CM-2019-0249 - 8/23/2019CITY OF ROUND ROCK AGREEMENT FOR
FOR FIRE ALARM SYSTEM EQUIPMENT AND SERVICES
WITH
CONVERGINT TECHNOLOGIES LLC
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 fire alarm system equipuapt apo services
(referred to Wrein as the "Agreement"), is made and entered into on this th/
month of q' of the
L. , 2019 by and between the CITY OF ROUND ROCK, a Texas home -
rule municipality,hose offices are located at 221 East Main Street, Round Rock, Texas 78664-
5299 (referred to herein as the "City"), and CONVERGINT TECHNOLOGIES, LLC, whose
offices are located at 10535 Boyer Boulevard, Suite 300, Austin, Texas 78758 (referred to herein
as "Vendor").
RECITALS:
WHEREAS, City desires to purchase certain deliverables, specifically, fire alarm
equipment and services, and City desires to procure same from Vendor; and
WHEREAS, this Agreement shall not cover any fire alarm monitoring services; and
WHEREAS, City desires to purchases said services from Vendor through DIR Contract
#DIR-TSO-3537; 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 Vendor whereby
City is obligated to buy specified services and Vendor is obligated to sell services.
B. City means the City of Round Rock, Williamson and Travis Counties, Texas.
00419954/ss2
L'4112-0/ � c'4� 7
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. Services mean work performed to meet a demand or effort by Vendor to comply
with promised delivery dates, specifications, and technical assistance specified.
2.01 EFFECTIVE DATE; TERM
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 terninated or extended as provided herein.
B. This Agreement shall terminate August 2, 2020.
C. City reserves the right to review the relationship with Vendor 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 services which are the subject matter of this Agreement are described in Exhibit "A,"
attached hereto and incorporated herein by reference, and Exhibit `B," attached hereto and
incorporated herein by reference together with this Agreement, comprise the Contract Documents.
4.01 ITEMS
A. The services which are the subject matter of this Agreement are described generally
in the attached Exhibit "A" and are subject to the Terms and Conditions set forth in the attached
Exhibit `B."
B. This Agreement shall evidence the entire understanding and agreement between the
parties and shall supersede any prior proposals, correspondence or discussions.
C. Vendor shall satisfactorily provide all deliverables described in Exhibit "A" within
the contract tern specified. A change in the Scope of Services or any tern of this Agreement,
including bonding requirements, must be negotiated and agreed to in all relevant details, and must
be embodied in a valid Supplemental Agreement as described herein.
2
5.01 COSTS
A. City agrees to pay for services during the term of this Agreement at the pricing set
forth in Exhibit "C" for the locations set forth in Exhibit "D," said exhibits attached hereto and
incorporated here in by reference for all purposes.
B. In consideration for the deliverables and services related to the deliverables, the
City agrees to pay Vendor an amount not to exceed Thirty -Five Thousand and No/100 Dollars
($35,000.00) per year for the goods and services set forth in this Agreement for a total not -to -
exceed amount of Seventy Thousand and No/100 Dollars ($70,000.00) for the term of this
Agreement.
6.01 INVOICES
All invoices shall include, at a minimum, the following information:
A. Name and address of Vendor;
B. Purchase Order Number;
C. Description and quantity of items received or services provided; and
D. Delivery or performance dates.
7.01 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 tenninate 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 tennination by
giving Vendor a written notice of tennination at the end of its then current fiscal year.
8.01 PROMPT PAYMENT POLICY
In accordance with Chapter 2251, V.T. C.A., Texas Government Code, payment to Vendor
will be rpade within thirty (30) days of the day on which City receives the performance, supplies,
materialsg 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. Vendor
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 Vendor, a contractor, subcontractor
or supplier about the goods delivered or the service performed that cause the
payinent 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 Vendor 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
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.
9.01 GRATUITIES AND BRIBES
City may, by written notice to Vendor, cancel this Agreement without liability to Vendor
if it is detennined by City that gratuities or bribes in the form of entertainment, gifts, or otherwise
were offered or given by Vendor or its agents or representatives to any City officer, employee or
elected representative with respect to the performance of this Agreement. In addition, Vendor may
be subject to penalties stated in Title 8 of the Texas Penal Code.
10.01 TAXES
City is exempt from Federal Excise and State Sales Tax; therefore, tax shall not be included
in Vendor's charges.
11.01 ORDERS PLACED WITH ALTERNATE VENDORS
If Vendor cannot provide the goods as specified, City reserves the right and option to obtain
the products from another supplier or suppliers.
12.01 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
212 Commerce Cove
Round Rock, Texas 78664
(512) 341-3191
cmcdowel l(cr roundrocktexas i4ov
13.01 INSURANCE
Vendor shall meet all the insurance requirements set forth in the attached Exhibit `B," the
"Terns and Conditions."
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.
15.01 DEFAULT
If Vendor abandons or defaults under this Agreement and is a cause of City purchasing the
specified goods elsewhere, Vendor 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.
Vendor shall be declared in default of this Agreement if it does any of the following:
A. Fails to fully, timely and faithfully perform any of its material obligations
under this Agreement;
B. Fails to provide adequate assurance of perfonnance under the "Right to
Assurance" section herein; or
C. 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 Vendor.
B. In the event of any default by Vendor, City has the right to terminate this Agreement
for cause, upon ten (10) days' written notice to Vendor.
C. Vendor has the right to tenninate this Agreement only for cause, that being in the
event of a material and substantial breach by City, or by mutual agreement to tenninate 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 Vendor_ Venrinr 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, Vendor
shall submit a statement showing in detail the goods and/or services satisfactorily perfonned under
this Agreement to the date of termination. City shall then pay Vendor that portion of the charges,
if undisputed. The parties agree that Vendor is not entitled to compensation for services it would
have performed under the remaining tenn of the Agreement except as provided herein.
17.01 INDEMNIFICATION
Vendor 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 Vendor, or
Vendor's agents, employees or subcontractors, in the perfonnance of Vendor'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 Vendor (including, but not limited to the right to seek contribution)
against any third party who may be liable for an indemnified claim. Vendor shall not be required
to indemnify or defend any party to the extent the matter to be indemnified or defended against is
caused by the negligence or willful misconduct of one or more of the indemnified parties.
18.01 COMPLIANCE WITH LAWS, CHARTER AND ORDINANCES
A. Vendor, 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.
B. In accordance with Chapter 2270, Texas Government Code, a governmental entity
may not enter into a contract with a company for goods and services unless the contract contains
written verification from the company that it: (1) does not boycott Israel; and (2) will not boycott
Israel during the term of a contract. The signatory executing this Agreement on behalf of Vendor
verifies that Vendor does not boycott Israel and will not boycott Israel during the tenn of this
Agreement.
19.01 ASSIGNMENT AND DELEGATION
The parties each hereby bind themselves, their successors, assigns and legal representatives
to each other with respect to the terns 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:
71
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 snail, with postage prepaid
to the recipient's address as stated in this Agreement.
Notice to Vendor:
Convergint Technologies, LLC
10535 Boyer Boulevard
Suite 300
Austin, Texas 78758
With Copy to:
Convergint Technologies, LLC
Attn: Legal Department
One Commerce Drive
Schaumburg, Illinois 60173
Notice to City:
City Manager Stephan L. Sheets, City Attorney
221 East Main Street AND TO: 309 East Main Street
Round Rock, TX 78664 Round Rock, TX 78664
Nothing contained herein shall be construed to restrict the transmission of routine
communications between representatives of City and Vendor.
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
Vendor 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 Vendor 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 detennined void.
25.01 MISCELLANEOUS PROVISIONS
Non -Direct Damages. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE
OTHER PARTY HERETO (OR TO ANY INDEMNITEE) FOR ANY SPECIAL, INDIRECT,
INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING COMMERCIAL LOSS,
LOSS OF USE, OR LOST PROFITS (WHETHER AS DIRECT OR CONSEQUENTIAL
DAMAGES), EVEN IF EITHER PARTY HAS BEEN ADVISED OF THE POSSIBLITY OF
SUCH DAMAGES.
Standard of Care. Vendor 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. Vendor understands and agrees that time is of the essence and
that any failure of Vendor to fulfill obligations for each portion of this Agreement within the agreed
timeframes will constitute a material breach of this Agreement. Vendor shall be fully responsible
for its delays or for failures to use best efforts in accordance with the ten -ns of this Agreement.
Where damage is caused to City due to Vendor'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 Vendor 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.
8
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 Vendor have executed this Agreement on the dates
indicated.
City of Round Rock, Texas
By: t
Printed
Title: Ua
Date Signed:
Attest: ,
By: 14�L
Sara L. White, City Clerk
For City, Approved as to Form:
By:
trees, City A orney
cf el'17 ��
Convergint Technologies, Inc.
Printed Name: Kevin Popejoy
Title: General Manager
j Date Signed: 07/03/2019
Exhibit A- Scope of Work
1. Purpose: The City of Round Rock would like to enter into a contract with Convergint Technologies
per the terms of DIR cooperative contract # DIR-TSO-3537. The City intends to purchase from this
contract products and services needed for fire alarm service, maintenance, and installation. The
contract shall not exceed $35,000.00 per year for a total not to exceed amount of $70,000.00.
2. Scope of Work -
A. Contractor shall perform all work in accordance with all federal, state and local codes. These
include, but are not limited to:
i. National Fire Protection Association (NFPA)
ii. National Electric Code (NEC)
Texas Insurance Code
iv. Texas Administrative Code (TAC)
B. Contractor is responsible for reviewing the existing conditions and field verifying all existing fire
protection devices and systems before submitting their proposal for scheduled and
unscheduled work, including emergency services and corrective repairs/upgrades.
C. Contractor shall submit to the Round Rock Project Manager or designee, a Field Service Report
at the conclusion of all work (scheduled and unscheduled) before leaving the site. The report
shall be legible and show in detail the hours worked, travel time, work performed, parts used,
and expenses incurred. The report shall identify and document any issues needing further
immediate attention and consequences if left unattended.
D. Contractor shall meet with facility management prior to conducting tests or inspections. They
should be familiar with site equipment and should be prepared to discuss any risks associated
with their work so that the City can prioritize and properly schedule the work.
E. Contractor's single point of contact (SPOC) shall coordinate in advance with each designated
work site contact in order to minimize disruptions when isolating systems as needed to
complete the work.
F. Contractor shall verify operation of the fire, smoke, heat, gas detection, and alarm systems
including all detection devices, monitor modules, interface relays, tamper switches, pressure
switches, warning lights, manual pulls, control panels and associated equipment in compliance
with applicable codes and standards.
G. After any testing or repairs, the Contractor shall coordinate with the designated contact and
return the system to service in a fully automatic operating mode in accordance with the
manufacturer's instructions and applicable codes and standards within 48 hours.
