 221 East Main Street AND TO: Round Rock, TX 78664 Stephan L. Sheets, City Attorney 309 East Main Street Round Rock, TX 78664 Nothing contained herein shall be construed to restrict the transmission of routine communications between representatives of City and Entech. 21.01 APPLICABLE LAW; ENFORCEMENT AND VENUE This Agreement shall be enforceable in Round Rock, Texas, and if legal action is necessary by either party with respect to the enforcement of any or all of the teens or conditions herein, exclusive venue for same shall lie in Williamson County, Texas. This Agreement shall be governed by and construed in accordance with the laws and court decisions of the State of Texas. 22.01 EXCLUSIVE AGREEMENT This document, and all appended documents, constitutes the entire Agreement between Entech and City. This Agreement may only be amended or supplemented by mutual agreement of the parties hereto in writing, duly authorized by action of the City Manager or City Council. 23.01 DISPUTE RESOLUTION City and Entech hereby expressly agree that no claims or disputes between the parties arising out of or relating to this Agreement or a breach thereof shall be decided by any arbitration proceeding, including without limitation, any proceeding under the Federal Arbitration Act (9 USC Section 1-14) or any applicable state arbitration statute. 24.01 SEVERABILITY The invalidity, illegality, or unenforceability of any provision of this Agreement or the occurrence of any event rendering any portion or provision of this Agreement void shall in no way affect the validity or enforceability of any other portion or provision of this Agreement. Any void provision shall be deemed severed from this Agreement, and the balance of this Agreement shall be construed and enforced as if this Agreement did not contain the particular portion or provision held to be void. The parties further agree to amend this Agreement to replace any stricken provision with a valid provision that comes as close as possible to the intent of the stricken provision. The provisions of this section shall not prevent this entire Agreement from being void should a provision which is of the essence of this Agreement be determined void. 8 25.01 MISCELLANEOUS PROVISIONS Standard of Care. Entech represents that it employs trained, experienced and competent persons to perform all of the services, responsibilities and duties specified herein and that such services, responsibilities and duties shall be perfonned in a manner according to generally accepted industry practices. Time is of the Essence. Entech understands and agrees that time is of the essence and that any failure of Entech to fulfill obligations for each portion of this Agreement within the agreed timeframes will constitute a material breach of this Agreement. Entech shall be fully responsible for its delays or for failures to use best efforts in accordance with the terms of this Agreement. Where damage is caused to City due to Entech's failure to perform in these circumstances, City may pursue any remedy available without waiver of any of City's additional legal rights or remedies. Force Majeure. Neither City nor Entech shall be deemed in violation of this Agreement if it is prevented from performing any of its obligations hereunder by reasons for which it is not responsible as defined herein. However, notice of such impediment or delay in performance must be timely given and all reasonable efforts undertaken to mitigate its effects. Multiple Counterparts. This Agreement may be executed in multiple counterparts, any one of which shall be considered an original of this document; and all of which, when taken together, shall constitute one and the same instrument. IN WITNESS WHEREOF, City and Entech have executed this Agreement on the dates indicated. City of Round Rock, Texas By: By: -7 -�'.—rte-7� Printed Name: Printed Name: f%%, -A• ,i3p,? z( fC Title: Title: K.,- e . jf7,s,'', r7 7 Date Signed: Date Signed: /0/7// 3 Attest: Entech Sales & Services, Inc. By: Sara L. White, City Clerk For City, Approved as to Form: By: Stephan L. Sheets, City Attorney 9 DIR Contract No. D1R-SDD-22 t 8 Vendor Contract No. STATE OF TEXAS DEPARTMENT OF INFORMATION RESOURCES CONTRACT FOR PRODUCTS AND RELATED SERVICES ENTECH SALES & SERVICE, INC. 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 1511' Street, Suite 1300, Austin, Texas 78701, and Entech Sales & Service, Inc. (hereinafter "Vendor"), with its principal place of business at 3404 Garden Brook Drive, Dallas, Texas 75234. B. Compliance with Procurement Laws This Contract is the result of compliance with applicable procuretnent 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-189 on August 22, 2012, for Augmenting Hardware, Software, and Related Services for Surveillance, Security and Monitoring. Upon execution of this Contract, a notice of award for RFO DIR-SDD-TMP- 189 shall be posted by D1R on the Electronic State Business Daily. C. Order ofPrecedencc 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; Exhibit 1, Vendor's Response to RFO DIR-SDD-TMP-189, including all addenda; and Exhibit 2, RFO DIR-SDD-TMP-189, including all addenda; are incorporated by reference and constitute the entire agreement between DIR and Vendor. In the event of a conflict between the documents listed in this paragraph, the controlling document shall be this Contract, then Appendix A, then Appendix B, then Appendix C, then 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, DER 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. Page 1 of 10 Exhibit "A" DIR Contract No. DIR-SDD-2218 Vendor Contract No. 3. Product and Service Offerings A. Products Products available under this Contract are limited to Surveillance, Security and Monitoring products as specified in Appendix C, Pricing Index. Vendor may incorporate changes to their product offering; however, any changes must be within . the scope of products awarded based on the posting described in Section 1.13 above. Vendor may not add a manufacturer's product line which was not included in the Vendor's response to the solicitation described in Section 1.B above. B. Services Services available under this Contract are limited to related services as specified in Appendix C, Pricing Index. Vendor may incorporate changes to their service offering; however, any changes must be within the scope of services awarded based on the posting described in Section 1.B above. 4. Pricing A. Manufacturer's Suggested Retail Price (MSRP) MSRP is defined as the product sales price suggested by the manufacturer or publisher of a product. B. Customer Discount The minimum Customer discount for all products and services will be the percentage off MSRP as specified in Appendix C, Pricing Index. C. Customer Price 1) The price to the Customer shall be calculated as follows: Customer Price = MSRP — Customer Discount 2) Customers purchasing products and services under this Contract may negotiate more advantageous pricing or participate in special promotional offers. In such event, a copy of such better offerings shall be furnished to DIR upon request. 3) If pricing for products or services available under this Contract are provided at a lower price to: (i) an eligible Customer who is not purchasing those products or services under this Contract or (ii) any other entity or consortia authorized by Texas law to sell said products and services to eligible Customers, then the available Customer Price in this Contract shall be adjusted to that lower price. This requirement applies to products or services quoted by Vendor or its resellers (1) under like terms and conditions, and does not apply to volume or special pricing purchases. This Contract shall be amended within ten (10) business days to reflect the lower price. Page 2of10 DIR Contract No. DIR-SDD-2218 Vendor Contract No. D, DIR Administrative Fee The administrative fee specified in Section 5 below shall not be broken out as a separate line item when pricing or invoice is provided to Customer. E. Shipping and Handling Fees The price to the Customer under this Contract shall include all shipping and handling fees. Shipments will be Free On Board Customer's destination. No additional fees shall be charged to the Customer for standard shipping and handling. If the Customer requests expedited delivery, Customer will be responsible for any charges for expedited delivety. F. Tax -Exempt As per Section 151.309, Texas Tax Code, Customers under this Contract are exempt from the assessment of State sales, use and excise taxes. Futher, Customers under this Contract are exempt from Federal Excise Taxes, 26 United States Code Sections 4253(i) and (j). G. Travel Expense Reimbursement Pricing for services provided under this Contract are exclusive of any travel expenses that may be incurred in the performance of those services. Travel expense reimbursement may include personal vehicle mileage or commercial coach transportation, hotel accommodations, parking and meals; provided, however, the amount of reimbursement by Customers shall not exceed the amounts authorized for state employees as adopted by each Customer; and provided, further, that all reimbursement rates shall not exceed the maximutn rates established for state employees under the current State Travel Management Program (htto://www.window.state.tx.us/procurement/prog/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. H. Changes to Prices Vendor may change the price of any product or service at any time, based upon changes to the MSRP, but discount levels shall remain consistent with the discount levels specified in this Contract. Price decreases shall take effect automatically during the term of this Contract and shall be passed onto the Customer immediately. 5. DTR Administrative Fee A) The administrative fee to be paid by the Vendor to DIR based on the dollar value of all sates to Customers pursuant to this Contract is one-half of one percent (0.50%). Payment will be calculated for all sales, net of returns and credits. For example, the adtninistrative fee for sales totaling $100,000 shall be $500.00. 13) All prices quoted to Customers shall include the administrative fee. DIR reserves the right to change this fee upwards or downwards during the term of this Contract, upon Page 3of10 DIR Contract. No. DIR-SDD-2218 Vendor Contract No. written notice to Vendor without further requirement for a formal contract amendment. Any change in the administrative fee shall be incorporated in the price to the Customer. 6. Notification All notices under this Contract shall be sent to a party at the respective address indicated below. If sent to the State: Robin Abbott, Manager Contract and Vendor Management Departtnent of Information Resources 300 W. 15th St., Suite 1300 Austin, Texas 78701 Phone: (512) 475-4700 Facsimile: (512) 475-4759 Robin.abbott©dir.texas.gov dir.texas.gov If sent to the Vendor: Eric Robb Entech Sales & Service, inc. 2136 Rutland Dr. Ste. E Austin, TX 78758 Phone: 512-719-5191 Facsimile: 512-719-5192 Email: erobb@entechsales.com entechsales.com 7. Software License and Service Agreements A. ShrinlclClick-wrap License Agreement Regardless of any other provision or other License terms which may be issued by Vendor after the effective date of this Contract, and irrespective of whether any such provisions have been proposed prior to or after the issuance of a Purchase Order for products licensed under this Contract, or the fact that such other agreement may be affixed to or accompany software upon delivery (shrink-wrap), the terms and conditions set forth in this Contract shall supersede and govern the license terms between Customers and Vendor. It is the Customer's responsibility to read the Shrink/Clicic-wrap License Agreement and determine if the Customer accepts the license terms as antended by this Contract. If the Customer does not agree with the license terms, Customer shall be responsible for negotiating with the reseller to obtain additional changes in the Slu•inh/Clicic wrap License Agreement language from the software publisher. Page 4t ort 0 DIR Contract No. DIR-SDD-2213 Vendor Contract No. 8. Intellectual Property Matters A. Definitions 1." Work Product" means any and all deliverables produced by Vendor for Customer under a Statement of Work issued pursuant to this Contract, including any and all tangible or intangible items or things that have been or will be prepared, created, developed, invented or conceived at any time following the effective date of the Contract, including but not limited to any (i) works of authorship (such as manuals, instructions, printed material, graphics, artwork, images, illustrations, photographs, computer programs, computer software, scripts, object code, source code or other programming code, HTML code, flow charts, notes, outlines, lists, compilations, manuscripts, writings, pictorial materials, schematics, formulae, processes, algorithms, data, information, multimedia files, text web pages or web sites, other written or machine readable expression of such works fixed in any tangible media, and all other copyrightable works), (ii) trademarks, service marks, trade dress, trade names, logos, or other indicia of source or origin, (iii) ideas, designs, concepts, personality rights, methods, processes, techniques, apparatuses, inventions, formulas, discoveries, or improvements, including any patents, trade secrets and know-how, (iv) domain names, (v) any copies, and similar or derivative works to any of the foregoing, (vi) all documentation and materials related to any of the foregoing, (vii) all other goods, services or deliverables to be provided to Customer under the Contract or a Statement of Work, and (viii) all Intellectual Property Rights in any of the foregoing, and which are or were created, prepared, developed, invented or conceived for the use or benefit of Customer in connection with this Contract or a Statement of Work, or with funds appropriated by or for Customer or Customer's benefit: (a) by any Vendor personnel or Customer personnel, or (b) any Customer personnel who then became personnel to Vendor or any of its affiliates or subcontractors, where, although creation or reduction -to -practice is completed while the person is affiliated with Vendor or its personnel, any portion of same was created, invented or conceived by such person while affiliated with Customer. 2. "Intellectual Property Rights" means the worldwide legal rights or interests evidenced by or embodied in: (i) any idea, design, concept, personality right, method, process, technique, apparatus, invention, discovery, or improvement, including any patents, trade secrets, and know-how; (ii) any work of authorship, including any copyrights, moral rights or neighboring rights; (iii) any trademark, service mark, trade dress, trade name, or other indicia of source or origin; (iv) domain name registrations; and (v) any other proprietary or similar rights. The Intellectual Property Rights of a party include all worldwide legal rights or interests that the party may have acquired by assignment or license with the right to grant sublicenses. 3. "Statement of Work" means a document signed by Customer and Vendor describing a specific set of activities and/or deliverables, which may include Work Product and Intellectual Property Rights, that Vendor is to provide Customer, issued pursuant to the Contract. Page 5of10 DIR Contract No. DIR-SDD-2218 Vendor Contract No. 4. "Third Party IP" means the Intellectual Property Rights of any third party not a party to this Contract, and which is not directly or indirectly providing any goods or services to Customer under this Contract. 5. "Vendor IP" shall mean all tangible or intangible items or things, including the Intellectual Property Rights therein, created or developed by Vendor (a) prior to providing any Services or Work Product to Customer and prior to receiving any documents, materials, information or funding from or on behalf of Customer relating to the Services or Work Product, or (b) after the Effective Date of the Contract if such tangible or intangible items or things were independently developed by Vendor outside Vendor's provision of Services or Work Product for Customer hereunder and were not created, prepared, developed, invented or conceived by any Customer personnel who then became personnel to Vendor or any of its affiliates or subcontractors, where, although creation or reduction -to -practice is completed while the person is affiliated with Vendor or its personnel, any portion of same was created, invented or conceived by such person while affiliated with Customer. B. Ownership. As between Vendor and Customer, the Work Product and Intellectual Property Rights therein are and shall be owned exclusively by Customer, and not Vendor. Vendor specifically agrees that the Work Product shall be considered "works made for hire" and that the Work Product shall, upon creation, be owned exclusively by Customer. To the extent that the Work Product, under applicable law, may not be considered works made for hire, Vendor hereby agrees that the Contract effectively transfers; grants, conveys, assigns, and relinquishes exclusively to Customer all right, title and interest in and to all ownership rights in the Work Product, and all Intellectual Property Rights in the Work Product, without the necessity of any further consideration, and Customer shall be entitled to obtain and hold in its own name all Intellectual Property Rights in and to the Work Product. Vendor acknowledges that Vendor and Customer do not intend Vendor to be a joint author of the Work Product within the meaning of the Copyright Act of 1976. Customer shall have access, during normal business hours (Monday thru Friday, 8AM to 5PM) and upon reasonable prior notice to Vendor, to all Vendor materials, premises and computer files containing the Work Product. Vendor and Customer, as appropriate, will cooperate with one another and execute such other documents as may be reasonably appropriate to achieve the objectives herein. No license or other right is granted hereunder to any Third Party IP, except as may be incorporated in the Work Product by Vendor. C. Further Actions. Vendor, upon request and without further consideration, shall perform any acts that may be deemed reasonably necessary or desirable by Customer to evidence more fully the transfer of ownership and/or registration of all Intellectual Property Rights in all Work Product to Customer to the fullest extent possible, including but not limited to the execution, acknowledgement and delivery of such further documents in a form determined by Customer. In the event Customer shall be unable to obtain Vendor's signature due to the dissolution of Vendor or Vendor's unreasonable failure to respond to Page 6 o n o DiR Contract No. DIR-SDD-2218 Vendor Contract No, Customer's repeated requests for such signature on any document reasonably necessary for any purpose set forth in the foregoing sentence, Vendor hereby irrevocably designates and appoints Customer and its duly authorized officers and agents as Vendor's agent and Vendor's attorney-in-fact to act for and in Vendor's behalf and stead to execute and file any such document and to do all other lawfully permitted acts to further any such purpose with the same force and effect as if executed and delivered by Vendor, provided however that no such grant of right to Customer is applicable if Vendor fails to execute any document due to a good faith dispute by Vendor with respect to such document. It is understood that such power is coupled with an interest and is therefore irrevocable. Customer shall have the full and sole power to prosecute such applications and to take all other action concerning the Work Product, and Vendor shall cooperate, at Customer's sole expense, in the preparation and prosecution of all such applications and in any legal actions and proceedings concerning the Work Product. A. Waiver of Moral Rights. Vendor hereby irrevocably and forever waives, and agrees never to assert, any Moral Rights in or to the Work Product which Vendor may now have or which may accrue to Vendor's benefit under U.S. or foreign copyright or other laws and any and all other residual rights and benefits which arise under any other applicable law now in force or hereafter enacted. Vendor acknowledges the receipt of equitable compensation for its assignment and waiver of such Moral Rights. The term "Moral Rights" shall mean any and all rights of paternity or integrity of the Work Product and the right to object to any modification, translation or use of the Work Product, and any similar rights existing under the judicial or statutory law of any country in the world or under any treaty, regardless of whether or not such right is denominated or referred to as a moral right. F. Confidentiality. All documents, information and materials forwarded to Vendor by Customer for use in and preparation of the Work Product, shall be deemed the confidential information of Customer, and subject to the license granted by Custotner to Vendor under sub -paragraph H. Hereunder, Vendor shall not use, disclose, or permit any person to use or obtain the Work Product, or any portion thereof, in any manner without the prior written approval of Customer. F. Injunctive Relief. The Contract is intended to protect Customer's proprietary rights pertaining to the Work Product, and the Intellectual Property Rights therein, and any misuse of such rights would cause substantial and irreparable harm to Customer's business. Therefore, Vendor acknowledges and stipulates that a court of competent jurisdiction may immediately enjoin any material breach of the intellectual property, use, and confidentiality provisions of this Contract, upon a request by Customer, without requiring proof of irreparable injury as same should be presumed. G. Return of Materials Pertaining to WorIc Product. Upon the request of Customer, but in any event upon termination or expiration of this Contract or a Statement of Work, Vendor shall surrender to Customer all documents and Page 7 of 10 DIR Contract No. DIR-SDD-221 S Vendor Contract No. things pertaining to the Work Product, including but not limited to drafts, memoranda, notes, records, drawings, manuals, computer software, reports, data, and all other documents or materials (and copies of same) generated or developed by Vendor or furnished by Customer to Vendor, including all materials embodying the Work Product, any Customer confidential information, or Intellectual Property Rights in such Work Product, regardless of whether complete or incomplete. This section is intended to apply to all Work Product as well as to all documents and things furnished to Vendor by Customer or by anyone else that pertains to the Worlc Product. H. Vendor License to Use. Customer hereby grants to Vendor a non -transferable, non-exclusive, royalty -free, fully paid-up license to use any Work Product solely as necessary to provide the Services to Customer. Except as provided in this Section, neither Vendor nor any Subcontractor shall have the right to use the Work Product in connection with the provision of services to its other customers without the prior written consent of Customer, which consent may be withheld in Customer's sole discretion. L Third -Party Underlying and Derivative Works. To the extent that any Vendor IP or Third Party IP are embodied or reflected in the Work Product, or are necessary to provide the Services, Vendor hereby grants to the Customer, or shall obtain from the applicable third party for Customer's benefit, the irrevocable, perpetual, non-exclusive, worldwide, royalty -free right and license, for Customer's internal business purposes only, to (i) use, execute, reproduce, display, perform, distribute copies of, and prepare derivative works based upon such Vendor IP or Third Party IP and any derivative works thereof embodied in or delivered to Custotner in conjunction with the Work Product, and (ii) authorize others to do any or all of the foregoing. Vendor agrees to notify Customer on delivery of the Work Product or Services if such materials include any Third Party IP. On request, Vendor shall provide Customer with documentation indicating a third party's written approval for Vendor to use any Third Party IP that may be embodied or reflected in the Work Product. J. Agreement with Subcontracts. Vendor agrees that it shall have written agrcement(s) that are consistent with the provisions hereof related to Work Product and Intellectual Property Rights with any employees, agents, consultants, contractors or subcontractors providing Services or Work Product pursuant to the Contract, prior to their providing such Services or Work Product, and that it shall maintain such written agreements at all times during performance of this Contract, which are sufficient to support all performance and grants of rights by Vendor. Copies of such agreements shall be provided to the Customer promptly upon request, K. License to Customer. Vendor grants to Customer, a perpetual, irrevocable, royalty free license, solely for the Customer's internal business purposes, to use, copy, modify, display, perforin (by any means), transmit and prepare derivative works of any Vendor IP embodied in or delivered to Customer in conjunction with the Work Product. The foregoing license includes the right to sublicense third parties, solely for the purpose of engaging such third parties to Page 8of10 D1R Contract No. D1R-SDD-2218 Vendor Contract No. assist or carryout Customer's internal business use of the Work Product. Except for the preceding license, all rights in Vendor IP remain in Vendor. L. Vendor Development Rights. To the extent not inconsistent with Customer's rights in the Work Product or as set forth herein, nothing in this Contract shall preclude Vendor from developing for itself, or for others, materials which are competitive with those produced as a result of the Services provided hereunder, provided that no Work Product is utilized, and no Intellectual Property Rights of Customer therein are infringed by such competitive materials. To the extent that Vendor wishes to use the Work Product, or acquire licensed rights in certain Intellectual Property Rights of Customer therein in order to offer competitive goods or services to third parties, Vendor and Customer agree to negotiate in good faith regarding an appropriate license and royalty agreement to allow for such. 9. Authorized Exceptions to Appendix A, Standard Terms and Conditions for Product and Related Services Contracts. No exceptions have been agreed to by DIR and Vendor. (Remainder of page intentionally left blank) Page 9of10 DIR Contract No. DIR-SDD-2218 Vendor Contract No. This Contract is executed to be effective as of the date of last signature. Entech Sales & Service, Inc. Authorized By: Signature on File Name: Mark Braziel Title: Vice President Date: 5/16/13 The State of Texas, acting by and through the Department of Information Resources Authorized By: Signature on File Name: Carl Marsh Title: ChiefOperating Officer Date: 5/23/13 Office of General Counsel: drb 5/20/13 Page 10 o('10 Appendix A Standard Terms and Conditions For Product and Related Services Contracts Table of Contents 1. Contract Scope 1 2. No Quantity Guarantees 3. Definitions 1 4. General Provisions 2 A. Entire Agreement 2 B. Modification of Contract Terms and/or Amendments 2 C. Invalid Term or Condition 2 D. Assignment 3 E. Survival 3 F. Choice of Law 3 G. Limitation of Authority 3 5. Product Terms and Conditions 3 A. Electronic and Information Resources Accessibility Standards, As Required by I TAC Chapters 206 and 213 (Applicable to State Agency and Institution of Higher Education Purchases Only) 3 B. Purchase of Commodity Items (Applicable to State Agency Purchases Only) 4 6. Contract Fulfillment and Promotion 4 A. Service, Sales and Support of the Contract 4 B. Use of Order Fulfillers 5 1) Designation of Order Fulfillers 5 2) Changes in Order Fulfiller List 5 3) Order Fulfiller Pricing to Customer 5 C. Product Warranty and Return Policies 5 D. Customer Site Preparation 6 E. Internet Access to Contract and Pricing Information 6 1) Vendor Website 6 2) Accurate and Timely Contract information 6 3) Website Compliance Checks 6 4) Website Changes 6 5) Use of Access Data Prohibited 6 6) Responsibility for Content 7 F. DIR Logo 7 G. Vendor and Order Fulfiller Logo 7 H. Trade Show Participation 7 I. Orientation Meeting 7 J. Performance Review Meetings 7 K. DIR Cost Avoidance 8 06/08/12 Appendix A Standard Terms and Conditions For Product and Related Services Contracts 7. Purchase Orders, Invoices, and Payments 8 A. Purchase Orders 8 B. Invoices 8 C. Payments 8 8. Contract Administration 8 A. Contract Administrators 8 1) State Contract Administrator 8 2) Vendor Contract Administrator 9 B. Reporting and Administrative Fees 9 1) Reporting Responsibility 9 2) Detailed Monthly Report 9 3) Historically Underutilized Businesses Subcontract Reports 9 4) DIR Administrative Fee 9 5) Accurate and Timely Submission of Reports 10 C. Records and Audit 10 D. Contract Administration Notification 11 9. Vendor Responsibilities 11 A. Indemnification 11 B. Taxes/Worker's Compensation/UNEMPLOYMENT INSURANCE 12 C. Vendor Certifications 13 D. Ability to Conduct Business in Texas 15 E. Equal Opportunity Compliance 15 F. Use of Subcontractors 15 G. Responsibility for Actions 15 H. Confidentiality 16 I. Security of Premises, Equipment, Data and Personnel 16 J. Background and/or Criminal History Investigation 16 K. Limitation of Liability 16 L. Overcharges 17 M. Prohibited Conduct 17 N. Required Insurance Coverage 17 O. Use of State Property 18 P. Immigration 18 Q. Public Disclosure 18 R. Product and/or Services Substitutions 19 S. Secure Erasure of Hard Disk Products and/or Services 19 T. Deceptive Trade Practices; Unfair Business Practices 19 U. Drug Free Workplace Policy 19 10. Contract Enforcement 19 A. Enforcement of Contract and Dispute Resolution 19 B. Termination 20 1) Termination for Non -Appropriation 20 06/08/12 ii Appendix A Standard Terms and Conditions For Product and Related Services Contracts a) Termination for Non -Appropriation by Customer 20 b) Termination for Non -Appropriation by DIR 20 2) Absolute Right 20 3) Termination for Convenience 21 4) Termination for Cause 21 a) Contract 21 b). Purchase Order 21 5) Customer Rights Under Termination 21 6) Vendor or Order Fulfiller Rights Under Termination 21 C. Force Majeure 22 11. Notification 22 A. Notices 22 B. Handling of Written Complaints 22 12. Captions 22 06/08/12 i i i Appendix A Standard Terms and Conditions For Product and Related Services Contracts The following terms and conditions shall govern the conduct of DIR and Vendor during the tern . of the Contract. 