R-13-03-14-G3 - 3/14/2013RESOLUTION NO. R -13-03-14-G3
WHEREAS, the City of Round Rock wishes to enter into a Master Lease Agreement for
Computer Products and Services with Dell Marketing, L,P. through the State of Texas, acting through
its Department of Information Resources, Now Therefore
BE IT RESOLVED BY THE COUNCIL OF THE CITY OF ROUND ROCK, TEXAS,
That the Mayor is hereby authorized and directed to execute on behalf of the City "DIR-SDD-
1951," together with related appendices, exhibits, and documents, with Dell Marketing, L.P. through
the State of Texas, acting through its Department of Information Resources, a copy of same being
attached hereto as Exhibit "A" and incorporated herein for all purposes.
The City Council hereby finds and declares that written notice of the date, hour, place and
subject of the meeting at which this Resolution was adopted was posted and that such meeting was
open to the public as required by law at all times during which this Resolution and the subject matter
hereof were discussed, considered and formally acted upon, all as required by the Open Meetings Act,
Chapter 551, Texas Government Code, as amended.
RESOLVED this 14th day of March, 2013.
ALAN MCGRAW, Mayor
City of Round Rock, Texas
ATTEST:
SARA L. WHITE, City Clerk
0: \wdox\SCC Int s\0112\ l 304\MUNICIPAL\00269643. DOC/rmc
EXHIBIT
DIR Contract No. DIR-SDD-1951
Vendor Contract No.
STATE OF TEXAS
DEPARTMENT OF INFORMATION RESOURCES
CONTRACT FOR PRODUCTS AND RELATED SERVICES
DELL MARKETING, L.P.
1. Introduction
A. Parties
This Contract for products and related services is entered into between the State of Texas,
acting by and through the Department of Information Resources (hereinafter "DIR") with
its principal place of business at 300 West 15'h Street, Suite 1300, Austin, Texas 78701,
and Dell Marketing, L.P. (hereinafter "Vendor"), with its principal place of business at
One Dell Way, Round Rock, Texas 78682.
B. Compliance with Procurement Laws
This Contract is the result of compliance with applicable procurement laws of the State of
Texas. DIR issued a solicitation on the Comptroller of Public Accounts' Electronic State
Business Daily, Request for Offer (RFO) DIR-SDD-TMP-190, on August 6, 2012, for
Dell Branded Manufacturer Hardware, Software and Related Services. Upon execution
of this Contract, a notice of award for RFO DIR-SDD-TMP-190 shall be posted by DIR
on the Electronic State Business Daily.
C. Order of Precedence
For purchase transactions under this Contract, the order of precedence shall be as follows:
this Contract; Appendix A, Standard Terms and Conditions For Products and Related
Services Contracts; Appendix B, Vendor's Historically Underutilized Businesses
Subcontracting Plan; Appendix C, Pricing Index; Appendix D, Services Agreement;
Appendix E, Master Operating Lease Agreement; Appendix F, Master Lease Agreement;
Exhibit 1, Vendor's Response to RFO DIR-SDD-TMP-190, including all addenda; and
Exhibit 2, RFO DIR-SDD-TMP-190, including all addenda; are incorporated by
reference and constitute the entire agreement between DIR and Vendor governing
purchase transactions. For Lease transactions under this Contract the order of precedence
shall be as follows: this Contract; Appendix E, Master Operating Lease Agreement;
Appendix F, Master Lease Agreement, as applicable depending on the type of lease;
Appendix A, Standard Terms and Conditions For Products and Related Services
Contracts; Appendix B, Vendor's Historically Underutilized Businesses Subcontracting
Plan; Appendix C, Pricing Index; Appendix D, Services Agreement; Exhibit 1, Vendor's
Response to RFO DIR-SDD-TMP-190, including all addenda; and Exhibit 2, RFO DIR-
SDD-TMP-190, including all addenda; are incorporated by reference and constitute the
entire agreement between DIR and Vendor governing lease transactions. In the event of a
conflict between the documents listed in this paragraph related to purchases, the
controlling document shall be this Contract, then Appendix A, then Appendix B, then
Appendix C, then Appendix D, then Appendix E, then Appendix F, then Exhibit 1, and
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Vendor Contract No.
finally Exhibit 2. In the event of a conflict between the documents listed in this paragraph
related to lease transactions, the controlling document shall be this Contract, then
Appendix E or Appendix F, depending on the type of lease transaction, then Appendix A,
then Appendix B, then Appendix C, then Appendix D, then Exhibit 1, and finally Exhibit
2. In the event and to the extent any provisions contained in multiple documents address
the same or substantially the same subject matter but do not actually conflict, the more
recent provisions shall be deemed to have superseded earlier provisions.
2. Term of Contract
The term of this Contract shall be one (1) year commencing on the last date of approval
by DIR and Vendor. Prior to expiration of the original term, DIR and Vendor may extend
the Contract, upon mutual agreement, for up to three (3) optional one-year terms.
Protracted contract negotiations may, in DIR's sole discretion, result in fewer optional
terms.
3. Product and Service Offerings
A. Products
This Contract is a frill Catalog contract, offering all products Dell is authorized to sell or
manufacture.
B. Services
Related services include but are not limited to: deployment, help desk, managed services,
storage and server assessment services, product installation, Custom Factory Integration
of Customer Imaged Software ("CFI'), maintenance and support, asset recovery services,
product training, and future services Dell may offer upon DIR approval (note Deliverable
Based IT Services are offered under a separate contract, DIR-SDD- 1961).
4. Pricing
A. Manufacturer's Suggested Retail Price (MSRP)
MSRP is defined as Dell's published retail price.
B. Customer Discount
The minimum Customer discount for all products and services will be set forth in
Appendix C Pricing Index.
Vendor agrees that the DIR standard pricing discounts contained in Appendix C will
remain one percent (1%) better than the Western States Contracting Alliance
(WSCA) Category A level, standardized discounts. This extension of competitive
volume sales pricing is intended solely to insure that DIR will, at a minimum, remain
competitive with the standard price rates set for WSCA as a whole. DIR may not
apply, without the express consent of Vendor, any pre-existing discount structure to
the WSCA pricing being offered to DIR by Vendor. DIR may either use DIR
discounted pricing or the WSCA pricing but may not combine, or compound the two.
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Vendor Contract No.
In the event that DIR pricing fails to remain competitive to WSCA standardized,
category level pricing, Vendor shall extend such pricing to DIR. Vendor shall use its
commercially reasonable best efforts to notify DIR of such WSCA price change and
amend this Contract within thirty (30) days after the amendment to the Vendor's
WSCA contract. The introduction of the WSCA pricing to the DIR contract shall be
effective from the date of execution into the Contract by amendment. Both parties
agree that the pricing shall not be retroactive for DIR and shall not extend back to the
date that Vendor reduced WSCA catalog pricing. Further, the parties agree that DIR,
or the State of Texas, does not have the right to audit the WSCA contract held by the
Vendor. References to the Vendor's WSCA contract are only contained in this
Contract for purposes of referencing the pricing discounts contained therein. Both
parties acknowledge that the Vendor's WSCA contract and pricing are readily
available to the public and may be freely accessed by the internet for the purposes of
validation under the terms and conditions of this Contract.
C. Customer Price
1) The price to the Customer shall be as set forth in Appendix C, Pricing Index.
2) Customers purchasing products and services under this Contract may negotiate
more advantageous pricing or participate in special promotional offers. In such event,
a copy of such better offerings shall be furnished to DIR upon request.
3) During the term of this Contract, if pricing for products or non -customized
services (e.g., CFI, Imaging, and Asset Tagging) available under this Contract are
provided by Vendor at a lower price to an Eligible Customer who is not purchasing
those products or services under this Contract, then the available Customer Price in
this Contract shall be adjusted to that lower price. This requirement applies to
products or non -customized services actually charged by Vendor for a quantity of one
(1) under substantially similar terms and conditions, for substantially similar
configurations or deliverables. This requirement does not apply to volume or special
pricing purchases. This Contract shall be amended within ten (10) business days to
reflect the lower price.
D. DIR Administrative Fee
The administrative fee specified in Section 5 below shall not be broken out as a
separate line item when pricing or invoice is provided to Customer.
E. Shipping and Handling Fees
The price to the Customer under this Contract shall include all shipping and handling
fees. Shipments will be Free On Board Customer's destination, provided the products
are shipped to locations in the State of Texas. Except as noted, no additional fees
shall be charged to the Customer for standard shipping and handling. If the Customer
requests expedited delivery, Customer will be responsible for any charges for
expedited delivery. Title to all products shall pass upon shipment to Customer's dock;
however, risk of loss shall pass to the Customer upon delivery to Customer.
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F. Delivery
Shipment of Dell -branded systems from Dell's facility is estimated at between fifteen
(15) and twenty-five (25) days after receipt of a valid and complete order. While there
may be industry -wide situations of constrained product, current manufacturing lead times
for desktop and notebook systems are ten (10) to fourteen (14) business days. Current
lead times for server systems are nine (9) to twelve (12) business days; this is specifically
designed for extensive testing on these mission -critical systems.
Shipment of third party software and peripheral items is estimated at between seven (7)
and ten (10) days after receipt of a valid and complete order.
Please note that customization through Dell's Configuration Services may increase lead
times. While Dell does not guarantee specific delivery dates, Customers providing Dell
with an accurate quarterly forecast will greatly enhance Dell's ability to be prepared for
Customer orders and to meet your needed delivery timeframes in accordance with the
Deployment Plan outlined below.
Sample Deployment Plan for Dell's Configuration Services Projects
Customer to select Dell as vendor.
One (1) business day
Dell will begin to manufacture Customer's evaluation
Six (6) business days
unit. The Project Manager will work directly with
manufacturing to ensure that lead times are not exceeded
and that the agreed upon schedule for delivery is met.
Evaluation unit is received by Customer.
Customer will create ghost images and return these
Three (3) to five (5) business days
images to Dell within 24 hours to factory install on all
remaining units prior to shipment.
Dell will produce hard copy Technical
One (1) business day—Technical
Specifications within twenty-four (24) hours for
Specifications
Customer's approval. Customer will review and
One (1) business day —Review, approve,
approve the specifications and return to Dell
return to Dell
within twenty-four (24) hours. Once approval is
Ten (10) business days—Hardware
received, the Configuration Services engineering
Customization engineering
process can begin provided the image has also
been received.
A Customer Master Services Agreement must be
Two (2) business days — Customer executes
executed prior to the release of any First Article units by
and returns IS Agreement.
Dell Marketing L.P.
Dell will manufacture the First Article order. Customer
Six (6) business days — First Article
will receive the First Article and approve.
manufacture
Three (3) business days — Receive and approve
Upon approval of First Article order, Dell will begin
Ten (10) business days— Manufacture
production of the balance of units in accordance with the
additional units
Customer's mutually agreed to delivery schedule.
Five (5) business days - Shipping
All systems will be delivered according to the mutually
On-going
agreed upon schedule.
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G. Tax -Exempt
As per Section 151.309, Texas Tax Code, Customers under this Contract are exempt
from the assessment of State sales, use and excise taxes. Further, Customers under
this Contract are exempt from Federal Excise Taxes, 26 United States Code Sections
4253(1) and 0). Customers will provide Vendor with tax exempt certificate upon
request.
H. Travel Expense Reimbursement
Pricing for services provided under this Contract are exclusive of any travel expenses
that may be incurred in the performance of those services. Travel expense
reimbursement may include personal vehicle mileage or commercial coach
transportation, hotel accommodations, parking and meals; provided, however, the
amount of reimbursement by Customers shall not exceed the amounts authorized for
state employees as adopted by each Customer; and provided, further, that all
reimbursement rates shall not exceed, the maximum rates established for state
employees under the current State Travel Management Program
(httr)://www.window-statc.tx.us/procurenient/12roiz/sti-nRb. Travel time may not be
included as part of the amounts payable by Customer for any services rendered under
this Contract. The DIR administrative fee specified in Section 5 below is not
applicable to travel expense reimbursement. Anticipated travel expenses must be pre -
approved in writing by Customer.
I. Changes to Prices
Vendor or Order Fulfiller may change the price of any product or service at any time,
based upon changes to the MSRP, but discount levels shall remain consistent with the
discount levels specified in this Contract. Price decreases shall take effect
automatically during the term of this Contract and shall be passed onto the Customer
immediately at the time of submission of a purchase order, but shall not be retroactive
to products for which a purchase order has been received, or for services currently
being rendered under a prior purchase order.
5. DIR Administrative Fee
A) The administrative fee to be paid by the Vendor to DIR based on the dollar value of
all sales to Customers pursuant to this Contract is one quarter of one percent (.250/0).
Payment will be calculated for all sales, net of returns and credits. For example, the
administrative fee for sales totaling $100,000 shall be $250.
B) All prices quoted to Customers shall include the administrative fee. DIR may change
administrative fee amounts; however, no revision will take effect before ninety (90) days
following written notice. Vendor may revise pricing to reflect the change in
administrative fees.
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6. Notification
All notices under this Contract shall be sent to a party at the respective address indicated
below.
If sent to the State:
Robin Abbott, Manager
Contract and Vendor Management
Department of Information Resources
300 W. 15th St., Suite 1300
Austin, Texas 78701
Phone: (512) 475-4700
Facsimile: (512) 475-4759
If sent to the Vendor:
Diane Wigington
Dell Marketing, LP
One Dell Way, Mail Stop RR8-06
Round Rock, Texas 78682
Phone: (512) 728-4805
Facsimile: (512) 283-9092
Email: Diane Wiainaton@Dell.com
7. Software License, Services and Leasing Agreements
A. Software License Agreement
A. Software shall mean any software, library, utility, tool, or other computer or program
code, in object (binary) or source -code form, as well as the related documentation,
provided by Dell to you. Software includes software locally installed on your
systems and software accessed by you through the Internet or other remote means
(such as websites, portals, and "cloud -based" solutions).
B. Software is subject to the separate software license agreements accompanying the
software, along with any product guides, operating manuals, or other documentation
included with the software media packaging or presented to Customer during the
installation or use of the Software. Customer agrees that Customer will be bound by
such license agreement.
C. With respect to Software provided or otherwise made available to you by Dell in
connection with any Services hereunder, if no license terms accompany the
Software, then subject to your compliance with the terms set forth in this Agreement,
including payment for such Software, Dell hereby grants Customer a personal, non-
exclusive license to access and use such Software only during the duration of the
Services and solely as necessary for Customer to enjoy the benefit of the Services as
stated in the applicable Service Agreements (or SOW'S).
I. Restrictions. Customer may not copy, modify, or create a derivative work,
collective work, or compilation of the Software, and may not reverse engineer,
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decompile or otherwise attempt to extract the code of the Software or any part
thereof. Customer may not license, sell, assign, sublicense, or otherwise transfer
or encumber the Software; may not use the Software in a managed -services
arrangement; and may not use the Software in excess of the authorized number
of licensed seats for concurrent users, sites, or other criteria specified in the
applicable Service Agreements or Statements of Work. In addition, Customer
may not access the Software to monitor its availability, performance, or
functionality, or for any other benchmarking or competitive purpose.
II. Customer is further prohibited from (1) attempting to use or gain unauthorized
access to Dell or to any third party's networks or equipment; (2) permitting other
individuals or entities to use the Software or copy the Software or Services; (3)
attempting to probe, scan, or test the vulnerability of Software or a system,
account, or network of Dell or any of its customers or suppliers; (4) interfering or
attempting to interfere with service to any user, host, or network; (5) engaging in
fraudulent activity of any nature; (6) transmitting unsolicited bulk or commercial
messages; (7) restricting, inhibiting, or otherwise interfering with the ability of
any other person, regardless of intent, purpose, or knowledge, to use or enjoy the
Software (except for tools with safety and security functions); or (8) restricting,
inhibiting, interfering with, or otherwise disrupting or causing a performance
degradation to any Dell (or Dell Service supplier) facilities used to deliver the
Services.
III. Audit. DIR, on behalf of Customers, hereby grants Dell, or an agent designated by
Dell, the right to perform an audit of any Customers' use of the Software during
normal business hours; and to cooperate with Dell in such audit; and such
Customer agrees to provide Dell with all records reasonably related to
Customers' use of the Software. The audit will be limited to verification of
Customer's compliance with the terms of this Agreement.
IV. Open Source Software. A portion of the Software may contain or consist of open
source software, which you may use under the terms and conditions of the
specific license under which the open source software is distributed.
THIS OPEN SOURCE SOFTWARE IS DISTRIBUTED IN THE HOPE THAT
IT WILL BE USEFUL, BUT IS PROVIDED "AS IS" WITHOUT ANY
WARRANTY, EXPRESS, IMPLIED, OR OTHERWISE, INCLUDING BUT
NOT LIMITED TO THE IMPLIED WARRANTY OF MERCHANTABILITY
OR FITNESS FOR A PARTICULAR PURPOSE, OR ANY WARRANTY
REGARDING TITLE OR AGAINST INFRINGEMENT. IN NO EVENT
SHALL DELL, THE COPYRIGHT HOLDERS, OR THE CONTRIBUTORS
BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL,
EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT
LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES;
LOSS OF USE, DATA, OR PROFITS; OR BUSINESS INTERRUPTION)
HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER
IN CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING
NEGLIGENCE OR OTHERWISE) ARISING IN ANY WAY OUT OF THE
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USE OF THIS OPEN SOURCE SOFTWARE, EVEN IF ADVISED OF THE
POSSIBILITY OF SUCH DAMAGE.
B. Shrink/Click-wrap License Agreement
Customer understands and agrees that the third party software is subject to the license
agreement shipped with the software or in a separate agreement between Customer
and the software licensor. Dell is authorized to provide the software provided
hereunder. It is the Customer's responsibility to read the Shrinlc/Click-wrap
License Agreement and determine if the Customer accepts the license terms. If
the Customer does not agree with the license terms, Dell shall provide reasonable
assistance; however, Customer shall be responsible for negotiating with the reseller to
obtain additional changes in the Shrink/Click-wrap License Agreement language
fi-om the software publisher.
C. Services Agreement
Services provided under this Contract shall be in accordance with the Services
Agreement as set forth in Appendix D of this Contract. No changes to the Services
Agreement terms and conditions may be made unless previously agreed to by Vendor
and DIR.
D. Master Operating Lease Agreement
DIR and Vendor hereby agree that Vendor is authorized to utilize the Master
Operating Lease Agreement in Appendix E of this Contract for Lessees that are Texas
State Agencies or otherwise authorized to conduct lease transactions through DIR
contracts.
E. Master Lease Agreement
DIR and Vendor hereby agree that Vendor is authorized to utilize the Master Lease
Agreement in Appendix F of this Contract for DIR authorized entities as Lessees that
are not Texas State Agencies or otherwise required by statute to utilize the Texas
Public Finance Authority for such leasing transactions.
8. Intellectual Property Matters
Customer shall own all right, title and interest to the Deliverables and Dell agrees to grant
to Customer a perpetual, non-exclusive, non -transferable, royalty -free license to use
Dell's Background IP (defined below), Utilities, and Residual IP solely for Customer to
use the Deliverables, subject to the following:
(i) each party will retain all Intellectual Property Rights that it owned or
controlled prior to the effective date of this Agreement or that it develops or acquires
from activities independent of the Services performed under this Agreement
(`Background IP"),
(ii) Dell will retain all right, title and interest in and to all Intellectual Property Rights
in or related to the Services, or tangible components thereof, including but not limited
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to (a) all know-how, intellectual property, methodologies, processes, technologies,
algorithms, software or development tools used in performing the Services
(collectively, the "Utilities"), and (b) such ideas, concepts, know-how, processes and
reusable reports, designs, charts, plans, specifications, documentation, forms,
templates or output which are developed, created or otherwise used by or on behalf of
Dell in the course of performing the Services or creating the Deliverables, other than
portions that specifically incorporate proprietary or Confidential Information or data
of Customer (collectively, the "Residual IP"), even if embedded in the Deliverable,
and
(iii) Customer use of software, online services, or software -enabled services in
connection with the Services is pursuant to the terms of the applicable software
license or Cloud Computing Terms.
As used herein, "Deliverables" means the work product or tangible embodiment of
the Services that are (i) prepared or performed by Dell or its subcontractors uniquely
and exclusively for a Customer and (ii) specifically identified in a signed Statement
of Work as Deliverables. "Intellectual Property Rights" means rights to patents,
utility.models, mask works, copyrights, trademarks, trade secrets, and any other form
of protection afforded by law to inventions, models, designs, technical information,
and applications.
9. Authorized Exceptions to Request for Offer DIR-SDD-TMP-190 for Dell Branded
Manufacturer Hardware, Software and Related Services.
A. Section 2. Scope, 2.1 Products is hereby replaced in its entirety:
DIR intends to contract for all Dell branded product categories, including but not
limited to desktops, laptops, printers, servers, and the related accessories, software,
and/or supplies applicable to each product category.
This Contract is a full Catalog contract, offering all products Dell is authorized to sell
or manufactures and services Dell offers, including, but not limited to deployment,
help desk, outsourcing, IT security services, managed services, storage and server
assessment services, and future services Dell may offer subject to DIR approval (note
Deliverable Based IT Services are offered under a separate contract, DIR-SDD-1961).
In addition, third party products are included, with the exception noted herein. NOTE:
DIR has established Microsoft Volume Licensing agreements directly with the
Publisher of the software, Microsoft Licensing, GP to consider the State of Texas as a
single customer and grant discounts based on the volume of the State of Texas as a
whole. Therefore, for any contract awarded as a result from this RFO, Customers may
not issue purchase orders and Vendors are prohibited from selling any Microsoft
Volume Licensing software licenses that may infringe on any Volume Licensing
program and related agreements that DIR has established directly with the Publisher.
Vendors may sell software that is installed/loaded as pail of an operating system at
the time of configuration.
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Customers may submit or request that Vendor prepare a statement of work
when obtaining a quote based on their service needs.
Any Vendor responding to this RFO must submit pricing for the products requested
herein. A representative sample of Dell branded products has been included for the
purposes of obtaining pricing and evaluating the responses to this RFO. This sample
is contained in the Excel spreadsheet attached as "bid package 2" to the posting for
this RFO, requisition number DIR-SDD-TMP-190, on the Electronic State Business
Daily, http://esbd.cpa.state.tx.us/. "Bid package 2" is a representative sample only.
All products of Dell Marketing, L.P. may be made available through a Contract.
In addition to purchase sales, DIR and any Vendor awarded a Contract as a result of
this RFO may agree to provisions that allow leasing of the products offered under the
resulting Contract.
DIR is not soliciting Dell branded hardware, software and related services for the
agency. DIR establishes statewide master contracts for use by DIR eligible customers
(state agencies, higher education, K-12 independent school districts, and local
governments). DIR competitively bids for information technology products and
services.
Note to customers: This Contract complies with state purchasing requirements.
Eligible customers may procure directly from the Contract and are not required to
issue requests for proposals or take other additional procurement actions.
Customers must identify their own needs, then contact an awarded DIR Vendor and
obtain a price quote for products/services. Customers may submit a statement of
work to the vendor when obtaining a quote based on their needs. The Customer
makes the best value determination and issues a purchase order directly to the
Vendor.
Vendors may propose their catalog of Dell branded hardware, software, and related
services.
Under Texas Government Code, Chapter 2054, Subchapter M, and DIR
implementing rules, DIR state agency Customers must procure products that comply
with the Accessibility Standards defined in the Texas Administrative Code, 1 TAC
206 and 1 TAC 213, when such Products are available in the commercial marketplace
or when such products are developed in response to a procurement solicitation.
Accordingly, Vendor must provide electronic and information resources and
associated Product documentation and technical support that comply with these
Accessibility Standards in its response to this RFO. Vendors who do not already
have accessibility documentation should complete the form located here:
http://www.itic.org:8080/dotAsset/5644ecd2-5024-417f-bc23-a52650f47ef8.doe.
Vendors that claim their products are exempt from accessibility requirements must
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present that position to DIR as a question to be handled in the question and answer
period of the solicitation.