H. Contractor shall provide one (1) hardcopy and one (1) digital copy of the test/ inspection report
documenting any testing, inspections performed, or as built drawings to the work site Project
Manager or their designee within 48 hours of the completion of work.
I. Contractor shall notify facility maintenance designee before leaving site if a system or
component of a system is "red -tagged".
J. If equipment is red -tagged the Contractor will work proactively with the facility maintenance
designee to resolve the issue within 72 hours unless otherwise discussed and agreed upon.
3. Work Sites
A. See Exhibit C— List of Buildings
B. The City reserves the right to add buildings not listed in Exhibit C as the need arises.
4. Schedulinq
A. The regularly scheduled inspections performed for all City of Round Rock Buildings occur in
March and April of each year. All inspection requests should be responded to and coordinated
within seven calendar days of the City's notification that services are required.
i. The following scheduled services are anticipated under this contract: Annual
Inspection of Fire Alarm Control Panel, Annunciators, Smoke Detectors, Duct
Page 1 of 2
Exhibit A- Scope of Work
Detectors, Heat Detectors, Pull Stations, Booster Power Supply, Notification
Appliances, Elevator, and Batteries.
B. For unscheduled services, service hours are 24 hours.
i. Unscheduled services include emergency services.
ii. Emergency service calls will be made by the specific work site Project Manager or
their designee. The City requires Contractor personnel to be on site within two hours
of notification of an emergency service request.
iii. For the purpose of a resulting contract, emergency services are defined as incidents
where a system discharges and/or equipment malfunctions.
iv. Contractor staff shall review and assess the situation and prepare a time and
materials quote for the required work for review by the work site Project Manager or
their designee.
V. Once the work site Project Manager or their designee reviews and signs off on the
quote for services, the Contractor is clear to begin work.
vi. Systems subject to emergency services calls include, but are not limited to: Fire Alarm
Systems, Sprinkler Systems, and Gaseous Systems.
Page 2 of 2
DocuSign Envelope ID: DB3E6F95-2566-4DB5-9DE0-D4379C455D5F
Exhibit "B"
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 Terns and/or Amendments .................................................. 2
C. Invalid Term or Condition............................................................................................ 2
D. Assignment................................................................................................................... 3
E. Survival.........................................................................................................................3
F. Choice of Law................
.........................................................................................
G.
Limitation of Authority.............................................................................................. . 3
H. Proof of Financial Stability........................................................................................... 3
5. Intellectual Property Matters.................................................................................................. 3
A. Definitions.....................................................................................................................3
B. Ownership..................................................................................................................... 4
C. Further Actions.....................................
...............................................
.........................
D. Waiver of Moral Rights.................................................................... ............................ 5
E. Confidentiality........................................................... ...................................................5
F. Injunctive Relief .................. 6
......................................................................
G. Return of Materials Pertaining to Work Product.......................................................... 6
H. Vendor License to Use .................................... 6
I. Third -Party Underlying and Derivative Works............................................................ 6
J. Agreement with Subcontracts....................................................................................... 6
K. License to Customer................................................................... .................................. 6
L. Vendor Development Rights......................................................................................... 7
6. Product Terms and Conditions ......................... 7
........................
A. Electronic and Infonnation Resources Accessibility Standards, As Required
by 1 TAC Chapters 206 and 213 (Applicable to State Agency and
Institution of Higher Education Purchases Only)......................................................... 7
B. Purchase of Commodity Items (Applicable to State Agency Purchases
Only)............................................................................................................................. 7
7. Contract Fulfillment and Promotion...................................................................................... 8
A. Service, Sales and Support of the Contract................................................................... 8
B. Use of Order Fulfillers.................................................................................................. 8
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DocuSign Envelope ID: DB3E6F95-2566-4D65-9DE0-D4379C455D5F
Exhibit "B"
Appendix A
Standard Terms and Conditions For Product and Related Services Contracts
1) Designation of Order Fulfillers............................................................................... 8
2) Changes in Order Fulfiller List............................................................................... 8
3) Order Fulfiller Pricing to Customer........................................................................ 8
C. Product Warranty and Return Policies.......................................................................... 9
D. Customer Site Preparation............................................................................................ 9
E. Internet Access to Contract and Pricing Information................................................... 9
I ) Vendor Webpage ..................
2) Accurate and Timely Contract Information............................................................ 9
3) Webpage Compliance Checks.............................................................................. 10
4) Webpage Changes ..................................
5) Use of Access Data Prohibited............................................................................. 10
6) Responsibility for Content.................................................................................... 10
F. DIR Logo.................................................................................................................... 10
G. Vendor and Order Fulfiller Logo................................................................................ 10
H. Trade Show Participation............................................................................................ 10
1. Orientation Meeting.................................................................................................... 11
J. Performance Review Meetings................................................................................... 11
K. DIR Cost Avoidance 11
...........................
8. Pricing, Purchase Orders, Invoices, and Payments.............................................................. 11
A. Manufacturer's Suggested Retail Price (MSRP) or List Price .................................... 11
B. Customer Discount...................................................................................................... 11
C. Customer Price ................. 11
.................................................
D. Shipping and Handling Fees....................................................................................... 12
E. Tax -Exempt ................................................................... ..............................................12
F. Travel Expense Reimbursement................................................................................. 12
G. Changes to Prices........................................................................................................ 12
H. Purchase Orders.......................................................................................................... 12
I. Invoices....................................................................................................................... 13
J. Payments..................................................................................................................... 13
9. Contract Administration..........................
.............................................................................
13
A. Contract Managers......................................................................................................
1) State Contract Manager
13
.........................................................................................
2) Vendor Contract Manager
13
.....................................................................................
B. Reporting and Administrative Fees
13
............................................................................
1) Reporting Responsibility......................................................................................
14
2) Detailed Monthly Report
14
......................................................................................
3) Historically Underutilized Businesses Subcontract Reports
14
.................................
4) DIR Administrative Fee
14
........................................................................................
5) Accurate and Timely Submission of Reports
14
.......................................................
C. Records and Audit
15
..........................................................................................
D. Contract Administration Notification
15
.........................................................................
16
10. Vendor Responsibilities.......................................................................................................16
A. Indemnification
...........................................................................................................
16
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DocuSign Envelope ID: DB3E6F95-2566-4DB5-9DE0-D4379C455D5F
Exhibit "B"
Appendix A
Standard Terms and Conditions For Product and Related Services Contracts
1) INDEPENDENT CONTRACTOR....................................................................... 16
2) ACTS OR OMISSIONS....................................................................................... 16
3) INFRINGEMENTS .................................
4) PROPERTY DAMAGE........................................................................................ 17
B. Taxes/Worker's Compensation/UNEMPLOYMENT INSURANCE ........................ 18
C. Vendor Certifications.................................................................................................. 18
D. Ability to Conduct Business in Texas......................................................................... 20
E. Equal Opportunity Compliance.................................................................................. 20
F. Use of Subcontractors................................................................................................. 20
G. Responsibility for Actions.......................................................................................... 21
H. Confidentiality ..........................
I. Security of Premises, Equipment, Data and Personnel ............................................... 21
J. Background and/or Criminal History Investigation ....................................
K. Limitation of Liability................................................................................................. 21
L. Overcharges................................................................................................................ 22
M. Prohibited Conduct..................................................................................................... 22
N. Required Insurance Coverage..................................................................................... 22
O. Use of State Property.................................................................................................. 23
P. Immigration................................................................................................................. 23
Q. Public Disclosure........................................................................................................ 24
R. Product and/or Services Substitutions........................................................................ 24
S. Secure Erasure of Hard Disk Products and/or Services .............................................. 24
T. Deceptive Trade Practices; Unfair Business Practices ............................................... 24
U. Drug Free Workplace Policy...................................................................................... 24
V. Accessibility of Public Information............................................................................ 24
W. Vendor Reporting Requirements................................................................................ 25
11. Contract Enforcement.......................................................................................................... 25
A. Enforcement of Contract and Dispute Resolution...................................................... 25
B. Termination.................
............................................................................
1) Termination for Non-Appropriation..................................................................... 25
2) Absolute Right...................................................................................................... 26
3) Termination for Convenience ........................................... 26
....................................
4) Termination for Cause.......................................................................................... 26
5) Immediate Termination or Suspension................................................................. 27
6) Customer Rights Under Termination.................................................................... 27
7) Vendor or Order Fulfiller Rights Under Termination ........................................... 27
C. Force Majeure............................................................................................................. 27
12. Notification.......................................................................................................................... 28
A. Notices........................................................................................................................ 28
B. Handling of Written Complaints................................................................................. 28
13. Captions............................................................................................................................... 28
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DocuSign Envelope ID: DB3E6F95-2566-4DB5-9DE0-D4379C455D5F
Exhibit "B"
The following terms and conditions shall govern the conduct of DIR and Vendor during the term of the
Contract.
1. Contract Scope
The Vendor shall provide the products and related services specified in Section 3 of the Contract
for purchase by Customers. In addition, DIR and Vendor may agree to provisions that allow
Vendor and/or Order Fulfiller to lease the products offered under the Contract. Terms used in this
document shall have the meanings set forth below in Section 3.
2. No Quantity Guarantees
Note: NO LXC EI'TIONS OR REVISIONS W11-1- 13l, CONSIDERED
The Contract is not exclusive to the Vendor. Customers may obtain products and related services
from other sources during the term of the Contract. DIR makes no express or implied warranties
whatsoever that any particular quantity or dollar amount of products and 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, the Electric Reliability Council of
Texas, the Lower Colorado River Authority, a private school, as defined by Section 5.001,
Education Code, a private or independent institution of higher education, as defined by
Section 61.003, Education Code, a volunteer fire department, as defined by Section 152.001,
Tax Code, and those state agencies purchasing from a DIR contract through an Interagency
Agreement, as authorized by Chapter 771, Texas Government Code, any local goverrunent
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 corninissioner of agriculture as the foundation's successor entity under
Section 74. 1011, Texas Agriculture Code;
8) A nonprofit computer bank that solicits, stores, refurbishes and redistributes used
computer equipment to public school students and their families; and
9) A nonprofit organization that provides affordable housing.
B. Compliance Check — an audit of Vendor's compliance with the Contract may be performed
by, but not limited to, a third party auditor, DIR Internal Audit department, or DIR contract
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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,
unless otherwise specified as calendar days. If the Contract calls for performance on a day that
is not a business day, then performance is intended to occur on the next business day.
F. Order Fulfiller — the party, either Vendor or a party that may be designated by Vendor, who
is fulfilling a Purchase Order pursuant to the Contract.
G. Purchase Order - the Customer's fiscal form or fonnat, 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 terns 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
ofwork, 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 tern or condition in the Contract conflicts with the applicable State and/or
United States law or regulation, such Contract tern or condition is void and unenforceable. By
executing a contract which contains the conflicting tern or condition, DIR makes no
representations or warranties regarding the enforceability of such teen or condition and DIR
does not waive the applicable State and/or United States law or regulation which conflicts with
the Contract tenn or condition.