1. Contract Scope The Vendor shall provide the products and related services specified in Section 3 of the Contract for purchase by Customers. In addition, DIR and Vendor may agree to provisions that allow Vendor and/or Order Fulfiller to lease the products offered under the Contract. Terms used in this document shall have the meanings set forth below in Section 3. 2. No Quantity Guarantees The Contract is not exclusive to the Vendor. Customers may obtain products and related services from other sources during the term of the Contract. DIR makes no express or implied warranties whatsoever that any particular quantity or dollar amount of products and related services will be procured through the Contract. 3. Definitions A. Customer - any Texas state agency, unit of local government, institution of higher education as defined in Section 2054.003, Texas Government Code, and those state agencies purchasing from a DIR contract through an Interagency Agreement, as authorized by Chapter 771, Texas Government Code, any local government as authorized through the Interlocal Cooperation Act, Chapter 791; Texas Government Code, and the state agencies and political subdivisions of other states as authorized by Section 2054.0565, Texas Government Code and, except for telecotnmunications 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. 06/08/12 Page 1 of 22 Appendix A Standard Terms and Conditions For Product and Related Services Contracts B. Compliance Checic — an audit of Vendor's compliance with the Contract may be performed by, but not limited to, a third party auditor, DIR Internal Audit department, or DIR contract management staff or their designees. C. Contract — the document executed between DIR and Vendor into which this Appendix A is incorporated. D. CPA— refers to the Texas Comptroller of Public Accounts. E. Day - shall mean business days, Monday through Friday, except for State and Federal holidays. If the Contract calls for performance on a day that is not a business day, then performance is intended to occur on the next business day. F. Order Fulfiller — the party, either Vendor or a party that may be designated by Vendor, who is fulfilling a Purchase Order pursuant to the Contract. 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). II, State — refers to the State of Texas. 4. General Provisions A. Entire Agreemen t The Contract, Appendices, and Exhibits constitute the entire agreement between DIR and the Vendor. No statement, promise, condition, understanding, inducement or representation, oral or written, expressed or implied, which is not contained in the Contract, Appendices, or its Exhibits shall be binding or valid. J MModification of Contract Terms and/or Amendments 1) The terms and conditions of the Contract shall govern all transactions by Customers under the Contract. The Contract may only be modified or amended upon mutual written agreement of DIR and Vendor. 2) Customers shall not have the authority to modify the terms of the Contract; however, additional Customer terms and conditions that do not conflict with the Contract and are acceptable to Order Fulfiller may be added in a Purchase Order and given effect. No additional term or condition added in a Purchase Order issued by a Customer can conflict with or diminish a term or condition of the Contract. Pre- printed terms and conditions on any Purchase Order issued by Customer hereunder will have no force and effect. hn the event of a conflict between a Customer's Purchase Order and the Contract, the Contract term shall control. 3) Customers and Vendor will negotiate and enter into written agreements regarding statements of work, service level agreements, remedies, acceptance criteria, information confidentiality and security requirements, and other terms specific to their Purchase Orders under the Contract with Vendors. C. Invalid Term or Condition 1) To the extent any term or condition in the Contract conflicts with the applicable Texas and/or United States law or regulation, such Contract term or condition is void and unenforceable. By executing a contract which contains the conflicting term or condition, DIR makes no representations or warranties regarding the enforceability of such term or condition and DIR does not waive the applicable Texas and/or United 06/08/12 Page 2 of 22 Appendix A Standard Terms and Conditions For Product and Related Services Contracts States law or regulation which conflicts with the Contract term or condition. 2) If one or more term or condition iti the Contract, or the application of any term or condition to any party or circumstance, is held invalid, unenforceable, or illegal in any respect by a final judgment or order of the State Office of Administrative Hearings or a court of competent jurisdiction, the remainder of the Contract and the application of the term or condition to other parties or circumstances shall remain valid and in full force and effect. D. Assignment DIR or Vendor may assign the Contract without prior written approval to: i) a successor in interest (for DIR, another state agency as designated by the Texas Legislature), or ii) a subsidiary, parent company or affiliate, or iii) as necessary to satisfy a regulatory requirement imposed upon a party by a governing body with the appropriate authority. Assignment of the Contract under the above terms shall require written notification by the assigning party. Any other assignment by a party shall require the written consent of the other party. Each party agrees to cooperate to amend the Contract as necessary to maintain an accurate record of the contracting parties. E. Survival All applicable software license agreements, warranties or service agreements that were entered into between Vendor and a Customer under the terms and conditions of the Contract shall survive the expiration or termination of the Contract. All Purchase Orders issued and accepted by Order Fulfiller shall survive expiration or termination of the Contract. F. Choice of Law The laws of the State of Texas shall govern the construction and interpretation of the Contract. Exclusive venue for all actions with be in state court, Travis County, Texas. Nothing in the Contract or its Appendices shall be construed to waive the State's sovereign immunity. G. Limitation of Authority Vendor shall have no authority to act for or on behalf of the Texas Department of Information Resources or the State of Texas except as expressly provided for in this Contract; no other authority, power or use is granted or implied. Vendor may not incur any debts, obligations, expenses, or liabilities of any kind on behalf of the State of Texas or Texas Department of Iuforniation Resources. S. Product Terms and Conditions A. EIectronic 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) 1) Effective September 1, 2006 state agencies and institutions of higher education shall procure products which comply with the State of Texas Accessibility requirements for Electronic and Information Resources specified in 1 TAC Chapters 06/08/12 Page 3 of 22 Appendix A Standard Terms and Conditions For Product and Related Services Contracts 206 and 213 when such products are available in the commercial marketplace or when such products are developed in response to a procurement solicitation. 2) Upon request, but not later thirty (30) days after request, Vendor shall provide DIR with a completed Voluntary Product Accessibility Template (VPAT) of the specified product or a URL to the VPAT for reviewing compliance with the State of Texas Accessibility requirements (based on the federal standards established under Section 508 of the Rehabilitation Act). B. Purchase of Commodity Items (Applicable to State Agency Purchases Only) 1) Texas Government Code, §2157.068 requires State agencies to buy commodity items, as defined in 5.B.2 below, in accordance with contracts developed by DIR, unless the agency obtains an exemption from DIR. 2) Commodity items are commercially available software, hardware and technology services that are generally available to businesses or the public and for which DIR determines that a reasonable demand exists in two or more state agencies. Hardware is the physical technology used to process, manage, store, transmit, receive or deliver information. Software is the commercially available programs that operate hardware and includes all supporting documentation, media on which the software may be contained or stored, related materials, modifications, versions, upgrades, enhancements, updates or replacements. Technology services are the services, functions and activities that facilitate the design, implementation, creation, or use of software or hardware. Technology services include seat management, staffing augmentation, training, maintenance and subscription services. Technology services do not include telecommunications services. Seat management is services through which a state agency transfers its responsibilities to a vendor to manage its personal computing needs, including all necessary hardware, software and technology services. 3) Vendor agrees to coordinate all State agency commodity item sales through existing DIR contracts. Institutions of higher education are exempt from. this Subsection S.B. 6. Contract Fulfillment and Promotion A. Service, Sales and Support of the Contract Vendor shall provide service, sales and support resources to serve all Customers throughout the State. It is the responsibility of the Vendor to sell, market, and promote products and services available under the Contract. Vendor shall use its best efforts to ensure that potential Customers are made aware of the existence of the Contract. All sales to Customers for products and services available under the Contract shall be processed through the Contract. 06/08/12 Page 4 of 22 Appendix A Standard Terms and Conditions For Product and Related Services Contracts B. Use of Order Fulfillers DIR agrees to permit Vendor to utilize designated Order Fulfillers to provide service, sales and support resources to Customers. Such participation is subject to the following conditions: 1) Designation of Order Fulfillers a) Vendor may designate Order Fulfillers to act as the distributors for products and services available under the Contract. In designating Order Fulfillers, Vendor must be in compliance with the State's Policy on Utilization of Historically Underutilized Businesses. In addition to the required Subcontracting Plan, Vendor shall provide DIR with the following Order Fulfiller information: Order Fulfiller name, Order Fulfiller business address, Order Fulfiller CPA Identification Number, Order Fulfiller contact person email address and phone number. b) DIR reserves the right to require the Vendor to rescind any such Order Fulfiller participation or request that Vendor name additional Order Fulfillers should DIR determine it is in the best interest of the State. c) Vendor shall be fully liable for its Order Fulfillers' performance under and compliance with the terms and conditions of the Contract. Vendor shall enter into contracts with Order Fulfillers and use terms and conditions that are consistent with the terms and conditions of the Contract. d) Vendor shall have the right to qualify Order Fulfillers and their participation under the Contract provided that: i) any criteria is uniformly applied to all potential Order Fulfillers based upon Vendor's established, neutrally applied criteria, ii) the criteria is not based on a particular procurement, and iii) all Customers are supported under the different criteria. e) Vendor shall not prohibit Order Fulfiller from participating in other procurement opportunities offered through DIR. 2) Changes in Order Fulfiller List Vendor may add or delete Order Fulfillers throughout the term of the Contract upon written authorization by DIR. Prior to adding or deleting Order Fulfillers, Vendor . must make a good faith effort in the revision of its Subcontracting Plan in accordance with the State's Policy on Utilization of Historically Underutilized Businesses. Vendor shall provide DIR with its updated Subcontracting Plan and the Order Fulfiller information listed in Section 6.B.1.a above. 3) Order Fulfiller Pricing to Customer Order Fulfiller pricing to the Customer shall comply with the Customer price as stated within Section 4 of the Contract. This pricing shall only be offered by Order Fulfillers to Customers for sales that pass through the Contract. C. Product Warranty and Return Policies Order Fulfiller will adhere to the Vendor's then -currently published policies concerning product warranties and returns. Product warranty and return policies for Customers will not be more restrictive or more costly than warranty and return policies for other sitnilarly situated Customers for like products. 06/08/12 Page 5 of 22 Appendix A Standard Terms and Conditions For Product and Related Services Contracts D. Customer Site Preparation • Customers shall prepare and maintain its site in accordance with written instructions furnished by Order Fulfiller prior to the scheduled delivery date of any product or service and shall bear the costs associated with the site preparation. E. Internet Access to Contract and Pricing Information 1) Vendor Website Within thirty days of the effective date of the Contract, Vendor will establish and maintain a website specific to the product and service offerings under the Contract which is clearly distinguishable fi•om other, non-DIR Contract offerings at Vendor's website. The website must include: the product and services offered, product and service specifications, Contract pricing, designated Order Fulfillers, contact information for Vendor and designated Order Fulfillers, instructions for obtaining quotes and placing Purchase Orders, and warranty and return policies. The Vendor's website shall list the DIR Contract number, reference the DIR Information and Communications Technology (ICT) Cooperative Contracts program, display the DTR logo in accordance with the requirements in paragraph F of this Section, and contain a link to the DIR website for the Contract. 2) Accurate and Timely Contract Information Vendor warrants and represents that the website information specified in the above paragraph will be accurately and completely posted, maintained and displayed in an objective and timely manner. Vendor, at its own expense, shall correct any non- conforming or inaccurate information posted at Vendor's website within ten (10) business days after written notification by DIR. 3) Website Compliance Checks Periodic compliance checks of the information posted for the Contract on Vendor's website will be conducted by DIR. Upon request by D1R, Vendor shall provide verifiable documentation that pricing listed upon this website is uniform with the pricing as stated in Section 4 of the Contract. 4) Website Changes Vendor hereby consents to a link from the DIR website to Vendor's website in order to facilitate access to ,Contract information. The establishment of the link is provided solely for convenience in carrying out the business operations of the State. DIR reserves the right to terminate or remove a link at any time, in its sole discretion, without advance notice, or to deny a future request for a link. DIR will provide Vendor with subsequent notice of link termination or removal. Vendor shall provide DIR with timely written notice of any change in URL or other information needed to access the site and/or maintain the link. 5) Use of Access Data Prohibited If Vendor stores, collects or maintains data electronically as a condition of accessing Contract information, such data shall only be used internally by Vendor for the purpose of implementing or marketing the Contract, and shall not be disseminated to third parties or used for other marketing purposes. The Contract constitutes a public document under the laws of the State and Vendor shall not restrict access to Contract terms and conditions including pricing, i.e., through use of restrictive technology or 06/08/12 Page 6 of 22 Appendix A Standard Terms and Conditions For Product and Related Services Contracts passwords. 6) Responsibility for Content Vendor is solely responsible for administration, content, intellectual property rights, and all materials at Vendor's website. DIR reserves the right to require a change of listed content if, in the opinion of DTR, it does not adequately represent the Contract. F. DER Logo Order Fulfiller may use the DIR logo in the promotion of the Contract to Customers with the following stipulations: (i) the logo may not be modified in any way, (ii) when displayed, the size of the DIR logo must be equal to or smaller than the Order Fulfiller logo, (iii) the DIR logo is only used to communicate the availability of products and services under the Contract to Customers, and (iv) any other use of the DIR logo requires prior written permission from DIR. G. Vendor and Order Fulfiller Logo DIR may use the Vendor's and Order Fulfiller's name and logo in the promotion of the Contract to communicate the availability of products and services under the Contract to Custorners. Use of the logos may be on the DIR website or on printed materials. Any use of Vendor's and Order Fulfiller's logo by DIR must comply with and be solely related to the purposes of the Contract and any usage guidelines communicated to DIR from time to time. Nothing contained in the Contract will give DIR any right, title, or interest in or to Vendor's or Order Fulfiller' trademarks or the goodwill associated therewith, except for the limited usage rights expressly provided by Vendor and Order Fulfiller. H. Trade Show Participation At D.IR's discretion, Vendor and Order Fulfillers may be required to participate in one or more DIR sponsored trade shows each calendar year. Vendor understands and agrees that participation, at the Vendor's and Order Fulfiller's expense, includes providing a manned booth display or similar presence. DIR will provide four months advance notice of any required participation. Vendor and Order Fulfillers must display the DIR logo at all trade shows that potential Customers will attend. DIR reserves the right to approve or disapprove of the location or the use of the DIR logo in or on the Vendor's or Order Fulfiller's booth. L Orientation Meeting Upon thirty (30) calendar days from execution of the Contract, Vendor and Order Fulfillers will be required to attend an orientation meeting to discuss the content and procedures of the Contract. The meeting will be held within the Austin, Texas area at a date and time mutually acceptable to DIR and the Vendor. DIR shall bear no cost for the titne and travel of the Vendor or Order Fulfillers for attendance at the meeting. J. Performance Review Meetings DIR will require the Vendor to attend periodic meetings to review the Vendor's performance under the Contract. The meetings will be held within the Austin, Texas area at a date and time mutually acceptable to DIR and the Vendor. D1R shall bear no cost for 06/08/12 Page 7 of 22 Appendix A Standard Terms and Conditions For Product and Related Services Contracts the time and travel of the Vendor for attendance at the meeting. K. DIR Cost Avoidance As part of the performance measures reported to state leadership, DIR must provide the cost avoidance the State has achieved through the Contract. Upon request by DIR, Vendor shall provide DIR with a detailed report of a representative sample of products sold under the Contract. The report shall contain: product part number, product description, list price, price to Customer under the Contract, and pricing from three (3) alternative sources under which DIR customers can procure the products. 7. Purchase Orders, Invoices, and Payments A. Purchase Orders All Customer Purchase Orders will be placed directly with the Order Fulfiller. Accurate Purchase Orders shall be effective and binding upon Order Fulfiller when accepted by Order Fulfiller. B. Invoices 1) Invoices shall be submitted by the Order Fulfiller directly to the Customer and shall be issued in compliance with Chapter 2251, Texas Government Code. All payments for products and/or services purchased under the Contract and any provision of acceptance of such products and/or services shall be made by the Customer to the Order Fulfiller. 2) Invoices must be timely and accurate. Each invoice must match Customer's Purchase Order and include any written changes that may apply, as it relates to products, prices and quantities. Invoices must include the Customer's Purchase Order number or other pertinent information for verification of receipt of the product or services by the Customer. C. Payments Customers shall comply with Chapter 2251, Texas Government Code, in snaking payments to Order Fulfiller. The statute states that payments for goods and services are due thirty (30) days after the goods are provided, the services completed, or a correct invoice is received, whichever is later. Payment under the Contract shall not foreclose the right to recover wrongful payments. 8. Contract Administration A. Contract Administrators DIR and the Vendor will each provide a Contract Administrator to support the Contract. Information regarding the Contract Administrators will be posted on the Internet website designated for the Contract. 1) State Contract Administrator DIR shall provide a Contract Administrator whose duties shall include but not be limited to: i) supporting the marketing and management of the Contract, ii) advising DIR of Vendor's performance under the terms and conditions of the Contract, and iii) periodic verification of product pricing and monthly reports submitted by Vendor. 06/08/12 Page 8 of 22 Appendix A Standard Terms and Conditions For Product and Related Services Contracts 2) Vendor Contract Administrator Vendor shall provide a dedicated Contract Administrator whose duties shall include but not be limited to: i) supporting the marketing and management of the Contract, ii) facilitating dispute resolution between a Order Fulfiller and a Customer, and iii) advising DIR of Order Fulfillers performance under the terms and conditions of the Contract. DIR reserves the right to require a change in Vendor's then -current Contract Administrator if the assigned Contract Administrator is not, in the opinion of DIR, adequately serving the needs of the State. B. Reporting and Administrative Fees 1) Reporting Responsibility a) Vendor shall be responsible for reporting all products and services purchased through Order Fulfillers under the Contract. Vendor shall file the monthly reports, subcontract reports, and pay the administrative fees in accordance with the due dates specified in this section. b) D1R shall have the right to verify required reports and to take any actions necessary to enforce its rights under this section, including but not limited to, compliance checks of Vendor's applicable Contract books at DIR's expense. 2) Detailed Monthly Report Vendor shall electronically provide DIR with a detailed monthly report in the format required by DIR showing the dollar volume of any and all sales under the Contract for the previous month period. Reports shall be submitted to the DIR ICT Cooperative Contracts E -Mail Box at ict.sales@dir.texas.gov. Reports are due on the • fifteenth (15t) calendar day after the close of the previous month period. It is the responsibility of Vendor to collect and compile all sales under the Contract from participating Order Fulfillers and submit one (1) monthly report. The monthly report shall include, per transaction: the detailed sales for the period, the Order Fulfiller's company name, if applicable, Customer name, invoice date, invoice number, description, part number, manufacturer, quantity, unit price, extended price, Customer Purchase Order number, contact name, Customer's complete billing address, and other information as required by DIR. Each report must contain all information listed above per transaction or the report will be rejected and returned to the Vendor for correction in accordance with this section. 3) Historically Underutilized Businesses Subcontract Reports a) Vendor shall electronically provide each Customer with their relevant Historically Underutilized Business Subcontracting Report, pursuant to the Contract, as required by Chapter 2161, Texas Government Code, Reports shall also be submitted to DIR. b) Reports shall be due in accordance with the CPA rules. 4) DIR Administrative Fee a) An administrative fee shall be paid by Vendor to DIR to defray the DIR costs of negotiating, executing, and administering the Contract. The 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 06/08/12 Page 9 of 22 Appendix A Standard Terms and Conditions For Product and Related Services Contracts fifteenth (15th) calendar day after the close of the previous month period. DIR may change the amount of the administrative fee upon thirty (30) days written notice to Vendor without the need for a formal contract amendment. b) Vendor shall reference the DIR Contract number on any remittance instruments. 