Customer may go to this page to request VPATs:
http //content dell com/us/en/corp/d/corp-comm/cr-diversity-customer-
disabilities.aspx
B. Section 3.7.3, Mandatory Response Documents, 6. Voluntary Product
Accessibility Templates, is hereby replaced in its entirety:
Vendor shall provide DIR with the URL to its Voluntary Product Accessibility
Template (VPAT) or a copy of the applicable VPAT for reviewing compliance with
the State of Texas Accessibility requirements (based on the federal standards
established under Section 508 of the Rehabilitation Act), or indicate that the
product/service accessibility information is available from the General Services
Administration "Buy Accessible Wizard" (http://www.bLtyaccessible.gov). Vendors
not listed with the "Buy Accessible Wizard" or supplying a URL to their VPAT must
provide DIR with a report that addresses the same accessibility criteria in
substantively the same format. Additional information regarding the "Buy Accessible
Wizard" or obtaining a copy of the VPAT is located at http://www.section508.gov/.
http•//content dell com/us/en/corp/d/corp-comm/cr-diversity-customer-
disabilities.aspx
C. Appendix A of the RFO, Item 2013, Certification Statement, is hereby replaced in
its entirety:
The undersigned hereby certifies on behalf of Dell Marketing, L.P. that RFO DIR-
SDD-TMP-190 has been read and understood. In submitting its response Dell
Marketing. L.P. represents to DIR the following:
i) Vendor is capable of providing the products and services as described in the RFO;
ii) Vendor is offering true and correct pricing and discounts for the products and
services;
iii) Vendor agrees, if awarded a contract, to abide by the terms and conditions of the
resulting contract;
iv) as of the date of signature below, Vendor is not listed in the prohibited vendors list
authorized by Executive Order #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;
v) Vendor is not suspended or debarred from doing business with the federal
government as listed in the Excluded Parties List System (EPLS) maintained by the
General Services Administration;
vi) Vendor certifies, under Texas Government Code, Sections 2155.004 and
2155.006, that the individual or business entity named in this bid or contract is not
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DIR Contract No. DIR-SDD-1951
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ineligible to receive the specified contract and acknowledges that this contract may
be terminated and payment withheld if this certification is inaccurate;
(vii) Vendor certifies that, to the extent applicable to this scope of this RFO, Vendor
is in compliance with Health and Safety Code, Chapter 361, Subchapter Y, related to
the Computer Equipment Recycling Program, and the related rules found at 30 TAC
Chapter 328;
(viii) Vendor has not given, offered to give, nor intends to give at any time hereafter
any economic opportunity, future employment, gift, loan, gratuity, special discount,
trip, favor, or service to a public servant in connection with the submitted response;
(ix) Vendor has not received compensation for participation in the preparation of
specifications for this solicitation as required by Texas Government Code, Section
2155.004(a);
(x) Vendor has not, nor has anyone acting for Vendor, violated the antitrust laws of
the United States or the State of Texas, nor communicated directly or indirectly to
any competitor or any other person engaged in such line of business for the purpose
of obtaining an unfair price advantage;
(xi) Vendor is not currently delinquent in the payment of any franchise tax owed the
State of Texas and is not ineligible to receive payment under Section 231.006 of the
Texas Family Code and acknowledges the Contract may be terminated and payment
withheld if this certification is inaccurate, and any Vendor subject to Section 231.006
must include names and social security numbers of each person with at least 25%
ownership of the business entity submitting the response, prior to award (the parties
agree that Vendor may submit these Social Security numbers marked as confidential
so that disclosure or confidentiality will determined by the Office of the Attorney
General);
(xii) Vendor agrees that any payments due under this Contract will be applied
towards any debt, including but not limited to delinquent taxes and child support that
is owed to the State of Texas;
(xiii) Vendor agrees to comply with Texas Government Code, Section 2155.4441,
relating to use of service contracts for products produced in the State of Texas;
(xiv) Vendor certifies it is in compliance with Texas Government Code, Section
669.003, relating to contracting with executive head of a state agency;
(xv) Vendor certifies for itself and its subcontractors that it has identified all current
or former, within the last five years, employees of the State of Texas assigned to work
on this DIR Contract 20% or more of their time and has disclosed them to DIR and
has disclosed or does not employ any relative of a current or former state employee
within two degrees of consanguinity, and, if these facts change during the course of
the Contract, Vendor certifies it shall disclose for itself and on behalf of
subcontractors the name and other pertinent information about the employment of
current and former employees and their relatives within two degrees of
consanguinity;
(xvi) Vendor represents and warrants that the provision of goods and services or other
performance under the Contract will not constitute an actual or potential conflict of
interest;
(xvii) Vendor certifies that if a Texas address is shown as the Principle Place of
Business in Appendix A, Vendor Information Form, Vendor qualifies as a Texas
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Resident Bidder as defined in Texas Administrative Code, Title 34, Part I, Chapter
20;
(xviii) Vendor understands and agrees that Vendor may be required to comply with
additional terms and conditions (that do not conflict with the terms and conditions of
this Contract) or certifications that an individual Customer may require due to state
and federal law (e.g., privacy and security requirements); and
(xix) Vendor agrees that these representations will be incorporated into any
subsequent agreement(s) between Vendor and Customer that result from this RFO.
10. Authorized Exceptions to Appendix A, Standard Terms and Conditions for Product
and Related Services Contracts.
A. Section 3. Definitions, is hereby replaced in its entirety:
A. Customer - any Texas state agency, unit of local government, institution of higher
education as defined in Section 2054.003, Texas Government Code, and those state
agencies purchasing from a DIR contract through an Interagency Agreement, as
authorized by Chapter 771, Texas Government Code, any local government as authorized
through the Interlocal Cooperation Act, Chapter 791, Texas Government Code, and the
state agencies and political subdivisions of other states as authorized by Section
2054.0565, Texas Government Code and, except for telecommunications services under
Chapter 2170, Texas Government Code, assistance organizations as defined in Section
2175.001, Texas Government Code to mean:
1) A non-profit organization that provides educational, health or human
services or assistance to homeless individuals;
2) A nonprofit food bank that solicits, warehouses, and redistributes edible
but unmarketable food to an agency that feeds needy families and
individuals;
3) Texas Partners of the Americas, a registered agency with the Advisory
Committee on Voluntary Foreign Aid, with the approval of the Partners
of the Alliance Office of the Agency for International Development;
4) A group, including a faith -based group, that enters into a financial or
non-financial agreement with a health or human services agency to
provide services to that agency's clients;
5) A local workforce development board created under Section 2308.253;
6) A nonprofit organization approved by the Supreme Court of Texas that
provides free legal services for low-income households in civil matters;
7) The Texas Boll Weevil Eradication Foundation, Inc., or an entity
designated by the commissioner of agriculture as the foundation's
successor entity under Section 74. 1011, Texas Agriculture Code;
8) A nonprofit computer bank that solicits, stores, refurbishes and
redistributes used computer equipment to public school students and
their families; and
9) A nonprofit organization that provides affordable housing.
B. Compliance Check — an audit of Vendor's compliance with the Contract may be
performed by, but not limited to, a third party auditor, DIR Internal Audit department, or
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DIR contract management staff or their designees.
C. Contract — the document executed between DIR and Vendor into which this
Appendix A is incorporated.
D. CPA — refers to the Texas Comptroller of Public Accounts.
E. Day - shall mean business days, Monday through Friday, except for State and Federal
holidays. If the Contract calls for performance on a day that is not a business day, then
performance is intended to occur on the next business day.
F. Order Fulfiller — the party, either Vendor or a party that may be designated by
Vendor, who is fulfilling a Purchase Order pursuant to the Contract. May include Order
Fulfillers, Resellers and/or Agents.
G. Purchase Order - the Customer's fiscal form or format, which is used when making a
purchase (e.g., formal written Purchase Order, Procurement Card, Electronic Purchase
Order, or other authorized instrument). Neither Dell nor Customer is or shall be bound by
any terms and conditions imprinted on or embedded in orders, order acknowledgments or
other communications between the parties relating to orders.
H. Reseller — any third party approved by Dell to sell to Eligible Customers under this
Contract. Dell will flow this Contract's terms and conditions to its Resellers under this
Contract, except that pricing shall be as follows:. Dell offers pricing to its Reseller(s) and
such Resellers shall resale to Eligible Customers products under this Contract at a price it
sets and that will not exceed the maximum price as set forth in Appendix C, Pricing
Index, of this Contract.
I. State — refers to the State of Texas.
B. Section 4. General Provisions, E. Survival, is hereby replaced in its entirety:
Each applicable service agreement that was entered into between Vendor and a
Customer under the terms and conditions of the Contract that is still in existence as of
the date of the expiration or termination of the Contract shall survive the expiration or
termination of the Contract until the expiration or termination of such service
agreement. Each Purchase Order issued and accepted by Vendor that is still in
existence on the date of the expiration or termination of the Contract shall survive
expiration or termination of the Contract until the expiration or termination of such
Purchase Order.
C. Section 5. Product Terms and Conditions, Electronic and Information Resources
Accessibility Standards, As Required by 1 TAC Chapters 206 and 213 (Applicable to
State Agency and Institution of Higher Education Purchases Only), is hereby replaced
in its entirety:
Upon request by DIR, Vendor shall provide DIR with the URI. to its Voluntary
Product Accessibility Template (VPAT) or a copy of the applicable VPAT for
reviewing compliance with the State of Texas Accessibility requirements (based on
the federal standards established under Section 508 of the Rehabilitation Act), or
indicate that the product/service accessibility information is available from the
General Services Administration "Buy Accessible Wizard"
(http://www.buyaccessible.gov). Vendors not listed with the "Buy Accessible
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Wizard" or supplying a URL to their VPAT must provide DIR with a report that
addresses the same accessibility criteria in substantively the same format. Additional
information regarding the "Buy Accessible Wizard" or obtaining a copy of the VPAT
is located at http://www.section508.gov/.
Customer may go to this page to request VPATs:
http•//content dell com/us/en/corp/d/corp-comm/cr-diversity-customer-
disabilities.aspx
D. Section 6. Contract Fulfillment and Promotion, A. Service, Sales and Support of
the Contract, is hereby replaced in its entirety:
Vendor shall provide service, sales and support resources available under the Contract
to serve all Customers throughout the State. It is the responsibility of the Vendor to
sell, market, and promote services available under the Contract. Vendor shall use
commercially reasonable efforts to ensure that potential Customers are made aware of
the existence of the Contract.
E. Section 6. Contract Fulfillment and Promotion, C. Product Warranty and
Return Policies, is hereby replaced in its entirety:
Products Warranty:
A. Limited Warranty. Dell warrants that the Dell -branded hardware Products will
conform to the Dell specifications current when the Product is shipped and will be
free from material defects in materials and workmanship during the applicable
warranty period ("Limited Warranty"). The Limited Warranty period for Product
begins on the Product ship date. Dell has the right to grant the licenses to the
Software licensed under this Agreement, and such Software will substantially
conform to the functional specifications and current documentation provided by Dell.
B. Disclaimers. EXCEPT AS EXPRESSLY STATED IN THE PRECEDING
PARAGRAPH, DELL, (INCLUDING ITS AFFILIATES, CONTRACTORS,
AND AGENTS, AND EACH OF THEIR RESPECTIVE EMPLOYEES,
DIRECTORS, AND OFFICERS), ON BEHALF OF ITSELF AND ITS
SUPPLIERS (COLLECTIVELY, THE "DELL PARTIES") DISCLAIMS, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ALL
WARRANTIES, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO
ANY OF THE PRODUCTS, SOFTWARE, OR SERVICES, INCLUDING BUT
NOT LIMITED TO ANY WARRANTY (1) OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE, PERFORMANCE,
SUITABILITY, OR NON -INFRINGEMENT; (2) RELATING TO THIRD -
PARTY PRODUCTS, SOFTWARE, OR SERVICES; (3) RELATING TO THE
PERFORMANCE OF ANY HARDWARE OR SOFTWARE, OR DELL'S
PERFORMANCE OF THE SERVICES; OR (4) REGARDING THE RESULTS
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TO BE OBTAINED FROM THE PRODUCTS, SOFTWARE, SERVICES, OR
THE RESULTS OF ANY RECOMMENDATION BY DELL.
C. High -Risk Activities. The Products, Software, and Services are not fault-tolerant
and are not designed or intended for use in hazardous environments requiring fail-safe
performance, such as in the operation of nuclear facilities, aircraft navigation or
communication systems, air traffic control, weapons systems, life-support machines,
or any other application in which the failure of the Products, Software, or Services
could lead directly to death, personal injury, or severe physical or property damage
(collectively, "High -Risk Activities"). Dell expressly disclaims any express or
implied warranty of fitness for High -Risk Activities.
D. Warranty Exclusions. Warranties do not cover damage due to external causes,
such as accident, abuse, misuse, problems with electrical power, service not
performed or authorized by Dell (including installation or de -installation), usage not
in accordance with product or software instructions, normal wear and tear, or use of
parts and components not supplied or intended for use with the products, software, or
services. These warranties do not apply to Third -Party Products. Any warranty
on a Third -Party Product is provided by the publisher, provider, or original
manufacturer. All Third -Party Products are provided by Dell "as is." WHETHER
DIRECT OR INDIRECT, NEITHER PARTY SHALL HAVE LIABILITY FOR THE
FOLLOWING, (A) LOSS OF REVENUE, INCOME, PROFIT, OR SAVINGS, (B)
LOST OR CORRUPTED DATA OR SOFTWARE, LOSS OF USE OF SYSTEM(S)
OR NETWORK, OR THE RECOVERY OF SUCH, (C) LOSS OF BUSINESS
OPPORTUNITY, (D) BUSINESS INTERRUPTION OR DOWNTIME, OR (E)
SERVICES, VENDOR PRODUCTS OR THIRD -PARTY PRODUCTS NOT BEING
AVAILABLE FOR USE BY CUSTOMER.
A. With respect to Customer's use of the Software (1) neither Dell nor any of the
Dell Parties makes any express or implied warranty that Software provided to
Customer in connection with this Agreement is or will be secure, accurate,
complete, uninterrupted, without error, or free of viruses, worms, other
harmful components, or other program limitations; or that any errors in the
Software will be corrected; (2) Customer assumes the entire cost of all
necessary servicing, repair, or correction of problems caused by viruses or
other harmful components, unless such errors or viruses are the direct result of
dell's gross negligence or willful misconduct; (3) Dell and the Dell Parties,
jointly and severally, disclaim and make no warranties or representations as to
the accuracy, quality, reliability, suitability, completeness, truthfulness,
usefulness, or effectiveness of any reports, data, results, or other information
obtained or generated by Customer related to Customer's use of the Software;
and (4) use of the Software is entirely at Customer's own risk and neither Dell
nor the Dell Parties shall have any liability relating to such use.
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THIRD PARTY PRODUCTS. To the extent Dell has the right to do so under its
agreements with any third parties Dell shall pass through to Customer all third Party
warranties as Dell receives from such third party in its contracts.
Dell Return Policy (U.S. only)
Dell offers Customers the option to return most products Customer purchases
directly from Dell. Customer may return eligible products for a credit or a refund of
the purchase price paid, less shipping and handling and any applicable restocking
fees, as set forth in detail below.
30 -Day Return Period for Certain Hardware and Software Products and
Accessories: Except as provided below, all hardware, accessories, peripherals, parts,
and certain media -based software that is unopened and still in its sealed package may
be returned within 30 days from the date on the packing slip or invoice for a credit or
a refund of the purchase price paid, less shipping and handling and any applicable
restocking fees. Any product returned to Dell without prior authorization from Dell
will be considered an unauthorized return, and the customer will not receive credit
for the product and Dell will not ship the product back to you.
Notations and Exceptions to Dell's 30 -Day Return Period:
t:
ew PowerEdge, PowerConnect, and PowerVault products purchased directly
from Dell may be returned within 30 days from the date on the packing slip or
invoice.
New
Vostro, Optiplex, Latitude, and Dell Precision systems purchased directly
from divisions designated by Dell as Commercial or Public may be returned
within 30 days from the date on the packing slip or invoice.
Application
software and operating systems that have been installed by Dell may be
returned only if installed on a returnable system, and only if Customer returns
that system within the applicable return period.
Software licenses purchased
under any type of volume license agreement may be returned only with the
express approval of the publisher, which in many circumstances will not be
granted.
Restocking Fees: Unless the product is defective or the return is a direct result of a
Dell error, Dell may charge a restocking fee of up to 15% of the purchase price paid,
plus any applicable sales tax.
How to Return a Product: Before returning a product, Customer must first contact
Dell customer service and obtain a Credit Return Authorization (CRA) number before
the end of the applicable return period. Dell will not accept returns without a CRA
number. To find the appropriate phone number or to send an e-mail to customer
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DIR Contract No. DIR-SDD-1951
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service to request a CRA number, go to www.dell.com/contact, or see the
"Contacting Dell" or "Getting Help" section of a Customer's specific documentation.
NOTE: Customer must ship the product to Dell within5 days of the date that Dell
issues the Credit Return Authorization number as follows:
3 Ship back all products Customer is
seeking to return to Dell and for which Customer received a CRA number. For
partial returns, a Customer's credit may be less than the invoice or individual
component price due to bundled or promotional pricing or any unadvertised
discounts or concessions.
Return the products in their original packaging, in as -
new condition, along with any media, documentation, and any other items that
were included in Customer's original shipment.
Ship the products at Customer's expense, and insure the
shipment or accept the risk of loss or damage during shipment.
Upon receipt of Customer's return, Dell will issue a credit or a refund of the purchase
price paid, less shipping and handling and any applicable restocking fees subject to
this policy.
Note: Before a Customer returns the product to Dell, make sure to back-up any data
on the hard drive(s) and on any other storage device in the product. Remove any and
all confidential, proprietary, and personal information as well as removable media
such as floppy disks, CDs, and PC Cards. Dell is not responsible for any confidential,
proprietarj; or personal information; lost or corrupted data; or damaged or lost
removable media that may be included with a Customer's return.
Services Warranty:
Limited Warranty. VENDOR WARRANTS THAT SERVICES WILL BE
PERFORMED IN A GOOD AND WORKMANLIKE MANNER. EXCEPT AS
EXPRESSLY STATED IN THE PRECEDING SENTENCE, VENDOR
(INCLUDING ITS AFFILIATES, SUBCONTRACTORS AND AGENTS) AND
EACH OF THEIR RESPECTIVE EMPLOYEES, DIRECTORS AND
OFFICERS (COLLECTIVELY, THE "VENDOR PARTY(IES)") MAKES NO
EXPRESS OR IMPLIED WARRANTIES WITH RESPECT TO ANY OF THE
SERVICES OR DELIVERABLES, INCLUDING BUT NOT LIMITED TO,
ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, PERFORMANCE, SUITABILITY OR NON -
INFRINGEMENT; OR ANY WARRANTY RELATING TO THIRD -PARTY
PRODUCTS OR THIRD -PARTY SERVICES.
High -Risk Application Disclaimer. THE SERVICES ARE NOT FAULT-
TOLERANT AND ARE NOT DESIGNED OR INTENDED FOR USE IN
HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE
PERFORMANCE, INCLUDING WITHOUT LIMITATION, IN THE
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OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR
COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, WEAPONS
SYSTEMS, LIFE-SUPPORT MACHINES, OR ANY OTHER APPLICATION
IN WHICH THE FAILURE OF THE SERVICES COULD LEAD DIRECTLY
TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR PROPERTY
DAMAGE (COLLECTIVELY, "HIGH-RISK ACTIVITIES"). VENDOR
EXPRESSLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY OF
FITNESS FOR HIGH-RISK ACTIVITIES.
F. Section 6. Contract Fulfillment and Promotion, E. Internet Access to Contract
and Pricing Information 1) Vendor Website, is hereby replaced in its entirety:
Vendor will maintain a website specific to the products and services being offered
under the Contract which is clearly distinguishable from other, non-DIR contract
offerings at the Vendor's website. The website must include at a minimum:
A. The Contract number and a statement that the customer must reference the
Contract Number on their purchase order.
B. A statement designating who can procure through the Contract.
C. Examples of products and services offered under the Contract.
D. Examples of product and services specifications, to the extent they exist and are
offered under the Contract.
E. Current Contract pricing — or how to obtain pricing.
F. Contact information for Vendor business segments (i.e., State and Local, Higher
Education, K-12, Healthcare, etc.).
G. Named Order Fulfillers and contact information for each designated Order
Fulfiller.
H. Instructions for obtaining quotes and placing Purchase Orders through Vendor
direct or through a designated Order Fulfiller.
I. Warranty policy terms and conditions, if applicable.
J. Return policy terms and conditions, if applicable.
The Vendor's website shall list the DIR Contract number, reference the DIR
Cooperative Contracts program, display the DIR logo in accordance with the
requirements in paragraph F of this Section, and contain a link to the DIR` website for
the Contract.
G. Section 6. Contract Fulfillment and Promotion, G. Vendor and Order Fulfiller
Logo, is hereby replaced in its entirety:
DIR may use the Vendor's and Order Fulfiller's name and logo in the promotion of
the Contract to communicate the availability of products and services under the
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DIR Contract No. DIR-SDD-1951
Vendor Contract No.
Contract to Customers. Use of the logos may be on the DIR website or on printed
materials. Any use of Vendor's and Order Fulfiller's logo by DIR must comply with
and be solely related to the purposes of the Contract and any usage guidelines
communicated to DIR from time to time. Nothing contained in the Contract will give
DIR any right, title, or interest in or to Vendor's or Order Fulfiller' trademarks or the
goodwill associated therewith, except for the limited usage rights expressly provided
by Vendor and Order Fulfiller. Dell's logo is subject to Dell's corporate compliance
usage rules.
H. Section b. Contract Fulfillment and Promotion, H. Trade Show Participation, is
hereby replaced in its entirety:
At DIR's discretion, Vendor may be required to participate in no more than two (2)
DIR sponsored trade shows each calendar year. Vendor understands and agrees that
participation, at the Vendor's expense, includes providing a manned booth display or
similar presence. DIR will provide four months advance notice of any required
participation. Vendor must display the DIR logo at all such trade shows in the State
of Texas that potential Customers will attend. DIR reserves the right to approve or
disapprove of the location or the use of the DIR logo in or on the Vendor's or Order
Fulfiller's booth.
I. Section 7. Purchase Orders, Invoices and Payments, is hereby replaced in its
entirety:
A. Purchase Orders
All Customer Purchase Orders will be placed directly with the Order Fulfiller.
Accurate Purchase Orders shall be effective and binding upon Order Fulfiller when
accepted by Order Fulfiller.
B. Invoices
Invoices shall be submitted by the Vendor directly to the Customer and shall be
issued in compliance with Chapter 2251, Texas Government Code. All payments for
services purchased under the Contract and any provision and receipt of such services
shall be made by the Customer to the Vendor.
Invoices must be timely and accurate. Each invoice must match Customer's Purchase
Order and include any written changes that may apply, as it relates to services, prices
and quantities. Invoices must include the Customer's Purchase Order number or other
pertinent information for verification of receipt of the services by the Customer.
C. Payments
The parties shall comply with Chapter 2251, Texas Government Code, in invoicing
and malting payments. Payments for goods and services are due thirty (30) days after
the goods are provided, the services completed, or a correct invoice is received,
whichever is later. Payment under the Contract shall not foreclose the right to recover
wrongful payments.
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D. Acceptance
Customer and Vendor may establish terms for acceptance of Products and Services.
Absent other terms of acceptance agreed to by Customer and Vendor, the following
terms will apply. With respect to Vendor -branded products delivered to Customers
under the Contract that have Vendor -published specifications, and with respect to
Services provided to Customers by Vendor under the Contract that have mutually
agreed upon specifications described in a Purchase Order executed by the Customer
and Vendor (respectively, the "Specifications"), Customer shall determine whether
such products and Services meet the applicable Specifications. If the product or
Service meets the Specifications applicable to it, the Customer agrees to accept such
product or Service. Unless otherwise agreed upon by the Customer and Vendor, a
product or service shall be deemed accepted if the Customer does not, within ten (1 d)
calendar days from the date such product or service is delivered, issue to Vendor a
written notice of partial acceptance or rejection of the product or service based on the
fact that the product or service did not meet the Specifications applicable to it
("Deemed Acceptance" or "Deemed Accepted)).
No payment shall due for any such product or Service until the Customer either
accepts the product or service or such product or service is Deemed Accepted.
J. Section 8. Contract Administration, B. Reporting and Administrative Fees, 2)
Detailed Monthly Report, is hereby replaced in its entirety:
Vendor shall electronically provide DIR with a detailed monthly report in the format
required by DIR showing the dollar volume of any and all sales under the Contract
for the previous month period. Reports shall be submitted to the DIR ICT
Cooperative Contracts E -Mail Box at ict.sales c,dir.texas�ov. Reports are due on the
fifteenth (15th) calendar day after the close of the previous month period. If such
date falls on a holiday or weekend, the report shall be due the first business day
following. It is the responsibility of Vendor to collect and compile all sales under the
Contract from participating Order Fulfillers and submit one (1) monthly report. The
monthly report shall include, per transaction: the detailed sales for the period, the
Order Fulfiller's company name, if applicable, Customer name, invoice date, invoice
number, description, SKU, manufacturer, quantity, unit price, extended price,
Customer Purchase Order number, contact name if provided, Customer's complete
billing address, Manufacturer's Suggested Retail Price and other information as
reasonably required by DIR. Each report must contain all information listed above
per transaction or the report will be rejected and returned to the Vendor for correction
in accordance with this section.
K. Section 8. Contract Administration, B. Reporting and Administrative Fees, 4)
DIR Administrative Fee, is hereby replaced in its entirety:
a) An administrative fee shall be paid by Vendor to DIR to defray the DIR costs of
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Vendor Contract No.
negotiating, executing, and administering the Contract. The maximum administrative
fee is set by the Texas Legislature in the biennial General Appropriations Act.
Payment of the administrative fee shall be due on the fifteenth (15th) calendar day
after the close of the previous month period. DIR may change administrative fee
amounts; however, no revision will take effect before ninety (90) days following
written notice. Vendor may revise pricing to reflect the change in administrative fees.
b) Vendor shall reference the DIR Contract number on any remittance instruments.
L. Section 8. Contract Administration, B. Reporting and Administrative Fees, 5)
Accurate and Timely Submission of Reports, is hereby replaced in its entirety:
a) The reports and administrative fees shall be accurate and timely and submitted in
accordance with the due dates specified in this section. Vendor shall correct any
inaccurate reports or administrative fee payments within a maximum of five business
days upon written notification by DIR. Vendor shall deliver any late reports or late
administrative fee payments within a maximum of five business days upon written
notification by DIR. If Vendor is unable to correct inaccurate reports or administrative
fee payments or deliver late reports and fee payments within a maximum of five
business days, Vendor must contact DIR and provide a corrective plan of action,
including the timeline for completion of correction. The corrective plan of action shall
be subject to DIR approval.
b) Should Vendor fail to correct inaccurate reports or cure the delay in timely delivery
of reports and payments within the corrective plan of action timeline, DIR reserves the
right to require an independent third party audit of the Vendor's records as specified in
C.3 of this Section, at DIR's expense.
c) Failure to timely submit three (3) reports within any rolling twelve (12) month
period may, at DIR's discretion, result in termination of Vendor's Contract.