2) If one or more terns or conditions 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 tern or condition to other
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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 and, for Vendor, a mutually agreed
written Contract amendment. Any other assignment by a party shall require the written consent of
the other party and a mutually agreed written Contract amendment.
E. Survival
All applicable software license agreements, warranties or service agreements that were entered into
between Vendor and a Customer under the terms and conditions of the Contract shall survive the
expiration or termination of the Contract All Purchase Orders issued and accepted by Vendor or
Order Fulfiller shall survive expiration or termination of the Contract for the tenn of the Purchase
Order, unless the Customer terminates the Purchase Order sooner. However, regardless of the tern
of the Purchase Order, no Purchase Order shall survive the expiration or termination of the Contract
for more than five years, unless Customer makes an express finding and justification for the longer
term. The funding and justification must either be included in the Purchase Order, or referenced in
it and maintained in Customer's procurement record. Rights and obligations under this Contract
limited which by their nature should survive, including, but not to the DIR Administrative Fee; and
any and all payment obligations invoiced prior to the termination or expiration hereof; obligations
of confidentiality; and, indemnification, will remain in effect after termination or expiration hereof.
F. Choice of Law
The laws of the State shall govern the construction and interpretation of the Contract. Exclusive
venue for all actions will be in state court, Travis County, Texas. Nothing in the Contract or its
Appendices shall be construed to waive the State's sovereign immunity.
G. Limitation of Authority
Vendor shall have no authority to act for or on behalf of the Texas Department of Information
Resources or the State except as expressly provided for in this Contract; no other authority, power
or use is granted or implied. Vendor may not incur any debts, obligations, expenses, or liabilities of
any kind on behalf of the State or DIR.
H. Proof of Financial Stability
Either DIR or Customer may require Vendor to provide proof of financial stability prior to or at
any time during the contract tern.
5. Intellectual Property Matters
A. Definitions
1)" Work Product" means any and all deliverables produced by Vendor for Customer under a
Statement of Work issued pursuant to this Contract, including any and all tangible or intangible
iterns 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,
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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.
4) "Third Party IP" means the Intellectual Property Rights of any third party that is not a party
to this Contract, and that is not directly or indirectly providing any goods or services to
Customer under this Contract.
5) "Vendor IP" shall mean all tangible or intangible items or things, including the Intellectual
Property Rights therein, created or developed by Vendor (a) prior to providing any Services or
Work Product to Customer and prior to receiving any documents, materials, information or
funding from or on behalf of Customer relating to the Services or Work Product, or (b) after
the Effective Date of the Contract if such tangible or intangible items or things were
independently developed by Vendor outside Vendor's provision of 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
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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 through Friday, 8AM to 5PM) and upon reasonable prior notice to
Vendor, to all Vendor materials, premises and computer files containing the Work Product. Vendor
and Customer, as appropriate, will cooperate with one another and execute such other documents as
may be reasonably appropriate to achieve the objectives herein. No license or other right is granted
hereunder to any Third Party 1P, except as may be incorporated in the Work Product by Vendor.
C. Further Actions.
Vendor, upon request and without further consideration, shall perform any acts that may be deemed
reasonably necessary or desirable by Customer to evidence more fully the transfer of ownership
and/or registration of all Intellectual Property Rights in all Work Product to Customer to the fullest
extent possible, including but not limited to the execution, acknowledgement and delivery of such
further documents in a form determined by Customer. In the event Customer shall be unable to
obtain Vendor's signature due to the dissolution of Vendor or Vendor's unreasonable failure to
respond to Customer's repeated requests for such signature on any 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.
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F. Injunctive Relief.
The Contract is intended to protect Customer's proprietary rights pertaining to the Work Product,
and the Intellectual Property Rights therein, and any misuse of such rights would cause substantial
and irreparable harm to Customer's business. Therefore, Vendor acknowledges and stipulates that a
court of competent jurisdiction may immediately enjoin any material breach of the intellectual
property, use, and confidentiality provisions of this Contract, upon a request by Customer, without
requiring proof of irreparable injury as same should be presumed.
G. Return of Materials Pertaining to Work Product.
Upon the request of Customer, but in any event upon termination or expiration of this Contract or a
Statement of Work, Vendor shall surrender to Customer all documents and things pertaining to the
Work Product, including but not limited to drafts, memoranda, notes, records, drawings, manuals,
computer software, reports, data, and all other documents or materials (and copies of same)
generated or developed by Vendor or furnished by Customer to Vendor, including all materials
embodying the Work Product, any Customer confidential information, or Intellectual Property
Rights in such Work Product, regardless of whether complete or incomplete. This section is
intended to apply to all Work Product as well as to all documents and things furnished to Vendor by
Customer or by anyone else that pertain to the Work Product.
H. Vendor License to Use.
Customer hereby grants to Vendor a non -transferable, non-exclusive, royalty -free, fully paid-up
license to use any Work Product solely as necessary to provide the Services to Customer. Except as
provided in this Section, neither Vendor nor any Subcontractor shall have the right to use the Work
Product in connection with the provision of services to its other customers without the prior written
consent of Customer, which consent may be withheld in Customer's sole discretion.
I. Third -Party Underlying and Derivative Works.
To the extent that any Vendor IP or Third Party IP are embodied or reflected in the Work Product,
or are necessary to provide the Services, Vendor hereby grants to the Customer, or shall obtain from
the applicable third party for Customer's benefit, the irrevocable, perpetual, non-exclusive,
worldwide, royalty -free right and license, for Customer's internal business purposes only, to (i) use,
execute, reproduce, display, perform, distribute copies of, and prepare derivative works based upon
such Vendor IP or Third Party IP and any derivative works thereof embodied in or delivered to
Customer in conjunction with the Work Product, and (ii) authorize others to do any or all of the
foregoing. Vendor agrees to notify Customer on delivery of the Work Product or Services if such
materials include any Third Party IP. On request, Vendor shall provide Customer with
documentation indicating a third party's written approval for Vendor to use any Third Party IP that
may be embodied or reflected in the Work Product.
J. Agreement with 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 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 perfonnance of this Contract, which are sufficient to support all performance and
grants of rights by Vendor. Copies of such agreements shall be provided to the Customer promptly
upon request.
K. License to Customer.
Vendor grants to Customer, a perpetual, irrevocable, royalty free license, solely for the Customer's
internal business purposes, to use, copy, modify, display, perform (by any means), transmit and
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prepare derivative works of any Vendor 1P embodied in or delivered to Customer in conjunction
with the Work Product. The foregoing license includes the right to sublicense third parties, solely
for the purpose of engaging such third parties to assist or carryout Customer's internal business use
of the Work Product. Except for the preceding license, all rights in Vendor IP remain in Vendor.
L. Vendor Development Rights.
To the extent not inconsistent with Customer's rights in the Work Product or as set forth herein,
nothing in this Contract shall preclude Vendor- from developing for itself, or for others, materials
which are competitive with those produced as a result of the Services provided hereunder, provided
that no Work Product is utilized, and no Intellectual Property Rights of Customer- therein are
infringed by such competitive materials. To the extent that Vendor wishes to use the Work Product,
or acquire licensed rights in certain Intellectual Property Rights of Customer therein in order to
offer competitive goods or services to third parties, Vendor and Customer agree to negotiate in
good faith regarding an appropriate license and royalty agreement to allow for such.
6. Product Terms and Conditions
Note: NO LXCf I'1 IONS OR REVISIONS WILL 131- C ONSIDI--Rl-D
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 Accessibility requirements for Electronic and Information
Resources specified in 1 TAC Chapters 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 than thirty (30) calendar 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 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 6.13.2, below, in accordance with contracts developed by DIR, unless the agency
obtains an exemption from DIR or a written certification that a commodity is not on DIR contract
(for the limited purpose of purchasing from a local government purchasing cooperative).
2) Cornrnodity 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
cornmercially 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
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necessary hardware, software and technology services.
3) Vendor agrees to coordinate all State agency commodity item sales through existing DIR
contracts. Institutions of higher education are exempt from this Subsection 6.13.
7. Contract Fulfillment and Promotion
A. Service, Sales and Support of the Contract
Vendor shall provide service, sales and support resources to serve all Customers throughout the
State. It is the responsibility of the Vendor to sell, market, and promote products and services
available under the Contract. Vendor shall use its best efforts to ensure that potential Customers
are made aware of the existence of the Contract. All sales to Customers for products and services
available under the Contract shall be processed through the Contract.
B. Use of Order Fulfillers
DIR agrees to permit Vendor to utilize designated Order Fulfillers to provide service, sales and
support resources to Customers. Such participation is subject to the following conditions:
1) Designation of Order Fulfillers
a) Vendor may designate Order Fulfillers to act as the distributors for products and
services available under the Contract. In designating Order Fulfillers, Vendor must be in
compliance with the State's Policy on Utilization of Historically Underutilized Businesses.
In addition to the required Subcontracting Plan, Vendor shall provide DIR with the
following Order Fulfiller information: Order Fulfiller name, Order Fulfiller business
address, Order Fulfiller CPA Identification Number, Order Fulfiller contact person email
address and phone number.
b) DIR reserves the right to require the Vendor to rescind any such Order Fulfiller
participation or request that Vendor name additional Order Fulfillers should DIR determine
it is in the best interest of the State.
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 tenn 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 7.13. La
above.
3) Order Fulfiller Pricing to Customer
Order Fulfiller pricing to the Customer shall comply with the Customer price as stated within
Appendix A, Section 8, Pricing, Purchase Orders, Invoices and Payment, and as set forth in
Appendix C, Pricing Index, and shall include the DIR Administrative Fee. This pricing shall
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only be offered by Order Fulfillers to Customers for sales that pass through the Contract
C. Product Warranty and Return Policies
Order Fulfiller will adhere to the Vendor's then -currently published policies concerning product
warranties and returns. Product warranty and return policies for Customers will not be more
restrictive or more costly than warranty and return policies for other similarly situated Customers
for like products.
D. Customer Site Preparation
Customers shall prepare and maintain its site in accordance with written instructions furnished by
Order- Fulfiller prior to the scheduled delivery date of any product or service and shall bear the costs
associated with the site preparation.