5) Accurate and Timely Submission of Reports a) The reports and administrative fees shall be accurate and timely and submitted in accordance with the due dates specified in this section. Vendor shall correct any inaccurate reports or administrative fee payments within three (3) business days upon written notification by DIR. Vendor shall deliver any late reports or late administrative fee payments within three (3) business days upon written notification by DIR. If Vendor is unable to correct inaccurate reports or administrative fee payments or deliver late reports and fee payments within three (3) business days, Vendor must contact DIR and provide a corrective plan of action, including the timeline for completion of correction. The corrective plan of action shall be subject to DIR approval. b) Should Vendor fail to correct inaccurate reports or cure the delay in timely delivery of reports and payments within the corrective plan of action timeline, DIR reserves the right to require an independent third party audit of the Vendor's records as specified in C.3 of this Section, at DIR's expense. c) Failure to timely submit three (3) reports within any rolling twelve (12) month period may, at D1R's discretion, result in termination of Vendor's Contract. C. Records and Audit 1) Acceptance of funds under the Contract by Vendor and/or Order Fulfiller acts as acceptance of the authority of the State Auditor's Office, or any successor agency, to conduct an audit or investigation in connection with those funds. Vendor further agrees to cooperate fully with the State Auditor's Office or its successor in the conduct of the audit or investigation, including providing all records requested. Vendor will ensure that this clause concerning the authority to audit funds received indirectly by subcontractors through Vendor or directly by Order Fulfillers and the requirement to cooperate is included in any subcontract or Order Fulfiller contract it awards pertaining to the Contract. Under the direction of the Legislative Audit Committee, a Vendor that is the subject of an audit or investigation by the State Auditor's Office must provide the State Auditor's Office with access to any information the State Auditor's Office considers relevant to the investigation or audit. 2) Vendor and Order Fulfillers shall maintain adequate records to establish compliance with the Contract until the later of a period of four (4) years after termination of the Contract or until fill, final and unappealable resolution of all Compliance Check or litigation issues that arise under the Contract. Such records shall include per transaction: the Order Fulfiller's company name if applicable, Customer name, invoice date, invoice number, description, part number, manufacturer, quantity, unit price, extended price, Customer Purchase Order number, contact name, Customer's complete billing address, the calculations supporting each 06/08/12 Page 10 of 22 Appendix A Standard Terms and Conditions For Product and Related Services Contracts 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 shalt 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, D1R 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. D1R shall provide Vendor andlor 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 Vendor is found to be responsible for inaccurate reports, D1R may invoice for the reasonable costs of the audit, which Vendor must pay within thirty (30) clays of receipt. 4) For procuring State Agencies whose payments are processed by the Texas Comptroller of Public Accounts, the voluine of payments made to Order Fulfillers through the Texas Comptroller of Public Accounts and the administrative fee based thereon shall be presumed correct unless Vendor can demonstrate to DIR's satisfaction that Vendor's calculation of DIR's administrative fee is correct. D. Contract Administration Notification 1) Upon execution of the Contract, Vendor shall provide DIR with written notification of the following: i) Vendor Contract Administrator name and contact information, ii) Vendor sales representative name and contact information, and iii) name and contact information of Vendor personnel responsible for submitting reports and payment of administrative fees specified herein. 2) Upon execution of the Contract, DIR ,shall provide Vendor with written notification of the following: i) DIR Contract Administrator name and contact information, and ii) DIR ICT Cooperative Contracts E -Mail Box information. 9. Vendor Responsibilities A. Indemnification 1) Acts or Omissions Vendor shall indemnify and hold harmless the State of Texas and Customers, AND/OR THEIR OFFICERS, AGENTS, EMPLOYEES, REPRESENTATIVES, CONTRACTORS, ASSIGNEES, AND/OR DESIGNEES FROM AND AGAINST 06/08/12 Page I 1 of 22 Appendix A Standard Terms and Conditions For Product and Related Services Contracts ANY AND ALL LIABILITY, ACTIONS, CLAIMS, DEMANDS, OR SUITS, AND ALL RELATED COSTS, ATTORNEY FEES, AND EXPENSES arising out of, or resulting from any acts or omissions of the Vendor or its agents, employees, subcontractors, Order Fulfillers, or suppliers of subcontractors in the execution or performance of the Contract and any Purchase Orders issued under the Contract REGARDLESS OF THE NEGLIGENCE OF THE CUSTOMER, THE STATE OF TEXAS AND/OR THEIR EMPLOYEES, AGENTS, REPRESENTATIVES, CONTRACTORS, ASSIGNEES, AND/OR DESIGNEES. VENDOR SHALL PAY ALL COSTS OF DEFENSE INCLUDING ATTORNEYS FEES. THE DEFENSE SHALL BE COORDINATED BY THE OFFICE OF THE A'TTORNE'Y GENERAL FOR TEXAS STATE AGENCIES AND BY CUSTOMER'S LEGAL COUNSEL FOR NON -STATE AGENCY CUSTOMERS. 2) Infringements a) Vendor shall indemnify and hold harmless the State of Texas and Customers, AND/OR THEIR EMPLOYEES, AGENTS, REPRESENTATIVES, CONTRACTORS, ASSIGNEES, AND/OR DESIGNEES, from any and all third party claims involving infringement of United States patents, copyrights, trade and service marks, and any other intellectual or intangible property rights in connection with the PERFORMANCES OR ACTIONS OF VENDOR PURSUANT TO THIS CONTRACT. VENDOR AND THE CUSTOMER AGREE TO FURNISH TIMELY WRITTEN NOTICE TO EACH OTHER OF ANY SUCH CLAIM. VENDOR SHALL BE LIABLE TO PAY ALL COSTS OF DEFENSE INCLUDING ATTORNEYS' FEES. THE DEFENSE SHALL BE COORDINATED BY THE OFFICE OF THE ATTORNEY GENERAL FOR TEXAS STATE AGENCY CUSTOMERS AND BY CUSTOMER'S LEGAL COUNSEL FOR NON -STATE AGENCY CUSTOMERS. b) If Vendor becomes aware of an actual or potential claim, or Customer provides Vendor with notice of an actual or potential claim, Vendor may (or in the case of an injunction against Customer, shall), at Vendor's sole option and expense: (i) procure for the Customer the right to continue to use the affected portion of the product or service, or (ii) modify or replace the affected portion of the product or service with functionally equivalent or superior product or service so that Customer's use is non - infringing. 3) Independent Contractor VENDOR AGREES AND ACKNOWLEDGES THAT DURING THE EXISTENCE OF THIS CONTRACT, IT IS FURNISHING SERVICES IN THE CAPACITY OF AN INDEPENDENT CONTRACTOR AND THAT VENDOR IS NOT AN EMPLOYEE OF THE CUSTOMER, DIR OR THE STATE OF TEXAS. B. Taxes/Worker's Compensation/UNEMPLOYMENT INSURANCE 1) VENDOR AGREES AND ACKNOWLEDGES THAT DURING THE EXISTENCE OF THIS CONTRACT, VENDOR SHALL BE ENTIRELY RESPONSIBLE FOR THE LIABILITY AND PAYMENT OF VENDOR'S AND 06/08/12 Page 12 of 22 Appendix A Standard Terms and Conditions For Product and Related Services Contracts VENDOR'S EMPLOYEES' TAXES OF WHATEVER KIND, ARISING OUT OF THE PERFORMANCES IN THIS CONTRACT. VENDOR AGREES TO COMPLY WITH ALL STATE AND FEDERAL LAWS APPLICABLE TO ANY SUCH PERSONS, INCLUDING LAWS REGARDING WAGES, TAXES, INSURANCE, AND WORKERS' COMPENSATION. VENDOR AGREES AND ACKNOWLEDGES THAT VENDOR ITS EMPLOYEES, REPRESENTATIVES, AGENTS OR SUBCONTRACTORS SHALL NOT BE ENTITLED TO ANY STATE BENEFIT OR BENEFIT OF ANOTHER GOVERNMENTAL ENTITY CUSTOMER. THE CUSTOMER AND/OR THE STATE SHALL NOT BE LIABLE TO THE VENDOR ITS EMPLOYEES, AGENTS, OR OTHERS FOR THE PAYMENT OF TAXES OR THE PROVISION OF UNEMPLOYMENT INSURANCE AND/OR WORKERS' COMPENSATION OR ANY BENEFIT AVAILABLE TO A STATE EMPLOYEE OR EMPLOYEE OF ANOTHER GOVERNMENTAL ENTITY CUSTOMER. 2) VENDOR AGREES TO INDEMNIFY AND HOLD I•IARIv1LESS CUSTOMERS, THE STATE OF TEXAS AND/OR THEIR EMPLOYEES, AGENTS, REPRESENTATIVES, CONTRACTORS, ASSIGNEES, AND/OR DESIGNEES FROM ANY AND ALL LIABILITY, ACTIONS, CLAIMS, DEMANDS, OR SUITS, AND ALL RELATED COSTS, ATTORNEY FEES, AND EXPENSES, RELATING TO TAX LIABILITY, UNEMPLOYMENT INSURANCE AND/OR WORKERS' COMPENSATION OR EXPECTATIONS OF BENEFITS BY VENDOR, ITS EMPLOYEES, REPRESENTATIVES, AGENTS OR SUBCONTRACTORS IN ITS PERFORMANCE UNDER THIS CONTRACT. VENDOR SHALL BE LIABLE TO PAY ALL COSTS OF DEFENSE INCLUDING ATTORNEYS' FEES. THE DEFENSE SHALL BE COORDINATED BY THE OFFICE OF 'I'HE ATTORNEY GENERAL FOR TEXAS STATE AGENCY CUSTOMERS AND BY CUSTOMER'S LEGAL COUNSEL FOR NON -STATE AGENCY CUSTOMERS. C. Vendor Certifications Vendor certifies on behalf of Vendor and its designated Order Fulfillers that they: (1) have not given, offered to give, and do not intend to give at any time hereafter any economic opportunity, future employment, gift, loan, gratuity, special discount, trip, favor, or service to a public servant in connection with the Contract; (ii) are not currently delinquent in the payment of any franchise tax owed the State of Texas and are not ineligible to receive payment under §231.006 of the Texas Family Code and acknowledge the Contract may be terminated and payment withheld if this certification is inaccurate; (iii) neither they, nor anyone acting for them, have violated the antitrust laws of the United States or the State of Texas, nor communicated directly or indirectly to any competitor or any other person engaged in such line of business for the purpose of obtaining an unfair price advantage; (iv) have not received payment from DIR or any of its employees for participating in the preparation of the Contract; 06/08/12 Page 13 01 22 Appendix A Standard Terms and Conditions For Product and Related Services Contracts (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 1113224, "Blocking Property and Prohibiting Transactions with Persons Who Conmrit, Threaten to Con»nit, 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 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 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; (xiii) represent and warrant that the Customer's payment and their receipt of appropriated or other funds under this Agreement are not prohibited by Sections 556.005 or Section 556.008, Texas Government Code; (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 06/08/12 Page 14 of 22 Appendix A Standard Terms and Conditions For Product and Related Services Contracts (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). D. Ability to Conduct Business in Texas Vendor and its Order Fulfiller shall be authorized and validly existing under the laws of its state of organization, and shall be authorized to do business in the State of Texas. E. Equal Opportunity Compliance Vendor agrees to abide by all applicable laws, regulations, and executive orders pertaining to equal employment opportunity, including federal laws and the laws of the State in which its primary place of business is located. In accordance with such laws, regulations, and executive orders, the Vendor agrees that no person in the United States shall, on the grounds of race, color, religion, national origin, sex, age, veteran status or handicap, be excluded from employment with or participation in, be denied the benefits of, or be otherwise subjected to discrimination under any program or activity performed by Vendor under the Contract. If Vendor is found to be not in compliance with these requirements during the term of the Contract, Vendor agrees to take appropriate steps to correct these deficiencies. Upon request, Vendor will furnish information regarding its nondiscriminatory hiring and promotion policies, as well as specific information on the composition of its principals and staff, including the identification of minorities and women in management or other positions with discretionary or decision-making authority. 1?. Use of Subcontractors If Vendor uses any subcontractors in the performance of this Contract, Vendor must make a good faith effort in the submission of its Subcontracting Plan in accordance with the State's Policy on Utilization of Historically Underutilized Businesses. A revised Subcontracting Plan shall be required before Vendor can engage additional subcontractors in the performance of this Contract. Vendor shall remain solely responsible for the performance of its obligations under the Contract. G. Responsibility for Actions 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. 06/08/12 Page 15 of 22 Appendix A Standard Terms and Conditions For Product and Related Services Contracts 2) Vendor, for itself and on behalf of its subcontractors, shall report to DIR promptly when the disclosures under Item 18 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. H. Confidentiality 1) Vendor acknowledges that DIR and Customers that are state agencies are government agencies subject to the Texas Public Information Act. Vendor also acknowledges that DIR and Customers that are state agencies will comply with the Public information Act, and with all opinions of the Texas Attorney General's office concerning this Act. 2) Under the terms of the Contract, DIR may provide Vendor with information related to Customers. Vendor shall not re -sell or otherwise distribute or release Customer information to any party in any manner. L Security of Premises, Equipment, Data and Personnel Vendor and/or Order Fulfiller may, from time to time during the performance of the Contract, have access to the personnel, premises, equipment, and other property, including data, files and /or materials (collectively referred to as "Data") belonging to the Customer. Vendor and/or Order Fulfiller shall use their best efforts to preserve the safety, security, and the integrity of the personnel, premises, equipment, Data and other property of the Customer, in accordance with the instruction of the Customer. Vendor and/or Order Fulfiller shall be responsible for damage to Customer's equipment, workplace, and its contents when such damage is caused by its employees or subcontractors. If a Vendor and/or Order Fulfiller fails to comply with Customer's security requirements, then Customer may immediately terminate its Purchase Order and related Service Agreement. 3. Background and/or Criminal History Investigation Prior to commencement of any services, background and/or criminal history investigation of the Vendor and/or Order Fulfiller's employees and subcontractors who will be providing services to the Customer wider the Contract may be performed by certain Customers having legislative authority to require such investigations. Should any employee or subcontractor of the Vendor and/or Order Fulfiller who will be providing services to the Customer under the Contract not be acceptable to the Customer as a result of the background and/or criminal history check, then Customer may immediately terminate its Purchase Order and related Service Agreement or request replacement of the employee or subcontractor in question. K. Limitation of Liability For any claim or cause of action arising under 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 punitive, special, or consequential damages, even if it is advised of the possibility of such damages; and ii) Vendor's liability for damages of any kind to the Customer shall be limited to the total amount paid to Vendor under the Contract during the twelve months immediately preceding the accrual of the claim or cause of 06/08/12 Page 16 of 22 Appendix A Standard Terris and Conditions For Product and Related Services Contracts action. However, this limitation of Vendor's liability shall not apply to claims of patent, trademark, or copyright infringement. L. Overcharges Vendor hereby assigns to DIR any and all of its claims for overcharges associated with this contract which arise under the antitrust laws of the United States, 15 U.S.C.A. Section I, et seq., and which arise under the antitrust laws of the State of Texas, Tex. Bus. and Cotnm. Code Section 15.01, et seq. M. Prohibited Conduct Vendor represents and warrants that, to the best of its knowledge as of the date of this certification, neither Vendor nor any Order Fulfiller, subcontractor, firm, corporation, partnership, or institution represented by Vendor, nor anyone acting for such Order Fulfiller, subcontractor, firm, corporation or institution has: (1) violated the antitrust laws of the State of Texas under Texas Business & Commerce Code, Chapter 15, or the federal antitrust laws; or (2) communicated its response to the Request for Offer directly or indirectly to any competitor or any other person engaged in such line of business during the procurement for the Contract. N. Required Insurance Coverage 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, 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. 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) 30 -day Notice of Termination in favor of DIR and/or Customer; and 06/08/12 Page 17 of 22 Appendix A Standard Terms and Conditions For Product and Related Services Contracts 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 limi)s for Employers' Liability of $250,000 bodily injury per accident, $500,000 bodily injury disease policy limit and $250,000 per disease per employee. 3) Business Automobile Liability Insurance Business Automobile Liability Insurance must cover all owned, non -owned and hired vehicles with a minimum combined single limit of $500,000 per occurrence for bodily injury and property damage. Alternative acceptable limits are $250,000 bodily injury per person, $500,000 bodily injury per occurrence and at least $100,000 property damage liability per accident. The policy shall contain the following endorsements in favor of DIR and/or Customer: a) Waiver of Subrogation; b) 30 -day Notice of Termination; and e) Additional Insured. O. Use of State Property Vendor is prohibited from using the Customer's equipment, the Customer's Location, or any other resources of the Customer or the State of Texas for any purpose other than performing services under this Agreement. For this purpose, equipment includes, but is not limited to, copy machines, computers and telephones using State of Texas long distance services. Any charges incurred by Vendor using the Customer's equipment for any purpose other than performing services under this Agreement must be fully reimbursed by Vendor to the Customer immediately upon demand by the Customer. Such use shall constitute breach of contract and may result in termination of the contract and other remedies available to DIR and Customer under the contract and applicable law. P. Immigration Vendor shall comply with all requirements related to federal immigration laws and regulations, to include but not be limited to, the Immigration and Reform Act of 1986, the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA") and the Immigration Act of 1990 (8 U.S.C.1101, et seq.) regarding employment verification and retention of verification forms for any individual(s) hired on or after the effective date of the 1996 Act who will perform any labor or services under this Contract. Nothing herein is intended to exclude compliance by Vendor with all other relevant federal immigration statutes and regulations promulgated pursuant thereto. Q. Public Disclosure No public disclosures or news releases pertaining to this contract shall be made without prior written approval of DIR. 06/08/12 Page 18 of 22 Appendix A. Standard Terms and Conditions For Product and Related Services Contracts R. Product and/or Services Substitutions Substitutions are not permitted without the written permission of DIR or Customer. S. Secure Erasure of Hard Disk Products and/or Services Vendor agrees that all products and/or services equipped with hard disk drives (i.e. computers, telephones, printers, fax machines, scanners, multifunction devices, etc.) shall have the capability to securely erase data written to the hard drive prior to final disposition of such products and/or services, either at the end of the Customer's Managed Services product's useful life or the end of the related Customer Managed Services Agreement for such products and/ services, in accordance with I TAC 202. T. Deceptive Trade Practices; Unfair Business Practices a) Vendor represents and warrants that neither Vendor nor any of its Subcontractors has been (i) found liable in any administrative hearing, litigation or other proceeding of Deceptive Trade Practices violations as defined under Chapter 17, Texas Business & Commerce Code, or (11) has outstanding allegations of any Deceptive Trade Practice pending in any administrative hearing, litigation or other proceeding. b)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. U. Drug Free Workplace Policy The contractor shall comply with the applicable provisions of the Drug -Free Work Place Act of 1988 (Public Law 100-690, Title V, Subtitle D; 41 U.S.C. 701 ET SEQ.) and maintain a drug-free work environment; and the final rule, government -wide requirements for drug-free work place (grants), issued by the Office of Management and Budget and the Department of Defense (32 CFR. Part 280, Subpart F) to implement the provisions of the Drug -Free Work Place Act of 1988 is incorporated by reference and the contractor shall comply with the relevant provisions thereof, including any amendments to the final rule that may hereafter be issued. 10. Contract Enforcement A. Enforcement of Contract and Dispute Resolution 1) Vendor and DIR agree to the following: (i) a party's failure to require strict performance of any provision of the Contract shall not waive or diminish that party's right thereafter to demand strict compliance with that or any other provision, (11) for disputes not resolved in the normal course of business, the dispute resolution process provided for in Chapter 2260, Texas Government Code, shall be used, and (iii) actions or proceedings arising from the Contract shall be heard in a state court of competent jurisdiction in Travis County, Texas. 2) Disputes arising between a Customer and the Vendor shall be resolved in accordance with the dispute resolution process of the Customer that is not 06/08/12 Page 19 of 22 Appendix A Standard Terms and Conditions For Product and Related Services Contracts inconsistent with subparagraph A.i above. DER shall not be a party to any such dispute unless DIR, Customer, and Vendor agree in writing. B. Termination 1) Termination for Non -Appropriation a) Termination for Non -Appropriation by Customer Customer may terminate Purchase Orders if funds sufficient to pay its obligations under the Contract are not appropriated: i) by the governing body on behalf of. local governments; ii) by the Texas legislature on behalf of state agencies; or 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. b) Termination for Non -Appropriation. by DIR DIR may terminate Contract if funds sufficient to pay its obligations under the Contract are not appropriated: by the i) Texas legislature or ii) by budget execution authority provisioned to the Governor or the Legislative Budget Board as provided in Chapter 317, Texas Government Code. In the event of non - appropriation, Vendor and/or Order Fulfiller will be provided thirty (30) calendar days written notice of intent to terminate. In the event of such termination, DIR will not be considered to be in default or breach under this Contract, nor shall it be liable for any further payments ordinarily due under this Contract, nor shall it be liable for any damages or any other amounts which are caused by or associated with such termination. 2) Absolute Right 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 1113224, "Blocking Property and Prohibiting Transactions with Persons J'Vho Commit, Threaten to Commit, or Support Terrorism", published by the United States Department of the Treasury, Office of Foreign Assets Control; ii) Vendor becomes suspended or debarred from doing business with the federal government as listed in the Excluded. Parties List System (EPLS) maintained by the General Services Administration; or (iii) Vendor is found by DIR to be ineligible to hold this Contract under Subsection (b) of Section 2155.006, Texas Government Code. Vendor shall be provided written notice in accordance with Section 11.A, Notices, of intent to terminate. 06/08/12 Page 20 of 22 Appendix A Standard Terms and Conditions For Product and Related Services Contracts 3) Termination for Convenience DIR may terminate the Contract, in whole or in part, by giving the other patty thirty (30) calendar days written notice. A Customer may terminate a Purchase Order if it is determined by the Customer that Order Fulfiller will not be able to deliver product or services in a titnely manner to meet the business needs of the Customer. 4) Termination for Cause a) Contract Either DIR or Vendor may issue a written notice of default to the other upon the occurrence of a material breach of any covenant, warranty or provision of the Contract, upon the following preconditions: first, the parties must comply with the requirements of Chapter 2260, Texas Government Code in an attempt to resolve a dispute; second, after complying with Chapter 2260, Texas Government Code, and the dispute remains unresolved, then the non -defaulting party shall give the defaulting party thirty (30) calendar days from receipt of notice to cure said default. If the defaulting party fails to cure said default within the timeframe allowed, the non -defaulting party may, at its option and in addition to any other remedies it may have available, cancel and terminate the Contract. Customers purchasing products or services under the Contract have no power to terminate the Contract for default. b) Purchase Order Customer or Order Fulfiller may terminate a Purchase Order upon the occurrence of a material breach of any term or condition: (1) of the Contract, or (ii) included in the Purchase Order in accordance with Section 4.B.2 above, upon the following preconditions: first, the parties must comply with the requirements of Chapter 2260, Texas Government Code, in an attempt to resolve a dispute; second, after complying with Chapter 2260, Texas Government Code, and the dispute retrains 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 faits to cure said default within the timeframe allowed, the non -defaulting party may, at its option and in addition to any other remedies it may have available, cancel and terminate the Purchase Order, 5) Customer Rights Under Termination In the event the Contract expires or is terminated for any reason, a Customer shalt retain its rights under the Contract and the Purchase Order issued prior to the termination or expiration of the Contract. The Purchase Order survives the expiration or termination of the Contract for its then effective term. 6) Vendor or Order Fulfiller Rights Under Termination In the event a Purchase Order expires or is terminated, a Customer shall pay: 1) all amounts due for products or services ordered prior to the effective termination date and ultimately accepted, and 2) any applicable early termination fees agreed to in such Purchase Order. 06/08/12 Page 21 of 22 Appendix A Standard Terms and Conditions For Product and Related Services Contracts C. Force Majeure DIR, Customer, or Order Fulfiller may be excused from performance under the Contract for any period when performance is prevented as the result of an act of God, strike, war, civil disturbance, epidemic, or court order, provided that the party experiencing the event of Force Majeure has prudently and promptly acted to take any and all steps that are within the party's control to ensure performance and to shorten the duration of the event of Force Majeure. The party suffering an event of Force Majeure shall provide notice of the event to the other parties when commercially reasonable. Subject to this provision, such non-performance shall not be deemed a default or a ground for termination. However, a Customer may terminate a Purchase Order if it is determined by the Customer that Order Fulfiller will not be able to deliver product or services in a timely manner to meet the business needs of the Customer. 11. Notification A. Notices All notices, demands, designations, certificates, requests, offers, consents, approvals and other instruments given pursuant to the Contract shalt be in writing and shall be validly given on: (i) the date of delivery if delivered by email, facsimile transmission, mailed by registered or certified mail, or hand delivered, or (ii) three business days after being mailed via United States Postal Service. All notices under the Contract shall be sent to a party at the respective address indicated in Section 6 of the Contract or to such other address as such party shall have notified the other party in writing. B. Handling of Written Complaints In addition to other remedies contained in the Contract, a person contracting with DIR may direct their written complaints to the following office: Public Information Office Department of Information Resources Attn: Public Information Officer 300 W. 15`x' Street, Suite 1300 Austin, Texas 78701 (512) 475-4759, facsimile 12. Captions The captions contained in the Contract, Appendices, and its Exhibits are intended for convenience and reference purposes only and shall in no way be deemed to define or limit any provision thereof. 