M. Section 8. Contract Administration, C. Records and Audit, is hereby
replaced in its entirety:
1) Acceptance of funds under the Contract by Vendor and/or Order Fulfiller acts as
acceptance of the authority of the State Auditor's Office, or any successor agency, to
conduct an audit or investigation in connection with those funds. Vendor further
agrees to cooperate fully with the State Auditor's Office or its successor in the
conduct of the audit or investigation, including providing all records requested.
Vendor will ensure that this clause concerning the authority to audit finds received
indirectly by subcontractors through Vendor or directly by Order Fulfillers and the
requirement to cooperate is included in any subcontract or Order Fulfiller contract it
awards pertaining to the Contract. Under the direction of the Legislative Audit
Committee, a Vendor that is the subject of an audit or investigation by the State
Auditor's Office must provide the State Auditor's Office with access to any
information the State Auditor's Office considers relevant to the investigation or audit.
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2) Vendor shall maintain adequate records relating to the requirements of this
Contract and relevant to the performance of the Contract to DIR, to establish
compliance with the Contract until the later of a period of four (4) years after
termination of the Contract or until full, final and unappealable resolution of all
Compliance Check or litigation issues that arise under the Contract. Such records
shall include per transaction: Customer name, invoice date, invoice number,
description, quantity, unit price, extended price, Customer Purchase Order number,
contact name, Customer's complete billing address, the calculations supporting each
administrative fee owed DIR under the Contract, Historically Underutilized
Businesses Subcontracting reports, and such other documentation as DIR may
request.
3) Vendor and/or Order Fulfillers shall grant access to all paper and electronic
records, books, documents, accounting procedures, practices and any other items
relevant to the performance of the Contract to the DIR Internal Audit department or
DIR Contract Management staff, including the compliance checks designated by the
DIR Internal Audit department, DIR Contract Management staff, the State Auditor's
Office, and of the United States, and such other persons or entities designated by DIR
for the purposes of inspecting, Compliance Checking and/or copying such books and
records. Vendor and/or Order Fulfillers shall provide copies and printouts requested
by DIR without charge. DIR shall provide Vendor and/or Order Fulfillers ten (10)
business days' notice prior to inspecting, Compliance Checking, and/or copying
Vendor's and/or Order Fulfiller's records. Vendor's and/or Order Fulfillers records,
whether paper or electronic, shall be made available during regular office hours.
Vendor and/or Order Fulfiller personnel familiar with the Vendor's and/or Order
Fulfiller's books and records shall be available to the DIR Internal Audit department,
or DIR Contract Management staff and designees as needed. Vendor and/or Order
Fulfiller shall provide adequate office space to DIR staff during the performance of
Compliance Check. If any audit reveals a Material Accounting Error, Vendor must
reimburse DIR for actual and reasonable costs of such audit. Material Accounting
Error means (a) with regard to audits of invoices, an aggregate variance from all
applicable invoices of Vendor reviewed during such audit in excess of 1.5% of the
aggregate amount shown on all of the invoices reviewed during such audit; and (b)
with regard to audits of fees, an aggregate underpayment of all fees due to DIR under
this Contract during a Vendor fiscal quarter in excess of 5%.
N. Section 9. Vendor Responsibilities, A. Indemnification, 1) Acts and
Omissions is hereby replaced in its entirety:
Vendor shall indemnify and hold harmless the State of Texas and Customers,
AND/OR THEIR OFFICERS, AGENTS, EMPLOYEES, REPRESENTATIVES,
CONTRACTORS, ASSIGNEES, AND/OR DESIGNEES FROM AND AGAINST
ANY AND ALL THIRD PARTY CLAIMS FOR LIABILITY, ACTIONS, CLAIMS,
DEMANDS, OR SUITS, AND ALL RELATED COSTS, ATTORNEY FEES, AND
EXPENSES arising out of, or resulting from any acts or omissions of the Vendor or
its agents, employees, subcontractors, Order Fulfillers, or suppliers of subcontractors
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in the execution or performance of the Contract and any Purchase Orders issued
under the Contract resulting in bodily injury (including death) or damage to tangible
property and to the extent caused by Dell or its Order Fulfillers, Agents, Resellers or
subcontractors. VENDOR'S OBLIGATIONS TO INDEMNIFY AND HOLD
HARMLESS ARE NOT SUBJECT TO OR LIMITED BY CONTRIBUTORY
NEGLIGENCE. VENDOR SHALL PAY ALL COSTS OF DEFENSE INCLUDING
REASONABLE ATTORNEYS FEES. The defense shall be coordinated by the
Office of the Attorney General FOR TEXAS STATE AGENCIES OR BY
CUSTOMER'S LEGAL COUNSEL FOR NON -STATE AGENCY CUSTOMERS,
VENDOR'S COUNSEL FOR VENDOR, AND BY CUSTOMERS COUNSEL FOR
NON -STATE AGENCY CUSTOMERS AND VENDOR MAY NOT AGREE TO
ANY SETTLEMENT AS TO CLAIMS AGAINST TEXAS STATE AGENCIES
WITHOUT FIRST OBTAINING CONCURRENCE FROM THE OFFICE OF THE
ATTORNEY GENERAL.
0. Section 9. Vendor Responsibilities, A. Indemnification, 2) Infringements
is hereby replaced in its entirety:
a) Vendor shall indemnify and hold harmless the State of Texas and Customers,
AND/OR THEIR EMPLOYEES, AGENTS, REPRESENTATIVES,
CONTRACTORS, ASSIGNEES, AND/OR DESIGNEES, from any and all third
party claims involving infringement of United States patents, copyrights, trade and
service marks, and any other intellectual or intangible property rights in connection
with the PERFORMANCES of Services or the provision of Dell -branded Products by
VENDOR PURSUANT TO THIS CONTRACT. "Dell -Branded Products" shall
mean hardware products (including all Dell standard components and parts contained
within the Dell system), components, or parts bearing the Dell logo that are included
on Seller's standard price list.
VENDOR and the CUSTOMER agree to furnish timely written notice to each other
of any such claim. VENDOR SHALL BE LIABLE TO PAY ALL COSTS OF
DEFENSE OF THE CLAIMS AS SPECIFIED IN THIS SECTION INCLUDING
ATTORNEYS' FEES. The defense shall be coordinated by the Office of the Attorney
General FOR TEXAS STATE AGENCY CUSTOMERS, Vendor's Counsel for
Vendor, AND BY CUSTOMER'S LEGAL COUNSEL FOR NON -STATE
AGENCY CUSTOMERS AND VENDOR MAY NOT AGREE TO ANY
SETTLEMENT AS TO CLAIMS AGAINST TEXAS STATE AGENCIES
WITHOUT FIRST OBTAINING CONCURRENCE FROM THE OFFICE OF THE
ATTORNEY GENERAL. In addition, the foregoing IP obligations shall extend to
third party claims involving infringement of United States patents, copyrights, trade
and service marks, and any other intellectual or intangible property rights in
connection with Vendor's sale of third party equipment and license of third party
software under this Contract, if and to the extent the applicable third party equipment
manufacturer or third party software licensor is contractually obligated to Vendor to
provide indemnification for such claims.
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b) Notwithstanding the foregoing, Vendor shall have no obligation under this Section
for any claim to the extent that it results or arises from (1) Customer's modifications
of such products, services or deliverables that were not performed by or on behalf of
Vendor; (2) the combination, operation or use of such product, service or deliverable
in connection with a third -party product or service (the combination of which causes
the infringement); or (3) Vendor's compliance with Customer's written specifications
(to the extent such specifications were not developed by Vendor) or directions,
including the incorporation of any software or other materials or process provided by
or requested by Customer, provided that, in the first case, Vendor's employees who
complied with Customer's specifications did not have actual knowledge that such
specifications infringe one or more United States patents, copyrights, trade and
service marks, and any other intellectual or intangible property rights and fails to so
inform Customer. In the event Vendor has no obligation for a claim as set forth
above, Vendor agrees to provide such assistance (e.g., producing documents and its
employees as witnesses) as is reasonably requested by the Attorney General in
connection with the Attorney General's defense of such claim.
c) If Vendor becomes aware of an actual or potential claim, or Customer provides
Vendor with notice of an actual or potential claim, Vendor may (or in the case of an
injunction against Customer, shall), at Vendor's sole option and expense: (i) procure
for the Customer the right to continue to use the affected portion of the product or
service, or (ii) modify or replace the affected portion of the product or service with
functionally equivalent or superior product or service so that Customer's use is non -
infringing, or (iii) provide a refund that reflects reasonable depreciation for time of
use, and for services/custom software, (iii) applies only if the remedies described in
subparts (i) and (ii) are not obtainable despite Vendor's commercially reasonable
efforts. This subsection states Customer's exclusive remedies for any third -party
intellectual property claim. Notwithstanding the foregoing, if Vendor provides the
remedy described in subpart (iii) and the affected Customer incurs transition expenses
relating to the replacement in such Customer's IT environment of the affected portion
of Dell -Branded Products or services, such Customer may tender to Vendor a claim
for such actual and reasonable transition expenses in an amount up to the difference
between (y) the original purchase price for the affected portion of the product or
service being removed and (z) the refund provided to such Customer pursuant to
subpart (iii), above, and Vendor will pay such claim.
P. Section 9. Vendor Responsibilities, B. Taxes/Worker's Compensation/
UNEMPLOYMENT INSURANCE is hereby replaced in its entirety,
VENDOR AGREES AND ACKNOWLEDGES THAT DURING TIE EXISTENCE
OF THIS CONTRACT, VENDOR SHALL BE ENTIRELY RESPONSIBLE FOR
THE LIABILITY AND PAYMENT OF VENDOR'S AND VENDOR'S
EMPLOYEES' TAXES OF WHATEVER KIND, ARISING OUT OF THE
PERFORMANCES IN THIS CONTRACT. VENDOR AGREES TO COMPLY
WITH ALL STATE AND FEDERAL LAWS APPLICABLE TO ANY SUCH
PERSONS, INCLUDING LAWS REGARDING WAGES, TAXES, INSURANCE,
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AND WORKERS' COMPENSATION. VENDOR AGREES AND
ACKNOWLEDGES THAT VENDOR ITS EMPLOYEES, REPRESENTATIVES,
AGENTS OR SUBCONTRACTORS SHALL NOT BE ENTITLED TO ANY
STATE BENEFIT OR BENEFIT OF ANOTHER GOVERNMENTAL ENTITY
CUSTOMER AS A RESULT OF WORKING UNDER THIS CONTRACT. THE
CUSTOMER AND/OR TIIE 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 WORILERS'
COMPENSATION OR ANY BENEFIT AVAILABLE TO A STATE EMPLOYEE
OR EMPLOYEE OF ANOTHER GOVERNMENTAL ENTITY CUSTOMER AS A
RESULT OF ITS PERFORMANCE UNDER THIS CONTRACT.
2) VENDOR AGREES TO INDEMNIFY AND HOLD HARMLESS CUSTOMERS,
THE STATE OF TEXAS AND/OR THEIR EMPLOYEES, AGENTS,
REPRESENTATIVES, CONTRACTORS, ASSIGNEES, AND/OR DESIGNEES
FROM ANY AND ALL LIABILITY, ACTIONS, CLAIMS, DEMANDS, OR
SUITS, AND ALL RELATED COSTS, ATTORNEY FEES, AND EXPENSES,
RELATING TO. TAX LIABILITY, UNEMPLOYMENT INSURANCE AND/OR
WORKERS' COMPENSATION OR EXPECTATIONS OF BENEFITS BY
VENDOR, ITS EMPLOYEES, REPRESENTATIVES, AGENTS OR
SUBCONTRACTORS IN ITS PERFORMANCE UNDER THIS CONTRACT.
VENDOR SHALL BE LIABLE TO PAY ALL COSTS OF DEFENSE INCLUDING
REASONABLE ATTORNEYS' FEES FOR CLAIMS UNDER THIS CLAUSE AS
A RESULT OF ITS PERFORMANCE UNDER THIS CONTRACT.
THE DEFENSE SHALL BE COORDINATED BY TIIE OFFICE OF THE
ATTORNEY GENERAL FOR TEXAS STATE AGENCY CUSTOMERS,
VENDOR'S COUNSEL FOR VENDOR AND BY CUSTOMER'S LEGAL
COUNSEL FOR NON -STATE AGENCY CUSTOMERS, AND VENDOR MAY
NOT AGREE TO ANY SETTLEMENT AS TO CLAIMS AGAINST TEXAS
STATE AGENCIES WITHOUT FIRST OBTAINING CONCURRENCE FROM
THE OFFICE OF THE ATTORNEY GENERAL.
Q. Section 9. Vendor Responsibilities, C. Vendor Certifications, is hereby
replaced in its entirety:
Vendor certifies as of the effective date of this Contract, on behalf of Vendor and its
designated Order Fulfillers that they:
(i) have not given, offered to give, and do not intend to give at any time hereafter any
economic opportunity, future employment, gift, loan, gratuity, special discount,
trip, favor, or service to a public servant in connection with obtaining the
Contract;
(ii) are not currently delinquent in the payment of any franchise tax owed the State of
Texas and are not ineligible to receive payment under §231.006 of the Texas
Family Code and acknowledge the Contract may be terminated and payment
withheld if this certification is inaccurate;
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(iii)neither they, nor anyone acting for them, have violated the antitrust laws of the
United States or the State of Texas, nor communicated directly or indirectly to
any competitor or any other person engaged in such line of business for the
purpose of obtaining an unfair price advantage;
(iv)have not received payment from DIR or any of its employees for participating in
the preparation of the Contract;
(v) under Section 2155.004, Texas Government Code, the vendor certifies that the
individual or business entity named in this bid or contract is not ineligible to
receive the specified contract and aclaiowledges that this contract may be
terminated and payment withheld if this certification is inaccurate;
(vi)to the best of their knowledge and belief, there are no suits or proceedings
pending or threatened against or affecting them, which if determined adversely
to them will have a material adverse effect on the ability to fulfill their
obligations under the Contract;
(vii) are not suspended or debarred from doing business with the federal
government as listed in the Excluded Parties List System (EPLS) maintained by
the General Services Administration;
(viii) as of the effective date of the Contract, are not listed in the prohibited vendors
list authorized by Executive Order #13224, "Blocking Property and
Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or
Support Terrorism ", published by the United States Department of the
Treasury, Office of Foreign Assets Control; (ix) to the extent applicable to this
scope of this Contract, Vendor hereby certifies that it is in compliance with
Subchapter Y, Chapter 361, Health and Safety Code related to the Computer
Equipment Recycling Program and its rules, 30 TAC Chapter 328;
(ix)agree that any payments due under this contract will be applied towards any debt,
including but not limited to delinquent taxes and child support that is owed by
Vendor to the State of Texas;
(x) are in compliance Section 669.003, Texas Government Code, relating to
contracting with executive head of a state agency;
(xi)have identified all current or former, within the last five years, employees of the
State of Texas assigned to work on the DIR Contract 20% or more of their time
and have disclosed them to DIR and have disclosed or do not employ any
relative of a current or former state employee within two degrees of
consanguinity, and, if these facts change during the course of the Contract,
certify they shall disclose the name and other pertinent information about the
employment of current and former employees and their relatives within two
degrees of consanguinity;
(xii) represent and warrant that the provision of goods and services or other
performance under the Contract will not constitute an actual conflict of
interest, and, if these facts change during the course of the Contract, certify
they shall disclose the actual or potential conflict of interest and any
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circumstances that create the appearance of impropriety;
(xiii) under Section 2155.006, Government Code, are not ineligible to receive the
specified contract and acknowledge that this contract may be terminated and
payment withheld if this certification is inaccurate; and
(xiv) they acknowledge the applicability of §2155.444 and §2155.4441, Texas
Government Code, in fulfilling the terms of the Contract.
During the term of the Contract, Vendor shall, for itself and on behalf of its
Order Fulfillers, promptly disclose to DIR all changes that occur to the
foregoing certifications, representations and warranties. Vendor covenants to
fully cooperate in the development and execution of resulting documentation
necessary to maintain an accurate record of the certifications, representations
and warranties.
In addition, Vendor understands and agrees that Vendor may be required to
comply with additional terms and conditions or certifications that an individual
customer may require due to applicable state and federal law (e.g, privacy and
security requirements).
R. Section 9. Vendor Responsibilities, G. Responsibility for Actions, is hereby
replaced in its entirety:
1) Vendor is solely responsible for its actions and those of its agents, employees, or
subcontractors, and agrees that neither Vendor nor any of the foregoing has any
authority to act or speak on behalf of DIR or the State.
S. Section 9. Vendor Responsibilities, I. Security of Premises, Equipment,
Data and Personnel, is hereby replaced in its entirety:
(a) Vendor and/or Order Fulfiller may, from time to time during the performance of the
Contract, have access to the personnel of Customers and the premises, equipment,
and other tangible property belonging to the Customer. Vendor shall use
commercially reasonable efforts to preserve the safety of such personnel and the
safety, security, and the integrity of such premises, equipment, and other tangible
property, in accordance with the instruction of the applicable Customer provided to
Vendor or the applicable Order Fulfiller by the Customer in writing or in the manner
that Customer generally provides such instructions to its own employees and other
contractors. Vendor shall be responsible for damage to Customer's premises,
equipment and other tangible property when such damage is caused by its employee
or subcontractor. If Vendor and/or an Order Fulfiller materially fails to comply with
the applicable Customer's security requirements, then such Customer may
immediately terminate its Purchase Order and related Service Agreement.
(b) In addition, Vendor and/or Order Fulfiller may, from time to time during performance
of the Contract, have access to Customer's data ("Data") that is hosted either at
Customer's or a third party's premises (other than premises of Vendor's Affiliates or
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subcontractors) (collectively, "Customer Premises") or at Vendor's premises or the
premises of Vendor's Affiliates or subcontractors (collectively, "Vendor Premises").
(i) As to Data hosted at any Customer Premises, Vendor shall comply with
Customer's instructions related to preserving the safety, security and integrity of
such Data provided to Vendor or the applicable Order Fulfiller by the Customer in
writing or in the manner that Customer generally provides such instructions to its
own employees and other contractors.
(ii) As to Data hosted at any Vendor Premises, Vendor will comply with its generally
applicable security standards designed to preserve the safety, security and
integrity of such Data, as well as any additional security obligations expressly
agreed in the applicable Statement of Work executed by Customer and Vendor.
(iii)Notwithstanding anything to the contrary in this Agreement, including this
Section 9.1, except as otherwise expressly provided in a Statement of Work
executed by Customer and Vendor: (A) Customer is responsible for backing up
its own Data, (B) Vendor and Order Fulfiller shall not have operational or
financial responsibility for refreshes, upgrades, modifications or improvements to
Customer -provided facilities, equipment or software that may be required to
preserve the safety, security and integrity of such Data, and (C) if Vendor or
Order Fulfiller's compliance with Customer's instructions constitutes a material
change to the scope of Services or their other obligations, the paries will
equitably adjust the charges to account for such material change. Vendor and
Order Fulfiller shall not be responsible, or liable for any damages, for any Data
losses to the extent such Data cannot be retrieved due to Customer's (or
Customer's applicable third party vendor's) failure to use standard industry
practices relating to data backups and retrieval of Data.
(iv)If Vendor has Data backup responsibility under the applicable Statement of Work,
Vendor shall be operationally and financially responsible for restoring such Data
that is lost or corrupted as soon as reasonably practicable in accordance with its
Data restore responsibilities set forth in the Statement of Work, provided that, if
the loss or corruption of Data results from a Force Majeure Event or other event
for which Vendor's non-performance is excused, then Vendor and Customer will
equitably adjust the charges to account for the additional effort incurred by
Vendor in restoring the Data to the extent such additional charges result from
activities in addition to the responsibilities Vendor is expressly obligated to
perform under the applicable Statement of Work. In either of the foregoing cases
in which additional charges may apply, Vendor will consult with the applicable
Customer before performing such restoration, and the applicable Customer may,
at its discretion, direct Vendor not to restore the Data.
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T. Section 9. Vendor Responsibilities, J. Background and/or Criminal
History Investigation, is hereby replaced in its entirety:
Prior to commencement of any services, background and/or criminal history
investigation of the Vendor's employees and subcontractors who will be providing
services to the Customer under the Contract may be performed by Vendor or
Customers (as required by Customer) , provided this requirement is added to the
applicable specific Purchase Order between such Customer and Vendor. Should any
employee or subcontractor of the Vendor who will be providing services to the
Customer under such Purchase Order not be acceptable to the Customer as a result of
the background and/or criminal history check, then Customer may immediately
require replacement of the employee or subcontractor in question. If Vendor fails to
promptly replace the employee or subcontractor personnel, then Customer may
immediately terminate its Purchase Order and related Service Agreement.
U. Section 9. Vendor Responsibilities, K. Limitation of Liability, is hereby
replaced in its entirety:
For any claim or cause of action arising out of or related to the Contract: i) to the
extent permitted by the Constitution and the laws of the State of Texas, none of the
parties shall be liable to the other for indirect, punitive, special, or consequential
damages, even if it is advised of the possibility of such damages; and ii) Vendor's
cumulative liability for all claims and damages of any kind to all Customers under the
Contract shall be limited, in the aggregate, to $5,000,000. The foregoing limitations
shall apply regardless of whether the claim for such damages is based in contract,
warranty, strict liability, negligence, tort or otherwise. Insofar as applicable law
prohibits any limitation herein, the parties agree that such limitation will be
automatically modified, but only to the extent so as to make the limitation permitted
to the fullest extent possible under such law. However, this limitation of Vendor's
liability shall not apply to Vendor's indemnification obligations for claims of patent,
trademark, or copyright infringement of Vendor -branded products or Vendor -
provided services and deliverables as set forth in Section 9.A.3.
V. Section 9. Vendor Responsibilities, L. Overcharges, is hereby replaced in
its entirety:
Vendor hereby assigns to DIR any and all of its claims for overcharges associated
with this contract which arise under the antitrust laws of the United States, 15
U.S.C.A. Section 1, et seq., and which arise under the antitrust laws of the State of
Texas, Tex. Bus. and Comm. Code Section 15.01, et seq., to the extent that such
overcharge was, in fact, passed on to DIR or its Customers in the computer products
or other goods and/or services purchased by DIR or its Customers under this Contract
during the time period referenced in the litigation.
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W. Section 9. Vendor Responsibilities, M. Prohibited Conduct, is hereby
deleted in its entirety.
X. Section 9. Vendor Responsibilities, N. Required Insurance Coverage, is
hereby replaced in its entirety:
As a condition of this Contract with DIR, Vendor shall provide the listed insurance
coverage within 5 days of execution of the Contract if the Vendor is awarded services
which require that Vendor's employees perform work at any Customer premises
and/or use employer vehicles to conduct work on behalf of Customers. In addition,
when engaged by a Customer to provide services on Customer premises, the Vendor
shall, at its own expense, secure and maintain the insurance coverage specified
herein, and shall provide proof of such insurance coverage to the related Customer
within five (5) business days following the execution of the Purchase Order. Vendor
may not begin performance under the Contract and/or a Purchase Order until such
proof of insurance coverage is provided to, and approved by, DIR and the Customer.
All required insurance must be issued by companies that are A- financially rated and
duly licensed evaluated by AM Best Company as having financial strength ratings of
"A-" or better, and are admitted and authorized to do business in the State of Texas.
The Customer and DIR will be named as Additional Insureds on all required coverage
with the exception of Workers' Compensation and Employers Liability coverage.
Required coverage must remain in effect through the term of the Contract and each
Purchase Order issued to Vendor there under. The minimum acceptable insurance
provisions are as follows:
l) Commercial General Liability
Commercial General Liability must include a combined single limit of $500,000 per
occurrence for coverage A, B, & C including products/completed operations, where
appropriate, with a separate aggregate of $500,000. The policy shall contain the
following provisions:
a) Blanket contractual liability coverage for liability assumed under the Contract;
b) Independent Contractor coverage;
c) State of Texas, DIR and Customer listed as an additional insured;
d) Notice of Termination in favor of DIR and/or Customer; and
e) Waiver of Transfer Right of Recovery Against Others in favor of DIR and/or
Customer.
2) Workers' Compensation Insurance
Workers' Compensation Insurance and Employers' Liability coverage must include
limits consistent with statutory benefits outlined in the Texas Workers' Compensation
Act (Art. 8308-1.01 et seq. Tex. Rev. Civ. Stat) and minimum policy limits for
Employers' Liability of $250,000 bodily injury per accident, $500,000 bodily injury
disease policy limit and $250,000 per disease per employee.
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3) Business Automobile Liability Insurance
Business Automobile Liability Insurance must cover all owned, non -owned and hired
vehicles with a minimum combined single limit of $500,000 per occurrence for
bodily injury and property damage. Alternative acceptable limits are $250,000 bodily
injury per person, $500,000 bodily injury per occurrence and at least $100,000
property damage liability per accident. The policy shall contain the following
endorsements in favor of DIR and/or Customer:
a) Waiver of Subrogation;
b) Notice of Tennination; and
c) Additional Insured.