E. Internet Access to Contract and Pricing Information
1) Vendor Webpage
Within thirty (30) calendar days of the effective date of the Contract, Vendor will establish and
maintain a webpage specific to the products and services awarded under the Contract that are
clearly distinguishable from other, non-DIR Contract offerings on the Vendor's website. The
webpage must include:
a) the products and services awarded;
b) description of product and service awarded
c) a current price list or mechanism (for example, a services calculator or product
builder) to obtain specific contracted pricing;
d) discount percentage (%) off MSRP or List Price;
e) designated Order Fulfillers;
f) contact information (name, telephone number and email address) for Vendor and
designated Order Fulfillers;
g) instructions for obtaining quotes and placing Purchase Orders;
h) warranty policies;
i) return policies;
j) the DIR Contract number with a hyperlink to the Contract's DIR webpage;
k) a link to the DIR "Cooperative Contracts" webpage; and
1) the DIR logo in accordance with the requirements of this Section.
If Vendor does not meet the webpage requirements listed above, DIR may cancel the contract
without penalty.
2) Accurate and Timely Contract Information
Vendor warrants and represents that the website information specified in the above paragraph
will be accurately and completely posted, maintained and displayed in an objective and timely
manner. Vendor, at its own expense, shall correct any non -conforming or inaccurate
infonnation posted at Vendor's website within ten (10) business days after written notification
by DIR.
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Exhibit "B"
3) Webpage Compliance Checks
Periodic compliance checks of the information posted for the Contract on Vendor's webpage
will be conducted by DIR. Upon request by DIR, Vendor shall provide verifiable
documentation that pricing listed upon this webpage is compliant with the pricing as stated in
the Contract.
4) Webpage Changes
Vendor hereby consents to a link from the DIR website to Vendor's webpage in order to
facilitate access to Contract information. The establishment of the link is provided solely for
convenience in carrying out the business operations of the State. DIR reserves the right to
suspend, terminate or remove a link at any time, in its sole discretion, without advance notice,
or to deny a future request for a link. DIR will provide Vendor with subsequent notice of link
suspension, termination or removal. Vendor shall provide DIR with timely written notice of
any change in URL or other information needed to access the site and/or maintain the link.
5) Use of Access Data Prohibited
If Vendor stores, collects or maintains data electronically as a condition of accessing Contract
information, such data shall only be used internally by Vendor- for the purpose of implementing
or marketing the Contract and shall not be disseminated to third parties or used for other
marketing purposes. The Contract constitutes a public document under the laws of the State
and Vendor shall not restrict access to Contract terms and conditions including pricing, i.e.,
through use of restrictive technology or passwords.
6) Responsibility for Content
Vendor is solely responsible for administration, content, intellectual property rights, and all
materials at Vendor's website. DIR reserves the right to require a change of listed content if, in
the opinion of DIR, it does not adequately represent the Contract.
F. DIR Logo
Vendor and 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
If DIR receives Vendor's or Order Fulfiller's prior written approval, DIR may use the Vendor's and
Order's Fulfiller's name and logo in the promotion of the Contract to communicate the availability
of products and services under the Contract to Customers. Use of the logos may be on the DIR
website or on printed materials. Any use of Vendor's and Order Fulfiller's logo by DIR must comply
with and be solely related to the purposes of the Contract and any usage guidelines communicated
to DIR from time to time. Nothing contained in the Contract will give DIR any right, title, or interest
in or to Vendor's or Order Fulfiller' trademarks or the goodwill associated therewith, except for the
limited usage rights expressly provided by Vendor and Order Fulfiller.
H. Trade Show Participation
At DIR's discretion, Vendor and Order Fulfillers may be required to participate in no more than two
DIR sponsored trade shows each calendar year. Vendor understands and agrees that participation, at
the Vendor's and Order Fulfiller's 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.
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Exhibit "B"
I. Orientation Meeting
Within 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 to
include reporting requirements. DIR, at its discretion, may waive the orientation requirement for
Vendors who have previously held DIR contracts. The meeting will be held in the Austin, Texas
area at a date and time mutually acceptable to DIR and the Vendor or by teleconference, at D1R's
discretion. DIR shall bear no cost for the time and travel of the Vendor or Order Fulfillers for
attendance at the meeting.
J. Performance Review Meetings
DIR may require the Vendor to attend periodic meetings to review the Vendor's performance under
the Contract, at DIR's discretion. The meetings may be held within the Austin, Texas area at a date
and time mutually acceptable to DIR and the Vendor or by teleconference. DIR shall bear no cost
for the time and travel of the Vendor for attendance at the meeting.
K. DIR Cost Avoidance
As part of the performance measures reported to state leadership, DIR must provide the cost
avoidance the State has achieved through the Contract. Upon request by DIR, Vendor shall provide
DIR with a detailed report of a representative sample of products sold under the Contract. The report
shall contain: product part number, product description, list price and price to Customer under the
Contract.
8. Pricing, Purchase Orders, Invoices, and Payments
Note: NO EXCEPTIONS OR REVISIONS WILL BE CONSIDERED
A. Manufacturer's Suggested Retail Price (MSRP) or List Price
Note: NO EXCEPTIONS OR REVISIONS WILL BE CONSIDERI-D
MSRP is defined as the product sales price list published in some form by the manufacturer or
publisher of a product and available to and recognized by the trade. A price list especially
prepared for a given solicitation is not acceptable.
B. Customer Discount
Note: NO EXCI-PTIONS OR REVISIONS WILL BI CONSIDERED
The minimum Customer discount for all products and services will be the percentage off MSRP
as specified in Appendix C, Pricing Index.
C. Customer Price
Note: NO I-XCI-PTIONS OR REVISIONS WILL BE CONSIDI-RPD FOR SFC] ION CI
1) The price to the Customer shall be calculated as follows:
Customer Price = (MSRP or List Price — Customer Discount as set forth in Appendix C,
Pricing Index) x (1 + DIR Administrative Fee, as set forth in the Contract).
2) Customers purchasing products and services under this Contract may negotiate more
advantageous pricing or participate in special promotional offers. In such event, a copy of such
better offerings shall be furnished to DIR upon request.
3) If pricing for products or services available under this Contract is provided by the Vendor at
a lower price to: (i) an eligible Customer who is not purchasing those products or services under
this Contract or (ii) to any other customer under the same terms and conditions provided for
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Exhibit "B"
the State for the same commodities and services under this contract, then the available
Customer Price in this Contract shall be adjusted to that lower price. This requirement applies
to products or services quoted by Vendor or its resellers for a quantity of one (1) under like
terms and conditions, and does not apply to volume or special pricing purchases. Vendor shall
notify DIR within ten (10) days and this Contract shall be amended to reflect the lower price.
D. Shipping and Handling Fees
Note: NO EXCEPTIONS OR REVISIONS WILL BE CONSIDERED
The price to the Customer under this Contract shall include all shipping and handling fees.
Shipments will be Free On Board Customer's Destination. No additional fees shall be charged
to the Customer for standard shipping and handling. If the Customer requests expedited or
special delivery, Customer will be responsible for any charges for expedited or special delivery.
E. Tax -Exempt
Note: NO EXCEPTIONS OR REVISIONS WILL BE CONSIDERED
As per Section 151.309, Texas Tax Code, Customers under this Contract are exempt from the
assessment of State sales, use and excise taxes. Further, Customers under this Contract are
exempt from Federal Excise Taxes, 26 United States Code Sections 4253(1) and 0). Customers
shall provide evidence of tax-exempt status to Vendor upon request.
F. Travel Expense Reimbursement
Note: NO EXCEPTIONS OR REVISIONS WILL BE CONSIDERED
Pricing for services provided under this Contract are exclusive of any travel expenses that may
be incurred in the performance of those services. Travel expense reimbursement may include
personal vehicle mileage or commercial coach transportation, hotel acconunodations, 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
(Ihtt): "www.wiiidow.state.tx.Lis/L)i-ocurciiiclit/pi-og/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 the Contract is not applicable to travel expense
reimbursement. Anticipated travel expenses must be pre -approved in writing by Customer.
Customer reserves the right not to pay travel expenses which are not pre -approved in writing
by the Customer.
G. Changes to Prices
Subject to the requirements of this section, Vendor may change the price of any product or
service at any time, based upon changes to the MSRP, but discount levels shall remain
consistent with the discount levels specified in this Contract.
Vendor may revise its pricing (but not its discount rate, if any, and not the products or services
on its contract pricing list) by posting a revised pricing list. Such revised pricing lists are
subject to review by DIR. If DIR finds that a product's or service's price has been increased
unreasonably, DIR may request Vendor to reduce its pricing for the product or service to the
level published before the revision. Vendor must reduce its pricing, or remove the product
from its pricing list. Failure to do so will constitute an act of default by Vendor.
H. Purchase Orders
Note: NO EXCEPTIONS OR REVISIONS WILL BE CONSIDERED
All Customer Purchase Orders will be placed directly with the Vendor or Order Fulfiller.
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Accurate Purchase Orders shall be effective and binding upon Vendor or Order Fulfiller when
accepted by Vendor or Order Fulfiller. Customer and Vendor may work together to include
specific requirements as to what constitutes a valid Purchase Order.
Vendors will be required to comply with the disclosure requirements of Section 2252.908,
Texas Government Code, as enacted by House Bill 1295, 84`' Regular Session, when
execution of a contract requires an action or vote by the governing body of a governmental
entity before the contract may be signed.
I. Invoices
Note: NO EXCEPTIONS OR REVISIONS WILL BE CONSIDERED
1) Invoices shall be submitted by the Vendor or 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 Vendor or Order Fulfiller. For
Customers that are not subject to Chapter 2251, Texas Government Code, Customer and
Vendor will agree to acceptable terms.
2) Invoices must be timely and accurate. Each invoice must match Customer's Purchase Order
and include any written changes that may apply, as it relates to products, prices and quantities.
Invoices must include the Customer's Purchase Order number or other pertinent information
for verification of receipt of the product or services by the Customer.
3) The administrative fee as set forth in the Contract shall not be broken out as a separate line
item when pricing or invoice is provided to Customer.
J. Payments
Note: NO EXCEPTIONS OR REVISIONS WILL BE CONSIDERED
Customers shall 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)
calendar days after the goods are provided, the services completed, or a correct invoice is
received, whichever is later. Payment under the Contract shall not foreclose the right to recover
wrongful payments. For Customers that are not subject to Chapter 2251, Texas Government
Code, Customer and Vendor will agree to acceptable terms.
9. Contract Administration
Note: NO EXCEPTIONS OR REVISIONS WILL BE CONSIDERED FOR A,C-D
A. Contract Managers
Note: NO EXCEPTIONS OR REVISIONS WILL BE CONSIDERED
DIR and the Vendor will each provide a Contract Manager to support the Contract. Information
regarding the Contract Manager will be posted on the Internet website designated for the Contract.
1) State Contract Manager
DIR shall provide a Contract Manager whose duties shall include but not be limited to: i)
advising DIR and Vendor of Vendor's compliance with the terms and conditions of the
Contract, ii) periodic verification of product pricing, and iii) verification of monthly reports
submitted by Vendor.