06/08/12 Page 22 of 22 Appendix B Historically Underutilized Business (HUB) Subcontracting Plan Su; :C NTRACT1NG PLAN (HSP) In accordance with Texas Govt Code §2161.252, the contracting agency has determined that subconiracling opportunities are probable under this contract. Therefore, all respondents, including Stale of Texas certified Historically Underutilized Businesses (HUBs) must complete and submit this Stale of Texas HUB Subcontracting Plan (HSP) with their response to the bid requisition (solicitation). NOTE: Responses that do not include a completed HSP shall be rejected pursuant to Texas Gov't Code §2161.252(b). The HUB Program promotes equal business opportunities for economically disadvantaged persons to contract with the Slate of Texas fn accordance with the goals specified in the 2009 Stale of Texas Disparity Study. The statewide HUB goals defined to 34 Texas Administrative Code (TAC) §20.13 are: • 11.2 percent for heavy construction other than building contracts, • 21.1 percent for all building construction, including general contractors and operative builders contracts, • 32.7 percent for all special trade construction contracts, • 23.6 percent for professional services contracts, • 24.6 percent for all other services contracts, and • 21 percent for commodities contracts. - - Agency Special Instructions!Additional Requirements - In accordance with 34 TAC §20.14(d)(1)(D)(t11), a respondent (prime contractor) may demonstrate good faith effort to utilize Texas certified HUBs for its subcontracting opportunities if the total value of the respondent's subcontracts with Texas certified HUBs meets or exceeds the statewide HUB goal or the agency specific HUB goal, whichever is higher. When a respondent uses this method to demonstrate good faith effort, the respondent must identify the HUBs with which it will subcontract. If using existing contracts with Texas certified HUBs to satisfy This requirement, only contracts that have been in place for five years or less shalt qualify for meeting the HUB goal. This limitation Is designed to encourage Vendor rotation as recommended by the 2009 Texas Disparity Study. For assistance in completing the FISP, contact the HUB Coordinator, Bernadette Davis at bernadette.davis(7i dir.texas.Rov . WOW RESPONDENrAND REQUISITION INFORMATION a. Respondent (Company) Name: Entech Sales & Service Point of Contact: Eric Robb State of Texas VID fl: 3711076516 Phone ft: 512.719.5191 E-mail Address: erobb@entechsales.com Fax 0: 512719.5192 b. Is your company a State of Texas certified HUB? c. Requisition 11: DIR-SDD TMP -189 ❑-Yes ®-No Bid Open Dale: 9 1 28 12012 2 Enter your company's name here: Entech Sales & Service Requisition ft: DIR-SDD-TMP-189 1 RtIktroUfil After dividing the contract work Into reasonable Tots or portions to the extent consistent with prudent industry practices, and taking into consideration the scope of work 10 be performed under the proposed contract, including all potential subcontracting opportunities, the respondent must determine what portions of work, including goods and services, will be subcontracted. Note: In accordance with 34 TAC §20.11., an 'Subcontractor means a person who contracts with a prime contractor to work, to supply commodities, or to contribute toward completing work for a governmental entity. a, Check the appropriate box (Yes or No) that identifies your subcontracting intentions: 0 - Yes, I will be subcontracting portions of the contract. (If Yes, complete Item b, of this SECTION and continue to Item c of this SECTION.) [xJ - No, l will not be subcontracting any portion of the contract, and I will be fulfilling the entire contract with my own resources. (11 No, continue to SECTION 3.) b. List all the portions of work (subcontracting opportunities) you will subcontract. Also, based on the total value of the contract, identify the percentages of the contract you expect to award to Texas certified HUBs, and the percentage of the contract you expect to award to Vendors that are not a Texas certified HUB (Le., Non -HUB). SUBCONTRACTING INTENTIONS Item # Subcontracting Opportunity Description HUBS Non•HUBs Percentage of (lie contract expected to be subcontracted to HUBS with which you have had contracts fa ptaco for fivef51years orless. Percentage of the contract expected to be subcontracted to HUBS with which you have had contracts in place for more than fivef5fyoars. percentage of the contract expected lobe subcontracted to non•HUBs . 1 0% 0%, 0% 2 % % 1 3 % A 6 4 % % 5 h / / 6 % 7 % 0 % 8 Yo % % 9 % e/ o/, 10 % % 11 yo % % 12 % 13 I h 1 14 /° oto % 15 % % 1 Aggregate percentages of Uro contract expected to be subcontracted: % % , r Note: you have more than fifteen subcontracting opportuniUes, a conlinuation sheet Is available online al hltpJIwiindow.s(ate.lx,us Om c. Check the appropriate box (Yes or No) that indicates whether you will be using only Texas certified HUBs to perform all of the subcontracting opportunities you listed in SECTION 2, Item b. ❑ - Yes (If Yes, continue to SECTION 4 and complete an 1 -ISP Good Faith Effort - Method A (Attachment A)' for each of the subcontracting opportunities you listed.) 0 - No (II No, continue to Item d, of this SECTION.) d. Check the appropriate box (Yes or No) that indicates whether the aggregate expected percentage of the contract you will subcontract with Texas certified HUBS with which you have had contracts in place with for five (5) years or less meets or exceeds the HUB goal the contracting agency identified on page 1 in the 'Agency Special Instructions/Additional Requirements". [) - Yos (If Yes, continue to SECTION 4 and complete an 'HSP Good Faith Effort- Method A (Attachment AT for each of the subcontracting opportunities you listed.) 3 ❑ - No If No, continue to SECTION 4 and corn ate an 'HSP Good Faith Effort- Method B Attachment B for each of the subcontracting opportunities you listed.) Enter your company's name here: Requisition ti: ;�_SEGTIQ�l�2K SUBCONTRACTING INTENTIONS (CONTINUATION SHEET) a. Thls page can be used as a continuation sheet to the HSP Form's page 2, SECTION 2, Item b. Continue listing the portions of work (subcontracting opportunities) you will subcontract. Also, based on the total value of the contract, Identify the percentages of the contract you expect to award to Texas certified HUBs, and the percentage of the contract you expect to award lo Vendors That are not a Texas certified HUB (i.e., Non -HUB). Item II Subcontracting Opportunity Description HUBS tlon•HUBs Percentage of the contract expected to be subcontracted to HUBS with which you have had contracts In place for five I51 years or less. Percentage of the contract expected to be subcontracted to HUBS with which you have had contracts in place for more than five 151 years. Percentage of the contract expected to be subcontracted to non•HUBa . ' % % e/ n % % % % % % % % % % '/ % % % % % % % % % % % % % % % % 3/4 % % '/ % % % % % % % % % % % '/ ° % % % ' % % % % % % % % % % ' % % '/ % % Aggregate percentages of the contract expected to be subcontracted: •% % % HSP — SECTION 2 (Continuation Sheet) tfS�l'T..IO(V;3;s�; SELF PERFORMING JUSTIFICATION (If you responded "No" to SECTION 2, Item a, you must complete this SECTION and continue to SECTION Check the appropriate box (Yes or No) that indicates whether your response/proposal contains an explanation demonstrating how your company will fulfill the entire contract with its own resources. © - Yes (If Yes, In the space provided below list the specific page(s)fsection(s) of your proposal which explains how your company will perform the entire contract with its own equipment, supplies, materials and/or employees.) ❑ - No (It No, in the space provided below explain how your company will perform the entire contract with its own equipment, supplies, materials and/or employees.) Entech is a full service provider of parts and service installation for security. Entech can fulfill all parts of this contract internally. Entech has worked with HUB contractors In the past and shall pursue any and all opportunities for HUB participation if the opportunity arises. AFFIRMATION As evidenced by my signature below, I affirm that I am an authorized representative of the respondent listed in SECTION 1, and that the information and supporting documentation submitted with the HSP Is True and correct. Respondent understands and agrees that, if awarded any portion of the requisition: • The respondent will provide notice as soon as practical to all the subcontractors (HUBs and Non -HUBS) of their selection as a subcontractor for the awarded conlracl, The notice must specify at a minimum the contracting agency's name and its point of contact for the contract, the contract award number, the subcontracting opportunity they (the subcontractor) will perform, the approximate dollar value of the subcontracting opportunity and the expected percentage of the total contract that the subcontracting opportunity represents. A copy of the notice required by this section must also be provided to the contracting agency's point of contact for the contract no later than ten (10) working days after the contract is awarded. • The respondent must submit monthly compliance reports (Prime Contractor Progress Assessment Report — PAR) to the contracting agency, verifying its compliance with the HSP. including the use of and expenditures made to its subcontractors (HUBs and Non-HUBs). (The PAR is available at htipJ/www.windowsfafe.lxus/procuremenUproq//rub/hub-forms/progressassessmenlrpt.xfs). • The respondent must seek approval from the contracting agency prior to making any modifications to its HSP, including the hiring of additional or different subcontractors and the termination of a subcontractor the respondent identified in its HSP. it the HSP is modified without the contracting agency's prior approval, respondent may be subject to any and all enforcement remedies available under the contract or otherwise available by law, up to and including debarment from all stale contracting. • The respondent must, upon request, allow the contracting agency to perform on-site reviews of the company's headquarters and/or worksite where services aro being performed and must provide documentation regarding staffing and other resources. Signature on File Eric Robb Account Manager 9127112 Signature Printed Name Title Dale REMIN DER: ➢ If you responded "Yes' to SECTION 2, Items c or d, you must complete an 'FISP Good Faith El fort - Method A (Attachment A)' for each of the subcontracting opportunities you listed in SECTION 2, Item b. > If you responded 'No' SECTION 2, Items c and d, you must complete an "HSP Good Faith Effort - Method B (Attachment B)' far each of the subcontracting opportunities you listed in SECTION 2, Item b. APPENDIX C, PRICING INDEX DIR-SDD-2218 ENTECH SALES SERVICE, INC. =:f -''•' "i • :PRODUCTS Customer Discount % off NMSRP Continuum /Physical Security 60.00% Entech Kit Security Systems 20.00% ONSSIISurveillance Systems I6.00% SoftwareHouse/Physical Security 25.00% .-..:..... SERVICES Alarm Monitoring Services $30 monthly Field Level 1 Helper $43.00 Field Level 2 Installer $65.25 Logic Programmer $67.50 Software Technician $72.50 Communications Network Technician $92.50 Applications Designer $72.50 Project Manager/Superintendent $77.50 Service Technician $82.50 Training $80.00 SALES AND SERVICE Submitted to: City of Round Rock Access Control Scope. DIR-SDD-2218 Proposal # D110413 -ER Scope Proposal November 4, 2013 Scope of Work: This proposal is based upon replacement of the existing front end software and electronic access control panels. This will include a new front end Continuum Access Control System with web client for 2 licenses. Controllers equipped with Advanced Alarming Option. EPI Suite badging software included in this proposal. The system shall utilize a central server and communicate to 21 City of Round Rock buildings. Each building shall have a network level access controller or series of controllers to control and monitor 120 access points. 5 buildings currently have an interface with the access control system and the intrusion detection system. Continuum will pick this interface up to continue to have the ability to arm/disarm the system by using a valid credential. All existing equipment at the door shall be re -used. This shall include electronic door locks, request to exit function, door position sensors, card readers and cabling. City of Round Rock existing credentials/cards are compatible with the Continuum system and shall be re -used. Entech shall coordinate card user database transfer/data entry with Round Rock owner representative. This proposal shall include intrusion detection monitoring and fire panel monitoring initial set up and configuration of accounts and dispatch phone numbers. 5 intrusion sites and 12 fire monitored sites. Monitoring Service Agreements will be set up individually on an annual basis. Training is included in this proposal. Training would consist of initial system acceptance training and then a follow up training after 6 months of acceptance. • Proposal includes electronic copy of as-builts to include o panel layout and wiring diagrams o materials list o material data sheets o floor plan layout with devices Entech Sales 8, Service - An Employee Owned Company Building Automation, Security, Access, fire & CCTV Systems, HVAC Mechanical Services Rebuilt Equipment Sales, HVAC & Power Equipment Rentals EXHIBIT "B" I Fla"' SALES AND SERVICE Scope Proposal November 4, 2013 Project Pricing $210,581.00 Clarifications: • Conduit rough In at doors Is not Included in this proposal. • Central server provided by the city. Entech shall provide recommended specifications of server requirements. • All door hardware, lock power supplies and cabling are existing unless mentioned above. • Owner to provide network connection. • This proposal is based upon existing panels and wiring being in place when Entech performs the work. If panels are removed prior or cabling has been cut additional costs may occur. • Provide coordination with Owner for all testing, project review, and digital control commissioning of system. • All installation and equipment will be warranted for a 12 -month period from the date of acceptance of the project by the Owner. • Card user information shall be programmed by owner in coordination with Entech. • All sales tax and permits are excluded. • Performance bond is excluded from base price and is available as an add. I appreciate the opportunity to provide a cost proposal for this work and thank you for your interest in Entech Sales and Service. If you have any questions or if you need further assistance, please contact me at (5112) 719-5191. Respectfully Submitted, ENTECH SALES AND SERVICE, INC. Eric 3. Robb Account Manager Entech.Sales 8, Service - An Employee Owned Company Building Automation, Security, Access, Fire & CCTV Systems, HVAC Mechanical Services Rebuilt Equipment Sales, HVAC & Power Equipment Rentals 2 Crti SALES APJD SERVICE Submitted to: City of Round Rock Monitoring Services Annually DIR-SDD-2218 Proposal # D110413-EJR Scope Proposal November 4, 2013 Scope of work: Entech shall provide monitoring services for 5 City of Round Rock sites for intrusion detections systems and 12 sites for fire systems monitoring. Individual Monitoring Annual Agreement$360.00 17 monitoring accounts 5-ITD 12 -Fire Annually $6,120.00 Clarifications: • Owner to provide network/phone line connection. • This proposal is based upon existing panels and wiring being in place when Entech performs the work. If panels are removed prior or cabling has been cut additional costs may occur. • All sales tax and permits are excluded. • Performance bond is excluded from base price and is available as an add. I appreciate the opportunity to provide a cost proposal for this work and thank you for your interest in Entech .Sales and Service. If you have any questions or if you need further assistance, please contact me at (512) 719-5191. Respectfully Submitted, ENTECH SALES AND SERVICE, INC. Eric J. Robb Account Manager Entech Sales & Service - An Employee Owned Company Building Automation, Security, Access, Fire &.CCTV Systems, HVAC Mechanical Services Rebuilt Equipment Sales, HVAC & Power Equipment Rentals 1 erffecti SALES A iii D SERVICE Submitted to: Round Rock Police Department Access Control Scope DIR-SDD-2218 Proposal .# D110413 -DR -R2 Scope Proposal November 4, 2013 Scope of Work: Scope of work based upon. drawings and review of existing system design. The existing system currently has 117 doors, 2 auto gates under access control and 5 entries with push button release interface. This proposal is based upon replacement of the existing front end software and electronic access control panel controllers. This will include a new front end Continuum Access Control System with web client for 2 licenses. Controllers equipped with Advanced Alarming Option. EPI Suite badging software is included in this proposal and has integration with the Continuum system. This proposal includes the integration of Easy Lobby with Continuum. This to include Easy Lobby software license along with EL reader/scanner. Reader/scanner has the capability to scan drivers license, state ID, and passports. There are four spaces within the building that will be considered "man -traps". These will be accomplished through custom programming. The sequence is written so that one opening cannot be used unless the system recognizes the other opening to be secured. All existing equipment at the door shall be re -used. This is to include electronic door locks, request to exit function, door position sensors, card readers and cabling. One new electrified exit device shall be provided on entry/exit off loading dock. Two overhead door contacts shall be provided and installed in these two loading dock doors for status. Drive in bay, and two roll up doors entering evidence shall be equipped with overhead door status switches. Round Rock PD existing credentials/cards are compatible with the Continuum system and shall be re -used. Entech shall coordinate card user database transfer/data entry with. RRPD owner representative. Continuum workstation and server shall be provided by the owner. Entech to provide specifications on recommended equipment and licensing required. Entech Sales 8, Service - An Employee Owned Company Building Automation, Security, Access, Fire & CCTV Systems, HVAC Mechanical Services Rebuilt Equipment Sales, HVAC & Power Equipment Rentals 1 ergo ec SALES AND SERVICE ' _ -'' Scope Proposal November 4, 2013 Training is included in this proposal. Training would consist of initial system acceptance training and then a follow up training after 6 months of acceptance. • Man -Traps o Prosecutors office, Office, Evidence to Lab Property, Drive in Bay • The Continuum system is priced to integrate with the existing Easy Lobby visitor system. • Proposal includes electronic copy of as-builts to include o panel layout and wiring diagrams o materials list o material data sheets o floor plan layout with devices o man -trap sequence of operations Project Pricing 5214,036.00 Clarifications: • Conduit rough in at doors is not included in this proposal. • All door hardware, lock power supplies and cabling are existing unless mentioned above. Owner to provide network connection. • Provide coordination with Owner for all testing, project review, and digital control commissioning of system. • All installation and equipment will be warranted for a 12 -month period from the. date of acceptance of the project by the Owner. • Card user information shall be programmed by owner in coordination with Entech. • All sales tax and permits are excluded. • Performance bond is excluded from base price and is available as an add. I appreciate the opportunity to provide a cost proposal for this work and thank you for your interest in Entech Sales and Service. If you have any questions or if you need further assistance, please contact me at (512) 719-5191. Respectfully Submitted, ENTECH SALES AND SERVICE, INC. Eric J. Robb Account Manager Entech Sales & Service - An Employee Owned Company Building Automation, Security, Access, Fire & CCTV Systems, HVAC Mechanical Services Rebuilt Equipment Sales, HVAC & Power Equipment Rentals 2 ItKUXAS PURPOSE PASSION P0.O6PFARC City of Round Rock Agenda Item Summary Agenda Number: H.7 Title: Consider a resolution authorizing the Mayor to execute a Building Security Equipment Agreement with Entech Sales & Services, Inc. Type: Resolution Governing Body: City Council Agenda Date: 11/14/2013 Dept Director: Chad McDowell, General Services Director Cost: $424,617.00 Indexes: General Self -Financed Construction; Law Enforcement Fund Attachments: Resolution, Exhibit A Department: General Services Department Text of Legislative File 13-895 With this agreement we will be replacing the current security system within the City of Round Rock. Currently the City has Stanley Security Services and they are not performing to the contract. The evaluation team reached out to other entities and found Entech Security as the number one recommended provider. Currently Entech is servicing the City of Austin, Austin Police and all AT&T facilities. These proposals will be replacing the existing security like it is today. This system will be a one time purchase and will eliminate the month to month charge we are currently paying for our security. Cost: $424,617.00 Source of Funds: 214,036.00 LE funds and $210,581.00 General Self Construction Fund Staff recommends approval City of Round Rock Page 1 Printed on 11/12/2013 RECORDED DOCUMENT FOLLOW a } s t CITY OF ROUND ROCK AGREEMENT FOR BUILDING SECURITY EQUIPMENT WITH ENTECH SALES & SERVICE, INC. THE STATE OF TEXAS CITY OF ROUND ROCK COUNTY OF WILLIAMSON COUNTY OF TRAVIS KNOW ALL BY THESE PRESENTS: THAT THIS AGREEMENT for the purchase of security system building equipment, and for related goods (referred to herein as the "Agreement"), is made and entered into on this the (kit day of the month of November, 2013 by and between the CITY OF ROUND ROCK, a Texas home -rule municipality, whose offices are located at 221 East Main Street, Round Rock, Texas 78664-5299 (referred to herein as the "City"), and ENTECH SALES & SERVICES, INC., a Texas Corporation whose offices are located at 3404 Garden Brook, Dallas, Texas 75234 (referred to herein as "Entech"). RECITALS: WHEREAS, City desires to purchase certain deliverables, specifically, security system equipment to be installed in City -owned and City -occupied buildings and to purchase goods and services related to said equipment, and City desires to procure same from Entech; and WHEREAS, City is a member of the State Department of Information Resources ("DIR") and Entech Sales and Services, Inc. is an approved vendor of the DIR; and WHEREAS, City desires to purchase of certain goods and services from Entech as set forth herein; and WHEREAS, the parties desire to enter into this Agreement to set forth in writing their respective rights, duties, and obligations; NOW, THEREFORE, WITNESSETH: That for and in consideration of the mutual promises contained herein and other good and valuable consideration, the sufficiency and receipt of which are hereby acknowledged, it is mutually agreed between the parties as follows: 1.01 DEFINITIONS A. Agreement means the binding legal contract between City and Entech whereby City is obligated to buy specified goods and Entech is obligated to sell same. The Agreement 00286215/ss2 2.'t,-It includes the following: (a) State of Texas Department of Information Resources — Contract for Products and Related Services — Entech Sales & Services, Inc. (attached as Exhibit "A"); and (b) Entech's "Scope Proposal" (Proposal # D110413-EJR-R2) (attached as Exhibit "B"): (1) This Agreement; (2) State of Texas Department of Information Resources — Contract for Products and Related Services — Entech Sales & Services, Inc. (Exhibit "A"); and (3) Entech's "Scope Proposal" (Proposal # D 110413-EJR-R2) (Exhibit "B"). B. City means the City of Round Rock, Williamson and Travis Counties, Texas. C. Effective Date means the date upon which the binding signatures of both parties to this Agreement are affixed. D. Force Majeure means acts of God, strikes, lockouts, or other industrial disturbances, acts of the public enemy, orders of any kind from the government of the United States or the State of Texas or any civil or military authority, insurrections, riots, epidemics, landslides, lightning, earthquakes, fires, hurricanes, storms, floods, restraint of the government and the people, civil disturbances, explosions, or other causes not reasonably within the control of the party claiming such inability. E. Goods mean the specified supplies, materials, commodities, or equipment. F. Services mean work performed to meet a demand or effort by Entech to comply with promised delivery dates, specifications, and technical assistance specified. 2.01 EFFECTIVE DATE, TERM, ALLOWABLE RENEWALS, PRICES FIRM A. This Agreement shall be effective on the date this Agreement has been signed by each party hereto, and shall remain in full force and effect unless and until it expires by operation of the term indicated herein, or is terminated or extended as provided herein. B. This Agreement shall terminate upon the purchase of all goods and services described in Exhibit "B" and upon expiration of any warranties set forth in Exhibit "A" and/or Exhibit "B." C. Prices shall be firm for the duration of this Agreement. No separate line item charges shall be permitted for invoicing purposes, including but not limited to equipment rental, demurrage, costs associated with obtaining permits, or any other extraneous charges. 2 D. City reserves the right to review the relationship with Entech at any time, and may elect to terminate this Agreement with or without cause or may elect to continue. 3.01 CONTRACT DOCUMENTS AND EXHIBITS The goods and services which are the subject matter of this Agreement are described in Exhibit "A" and Exhibit "B" and, together with this Agreement, comprise the total Agreement and they are fully a part of this Agreement as if repeated herein in full. 4.01 SCOPE OF WORK Vendor shall satisfactorily provide all goods and complete all services described in the three (3) separate "Scope Proposal" documents, collectively Exhibit "B" and attached hereto. This Agreement shall evidence the entire understanding and agreement between the parties and shall supersede any prior proposals, correspondence or discussions. Entech shall satisfactorily provide all deliverables and services described in Exhibit "B" within the contract term here in specified. A change in the Scope of Services must be negotiated and agreed to in all relevant details, and must be embodied in a valid Supplemental Agreement as described herein. 5.01 CONTRACT AMOUNT In consideration for the deliverables and services related to the deliverables, the City agrees to pay Entech Four Hundred Thirty Thousand Seven Hundred Thirty -Seven Dollars and no/cents ($430,737.00) for the goods and services set forth in Exhibit "B." 6.01 INVOICES All invoices shall include, at a minimum, the following information: A. Name and address of Entech; B. Purchase Order Number; C. Description and quantity of items received or services provided; and D. Delivery or performance dates. 7.01 INTERLOCAL COOPERATIVE CONTRACTING / PURCHASING Authority for local governments to contract with one another to perform certain governmental functions and services, including but not limited to purchasing functions, is 3 granted under Government Code, Title 7, Chapter 791, Interlocal Cooperation Contracts, Subchapter B and Subchapter C, and Local Government Code, Title 8, Chapter 271, Subchapter F, Section 271.101 and Section 271.102. Other governmental entities within the State of Texas may be extended the opportunity to purchase off of the City's bid, with the consent and agreement of the successful vendor(s) and the City. Such agreement shall be conclusively inferred for the vendor from lack of exception to this clause in the vendor's response. However, all parties hereby expressly agree that the City is not an agent of, partner to, or representative of those outside agencies or entities and that the City is not obligated or liable for any action or debts that may arise out of such independently -negotiated "piggyback" procurements. 