Y. Section 9. Vendor Responsibilities, S. Secure Erasure of Hard Disk Products
and/or Services, is hereby replaced in its entirety:
Vendor agrees that all products that are equipped with hard disk drives (e.g.,
computers, servers, printers, scanners, multifunction devices) shall have the capability
to erase data written to the hard drive prior to final disposition of such managed
service products and/or services, either at the end of the managed service product
and/or services' useful life or at the end of the Customer's managed service product
and/or services' useful life or the end of the related Customer Managed Services
Agreement for such products and/or services, in accordance with 1 TAC 202.28.
Z. Section 9. Vendor Responsibilities, T. Deceptive Trade Practices; Unfair
Business Practices, is hereby replaced in its entirety:
Vendor represents and warrants as of the Effective Date of this Contract, that neither
Vendor nor any of its Subcontractors has been (i) found liable in any administrative
hearing, litigation or other proceeding of Deceptive Trade Practices violations as
defined under Chapter 17, Texas Business & Commerce Code, or (ii) has outstanding
allegations of any Deceptive Trade Practice pending in any administrative hearing,
litigation or other proceeding.
Vendor certifies that it has no officers who have served as officers of other entities
who (i) have been found liable in any administrative hearing, litigation or other
proceeding of Deceptive Trade Practices violations or (ii) have outstanding
allegations of any Deceptive Trade Practice pending in any administrative hearing,
litigation or other proceeding.
AA. Section 9. Vendor Responsibilities, U. Drug Free Workplace Policy, is hereby
replaced in its entirety:
Vendor will comply with drug and alcohol rules and regulations that are legally
mandated for employers in the State of Texas. Vendor and Customers may agree to
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more specific requirements for onsite services in a mutually agreed statement of
work.
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BB. Section 10. Contract Enforcement, B. Termination, a) Termination for Non -
Appropriation by Customer, is hereby replaced in its entirety:
Customer shall not place Purchase Orders if funds sufficient to pay its obligations
under the Contract are not appropriated: i) by the governing body on behalf of local
governments; ii) by the Texas legislature on behalf of state agencies; or iii) by budget
execution authority provisioned to the Governor or the Legislative Budget Board as
provided in Chapter 317, Texas Government Code. In the event of non -
appropriation, Vendor and/or Order Fulfiller will be provided ten (10) calendar days
written notice of intent to terminate. Notwithstanding the foregoing, if a Customer
issues a Purchase Order and has accepted delivery of the product or services, they are
obligated to pay for the product or services or they may return the product and
discontinue using services under any return provisions that Vendor offers. In the
event of such termination, the Customer will not be considered to be in default or
breach wider this Contract, nor shall it be liable for any further payments ordinarily
due under this Contract, nor shall it be liable for any damages or any other amounts
which are caused by or associated with such termination. Notwithstanding the
foregoing, if a Customer issues a Purchase Order and has accepted delivery of the
product or services, they are obligated to pay for the product or services or they may
return products and discontinue using services under any return provisions that
Vendor offers.
CC. Section 10. Contract Enforcement, B. Termination, 3) Termination for Convenience,
is hereby replaced in its entirety:
DIR may terminate the Contract, in whole or in part, by giving the other party thirty
(30) calendar days written notice. A Customer may terminate a Purchase Order if it is
determined by the Customer that Order Fulfiller will not be able to deliver product or
services prior to manufacturing process for products, and for services, in accordance
with a mutually agreed Statement of Work. For qualifying products, Customer may
return following receipt, in accordance with the Return Policy in Appendix A, Section
6C.
DD. Section 10. Contract Enforcement, C. Force Majeure, is hereby replaced in its
entirety:
DIR, Customer, or Vendor may be excused from performance under the Contract for
any period when performance is prevented as the result of an act of God, strike, war,
civil disturbance, epidemic, or court order, provided that the party experiencing the
event of Force Majeure has prudently and promptly acted to take any and all steps
that are within the party's control to ensure performance and to shorten the duration
of the event of Force Majeure. The party suffering an event of Force Majeure shall
provide notice of the event to the other parties when commercially reasonable.
Subject to this provision, such non-performance shall not be deemed a default or a
ground for termination. However, a Customer may terminate a Purchase Order if 1)
its performance is or will be delayed by 20 days or more by event(s) of Force Majeure
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(or a longer period if agreed to by the Customer) and 2) if it is reasonably determined
by the Customer that Vendor will not be able to deliver services in a timely manner to
meet the business needs of the Customer.
EE. Section 13. Export Compliance, is hereby added:
Compliance/Export Restrictions. Dell and Customer acknowledge that Products
licensed or sold under this Agreement are subject to the export control laws and
regulations of the United States or those of other countries from which they were
supplied and in which they are used. Under U.S. laws and regulations, Products
purchased under this Agreement may not be sold, leased or otherwise transferred to
restricted end-users or to restricted countries. In addition, the products may not be
sold, leased or otherwise transferred to, or utilized by, an end-user engaged in
activities related to weapons of mass destruction, including but not necessarily limited
to, activities related to the design, development, production or use of nuclear
materials, nuclear facilities, or nuclear weapons, missiles or support of missile
projects, or chemical or biological weapons. Customer warrants that any software
provided by Customer and used as part of the Services contains no encryption or, to
the extent that it contains encryption, such software is approved for export without a
license. If Customer cannot make the preceding representation, Customer agrees to
provide Dell with all of the information needed for Dell to obtain export licenses from
the United States government and to provide Dell with such additional assistance as
may be necessary to obtain such licenses. Notwithstanding the foregoing, Customer is
solely responsible for obtaining any specific licenses relating to the export of software
if a license is needed. Dell may also require export certifications from Customer for
Customer provided software. Dell's acceptance of any order for Services is
contingent upon the issuance of any applicable export license required by the United
States Government; Dell is not liable for delays or failure to deliver a product
resulting from Customer's failure to obtain such license or to provide such
certification.
(remainder of this page intentionally left blank)
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Vendor Contract No.
This Contract is executed to be effective as of the date of last signature.
Dell Marketing, L.P.
Authorized By: signature on file
Name: Kelly L. O'Shieles
Title: Contracts Consultant
Date: 1/8/13
The State of Texas, acting by avid through the Department of Information Resources
Authorized By: signature on file
Name: Carl Marsh
Title: Chief Operating Officer
Date: 1/9/13
Office of General Counsel: signature on file 1/9/13
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This Contract is executed to be effective as of the date of last signature.
City of Round Rock, Texas
By:
Printed Name:
Title:
Date Signed:
For City, Attest:
By:
Sara L. White, City Clerk
For City, Approved as to Form:
By:
Stephan L. Sheets, City Attorney
Appendix A
Standard Terms and Conditions For Product and Related Services Contracts
Table of Contents
1. Contract Scope....................................................................................................................... 1
2. No Quantity Guarantees..........................................................................................I.....I........ 1
3. Definitions..............................................................................................................................I
4. General Provisions................................................................................................................. 2
A.
Entire Agreement.......................................................................................................... 2
B.
Modification of Contract Terms and/or Amendments .................................................. 2
C.
Invalid Term or Condition............................................................................................ 2
D.
Assignment................................................................................................................... 3
E.
Survival....................................................................................................... ..............3
F.
Choice of Law............................................................................................................... 3
G.
Limitation of Authority................................................................................................. 3
5. Product Terms and Conditions.............................................................................................. 3
A.
Electronic and Information Resources Accessibility Standards, As Required
by 1 TAC Chapters 206 and 213 (Applicable to State Agency and
Institution of Higher Education Purchases Only)......................................................... 3
B.
Purchase of Commodity Items (Applicable to State Agency Purchases
Only)............................................................................................................................. 4
6. Contract
Fulfillment and Promotion...................................................................................... 4
A.
Service, Sales and Support of the Contract................................................................... 4
B.
Use of Order Fulfillers.................................................................................................. 5
1) Designation of Order Fulfillers............................................................................... 5
2) Changes in Order Fulfiller List............................................................................... 5
3) Order Fulfiller Pricing to Customer........................................................................ 5
C.
Product Warranty and Return Policies.......................................................................... 5
D.
Customer Site Preparation............................................................................................ 6
E.
Internet Access to Contract and Pricing Information................................................... 6
1), Vendor Website...................................................................................................... 6
2) Accurate and Timely Contract Information............................................................ 6
3) Website Compliance Checks.................................................................................. 6
4) Website Changes..................................................................................................... 6
5) Use of Access Data Prohibited............................................................................... 6
6) Responsibility for Content...................................................................................... 7
F.
DIR Logo...................................................................................................................... 7
G.
Vendor and Order Fulfiller Logo.................................................................................. 7
H.
Trade Show Participation.............................................................................................. 7
I.
Orientation Meeting...................................................................................................... 7
J.
Performance Review Meetings..................................................................................... 7
K.
DIR Cost Avoidance..................................................................................................... 8
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7. Purchase Orders, Invoices, and Payments............................................................................. 8
A. Purchase Orders............................................................................................................ 8
B. Invoices......................................................................................................................... 8
C. Payments....................................................................................................................... 8
8. Contract Administration......................................................................................................... 8
A.
Contract Administrators................................................................................................ 8
1) State Contract Administrator..................................................................................
8
2) Vendor Contract Administrator..............................................................................
9
B.
Reporting and Administrative Fees.............................................................................. 9
1) Reporting Responsibility ........................................................................................
9
2) Detailed Monthly Report........................................................................................
9
3) Historically Underutilized Businesses Subcontract Reports ...................................
9
4) DIR Administrative Fee.......................................................................................... 9
5) Accurate and Timely Submission of Reports.......................................................
10
C.
Records and Audit.......................................................................................................
10
D.
Contract Administration Notification.........................................................................
l 1
9. Vendor Responsibilities.......................................................................................................
11
A. Indemnification...........................................................................................................
B. Taxes/Worker's Compensation/UNEMPLOYMENT INSURANCE ........................ 12
C. Vendor Certifications.................................................................................................. 13
D. Ability to Conduct Business in Texas......................................................................... 15
E. Equal Opportunity Compliance.................................................................................. 15
F. Use of Subcontractors................................................................................................. 15
G. Responsibility for Actions.......................................................................................... 15
H. Confidentiality............................................................................................................ 16
I. Security of Premises, Equipment, Data and Personnel ............................................... 16
J. Background and/or Criminal History Investigation.................................................... 16
K. Limitation of Liability................................................................................................. 16
L. Overcharges................................................................................................................ 17
M. Prohibited Conduct..................................................................................................... 17
N. Required Insurance Coverage..................................................................................... 17
0. Use of State Property.................................................................................................. 18
P. Immigration................................................................................................................. 18
Q. Public Disclosure........................................................................................................ 18
R. Product and/or Services Substitutions........................................................................ 19
S. Secure Erasure of Hard Disk Products and/or Sei vices .............................................. 19
T. Deceptive Trade Practices; Unfair Business Practices ............................................... 19
U. Drug Free Workplace Policy...................................................................................... 19
10. Contract Enforcement.......................................................................................................... 19
A. Enforcement of Contract and Dispute Resolution...................................................... 19
B. Termination.................................................................................................................20
1) Termination for Non-Appropriation..................................................................... 20
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a) Termination for Non -Appropriation by Customer .................................................. 20
b) Termination for Non -Appropriation by DIR.......................................................... 20
2) Absolute Right...................................................................................................... 20
3) Termination for Convenience............................................................................... 21
4) Termination for Cause.......................................................................................... 21
a) Contract...........................................................................................................21
b) Purchase Order................................................................................................ 21
5) Customer Rights Under Termination.................................................................... 21
6) Vendor or Order Fulfiller Rights Under Termination ........................................... 21
C. Force Majeure............................................................................................................. 22
11. Notification.......................................................................................................................... 22
A. Notices........................................................................................................................ 22
B. Handling of Written Complaints................................................................................. 22
12. Captions............................................................................................................................... 22
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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
The Contract is not exclusive to the Vendor. Customers may obtain products and related
services from other sources during the term of the Contract. DIR makes no express or
implied warranties whatsoever that any particular quantity or dollar amount of products
and related services will be procured through the Contract.
3. Definitions
A. Customer - any Texas state agency, unit of local government, institution of higher
education as defined in Section 2054.003, Texas Government Code, and those state
agencies purchasing from a DIR contract through an Interagency Agreement, as
authorized by Chapter 771, Texas Government Code, any local government as
authorized through the Interlocal Cooperation Act, Chapter 791, Texas Government
Code, and the state agencies and political subdivisions of other states as authorized by
Section 2054.0565, Texas Government Code and, except for telecommunications
services under Chapter 2170, Texas Government Code, assistance organizations as
defined in Section 2175.001, Texas Government Code to mean:
1) A non-profit organization that provides educational, health or human
set -vices or assistance to homeless individuals;
2) A nonprofit food bank that solicits, warehouses, and redistributes edible
but unmarketable food to an agency that feeds needy families and
individuals;
3) Texas Partners of the Americas, a registered agency with the Advisory
Committee on Voluntary Foreign Aid, with the approval of the Partners
of the Alliance Office of the Agency for International Development;
4) A group, including a faith -based group, that enters into a financial or
non-financial agreement with a health or human services agency to
provide services to that agency's clients;
5) A local workforce development board created under Section 2308.253;
6) A nonprofit organization approved by the Supreme Court of Texas that
provides free legal services for low-income households in civil matters;
7) The Texas Boll Weevil Eradication Foundation, Inc., or an entity
designated by the commissioner of agriculture as the foundation's
successor entity under Section 74. 1011, Texas Agriculture Code;
8) A nonprofit computer bank that solicits, stores, refurbishes and
redistributes used computer equipment to public school students and
their families; and
9) A nonprofit organization that provides affordable housing.
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B. Compliance Check — an audit of Vendor's compliance with the Contract may be
performed by, but not limited to, a third party auditor, DIR Internal Audit department,
or DIR contract management staff or their designees.
C. Contract — the document executed between DIR and Vendor into which this
Appendix A is incorporated.
D. CPA — refers to the Texas Comptroller of Public Accounts.
E. Day - shall mean business days, Monday through Friday, except for State and Federal
holidays. If the Contract calls for performance on a day that is not a business day,
then performance is intended to occur on the next business day.
F. Order Fulfiller — the party, either Vendor or a party that may be designated by
Vendor, who is fulfilling a Purchase Order pursuant to the Contract.
G. Purchase Order - the Customer's fiscal form or format, which is used when malting
a purchase (e.g., formal written Purchase Order, Procurement Card, Electronic
Purchase Order, or other authorized instrument).
H. State — refers to the State of Texas.
4. General Provisions
A. _Entire Agreement
The Contract, Appendices, and Exhibits constitute the entire agreement between DIR
and the Vendor. No statement, promise, condition, understanding, inducement or
representation, oral or written, expressed or implied, which is not contained in the
Contract, Appendices, or its Exhibits shall be binding or valid.
B. Modification of Contract Terms and/or Amendments
1) The terms and conditions of the Contract shall govern all transactions by
Customers under the Contract. The Contract may only be modified or amended upon
mutual written agreement of DIR and Vendor.
2) Customers shall not have the authority to modify the terms of the Contract;
however, additional Customer terms and conditions that do not conflict with the
Contract and are acceptable to Order Fulfiller may be added in a Purchase Order and
given effect. No additional term or condition added in a Purchase Order issued by a
Customer can conflict with or diminish a term or condition of the Contract. Pre-
printed terms and conditions on any Purchase Order issued by Customer hereunder
will have no force and effect. In the event of a conflict between a Customer's
Purchase Order and the Contract, the Contract term shall control.
3) Customers and Vendor will negotiate and enter into written agreements regarding
statements of work, service level agreements, remedies, acceptance criteria,
information confidentiality and security requirements, and other terms specific to
their Purchase Orders under the Contract with Vendors.
C. Invalid Term or Condition
1) To the extent any term or condition in the Contract conflicts with the applicable
Texas and/or United States law or regulation, such Contract term or condition is void
and unenforceable. By executing a contract which contains the conflicting term or
condition, DIR makes no representations or warranties regarding the enforceability of
such term or condition and DIR does not waive the applicable Texas and/or United
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States law or regulation which conflicts with the Contract term or condition.
2) If one or more term or condition in the Contract, or the application of any term or
condition to any party or circumstance, is held invalid, unenforceable, or illegal in
any respect by a final judgment or order of the State Office of Administrative
Hearings or a court of competent jurisdiction, the remainder of the Contract and the
application of the term or condition to other parties or circumstances shall remain
valid and in full force and effect.
D. Assignment
DIR or Vendor may assign the Contract without prior written approval to: i) a successor
in interest (for DIR, another state agency as designated by the Texas Legislature), or ii) a
subsidiary, parent company or affiliate, or iii) as necessary to satisfy a regulatory
requirement imposed upon a party by a governing body with the appropriate authority.
Assignment of the Contract under the above terms shall require written notification by
the assigning party. Any other assignment by a party shall require the written consent of
the other party. Each party agrees to cooperate to amend the Contract as necessary to
maintain an accurate record of the contracting parties.
E. Survival
All applicable software license agreements, warranties or service agreements that were
entered into between Vendor and a Customer under the terms and conditions of the
Contract shall survive the expiration or termination of the Contract. All Purchase Orders
issued and accepted by Order Fulfiller shall survive expiration or termination of the
Contract.
F. Choice of Law
The laws of the State of Texas shall govern the construction and interpretation of the
Contract. Exclusive venue for all actions with be in state court, Travis County, Texas.
Nothing in the Contract or its Appendices shall be construed to waive the State's
sovereign immunity.
G. Limitation of Authority
Vendor shall have no authority to act for or on behalf of the Texas Department of
Information Resources or the State of Texas except as expressly provided for in this
Contract; no other authority, power or use is granted or implied. Vendor may not incur
any debts, obligations, expenses, or liabilities of any kind on behalf of the State of Texas
or Texas Department of Information Resources.
5. Product Terms and Conditions
A. Electronic and Information Resources Accessibility Standards, As Required by 1
TAC Chapters 206 and 213 (Applicable to State Agency and Institution of
Higher Education Purchases Only)
1) Effective September 1, 2006 state agencies and institutions of higher education
shall procure products which comply with the State of Texas Accessibility
requirements for Electronic and Information Resources specified in 1 TAC Chapters
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206 and 213 when such products are available in the commercial marketplace or
when such products are developed in response to a procurement solicitation.
2) Upon request, but not later thirty (30) days after request, Vendor shall provide DIR
with a completed Voluntary Product Accessibility Template (VPAT) of the specified
product or a URL to the VPAT for reviewing compliance with the State of Texas
Accessibility requirements (based on the federal standards established under Section
508 of the Rehabilitation Act).
B. Purchase of Commodity Items (Applicable to State Agency Purchases Only)
1) Texas Government Code, §2157.068 requires State agencies to buy commodity
items, as defined in S.B.2 below, in accordance with contracts developed by DIR,
unless the agency obtains an exemption from DIR.
2) Commodity items are commercially available software, hardware and technology
services that are generally available to businesses or the public and for which DIR
determines that a reasonable demand exists in two or more state agencies. Hardware
is the physical technology used to process, manage, store, transmit, receive or deliver
information. Software is the commercially available programs that operate hardware
and includes all supporting documentation, media on which the software may be
contained or stored, related materials, modifications, versions, upgrades,
enhancements, updates or replacements. Technology services are the services,
functions and activities that facilitate the design, implementation, creation, or use of
software or hardware. Technology services include seat management, staffing
augmentation, training, maintenance and subscription services. Technology services
do not include telecommunications services. Seat management is services through
which a state agency transfers its responsibilities to a vendor to manage its personal
computing needs, including all necessary hardware, software and technology services.
3) Vendor agrees to coordinate all State agency commodity item sales through
existing DIR contracts. Institutions of higher education are exempt from this
Subsection S.B.
6. Contract Fulfillment and Promotion
A. Service, Sales and Support of the Contract
Vendor shall provide service, sales and support resources to serve all Customers
throughout the State. It is the responsibility of the Vendor to sell, market, and promote
products and services available under the Contract. Vendor shall use its best efforts to
ensure that potential Customers are made aware of the existence of the Contract. All sales
to Customers for products and services available under the Contract shall be processed
through the Contract.
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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 sei vices 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.
e) Vendor shall be fully liable for its Order Fulfillers' performance under and
compliance with the terms and conditions of the Contract. Vendor shall enter into
contracts with Order Fulfillers and use terms and conditions that are consistent
with the terms and conditions of the Contract.
d) Vendor shall have the right to qualify Order Fulfillers and their participation
under the Contract provided that: i) any criteria is uniformly applied to all
potential Order Fulfillers based upon Vendor's established, neutrally applied
criteria, ii) the criteria is not based on a particular procurement, and iii) all
Customers are supported under the different criteria.
e) Vendor shall not prohibit Order Fulfiller from participating in other
procurement opportunities offered through DIR.
2) Changes in Order Fulfiller List
Vendor may add or delete Order Fulfillers throughout the term of the Contract upon
written authorization by DIR. Prior to adding or deleting Order Fulfillers, Vendor
must make a good faith effort in the revision of its Subcontracting Plan in accordance
with the State's Policy on Utilization of Historically Underutilized Businesses.
Vendor shall provide DIR with its updated Subcontracting Plan and the Order
Fulfiller information listed in Section 6.B.l.a above.
3) Order Fulfiller Pricing to Customer
Order Fulfiller pricing to the Customer shall comply with the Customer price as
stated within Section 4 of the Contract. This pricing shall only be offered by Order
Fulfillers to Customers for sales that pass through the Contract.
C. Product Warranty and Return Policies
Order Fulfiller will adhere to the Vendor's then -currently published policies concerning
product warranties and returns. Product warranty and return policies for Customers will
not be more restrictive or more costly than warranty and return policies for other
similarly situated Customers for like products.
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D. Customer Site Preparation
Customers shall prepare and maintain its site in accordance with written instructions
furnished by Order Fulfiller prior to the scheduled delivery date of any product or service
and shall bear the costs associated with the site preparation.
E. Internet Access to Contract and Pricing Information
1) Vendor Website
Within thirty days of the effective date of the Contract, Vendor will establish and
maintain a website specific to the product and service offerings under the Contract
which is clearly distinguishable from other, non -DTR Contract offerings at Vendor's
website. The website must include: the product and services offered, product and
service specifications, Contract pricing, designated Order Fulfillers, contact
information for Vendor and designated Order Fulfillers, instructions for obtaining
quotes and placing Purchase Orders, and warranty and return policies. The Vendor's
website shall list the DIR Contract number, reference the DIR Information and
Communications Technology (ICT) Cooperative Contracts program, display the DIR
logo in accordance with the requirements in paragraph F of this Section, and contain a
link to the DTR website for the Contract.
2) Accurate and Timely Contract Information
Vendor warrants and represents that the website information specified in the above
paragraph will be accurately and completely posted, maintained and displayed in an
objective and timely manner. Vendor, at its own expense, shall correct any non-
conforming or inaccurate information posted at Vendor's website within ten (10)
business days after written notification by DIR.
3) Website Compliance Checks
Periodic compliance checks of the information posted for the Contract on Vendor's
website will be conducted by DIR. Upon request by DIR, Vendor shall provide
verifiable documentation that pricing listed upon this website is uniform with the
pricing as stated in Section 4 of the Contract.
4) Website Changes
Vendor hereby consents to a link from the DIR website to Vendor's website in order
to facilitate access to Contract information. The establishment of the link is provided
solely for convenience in carrying out the business operations of the State. DIR
reserves the right to terminate or remove a link at any time, in its sole discretion,
without advance notice, or to deny a future request for a link. DIR will provide
Vendor with subsequent notice of link termination or removal. Vendor shall provide
DIR with timely written notice of any change in URL or other information needed to
access the site and/or maintain the link.
5) Use of Access Data Prohibited
If Vendor stores, collects or maintains data electronically as a condition of accessing
Contract information, such data shall only be used internally by Vendor for the
purpose of implementing or marketing the Contract, and shall not be disseminated to
third parties or used for other marketing purposes. The Contract constitutes a public
document under the laws of the State and Vendor shall not restrict access to Contract
terms and conditions including pricing, i.e., through use of restrictive technology or
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passwords.
6) Responsibility for Content
Vendor is solely responsible for administration, content, intellectual property rights,
and all materials at Vendor's website. DIR reserves the right to require a change of
listed content if, in the opinion of DIR, it does not adequately represent the Contract.
F. DIR Logo
Order Fulfiller may use the DIR logo in the promotion of the Contract to Customers with
the following stipulations: (i) the logo may not be modified in any way, (ii) when
displayed, the size of the DIR logo must be equal to or smaller than the Order Fulfiller
logo, (iii) the DIR logo is only used to communicate the availability of products and
services under the Contract to Customers, and (iv) any other use of the DIR logo requires
prior written permission from DIR.
G. Vendor and Order Fulfiller Logo
DIR may use the Vendor's and Order Fulfiller's name and logo in the promotion of the
Contract to communicate the availability of products and services under the Contract to
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 one or
more DIR sponsored trade shows each calendar year. Vendor understands and agrees that
participation, at the Vendor's and Order Fulfiller's expense, includes providing a manned
booth display or similar presence. DIR will provide four months advance notice of any
required participation. Vendor and Order Fulfillers must display the DIR logo at all trade
shows that potential Customers will attend. DIR reserves the right to approve or
disapprove of the location or the use of the DIR logo in or on the Vendor's or Order
Fulfiller's booth.
I. Orientation Meeting
Upon thirty (30) calendar days from execution of the Contract, Vendor and Order
Fulfillers will be required to attend an orientation meeting to discuss the content and
procedures of the Contract. The meeting will be held within the Austin, Texas area at a
date and time mutually acceptable to DIR and the Vendor. DIR shall bear no cost for the
time and travel of the Vendor or Order Fulfillers for attendance at the meeting.