2) Vendor Contract Manager
Vendor shall identify a specific Contract Manager whose duties shall include but not be limited
to: i) supporting the marketing and management of the Contract, ii) facilitating dispute
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resolution between a Order Fulfiller and a Customer, and iii) advising DIR of Order Fulfillers
performance under the teens and conditions of the Contract. DIR reserves the right to require
a change in Vendor's then -current Contract Manager if the assigned Contract Manager is not,
in the reasonable opinion of DIR, adequately serving the needs of the State.
B. Reporting and Administrative Fees
1) Reporting Responsibility
a) Vendor shall be responsible for reporting all products and services purchased through
Vendor and Order Fulfillers under- the Contract. Vendor shall file the monthly reports,
subcontract reports, and pay the administrative fees in accordance with the due dates
specified in this section.
b) DIR shall have the right to verify required reports and to take any actions necessary to
enforce its rights under this section, including but not limited to compliance checks of
Vendor's applicable Contract. Vendor will provide all required documentation at no cost.
2) Detailed Monthly Report
Vendor shall electronically provide DIR with a detailed monthly report in the format
required by DIR showing the dollar volume of any and all sales under the Contract for the
previous calendar month period. Reports are due on the fifteenth (15`h) calendar day of the
month following the month of the sale. If the 15`x' calendar day falls on a weekend or state
or federal holiday, the report shall be due on the next business day. The monthly report
shall include, per transaction: the detailed sales for the period, Customer name, invoice
date, invoice number, description, quantity, MSRP or List Price, unit price, extended price,
Customer Purchase Order number, contact name, Customer's complete billing address, the
estimated administrative fee for the reporting period, subcontractor name, EPEAT
designation (if applicable), configuration (if applicable), contract discount percentage,
actual discount percentage, negotiated contract price (if fixed price is offered instead of
discount off of MSRP), and other information as required by DIR. Each report must
contain all information listed above per transaction or the report will be rejected and
returned to the Vendor for correction in accordance with this section. Vendor shall report
in a manner required by DIR which is subject to change dependent upon DIR's business
needs. Failure to do so may result in contract termination.
3) Historically Underutilized Businesses Subcontract Reports
a) Vendor shall electronically provide each Customer with Vendor's relevant Historically
Underutilized Business Subcontracting Report, pursuant to the Contract, as required by
Chapter 2161, Texas Government Code. Reports shall also be submitted to DIR.
b) Reports shall be due in accordance with the CPA rules.
4) DIR Administrative Fee
a) The Vendor shall pay an administrative fee to DIR to defray the DIR costs of
negotiating, executing, and administering the Contract. The maximum administrative fee
is set by the Texas Legislature in the biennial General Appropriations Act. DIR will review
Vendor monthly sales reports, close the sales period, and notify the Vendor of the
administrative fee no later than the fourteenth (l4th) day of the second month following the
date of the reported sale. Vendor shall pay the administrative fee by the twenty-fifth (25tH)
calendar day of the second month following the date of the reported sale. For example,
Vendor reports January sales by February 15`h; DIR closes January sales and notifies
Vendor of administrative fee by March 14`h; Vendor submits administrative fee for January
sales by March 25`h.
b) DIR may change the amount of the administrative fee upon thirty (30) calendar days
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written notice to Vendor without the need for a fonnal contract amendment.
e) Vendor shall reference the DIR Contract number, reporting period, and administrative
fee amount on any remittance instruments.
5) Accurate and Timely Submission of Reports
a) The reports and administrative fees shall be accurate and timely and submitted in
accordance with the due dates specified in this section. Vendor shall correct any inaccurate
reports or administrative fee payments within three (3) business days upon written
notification by DIR. Vendor shall deliver any late reports or late administrative fee
payments within three (3) business days upon written notification by DIR. If Vendor is
unable to correct inaccurate reports or administrative fee payments or deliver late reports
and fee payments within three (3) business days, Vendor must contact DIR and provide a
corrective plan of action, including the timeline for completion of correction. The
corrective plan of action shall be subject to DIR approval.
b) Should Vendor fail to correct inaccurate reports or cure the delay in timely delivery of
reports and payments within -the corrective plan of action timeline, DIR reserves the right
to require an independent third party audit of the Vendor's records as specified in C.3 of
this Section, at Vendor's expense. DIR will select the auditor (and all payments to auditor
will require DIR approval).
Failure to timely submit three (3) reports or administrative fee payments within any rolling
twelve (12) month period may, at DIR's discretion, result in the addition of late fees of
$100- day for each day the report or payment is due (up to $1000/month) or suspension or
termination of Vendor's Contract..
C. Records and Audit
Note: NO EXCEPTIONS OR REVISIONS WILL BE CONSIDEIM) IN
SLJBPARAGIZAPH ONE (1)
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 or designee,
to conduct an audit or investigation in connection with those funds. Vendor further agrees to
cooperate fully with the State Auditor's Office or its successor or designee in the conduct of
the audit or investigation, including providing all records requested. Vendor will ensure that
this clause concerning the authority to audit funds received indirectly by subcontractors through
Vendor or directly by Order Fulfillers 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 seven (7) years after tennination of the Contract or
until full, final and unappealable resolution of all Compliance Check or litigation issues that
arise under the Contract. Such records shall include per transaction: the Order Fulfrller's
company name if applicable, Customer name, invoice date, invoice number, description, part
number, manufacturer, quantity, MSRP or list price, unit price, extended price, Customer
Purchase Order number, contact name, Customer's complete billing address, the calculations
supporting each administrative fee owed DIR under the Contract, Historically Underutilized
Businesses Subcontracting reports, and such other documentation as DIR may request.
3) Vendor and/or Order Fulfillers shall grant access to all paper and electronic records, books,
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documents, accounting procedures, practices, customer records including but not limited to
contracts, agreements, purchase orders and statements of work, and any other items relevant to
the performance of the Contract to the DIR Internal Audit department or DIR Contract
Management staff, including the compliance checks designated by the DIR Internal Audit
department, DIR Contract Management staff, the State Auditor's Office, and of the United
States, and such other persons or entities designated by DIR for the purposes of inspecting,
Compliance Checking and/or- copying such books and records. Vendor and/or Order Fulfillers
shall provide copies and printouts requested by DIR without charge. DIR shall provide Vendor
and/or Order Fulfillers ten (10) business days' notice prior to inspecting, Compliance
Checking, and/or copying Vendor's and/or Order Fulfiller's records. Vendor's and/or Order
Fulfillers records, whether paper or electronic, shall be made available during regular office
hours. Vendor- and/or Order Fulfiller personnel familiar with the Vendor's and/or- Order
Fulfiller's books and records shall be available to the DIR Internal Audit deparhment, 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) calendar days of receipt.
4) For procuring State Agencies whose payments are processed by the Texas Comptroller of
Public Accounts, the volume of payments made to Order Fulfillers 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) Prior to execution of the Contract, Vendor shall provide DIR with written notification of
the following: i) Vendor Contract Administrator name and contact information, ii) Vendor
sales representative name and contact information, and 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
Cooperative Contracts E -Mail Box information.
10. Vendor Responsibilities
Note: NO EXCEPTIONS OR REVISIONS WILL BE CONSIDERED IN C -M, O -S, V -W
A. Indemnification
1) INDEPENDENT CONTRACTOR
VENDOR AGREES AND ACKNOWLEDGES THAT DURING THE EXISTENCE OF THIS
CONTRACT, IT IS FURNISHING PRODUCTS AND SERVICES IN THE CAPACITY OF
AN INDEPENDENT CONTRACTOR AND THAT VENDOR IS NOT AN EMPLOYEE OF
THE CUSTOMER OR THE STATE OF TEXAS.
2) ACTS OR OMISSIONS
Vendor shall indernnify and hold harmless the State of Texas and Customers, AND/OR THEIR
OFFICERS, AGENTS, EMPLOYEES, REPRESENTATIVES, CONTRACTORS,
ASSIGNEES, AND/OR DESIGNEES FROM ANY AND ALL 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
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Exhibit "B"
performance of the Contract and any Purchase Orders issued under the Contract. THE
DEFENSE SHALL BE COORDINATED BY VENDOR WITH THE OFFICE OF THE
ATTORNEY GENERAL WHEN TEXAS STATE AGENCIES ARE NAMED
DEFENDANTS IN ANY LAWSUIT AND VENDOR MAY NOT AGREE TO ANY
SETTLEMENT WITHOUT FIRST OBTAINING THE CONCURRENCE FROM THE
OFFICE OF THE ATTORNEY GENERAL. VENDOR AND THE CUSTOMER AGREE TO
FURNISH TIMELY WRITTEN NOTICE TO EACH OTHER OF ANY SUCH CLAIM.
3) INFRINGEMENTS
a) Vendor shall indernnify 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 VENDOR WITH THE OFFICE OF THE ATTORNEY GENERAL
WHEN TEXAS STATE AGENCIES ARE NAMED DEFENDANTS IN ANY LAWSUIT
AND VENDOR MAY NOT AGREE TO ANY SETTLEMENT WITHOUT FIRST
OBTAINING THE CONCURRENCE FROM THE OFFICE OF THE ATTORNEY
GENERAL.
b) Vendor shall have no liability under this section if the alleged infringement is caused in
whole or in part by: (i) use of the product or service for a purpose or in a manner for which
the product or service was not designed, (ii) any modification made to the product without
Vendor's written approval, (iii) any modifications made to the product by the Vendor
pursuant to Customer's specific instructions, (iv) any intellectual property right owned by
or licensed to Customer, or (v) any use of the product or service by Customer that is not in
conformity with the terms of any applicable license agreement.
c) If Vendor becomes aware of an actual or potential claim, or Customer provides Vendor
with notice of an actual or potential claim, Vendor may (or in the case of an injunction
against Customer, shall), at Vendor's sole option and expense: (i) procure for the Customer
the right to continue to use the affected portion of the product or service, or (ii) modify or
replace the affected portion of the product or service with functionally equivalent or
superior product or service so that Customer's use is non -infringing.
4) PROPERTY DAMAGE
IN THE EVENT OF LOSS, DAMAGE, OR DESTRUCTION OF ANY PROPERTY OF
CUSTOMER OR THE STATE DUE TO THE NEGLIGENCE, MISCONDUCT,
WRONGFUL ACT OR OMISSION ON THE PART OF THE VENDOR, ITS EMPLOYEES,
AGENTS, REPRESENTATIVES, OR SUBCONTRACTORS, THE VENDOR SHALL PAY
THE FULL COST OF EITHER REPAIR, RECONSTRUCTION, OR REPLACEMENT OF
THE PROPERTY, AT THE CUSTOMER'S SOLE ELECTION. SUCH COST SHALL BE
DETERMINED BY THE CUSTOMER AND SHALL BE DUE AND PAYABLE BY THE
VENDOR NINETY (90) CALENDAR DAYS AFTER THE DATE OF THE VENDORS
RECEIPT FROM THE CUSTOMER OF A WRITTEN NOTICE OF THE AMOUNT DUE.