8.01 NON -APPROPRIATION AND FISCAL FUNDING This Agreement is a commitment of City's current revenues only. It is understood and agreed that City shall have the right to terminate this Agreement at the end of any City fiscal year if the governing body of City does not appropriate funds sufficient to purchase the services as determined by City's budget for the fiscal year in question. City may effect such termination by giving Entech a written notice of termination at the end of its then current fiscal year. 9.01 PROMPT PAYMENT POLICY In accordance with Chapter 2251, V.T.C.A., Texas Government Code, payment to Entech will be made within thirty (30) days of the day on which City receives the performance, supplies, materials, equipment, and/or deliverables, or within thirty (30) days of the day on which the performance of services was complete, or within thirty (30) days of the day on which City receives a correct invoice for the performance and/or deliverables or services, whichever is later. Entech may charge interest on an overdue payment at the "rate in effect" on September 1 of the fiscal year in which the payment becomes overdue, in accordance with V.T.C.A., Texas Government Code, Section 2251.025(b); however, this Policy does not apply to payments made by City in the event: A. There is a bona fide dispute between City and Entech, a contractor, subcontractor or supplier about the goods delivered or the service performed that cause the payment to be late; or B. The terms of a federal contract, grant, regulation, or statute prevent City from making a timely payment with federal funds; or C. There is a bona fide dispute between Entech and a subcontractor or between a subcontractor and its supplier about the goods delivered or the service performed that causes the payment to be late; or 4 D. Invoices are not mailed to City in strict accordance with instructions, if any, on the purchase order or the Agreement or other such contractual agreement. 10.01 GRATUITIES AND BRIBES City may, by written notice to Entech, cancel this Agreement without liability to Entech if it is determined by City that gratuities or bribes in the form of entertainment, gifts, or otherwise were offered or given by Entech or its agents or representatives to any City officer, employee or elected representative with respect to the performance of this Agreement. In addition, Entech may be subject to penalties stated in Title 8 of the Texas Penal Code. 11.01 TAXES City is exempt from Federal Excise and State Sales Tax; therefore, tax shall not be included in Entech's charges. 12.01 ORDERS PLACED WITH ALTERNATE SERVICES PROVIDERS If Entech cannot provide the goods as specified, City reserves the right and option to obtain the products from another supplier or suppliers. 13.01 CITY'S REPRESENTATIVE City hereby designates the following representative authorized to act in its behalf with regard to this Agreement: Chad McDowell General Services Director City of Round Rock 221 E. Main Street Round Rock, Texas 78664 (512) 218-5552 14.01 RIGHT TO ASSURANCE Whenever either party to this Agreement, in good faith, has reason to question the other party's intent to perform hereunder, then demand may be made to the other party for written assurance of the intent to perform. In the event that no written assurance is given within the reasonable time specified when demand is made, then and in that event the demanding party may treat such failure as an anticipatory repudiation of this Agreement. 5 15.01 DEFAULT If Entech abandons or defaults under this Agreement and is a cause of City purchasing the specified goods elsewhere, Entech agrees that it may be charged the difference in cost, if any, and that it will not be considered in the re -advertisement of the service and that it may not be considered in future bids for the same type of work unless the scope of work is significantly changed. Entech shall be declared in default of this Agreement if it does any of the following: A. Fails to make any payment in full when due; B. Fails to fully, timely and faithfully perform any of its material obligations under this Agreement; C. Fails to provide adequate assurance of performance under the "Right to Assurance" section herein; or D. Becomes insolvent or seeks relief under the bankruptcy laws of the United States. 16.01 TERMINATION AND SUSPENSION A. City has the right to terminate this Agreement, in whole or in part, for convenience and without cause, at any time upon thirty (30) days' written notice to Entech. B. In the event of any default by Entech, City has the right to terminate this Agreement for cause, upon ten (10) days' written notice to Entech. C. Entech has the right to terminate this Agreement only for cause, that being in the event of a material and substantial breach by City, or by mutual agreement to terminate evidenced in writing by and between the parties. D. In the event City terminates under subsections (A) or (B) of this section, the following shall apply: Upon City's delivery of the referenced notice to Entech, Entech shall discontinue all services in connection with the performance of this Agreement and shall proceed to cancel promptly all existing orders and contracts insofar as such orders and contracts are chargeable to this Agreement. Within thirty (30) days after such notice of termination, Entech shall submit a statement showing in detail the goods and/or services satisfactorily performed under this Agreement to the date of termination. City shall then pay Entech that portion of the charges, if undisputed. The parties agree that Entech is not entitled to compensation for services it would have performed under the remaining term of the Agreement except as provided herein. 6 17.01 INDEMNIFICATION Entech shall defend (at the option of City), indemnify, and hold City, its successors, assigns, officers, employees and elected officials harmless from and against all suits, actions, legal proceedings, claims, demands, damages, costs, expenses, attorney's fees, and any and all other costs or fees arising out of, or incident to, concerning or resulting from the fault of Entech's, or Entech's agents, employees or subcontractors, in the performance of Entech's obligations under this Agreement, no matter how, or to whom, such loss may occur. Nothing herein shall be deemed to limit the rights of City or Entech (including, but not limited to the right to seek contribution) against any third party who may be liable for an indemnified claim. 18.01 COMPLIANCE WITH LAWS, CHARTER AND ORDINANCES Entech, its agents, employees and subcontractors shall use best efforts to comply with all applicable federal and state laws, the Charter and Ordinances of the City of Round Rock, as amended, and with all applicable rules and regulations promulgated by local, state and national boards, bureaus and agencies. 19.01 ASSIGNMENT AND DELEGATION The parties each hereby bind themselves, their successors, assigns and legal representatives to each other with respect to the terms of this Agreement. Neither party shall assign, sublet or transfer any interest in this Agreement without prior written authorization of the other party. 20.01 NOTICES AH notices and other communications in connection with this Agreement shall be in writing and shall be considered given as follows: 1. When delivered personally to the recipient's address as stated in this Agreement; or 2. Three (3) days after being deposited in the United States mail, with postage prepaid to the recipient's address as stated in this Agreement. Notice to Entech: Entech Sales & Services, Inc. 3404 Garden Brook Dallas, Texas 75234 7 Notice to City: Steve Norwood, City Manager 221 East Main Street AND TO: Round Rock, TX 78664 Stephan L. Sheets, City Attorney 309 East Main Street Round Rock, TX 78664 Nothing contained herein shall be construed to restrict the transmission of routine communications between representatives of City and Entech. 21.01 APPLICABLE LAW; ENFORCEMENT AND VENUE This Agreement shall be enforceable in Round Rock, Texas, and if legal action is necessary by either party with respect to the enforcement of any or all of the terms or conditions herein, exclusive venue for same shall lie in Williamson County, Texas. This Agreement shall be governed by and construed in accordance with the laws and court decisions of the State of Texas. 22.01 EXCLUSIVE AGREEMENT This document, and all appended documents, constitutes the entire Agreement between Entech and City. This Agreement may only be amended or supplemented by mutual agreement of the parties hereto in writing, duly authorized by action of the City Manager or City Council. 23.01 DISPUTE RESOLUTION City and Entech hereby expressly agree that no claims or disputes between the parties arising out of or relating to this Agreement or a breach thereof shall be decided by any arbitration proceeding, including without limitation, any proceeding under the Federal Arbitration Act (9 USC Section 1-14) or any applicable state arbitration statute. 24.01 SEVERABILITY The invalidity, illegality, or unenforceability of any provision of this Agreement or the occurrence of any event rendering any portion or provision of this Agreement void shall in no way affect the validity or enforceability of any other portion or provision of this Agreement. Any void provision shall be deemed severed from this Agreement, and the balance of this Agreement shall be construed and enforced as if this Agreement did not contain the particular portion or provision held to be void. The parties further agree to amend this Agreement to replace any stricken provision with a valid provision that comes as close as possible to the intent of the stricken provision. The provisions of this section shall not prevent this entire Agreement from being void should a provision which is of the essence of this Agreement be determined void. 8 25.01 MISCELLANEOUS PROVISIONS Standard of Care. Entech represents that it employs trained, experienced and competent persons to perform all of the services, responsibilities and duties specified herein and that such services, responsibilities and duties shall be performed in a manner according to generally accepted industry practices. Time is of the Essence. Entech understands and agrees that time is of the essence and that any failure of Entech to fulfill obligations for each portion of this Agreement within the agreed timeframes will constitute a material breach of this Agreement. Entech shall be fully responsible for its delays or for failures to use best efforts in accordance with the terms of this Agreement. Where damage is caused to City due to Entech's failure to perform in these circumstances, City may pursue any remedy available without waiver of any of City's additional legal rights or remedies. Force Majeure. Neither City nor Entech shall be deemed in violation of this Agreement if it is prevented from performing any of its obligations hereunder by reasons for which it is not responsible as defined herein. However, notice of such impediment or delay in performance must be timely given and all reasonable efforts undertaken to mitigate its effects. Multiple Counterparts. This Agreement may be executed in multiple counterparts, any one of which shall be considered an original of this document; and all of which, when taken together, shall constitute one and the same instrument. IN WITNESS WHEREOF, City and Entech have executed this Agreement on the dates indicated. City of ound Rock, Texas By: Printed Name: Title: Date Signed: Attest: By: v Sara L. White, City Clerk For Ci pproved as i Form: By: P L. Sheets, City Attorney 9 Entech Sales & Services, Inc. By: -7 -7,----,'"?7' Na e: / fes,., ,3rlrF fC Title: /4 r c Date Signed: /(W/7// 3 DIR Contract No. DIR-SDD-2218 Vendor Contract No. STATE OF TEXAS DEPARTMENT OF INFORMATION RESOURCES CONTRACT FOR PRODUCTS AND RELATED SERVICES ENTECH SALES & SERVICE, INC. 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 Entech Sales & Service, Inc. (hereinafter "Vendor"), with its principal place of business at 3404 Garden Brook Drive, Dallas, Texas 75234. 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-189 on August 22, 2012, for Augmenting Hardware, Software, and Related Services for Surveillance, Security and Monitoring. Upon execution of this Contract, a notice of award for RFO DIR-SDD-TMP- 189 shall be posted by DIR on the Electronic State Business Daily. C. Order of Precedence This Contract; Appendix A, Standard Terms and Conditions For Products and Related Services Contracts; Appendix B, Vendor's Historically Underutilized Businesses Subcontracting Plan; Appendix C, Pricing Index; Exhibit I, Vendor's Response to RFO DIR-SDD-TMP-189, including all addenda; and Exhibit 2, RFO DIR-SDD-TMP-189, including all addenda; are incorporated by reference and constitute the entire agreement between DIR and Vendor. In the event of a conflict between the documents listed in this paragraph, the controlling document shall be this Contract, then Appendix A, then Appendix B, then Appendix C, then 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, DER 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. Page 1 of 10 Exhibit "A" DIR Contract No. D1R-SDD-2218 Vendor Contract No. 3. Product and Service Offerings A. Products Products available under this Contract are limited to Surveillance, Security and Monitoring products as specified in Appendix C, Pricing Index. Vendor may incorporate changes to their product offering; however, any changes must be within the scope of products awarded based on the posting described in Section 1 .B above. Vendor may not add a manufacturer's product line which was not included in the Vendor's response to the solicitation described in Section 1.B above. B. Services Services available under this Contract are limited to related services as specified in Appendix C, Pricing Index. Vendor may incorporate changes to their service offering; however, any changes must be within the scope of services awarded based on the posting described in Section 1.B above. 4. Pricing A. Manufacturer's Suggested Retail Price (MSRP) MSRP is defined as the product sales price suggested by the manufacturer or publisher of a product. B. Customer Discount The minimum Customer discount for all products and services will be the percentage off MSRP as specified in Appendix C, Pricing Index. C. Customer Price 1) The price to the Customer shall be calculated as follows: Customer Price = MSRP — Customer Discount 2) Customers purchasing products and services under this Contract may negotiate more advantageous pricing or participate in special promotional offers. In such event, a copy of such better offerings shall be furnished to DIR upon request. 3) If pricing for products or services available under this Contract are provided at a lower price to: (i) an eligible Customer who is not purchasing those products or services under this Contract or (ii) any other entity or consortia authorized by Texas law to sell said products and services to eligible Customers, then the available Customer Price in this Contract shall be adjusted to that lower price. This requirement applies to products or services quoted by Vendor or its resellers (1) under like terms and conditions, and does not apply to volume or special pricing purchases. This Contract shall be amended within ten (10) business days to reflect the lower price. Page 2 of l0 DIR Contract No. DIR-SDD-2218 Vendor Contract No. D. DIR Administrative Fee The administrative fee specified in Section 5 below shall not be broken out as a separate line item when pricing or invoice is provided to Customer. E. Shipping and Handling Fees The price to the Customer under this Contract shall include all shipping and handling fees. Shipments will be Free On Board Customer's destination, No additional fees shall be charged to the Customer for standard shipping and handling. if the Customer requests expedited delivery, Customer will be responsible for any charges for expedited delivery. F. Tax -Exempt As per Section 151.309, Texas Tax Code, Customers under this Contract are exempt from the assessment of State sales, use and excise taxes. Further, Customers under this Contract are exempt from Federal Excise Taxes, 26 United States Code Sections 4253(i) and (j). G. Travel Expense Reimbursement Pricing for services provided under this Contract are exclusive of any travel expenses that may be incurred in the performance of those services. Travel expense reimbursement may include personal vehicle mileage or commercial coach transportation, hotel accommodations, parking and meals; provided, however, the amount of reimbursement by Customers shall not exceed the amounts authorized for state employees as adopted by each Customer; and 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/prog/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, H. Changes to Prices Vendor may change the price of any product or service at any time, based upon changes to the MSRP, but discount levels shall retrain 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. 5. DIR Administrative Fee A) The administrative fee to be paid by the Vendor to DIR based on the dollar value of all sales to Customers pursuant to this Contract is one-half of one percent (0.50%). Payment will be calculated for all sales, net of returns and credits. For example, the administrative fee for sales totaling $100,000 shall be $500.00. B) All prices quoted to Customers shall include the administrative fee. DIR reserves the right to change this fee upwards or downwards during the term of this Contract, upon Page 3 of 10 DIR Contract No. DIR-SDD-2218 Vendor Contract No. written notice to Vendor without further requirement for a formal contract amendment. Any change in the administrative fee shall be incorporated in the price to the Customer. 6. Notification All notices under this Contract shall be sent to a party at the respective address indicated below. If sent to the State: Robin Abbott, Manager Contract and Vendor Management Department of Information Resources 300 W. 15`x' St., Suite 1300 Austin, Texas 78701 Phone: (512) 475-4700 Facsimile: (512) 475-4759 Robin.abbott a(�,dir.texasgov If sent to the Vendor: Eric Robb Entech Sales & Service, Inc. 2136 Rutland Dr. Ste. E Austin, TX 78758 Phone: 512-719-5191 Facsimile: 512-719-5192 Email: erobb(entechsales.com 7. Software License and Service Agreements A. Shrink/Click-wrap License Agreement Regardless of any other provision or other license tains which may be issued by Vendor after the effective date of this Contract, and irrespective of whether any such provisions have been proposed prior to or after the issuance of a Purchase Order for products licensed under this Contract, or the fact that such other agreement may be affixed to or accompany software upon delivery (shrink-wrap), the terms and conditions set forth in this Contract shall supersede and govern the license terms between Customers and Vendor. It is the Customer's responsibility to read the Shrink/Click-wrap License Agreement and determine if the Customer accepts the license terms as amended by this Contract. If the Customer does not agree with the license terms, 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. Page 4of10 Ulf( Contract No. UIR-SDD-2218 Vendor Contract No. 8. Intellectual Property Matters A. Definitions 1." Work Product" means any and all deliverables produced by Vendor for Customer under a Statement of Work issued pursuant to this Contract, including any and all tangible or intangible items or things that have been or will be prepared, created, developed, invented or conceived at any time following the effective date of the Contract, including but not limited to any (1) works of authorship (such as manuals, instructions, printed material, graphics, artwork, images, illustrations, photographs, computer programs, computer software, scripts, object code, source code or other programming code, HTML code, flow charts, notes, outlines, lists, compilations, manuscripts, writings, pictorial materials, schematics, formulae, processes, algorithms, data, information, multimedia files, text web pages or web sites, other written or machine readable expression of such works fixed in any tangible media, and all other copyrightable works), (ii) trademarks, service narks, trade dress, trade names, logos, or other indicia of source or origin, (iii) ideas, designs, concepts, personality rights, methods, processes, techniques, apparatuses, inventions, formulas, discoveries, or improvements, including any patents, trade secrets and know-how, (iv) domain names, (v) any copies, and similar or derivative works to any of the foregoing, (vi) all documentation and materials related to any of the foregoing, (vii) all other goods, services or deliverables to be provided to Customer under the Contract or a Statement of Work, and (viii) all Intellectual Property Rights in any of the foregoing, and which are or were created, prepared, developed, invented or conceived for the use or benefit of Customer in connection with this Contract or a Statement of Work, or with funds appropriated by or for Customer or Customer's benefit: (a) by any Vendor personnel or Customer personnel, or (b) any Customer personnel who then became personnel to Vendor or any of its affiliates or subcontractors, where, although creation or reduction -to -practice is completed while the person is affiliated with Vendor or its personnel, any portion of same was created, invented or conceived by such person while affiliated with Customer. 2. "Intellectual Property Rights" means the worldwide legal rights or interests evidenced by or embodied in: (i) any idea, design, concept, personality right, method, process, technique, apparatus, invention, discovery, or improvement, including any patents, trade secrets, and know-how; (ii) any work of authorship, including any copyrights, moral rights or neighboring rights; (iii) any trademark, service mark, trade dress, trade name, or other indicia of source or origin; (iv) domain name registrations; and (v) any other proprietary or similar rights. The Intellectual Property Rights of a party include all worldwide legal rights or interests that the party may have acquired by assignment or license with the right to grant sublicenses. 3. "Statement of Work" means a document signed by Customer and Vendor describing a specific set of activities and/or deliverables, which may include Work Product and Intellectual Property Rights, that Vendor is to provide Customer, issued pursuant to the Contract. Page 5of10 DIR Contract No. DIR-SDD-2218 Vendor Contract No. 4. "Third Party IP" means the Intellectual Property Rights of any third party not a party to this Contract, and which is not directly or indirectly providing any goods or services to Customer under this Contract. 5. "Vendor IP" shall mean all tangible or intangible items or things, including the Intellectual Property Rights therein, created or developed by Vendor (a) prior to providing any Services or Work Product to Customer and prior to receiving any documents, materials, information or funding from or on behalf of Customer relating to the Services or Work Product, or (b) after the Effective Date of the Contract if such tangible or intangible items or things were independently developed by Vendor outside Vendor's provision of Services or Work Product for Customer hereunder and were not created, prepared, developed, invented or conceived by any Customer personnel who then became personnel to Vendor or any of its affiliates or subcontractors, where, although creation or reduction -to -practice is completed while the person is affiliated with Vendor or its personnel, any portion of same was created, invented or conceived by such person while affiliated with Customer. B. Ownership. As between Vendor and Customer, the Work Product and Intellectual Property Rights therein are and shall be owned exclusively by Customer, and not Vendor. Vendor specifically agrees that the Work Product shall be considered "works made for hire" and that the Work Product shall, upon creation, be owned exclusively by Customer. To the extent that the Work Product, under applicable law, may not be considered works made for hire, Vendor hereby agrees that the Contract effectively transfers, grants, conveys, assigns, and relinquishes exclusively to Customer all right, title and interest in and to all ownership rights in the Work Product, and all Intellectual Property Rights in the Work Product, without the necessity of any further consideration, and Customer shall be entitled to obtain and hold in its own name all Intellectual Property Rights in and to the Work Product. Vendor acknowledges that Vendor and Customer do not intend Vendor to be a joint author of the Work Product within the meaning of the Copyright Act of 1976. Customer shall have access, during normal business hours (Monday thru Friday, 8AM to 5PM) and upon reasonable prior notice to Vendor, to all Vendor materials, premises and computer files containing the Work Product. Vendor and Customer, as appropriate, will cooperate with one another and execute such other documents as may be reasonably appropriate to achieve the objectives herein. No license or other right is granted hereunder to any Third Party IP, except as may be incorporated in the Work Product by Vendor. C. Further Actions. Vendor, upon request and without further consideration, shall perform any acts that may be deemed reasonably necessary or desirable by Customer to evidence more fully the transfer of ownership and/or registration of all Intellectual Property Rights in all Work Product to Customer to the fullest extent possible, including but not limited to the execution, acknowledgement and delivery of such further documents in a form determined by Customer. In the event Customer shall be unable to obtain Vendor's signature due to the dissolution of Vendor or Vendor's unreasonable failure to respond to Page 6of10 DIR Contract No. DIR-SDD-2218 Vendor Contract No. Customer's repeated requests for such signature on any document reasonably necessary for any purpose set forth in the foregoing sentence, Vendor hereby irrevocably designates and appoints Customer and its duly authorized officers and agents as Vendor's agent and Vendor's attorney-in-fact to act for and in Vendor's behalf and stead to execute and file any such document and to do all other lawfully permitted acts to further any such purpose with the same force and effect as if executed and delivered by Vendor, provided however that no such grant of right to Customer is applicable if Vendor fails to execute any document due to a good faith dispute by Vendor with respect to such document. It is understood that such power is coupled with an interest and is therefore irrevocable. Customer shall have the full and sole power to prosecute such applications and to take all other action concerning the Work Product, and Vendor shall cooperate, at Customer's sole expense, in the preparation and prosecution of all such applications and in any legal actions and proceedings concerning the Work Product. D. Waiver of Moral Rights. Vendor hereby irrevocably and forever waives, and agrees never to assert, any Moral Rights in or to the Work Product which Vendor may now have or which may accrue to Vendor's benefit under U.S. or foreign copyright or other laws and any and all other residual rights and benefits which arise under any other applicable law now in force or hereafter enacted. Vendor acknowledges the receipt of equitable compensation for its assignment and waiver of such Moral Rights. The term "Moral Rights" shall mean any and all rights of paternity or integrity of the Work Product and the right to object to any modification, translation or use of the Work Product, and any similar rights existing under the judicial or statutory law of any country in the world or under any treaty, regardless of whether or not such right is denominated or referred to as a moral right. E. Confidentiality. All documents, information