J. Performance Review Meetings
DIR will require the Vendor to attend periodic meetings to review the Vendor's
performance under the Contract. The meetings will be held within the Austin, Texas area
at a date and time mutually acceptable to DIR and the Vendor. DIR shall bear no cost for
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the time and travel of the Vendor for attendance at the meeting.
K. DIR Cost Avoidance
As part of the performance measures reported to state leadership, DIR must provide the
cost avoidance the State has achieved through the Contract. Upon request by DIR,
Vendor shall provide DIR with a detailed report of a representative sample of products
sold under the Contract. The report shall contain: product part number, product
description, list price, price to Customer under the Contract, and pricing from three (3)
alternative sources under which DI R customers can procure the products.
7. Purchase Orders, Invoices, and Payments
A. Purchase Orders
All Customer Purchase Orders will be placed directly with the Order Fulfiller. Accurate
Purchase Orders shall be effective and binding upon Order Fulfiller when accepted by
Order Fulfiller.
B. Invoices
1) Invoices shall be submitted by the Order Fulfiller directly to the Customer and
shall be issued in compliance with Chapter 2251, Texas Government Code. All
payments for products and/or services purchased under the Contract and any
provision of acceptance of such products and/or services shall be made by the
Customer to the Order Fulfiller.
2) Invoices must be timely and accurate. Each invoice must match Customer's
Purchase Order and include any written changes that may apply, as it relates to
products, prices and quantities. Invoices must include the Customer's Purchase Order
number or other pertinent information for verification of receipt of the product or
services by the Customer.
C. Payments
Customers shall comply with Chapter 2251, Texas Government Code, in making
payments to Order Fulfiller. The statute states that payments for goods and services are
due thirty (30) days after the goods are provided, the services completed, or a correct
invoice is received, whichever is later. Payment under the Contract shall not foreclose the
right to recover wrongful payments.
8. Contract Administration
A. Contract Administrators
DIR and the Vendor will each provide a Contract Administrator to support the Contract.
Information regarding the Contract Administrators will be posted on the Internet website
designated for the Contract.
1) State Contract Administrator
DIR shall provide a Contract Administrator whose duties shall include but not be
limited to: i) supporting the marketing and management of the Contract, ii) advising
DIR of Vendor's performance under the terms and conditions of the Contract, and iii)
periodic verification of product pricing and monthly reports submitted by Vendor.
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2) Vendor Contract Administrator
Vendor shall provide a dedicated Contract Administrator whose duties shall include
but not be limited to: i) supporting the marketing and management of the Contract, ii)
facilitating dispute resolution between a Order Fulfiller and a Customer, and iii)
advising DIR of Order Fulfillers performance under the terms and conditions of the
Contract. DIR reserves the right to require a change in Vendor's then -current
Contract Administrator if the assigned Contract Administrator is not, in the opinion of
DIR, adequately serving the needs of the State.
B. Reporting and Administrative Fees
1) Reporting Responsibility
a) Vendor shall be responsible for reporting all products and services purchased
through Order Fulfillers under the Contract. Vendor shall file the monthly reports,
subcontract reports, and pay the administrative fees in accordance with the due
dates specified in this section.
b) DIR shall have the right to verify required reports and to take any actions
necessary to enforce its rights under this section, including but not limited to,
compliance checks of Vendor's applicable Contract books at DIR's expense. .
2) Detailed Monthly Report
Vendor shall electronically provide DIR with a detailed monthly report in the format
required by DIR showing the dollar volume of any and all sales under the Contract
for the previous month period. Reports shall be submitted to the DIR ICT
Cooperative Contracts E -Mail Box at ict.sales@dir.texas.gov. Reports are due on the
fifteenth (15`h) calendar day after the close of the previous month period. It is the
responsibility of Vendor to collect and compile all sales under the Contract from
participating Order Fulfillers and submit one (1) monthly report. The monthly report
shall include, per transaction: the detailed sales for the period, the Order Fulfiller's
company name, if applicable, Customer name, invoice date, invoice number,
description, part number, manufacturer, quantity, unit price, extended price, Customer
Purchase Order number, contact name, Customer's complete billing address, and
other information as required by DIR. Each report must contain all information listed
above per transaction or the report will be rejected and returned to the Vendor for
correction in accordance with this section.
3) Historically Underutilized Businesses Subcontract Reports
a) Vendor shall electronically provide each Customer with their relevant
Historically Underutilized Business Subcontracting Report, pursuant to the
Contract, as required by Chapter 2161, Texas Government Code. Reports shall
also be submitted to DIR.
b) Reports shall be due in accordance with the CPA rules.
4) DIR Administrative Fee
a) An administrative fee shall be paid by Vendor to DIR to defray the DIR costs
of negotiating, executing, and administering the Contract. The maximum
administrative fee is set by the Texas Legislature in the biennial General
Appropriations Act. Payment of the administrative fee shall be due on the
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fifteenth (15`h) calendar day after the close of the previous month period. DIR
may change the amount of the administrative fee upon thirty (30) days written
notice to Vendor without the need for a formal contract amendment.
b) Vendor shall reference the DIR Contract number on any remittance
instruments.
5) Accurate and Timely Submission of Reports
a) The reports and administrative fees shall be accurate and timely and submitted
in accordance with the due dates specified in this section. Vendor shall correct
any inaccurate reports or administrative fee payments within three (3) business
days upon written notification by DIR. Vendor shall deliver any late reports or
late administrative fee payments within three (3) business days upon written
notification by DIR. If Vendor is unable to correct inaccurate reports or
administrative fee payments or deliver late reports and fee payments within three
(3) business days, Vendor must contact DIR and provide a corrective plan of
action, including the timeline for completion of correction. The corrective plan of
action shall be subject to DIR approval.
b) Should Vendor fail to correct inaccurate reports or cure the delay in timely
delivery of reports and payments within the corrective plan of action timeline,
DIR reserves the right to require an independent third party audit of the Vendor's
records as specified in C.3 of this Section, at DIR's expense.
c) Failure to timely submit three (3) reports within any rolling twelve (12) month
period may, at DIR's discretion, result in termination of Vendor's Contract.
C. Records and Audit
1) Acceptance of funds under the Contract by Vendor and/or Order Fulfiller acts as
acceptance of the authority of the State Auditor's Office, or any successor agency, to
conduct an audit or investigation in connection with those funds. Vendor further
agrees to cooperate fully with the State Auditor's Office or its successor in the
conduct of the audit or investigation, including providing all records requested.
Vendor will ensure that this clause concerning the authority to audit funds received
indirectly by subcontractors through Vendor or directly by Order Fulfillers and the
requirement to cooperate is included in any subcontract or Order Fulfiller contract it
awards pertaining to the Contract. Under the direction of the Legislative Audit
Committee, a Vendor that is the subject of an audit or investigation by the State
Auditor's Office must provide the State Auditor's Office with access to any
information the State Auditor's Office considers relevant to the investigation or audit.
2) Vendor and Order Fulfillers shall maintain adequate records to establish
compliance with the Contract until the later of a period of four (4) years after
termination of the Contract or until full, final and unappealable resolution of all
Compliance Check or litigation issues that arise under the Contract. Such records
shall include per transaction: the Order Fulfiller's company name if applicable,
Customer name, invoice date, invoice number, description, part number,
manufacturer, quantity, unit price, extended price, Customer Purchase Order number,
contact name, Customer's complete billing address, the calculations supporting each
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administrative fee owed DIR under the Contract, Historically Underutilized
Businesses Subcontracting reports, and such other documentation as DIR may
request.
3) Vendor and/or Order Fulfillers shall grant access to all paper and electronic
records, books, documents, accounting procedures, practices and any other items
relevant to the performance of the Contract to the DIR Internal Audit department or
DIR Contract Management staff, including the compliance checks designated by the
DIR Internal Audit department, DIR Contract Management staff, the State Auditor's
Office, and of the United States, and such other persons or entities designated by DIR
for the purposes of inspecting, Compliance Checking and/or copying such books and
records. Vendor and/or Order Fulfillers shall provide copies and printouts requested
by DIR without charge. DIR shall provide Vendor and/or Order Fulfillers ten (10)
business days' notice prior to inspecting, Compliance Checking, and/or copying
Vendor's and/or Order Fulfiller's records. Vendor's and/or Order Fulfillers records,
whether paper or electronic, shall be made available during regular office hours.
Vendor and/or Order Fulfiller personnel familiar with the Vendor's and/or Order
Fulfiller's books and records shall be available to the DIR Internal Audit department,
or DIR Contract Management staff and designees as needed. Vendor and/or Order
Fulfiller shall provide adequate office space to DIR staff during the performance of
Compliance Check. If Vendor is found to be responsible for inaccurate reports, DIR
may invoice for the reasonable costs of the audit, which Vendor must pay within
thirty (30) days of receipt.
4) For procuring State Agencies whose payments are processed by the Texas
Comptroller of Public Accounts, the volume of payments made to Order Fulfillers
through the Texas Comptroller of Public Accounts and the administrative fee based
thereon shall be presumed correct unless Vendor can demonstrate to DIR's
satisfaction that Vendor's calculation of DIR's administrative fee is correct.
D. Contract Administration Notification
1) Upon execution of the Contract, Vendor shall provide DIR with written
notification of the following: i) Vendor Contract Administrator name and contact
information, ii) Vendor sales representative name and contact information, and iii)
name and contact information of Vendor personnel responsible for submitting reports
and payment of administrative fees specified herein.
2) Upon execution of the Contract, DIR shall provide Vendor with written
notification of the following: i) DIR Contract Administrator name and contact
information, and ii) DIR ICT Cooperative Contracts E -Mail Box information.
9. Vendor Responsibilities
A. Indemnification
1) Acts or Omissions
Vendor shall indemnify and hold harmless the State of Texas and Customers,
AND/OR THEIR OFFICERS, AGENTS, EMPLOYEES, REPRESENTATIVES,
CONTRACTORS, ASSIGNEES, AND/OR DESIGNEES FROM AND AGAINST
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ANY AND ALL LIABILITY, ACTIONS, CLAIMS, DEMANDS, OR SUITS, AND
ALL RELATED COSTS, ATTORNEY FEES, AND EXPENSES arising out of, or
resulting from any acts or omissions of the Vendor or its agents, employees,
subcontractors, Order Fulfillers, or suppliers of subcontractors in the execution or
performance of the Contract and any Purchase Orders issued under the Contract
REGARDLESS OF THE NEGLIGENCE OF THE CUSTOMER, THE STATE OF
TEXAS AND/OR THEIR EMPLOYEES, AGENTS, REPRESENTATIVES,
CONTRACTORS, ASSIGNEES, AND/OR DESIGNEES. VENDOR SHALL PAY
ALL COSTS OF DEFENSE INCLUDING ATTORNEYS FEES. THE DEFENSE
SHALL BE COORDINATED BY THE OFFICE OF THE ATTORNEY GENERAL
FOR TEXAS STATE AGENCIES AND BY CUSTOMER'S LEGAL COUNSEL
FOR NON -STATE AGENCY CUSTOMERS.
2) Infringements
a) Vendor shall indemnify and hold harmless the State of Texas and Customers,
AND/OR THEIR EMPLOYEES, AGENTS, REPRESENTATIVES,
CONTRACTORS, ASSIGNEES, AND/OR DESIGNEES, from any and all third
party claims involving infringement of United States patents, copyrights, trade and
service marks, and any other intellectual or intangible property rights in connection
with the PERFORMANCES OR ACTIONS OF VENDOR PURSUANT TO THIS
CONTRACT. VENDOR AND THE CUSTOMER AGREE TO FURNISH TIMELY
WRITTEN NOTICE TO EACH OTHER OF ANY SUCH CLAIM. VENDOR
SHALL BE LIABLE TO PAY ALL COSTS OF DEFENSE INCLUDING
ATTORNEYS' FEES. THE DEFENSE SHALL BE COORDINATED BY THE
OFFICE OF THE ATTORNEY GENERAL FOR TEXAS STATE AGENCY
CUSTOMERS AND BY CUSTOMER'S LEGAL COUNSEL FOR NON -STATE
AGENCY CUSTOMERS.
b) If Vendor becomes aware of an actual or potential claim, or Customer provides
Vendor with notice of an actual or potential claim, Vendor may (or in the case of an
injunction against Customer, shall), at Vendor's sole option and expense: (i) procure
for the Customer the right to continue to use the affected portion of the product or
service, or (ii) modify or replace the affected portion of the product or service with
functionally equivalent or superior product or service so that Customer's use is non -
infringing.
3) Independent Contractor
VENDOR AGREES AND ACKNOWLEDGES THAT DURING THE
EXISTENCE OF THIS CONTRACT, IT IS FURNISHING SERVICES IN THE
CAPACITY OF AN INDEPENDENT CONTRACTOR AND THAT VENDOR
IS NOT AN EMPLOYEE OF THE CUSTOMER, DIR OR THE STATE OF
TEXAS.
B. Taxes[Worker's Compensation/UNEMPLOYMENT INSURANCE
1) VENDOR AGREES AND ACKNOWLEDGES THAT DURING THE
EXISTENCE OF THIS CONTRACT, VENDOR SHALL BE ENTIRELY
RESPONSIBLE FOR THE LIABILITY AND PAYMENT OF VENDOR'S AND
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VENDOR'S EMPLOYEES' TAXES OF WHATEVER KIND, ARISING OUT OF
THE PERFORMANCES IN THIS CONTRACT. VENDOR AGREES TO
COMPLY WITH ALL STATE AND FEDERAL LAWS APPLICABLE TO ANY
SUCH PERSONS, INCLUDING LAWS REGARDING WAGES, TAXES,
INSURANCE, AND WORKERS' COMPENSATION. VENDOR AGREES AND
ACKNOWLEDGES THAT VENDOR ITS EMPLOYEES, REPRESENTATIVES,
AGENTS OR SUBCONTRACTORS SHALL NOT BE ENTITLED TO ANY
STATE BENEFIT OR BENEFIT OF ANOTHER GOVERNMENTAL ENTITY
CUSTOMER. THE CUSTOMER AND/OR THE STATE SHALL NOT BE
LIABLE TO THE VENDOR ITS EMPLOYEES, AGENTS, OR OTHERS FOR TIE
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,
TIIE STATE OF TEXAS AND/OR THEIR EMPLOYEES, AGENTS,
REPRESENTATIVES, CONTRACTORS, ASSIGNEES, AND/OR DESIGNEES
FROM ANY AND ALL LIABILITY, ACTIONS, CLAIMS, DEMANDS, OR
SUITS, AND ALL RELATED COSTS, ATTORNEY FEES, AND EXPENSES,
RELATING TO TAX LIABILITY, UNEMPLOYMENT INSURANCE AND/OR
WORKERS' COMPENSATION OR EXPECTATIONS OF BENEFITS BY
VENDOR, ITS EMPLOYEES, REPRESENTATIVES, AGENTS OR
SUBCONTRACTORS IN ITS PERFORMANCE UNDER THIS CONTRACT.
VENDOR SHALL BE LIABLE TO PAY ALL COSTS OF DEFENSE INCLUDING
ATTORNEYS' FEES. THE DEFENSE SHALL BE COORDINATED BY THE
OFFICE OF THE ATTORNEY GENERAL FOR TEXAS STATE AGENCY
CUSTOMERS AND BY CUSTOMER'S LEGAL COUNSEL FOR NON -STATE
AGENCY CUSTOMERS.
C. Vendor Certifications
Vendor certifies on behalf of Vendor and its designated Order Fulfillers that they:
(i) have not given, offered to give, and do not intend to give at any time hereafter any
economic opportunity, future employment, gift, loan, gratuity, special discount,
trip, favor, or service to a public servant in connection with the Contract;
(ii) are not currently delinquent in the payment of any franchise tax owed the State of
Texas and are not ineligible to receive payment under §231.006 of the Texas
Family Code and acknowledge the Contract may be terminated and payment
withheld if this certification is inaccurate;
(iii) neither they, nor anyone acting for them, have violated the antitrust laws of the
United States or the State of Texas, nor communicated directly or indirectly to
any competitor or any other person engaged in such line of business for the
purpose of obtaining an unfair price advantage;
(iv) have not received payment from DIR or any of its employees for participating in
the preparation of the Contract;
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(v) under Section 2155.004, Texas Government Code, the vendor certifies that the
individual or business entity named in this bid or contract is not ineligible to
receive the specified contract and acknowledges that this contract may be
terminated and payment withheld if this certification is inaccurate;
(vi) to the best of their knowledge and belief, there are no suits or proceedings
pending or threatened against or affecting them, which if determined adversely to
them will have a material adverse effect on the ability to fulfill their obligations
under the Contract;
(vii) are not suspended or debarred from doing business with the federal government as
listed in the Excluded Parties List System (EPLS) maintained by the General
Services Administration;
(viii) as of the effective date of the Contract, are not listed in the prohibited vendors list
authorized by Executive Order #13224, "Blocking Property, and Prohibiting
Transactions with Persons Who Commit, Threaten to Commit, or Support
Terrorism ", published by the United States Department of the Treasury, Office of
Foreign Assets Control; (ix) to the extent applicable to this scope of this Contract,
Vendor hereby certifies that it is in compliance with Subchapter Y, Chapter 361,
Health and Safety Code related to the Computer Equipment Recycling Program
and its rules, 30 TAC Chapter 328;
(ix) agree that any payments due under this contract will be applied towards any debt,
including but not limited to delinquent taxes and child support that is owed to the
State of Texas;
(x) are in compliance Section 669.003, Texas Government Code, relating to
contracting with executive head of a state agency;
(xi) have identified all current or former, within the last five years, employees of the
State of Texas assigned to work on the DIR Contract 20% or more of their time
and have disclosed them to DIR and have disclosed or do not employ any relative
of a current or former state employee within two degrees of consanguinity, and, if
these facts change during the course of the Contract, certify they shall disclose the
name and other pertinent information about the employment of current and former
employees and their relatives within two degrees of consanguinity;
(xii) represent and warrant that the provision of goods and services or other
performance under the Contract will not constitute an actual or potential conflict
of interest and certify that they will not reasonably create the appearance of
impropriety, and, if these facts change during the course of the Contract, certify
they shall disclose the actual or potential conflict of interest and any
circumstances that create the appearance of impropriety;
(xiii) represent and warrant that the Customer's payment and their receipt of
appropriated or other funds under this Agreement are not prohibited by Sections
556.005 or Section 556.008, Texas Government Code;
(xiv) under Section 2155.006, Government Code, are not ineligible to receive the
specified contract and acknowledge that this contract may be terminated and
payment withheld if this certification is inaccurate; and
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(xv) have complied with the Section 556.0055, Texas Government Code, restriction on
lobbying expenditures. In addition, they acknowledge the applicability of
§2155.444 and §2155.4441, Texas Government Code, in fulfilling the terms of
the Contract.
During the term of the Contract, Vendor shall, for itself and on behalf of its Order
Fulfillers, promptly disclose to DIR all changes that occur to the foregoing
certifications, representations and warranties. Vendor covenants to fully cooperate
in the development and execution of resulting documentation necessary to
maintain an accurate record of the certifications, representations and warranties.
In addition, Vendor understands and agrees that Vendor may be required to
comply with additional terms and conditions or certifications that an individual
customer may require due to state and federal law (e.g, privacy and security
requirements).
D. Ability to Conduct Business in Texas
Vendor and its Order Fulfiller shall be authorized and validly existing under the laws of
its state of organization, and shall be authorized to do business in the State of Texas.
E. Equal Opportunity Compliance
Vendor agrees to abide by all applicable laws, regulations, and executive orders
pertaining to equal employment opportunity, including federal laws and the laws of the
State in which its primary place of business is located. In accordance with such laws,
regulations, and executive orders, the Vendor agrees that no person in the United States
shall, on the grounds of race, color, religion, national origin, sex, age, veteran status or
handicap, be excluded from employment with or participation in, be denied the benefits
of, or be otherwise subjected to discrimination under any program or activity performed
by Vendor under the Contract. If Vendor is found to be not in compliance with these
requirements during the term of the Contract, Vendor agrees to take appropriate steps to
correct these deficiencies. Upon request, Vendor will furnish information regarding its
nondiscriminatory hiring and promotion policies, as well as specific information on the
composition of its principals and staff, including the identification of minorities and
women in management or other positions with discretionary or decision-making
authority.
F. Use of Subcontractors
If Vendor uses any subcontractors in the performance of this Contract, Vendor must
make a good faith effort in the submission of its Subcontracting Plan in accordance with
the State's Policy on Utilization of Historically Underutilized Businesses. A revised
Subcontracting Plan shall be required before Vendor can engage additional
subcontractors in the performance of this Contract. Vendor shall remain solely
responsible for the performance of its obligations under the Contract.
G. Responsibility for Actions
I) 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.
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2) Vendor, for itself and on behalf of its subcontractors, shall report to DIR promptly
when the disclosures under Item 18 of Appendix A to the RFO and/or Section 9.C. (xii)
and (xiii), Vendor Certifications of this Appendix A to the Contract change. Vendor
covenants to fully cooperate with DIR to update and amend the Contract to accurately
disclose employment of current or former State employees and their relatives and/or the
status of conflicts of interest.
H. Confidentiality
l) Vendor acknowledges that DIR and Customers that are state agencies are government
agencies subject to the Texas Public Information Act. Vendor also acknowledges that
DIR and Customers that are state agencies will comply with the Public Information Act,
and with all opinions of the Texas Attorney General's office concerning this Act.
2) Under the terms of the Contract, DIR may provide Vendor with information related to
Customers. Vendor shall not re -sell or otherwise distribute or release Customer
information to any party in any manner.
I. Security of Premises, Equipment, Data and Personnel
Vendor and/or Order Fulfiller may, from time to time during the performance of the
Contract, have access to the personnel, premises, equipment, and other property,
including data, files and /or materials (collectively referred to as "Data") belonging to the
Customer. Vendor and/or Order Fulfiller shall use their best efforts to preserve the safety,
security, and the integrity of the personnel, premises, equipment, Data and other property
of the Customer, in accordance with the instruction of the Customer. Vendor and/or
Order Fulfiller shall be responsible for damage to Customer's equipment, workplace, and
its contents when such damage is caused by its employees or subcontractors. If a Vendor
and/or Order Fulfiller fails to comply with Customer's security requirements, then
Customer may immediately terminate its Purchase Order and related Service Agreement.
J. Background and/or Criminal History Investigation
Prior to commencement of any services, background and/or criminal history investigation
of the Vendor and/or Order Fulfiller's employees and subcontractors who will be
providing services to the Customer under the Contract may be performed by certain
Customers having legislative authority to require such investigations. Should any
employee or subcontractor of the Vendor and/or Order Fulfiller who will be providing
services to the Customer under the Contract not be acceptable to the Customer as a result
of the background and/or criminal history check, then Customer may immediately
terminate its Purchase Order and related Service Agreement or request replacement of the
employee or subcontractor in question.
K. Limitation of Liability
For any claim or cause of action arising under or related to the Contract: i) to the extent
permitted by the Constitution and the laws of the State of Texas, none of the parties shall
be liable to the other for punitive, special, or consequential damages, even if it is advised
of the possibility of such damages; and ii) Vendor's liability for damages of any kind to
the Customer shall be limited to the total amount paid to Vendor under the Contract
during the twelve months immediately preceding the accrual of the claim or cause of
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action. However, this limitation of Vendor's liability shall not apply to claims of patent,
trademark, or copyright infringement.
L. Overcharges
Vendor hereby assigns to DTR any and all of its claims for overcharges associated with
this contract which arise under the antitrust laws of the United States, 15 U.S.C.A.
Section 1, et seq., and which arise under the antitrust laws of the State of Texas, Tex.
Bus. and Comm. Code Section 15.01, et seq.
M. Prohibited Conduct
Vendor represents and warrants that, to the best of its knowledge as of the date of this
certification, neither Vendor nor any Order Fulfiller, subcontractor, firm, corporation,
partnership, or institution represented by Vendor, nor anyone acting for such Order
Fulfiller, subcontractor, firm, corporation or institution has: (1) violated the antitrust laws
of the State of Texas under Texas Business & Commerce Code, Chapter 15, or the
federal antitrust laws; or (2) communicated its response to the Request for Offer directly
or indirectly to any competitor or any other person engaged in such line of business
during the procurement for the Contract.
N. Required Insurance Coverage
As a condition of this Contract with DIR, Vendor shall provide the listed insurance
coverage within 5 days of execution of the Contract if the Vendor is awarded services
which require that Vendor's employees perform work at any Customer premises and/or
use employer vehicles to conduct work on behalf of Customers. In addition, when
engaged by a Customer to provide services on Customer premises, the Vendor shall, at its
own expense, secure and maintain the insurance coverage specified herein, and shall
provide proof of such insurance coverage to the related Customer within five (5) business
days following the execution of the Purchase Order. Vendor may not begin performance
under the Contract and/or a Purchase Order until such proof of insurance coverage is
provided to, and approved by, DIR and the Customer. All required insurance must be
issued by companies that are A+ financially rated and duly licensed, admitted, and
authorized to do business in the State of Texas. The Customer and DIR will be named as
Additional Insureds on all required coverage. Required coverage must remain in effect
through the term of the Contract and each Purchase Order issued to Vendor there under.