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Exhibit "B"
B. Taxes/Worker's Compensation/UNEMPLOYMENT INSURANCE
1) VENDOR AGREES AND ACKNOWLEDGES THAT DURING THE EXISTENCE OF
THIS CONTRACT, VENDOR SHALL BE ENTIRELY RESPONSIBLE FOR THE
LIABILITY AND PAYMENT OF VENDOR'S AND VENDOR'S EMPLOYEES' TAXES
OF WHATEVER KIND, ARISING OUT OF THE PERFORMANCES IN THIS
CONTRACT. VENDOR AGREES TO COMPLY WITH ALL STATE AND FEDERAL
LAWS APPLICABLE TO ANY SUCH PERSONS, INCLUDING LAWS REGARDING
WAGES, TAXES, INSURANCE, AND WORKERS' COMPENSATION. THE CUSTOMER
AND/OR THE STATE SHALL NOT BE LIABLE TO THE VENDOR, ITS EMPLOYEES,
AGENTS, OR OTHERS FOR THE PAYMENT OF TAXES OR THE PROVISION OF
UNEMPLOYMENT INSURANCE AND/OR WORKERS' COMPENSATION OR ANY
BENEFIT AVAILABLE TO A STATE EMPLOYEE OR EMPLOYEE OF ANOTHER
GOVERNMENTAL ENTITY CUSTOMER.
2) VENDOR AGREES TO INDEMNIFY AND HOLD HARMLESS CUSTOMERS, THE
STATE OF TEXAS AND/OR THEIR EMPLOYEES, AGENTS, REPRESENTATIVES,
CONTRACTORS, AND/OR ASSIGNEES FROM ANY AND ALL LIABILITY, ACTIONS,
CLAIMS, DEMANDS, OR SUITS, AND ALL RELATED COSTS, ATTORNEYS' FEES,
AND EXPENSES, RELATING TO TAX LIABILITY, UNEMPLOYMENT INSURANCE
AND/OR WORKERS' COMPENSATION IN ITS PERFORMANCE UNDER THIS
CONTRACT. VENDOR SHALL BE LIABLE TO PAY ALL COSTS OF DEFENSE
INCLUDING ATTORNEYS' FEES. THE DEFENSE SHALL BE COORDINATED BY
VENDOR WITH THE OFFICE OF THE ATTORNEY GENERAL WHEN TEXAS STATE
AGENCIES ARE NAMED DEFENDANTS IN ANY LAWSUIT AND VENDOR MAY NOT
AGREE TO ANY SETTLEMENT WITHOUT FIRST OBTAINING THE CONCURRENCE
FROM THE OFFICE OF THE ATTORNEY GENERAL. VENDOR AND THE CUSTOMER
AGREE TO FURNISH TIMELY WRITTEN NOTICE TO EACH OTHER OF ANY SUCH
CLAIM.
C. Vendor Certifications
Note: NO EXCEPTIONS OR REVISIONS WILL BE CONSIDERED
Vendor certifies on behalf of Vendor and its designated Order Fulfillers that they:
(i) have not given, offered to give, and do not intend to give at any time hereafter any
economic opportunity, future employment, gift, loan, gratuity, special discount,
trip, favor, or service to a public servant in connection with the Contract;
are not currently delinquent in the payment of any franchise tax owed the State
and are not ineligible to receive payment under §231.006 of the Texas Family Code
and acknowledge the Cuntract may be terminated and payment withheld if this
certification is inaccurate;
neither they, nor anyone acting for them, have violated the antitrust laws of the
United States or the State, nor communicated directly or indirectly to any
competitor or any other person engaged in such line of business for the purpose of
obtaining an unfair price advantage;
(iv) have not received payment from DIR or any of its employees for participating in
the preparation of the Contract;
(v) under Section 2155.004, Texas Government Code, the vendor certifies that the
individual or business entity named in this bid or contract is not ineligible to
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DocuSign Envelope ID: DB3E6F95-2566.4DB5-9DEo-D4379C455D5F Exhibit T"
receive the specified contract and acknowledges that this contract may be
terminated and payment withheld if this certification is inaccurate;
(vi) to the best of their knowledge and belief, there are no suits or proceedings pending
or threatened against or affecting them, which if determined adversely to them will
have a material adverse effect on the ability to fulfill their obligations under the
Contract;
(vii) Vendor- and its principals are not suspended or debarred from doing business with
the federal government as listed in the System for Award Management (SAM)
maintained by the General Services Administration;
(viii) as of the effective date of the Contract, are not listed in the prohibited vendors list
authorized by Executive Order #13224, "Blocking Property and Prohibiting
Transactions with Persons Who Convnit, Threaten to Coninait, or Support
Terrorism ", published by the United States Department of the Treasury, Office of
Foreign Assets Control;
(ix) Vendor represents and warrants that, for its performance of this contract, it shall
purchase products and materials produced in the State of Texas when available at
the price and time comparable to products and materials produced outside the state,
to the extent that such is required under Texas Government Code, Section
2155.4441;
(x) agrees that all equipment and materials used in fulfilling the requirements of this
contract are of high-quality and consistent with or better than applicable industry
standards, if any. All Works and Services performed pursuant to this Contract
shall be of high professional quality and workmanship and according consistent
with or better than applicable industry standards, if any;
(xi) to the extent applicable to this scope of this Contract, Vendor hereby certifies that
it is in compliance with Subchapter Y, Chapter 361, Health and Safety Code related
to the Computer Equipment Recycling Program and its rules, 30 TAC Chapter 328;
(xii) agree that any payments due under this contract will be applied towards any debt,
including but not limited to delinquent taxes and child support that is owed to the
State of Texas;
(xiii) are in compliance Section 669.003, Texas Government Code, relating to
contracting with executive head of a state agency;
(xiv) represent and warrant that the provision of goods and services or other
performance under the Contract will not constitute an actual or potential conflict
of interest and certify that they will not reasonably create the appearance of
impropriety, and, if these facts change during the course of the Contract, certify
they shall disclose the actual or potential conflict of interest and any circumstances
that create the appearance of impropriety;
(xv) under Section 2155.006, and Section 2261.053, Texas Government Code, are not
ineligible to receive the specified contract and acknowledge that this contract may
be tenninated and payment withheld if this certification is inaccurate;
(xvi) have complied with the Section 556.0055, Texas Goverment Code, restriction on
lobbying expenditures. In addition, they acknowledge the applicability of
§2155.444 and §2155.4441, Texas Government Code, in fulfilling the teens of the
Contract; and
(xvii) represent and warrant that the Customer's payment and their receipt of
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Exhibit "B"
appropriated or other funds under this Agreement are not prohibited by Sections
556.005 or Section 556.008, Texas Government Code; and
(xviii) to the extent applicable to this scope of this contract, Vendor hereby certifies that
it is authorized to sell and provide warranty support for all products and services
listed in Appendix C of this contract; and
(xix) represent and warrant that in accordance with Section 2270.002 of the Texas
Government Code, by signature hereon, Vendor does not boycott Israel and
will not boycott Israel during the term of this Contract.
During the term of the Contract, Vendor shall, for itself and on behalf of its Order Fulfillers,
promptly disclose to D1R all changes that occur to the foregoing certifications,
representations and warranties. Vendor covenants to fully cooperate in the development
and execution of resulting documentation necessary to maintain an accurate record of the
certifications, representations and warranties.
In addition, Vendor understands and agrees that if Vendor responds to certain Customer
pricing requests or Statements of Work, then, in order to contract with the Customer,
Vendor may be required to comply with additional terms and conditions or certifications
that an individual customer may require due to state and federal law (e.g., privacy and
security requirements).
D. Ability to Conduct Business in Texas
Note: NO EXCEPTIONS OR REVISIONS NN ILL BE CONSIDERED
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 in accordance with Texas
Business Organizations Code, Title 1, Chapter- 9.
E. Equal Opportunity Compliance
Note: NO EXCEPTIONS OR REVISIONS WILL BE CONSIDERED
Vendor agrees to abide by all applicable laws, regulations, and executive orders pertaining to equal
employment opportunity, including federal laws and the laws of the State in which its primary place
of business is located. In accordance with such laws, regulations, and executive orders, the Vendor
agrees that no person in the United States shall, on the grounds of race, color, religion, national
origin, sex, age, veteran status or handicap, be excluded from employment with or participation in,
be denied the benefits of, or be otherwise subjected to discrimination under any program or activity
performed by Vendor under the Contract. If Vendor is found to be not in 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
Note: NO EXCEPTIONS OR REVISIONS WILL BE CONSIDERED
If Vendor uses any subcontractors in the perfonmance of this Contract, Vendor must make a good
faith effort in the submission of its Subcontracting Plan in accordance with the State's Policy on
Utilization of Historically Underutilized Businesses (HUB). A revised Subcontracting Plan
approved by DIR's HUB Office shall be required before Vendor can engage additional
subcontractors in the performance of this Contract. A revised Subcontracting Plan approved by
DIR's HUB Office shall be required before Vendor can remove subcontractors currently engaged
in the performance of this Contract. Vendor shall remain solely responsible for the perfonnance of
09/291'2017 Page 20 of 28
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its obligations under the Contract.
G. Responsibility for Actions
Note: NO EXCEPTIONS Olt REVISION'S WILL BE CONSIDERED
1) Vendor is solely responsible for its actions and those of its agents, employees, or
subcontractors, and agrees that neither Vendor nor any of the foregoing has any authority to
act or speak on behalf of DIR or the State.
2) Vendor, for itself and on behalf of its subcontractors, shall report to DIR promptly when the
disclosures under Certification Statement of Exhibit A to the RFO and/or Section 10.C. (xiii),
Vendor Certifications of this Appendix A to the Contract change. Vendor covenants to fully
cooperate with DIR to update and amend the Contract to accurately disclose the status of
conflicts of interest.
H. Confidentiality
Notc: NO EXCEPTIONS Olt REVISIONS WILL BE CONSIDERED
1) Vendor acknowledges that DIR and Customers that are governmental bodies as defined by
Texas Government Code, Section 552.003 are subject to the Texas Public Information Act.
Vendor also acknowledges that DIR and Customers that are governmental bodies will comply
with the Public Information Act, and with all opinions of the Texas Attorney General's office
concerning this Act.
2) Under the terms of the Contract, DIR may provide Vendor with information related to
Customers. Vendor shall not re -sell or otherwise distribute or release Customer information to
any party in any manner.
I. Security of Premises, Equipment, Data and Personnel
Note: NO EXCEPTIONS OR REVISIONS WILL BE CONSIDERED
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
Note: NO EXCEPTIONS Oil REVISIONS WILL BE CONSIDERED
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 perfonned by the Customer.. 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 tenminate its Purchase Order and related Service
Agreement or request replacement of the employee or subcontractor in question.