and materials forwarded to Vendor by Customer for use in and preparation of the Work Product, shall be deemed the confidential information of Customer, and subject to the license granted by Customer to Vendor under sub -paragraph H. Hereunder, Vendor shall not use, disclose, or permit any person to use or obtain the Work Product, or any portion thereof, in any manner without the prior written approval of Customer. F. Injunctive RelieL The Contract is intended to protect Customer's proprietary rights pertaining to the Work Product, and the Intellectual Property Rights therein, and any misuse of such rights would cause substantial and irreparable harm to Customer's business. Therefore, Vendor acknowledges and stipulates that a court of competent jurisdiction may immediately enjoin any material breach of the intellectual property, use, and confidentiality provisions of this Contract, upon a request by Customer, without requiring proof of irreparable injury as same should be presumed. G. Return of Materials Pertaining to Work Product. Upon the request of Customer, but in any event upon termination or expiration of this Contract or a Statement of Work, Vendor shall surrender to Customer all documents and Page 7of10 DIR Contract No. DIR-SDD-2218 Vendor Contract No. things pertaining to the Work Product, including but not limited to drafts, memoranda, notes, records, drawings, manuals, computer software, reports, data, and all other documents or materials (and copies of same) generated or developed by Vendor or furnished by Customer to Vendor, including all materials embodying the Work Product, any Customer confidential information, or Intellectual Property Rights in such Work Product, regardless of whether complete or incomplete. This section is intended to apply to all Work Product as well as to all documents and things furnished to Vendor by Customer or by anyone else that pertains to the Work Product. H. Vendor License to Use. Customer hereby grants to Vendor a non -transferable, non-exclusive, royalty -free, fully paid-up license to use any Work Product solely as necessary to provide the Services to Customer. Except as provided in this Section, neither Vendor nor any Subcontractor shall have the right to use the Work Product in connection with the provision of services to its other customers without the prior written consent of Customer, which consent may be withheld in Customer's sole discretion. L Third -Party Underlying and Derivative Works. To the extent that any Vendor IP or Third Party IP are embodied or reflected in the Work Product, or are necessary to provide the Services, Vendor hereby grants to the Customer, or shall obtain from the applicable third party for Customer's benefit, the irrevocable, perpetual, non-exclusive, worldwide, royalty -free right and license, for Customer's internal business purposes only, to (i) use, execute, reproduce, display, perform, distribute copies of, and prepare derivative works based upon such Vendor IP or Third Party IP and any derivative works thereof embodied in or delivered to Customer in conjunction with the Work Product, and (ii) authorize others to do any or all of the foregoing. Vendor agrees to notify Customer on delivery of the Work Product or Services if such materials include any Third Party IP. On request, Vendor shall provide Customer with documentation indicating a third party's written approval for Vendor to use any Third Party IP that may be embodied or reflected in the Work Product. J. Agreement with Subcontracts. Vendor agrees that it shall have written agreement(s) that are consistent with the provisions hereof related to Work Product and Intellectual Property Rights with any employees, agents, consultants, contractors or subcontractors providing Services or Worlc Product pursuant to the Contract, prior to their providing such Services or Work Product, and that it shall maintain such written agreements at all times during performance of this Contract, which are sufficient to support all performance and grants of rights by Vendor. Copies of such agreements shall be provided to the Customer promptly upon request. K. License to Customer. Vendor grants to Customer, a perpetual, irrevocable, royalty free license, solely for the Customer's internal business purposes, to use, copy, modify, display, perforin (by any means), transmit and prepare derivative works of any Vendor IP embodied in or delivered to Customer in conjunction with the Work Product. The foregoing license includes the right to sublicense third parties, solely for the purpose of engaging such third parties to Page 8of10 DIR Contract No. DIR-SDD-2218 Vendor Contract No. assist or carryout Customer's internal business use of the Work Product. Except for the preceding license, ail rights in Vendor IP remain in Vendor. L. Vendor Development Rights. To the extent not inconsistent with Customer's rights in the Work Product or as set forth herein, nothing in this Contract shall preclude Vendor front developing for itself, or for others, materials which are competitive with those produced as a result of the Services provided hereunder, provided that no Work Product is utilized, and no Intellectual Property Rights of Customer therein are infringed by such competitive materials. To the extent that Vendor wishes to use the Work Product, or acquire licensed rights in certain Intellectual Property Rights of Customer therein in order to offer competitive goods or services to third parties, Vendor and Customer agree to negotiate in good faith regarding an appropriate license and royalty agreement to allow for such. 9. Authorized Exceptions to Appendix A, Standard Terms and Conditions for Product and Related Services Contracts. No exceptions have been agreed to by DIR and Vendor. (Remainder of page intentionally left blank) Page 9of10 DIR Contract No. DIR-SDD-2218 Vendor Contract No. This Contract is executed to be effective as of the date of last signature. Entech Sales & Service, Inc. Authorized By: Signature on File Name: Mark Braziel Title: Vice President Date: 5/16/13 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: 5/23/13 Office of General Counsel: drb 5/20/13 Page 10 of 10 Appendix A Standard Terms and Conditions For Product and Related Services Contracts Table of Contents 1. Contract Scope 1 2. No Quantity Guarantees 1 3. Definitions 1 4. General Provisions 2 A. Entire Agreement 2 B. Modification of Contract Terms and/or Amendments 2 C. Invalid Term or Condition 2 D. Assignment 3 E. Survival 3 F. Choice of Law 3 G. Limitation of Authority 3 5. Product Terms and Conditions 3 A. 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) 3 B. Purchase of Commodity Items (Applicable to State Agency Purchases Only) 4 6. Contract Fulfillment and Promotion 4 A. Service, Sales and Support of the Contract 4 B. Use of Order Fulfillers 5 1) Designation of Order Fulfillers 5 2) Changes in Order Fulfiller List 5 3) Order Fulfiller Pricing to Customer 5 C. Product Warranty and Return Policies 5 D. Customer Site Preparation 6 E. Internet Access to Contract and Pricing Information 6 1) Vendor Website 6 2) Accurate and Timely Contract Information 6 3) Website Compliance Checks 6 4) Website Changes 6 5) Use of Access Data Prohibited 6 6) Responsibility for Content 7 F. DIR Logo 7 G. Vendor and Order Fulfiller Logo 7 H. Trade Show Participation 7 I. Orientation Meeting 7 J. Performance Review Meetings 7 K. DIR Cost Avoidance 8 06/08/12 Appendix A Standard Terms and Conditions For Product and Related Services Contracts 7, Purchase Orders, Invoices, and Payments 8 A. Purchase Orders 8 B. Invoices 8 C. Payments 8 8. Contract Administration 8 A. Contract Administrators 8 1) State Contract Administrator 8 2) Vendor Contract Administrator 9 B. Reporting and Administrative Fees 9 1) Reporting Responsibility 9 2) Detailed Monthly Report 9 3) Historically Underutilized Businesses Subcontract Reports 9 4) DIR Administrative Fee 9 5) Accurate and Timely Submission of Reports 10 C. Records and Audit 10 D. Contract Administration Notification 11 9. Vendor Responsibilities 11 A. Indemnification 11 B. Taxes/Worker's Compensation/UNEMPLOYMENT INSURANCE 12 C. Vendor Certifications 1513 D. Ability to Conduct Business in Texas 15 E. Equal Opportunity Compliance 15 F. Use of Subcontractors 15 G. Responsibility for Actions 16 H. Confidentiality 16 I. Security of Premises, Equipment, Data and Personnel 16 J. Background and/or Criminal History Investigation 16 K. Limitation of Liability 16 L. Overcharges 17 M. Prohibited Conduct N. Required Insurance Coverage 17 187 O. Use of State Property 18 P. Immigration 18 Q. Public Disclosure 19 R. Product and/or Services Substitutions 19 S. Secure Erasure of Hard Disk Products and/or Services 19 T. Deceptive Trade Practices; Unfair Business Practices 19 U. Drug Free Workplace Policy 10. Contract Enforcement 19 A. Enforcement of Contract and Dispute Resolution 19 B. Termination 20 1) Termination for Non -Appropriation 20 06/08/12 ji Appendix A Standard Terms and Conditions For Product and Related Services Contracts a) Termination for Non -Appropriation by Customer 20 b) Termination for Non -Appropriation by DIR 20 2) Absolute Right 24 3) Termination for Convenience 21 4) Termination for Cause 21 a) Contract 21 b) Purchase Order 21 5) Customer Rights Under Termination 21 6) Vendor or Order Fulfiller Rights Under Termination 21 C. Force Majeure 22 II. Notification 22 A. Notices 22 13. Handling of Written Complaints 22 12. Captions 22 06/08/12 i it Appendix A Standard Terms and Conditions For Product and Related Services Contracts The following terms and conditions shall govern the conduct of DIR and Vendor during the term . of the Contract. 1. Contract Scope The Vendor shall provide the products and related services specified in Section 3 of the Contract for purchase by Customers. hi addition, DIR and Vendor may agree to provisions that allow Vendor and/or Order Fulfiller to lease the products offered under the Contract. Terms used in this document shall have the meanings set forth below in Section 3. 2. No Quantity Guarantees The Contract is not exclusive to the Vendor. Customers may obtain products and related services from other sources during the term of the Contract. DIR makes no express or implied warranties whatsoever that any particular quantity or dollar amount of products and related services will be procured through the Contract. 3. Definitions A. Customer - any Texas state agency, unit of local government, institution of higher education as defined in Section 2054.003, Texas Government Code, and those state agencies purchasing from a DIR contract through an interagency Agreement, as authorized by Chapter 771, Texas Government Code, any local government as authorized through the Interlocal Cooperation Act, Chapter 791, Texas Government Code, and the state agencies and political subdivisions of other states as authorized by Section 2054.0565, Texas Government Code and, except for telecommunications services under Chapter 2170, Texas Government Code, assistance organizations as defined in Section 2175.001, Texas Government Code to mean: 1) A non-profit organization that provides educational, health or human services or assistance to homeless individuals; 2) A nonprofit food bank that solicits, warehouses, and redistributes edible but unmarketable food to an agency that feeds needy families and individuals; 3) Texas Partners of the Americas, a registered agency with the Advisory Committee on Voluntary Foreign Aid, with the approval of the Partners of the Alliance Office of the Agency for international Development; 4) A group, including a faith -based group, that enters into a financial or non-financial agreement with a health or human services agency to provide services to that agency's clients; 5) A local workforce development board created under Section 2308.253; 6) A nonprofit organization approved by the Supreme Court of Texas that provides free legal services for low-income households in civil matters; 7) The Texas Boll Weevil Eradication Foundation, Inc., or an entity designated by the commissioner of agriculture as the foundation's successor entity under Section 74.1011, Texas Agriculture Code; 8) A nonprofit computer bank that solicits, stores, refurbishes and redistributes used computer equipment to public school students and their families; and 9) A nonprofit organization that provides affordable housing. 06/08/12 Page 1 of 22 Appendix A Standard Terms and Conditions For Product and Related Services Contracts B. Compliance Check — an audit of Vendor's compliance with the Contract may be performed by, but not limited to, a third party auditor, DIR Internal Audit department, or DIR contract management staff or their designees. C. Contract — the document executed between DIR and Vendor into which this Appendix A is incorporated. D. CPA — refers to the Texas Comptroller of Public Accounts. E. Day - shall mean business days, Monday through Friday, except for State and Federal holidays. If the Contract calls for performance on a day that is not a business day, then performance is intended to occur on the next business day. F. Order Fulfiller — the party, either Vendor or a party that may be designated by Vendor, who is fulfilling a Purchase Order pursuant to the Contract. 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). H. State — refers to the State of Texas. 4. General Provisions A. Entire Agreement The Contract, Appendices, and Exhibits constitute the entire agreement between DIR and the Vendor. No statement, promise, condition, understanding, inducement or representation, oral or written, expressed or implied, which is not contained in the Contract, Appendices, or its Exhibits shall be binding or valid. B. Modification of Contract Terms and/or Amendments 1) The terms and conditions of the Contract shall govern all transactions by Customers under the Contract. The Contract may only be modified or amended upon mutual written agreement of DIR and Vendor. 2) Customers shall not have the authority to modify the terms of the Contract; however, additional Customer terms and conditions that do not conflict with the Contract and are acceptable to Order Fulfiller may be added in a Purchase Order and given effect. No additional term or condition added in a Purchase Order issued by a Customer can conflict with or diminish a term or condition of the Contract. Pre- printed terms and conditions on any Purchase Order issued by Customer hereunder will have no force and effect. In the event of a conflict between a Customer's Purchase Order and the Contract, the Contract term shall control. 3) Customers and Vendor will negotiate and enter into written agreements regarding statements of work, service level agreements, remedies, acceptance criteria, information confidentiality and security requirements, and other terms specific to their Purchase Orders under the Contract with Vendors. C. Invalid Term or Condition 1) To the extent any term or condition in the Contract conflicts with the applicable Texas and/or United States law or regulation, such Contract term or condition is void and unenforceable. lay executing a contract which contains the conflicting term or condition, DIR makes no representations or warranties regarding the enforceability of such term or condition and DIR does not waive the applicable Texas and/or United 06/08/12 Page 2 of 22 Appendix A Standard Terms and Conditions For Product and Related Services Contracts States law or regulation which conflicts with the Contract term or condition. 2) If one or more term or condition in the Contract, or the application of any tern or condition to any party or circumstance, is held invalid, unenforceable, or illegal in any respect by a final judgment or order of the State Office of Administrative Hearings or a court of competent jurisdiction, the remainder of the Contract and the application of the term or condition to other parties or circumstances shall remain valid and in full force and effect. D. Assignment D1R or Vendor may assign the Contract without prior written approval to: i) a successor in interest (for D1R, another state agency as designated by the Texas Legislature), or ii) a subsidiary, parent company or affiliate, or iii) as necessary to satisfy a regulatory requirement imposed upon a party by a governing body with the appropriate authority. Assignment of the Contract under the above terms shall require written notification by the assigning party. Any other assignment by a party shall require the written consent of the other party. Each party agrees to cooperate to amend the Contract as necessary to maintain an accurate record of the contracting parties. E. Survival All applicable software license agreements, warranties or service agreements that were entered into between Vendor and a Customer under the terns and conditions of the Contract shall survive the expiration or termination of the Contract. All Purchase Orders issued and accepted by Order Fulfiller shall survive expiration or termination of the Contract. F. Choice of Law The laws of the State of Texas shall govern the construction and interpretation of the Contract. Exclusive venue for all actions with be in state court, Travis County, Texas. Nothing in the Contract or its Appendices shall be construed to waive the State's sovereign immunity. G. Limitation of Authority Vendor shall have no authority to act for or on behalf of the Texas Department of Information Resources or the State of Texas except as expressly provided for in this Contract; no other authority, power or use is granted or implied. Vendor may not incur any debts, obligations, expenses, or liabilities of any kind on behalf of the State of Texas or Texas Department of Information Resources. S. Product Terms and Conditions A. 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) 1) Effective September 1, 2006 state agencies and institutions of higher education shall procure products which comply with the State of Texas Accessibility requirements for Electronic and Information Resources specified in 1 TAC Chapters 06/08/12 Page 3 of 22 Appendix A Standard Terms and Conditions For Product and Related Services Contracts 206 and 213 when such products are available in the commercial marketplace or when such products are developed in response to a procurement solicitation. 2) Upon request, but not later thirty (30) days after request, Vendor shall provide DIR with a completed Voluntary Product Accessibility Template (VPAT) of the specified product or a URL to the VPAT for reviewing compliance with the State of Texas Accessibility requirements (based on the federal standards established under Section 508 of the Rehabilitation Act). B. Purchase of Commodity Items (Applicable to State Agency Purchases Only) 1) Texas Government Code, §2157.068 requires State agencies to buy commodity items, as defined in 5.B.2 below, in accordance with contracts developed by DIR, unless the agency obtains an exemption from DIR. 2) Commodity items are commercially available software, hardware and technology services that are generally available to businesses or the public and for which DIR determines that a reasonable demand exists in two or more state agencies. Hardware is the physical technology used to process, manage, store, transmit, receive or deliver information. Software is the commercially available programs that operate hardware and includes all supporting documentation, media on which the software may be contained or stored, related materials, modifications, versions, upgrades, enhancements, updates or replacements. Technology services are the services, functions and activities that facilitate the design, implementation, creation, or use of software or hardware. Technology services include seat management, staffing augmentation, training, maintenance and subscription services. Technology services do not include telecommunications services. Seat management is services through which a state agency transfers its responsibilities to a vendor to manage its personal computing needs, including all necessary hardware, software and technology services. 3) Vendor agrees to coordinate all State agency commodity item sales through existing DIR contracts. Institutions of higher education are exempt from this Subsection 5.B. 6. Contract Fulfillment and Promotion A. Service, Sales and Support of the Contract Vendor shall provide service, sales and support resources to serve all Customers throughout the State. It is the responsibility of the Vendor to sell, market, and promote products and services available under the Contract. Vendor shall use its best efforts to ensure that potential Customers are made aware of the existence of the Contract. All sales to Customers for products and services available under the Contract shall be processed through the Contract. 06/08/12 Page 4 of 22 Appendix A Standard Terms and Conditions For Product and Related Services Contracts B. Use of Order Fulfillers DIR agrees to permit Vendor to utilize designated Order Fulfillers to provide service, sales and support resources to Customers. Such participation is subject to the following conditions: 1) Designation of Order Fulfillers a) Vendor may designate Order Fulfillers to act as the distributors for products and services available under the Contract. In designating Order Fulfillers, Vendor must be in compliance with the State's Policy on Utilization of Historically Underutilized Businesses. In addition to the required Subcontracting Plan, Vendor shall provide DIR with the following Order Fulfiller information: Order Fulfiller name, Order Fulfiller business address, Order Fulfiller CPA Identification Number, Order Fulfiller contact person email address and phone number. b) DIR reserves the right to require the Vendor to rescind any such Order Fulfiller participation or request that Vendor name additional Order Fulfillers should DIR determine it is in the best interest of the State. c) Vendor shall be fully liable for its Order Fulfillers' performance under and compliance with the terms and conditions of the Contract. Vendor shall enter into contracts with Order Fulfillers and use terms and conditions that are consistent with the terns and conditions of the Contract. d) Vendor shall have the right to qualify Order Fulfillers and their participation under the Contract provided that: i) any criteria is uniformly applied to all potential Order Fulfillers based upon Vendor's established, neutrally applied criteria, ii) the criteria is not based on a particular procurement, and iii) all Customers are supported under the different criteria. e) Vendor shall not prohibit Order Fulfiller from participating in other procurement opportunities offered through DIR. 2) Changes in Order Fulfiller List Vendor may add or delete Order Fulfillers throughout the term of the Contract upon written authorization by DIR. Prior to adding or deleting Order Fulfillers, Vendor must make a good faith effort in the revision of its Subcontracting Plan in accordance with the State's Policy on Utilization of Historically Underutilized Businesses. Vendor shall provide DIR with its updated Subcontracting Plan and the Order Fulfiller information listed in Section 6.B.1.a above. 3) Order Fulfiller Pricing to Customer Order Fulfiller pricing to the Customer shall comply with the Customer price as stated within Section 4 of the Contract. This pricing shall only be offered by Order Fulfillers to Customers for sales that pass through the Contract. C. Product Warranty and Return Policies Order Fulfiller will adhere to the Vendor's then -currently published policies concerning product warranties and returns. Product warranty and return policies for Customers will not be more restrictive or more costly than warranty and return policies for other similarly situated Customers for like products. 06/08/12 Page 5 of 22 Appendix A Standard Terms and Conditions For Product and Related Services Contracts D. Customer Site Preparation Customers shall prepare and maintain its site in accordance with written instructions furnished by Order Fulfiller prior to the scheduled delivery date of any product or service and shall bear the costs associated with the site preparation. E. Internet Access to Contract and Pricing Information 1) Vendor Website Within thirty days of the effective date of the Contract, Vendor will establish and maintain a website specific to the product and service offerings under the Contract which is clearly distinguishable from other, non-DIR Contract offerings at Vendor's website. The website must include: the product and services offered, product and service specifications, Contract pricing, designated Order Fulfillers, contact information for Vendor and designated Order Fulfillers, instructions for obtaining quotes and placing Purchase Orders, and warranty and return policies. The Vendor's website shall list the DIR Contract number, reference the DIR Information and Communications Technology (ICT) 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. 2) Accurate and Timely Contract Information Vendor warrants and represents that the website information specified in the above paragraph will be accurately and completely posted, maintained and displayed in an objective and timely manner. Vendor, at its own expense, shall correct any non- conforming or inaccurate information posted at Vendor's website within ten (10) business days after written notification by DIR. 3) Website Compliance Checks Periodic compliance checks of the information posted for the Contract on Vendor's website will be conducted by DIR. Upon request by DIR, Vendor shall provide verifiable documentation that pricing listed upon this website is uniform with the pricing as stated in Section 4 of the Contract. 4) Website Changes Vendor hereby consents to a link from the DIR website to Vendor's website in order to facilitate access to Contract information. The establishment of the link is provided solely for convenience in carrying out the business operations of the State. DIR reserves the right to terminate or remove a link at any time, in its sole discretion, without advance notice, or to deny a future request for a link. DIR will provide Vendor with subsequent notice of link termination or removal. Vendor shall provide DIR with timely written notice of any change in URL or other information needed to access the site and/or maintain the link. 5) Use of Access Data Prohibited If Vendor stores, collects or maintains data electronically as a condition of accessing Contract information, such data shall only be used internally by Vendor for the purpose of implementing or marketing the Contract, and shall not be disseminated to third parties or used for other marketing purposes. The Contract constitutes a public document under the laws of the State and Vendor shall not restrict access to Contract terms and conditions including pricing, i.e., through use of restrictive technology or 06/08/12 Page 6 of 22 Appendix A Standard Terms and Conditions For Product and Related Services Contracts passwords. 