The minimum acceptable insurance provisions are as follows:
I) Commercial General Liability
Commercial General Liability must include a combined single limit of $500,000 per
occurrence for coverage A, B, & C including products/completed operations, where
appropriate, with a separate aggregate of $500,000. The policy shall contain the
following provisions:
a) Blanket contractual liability coverage for liability assumed under the Contract;
b) Independent Contractor coverage;
c) State of Texas, DIR and Customer listed as an additional insured;
d) 30 -day Notice of Termination in favor of DIR and/or Customer; and
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e) Waiver of Transfer Right of Recovery Against Others in favor of DIR and/or
Customer.
2) Workers' Compensation Insurance
Workers' Compensation Insurance and Employers' Liability coverage must include
limits consistent with statutory benefits outlined in the Texas Workers' Compensation
Act (Art. 8308-1.01 et seq. Tex. Rev. Civ. Stat) and minimum policy limits for
Employers' Liability of $250,000 bodily injury per accident, $500,000 bodily injury
disease policy limit and $250,000 per disease per employee.
3) Business Automobile Liability Insurance
Business Automobile Liability Insurance must cover all owned, non -owned and hired
vehicles with a minimum combined single limit of $500,000 per occurrence for
bodily injury and property damage. Alternative acceptable limits are $250,000 bodily
injury per person, $500,000 bodily injury per occurrence and at least $100,000
property damage liability per accident. The policy shall contain the following
endorsements in favor of DIR and/or Customer:
a) Waiver of Subrogation;
b) 30 -day Notice of Termination; and
c) Additional Insured.
O. Use of State Property
Vendor is prohibited from using the Customer's equipment, the Customer's Location, or
any other resources of the Customer or the State of Texas for any purpose other than
performing services under this Agreement. For this purpose, equipment includes, but is
not limited to, copy machines, computers and telephones using State of Texas long
distance services. Any charges incurred by Vendor using the Customer's equipment for
any purpose other than performing services under this Agreement must be fully
reimbursed by Vendor to the Customer immediately upon demand by the Customer.
Such use shall constitute breach of contract and may result in termination of the contract
and other remedies available to DIR and Customer under the contract and applicable law.
P. Immigration
Vendor shall comply with all requirements related to federal immigration laws and
regulations, to include but not be limited to, the Immigration and Reform Act of 1986, the
Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA") and
the Immigration Act of 1990 (8 U.S.C.I101, et seq.) regarding employment verification
and retention of verification forms for any individual(s) hired on or after the effective
date of the 1996 Act who will perform any labor or services under this Contract. Nothing
herein is intended to exclude compliance by Vendor with all other relevant federal
immigration statutes and regulations promulgated pursuant thereto.
Q. Public Disclosure
No public disclosures or news releases pertaining to this contract shall be made without
prior written approval of DIR.
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R. Product and/or Services Substitutions
Substitutions are not permitted without the written permission of DIR or Customer.
S. Secure Erasure of Hard Disk Products and/or Services
Vendor agrees that all products and/or services equipped with hard disk drives (i.e.
computers, telephones, printers, fax machines, scanners, multifunction devices, etc.) shall
have the capability to securely erase data written to the hard drive prior to final
disposition of such products and/or services, either at the end of the Customer's Managed
Services product's useful life or the end of the related Customer Managed Services
Agreement for such products and/ services, in accordance with 1 TAC 202.
T. Deceptive Trade Practices; Unfair Business Practices
a) Vendor represents and warrants that neither Vendor nor any of its Subcontractors has
been (i) found liable in any administrative hearing, litigation or other proceeding of
Deceptive Trade Practices violations as defined under Chapter 17, Texas Business &
Commerce Code, or (ii) has outstanding allegations of any Deceptive Trade Practice
pending in any administrative hearing, litigation or other proceeding.
b)Vendor certifies that it has no officers who have served as officers of other entities who
(i) have been found liable in any administrative hearing, litigation or other proceeding of
Deceptive Trade Practices violations or (ii) have outstanding allegations of any Deceptive
Trade Practice pending in any administrative hearing, litigation or other proceeding.
U. Drug Free Workplace Policy
The contractor shall comply with the applicable provisions of the Drug -Free Work Place
Act of 1988 (Public Law 100-690, Title V, Subtitle D; 41 U.S.C. 701 ET SEQ.) and
maintain a drug-free work environment; and the final rule, government -wide
requirements for drug-free work place (grants), issued by the Office of Management and
Budget and the Department of Defense (32 CFR Part 280, Subpart F) to implement the
provisions of the Drug -Free Work Place Act of 1988 is incorporated by reference and the
contractor shall comply with the relevant provisions thereof, including any amendments
to the final rule that may hereafter be issued.
10. Contract Enforcement
A. Enforcement of Contract and Dispute Resolution
1) Vendor and DIR agree to the following: (i) a party's failure to require strict
performance of any provision of the Contract shall not waive or diminish that party's
right thereafter to demand strict compliance with that or any other provision, (ii) for
disputes not resolved in the normal course of business, the dispute resolution process
provided for in Chapter 2260, Texas Government Code, shall be used, and (iii)
actions or proceedings arising from the Contract shall be heard in a state court of
competent jurisdiction in Travis County, Texas.
2) Disputes arising between a Customer and the Vendor shall be resolved in
accordance with the dispute resolution process of the Customer that is not
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inconsistent with subparagraph A.1 above. DIR shall not be a party to any such
dispute unless DIR, Customer, and Vendor agree in writing.
B. Termination
1) Termination for Non -Appropriation
a) Termination for Non -Appropriation by Customer
Customer may terminate Purchase Orders if funds sufficient to pay its obligations
under the Contract are not appropriated: i) by the governing body on behalf of
local governments; ii) by the Texas legislature on behalf of state agencies; or iii)
by budget execution authority provisioned to the Governor or the Legislative
Budget Board as provided in Chapter 317, Texas Government Code. In the event
of non -appropriation, Vendor and/or Order Fulfiller will be provided ten (10)
calendar days written notice of intent to terminate. Notwithstanding the foregoing,
if a Customer issues a Purchase Order and has accepted delivery of the product or
services, they are obligated to pay for the product or services or they may return
the product and discontinue using services under any return provisions that
Vendor offers. In the event of such termination, the Customer will not be
considered to be in default or breach under this Contract, nor shall it be liable for
any further payments ordinarily due under this Contract, nor shall it be liable for
any damages or any other amounts which are caused by or associated with such
termination.
b) Termination for Non -Appropriation by DIR
DIR may terminate Contract if funds sufficient to pay its obligations under the
Contract are not appropriated: by the i) Texas legislature or ii) by budget
execution authority provisioned to the Governor or the Legislative Budget Board
as provided in Chapter 317, Texas Government Code. In the event of non -
appropriation, Vendor and/or Order Fulfiller will be provided thirty (30) calendar
days written notice of intent to terminate. In the event of such termination, DIR
will not be considered to be in default or breach under this Contract, nor shall it
be liable for any further payments ordinarily due under this Contract, nor shall it
be liable for any damages or any other amounts which are caused by or associated
with such termination.
2) Absolute Right
DIR shall have the absolute right to terminate the Contract without recourse in the
event that: i) Vendor becomes listed on the prohibited vendors list authorized by
Executive Order #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
govermnent as listed in the Excluded Parties List System (EPLS) maintained by the
General Services Administration; or (iii) Vendor is found by DIR to be ineligible to
hold this Contract under Subsection (b) of Section 2155.006, Texas Government
Code. Vendor shall be provided written notice in accordance with Section II.A,
Notices, of intent to terminate.
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3) Termination for Convenience
DIR may terminate the Contract, in whole or in part, by giving the other party thirty
(30) calendar days written notice. A Customer may terminate a Purchase Order if it is
determined by the Customer that Order Fulfiller will not be able to deliver product or
services in a timely manner to meet the business needs of the Customer.
4) Termination for Cause
a) Contract
Either DIR or Vendor may issue a written notice of default to the other upon the
occurrence of a material breach of any covenant, warranty or provision of the
Contract, upon the following preconditions: first, the parties must comply with the
requirements of Chapter 2260, Texas Government Code in an attempt to resolve a
dispute; second, after complying with Chapter 2260, Texas Government Code,
and the dispute remains unresolved, then the non -defaulting party shall give the
defaulting party thirty (30) calendar days from receipt of notice to cure said
default. if the defaulting party fails to cure said default within the timeframe
allowed, the non -defaulting party may, at its option and in addition to any other
remedies it may have available, cancel and terminate the Contract. Customers
purchasing products or services under the Contract have no power to terminate the
Contract for default.
b) Purchase Order
Customer or Order Fulfiller may terminate a Purchase Order upon the occurrence
of a material breach of any term or condition: (i) of the Contract, or (ii) included
in the Purchase Order in accordance with Section 4.13.2 above, upon the following
preconditions: first, the parties must comply with the requirements of Chapter
2260, Texas Government Code, in an attempt to resolve a dispute; second, after
complying with Chapter 2260, Texas Government Code, and the dispute remains
unresolved, then the non -defaulting party shall give the defaulting party thirty
(30) calendar days from receipt of notice to cure said default. If the defaulting
party fails to cure said default within the timeframe allowed, the non -defaulting
party may, at its option and in addition to any other remedies it may have
available, cancel and terminate the Purchase Order.
5) Customer Rights Under Termination
In the event the Contract expires or is terminated for any reason, a Customer shall
retain its rights under the Contract and the Purchase Order issued prior to the
termination or expiration of the Contract. The Purchase Order survives the expiration
or termination of the Contract for its then effective term.
6) Vendor or Order Fulfiller Rights Under Termination
In the event a Purchase Order expires or is terminated, a Customer shall pay: 1) all
amounts due for products or services ordered prior to the effective termination date
and ultimately accepted, and 2) any applicable early termination fees agreed to in
such Purchase Order.
06/08/12 Page 21 of 22
11.
12.
Appendix A
Standard Terms and Conditions For Product and Related Services Contracts
C. Force Majeure
DIR, Customer, or Order Fulfiller may be excused from performance under the Contract
for any period when performance is prevented as the result of an act of God, strike, war,
civil disturbance, epidemic, or court order, provided that the party experiencing the event
of Force Majeure has prudently and promptly acted to take any and all steps that are
within the party's control to ensure performance and to shorten the duration of the event
of Force Majeure. The party suffering an event of Force Majeure shall provide notice of
the event to the other parties when commercially reasonable. Subject to this provision,
such non-performance shall not be deemed a default or a ground for termination.
However, a Customer may terminate a Purchase Order if it is determined by the
Customer that Order Fulfiller will not be able to deliver product or services in a timely
manner to meet the business needs of the Customer.
Notification
A. Notices
All notices, demands, designations, certificates, requests, offers, consents, approvals and
other instruments given pursuant to the Contract shall be in writing and shall be validly
given on: (i) the date of delivery if delivered by email, facsimile transmission, mailed by
registered or certified mail, or hand delivered, or (ii) three business days after being
mailed via United States Postal Service. All notices under the Contract shall be sent to a
party at the respective address indicated in Section 6 of the Contract or to such other
address as such party shall have notified the other party in writing.
B. Handling of Written Complaints
In addition to other remedies contained in the Contract, a person contracting with DIR
may direct their written complaints to the following office:
Public Information Office
Department of Information Resources
Attn: Public Information Officer
300 W. 15th Street, Suite 1300
Austin, Texas 78701
(512) 475-4759, facsimile
Captions
The captions contained in
convenience and reference
limit any provision thereof.
the Contract, Appendices, and its Exhibits are intended for
purposes only and shall in no way be deemed to define or
06/08/12 Page 22 of 22
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HUB SUBCONTRACTING PLAN (HSP)
In accordance with Texas Gov't Code §2161.252, the contracting agency has determined that subcontracting opportunities are probable under this contract.
Therefore, all respondents, including State of Texas certified Historically Underutilized Businesses (HUBS) must complete and submit this State of Texas HUB
Subcontracting Plan (HSP) with their response to the bid requisition (solicitation).
NOTE: Responses that do not include a completed HSP shall be rejected pursuant to Texas Gov't Code §2161.252(b).
The HUB Program promotes equal business opportunities for economically disadvantaged persons to contract with the State of Texas in accordance with the goals
specified in the 2009 State of Texas Disparity Study. The statewide HUB goals defined in 34 Texas Administrative Code (TAC) §20.13 are:
11.2 percent for heavy construction other than building contracts,
21.1 percent for all building construction, including general contractors and operative builders contracts,
32.7 percent for all special trade construction contracts,
23.6 percent for professional services contracts,
24.6 percent for all other services contracts, and
• 21 percent for commodities contracts.
- . Anencv Special InstructionslAdditional Requirements - -
In accordance with 34 TAC §20.14(d)(1)(D)(iii), a respondent (prime contractor) may demonstrate good faith effort to utilize Texas certified HUBS for its
subcontracting opportunities if the total value of the respondent's subcontracts with Texas certified HUBS meets or exceeds the statewide HUB goal or the agency
specific HUB goal, whichever is higher. When a respondent uses this method to demonstrate good faith effort, the respondent must identity the HUBS with which it
will subcontract. If using existing contrails with Texas certified HUBS to satisfy this requirement, only contracts that have been in place for five years or less shall
qualify for meeting the HUB goal. This limitation is designed to encourage vendor rotation as recommended by the 2009 Texas Disparity Study.
For assistance in completing the HSP, contact the HUB Coordinator, Bernadette Davis at
bernadette davis a dir texas aov .
• RESPONDENT AND REQUISITION INFORMATION
a. Respondent (Company) Name: Dell Marketing L.P.
State of Texas VID #: 1742616805400
Point of Contact: Diane Wigington Phone #: 512-728.4805
E-mail Address: Diane—Wigington@Dell.com Fax #: 512-283.9092
b. Is your company a State of Texas certified HUB? 0 -Yes ®- No
c. Requisition #: DIR-SDD-1951 Bid Open Date:
(mmlddlyyyy)
Enter your company's name here: Dell Marketing L.P. Requisition #: DIR-SDD-1951
SUBCONTRACTING INTENTIONS
After dividing the contract work into reasonable lots or portions to the extent consistent with prudent industry practices, and taking into consideration the scope of
work to be performed under the proposed contract, including all potential subcontracting opportunities, the respondent must determine what portions of work,
including goods and services, will be subcontracted. Note: In accordance with 34 TAC §20.11., an "Subcontractor" means a person who contracts with a prime
contractor to work, to supply commodities, or to contribute toward completing work for a governmental entity.
a. Check the appropriate box (Yes or No) that identifies your subcontracting intentions:
® - Yes, I will be subcontracting portions of the contract, (if Yes, complete Item b, of this SECTION and continue to Item c of this SECTION.)
❑ - No, I will not be subcontracting any portion of the contract, and I will be fulfilling the entire contract with my own resources. (If No, continue to SECTION 3.)
b. List all the portions of work (subcontracting opportunities) you will subcontract. Also, based on the total value of the contract, identify the percentages of the
contract you expect to award to Texas certified HUBs, and the percentage of the contract you expect to award to vendors that are not a Texas certified HUB
(i.e., Non -HUB).
Item 0
Subcontracting Opportunity Description
HUBs
Non-HUBs
Percentage of the contract
expected to be subcontracted
to HUBs with which you have
had contracts in place for
five (5) years or less
Percentage of the contract
expected to be subcontracted
to HUBS with which you have
had contracts in place for
more than five (5) years.
Percentage of the contract
expected to be subcontracted
to non-HUBs ,
1
Order Fulfiller! Marketing Agent as requested by Customers
%
%
%
2
3
%
%
%
4
%
%
%
5
%
%
%
6
%
%
%
7
%
%
%
8
%
%
%
9
%
%
%
10
%
%
%
11
%
%
%
12
%
%
%
13
%
%
%
14
%
%
%
15
%
%
%
Aggregate percentages of the contract expected to be subcontracted:
%
°6
%
tivcne: if you nave more tnan nneen suocontracting opportunities, a continuation sheet is available online at http:llwindow.state,beuslprocurementfproglhublhub-subcontracting-plan!
c. Check the appropriate box (Yes or No) that indicates whether you will be using only Texas certified HUBs to perform all of the subcontracting opportunities you
listed in SECTION 2, Item b.
❑ - Yes (If Yes, continue to SECTION 4 and complete an "HSP Good Faith Effort - Method A (Attachment A)" for each of the subcontracting opportunities you listed.)
® - No (if No, continue to Item d, of this SECTION.)
d. Check the appropriate box (Yes or No) that indicates whether the aggregate expected percentage of the contract you will subcontract with Texas certified
HUBs with which you have had contracts in place with for five (5) years or less meets or exceeds the HUB goal the contracting agency identified on page 1 in
the "Agency Special Instructions/Additional Requirements",
❑ Yes (If Yes, continue to SECTION 4 and complete an "HSP Good Faith Effort - Method A (Attachment A)" for each of the subcontracting opportunities you listed.)
® No (If No, continue 10 SECTION 4 and complete an "HSP Good Faith Effort - Method B (Attachment B)" for each of the subcontracting opportunities you listed.)
Enter your company's name here: Dell Marketing L P Requisition t DIR-SDD•1951
LIHMM SUBCONTRACTING INTENTIONS (CONTINUATION SHEET)
This page can be used as a continuation sheet to the HSP Form's page 2, SECTION 2, Item b. Continue listing the portions of work (subcontracting
opportunities) you will subcontract. Also, based on the total value of the contract, identify the percentages of the contract you expect to award to Texas certified
HUBs, and the percentage of the contract you expect to award to vendors that are not a Texas certified HUB (i.e., Non -HUB).
HSP -- SECTION 2
(Continuation Sheet)
Subcontracting Opportunity Description expected
to
HUBs
Non-HUBs
Item g
Percentage of the contract
to be subcontracted expected
HUBs with which you have to
had contracts in place for
five (5) years or less.
Percentage of the contract
to be subcontracted
HUBs with which you have
had contracts in place for
more than five 15) Years.
Percentage of the contract
expected to be subcontracted
to non-HUBs.
%
%
%
%
%
%
p
%
%
%
%
%
%
%
Aggregate percentages of the contract expected to be subcontracted:
%
%
%
HSP -- SECTION 2
(Continuation Sheet)
• SELF PERFORMING JUSTIFICATION (If you responded "No" to SECTION 2, Item a, you must complete this SECTION and continue to SECTION 4.)
Check the appropriate box (Yes or No) that indicates whether your responselproposal contains an explanation demonstrating how your company will fulfill the entire
contract with its own resources.
❑ - Yes (If Yes, in the space provided below list the specific pages)/section(s) of your proposal which explains how your company will perform the entire
contract with its own equipment, supplies, materials and/or employees.)
❑ - No (If No, in the space provided below explain how your company will perform the entire contract with its own equipment, supplies, materials and/or
employees.)
• AFFIRMATION
As evidenced by my signature below, I affirm that I am an authorized representative of the respondent listed in SECTION 1, and that the information and supporting
documentation submitted with the HSP is true and correct. Respondent understands and agrees that, N awarded any portion of the requisition:
• The respondent will provide notice as soon as practical to all the subcontractors (HUBs and Non-HUBs) of their selection as a subcontractor for the awarded
contract. The notice must specify at a minimum the contracting agency's name and its pant of contact for the contract, the contract award number, the
subcontracting opportunity they (the subcontractor) will perform, the approximate dollar value of the subcontracting opportunity and the expected percentage of
the total contract that the subcontracting opportunity represents. A copy of the notice required by this section must also be provided to the contracting agency's
point of contact for the contract no later than ten (10) working days after the contract is awarded.
• The respondent must submit monthly compliance reports (Prime Contractor Progress Assessment Report — PAR) to the contracting agency, verifying its
compliance with the HSP, including the use of and expenditures made to its subcontractors (HUBs and Non-HUBs). (The PAR is available at
http.l www.window.state.txuslprocurement/proglhublhub-forms1progressassessmentrpt.xls).
• The respondent must seek approval from the contracting agency prior to making any modifications to its HSP, including the hiring of additional or different
subcontractors and the termination of a subcontractor the respondent identified in its HSP. If the HSP is modified without the contracting agency's prior
approval, respondent may be subject to any and all enforcement remedies available under the contract or otherwise available by law, up to and including
debarment from all state contracting.
The respondent must, upon request, allow the contracting agency to perform on-site reviews of the company's headquarters and/or work -site where services are being performed
provide documentation regarding staffing and other resources.
Signature on File Diane Wigington Public Contracts Manager January 24, 2013
Signature Printed Name Title Date
REMINDER: ➢ If you responded "Yes'to SECTION 2, Items c or d, you must complete an 'HSP Good Faith Effort - Method A (Attachment A)" for each of
the subcontracting opportunities you listed in SECTION 2, Item b.
➢ If you responded 'No' SECTION 2, Items c and d, you must complete an "HSP Good Faith Effort - Method B (Attachment B)' for each of
the subcontracting opportunities you listed in SECTION 2, Item b.
HSP Good Faith Effort - Method A (Attachment A)
Enter your company's name here: Dell Marketing L.P. Requisition #: DIR-SDD-1951
IMPORTANT. If you responded "Yes to SECTION 2, Items c or d of the completed HSP form, you must submit a completed "HSP Good Faith Effort- Method
A (Attachment A)" for each of the subcontracting opportunities you listed in SECTION 2, Item b of the completed HSP form. You may photo -copy this page or
download the form at hitp://www.window.state.tx.us/procurement/prop/hub/hub-formstHUBSubcontractingPlanAitachment-A.doc
SUBCONTRACTING OPPORTUNITY
Enter the item number and description of the subcontracting opportunity you listed in SECTION 2, Item b, of the completed HSP form for which you are completing
this attachment.
Item #: Description:
VIC "62-31 SUBCONTRACTOR SELECTION
List the subcontractor(s) you selected to perform the subcontracting opportunity you listed above in SECTION A-1. Also identify whether they are a Texas Certified
HUB and their VID number, the approximate dollar value of the work to be subcontracted, the expected percentage of work to be subcontracted, and indicate whether
the company is a Texas certified HUB.
Company Name
Texas
Certified HUB
VID ft
(Required If Texas
Certilled HLIB)
Approximate
Dopar Amount
Expected Percentage
of Contract
❑ - Yes ❑ - No
$
%
[]-Yes []-No
$
%
[I Yes ❑-No
$
%
[I Yes ❑- No
$
%
❑-Yes [I No
$
%
❑ -Yes ❑ No
$
%
❑-Yes No
$
%
[I -Yes ❑-No
$
%
❑ - Yes ❑ - No
$
%
E] -Yes ❑-No
$
%
❑ - Yes ❑ - No
$
%
❑ -Yes ❑ No
$
%
❑ - Yes ❑ - No
$
%
❑ -Yes ❑ No
$
eke
El -Yes ❑-No
$
%
El -Yes ❑-No
$
%
El -Yes ❑-No
$
eke
❑ -Yes ❑ No
$
%
❑-Yes No
$
%
❑ - Yes ❑ - No
$
ear
❑-Yes ❑ No
$
eke
REMINDER: As specified in SECTION 4 of the completed HSP form, if you (respondent) are awarded any portion of the requisition, you are required to provide
notice as soon as practical to all the subcontractors (HUBS and Non -HUBS) of their selection as a subcontractor. The notice must specify at a minimum the
contracting agency's name and its point of contact for the contract, the contract award number, the subcontracting opportunity they (the subcontractor) will perform,
the approximate dollar value of the subcontracting opportunity and the expected percentage of the total contract that the subcontracting opportunity represents. A
copy of the notice required by this section must also be provided to the contracting agency's pant of contact for the contract no later than ten (10) working days after
the contract is awarded.
Page 1 of I
(Attachment A)
NSP Good Faith Effort - Method B (Attachment B)
Enter your company's name here: Dell Marketing L.P. Requisition #: DIR-SDD-1951
IMI'UKIAN 1: If you responded 'No' to SECTION 2, Items c and d of the completed HSP form, you must submit a completed 'HSP Good Faith Effort - Method
B (Attachment B)' for each of the subcontracting opportunities you listed in SECTION 2, Item b of the completed HSP form. You may photo -copy this page or
download the form at http://www.window.state.tx.us/procurementiprogthub/hub-forms/HUBSubcontractingPlanAttachment-B.doc
• = SUBCONTRACTING OPPORTUNITY
Enter the item number and description of the subcontracting opportunity you listed in SECTION 2, Item b, of the completed HSP form for which you are completing
this attachment.
Item M 1 Description: Order Fulfiller / Marketing Agent
FATS MENTOR PROTtGt PROGRAM
If respondent is participating as a Mentor in a State of Texas Mentor Protege Program, submitting its Protege (Protege must be a State of Texas certified HUB) as a
subcontractor to perform the subcontracting opportunity listed in SECTION B-1, constitutes a good faith effort to subcontract with a Texas certified HUB towards that
specific portion of work.
Check the appropriate box (Yes or No) that indicates whether you will be subcontracting the portion of work you listed in SECTION B-1 to your Protege.
❑ - Yes (If Yes, to continue to SECTION B-4.)
® - No I Not Applicable (If No or Not Applicable, continue to SECTION B-3.)
=I = NOTIFICATION OF SUBCONTRACTING OPPORTUNITY
When completing this section you MUST comply with items a, b, c and d, thereby demonstrating your Good Faith Effort of having notified Texas certified HUBs and minority or
women trade organizations or development centers about the subcontracting opportunity you listed in SECTION B-1. Your notice should include the scope of work, information
regarding the location to review plans and specifications, bonding and insurance requirements, required qualifications, and identify a contact person.