K. Limitation of Liability
Note: NO EXCEPTIONS OR REVISIONS NVILL. BE CONSIDEREE)
09'29/2017 Page 21 of 28
DocuSign Envelope ID: DB3E6F95-2566-4DB5-9DE0-D4379C455D5F
Exhibit "B"
For any claims or cause of action arising under or related to the Contract: i) to the extend permitted
by the Constitution and the laws of the State, none of the parties shall be liable to the other for
punitive, special, or consequential damages, even if it is advised of the possibility of such damages;
and ii) Vendor's liability for damages of any kind to the Customer shall be limited to the total
amount paid to Vendor under the Contract during the twelve months immediately preceding the
accrual of the claim or cause of action. However, this limitation of Vendor's liability shall not
apply to claims of bodily injury; violation of intellectual property rights including but not limited
to patent, trademark, or copyright infringement; indemnification requirements under this Contract;
and violation of State or Federal law including but not limited to disclosures of confidential
information and any penalty of any kind lawfiilly assessed as a result of such violation.
L. Overcharges
Note: NO F-XCE'l' I IONS OR RE'VIS10NS NV10-L 131. (A)iNSBDQ?RIL-1➢
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 Coimn. Code Section 15.01, et
seq.
M. Prohibited Conduct
\ole: NO EXCEPTIONS OR REVISIONS N- ILL BE7 CONSIDERED
Vendor represents and warrants that, to the best of its knowledge as of the date of this certification,
neither Vendor nor any Order Fulfiller, 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 &
Conunerce 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 business days of execution of the Contract if the Vendor is awarded services which require that
Vendor's employees perform work at any Customer premises and/or use employer vehicles to
conduct work on behalf of Customers. In addition, when engaged by a Customer to provide services
on Customer premises, the Vendor shall, at its own expense, secure and maintain the insurance
coverage specified herein, and shall provide proof of such insurance coverage to the related
Customer within five (5) business days following the execution of the Purchase Order. Vendor may
not begin performance under the Contract and/or a Purchase Order until such proof of insurance
coverage is provided to, and approved by, DIR and the Customer. All required insurance must be
issued by companies that have an A rating and a Financial Size Category Class of VII from A.M.
Best and are licensed in the State of Texas and authorized to provide the corresponding coverage.
The Customer and DIR will be named as Additional Insureds on all required coverage. Required
coverage must remain in effect through the tenn of the Contract and each Purchase Order issued to
Vendor there under. The minimum acceptable insurance provisions are as follows:
1) Commercial General Liability
Commercial General Liability must include $1,000,000 per occurrence for Bodily Injury and
Property Damage, with a separate aggregate limit of $2,000,000; Medical Expense per person
of $5,000; Personal Injury and Advertising Liability of $1,000,000; ProductsiCompleted
Operations Aggregate Limit of $2,000,000; and Damage to Premises Rented: $50,000.
Agencies may require additional Umbrella/Excess Liability insurance. The policy shall contain
the following provisions:
09/29/2017 Page 22 of 28
DocuSign Envelope ID: DB3E6F95-2566-4DB5-9DEO-D4379C455D5F Exhibit T"
a) Blanket contractual liability coverage for liability assumed under the Contract;
b) Independent Contractor coverage;
c) State of Texas, DIR and Customer listed as an additional insured; and
d) Waiver of Subrogation
2) Workers' Compensation Insurance
WORKERS' COMPENSATION INSURANCE AND EMPLOYERS' LIABILITY
COVERAGE MUST INCLUDE LIMITS CONSISTENT WITH STATUTORY
BENEFITS OUTLINED IN THE TEXAS WORKERS' COMPENSATION ACT (ART.
8308-1.01 ET SEQ. TEX. REV. CIV. STAT) AND MINIMUM POLICY LIMITS FOR
EMPLOYERS' LIABILITY OF $1,000,000 BODILY INJURY PER ACCIDENT,
$1,000,000 BODILY INJURY DISEASE PER EMPLOYEE AND $1,000,000 PER
DISEASE POLICY LIMIT.
3) Business Automobile Liability Insurance
Business Automobile Liability Insurance must cover all owned, non -owned and hired vehicles
with a minimum combined single limit of $500,000 per occurrence for bodily injury and
property damage. The policy shall contain the following endorsements in favor of DIR and/or
Customer:
a) Waiver of Subrogation; and
b) Additional Insured.
O. Use of State Property
Note: NO LXCEPI IONS Olt REVISIONS V1'ILL BE CONSIDERED
Vendor is prohibited from using the Customer's equipment, the customer's location, or any other
resources of the Customer or the State for any purpose other than performing services under this
Agreement. For this purpose, equipment includes, but is not limited to, copy machines, computers
and telephones using State long distance services. Any charges incurred by Vendor using the
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
Note: NO EXCEPTIONS OR REVISIONS WILL BE CONSIDERED
The Vendor shall comply with all requirements related to federal iminigration 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) who will perform any labor or services under this Contract.
Pursuant to Executive Order No. RP -80, issued by the Governor of Texas on December 3, 2014,
and as subsequently clarified, the Vendor shall, as a condition of this Contract, also comply with
the United States Department of Homeland Security's E -Verify system to determine the eligibility
of:
• all persons 1) to whom the E -Verify system applies, and 2) who are hired by the
Vendor during the term of this Contract to perform duties within Texas; and
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DocuSign Envelope ID: DB3E6F95-2566-4DB5-9DE0-D4379C455D5F
Exhibit "B"
• all subcontractors' employees l) to whom the E -Verify system applies, and 2) who
are hired by the subcontractor during the term of this Contract and assigned by the
subcontractor to perform work pursuant to this Contract.
The Vendor shall require its subcontractors to comply with the requirements of this Section and the
Vendor is responsible for the compliance of its subcontractors. Nothing herein is intended to
exclude compliance by Vendor and its subcontractors with all other relevant federal immigration
statutes and regulations promulgated pursuant thereto.
Q. Public Disclosure
Note: NO EXCEPTIONS OR REVISIONS VN ILL 13E CONSIDERED
No public disclosures or news releases pertaining to this contract shall be made by Vendor
without prior written approval of DIR.
R. Product and/or Services Substitutions
Note: NO EXCEPTIONS OR REVISIONS k1 ILL BE CONSIDERED
Substitutions are not permitted without the written permission of DIR or Customer.
S. Secure Erasure of Hard Disk Products and/or Services
Tote: NO EXCEPTIONS OR REVISIONS WILL BE CONSIDERED
Vendor agrees that all products and/or services equipped with hard disk drives (i.e. computers,
telephones, printers, fax machines, scanners, multifunction devices, etc.) shall have the capability
to securely erase data written to the hard drive prior to final disposition of such products and/or
services, either at the end of the Customer's Managed Services product's useful life or the end of
the related Customer Managed Services Agreement for such products and/ services, in accordance
with 1 TAC 202.
T. Deceptive Trade Practices; Unfair Business Practices
1) Vendor represents and warrants that neither Vendor nor any of its Subcontractors has been
(i) found liable in any administrative hearing, litigation or other proceeding of Deceptive Trade
Practices violations as defined under Chapter 17, Texas Business & Commerce Code, or (ii)
has outstanding allegations of any Deceptive Trade Practice pending in any administrative
hearing, litigation or other proceeding.
2) Vendor certifies that it has no officers who have served as officers of other entities who (i)
have been found liable in any administrative hearing, litigation or other proceeding of
Deceptive Trade Practices violations or (ii) have outstanding allegations of any Deceptive
Trade Practice pending in any administrative hearing, litigation or other proceeding.
U. Drug Free Workplace Policy
Vendor shall comply with the applicable provisions of the Drug -Free Work Place Act of 1988
(41 U.S.C. §§8101-8106) and maintain a drug-free work environment; and the final rule,
government -wide requirements for drug-free work place (Financial Assistance), issued by the
Office of Management and Budget (2 C.F.R. Part 182) 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.
V. Accessibility of Public Information
Note: NO EXCEPTIONS OR REVISIONS WILL BE CONSIDERED
09,29/2017 Page 24 of 28
DocuSign Envelope ID: DB3E6F95-2566-4DB5-9DE0-D4379C455D5F
Exhibit "B"
1) Pursuant to S.B. 1368 of the 831' Texas Legislature, Regular Session, Vendor is required to
make any information created or exchanged with the State pursuant to this Contract, and not
otherwise excepted from disclosure under the Texas Public Information Act, available in a
format that is accessible by the public at no additional charge to the State.
2) Each State government entity should supplement the provision set forth in Subsection 1,
above, with the additional terms agreed upon by the parties regarding the specific format by
which the Vendor is required to make the information accessible by the public.
W. Vendor Reporting Requirements
Note: NO EXCEPTIONS OR REVISIONS WILL BE CONSIDERED
Vendor shall comply with Subtitle C, Title 5, Business & Commerce Code, Chapter 109 as added
by HB 2539 of the 83' Texas Legislature, Regular Session, requiring computer technicians to report
images of child pornography.
11. Contract Enforcement
Note: NO EXCEPI IONS OR REVISIONS WILL BE CONSIDERED TO A, B2, 5-7
A. Enforcement of Contract and Dispute Resolution
'Note: NO EXCEPI'IONS OR REVISIONS WILL BE CONSIDERED
1) Vendor and DIR agree to the following: (i) a party's failure to require strict performance
of any provision of the Contract shall not waive or diminish that party's right thereafter to
demand strict compliance with that or any other- provision, (ii) for disputes not resolved in the
normal course of business, the dispute resolution process provided for in Chapter 2260, Texas
Government Code, shall be used, and (iii) actions or proceedings arising from the Contract
shall be heard in a state court of competent jurisdiction in Travis County, Texas.
2) Disputes arising between a Customer and the Vendor shall be resolved in accordance with
the dispute resolution process of the Customer that is not inconsistent with subparagraph A.1
above. DIR shall not be a party to any such dispute unless DIR, Customer, and Vendor agree
in writing.
3) State agencies are required by rule (34 TAC §20.115) to report vendor performance through
the Vendor Performance Tracking System (VPTS) on every purchase over $25,000.
B. Termination
Note: NO EXCEPTIONS OR REVISIONS WILL BE CONSIDERED FOR 2,5-7
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 govenunents;
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 tenninate.
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.