6) Responsibility for Content Vendor is solely responsible for administration, content, intellectual property rights, and all materials at Vendor's website. DIR reserves the right to require a change of listed content if, in the opinion of DIR, it does not adequately represent the Contract. F. DIR. Logo Order Fulfiller may use the DIR logo in the promotion of the Contract to Customers with the following stipulations: (i) the logo may not be modified in any way, (ii) when displayed, the size of the DIR logo must be equal to or smaller than the Order Fulfiller logo, (iii) the DIR logo is only used to communicate the availability of products and services under the Contract to Customers, and (iv) any other use of the DIR logo requires prior written permission from D1R. G. Vendor and Order Fulfiller Logo DIR may use the Vendor's and Order Fulfiller's name and logo in the promotion of the Contract to communicate the availability of products and services under the Contract to 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 DER from time to time. Nothing contained in the Contract will give DIR any right, title, or interest in or to Vendor's or Order Fulfiller' trademarks or the goodwill associated therewith, except for the limited usage rights expressly provided by Vendor and Order Fulfiller. H. Trade Show Participation At DIR's discretion, Vendor and Order Fulfillers may be required to participate in one or more DIR sponsored trade shows each calendar year. Vendor understands and agrees that participation, at the Vendor's and Order Fulfiller's expense, includes providing a manned booth display or similar presence. DIR will provide four months advance notice of any required participation. Vendor and Order Fulfillers must display the DIR logo at all trade shows that potential Customers will attend. DIR reserves the right to approve or disapprove of the location or the use of the DIR logo in or on the Vendor's or Order Fulfiller's booth. L Orientation Meeting Upon thirty (30) calendar days from execution of the Contract, Vendor and Order Fulfillers will be required to attend an orientation meeting to discuss the content and procedures of the Contract. The meeting will be held within the Austin, Texas area at a date and time mutually acceptable to DIR and the Vendor. DER shall bear no cost for the time and travel of the Vendor or Order Fulfillers for attendance at the meeting. J. Performance Review Meetings DIR will require the Vendor to attend periodic meetings to review the Vendor's performance under the Contract. The meetings will be held within the Austin, Texas area at a date and time mutually acceptable to DIR and the Vendor. D1R shall bear no cost for 06/08/12 Page 7 of 22 Appendix A Standard Terms and Conditions For Product and Related Services Contracts the time and travel of the Vendor for attendance at the meeting. K. DIR Cost Avoidance As part of the performance measures reported to state leadership, DIR must provide the cost avoidance the State has achieved through the Contract. Upon request by DIR, Vendor shall provide DIR with a detailed report of a representative sample of products sold under the Contract. The report shall contain: product part number, product description, list price, price to Customer under the Contract, and pricing from three (3) alternative sources under which DIR customers can procure the products. 7. Purchase Orders, Invoices, and Payments A. Purchase Orders All Customer Purchase Orders will be placed directly with the Order Fulfiller. Accurate Purchase Orders shall be effective and binding upon Order Fulfiller when accepted by Order Fulfiller. B. Invoices 1) Invoices shall be submitted by the Order Fulfiller directly to the Customer and shall be issued in compliance with Chapter 2251, Texas Government Code. All payments for products and/or services purchased under the Contract and any provision of acceptance of such products and/or services shall be made by the Customer to the Order Fulfiller. 2) Invoices must be timely and accurate. Each invoice must match Customer's Purchase Order and include any written changes that may apply, as it relates to products, prices and quantities. Invoices must include the Customer's Purchase Order number or other pertinent information for verification of receipt of the product or services by the Customer. C. Payments Customers shall comply with Chapter 2251, Texas Government Code, in making payments to Order Fulfiller. The statute states that payments for goods and services are due thirty (30) days after the goods are provided, the services completed, or a correct invoice is received, whichever is later. Payment under the Contract shall not foreclose the right to recover wrongful payments. S. Contract Administration A. Contract Administrators DIR and the Vendor will each provide a Contract Administrator to support the Contract. Information regarding the Contract Administrators will be posted on the Internet website designated for the Contract. 1) State Contract Administrator DIR shall provide a Contract Administrator whose duties shall include but not be limited to: i) supporting the marketing and management of the Contract, ii) advising DIR of Vendor's performance under the terms and conditions of the Contract, and iii) periodic verification of product pricing and monthly reports submitted by Vendor. 06/08/12 Page 8 of 22 Appendix A Standard Terms and Conditions For Product and Related Services Contracts 2) Vendor Contract Administrator Vendor shall provide a dedicated Contract Administrator whose duties shall include but not be limited to: i) supporting the marketing and management of the Contract, ii) facilitating dispute resolution between a Order Fulfiller and a Customer, and iii) advising DIR of Order Fulfillers performance under the terms and conditions of the Contract. DIR reserves the right to require a change in Vendor's then-current Contract Administrator if the assigned Contract Administrator is not, in the opinion of DIR, adequately serving the needs of the State. B. Reporting and Administrative Fees 1) Reporting Responsibility a) Vendor shall be responsible for reporting all products and services purchased through Order Fulfillers under the Contract. Vendor shall file the monthly reports, subcontract reports, and pay the administrative fees in accordance with the due dates specified in this section. b) DIR shall have the right to verify required reports and to take any actions necessary to enforce its rights under this section, including but not limited to, compliance checks of Vendor's applicable Contract books at DIR's expense. 2) Detailed Monthly Report Vendor shall electronically provide DIR with a detailed monthly report in the format required by DIR showing the dollar volume of any and all sales under the Contract for the previous month period. Reports shall be submitted to the DIR ICT Cooperative Contracts E-Mail Box at ict.sales n,dir.texas.gov. Reports are due on the fifteenth (15th) calendar day after the close of the previous month period. It is the responsibility of Vendor to collect and compile all sales under the Contract from participating Order Fulfillers and submit one (1) monthly report. The monthly report shall include, per transaction: the detailed sales for the period, the Order Fulfiller's company name, if applicable, Customer name, invoice date, invoice number, description, part number, manufacturer, quantity, unit price, extended price, Customer Purchase Order number, contact name, Customer's complete billing address, and other information as required by DIR. Each report must contain all information listed above per transaction or the report will be rejected and returned to the Vendor for correction in accordance with this section. 3) Historically Underutilized Businesses Subcontract Reports a) Vendor shall electronically provide each Customer with their relevant Historically Underutilized Business Subcontracting Report, pursuant to the Contract, as required by Chapter 2161, Texas Government Code. Reports shall also be submitted to DIR. b) Reports shall be due in accordance with the CPA rules. 4) DIR Administrative Fee a) An administrative fee shall be paid by Vendor to D1R to defray the DIR costs of negotiating, executing, and administering the Contract. The maximum administrative fee is set by the Texas Legislature in the biennial General Appropriations Act. Payment of the administrative fee shall be due on the 06/08/12 Page 9 of 22 Appendix A Standard Terms and Conditions For Product and Related Services Contracts fifteenth (15th) calendar day after the close of the previous month period. DIR may change the amount of the administrative fee upon thirty (30) days written notice to Vendor without the need for a formal contract amendment. b) Vendor shall reference the DIR Contract number on any remittance instruments. 5) Accurate and Timely Submission of Reports a) The reports and administrative fees shall be accurate and timely and submitted in accordance with the due dates specified in this section. Vendor shall correct any inaccurate reports or administrative fee payments within three (3) business days upon written notification by DIR. Vendor shall deliver any late reports or late administrative fee payments within three (3) business days upon written notification by DIR. If Vendor is unable to correct inaccurate reports or administrative fee payments or deliver late reports and fee payments within three (3) business days, Vendor must contact DTR 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. C. Records and Audit 1) Acceptance of funds under the Contract by Vendor and/or Order Fulfiller acts as acceptance of the authority of the State Auditor's Office, or any successor agency, to conduct an audit or investigation in connection with those funds. Vendor further agrees to cooperate fully with the State Auditor's Office or its successor in the conduct of the audit or investigation, including providing all records requested. Vendor will ensure that this clause concerning the authority to audit funds received indirectly by subcontractors through Vendor or directly by Order Fulfillers and the requirement to cooperate is included in any subcontract or Order Fulfiller contract it awards pertaining to the Contract. Under the direction of the Legislative Audit Committee, a Vendor that is the subject of an audit or investigation by the State Auditor's Office must provide the State Auditor's Office with access to any information the State Auditor's Office considers relevant to the investigation or audit. 2) Vendor and Order Fulfillers shall maintain adequate records to establish compliance with the Contract until the later of a period of four (4) years after termination of the Contract or until fi►II, final and unappealable resolution of all Compliance Check or litigation issues that arise under the Contract. Such records shall include per transaction: the Order Fulfiller's company name if applicable, Customer name, invoice date, invoice number, description, part number, manufacturer, quantity, unit price, extended price, Customer Purchase Order number, contact name, Customer's complete billing address, the calculations supporting each 06/08/12 Page 10 of 22 Appendix A Standard Terms and Conditions For Product and Related Services Contracts 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, D1R 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 Vendor is found to be responsible for inaccurate reports, DIR may invoice for the reasonable costs of the audit, which Vendor must pay within thirty (30) days of receipt. 4) For procuring State Agencies whose payments are processed by the Texas Comptroller of Public Accounts, the volume of payments made to Order Fulfillers through the Texas Comptroller of Public Accounts and the administrative fee based thereon shall be presumed correct unless Vendor can demonstrate to DIR's satisfaction that Vendor's calculation of DIR's administrative fee is correct. D. Contract Administration Notification 1) Upon execution of the Contract, Vendor shall provide DIR with written notification of the following: i) Vendor Contract Administrator name and contact information, ii) Vendor sales representative name and contact information, and iii) name and contact information of Vendor personnel responsible for submitting reports and payment of administrative fees specified herein. 2) Upon execution of the Contract, DIR shall provide Vendor with written notification of the following: i) DIR Contract Administrator name and contact information, and ii) DIR ICT Cooperative Contracts E -Mail Box information. 9. Vendor Responsibilities A. Indemnification 1) Acts or Omissions Vendor shall indemnify and hold harmless the State of Texas and Customers, AND/OR THEIR OFFICERS, AGENTS, EMPLOYEES, REPRESENTATIVES, CONTRACTORS, ASSIGNEES, AND/OR DESIGNEES FROM AND AGAINST 06/08/12 Page 11 of 22 Appendix A Standard Terms and Conditions For Product and Related Services Contracts ANY AND ALL LIABILITY, ACTIONS, CLAIMS, DEMANDS, OR SUITS, AND ALL RELATED COSTS, ATTORNEY FEES, AND EXPENSES arising out of, or resulting from any acts or omissions of the Vendor or its agents, employees, subcontractors, Order Fulfillers, or suppliers of subcontractors in the execution or performance of the Contract and any Purchase Orders issued under the Contract REGARDLESS OF THE NEGLIGENCE OF THE CUSTOMER, THE STATE OF TEXAS AND/OR THEIR EMPLOYEES, AGENTS, REPRESENTATIVES, CONTRACTORS, ASSIGNEES, AND/OR DESIGNEES. VENDOR SHALL PAY ALL COSTS OF DEFENSE INCLUDING ATTORNEYS FEES. THE DEFENSE SHALL BE COORDINATED BY THE OFFICE OF THE ATTORNEY GENERAL FOR TEXAS STATE AGENCIES AND BY CUSTOMER'S LEGAL COUNSEL FOR NON -STATE AGENCY CUSTOMERS. 2) Infringements a) Vendor shall indemnify and hold harmless the State of Texas and Customers, AND/OR THEIR EMPLOYEES, AGENTS, REPRESENTATIVES, CONTRACTORS, ASSIGNEES, AND/OR DESIGNEES, from any and all third party claims involving infringement of United States patents, copyrights, trade and service marks, and any other intellectual or intangible property rights in connection with the PERFORMANCES OR ACTIONS OF VENDOR PURSUANT TO THIS CONTRACT. VENDOR AND THE CUSTOMER AGREE TO FURNISH TIMELY WRITTEN NOTICE TO EACH OTHER OF ANY SUCH CLAIM. VENDOR SHALL BE LIABLE TO PAY ALL COSTS OF DEFENSE INCLUDING ATTORNEYS' FEES. THE DEFENSE SHALL BE COORDINATED BY THE OFFICE OF THE ATTORNEY GENERAL FOR TEXAS STATE AGENCY CUSTOMERS AND BY CUSTOMER'S LEGAL COUNSEL FOR NON -STATE AGENCY CUSTOMERS. b) If Vendor becomes aware of an actual or potential claim, or Customer provides Vendor with notice of an actual or potential claim, Vendor may (or in the case of an injunction against Customer, shall), at Vendor's sole option and expense: (i) procure for the Customer the right to continue to use the affected portion of the product or service, or (ii) modify or replace the affected portion of the product or service with functionally equivalent or superior product or service so that Customer's use is non - infringing. 3) Independent Contractor VENDOR AGREES AND ACKNOWLEDGES THAT DURING THE EXISTENCE OF THIS CONTRACT, IT IS FURNISHING SERVICES IN THE CAPACITY OF AN INDEPENDENT CONTRACTOR AND THAT VENDOR IS NOT AN EMPLOYEE OF THE CUSTOMER, DIR OR THE STATE 01? TEXAS. B. Taxes/Worker's Compensation/UNEMPLOYMENT INSURANCE 1) VENDOR AGREES AND ACKNOWLEDGES THAT DURING THE EXISTENCE OF THIS CONTRACT, VENDOR SHALL BE ENTIRELY RESPONSIBLE FOR THE LIABILITY AND PAYMENT OF VENDOR'S AND 06/08/12 Page 12 of 22 Appendix A Standard Terms and Conditions For Product and Related Services Contracts VENDOR'S EMPLOYEES' TAXES OF WHATEVER KIND, ARISING OUT OF THE PERFORMANCES IN THIS CONTRACT. VENDOR AGREES TO COMPLY WITH ALL STATE AND FEDERAL LAWS APPLICABLE TO ANY SUCH PERSONS, INCLUDING LAWS REGARDING WAGES, TAXES, INSURANCE, AND WORKERS' COMPENSATION. VENDOR AGREES AND ACKNOWLEDGES THAT VENDOR ITS EMPLOYEES, REPRESENTATIVES, AGENTS OR SUBCONTRACTORS SHALL NOT BE ENTITLED TO ANY STATE BENEFIT OR BENEFIT OF ANOTHER GOVERNMENTAL ENTITY CUSTOMER. THE CUSTOMER AND/OR THE STATE SHALL NOT BE LIABLE TO THE VENDOR ITS EMPLOYEES, AGENTS, OR OTHERS FOR THE PAYMENT OF TAXES OR THE PROVISION OF UNEMPLOYMENT INSURANCE AND/OR WORKERS' COMPENSATION OR ANY BENEFIT AVAILABLE TO A STATE EMPLOYEE OR EMPLOYEE OF ANOTHER GOVERNMENTAL ENTITY CUSTOMER. 2) VENDOR AGREES TO INDEMNIFY AND HOLD HARMLESS CUSTOMERS, THE STATE OF TEXAS AND/OR THEIR EMPLOYEES, AGENTS, REPRESENTATIVES, CONTRACTORS, ASSIGNEES, AND/OR DESIGNEES FROM ANY AND ALL LIABILITY, ACTIONS, CLAIMS, DEMANDS, OR SUITS, AND ALL RELATED COSTS, ATTORNEY FEES, AND EXPENSES, RELATING TO TAX LIABILITY, UNEMPLOYMENT INSURANCE AND/OR WORKERS' COMPENSATION OR EXPECTATIONS OF BENEFITS BY VENDOR, ITS EMPLOYEES, REPRESENTATIVES, AGENTS OR SUBCONTRACTORS IN ITS PERFORMANCE UNDER THIS CONTRACT. VENDOR SHALL BE LIABLE TO PAY ALL COSTS OF DEFENSE INCLUDING ATTORNEYS' FEES. THE DEFENSE SHALL BE COORDINATED BY THE OFFICE OF THE ATTORNEY GENERAL FOR TEXAS STATE AGENCY CUSTOMERS AND BY CUSTOMER'S LEGAL COUNSEL FOR NON -STATE AGENCY CUSTOMERS. C. Vendor Certifications Vendor certifies on behalf of Vendor and its designated Order Fulfillers that they: have not given, offered to give, and do not intend to give at any time hereafter any economic opportunity, future employment, gift, loan, gratuity, special discount, trip, favor, or service to a public servant in connection with the Contract; (ii) are not currently delinquent in the payment of any franchise tax owed the State of Texas and are not ineligible to receive payment under §231.006 of the Texas Family Code and acknowledge the Contract may be terminated and payment withheld if this certification is inaccurate; (iii) neither they, nor anyone acting for them, have violated the antitrust laws of the United States or the State of Texas, nor communicated directly or indirectly to any competitor or any other person engaged in such line of business for the purpose of obtaining an unfair price advantage; (iv) have not received payment from DIR or any of its employees for participating in the preparation of the Contract; (i) 06/08/12 Page 13 of 22 Appendix A Standard Terms and Conditions For Product and Related Services Contracts (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 Properly and Prohibiting Transactions ii'ith 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 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 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; (xiii) represent and warrant that the Customer's payment and their receipt of appropriated or other funds under this Agreement are not prohibited by Sections 556.005 or Section 556.008, Texas Government Code; (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 06/08/12 Page 14 of 22 Appendix A Standard Terms and Conditions For Product and Related Services Contracts (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). D. Ability to Conduct Business in Texas Vendor and its Order Fulfiller shall be authorized and validly existing under the laws of its state of organization, and shall be authorized to do business in the State of Texas. E. Equal Opportunity Compliance Vendor agrees to abide by all applicable laws, regulations, and executive orders pertaining to equal employment opportunity, including federal laws and the laws of the State in which its primary place of business is located. In accordance with such laws, regulations, and executive orders, the Vendor agrees that no person in the United States shall, on the grounds of race, color, religion, national origin, sex, age, veteran status or handicap, be excluded from employment with or participation in, be denied the benefits of, or be otherwise subjected to discrimination under any program or activity performed by Vendor under the Contract. If Vendor is found to be not in compliance with these requirements during the term of the Contract, Vendor agrees to take appropriate steps to correct these deficiencies. Upon request, Vendor will furnish information regarding its nondiscriminatory hiring and promotion policies, as well as specific information on the composition of its principals and staff, including the identification of minorities and women in management or other positions with discretionary or decision-making authority. F. Use of Subcontractors If Vendor uses any subcontractors in the performance of this Contract, Vendor must make a good faith effort in the submission of its Subcontracting Plan in accordance with the State's Policy on Utilization of Historically Underutilized Businesses. A revised Subcontracting Plan shall be required before Vendor can engage additional subcontractors in the performance of this Contract. Vendor shall remain solely responsible for the perforinance of its obligations under the Contract. G. Responsibility for Actions 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. 06/08/12 Page 15 of 22 Appendix A Standard Terms and Conditions For Product and Related Services Contracts 2) Vendor, for itself and on behalf of its subcontractors, shall report to DIR promptly when the disclosures under Item 18 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. H. Confidentiality 1) Vendor acknowledges that DIR and Customers that are state agencies are government agencies subject to the Texas Public Information Act. Vendor also acknowledges that DIR and Customers that are state agencies will comply with the Public Information Act, and with all opinions of the Texas Attorney General's office concerning this Act. 2) Under the terms of the Contract, DIR may provide Vendor with information related to Customers. Vendor shall not re -sell or otherwise distribute or release Customer information to any party in any manner. I. Security of Premises, Equipment, Data and Personnel Vendor and/or Order Fulfiller may, from time to time during the performance of the Contract, have access to the personnel, premises, equipment, and other property, including data, files and /or materials (collectively referred to as "Data") belonging to the Customer. Vendor and/or Order Fulfiller shall use their best efforts to preserve the safety, security, and the integrity of the personnel, premises, equipment, Data and other property of the Customer, in accordance with the instruction of the Customer. Vendor and/or Order Fulfiller shall be responsible for damage to Customer's equipment, workplace, and its contents when such damage is caused by its employees or subcontractors. If a Vendor and/or Order Fulfiller fails to comply with Customer's security requirements, then Customer may immediately terminate its Purchase Order and related Service Agreement. J. Background and/or Criminal History Investigation Prior to commencement of any services, background and/or criminal history investigation of the Vendor and/or Order Fulfiller's employees and subcontractors who will be providing services to the Customer under the Contract may be performed by certain Customers having legislative authority to require such investigations. Should any employee or subcontractor of the Vendor and/or Order Fulfiller who will be providing services to the Customer under the Contract not be acceptable to the Customer as a result of the background and/or criminal history check, then Customer may immediately terminate its Purchase Order and related Service Agreement or request replacement of the employee or subcontractor in question. K Limitation of Liability For any claim or cause of action arising under 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 punitive, special, or consequential damages, even if it is advised of the possibility of such damages; and ii) Vendor's liability for damages of any kind to the Customer shall be limited to the total amount paid to Vendor under the Contract during the twelve months immediately preceding the accrual of the claim or cause of 06/08/12 Page 16 of 22 Appendix A Standard Terms and Conditions For Product and Related Services Contracts action. However, this limitation of Vendor's liability shall not apply to claims of patent, trademark, or copyright infringement. L. Overcharges Vendor hereby assigns to DIR any and all of its claims for overcharges associated with this contract which arise under the antitrust laws of the United States, 15 U.S.C.A. Section 1, et seq., and which arise under the antitrust laws of the State of Texas, Tex. Bus. and Comm. Code Section 15.01, et seq. M. Prohibited Conduct Vendor represents and warrants that, to the best of its knowledge as of the date of this certification, neither Vendor nor any Order Fulfiller, subcontractor, fine, corporation, partnership, or institution represented by Vendor, nor anyone acting for such Order Fulfiller, subcontractor, firm, corporation or institution has: (1) violated the antitrust laws of the State of Texas under Texas Business & Commerce Code, Chapter 15, or the federal antitrust laws; or (2) communicated its response to the Request for Offer directly or indirectly to any competitor or any other person engaged in such line of business during the procurement for the Contract. N. Required Insurance Coverage 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, 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. 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) 30 -day Notice of Termination in favor of DIR and/or Customer; and 06/08/12 Page 17 of 22 Appendix A Standard Terms and Conditions For Product and Related Services Contracts 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 li►niXs for Employers' Liability of $250,000 bodily injury per accident, $500,000 bodily injury disease policy limit and $250,000 per disease per employee. 3) Business Automobile Liability Insurance Business Automobile Liability Insurance must cover all owned, non -owned and hired vehicles with a minimum combined single limit of $500,000 per occurrence for bodily injury and property damage. Alternative acceptable limits are $250,000 bodily injury per person, $500,000 bodily injury per occurrence and at least $100,000 property damage liability per accident. The policy shall contain the following endorsements in favor of DIR and/or Customer: a) Waiver of Subrogation; b) 30 -day Notice of Termination; and c) Additional Insured. O. Use of State Property Vendor is prohibited from using the Customer's equipment, the Customer's Location, or any other resources of the Customer or the State of Texas for any purpose other than performing services under this Agreement. For this purpose, equipment includes, but is not limited to, copy machines, computers and telephones using State of Texas long distance services. Any charges incurred by Vendor using the Customer's equipment for any purpose other than performing services under this Agreement must be fully reimbursed by Vendor to the Customer immediately upon demand by the Customer. Such use shall constitute breach of contract and may result in termination of the contract and other remedies available to DIR and Customer under the contract and applicable law. P. Immigration Vendor shall comply with all requirements related to federal immigration laws and regulations, to include but not be limited to, the Immigration and Reform Act of 1986, the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRTRA") and the Immigration Act of 1990 (8 U.S.C.I 101, et seq.) regarding employment verification and retention of verification forms for any individual(s) hired on or after the effective date of the 1996 Act who will perform any labor or services under this Contract. Nothing herein is intended to exclude compliance by Vendor with all other relevant federal immigration statutes and regulations promulgated pursuant thereto. Q. Public Disclosure No public disclosures or news releases pertaining to this contract shall be made without prior written approval of DIR. 06/08/12 Page 18 of 22 Appendix A Standard Terms and Conditions For Product and Related Services Contracts R. Product and/or Services Substitutions Substitutions are not permitted without the written permission of DIR or Customer. S. Secure Erasure of Hard Disk Products and/or Services Vendor agrees that all products and/or services equipped with hard disk drives (i.e. computers, telephones, printers, fax machines, scanners, multifunction devices, etc.) shall have the capability to securely erase data written to the hard drive prior to final disposition of such products and/or services, either at the end of the Customer's Managed Services product's useful life or the end of the related Customer Managed Services Agreement for such products and/ services, in accordance with 1 TAC 202. T. Deceptive Trade Practices; Unfair Business Practices a) Vendor represents and warrants that neither Vendor nor any of its Subcontractors has been (i) found liable in any administrative hearing, litigation or other proceeding of Deceptive Trade Practices violations as defined under Chapter 17, Texas Business & Commerce Code, or (ii) has outstanding allegations of any Deceptive Trade Practice pending in any administrative hearing, litigation or other proceeding. b)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. U. Drug Free Workplace Policy The contractor shall comply with the applicable provisions of the Drug -Free Work Place Act of 1988 (Public Law 100-690, Title V, Subtitle D; 41 U.S.C. 701 ET SEQ.) and maintain a drug-free work environment; and the final rule, government -wide requirements for drug-free work place (grants), issued by the Office of Management and Budget and the Department of Defense (32 CFR Part 280, Subpart F) to implement the provisions of the Drug -Free Work Place Act of 1988 is incorporated by reference and the contractor shall comply with the relevant provisions thereof, including any amendments to the final rule that may hereafter be issued. 