When sending notice of your subcontracting opportunity, you are encouraged to use the attached HUB Subcontracting Opportunity Notice form, which is also available online
at http:/Iwww.window.state.tx.us/procurement/progthubfhub•subcontracting-plan/
Retain supporting documentation (i.e., certified letter, fax, e-mail) demonstrating evidence of your good faith effort to notify the Texas certified HUBs and minority or
women trade organizations or development centers.
a. Provide written notification of the subcontracting opportunity you listed in SECTION B-1, to three 3 or more Texas certified HUBs. Unless the contracting
agency specified a different time period, you must allow the HUBs at least seven (7) working days to respond to the notice prior to your submitting your bid
response to the contracting agency. When searching for Texas certified HUBs, ensure that you use the State of Texas' Centralized Master Bidders List (CMBL)
and Historically Underutilized Business (HUB) Search directory located at http:/lwww.window.state.tx.us/procurement!/cmbl/cmblhub.html. HUB Status
code'A' signifies that the company is a Texas certified HUB.
b. List the three 3 Texas certified HUBs you notified regarding the subcontracting opportunity you listed in SECTION B-1. Include the company's Vendor ID (VID)
number, the date you sent notice to that company, and indicate whether it was responsive or non-responsive to your subcontracting opportunity notice.
Company Name
VID #
Date Notice Sent
(mmuffym)
Did the HUB Respond?
f /
0 -Yes ❑-No
/ 1
0 -Yes ❑-No
❑ - Yes ❑ - No
/ 1
❑-Yes ❑-No
I I
❑-Yes ❑-No
c. Provide written notification of the subcontracting opportunity you listed in SECTION B-1 to minority or women trade organizations or development centers to
assist in identifying potential HUBs by disseminating the subcontracting opportunity to their members/participants. Unless the contracting agency specified a
different time period, you must provide your subcontracting opportunity notice to minority or women trade organizations or development centers at least seven
(7) working days prior to submitting your bid response to the contracting agency.
A list of trade organizations and development centers that have expressed an interest in receiving notices of subcontracting opportunities is available on the
Statewide HUB Program's webpage at http://www.Wndow.state.tx.us/procurement/prog/hublmwb-links-l/
d. Enter the name of the minority or women trade organizations or development centers you notified regarding the subcontracting opportunity you listed in
SECTION B-1. Include the date when you sent notice to it and indicate if it accepted or rejected your notice.
Minority/Women Trade Organizations or Development Centers
Date Notice Sent
(m.VdNryy)
Was the Notice
Accepted?
f /
0 -Yes ❑-No
I t
❑ - Yes ❑ - No
Page 1 of 2
(Attachment B)
HSP Good Faith Effort - Method B (Attachment B) cont.
Enter your company's name here: Dell Marketing L.P. Requisition #: DIR-SDD-890
SUBCONTRACTOR SELECTION
a. List the subcontractor(s) you selected to perform the subcontracting opportunity you listed in SECTION B-1. Also identify whether they are a Texas Certified
HUB and their VII) number, the approximate dollar value of the work to be subcontracted, the expected percentage of work to be subcontracted, and indicate
whether the company is a Texas certified HUB.
Company Name
Texas
Certified HUB
VID#
(Regrdred9Texas
Certified HUB)
Approximate
Dollar Amount
Expected Percentage
of Contract
Austin Ribbon and Computing
M -Yes ❑ - No
17423397900
$
%
Checkpoint Services
M -yes ❑ No
1742775490200
$
%
Commonwealth Computer Company
M - Yes ❑ No
1742748769300
$
%
xNet Systems
M - Yes ❑ -No
1752837171300
$
%
SHI Government Solutions
0 -Yes ❑ -No
1752837171300
$
%
Advant Tech Solutions
M -Yes ❑ - No
1421606450200Fyes
%
Sirius Computer Solutions Inc.
❑ -Yes M No
1742836721700%
5ummus Industries, Inc.
0- ❑ - No
1760533392500%
Blue Line Services
❑ -Yes M - No
18105834867
$
%
Centre Technologies
M -Yes ❑ No
1510609177800
$
%
Virtual Communications
❑ Yes M No
1571164705500
$
%
Waypoint
❑ Yes M - No
7605503659
$
%
CMC
❑ Yes M - No
14708993028
$
%
Solid IT Networks
❑ Yes M -No
1752950821400
$
eke
EST Group
M -Yes ❑ -No
1203330208900
$
%
HiEd Inc.
®- Yes ❑ -No
1760385002900
$
'fie
rreeit Data Solutions, Inc.
M -yes ❑ - No
1272209002900
$
eke
Abacus Computers, Inc.
M Yes ❑ -No
1751844304300
$
%
Decision Tree Inc.
M -Yes ❑ No
1742538104700
$
%
OAG Consulting LLC
M - Yes ❑ - No
1731724421200
$
%
b. If any of the subcontractors you have selected to perform the subcontracting opportunity you listed in SECTION B-1 is not a Texas certified HUB, provide written
justification for your selection process (attach additional page if necessary):
REMINDER: As specified in SECTION 4 of the completed HSP form, if you (resoondentl are awarded any Portion of the requisition, you are required to provide
notice as soon as practical to all the subcontractors (HUBS and Non-HUBs) of their selection as a subcontractor. The notice must specify at a minimum the
contracting agency's name and its point of contact for the contract, the contract award number, the subcontracting opportunity it (the subcontractor) will perform, the
approximate dollar value of the subcontracting opportunity and the expected percentage of the total contract that the subcontracting opportunity represents. A copy of
the notice required by this section must also be provided to the contracting agency's point of contact for the contract no later than ten (10) working days after the
contract is awarded.
HSP Good Faith Effort - Method B (Attachment B)
Enter your company's name here: Dell Marketing L.P. Requisition #: DIR-SDD-1951
IMPORTANT: If you responded 'No'to SECTION 2, Items c and d of the completed HSP form, you must submit a completed 'HSP Good Faith Effort -Method
B (Attachment B)' for each of the subcontracting opportunities you listed in SECTION 2, Item b of the completed HSP form. You may photo -copy this page or
download the form at http:liwww.window.state.tx.us/procurement/prog/hub/hub-formstHUBSubcontractingPianAttachment-B.doc
• = SUBCONTRACTING OPPORTUNITY
Enter the item number and description of the subcontracting opportunity you listed in SECTION 2, Item b, of the completed HSP form for which you are completing
this attachment.
Item #: Description:
• = MENTOR PROTEGt PROGRAM
If respondent is participating as a Mentor in a State of Texas Mentor Protege Program, submitting its Protege (Prot6ge must be a State of Texas certified HUB) as a
subcontractor to perform the subcontracting opportunity listed in SECTION B-1, constitutes a good faith effort to subcontract with a Texas certified HUB towards that
specify portion of work.
Check the appropriate box (Yes or No) that indicates whether you will be subcontracting the portion of work you listed in SECTION B-1 to your Protege.
❑ - Yes (If Yes, to continue to SECTION B-4.)
❑ - No / Not Applicable (If No or NotApplicab/e, continue to SECTION B-3.)
• = WIIII NOTIFICATION OF SUBCONTRACTING OPPORTUNITY
When completing this section you MUST comply with items a. b, c and d, thereby demonstrating your Good Faith Effort of having notified Texas certified HUBS and minority or
women trade organizations or development centers about the subcontracting opportunity you listed in SECTION B-1. Your notice should include the scope of work, information
regarding the location to review plans and specifications, bonding and insurance requirements, required qualifications, and identify a contact person.
When sending notice of your subcontracting opportunity, you are encouraged to use the attached HUB Subcontracting Opportunity Notice form, which is also available online
at http:/Mrnw.window.state.tK.us/procurementfprog/hub/hub-subcontracting-plant
Retain supporting documentation (i.e., certified letter, fax, e-mail) demonstrating evidence of your good faith effort to notify the Texas certified HUBs and minority or
women trade organizations or development centers.
Provide written notification of the subcontracting opportunity you listed in SECTION B-1, to three 3 or more Texas certified HUBs. Unless the contracting
agency specified a different time period, you must allow the HUBs at least seven (7) working days to respond to the notice prior to your submitting your bid
response to the contracting agency. When searching for Texas certified HUBs, ensure that you use the State of Texas' Centralized Master Bidders List (CMBL)
and Historically Underutilized Business (HUB) Search directory located at htfp:Owww.wlndow.state.tx.us/procuremenU/cmbYcmblhub.htmt HUB Status
oode -A` signifies that the company is a Texas certified HUB.
L List the three 3 Texas certified HUBs you notified regarding the subcontracting opportunity you listed in SECTION B-1. Include the company's Vendor ID (VID)
number, the date you sent notice to that company, and indicate whether it was responsive or non-responsive to your subcontracting opportunity notice.
Company Name
VID #
Date Notice Sent
(mmlddryyM
Did the HUB Respond?
1 !
0 -Yes ❑-No
t !
❑-Yes [I -No
❑ -Yes ❑ -No
t /
❑ Yes ❑ - No
❑-Yes [I -No
Provide written notification of the subcontracting opportunity you listed in SECTION B-1 to minority or women trade organizations or development centers to
assist in identifying potential HUBs by disseminating the subcontracting opportunity to their members/participants. Unless the contracting agency specified a
different time period, you must provide your subcontracting opportunity notice to minority or women trade organizations or development centers at least seven
(7) working days prior to submitting your bid response to the contracting agency.
A list of trade organizations and development centers that have expressed an interest in receiving notices of subcontracting opportunities is available on the
Statewide HUB Program's webpage at http://www.window.state.tx.ustprocurementiprog/hublmwb-links-1/
h. Enter the name of the minority or women trade organizations or development centers you notified regarding the subcontracting opportunity you listed in
SECTION B-1. Include the date when you sent notice to it and indicate if it accepted or rejected your notice.
MinontyNomen Trade Organizations or Development Centers
Date Notice Sent
(mmrddM)
Was the Notice
Accepted?
1 !
0 -Yes ❑-No
f !
❑ -Yes ❑ -No
HSP Good Faith Effort - Method B (Attachment B) cont.
Enter your company's name here: Dell Marketing L.P. Requisition #: DIR-SDD-1951
= SUBCONTRACTOR SELECTION
c. List the subcontractor(s) you selected to perform the subcontracting opportunity you listed in SECTION B-1. Also identify whether they are a Texas Certified
HUB and their VID number, the approximate dollar value of the work to be subcontracted, the expected percentage of work to be subcontracted, and indicate
whether the company is a Texas certified HUB.
d. If any of the subcontractors you have selected to perform the subcontracting opportunity you listed in SECTION B-1 is not a Texas certified HUB, provide written
justification for your selection process (attach additional page if necessary):
REMINDER: As specified in SECTION 4 of the completed HSP form, if you (respondent) are awarded any portion of the requisition, you are required to provide
notice as soon as practical to all the subcontractors (HUBs and Non -HUBS) of their selection as a subcontractor. The notice must specify at a minimum the
contracting agency's name and its point of contact for the contract, the contract award number, the subcontracting opportunity it (the subcontractor) will perform, the
approximate dollar value of the subcontracting opportunity and the expected percentage of the total contract that the subcontracting opportunity represents. A copy of
the notice required by this section must also be provided to the contracting agency's point of contact for the contract no later than ten (10) working days after the
contract is awarded.
Texas
VID #
Approximate
Expected Percentage
Company Name
Certified HUB
(Required if Texas
DollarAmount
of Contract
Certified HUB)
❑-Yes ❑-No
$
%
❑-Yes ❑-No
$
d. If any of the subcontractors you have selected to perform the subcontracting opportunity you listed in SECTION B-1 is not a Texas certified HUB, provide written
justification for your selection process (attach additional page if necessary):
REMINDER: As specified in SECTION 4 of the completed HSP form, if you (respondent) are awarded any portion of the requisition, you are required to provide
notice as soon as practical to all the subcontractors (HUBs and Non -HUBS) of their selection as a subcontractor. The notice must specify at a minimum the
contracting agency's name and its point of contact for the contract, the contract award number, the subcontracting opportunity it (the subcontractor) will perform, the
approximate dollar value of the subcontracting opportunity and the expected percentage of the total contract that the subcontracting opportunity represents. A copy of
the notice required by this section must also be provided to the contracting agency's point of contact for the contract no later than ten (10) working days after the
contract is awarded.
Appendix E
MASTER OPERATING LEASE AGREEMENT
1. Definitions. Capitalized terms used in this Appendix and not otherwise defined will have the
meanings set forth in the Contract.
(a) "Assets" refers to the Products as allowed within the Contract, including the Hardware, Software, and
related Services, which are specifically identified on the applicable Schedule. Assets includes any
items associated with the foregoing, including but not limited to all parts, replacements, additions,
repairs, and attachments incorporated therein and/or affixed thereto, and documentation (technical
and/or user manuals).
(b) "Contract" refers to DIR Contract number DIR-SDD-1951 into which this Appendix is incorporated.
(c) "Event of Default" is defined in Section 23, "Default."
(d) "Event of Loss" means an event of Ioss, theft, destruction or damage of any kind to any item of the
Assets, including the loss, theft or taking by governmental action of any item of the Assets for a stated
period extending beyond the Term of any Schedule.
(e) "Hardware" refers to the computer machinery and equipment specifically identified on the applicable
Schedule.
(f) "Lease" means the financing transaction described in this MOLA.
(g) "Lessee" means any Texas state agency, unit of local government, institution of higher education as
defined in Section 2054.003 (8-a), Texas Government Code, and those state agencies purchasing from
a DIR contract through an Interagency Agreement, as authorized by Chapter 771, Texas Government
Code, any local government as authorized through the Interlocal Cooperation Act, Chapter 791, Texas
Government Code, and the state agencies and political subdivisions of other states as authorized by
Section 2054.0565, Texas Government Code.
(h) "Lessor" means the Vendor identified in the Contract.
(i) "MOLA" means this Master Operating Lease Agreement (Appendix E). Any reference to "MOLA"
includes the Contract, the Opinion of Counsel, and any riders, amendments and addenda thereto, and
any other documents as may from time to time be made a part hereof upon mutual agreement in a
writing signed by authorized representatives of both parties.
(j) "Rent Payment" means the amount payable by Lessee for the Assets as specified in the applicable
Schedule.
(k) "Schedule" or "Supplementary Schedule" to this MOLA means the form or format entered into
between Lessor and Lessee which contains, at a minimum, a description of the Assets, the name of the
DIR Contract # DIR-SDD-1951 Page 1 of 18 Appendix 1;, MOLA
Lessee, applicable Rent Payment, and term of the Lease. To be effective, a Schedule must be executed
by both Lessor and Lessee.
(1) "Services" refers to the configuration, installation, implementation, support, training, and other
professional and consulting services specifically identified on the applicable Schedule.
(m)"Software" refers to the computer programs specifically identified on the applicable Schedule.
(n) "Stipulated Loss Value" is the value of each unit of Hardware at various times during the Lease as
specified in the applicable Schedule; however, in no event will the Stipulated Loss Value of a
Hardware unit exceed its fair market value.
2. Lease.
(a) Lessor and Lessee intend that this MOLA constitute an operating lease and a true lease as those terms
are defined in the Statement of Financial Accounting Standards No. 13 and as provided for under the
Uniform Commercial Code --- Leases, Tex. Bus. & Comm. Code Article 2A. Under no circumstances
shall this MOLA or any Schedules entered into under it be construed as a "finance lease" as defined in
Tex. Bus. & Comm. Code § 2A.103 (7). In addition, Lessor acknowledges that Lessee is not a
"merchant lessee" for purposes of Tex. Bus. & Comm. Code § 2A.511.
(b) Lessor hereby leases to Lessee, and Lessee hereby leases from Lessor, the Assets described on each
Schedule. Each such Schedule constitutes a separate agreement between Lessor and Lessee. In
addition, each Schedule is subject to the terms and conditions of this MOLA as if a separate MOLA
were executed for such Schedule by the parties.
(c) In the event of Lessee's rightful rejection of the Assets as specified in Section 10 ("Inspection and
Acceptance") of this MOLA, Lessee shall have the right, at its sole option, to cancel this Lease as to
the rejected Assets or as to all of the Assets to be leased under the Schedule applicable to such Assets.
Upon cancellation, Lessee shall have no obligations under this MOLA with respect to the portion of
this Lease so cancelled.
(d) Each Lessee has made an independent legal and management determination to enter into each
Schedule. DIR has not offered or provided any legal or management advice to Lessor or to any Lessee
tinder any Schedule. Lessee may negotiate additional terms or more advantageous terms with Lessor
to satisfy individual procurements in which case such terms shall be set forth in a Rider to the MOLA
or the Schedule. To the extent that any of the provisions of the MOLA conflict with any of the terms
contained in any Schedule, the terms of this MOLA shall control.
(e) If more than one Lessee is named in a Schedule, the liability of each named Lessee shall be joint and
several. However, unless DIR leases Assets for its own use, DIR is not a party to any Schedule
executed under this MOLA and is not responsible for Rent Payments or any other obligations under
such Lessee's Schedule. The invalidation, fulfillment, waiver, termination, or other disposition of any
rights or obligations of either a Lessee or Lessor (or both of them) arising from the use of this MOLA
in conjunction with any one Schedule shall not affect the status of the rights or obligations of either or
DIR Contract # DIR-SDD-1951 Page 2 of 18 Appendix B, MOLA
both of those parties arising from the use of this MOLA in conjunction with any other Schedule,
except in the Event of Default as provided in Section 23 ("Default") of this MOLA.
3. Term of MOLA.
The term of this MOLA shall commence (a) upon commencement of the term of the Contract. The term of
this MOLA shall continue until the last to occur of the following: (i) the Schedule Term of each Schedule
entered into by the parties has expired or been terminated, or (ii) the Contract has expired or been
terminated. In the event of any termination or expiration of the Contract or termination of MOLA, any
provisions of the Contract and this MOLA as may be necessary to preserve the rights of Lessor or Lessee
hereunder shall survive said termination or expiration.
4. Term of Schedule.
The term for each Schedule agreed to by a Lessee and Lessor tinder this MOLA shall commence on the
effective date specified in the Schedule (and, if no date is specified, then on the date the Schedule was
signed by Lessee, provided Lessor has also signed the Schedule). Unless earlier terminated as provided for
herein, the Schedule shall continue for the number of whole months or other payment periods set forth in
it (the "Schedule Term"). Specifically with respect to Hardware, under no circumstances shall the
Schedule Term exceed seventy five percent (75%) of the economic life of the Hardware. The Schedule
Term may be earlier terminated upon: (i) the non -appropriation of funds pursuant to Section 8
("Appropriation of Funds") of this MOLA, (ii) an Event of Loss, (iii) an Event of Default by Lessee and
Lessor's election to cancel the Schedule pursuant to Section 24 ("Remedies") of this MOLA, (iv) an event
of default or other- breach of this Agreement by Lessor and Lessee's election to cancel the Schedule
pursuant to Section 24 ("Remedies") of this MOLA, or (v) as otherwise set forth herein.
5. Administration of MOLA.
(a) When a prospective Lessee wishes to lease Assets under this MOLA, the prospect will submit its
request directly to Lessor. Lessor shall apply the applicable pricing discounts as stated in Section 4 of
the Contract or the price as agreed upon by Lessee and Lessor in the applicable Schedule, whichever is
lower and submit the lease proposal to the prospective Lessee. If the prospective Lessee wishes to
proceed to lease Assets based on the proposal, Lessor will negotiate the applicable Rent Payment,
availability of Assets, and term of the Lease directly with the prospective Lessee.
(b) With respect to Lessor's obligations under Section 5 of the Contract to report the sale and make
payment of the DIR administrative fee as defined in that Section, all leasing activities in conjunction
to this MOLA shall be treated as a "purchase sale." Notwithstanding treatment of this Lease as a
"purchase sale" as to the transaction between Lessor and DIR under the Contract, however, under no
circumstances shall this MOLA be construed as creating anything other than a true lease and operating
lease as stated in Section 2 ("Lease") hereof for the transaction(s) between Lessor and Lessee.
(c) Upon agreement by Lessor and Lessee on the applicable Rent Payment, availability, Lease term, and
the like, Lessee may issue a purchase order in the amount indicated on the applicable Schedule to
Lessor for the Assets and reference the Contract number on the purchase order. Any pre-printed terms
and conditions on the Schedule issued by Lessor (with respect to any item other than the specific
DIR Contract # DIR-SDD-1951 Page 3 of 18 Appendix E, MOLA
Assets which are the subject of the Lease, the Schedule Term, and the Rent Payments), Lessor's order
acknowledgement form or the like shall not be effective with respect to the lease of Assets hereunder.
Rather, the terms and conditions of this MOLA shall control in all respects.
(d) Until a Schedule is entered into by Lessor and a Lessee per the process set forth in this MOLA, neither
DIR nor any Lessee is obligated under this MOLA to lease Assets from Lessor nor is Lessor obligated
under this MOLA to lease Assets to a Lessee.
6. Rent Payments.
(a) During the Schedule Term and any renewal terms agreed to by Lessee as specified herein, Lessee
agrees to pay Lessor the Rent Payments set forth in the relevant Schedule for each Asset. Rent
Payments shall be the amount equal to the Rent Payment amount specified in the Schedule multiplied
by the amount of the total number of Rent Payments specified therein. Lessee shall pay Rent Payments
in the amount and on the due dates specified by Lessor until all Rent Payments and all other amounts
due under the Schedule have been paid in full. if the Schedule Commencement Date is other than the
first day of a month, Lessee shall make an initial payment on the Schedule Commencement Date in an
amount equal to one -thirtieth of the Rent Payment specified in the Schedule for each day from the
Schedule Commencement Date (including the Schedule Commencement Date) through the last day of
such month (including that day). For example, if a scheduled payment amount is $3,000 and the
Scheduled Commencement date is the 15'11 of the month, a payment of $1,500 will be made. Under no
circumstances shall the present value of the Rent Payments exceed ninety percent (90%) of the value
of the Assets.
(b) Any amounts received by Lessor from Lessee in excess of Rent Payments and any other sums required
to be paid by Lessee shall be held as non-interest bearing security for Lessee's faithful performance
under the conditions of this MOLA (and any Schedule), and applied to reduce future Rent Payments.
All Rent Payments shall be paid to Lessor at the address stated on the Schedule or any other such
place as Lessor or its assigns may hereafter direct to Lessee. Lessee shall abide by Appendix A,
Section 7C of the Contract in making payments to Lessor. Lessor's (including its assignees') remedy
for late payments is as set forth in Chapter 2251, Texas Government Code.
(c) Lessee acknowledges and agrees, except as specifically provided for in Section 8 ("Appropriation of
Funds") of this MOLA and excluding claims resulting from a breach of Lessor's obligations as set
forth in this MOLA or any Schedule or of Lessee's rights under Section 16 ("Quiet Enjoyment")
hereof, that Lessee's obligation to pay Rent and other sutras payable hereunder, shall not be abated,
reduced or subject to offset or diminished as a result of any past, present or future claims Lessee may
have against Lessor under this Lease. Notwithstanding the foregoing, nothing in this Section or any
other provision of this MOLA shall affect or preclude Lessee from enforcing any and all other rights it
may have against Lessor and its assignees under this MOLA or otherwise affect any right Lessee may
have against the manufacturer or licensor of the Assets or any party other than Lessor.
DIR Contract # DIR-SDD-1951 Page 4 of 18 Appendix E, MOLA
7. Liens.
Lessee shall keep the Assets free and clear of all levies, liens and encumbrances, and shall give Lessor
immediate notice of any attachment or other judicial process affecting any item of the Assets.
8. Appropriation of Funds.
Lessee intends to continue each Schedule to which it is a party for the Schedule Term and to pay the Rent
and other amounts due hereunder. Lessee reasonably believes that legally available funds in an amount
sufficient to pay all Rent during the Schedule Term can be obtained. Lessee further intends to act in good
faith to do those things reasonably and lawfully within its power to obtain and maintain funds from which
the Rent may be paid. Notwithstanding the foregoing, in the event sufficient funds are not appropriated to
continue the Schedule Term for any fiscal period (as set forth on the Schedule) of Lessee beyond the fiscal
period first in effect at the commencement of the Schedule Term, Lessee may terminate the Schedule with
regard to those of the Assets on the Schedule so affected. Lessee shall endeavor to provide Lessor with
written notice sixty (60) days prior to the end of its current Fiscal Period confirming which Assets on the
Schedule will be so affected by the termination. All obligations of Lessee to make Rent Payments due
With respect to those Assets after the end of the Fiscal Period for which such termination applies will
cease, all interests of Lessee in those Assets will terminate, Lessee shall surrender those Assets in
accordance with Section 15 ("Option to Extend; Surrender of Assets") of this MOLA, and the applicable
Schedule shall be deemed amended. Lessee represents and warrants it has adequate funds to meet its
obligations during the first fiscal period of the Schedule Term. Lessor and Lessee intend that the
obligation of Lessee to make Rent Payments under this MOLA shall constitute a current expense of
Lessee and shall not in any way be construed to be a debt of Lessee in contravention of any applicable
constitutional or statutory limitation or requirement concerning the creation of indebtedness by Lessee,
nor shall anything contained herein constitute a pledge of the general revenues, funds or monies of Lessee
or the State of Texas, as applicable, beyond the fiscal period for which sufficient funds have been
appropriated to make Rent Payments hereunder.