0929'2017 Page 25 of 28
DocuSign Envelope ID: DB3E6F95-2566-4DB5-9DEo-D4379C455D5F Exhibit npn
b) Termination for Non -Appropriation by DIR
DIR may terminate Contract if Rinds 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
Note: NO EXCEPTIONS OR REVISIONS WILL BE CONSIDERED
DIR shall have the absolute right to terminate the Contract without recourse in the event that:
i) Vendor becomes listed on the prohibited vendors list authorized by Executive Order # 13224,
"Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to
Commit, or Support Terrorism ", published by the United States Department of the Treasury,
Office of Foreign Assets Control; ii) Vendor becomes suspended or debarred from doing
business with the federal government as listed in the System for Award Management (SAM)
maintained by the General Services Administration; or (iii) Vendor is found by DIR to be
ineligible to hold this Contract under Subsection (b) of Section 2155.006, Texas Government
Code. Vendor shall be provided written notice in accordance with Section 12.A, Notices, of
intent to terminate.
3) Termination for Convenience
DIR may terminate the Contract, in whole or in part, by giving the other party thirty (30)
calendar days written notice. A Customer may terminate a Purchase Order or other contractual
document or relationship by giving the other party thirty (30) calendar days written notice.
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 tenninate 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 tenninate a Purchase Order or other contractual docurnent
or relationship upon the occurrence of a material breach of any tern or condition: (i) of the
Contract, or (ii) included in the Purchase Order or other contractual document or
relationship in accordance with Section 4.13.2 above, upon the following preconditions:
first, the parties must comply with the requirements of Chapter 2260, Texas Government
Code, in an attempt to resolve a dispute; second, after complying with Chapter 2260, Texas
09/29/2017 Page 26 of 28
DocuSign Envelope ID: DB3E6F95-2566-4DB5.9DEO-D4379C455D5F Exhibit T"
Government Code, and the dispute remains unresolved, then the non -defaulting party shall
give the defaulting party ten (10) calendar days from receipt of notice to cure said default.
If the defaulting party fails to cure said default within the timeframe allowed, the non -
defaulting party may, at its option and in addition to any other remedies it may have
available, cancel and terminate the Purchase Order. Customer may immediately suspend
or terminate a Purchase Order without advance notice in the event Vendor fails to comply
with confidentiality, privacy, security requirements, environmental or safety laws or
regulations, if such non-compliance relates or may relate to vendor provision of goods or
services to the Customer.
5) Immediate Termination or Suspension
Vote: NO EXCEPTIONS Olt REVISIONS WILL BE CONSIDERED
DIR may immediately suspend or terminate this Contract without advance notice if DIR
receives notice or knowledge of potentially criminal violations by Vendor or Order Fulfiller
(whether or not such potential violations directly impact the provision of goods or services
under this Contract). In such case, the Vendor or Order Fulfiller may be held ineligible to
receive further- business or payment but may be responsible for winding down or transition
expenses incurred by Customer. DIR or Customer will use reasonable efforts to provide notice
(to the extent allowed by law) to vendor within five (5) business days after imposing the
suspension or termination. Vendor may provide a response and request an opportunity to
present its position. DIR or Customer will review vendor presentation, but is under no
obligation to provide formal response.
6) Customer Rights Under Termination
:mote: NO EXCEP'T'IONS Olt REVISIONS WILL BE CONSIDERED
In the event the Contract expires or is terminated for any reason, a Customer shall retain its
rights under the Contract and the Purchase Order issued prior to the termination or expiration
of the Contract. The Purchase Order survives the expiration or termination of the Contract for
its then effective term.
7) Vendor or Order Fulfiller Rights Under Termination
Note: NO EXCEPTIONS OR REVISIONS WILL BE CONSIDERED
In the event a Purchase Order expires or is terminated, a Customer shall pay: 1) all amounts
due for products or services ordered prior to the effective termination date and ultimately
accepted, and 2) any applicable early termination fees agreed to in such Purchase Order.
C. Force Majeure
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 cornmercially
reasonable. Subject to this provision, such non-performance shall not be deerned a default or a
ground for termination. However, a Customer may tenninate 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.
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DocuSign Envelope ID: DB3E6F95-2566-4DB5-9DEO-D4379C455D5F Exhibit "B"
12. Notification
Note: NO EXCEPTIONS OR REVISIONS w'ILL BE CONSIDERED
A. Notices
All notices, demands, designations, certificates, requests, offers, consents, approvals and other
instruments given pursuant to the Contract shall be in writing and shall be validly given on: (i) the
date of delivery if delivered by email, facsimile transmission, mailed by registered or certified mail,
or hand delivered, or (ii) three business days after being mailed via United States Postal Service.
All notices under the Contract shall be sent to a party at the respective address indicated in Section
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 D1R may direct
their written complaints to the following office:
Public Information Office
Department of Information Resources
Attn: Public Information Officer
300 W. 15"' Street, Suite 1300
Austin, Texas 78701
(512) 475-4759, facsimile
13. Captions
Note: NO EXCEPTIONS OR REVISIONS k'1 ILL BE CONSIDERED
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.
09/29/2017 Page 28 of 28
Exhibit "C"
Convergpt� = Contract Offering for DIR-TSO-3537
nIR
TE C H N O L O G E S Depl. of Informalion Resources
PRODUCT LISTING AND PRICING - Appendix C Pricing Index
1-� Technologies
Brand
Alter Enterprise
1
' Customer Discountoff
MSR
6.00%
Altertus
5.00%
Automatic S stems
5.00%
Automatic Systems
19.00%
Bold 1'echnolo ics
9.00%
Brivo
32.00%
Commend
31.00%
Convey int
13.00%
Eaton
38.00%
EST
36.00%
111D Corn
42.00%
Lenel-A
41.00%
Lenel-B
49.00%
Lenel-C
71.00%
I -enol -D
49.00%
Lencl-E
49.00%
Lencl-F
25.00%
Lenel-G
32.00%
Lenel-11
56.00%
Pi vot3
19.00%
uarn
22.00%
Sensorrnatic
23.00%
Silent Knig Lit
31.00%
S ace A e_
6.00%
10A
24.00%
Traka
3.00%
UTC
46.00%
W'i� CiZ Wire
Services
Annual Maintenance Agreement (one of 12 Services to choose from)
31.00%
DIR CustomerDiscount r
18.00%
Installation Service Work Regular Yours M -F 8:00-5:00 (hourly rate)
18.00%
Drafting of Plans and CAD Services for security and Fire (hourly rate)
23.00%
Project team memember to program installed systems (hourly rate)
31.00%
S stem Implementation and Project (hour) rate
24,00%
Training of installed security or fire systems (hourly rate)
31.00%
Onsite Securit Ra air and Support
22.00%
x Important Note: Vendors quote to DIR customers shall inlcude the DIR administrative fee.
The fee will be added after discount off MSRP is applied.
Exhibit D — List of Buildings
Facility Name Address Name of Fire
System
Public Works Facility
Public Works Construction Inspection Building
Transportation/Utility Administration
Street/Water Line Maintenance
Utility Support
Vehicle Maintenance Facility
Small Engine Shop
Water Treatment Plant Lab
Water Plant Phase 3
Water Plant Phase 5
City Hall
Police Facility
Central Fire Station
Fire Station No. 2
Fire Station No. 3
Fire Station No. 4
Fire Station No. 5
Fire Station No. 6
Fire Station No. 7
Clay Madsen Recreational Center
RABB House
Kinningham Park House
Facility Maintenance/Streets
2008 Enterprise Drive,
N/A
Round Rock, Texas 78664
2008 Enterprise Drive,
N/A
Round Rock, Texas 78664
212 Commerce Cove,
N/A
Round Rock, Texas 78664
910 Luther Peterson
N/A
Place, Round Rock, Texas
5200 North IH 35,
N/A
Georgetown, Texas
Central Panel
901 Luther Peterson
N/A
Place, Round Rock, Texas
901 Luther Peterson
N/A
Place, Round Rock, Texas
5200 North IH 35,
N/A
Georgetown, Texas
Honeywell
5200 North IH 35,
N/A
Georgetown, Texas
GE
5200 North IH 35,
N/A
Georgetown, Texas
221 E. Main Street,
Silent night
Round Rock, Texas
Honeywell
2701 North Mays, Round
EST Quick start
Rock, Texas
203 Commerce, Round
N/A
Rock, Texas 78664
200 W. Bagdad, Round
EST Quick Start
Rock, Texas
1991 Rawhide, Round
N/A
Rock, Texas
1301 Double Creek,
Gamewell Fire
Round Rock, Texas
Central Panel
350 Deepwood Drive,
N/A
Round Rock, Texas
2919 Joe DiMaggio Blvd,
EST Quick Start
Round Rock, Texas 78665
2811 Oakmont Blvd,
Silent Knight
Round Rock Texas 78665
Honeywell
1600 Gattis School Road
EST
GE
2009 E. Palm Valley Blvd,
EST MS 9090UD
Round Rock, Texas
1000 S. Creek Drive,
N/A
Round Rock, Texas
2015 Lamar Drive, Round
N/A
Rock, Texas 78664
Exhibit D — List of Buildings
McConico
PARD Yard
Meter Readers
Chlorinating Building
Allen R. Baca Senior Center Building 2
Allen R. Baca Parking Garage
City Hall Parking Garage
High Service Building at Water Treatment Plant
Amphitheater
Car Wash Area
Rock N River
Training Facility
Library
Fire Station 8
Multi Purposes fields
Sports Center
301 W. Bagdad Blvd,
EFP200
Round Rock, Texas
300 S. Burnet, Round
N/A
Rock, Texas
5200 IH 35, Georgetown,
N/A
Texas
5200 IH 35, Georgetown,
GameWell
Texas
301 W. Bagdad, Round
EST
Rock, Texas
301 W. Bagdad, Round
N/A
Rock, Texas
221 E. Main Street,
N/A
Round Rock, Texas
5200 IH 3S, Georgetown,
N/A
Texas
Same as Baca location
N/A
N/A
3300 Palm Valley Blvd, N/A
Round Rock, Texas
2701 N. Mays, Round Silent Knight
Rock
216 Main St. Round Rock Honeywell
1612 Red Bud Ln., Round Gamewell
Rock
2001 Kenny Fort Blvd., Gamewell
Round Rock
2400 Chisholm Trail, EST
Round Rock
City of Round Rock
ROUND ROCK
TEXAS Agenda Item Summary
Agenda Number: G.2
Title: Consider a resolution authorizing the Mayor to execute an Agreement with
Convergint Technologies, LLC for fire alarm system equipment and services.
Type: City Manager Item
Governing Body: City Manager Approval
Agenda Date: 8/23/2019
Dept Director: Chad McDowell, General Services Director
Cost: $35,000.00
Indexes: General Fund
Attachments: Agreement, Form 1295, Res-00429523.DOC
Department: General Services Department
Text of Legislative File CM -2019-0249
This agreement is to establish a contract with Convergint Technologies for fire alarm system
maintenance, repair, and purchase of related goods and services needed to support City safety
and operations. This cooperative contract was established through a competitive bidding
process. This contract expires August of 2020.
Cost: $35,000.00
Source of Funds: General Fund
City of Round Rock Page 1 Printed on 812312019