10. Contract Enforcement A. Enforcement of Contract and Dispute Resolution 1) Vendor and DIR agree to the following: (i) a party's failure to require strict performance of any provision of the Contract shall not waive or diminish that party's right thereafter to demand strict compliance with that or any other provision, (ii) for disputes not resolved in the normal course of business, the dispute resolution process provided for in Chapter 2260, Texas Government Code, shall be used, and (iii) actions or proceedings arising from the Contract shall be heard in a state court of competent jurisdiction in Travis County, Texas. 2) Disputes arising between a Customer and the Vendor shall be resolved in accordance with the dispute resolution process of the Customer that is not 06/08/12 Page 19 of 22 Appendix A Standard Terms and Conditions For Product and Related Services Contracts inconsistent with subparagraph A.1 above. DIR shall not be a party to any such dispute unless DIR, Customer, and Vendor agree in writing. B. Termination 1) Termination for Non -Appropriation a) Termination for Non -Appropriation by Customer Customer may terminate Purchase Orders if funds sufficient to pay its obligations under the Contract are not appropriated: i) by the governing body on behalf of local governinents; 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. b) Termination for Non -Appropriation by DIR DIR may terminate Contract if funds sufficient to pay its obligations under the Contract are not appropriated: by the i) Texas legislature or ii) by budget execution authority provisioned to the Governor or the Legislative Budget Board as provided in Chapter 317, Texas Government Code. In the event of non - appropriation, Vendor and/or Order Fulfiller will be provided thirty (30) calendar days written notice of intent to terminate. In the event of such termination, DIR will not be considered to be in default or breach under this Contract, nor shall it be liable for any further payments ordinarily due under this Contract, nor shall it be liable for any damages or any other amounts which are caused by or associated with such termination. 2) Absolute Right DIR shall have the absolute right to terminate the Contract without recourse in the event that: i) Vendor becomes listed on the prohibited vendors list authorized by Executive Order # 13224, "Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism", published by the United States Department of the Treasury, Office of Foreign Assets Control; ii) Vendor becomes suspended or debarred from doing business with the federal government as listed in the Excluded Parties List System (EPLS) maintained by the General Services Administration; or (iii) Vendor is found by DIR to be ineligible to hold this Contract under Subsection (b) of Section 2155.006, Texas Government Code. Vendor shall be provided written notice in accordance with Section 11.A, Notices, of intent to terminate. 06/08/12 Page 20 of 22 Appendix A Standard Terms and Conditions For Product and Related Services Contracts 3) Termination for Convenience DIR may terminate the Contract, in whole or in part, by giving the other party thirty (30) calendar days written notice. A Customer may terminate a Purchase Order if it is determined by the Customer that Order Fulfiller will not be able to deliver product or services in a timely manner to meet the business needs of the Customer. 4) Termination for Cause a) Contract Either DIR or Vendor may issue a written notice of default to the other upon the occurrence of a material breach of any covenant, warranty or provision of the Contract, upon the following preconditions: first, the parties must comply with the requirements of Chapter 2260, Texas Government Code in an attempt to resolve a dispute; second, after complying with Chapter 2260, Texas Government Code, and the dispute remains unresolved, then the non -defaulting party shall give the defaulting party thirty (30) calendar days from receipt of notice to cure said default. If the defaulting party fails to cure said default within the timeframe allowed, the non -defaulting party may, at its option and in addition to any other remedies it may have available, cancel and terminate the Contract. Customers purchasing products or services under the Contract have no power to terminate the Contract for default. b) Purchase Order Customer or Order Fulfiller may terminate a Purchase Order upon the occurrence of a material breach of any term or condition: (i) of the Contract, or (ii) included in the Purchase Order in accordance with Section 4.B.2 above, upon the following preconditions: first, the parties must comply with the requirements of Chapter 2260, Texas Government Code, in an attempt to resolve a dispute; second, after complying with Chapter 2260, Texas Government Code, and the dispute remains unresolved, then the non -defaulting party shall give the defaulting party thirty (30) calendar days from receipt of notice to cure said default. If the defaulting party fails to cure said default within the timeframe allowed, the non -defaulting party may, at its option and in addition to any other remedies it may have available, cancel and terminate the Purchase Order, 5) Customer Rights Under Termination In the event the Contract expires or is terminated for any reason, a Customer shall retain its rights under the Contract and the Purchase Order issued prior to the termination or expiration of the Contract. The Purchase Order survives the expiration or termination of the Contract for its then effective term. 6) Vendor or Order Fulfiller Rights Under Termination In the event a Purchase Order expires or is terminated, a Customer shall pay: 1) all amounts due for products or services ordered prior to the effective termination date and ultimately accepted, and 2) any applicable early termination fees agreed to in such Purchase Order. 06/08/12 Page 21 of 22 Appendix A Standard Terms and Conditions For Product and Related Services Contracts C. Force Majeure DIR, Customer, or Order Fulfiller may be excused from performance under the Contract for any period when performance is prevented as the result of an act of God, strike, war, civil disturbance, epidemic, or court order, provided that the party experiencing the event of Force Majeure has prudently and promptly acted to take any and all steps that are within the party's control to ensure performance and to shorten the duration of the event of Force Majeure. The party suffering an event of Force Majeure shall provide notice of the event to the other parties when commercially reasonable. Subject to this provision, such non-performance shall not be deemed a default or a ground for termination. However, a Customer niay terminate a Purchase Order if it is determined by the Customer that Order Fulfiller will not be able to deliver product or services in a timely manner to meet the business needs of the Customer. 11. Notification A. Notices All notices, demands, designations, certificates, requests, offers, consents, approvals and other instruments given pursuant to the Contract shall be in writing and shall be validly given on: (i) the date of delivery if delivered by email, facsimile transmission, mailed by registered or certified mail, or hand delivered, or (ii) three business days after being mailed via United States Postal Service. All notices under the Contract shall be sent to a party at the respective address indicated in Section 6 of the Contract or to such other address as such party shall have notified the other party in writing. 13. Handling of Written Complaints In addition to other remedies contained in the Contract, a person contracting with DIR may direct their written complaints to the following office: Public Information Office Department of Information Resources Attn: Public Information Officer 300 W. 15th Street, Suite 1300 Austin, Texas 78701 (512) 475-4759, facsimile 12, Captions The captions contained in the Contract, Appendices, and its Exhibits are intended for convenience and reference purposes only and shall in no way be deemed to define or limit any provision thereof. 06/08/12 Page 22 of 22 Appendix B Historically Underutilized Business (HUB) Subcontracting Plan HUB SUBCONTRACTING PLAN (HSP) In accordance with Texas Gov't Code §2161.252, the contracting agency has determined that subcontracting opportunities are probable under this contract. Therefore, all respondents, including State of Texas certified Historically Underutilized Businesses (HUBs) must complete and submit this State of Texas HUB Subcontracting Plan (HSP) with their response to the bid requisition (solicitation). NOTE: Responses that do not include a completed HSP shaft be rejected pursuant to Texas Gov't Code §2161.252(b). The HUB Program promotes equal business opportunities for economically disadvantaged persons to contract with the State of Texas in accordance with the goals specified in the 2009 Stale of Texas Disparity Study. The statewide HUB goals defined in 34 Texas Administrative Code (TAC) §20.13 are: 11.2percent for heavy construction other than building contracts, • 21.1 percent for all building construction, including general contractors and operative builders contracts, • 32.7 percent for all special trade construction contracts, • 23.6 percent for professional services contracts, • 24.6 percent for all other services contracts, and • 21 percent for commodities contracts. - - Agency Special Instructions/Additional Requirements - - In accordance with 34 TAC §20.14(d)(1)(D)(I11), a respondent (prime contractor) may demonstrate good faith effort to utilize Texas certified HUBs for its subcontracting opportunities if the total value of the respondent's subcontracts with Texas certified HUBs meets or exceeds the statewide HUB goal or the agency specific HUB goal, whichever is higher. When a respondent uses this method to demonstrate good faith effort, the respondent must identify the HUBs with which it will subcontract. If using existing contracts with Texas certified HUBs to satisfy this requirement, only contracts that have been in place for five years or less shall qualify for meeting the HUB goal. This limitation is designed to encourage Vendor rotation as recommended by the 2009 Texas Disparity Study. For assistance in completing the HSP, contact the HUB Coordinator, Bernadette Davis at bernadette.davisQ dir.texas.gov SECTION 1. RESPONDENT AND REQUISITION INFORMATION a. Respondent (Company) Name: Entech Sales & Service State of Texas VID #: 3711076516 Point of Contact: Eric Robb Phone #: 512.719.5191 E-mail Address: erobb@entechsales.com Fax #: 512.719.5192 b. Is your company a State of Texas certified HUB? ❑ - Yes ® - No c. Requisition #: DIR-SDD-TMP-189 Bid Open Date: 9 l 28 12012 2 Enter your company's name here: Entech Sales & Service Requisition #: DIR-SDD-TMP-189 SEC:TION.2 SUBCONTRACTING INTENTIONS After dividing the contract work into reasonable lots or portions to the extent consistent with prudent industry practices, and taking into consideration the scope of work to be performed under the proposed contract, including all potential subcontracting opportunities, the respondent must determine what portions of work, including goods and services, will be subcontracted. Note: In accordance with 34 TAC §20.11., an 'Subcontractor' means a person who contracts with a prime contractor to work, to supply commodities, or to contribute toward completing work for a governmental entity. a. Check the appropriate box (Yes or No) that identifies your subcontracting intentions: ❑ - Yes, I will be subcontracting portions of the contract. (If Yes, complete item b, of this SECTION and continue to Item c of this SECTION.) - No, I will not be subcontracting any portion of the contract, and 1 will be fulfilling the entire contract with my own resources. (If No, continue to SECTION 3.) b. List ail the portions of work (subcontracting opportunities) you will subcontract. Also, based on the total value of the contract, identify the percentages of the contract you expect to award to Texas certified HUBS, and the percentage of the contract you expect to award to Vendors that are not a Texas certified HUB (i.e., Non -HUB). Item ft HUBs Non•HUBs Subcontracting Opportunity Description Percentage of the contract expected to be subcontracted to HUBs with which you have had contracts in place for five 15) years or less. Percentage of the contract expected to be subcontracted to HMIs with which you have had contracts in place for more than five (5)years. percentage of the contract expected to be subcontracted to non-HUBs . 1 g% 0% 0% 2 % % 3 % % % 4 % % % 5 % % % 7 % e/ % 8 % q 9 q % 16 %% % 11 % Y e/ 12 % % % 13 % % % 14 % % % 15 % % Aggregate percentages of the contract expected to be subcontracted: % % % H Jfw' d stalek Ile,n.ncuvnmenforoalhubfhub-subcontracting•plan Nole: It you have more Than fifteen subcontracting opponuniges, a con bnualan sheelis avai{abfe online at h p mow. . c. Check the appropriate box (Yes or No) that indicates whether you will be using only Texas certified HUBs to perform all of the subcontracting opportunities you listed in SECTION 2, Item b. ❑ - Yes (If Yes, continue to SECTION 4 and complete an'HSP Good Faith Effort - Method A (Attachment A)' for each of the subcontracting opportunities you listed.) ❑ - No (If No, continue to Item d, of this SECTION.) d. Check the appropriate box (Yes or No) that indicates whether the aggregate expected percentage of the contract you will subcontract with Texas certified HUBs with which You have had contracts in place with for five (51 years or less meets or exceeds the HUB goal the contracting agency identified on page 1 in the 'Agency Special Instructions/Additional Requirements". 0 - Yes (If Yes, continue to SECTION 4 and complete an 'HSP Good Faith Effort- Method A (Attachment A)' for each of the subcontracting opportunities you listed.) 3 0 - No (II Na, continue to SECTION 4 and complete an "HSP Good Faith Effort - Method B (Attachment B)" for each of the subcontracting opportunities you listed.) Enter your company's name here: Requisition #: SECTIoN.2 SUBCONTRACTING INTENTIONS (CONTINUATION SHEET) a. This page can be used as a continuation sheet to the HSP Form's page 2, SECTION 2, Item b. Continue listing the portions of work (subcontracting opportunities) you will subcontract. Also, based on the total value of the contract, Identity the percentages of the contract you expect to award to Texas certified HUBs, and the percentage of the contract you expect to award to Vendors that are not a Texas certified HUB (i.e,, Non -HUB). Item if Subcontracting Opportunity Description HUBs Non-HUBs Percentage of the contract expected to be subcontracted to HUBs with which you have had contracts In place for five (5) years or less. Percentage of the contract expected to be subcontracted to HUBs with which you have had contracts in place for more than five (51 years. Percentage of the contract expected to be subcontracted to non-HUBs . % o/ % % % % % % % % % % % % % % % % % % % o4 e/ % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % % o/a % % % % % % % % % % % % Aggregate percentages of the contract expected to be subcontracted: % % % HSP — SECTION 2 (Continuation Sheet) SECTION 3 SELF PERFORMING JUSTIFICATION (If you responded "No" to SECTION 2, Item a, you must complete this SECTION and continue to SECTION 4.) Check the appropriate box (Yes or No) that indicates whether your response/proposal contains an explanation demonstrating how your company will fulfill the entire contract with its own resources. ® - Yes (If Yes, in the space provided below fist the specific page(s)isection(s) of your proposal which explains how your company will perform the entire contract with its own equipment, supplies, materials and/or employees.) ❑ - No (If No, in the space provided below explain how your company will perform the entire contract with its own equipment, supplies, materials and/or employees) Entech is a full service provider of parts and service installation for security. Entech can fulfill all parts of this contract internally. Entech has worked with HUB contractors in the past and shall pursue any and all opportunities for HUB participation if the opportunity arises. SECTION 4 AFFIRMATION As evidenced by my signature below, I affirm that I am an authorized representative of the respondent listed in SECTION 1, and that the information and supporting documentation submitted with the HSP Is true and correct. Respondent understands and agrees that, if awarded any portion of the requisition: • The respondent will provide notice as soon as practical to all the subcontractors (HUBS and Non -HUBS) of their selection as a subcontractor for the awarded contract. The notice must specify at a minimum the contracting agency's name and its point of contact for the contract, the contract award number, the subcontracting opportunity they (the subcontractor) will perform, the approximate dollar value of the subcontracting opportunity and the expected percentage of the total contract that the subcontracting opportunity represents. A copy of the notice required by this section must also be provided to the contracting agency's point of contact for the contract no later than ten (10) working days after the contract is awarded. • The respondent must submit monthly compliance reports (Prime Contractor Progress Assessment Report — PAR) to the contracting agency, verifying its compliance with the HSP, including the use of and expenditures made to its subcontractors (HUBs and Non-HUBs). (The PAR is available at blip://www.window.stafe.tx.us/procuremendproq/hub/hub-forms/prooressassessmenfraxfs). • The respondent must seek approval from the contracting agency prior to making any modifications to its HSP, including the hiring of additional or different subconVactors and the termination of a subcontractor the respondent identified in its HSP. If the HSP is modified without the contracting agency's prior approval, respondent may be subject to any and all enforcement remedies available under the contract or otherwise available by law, up to and including debarment from all state contracting. • The respondent must, upon request, allow the contracting agency to perform on-site reviews of the company's headquarters and/or work-sile where services are being performed and must provide documentation regarding staffing and other resources. Signature on File Date Signature Printed Name Title REMINDER: Y If you responded "Yes' to SECTION 2, Items c or d, you must complete an °I -ISP Good Faith Effort - Method A (Attachment A)' for each of the subcontracting opportunities you listed in SECTION 2, Item b. D If you responded "No' SECTION 2, items c and d, you must complete an "HSP Good Faith Effort - Method B (Attachment B)' for each of the subcontracting opportunities you listed in SECTION 2, Item b. Eric Robb Account Manager 9127112 APPENDIX C, PRICING INDEX DIR-SDD-2218 ENTECH SALES SERVICE, INC. PRODUCTS Customer Discount % off MSRP Continuum /Physical Security 60.00% Entech Kit Security Systems 20.00% ONSSI/Surveillance Systems 16.00% SoftwareHouse/Physical Security 25.00% SERVICES Alarm Monitoring Services $30 monthly Field Level 1 Helper $48.00 Field Level 2 Installer $65.25 Logic Programmer $67.50 Software Technician $72.50 Communications Network Technician $92.50 Applications Designer $72.50 Project Manager/Superintendent $77.50 Service Technician $82.50 Training $80.00 SALES AND SERVICE Submitted to: City of Round Rock Access Control Scope DIR-SDD-2218 Proposal # D110413-EJR Scope Proposal November 4, 2013 Scope of Work: This proposal is based upon replacement of the existing front end software and electronic access control panels. This will include a new front end Continuum Access Control System with web client for 2 licenses. Controllers equipped with Advanced Alarming Option. EPI Suite badging software included in this proposal. The system shall utilize a central server and communicate to 21 City of Round Rock buildings. Each building shall have a network level access controller or series of controllers to control and monitor 120 access points. 5 buildings currently have an interface with the access control system and the intrusion detection system. Continuum will pick this interface up to continue to have the ability to arm/disarm the system by using a valid credential. All existing equipment at the door shall be re -used. This shall include electronic door locks, request to exit function, door position sensors, card readers and cabling. City of Round Rock existing credentials/cards are compatible with the Continuum system and shall be re -used. Entech shall coordinate card user database transfer/data entry with Round Rock owner representative. This proposal shall include intrusion detection monitoring and fire panel monitoring initial set up and configuration of accounts and dispatch phone numbers. 5 intrusion sites and 12 fire monitored sites. Monitoring Service Agreements will be set up individually on an annual basis. Training is included in this proposal. Training would consist of initial system acceptance training and then a follow up training after 6 months of acceptance. • Proposal includes electronic copy of as-builts to include o panel layout and wiring diagrams o materials list o material data sheets o floor plan layout with devices Entech Sales & Service - An Employee Owned Company Building Automation, Security, Access, Fire & CCTV Systems, HVAC Mechanical Services Rebuilt Equipment Sales, HVAC & Power Equipment Rentals EXHIBIT "B" 1 SALES AND SERVICE Scope Proposal November 4, 2013 Project Priciina $210,581.00 Clarifications: • Conduit rough in at doors Is not Included in this proposal, • Central server provided by the city. Entech shall provide recommended specifications of server requirements. • All door hardware, lock power supplies and cabling are existing unless mentioned above, - • Owner to provide network connection. • This proposal is based upon existing panels and wiring being in place when Entech performs the work. If panels are removed prior or cabling has been cut additional costs may occur. • Provide coordination with Owner for all testing, project review, and digital control commissioning of system. • All installation and equipment will be warranted for a 12 -month period from the date of acceptance of the project by the Owner. • Card user information shall be programmed by owner in coordination with Entech. • All sales tax and permits are excluded. • Performance bond is excluded from base price and is available as an add. I appreciate the opportunity to provide a cost proposal for this work and thank you for your interest in Entech Sales and Service. If you have any questions or if you need further assistance, please contact me at (512) 719-5191. Respectfully Submitted, ENTECH SALES AND SERVICE, INC. Eric J. Robb Account Manager Entech Sales & Service - An Employee Owned Company Building Automation, Security, Access, Fire & CCTV Systems, HVAC Mechanical Services Rebuilt Equipment Sales, HVAC & Power Equipment Rentals 2 SALES AIN SERVICE Submitted to: City of Round Rock Monitoring Services Annually DIR-SDD-2218 Proposal # D110413-EJR Scope Proposal November 4, 2013 Scope of work: Entech shall provide monitoring services for 5 City of Round Rock sites for intrusion detections systems and 12 sites for fire systems monitoring. Individual Monitoring Annual Agreement$360.00 17 monitoring accounts 5-ITD 12 -Fire $6,120.00 Annually Clarifications: • Owner to provide network/phone line connection. • This proposal is based upon existing panels and wiring being in place when Entech performs the work. If panels are removed prior or cabling has been cut additional costs may occur. • All sales tax and permits are excluded. • Performance bond is excluded from base price and is available as an add. I appreciate the opportunity to provide a cost proposal for this work and thank you for your interest in Entech Sales and Service. If you have any questions or if you need further assistance, please contact me at (512) 719-5191. Respectfully Submitted, ENTECH SALES AND SERVICE, INC. Eric J. Robb Account Manager Entech Sales & Service - An Employee Owned Company Building Automation, Security, Access, Fire & CCTV Systems, HVAC Mechanical Services Rebuilt Equipment Sales, HVAC & Power Equipment Rentals 1 7+710"""' SALES AND SERVICE Submitted to: Round Rock Police Department Access Control Scope DIR-SDD-2218 Proposal # D110413-E)R-R2 Scope Proposal November 4, 2013 Scope of Work: Scope of work based upon drawings and review of existing system design. The existing system currently has 117 doors, 2 auto gates under access control and 5 entries with push button release interface. This proposal is based upon replacement of the existing front end software and electronic access control panel controllers. This will include a new front end Continuum Access Control System with web client for 2 licenses. Controllers equipped with Advanced Alarming Option. EPI Suite badging software is included in this proposal and has integration with the Continuum system. This proposal includes the integration of Easy Lobby with Continuum. This to include Easy Lobby software license along with EL reader/scanner. Reader/scanner has the capability to scan drivers license, state ID, and passports. There are four spaces within the building that will be considered "man -traps". These will be accomplished through custom programming. The sequence is written so that one opening cannot be used unless the system recognizes the other opening to be secured. All existing equipment at the door shall be re -used. This is to include electronic door locks, request to exit function, door position sensors, card readers and cabling. One new electrified exit device shall be provided on entry/exit off loading dock. Two overhead door contacts shall be provided and installed in these two loading dock doors for status. Drive in bay, and two roll up doors entering evidence shall be equipped with overhead door status switches. Round Rock PD existing credentials/cards are compatible with the Continuum system and shall be re -used. Entech shall coordinate card user database transfer/data entry with RRPD owner representative. Continuum workstation and server shall be provided by the owner. Entech to provide specifications on recommended equipment and licensing required. Entech Sales & Service - An Employee Owned Company Building Automation, Security, Access, Fire & CCTV Systems, HVAC Mechanical Services Rebuilt Equipment Sales, HVAC & Power Equipment Rentals 1 erffectio•6 SALES AND SERVICE Scope Proposal November 4, 2013 Training is included in this proposal. Training would consist of initial system acceptance training and then a follow up training after 6 months of acceptance. • Man -Traps o Prosecutors office, Office, Evidence to Lab Property, Drive in Bay • The Continuum system is priced to integrate with the existing Easy Lobby visitor system. • Proposal includes electronic copy of as-builts to include o panel layout and wiring diagrams o materials list o material data sheets o floor plan layout with devices o man -trap sequence of operations Proiect Pricing $214,036.00 Clarifications: • Conduit rough in at doors is not included in this proposal. • All door hardware, lock power supplies and cabling are existing unless mentioned above. • Owner to provide network connection. • Provide coordination with Owner for all testing, project review, and digital control commissioning of system. • All installation and equipment will be warranted for a 12 -month period from the date of acceptance of the project by the Owner. • Card user information shall be programmed by owner in coordination with Entech. • All sales tax and permits are excluded. • Performance bond is excluded from base price and is available as an add. I appreciate the opportunity to provide a cost proposal for this work and thank you for your interest in Entech Sales and Service. If you have any questions or if you need further assistance, please contact me at (512) 719-5191. Respectfully Submitted, ENTECH SALES AND SERVICE, INC. Eric J. Robb Account Manager Entech Sales & Service - An Employee Owned Company Building Automation, Security, Access, Fire & CCTV Systems, HVAC Mechanical Services Rebuilt Equipment Sales, HVAC & Power Equipment Rentals 2 No Text