9. Assignment of Warranties.
Each Schedule is intended to be a true lease and operating lease as defined in Tex. Bus. & Comm. Code
Article 2A. Lessor has acquired or will acquire the Assets in connection with this MOLA and hereby
agrees to assign to Lessee any warranties provided to Lessor with respect to the Assets during the Term of
the applicable Schedule, to the extent the warranties are assignable. Unless Lessor'is the manufacturer or
is otherwise liable under the Contract, Lessor shall not be liable for damages for any reason for any act or
omission of the manufacturer of the Assets. Except as provided in Section 24 ("Remedies") hereof, Lessee
acknowledges that none of the following shall relieve Lessee from the obligations under this MOLA
during the Schedule Term unless due to Lessor's acts or omissions: (i) Lessee's dissatisfaction with any
unit of the Assets, (ii) the failure of an Asset to remain in useful condition for the Schedule Term, or (iii)
the loss or right of possession of the Assets (or any part thereof) by Lessee. Lessee shall have no right,
title or interest in or to the Assets except the right to use the same upon the terms and conditions herein
contained. The Assets shall remain the sole and exclusive personal property of Lessor and not be deemed
a fixture whether or not it becomes attached to any real property of Lessee.
AIR Contract # DIR-SDD-1951 Page 5 of 18 Appendix E, MOLA
10. Inspection and Acceptance.
Promptly upon delivery of the Assets, Lessee will inspect and test the Assets. No later than twenty (20)
business days following its date of delivery (or, if the Assets are part of a system, the date of last delivery
of the Assets comprising the system), Lessee will execute and deliver either (i) a Certificate of
Acceptance, or (ii) written notification of any defects in the Assets. If Lessee has not given notice within
such time period, the Assets shall be deemed accepted by Lessee as of the twentieth (20th) business day,
as described above. In the event Lessee does not accept the Assets, Lessor will promptly remove the
Assets from Lessee's premises and deliver conforming Assets within the timeframe agreed to and
provided for by the supplier or manufacturer under that supplier's or manufacturer's applicable
procurement contract with the State. If conforming Assets are not delivered within that timeframe, Lessee
may terminate the Schedule on written notice to Lessor. Lessee's acceptance of any Assets shall not be
deemed to waive any rights Lessee may have against the manufacturer or licensor, as applicable. Lessor
and its assigns, including either of their respective agents shall have the right to inspect the Assets upon
reasonable notice to Lessee and during normal business hours provided that anyone who does so has first
executed a non -disclosure agreement acceptable to Lessee.
11. Installation and Delivery; Use of Assets; Repair and Maintenance.
(a) Except as set forth in this MOLA, all transportation, delivery, installation, and de -installation costs
associated with the Assets shall be borne by Lessee. Lessee shall provide a place of installation for the
Assets, which conforms to the requirements of the manufacturer and Lessor.
(b) Subject to the terns hereof, Lessee shall be entitled to use the Assets for the conduct of its business in
compliance with all laws, rules, and regulations of the jurisdiction in which the Assets are located.
Lessee shall not use or permit the use of the Assets for any purpose for which, according to the
specification of the manufacturer, the Assets are not designed.
(c) Lessee, at its expense, shall take good and proper care of the Hardware and make all repairs and
replacements necessary to maintain and preserve the Hardware and keep the Hardware in good order
and condition (reasonable wear and tear excepted). Unless Lessor shall otherwise consent in writing,
Lessee shall, at its own expense, enter into and maintain in force a maintenance agreement covering
each Hardware unit. Lessee shall furnish Lessor with a copy of such agreement, upon request.
Lessee shall not make any alterations, additions, or improvements, or add attachments to the Hardware
without the`prior written consent of Lessor, except for additions or attachments to the Hardware leased
by Lessee from Lessor or purchased by Lessee from the manufacturer of the Hardware (or an
authorized distributor of the manufacturer) or any other person approved by Lessor. Lessee shall affix
on a prominent place on each item of Hardware any tags, decals or labels supplied by Lessor to Lessee
which describe the ownership of the Hardware. Subject to the provisions of Section 15(b) under
"Option to Extend; Surrender of Hardware and Software Assets," Lessee agrees to restore the
Hardware to Return Condition prior to its return to Lessor.
12. Relocation of Hardware and Software.
DIR Contract # DIR-SDD-1951 Page 6 of 18 Appendix E, MOLA
Except as set forth on the applicable Schedule, Lessee shall at all times keep the Hardware and Software
within its exclusive possession and control. Lessee may move the Hardware or Software to another
location of Lessee within the continental United States, provided Lessee is not in default on any Schedule
and pays all costs associated with such relocation. If such relocation requires Lessor's prior written
consent, Lessee shall obtain such consent prior to relocating the Hardware or Software, as applicable,
which consent Lessor shall not unreasonably withhold. Notwithstanding the foregoing, in those situations
where consent is otherwise required, Lessee may move the Hardware or Software to another location
within Texas without notification to, or the consent of, Lessor; provided, however, that not later than
December 31 of each calendar year, Lessee shall provide Lessor a written report detailing the total amount
of Hardware and Software at each location of Lessee as of that date, and the complete address for each
location. Lessor shall make all filings and returns for property taxes due with respect to the Hardware and
Software, and Lessee agrees that it shall not make or file any property tax returns, including information
returns, with respect to the Hardware and Software.
13. Taxes.
Unless otherwise agreed by the parties on the applicable Schedule, Lessor will pay any Imposition or file
any forms or returns with respect thereto. Lessee shall, when billed, and with copy of Imposition
invoice(s) with respect to Assets specified on the Schedule, reimburse Lessor for such payment. For
purposes of this paragraph "Impositions" means all taxes, including personal property taxes and fees,
without pro -ration as described in the Financial Disclosure Summary Work Sheet (Attachment 1)
hereafter imposed, assessed or payable during the term of the relevant Schedule including any extension
thereof. Because the reimbursement date for an Imposition may occur after the expiration or termination
of the term of the relevant Schedule, it is understood and agreed that Lessee's liability to reimburse for
such Impositions shall survive the expiration or termination of the term of the relevant Schedule.
14. Ownership.
The Hardware and Software shall at all times be and remain the sole and exclusive property of Lessor,
subject to the parties' rights under any applicable software license agreement. Lessee shall have no right,
title or interest in the Hardware except a leasehold interest as provided for herein. Lessee agrees that the
Hardware shall be and remain personal property and shall not be so affixed to realty as to become a fixture
or otherwise to lose its identity as the separate property of Lessor. Upon Lessor's request, Lessee will
enter into agreements necessary to ensure that the Hardware remains the personal property of Lessor.
15. Option to Extend; Surrender of Hardware and Software Assets
(a) Not less than ninety (90) days prior to the expiration of the initial Schedule Term, Lessor shall notify
Lessee in writing of options to extend the Schedule for continued use of the Hardware or Software
specified in that Schedule. If Lessee desires to exercise any of the options offered by Lessor (and
provided that, with respect to Hardware, any extension does not exceed seventy five percent (75%) of
its economic life), Lessee shall give Lessor irrevocable written notice of the option Licensee intends to
exercise at least forty-five (45) days before the expiration of such Schedule Term. In the event the
Lease is extended for some but not all of the Hardware and Software specified on a Schedule, the
Schedule shall be updated to reflect those changes. At the end of the Schedule Term (as well as with
DIR Contract # DIR-SDD-1951 Page 7 of 18 Appendix E, MOLA
respect to any Hardware and Software not extended as described immediately above), Lessee will
surrender and return the Hardware and Software to Lessor in compliance with Section 15(b) below.
(b) Except as specified otherwise herein, upon the expiration, early termination as provided herein, or
final termination of the Schedule, Lessee, at its cost and expense, shall promptly return the Hardware,
freight prepaid, to Lessor in good repair and working order, with reasonably unblemished physical
appearance and with no defects which affect the operation or performance of the Hardware ("Return
Condition"), reasonable wear and tear excepted. If the Hardware is not in Return Condition, Lessee
shall, at its option, either restore the Hardware (at Lessee's cost) to Return Condition or pay for the
Hardware at its Stipulated Loss Value if the Hardware is not reasonably repairable. Lessee shall
arrange and pay for the de -installation and packing of the Hardware in suitable packaging, and return
the Hardware to Lessor at the location specified by Lessor; provided, however, that such location shall
be within the United States no farther than 500 miles froth the original Lessee delivery location, unless
otherwise agreed to on the applicable Schedule. At its option and expense, Lessor shall have the right
to supervise and direct the preparation of the Hardware for return. If, upon termination or expiration of
the Schedule for any reason, Lessee fails or refuses to return to Lessor a Hardware unit or Software
program specified in that Schedule or to pay Lessor the Stipulated Loss Value for a Hardware unit,
Lessee shall remain liable for Rent Payments for that unit or program up to the date on which the unit
or program is returned to the address specified by Lessor (or on which Lessee has paid Lessor the
Stipulated Loss Value). In such event and specifically with respect to the Hardware, Lessor shall also
have the right to enter Lessee's premises or any other premises where the Hardware may be found to
take possession of and to remove the Hardware, at Lessee's sole cost and expense, without legal
process. Lessee understands that it may have a right under law to notice and a hearing prior to
repossession of the Hardware. However, as an inducement to Lessor to enter into a transaction, but
only to the extent that Lessee, if a state agency, has statutory authority to do so, Lessee hereby
expressly waives all rights conferred by existing law to notice and a hearing prior to such repossession
by Lessor or any officer authorized by law to effect repossession and hereby releases Lessor from all
liability in connection with such repossession. Without waiving the doctrines of sovereign immunity
and immunity from suit and to the extent authorized by the Constitution and laws of the State of
Texas, Lessee's obligation to return Hardware may, at Lessor's option, be specifically enforced by
Lessor.
16. (Quiet Enjoyment.
During the Schedule Term, Lessor shall not interfere with Lessee's quiet enjoyment and use of the Assets
as long as an Event of Default (as hereinafter defined in Section 23 ("Default") of the MOLA) has not
occurred.
17. Warranties regarding the Assets.
Lessor acknowledges that warranties made by the manufacturer or licensor of the Assets, if any, inure to
the benefit of Lessee. Lessee agrees to pursue any warranty claim directly against such manufacturer or
licensor of the Assets and shall not pursue any such claim against Lessor.
18. No Warranties by Lessor regarding the Assets.
DIR Contract 4 DIR-SDD-1951 Page 8 of 18 Appendix E, VIOLA
Except as set forth in the Contract, Lessee acknowledges that Lessor is not the manufacturer or licensor of
the Hardware or Software Assets. Lessee agrees that Lessor makes no representations or warranties of
whatsoever nature, directly or indirectly, express or implied, as to the suitability, durability, fitness for
use, merchantability, condition, or quality of the Hardware or Software Assets or any unit thereof. Except
to the extent Lessor is the manufacturer or licensor of the Hardware or Software Assets, Lessee
specifically waives all right to make claim against Lessor for breach of any warranty of any kind
whatsoever; and with respect to Lessor, Lessee leases the .Hardware and Software "as is". Except to the
extent Lessor is the manufacturer or licensor of the Hardware or Software Assets, Lessor shall not be
liable to Lessee for any loss, damage, or expense of any kind or nature caused directly or indirectly by any
Hardware or Software leased hereunder, or by the use or maintenance thereof, or by the repairs, service or
adjustment thereto or any delay or failure to provide any thereof, or by any interruption of service or loss
of use thereof, or for any loss of business or damage whatsoever and howsoever caused. Lessor agrees to
assign to Lessee, upon Lessee's request therefor, any warranty of a manufacturer or licensor or seller
relating to the Hardware and Software that may have been given to Lessor.
19. Risk of Loss.
Commencing upon delivery and continuing throughout the Schedule Term, Lessee shall bear the entire
risk of loss or damage in respect to the Hardware specified on the Schedule, whether partial or complete,
from any cause whatsoever. Lessee shall promptly notify Lessor regarding any Event of Loss. Upon any
Event of Loss, Lessee shall, at its option: (a) immediately repair the affected Hardware so that it is in good
condition and working order, (b) replace the affected Hardware with identical equipment of at least equal
value, in good condition and repair, and transfer clear title thereto to Lessor, or (c) to the extent permitted
by law, pay to Lessor, within thirty (30) days of the Event of Loss, an amount equal to the Stipulated Loss
Value for such affected Hardware unit, plus any other unpaid amounts then due under the Schedule. If an
Event of Loss occurs as to, part of the Hardware for which the SLV is paid, a prorated amount of each
Rent Payment shall abate from the date the SLV payment is received by Lessor. The SLV shall be an
amount equal to the sum of all future Rent Payments from the last Rent Payment date to the end of the
Schedule Term with such Rent Payments discounted to present value at the like -term Treasury Bill rate for
the remaining Schedule Tenn in effect on the date of such Event of Loss, or if such rate is not permitted
by law, then at the lowest permitted rate.
In the event of a governmental taking of a Hardware unit for an indefinite period or for a stated period,
which does not extend beyond the Schedule Term, all obligations of Lessee with respect to such Hardware
unit (including payment of Rent) shall continue. So long as Lessee is not in default hereunder, Lessor
shall pay to Lessee all sums received by Lessor fiom the government by reason of such taking.
20. Representations and Warranties of Lessee.
Lessee represents and warrants for the benefit of Lessor and its assigns, and Lessee will provide an
opinion of counsel to the effect that, as of the time of execution of the MOLA and each Schedule between
Lessor and Lessee:
(a) Lessee is either a Texas state agency or Texas local government, as defined in Section 2054.003,
Texas Government Code (including institutions of higher education as defined in Section 2054.003 (8-
a), Texas Government Code) or a state agency purchasing from a DIR contract through an Interagency
DIR Contract # DTR-SDD-1951 Page 9 of 18 Appendix E, MOLA
Agreement, as authorized by Chapter 771, Texas Government Code. Lessee has made an independent
legal and management determination to enter into this transaction;
(b) Each Schedule executed by Lessee has been duly authorized, executed and delivered by Lessee and
constitutes a valid, legal and binding true lease and operating lease agreement of Lessee, enforceable
in accordance with its terms;
(c) No approval, consent or withholding of objection is required from any federal or other
governmental authority or instrumentality with respect to the entering into or performance by Lessee
of any Schedule between Lessor and Lessee;
(d) The entering into and performance of any Schedule between Lessor and Lessee, this MOLA or any
Schedule will not violate any judgment, order, law or regulation applicable to Lessee or result in any
breach of, or constitute a default under, or result in the creation of any lien, charge, security interest or
other encumbrance upon assets of Lessee or on the Hardware or Software leased tinder any Schedule
between Lessor and Lessee pursuant to any instrument to which Lessee is a party or by which it or its
assets may be bound;
(e) To the best of Lessee's knowledge and belief, there are no suits or proceedings pending or
threatened against or affecting Lessee, which if determined adversely to Lessee will have a material
adverse effect on the ability of Lessee to fulfill its obligations under the MOLA or any Schedule
between Lessor and Lessee;
(f) The use of the Assets is essential to Lessee's proper, efficient and economic operation, and Lessee will
sign and provide to Lessor upon execution of each Schedule between Lessor and Lessee hereto written
certification to that effect; and
(g) Lessee represents and warrants that (i) It has authority to enter into any Schedule under this MOLA,
(ii) the persons executing a Schedule have been duly authorized to execute the Schedule on Lessee's
behalf, (iii) all information supplied to Lessor is true and correct, including all credit and financial
information and (iv) it is able to meet all its financial obligations, including the Rent Payments
hereunder.
21. Representation and Warranties of DIR.
DIR represents and warrants for the benefit of Lessor and its assigns, and DIR will provide an opinion of
counsel to the effect that, as of the time of execution of the MOLA:
(a) DIR is a State agency as defined in Section 2251.001, Texas Government Code. DIR has not
provided Lessee or Lessor with any legal or management advice regarding the MOLA or any Schedule
executed pursuant thereto;
(b) This MOLA has been duly authorized, executed and delivered by DIR and constitutes a valid, legal
and binding agreement of DIR, enforceable in accordance with its terms;
DIR Contract 4 DIR-SDD-1951 Page 10 of 18 Appendix E, MOLA
(c) No approval, consent or withholding of objection is required from any federal or other
governmental authority or governmental authority or instrumentality with respect to the entering into
or performance by DIR of this MOLA;
(d) The entering into and performance of the MOLA does not violate any judgment, order, law or
regulation applicable to DIR or result in any breach of, constitute a default under, or result in the
creation of any lien, charge, security interest or other encumbrance upon assets of DIR or on the
Hardware or Software pursuant to any instrument to which DIR is a party or by which it or its assets
may be bound;
(e) To the best of DIR's knowledge and belief, there are no suits or proceedings pending or threatened
against or affecting DIR, which if determined adversely to DIR will have a material adverse effect on
the ability of DIR to fulfill its obligations under the MOLA;
(f) DIR is authorized to charge and collect the administrative fee as set forth within Section 5 of the
Contract; and
(g) Lessor's payment of the administrative fee to DIR shall not constitute an illegal gratuity or
otherwise violate Texas law.
22. Representations and Warranties of Lessor.
Lessor represents and warrants for the benefit of DIR and each Lessee:
(a) Lessor is an entity authorized and validly existing under the laws of its state of organization, is
authorized to do business in Texas, and is not in default as to taxes owed to the State of Texas and any
of its political subdivisions;
(b) The MOLA and each Schedule executed in conjunction to this MOLA have been duly authorized,
executed and delivered by Lessor and constitute valid, legal and binding agreements of Lessor,
enforceable with respect to the obligations of Lessor herein in accordance with their terms;
(c) No approval, consent or withholding of objection is required from any federal or other
governmental authority or instrumentality with respect to the entering into or performance by Lessor
of this MOLA or any Schedule;
(d) The entering into and performance of the MOLA or any Schedule will not violate any judgment,
order, law or regulation applicable to Lessor or result in any breach of, or constitute a default under, or
result in the creation of any lien, charge, security interest or other encumbrance upon the assets of
Lessor, including the Hardware or Software leased under the MOLA and Schedules thereto, pursuant
to any instrument to which Lessor is a party or by which it or its assets may be bound;
(e) To the best of Lessor's knowledge and belief, there are no suits or proceedings pending or
threatened against or affecting Lessor, which if determined adversely to Lessor will have a material
adverse effect on the ability of Lessor to fi►lfill its obligations under the MOLA or any Schedule;
DIR Contract # DIR-SDD-1951 Page I I of 18 Appendix E, MOLA
M The Schedule Term as specified in the applicable Schedule does not exceed 75% of the useful life
of the Hardware, and the present value of the Rent Payments for the Hardware on the Schedule
Commencement Date does not equal or exceed ninety percent (90%) of the value of the Hardware; and
(g) Lessor acknowledges that DIR, as a government agency, is subject to the Texas Public Information
Act, and that DIR will comply with such Act, including all opinions of the Texas Attorney General's
Office concerning this Act.
23. Default.
Lessee shall be in default under a Schedule upon the occurrence of any one or more of the following
events (each an "Event of Default"): (a) nonpayment or incomplete payment by Lessee of Rent or any
other sum payable on its due date; (b) Lessee's material breach of this MOLA, any Schedule, or any
applicable software license agreement, which is not cured within thirty (30) days after written notice
thereof from Lessor; (c) Lessee's filing of any proceedings commencing bankruptcy or the taking of other
similar action by Lessee under any state insolvency or similar law, (d) the filing of any involuntary
petition against Lessee or the appointment of any receiver not dismissed within sixty (60) days from the
date of said filing or appointment; (e) subjection of a substantial part of Lessee's property or any part of
the Hardware to any levy, seizure, assignment or sale for or by any creditor. or governmental agency; or (f)
any representation or warranty made by Lessee in this MOLA, any Schedule or in any document furnished
by Lessee to Lessor in connection therewith or with the acquisition or use of the Assets being or becoming
untrue in any material respect.
24. Remedies.
(a) Lessor's Remedies.
i. Upon the occurrence of an "Event of Default," Lessor may, in its sole discretion, do any one or
more of the following:
A. after giving thirty (30) days prior written notice to Lessee of the Event of Default, during
which time Lessee shall have the opportunity to cure such Default, terminate any or all
Schedules executed by Lessor and the defaulting Lessee;
B. without Lessee and DIR waiving the doctrines of sovereign immunity and immunity from
suit, and to the extent allowed by the laws and Constitution of the State of Texas, Lessor may
proceed by appropriate court action to enforce the performance of the terms of the Schedule;
C. after giving thirty (30) days prior written notice to Lessee of the Event of Default, during
which time Lessee shall have the opportunity to cure such Default, and whether or not the
Schedule is terminated, take possession of the Hardware and Software wherever located,
without additional demand, liability, court order or other process of law. To the extent
permitted by Texas law, Lessee hereby authorizes Lessor, its assigns or the agents of either to
enter upon the premises where such Hardware or Software is located or cause Lessee, and
Lessee hereby agrees, to return such Hardware and Software to Lessor in accordance with the
DIR Contract 4 DIR-SDD-1951 Page 12 of 18 Appendix E, MOLA
requirements of Section 15 ("Option to Extend; Surrender of Hardware and Software
Assets") hereof;
D. by notice to Lessee, and to the extent permitted by law, declare immediately due and payable
and recover from Lessee, as liquidated damages and not as a penalty, the sum of:
1. the present value of the Rent owed from the earlier of the last date of payment by Lessee or
the date Lessor obtains a judgment against Lessee until the end of the Schedule Term
plus, if the Hardware is not returned to or repossessed by Lessor, the present value of the
Stipulated Loss Value of the Hardware at the end of the Schedule Term, each discounted
at a rate equal to the rate used by Lessor for business opportunity analysis;
It. without Lessee and DIR waiving the doctrines of sovereign immunity and immunity from
suit, and to the extent allowed by the laws and Constitution of the State of Texas, costs,
fees (including all attorneys' fees and court costs) and expenses associated with
collecting said sums; and
111. interest on (1) from the date of default at 1 %z% per month or portion thereof (or the highest
rate allowable by law, if less) and, on (II) from the date Lessor incurs such fees, costs or
expenses.
ii. Upon return or repossession of the Hardware, Lessor may, if it so decides in its sole discretion,
upon notice to Lessee, use reasonable efforts to sell, re -lease or otherwise dispose of such
Hardware, in such manner and upon such terms as Lessor may determine in its sole discretion, so
long as such manner and terms are commercially reasonable. Upon disposition of the Hardware,
Lessor shall credit the Net Proceeds (as defined below) to the damages paid or payable by
Lessee. Proceeds upon sale of the Hardware shall be the sale price paid to Lessor less the
Stipulated Loss Value in effect as of the date of default. Proceeds upon a re -lease of the
Hardware shall be all rents to be received for a term not to exceed the remaining Schedule Term,
discounted to present value as of the commencement date of the re -lease at Lessor's current
applicable debt rate. Without Lessee and DIR waiving the doctrines of sovereign immunity and
immunity from suit, and to the extent allowed by the laws and Constitution of the State of Texas,
"Net Proceeds" shall be the Proceeds of sale or re -lease as determined above, less all costs and
expenses incurred by Lessor in the recovery, storage and repair of the Hardware, in the
.remarketing or disposition thereof, or otherwise as a result of Lessee's default, including any
court costs and attorney's fees and interest on the foregoing at eighteen percent (18%) per annum
or the highest rate allowable by law, if less, calculated from the dates such costs and expenses
were incurred until received by Lessor. Lessee shall remain liable for the amount by which all
sums, including liquidated damages, due from Lessee exceeds the Net Proceeds. Net Proceeds in
excess thereof are the property of and shall be retained by Lessor.
iii. No termination, repossession or other act by Lessor in the exercise of its rights and remedies upon
an Event or Default by Lessee shall relieve Lessee from any of its obligations hereunder. No
remedy referred to in this Section is intended to be exclusive, but each shall be cumulative and in
addition to any other remedy referred to above or otherwise available to Lessor at law or in
equity.
DIR Contract # DIR-SDD-1951 Page 13 of 18 Appendix 1, MOLA
iv. Neither DIR nor non -defaulting Lessees shall be deemed in default under the MOLA or Schedules
because of the default of a particular Lessee. Lessor's remedies under this Section 24 shall not
extend to DIR and those non -defaulting Lessees.
(b) Lessee's Remedies. Anything herein to the contrary notwithstanding, Lessee shall have all rights
provided under Tex. Bus. & Comm. Code § 2A.508 through § 2A.522, including without limitation,
the right to cancel a Schedule and recover damages from Lessor in the event of nonperformance of or
other default by Lessor hereunder.
(c) Each party agrees that any delay or failure by the other party to enforce that party's rights under this
MOLA or a Schedule does not prevent that party from enforcing its rights at a later time.
25. Notices and Waivers.
(a) All notices relating to this MOLA shall be delivered to DIR or Lessor as specified in Section 6 of the
Contract, or to another representative and address subsequently specified in writing by the appropriate
parties hereto. All notices relating to a Schedule shall be delivered in person to an officer of Lessor or
Lessee or shall be given by certified or registered mail or overnight carrier to Lessor or Lessee at its
respective address shown on the Schedule or to another address subsequently specified in writing by
the appropriate parties thereof. DIR, Lessee, and Lessor intend and agree that a photocopy or
facsimile of this MOLA or a Schedule and all related documents, including but not limited to the
Acceptance Certificate, with their signatures thereon shall be treated as originals, and shall be deemed
to be as binding, valid, genuine, and authentic as an original signature document for all purposes.
(b) A waiver of a specific default shall not be a waiver of any other or subsequent default. No waiver of
any provision of this MOLA or a provision of a Schedule shall be a waiver of any other provision or
matter, and all such waivers shall be in writing and executed by an officer of the waiving party. No
failure on the part of a party to exercise, and no delay in exercising, any right hereunder shall operate
as a waiver thereof.
26. Assignment by Lessor; Assi�Irmentor Sublease by Lessee.
(a) Upon thirty (30) days advance written notice to Lessee and provided that any such assignee expressly
assumes Lessor's obligations under this MOLA and each Schedule, Lessor may (i) assign all or a
portion of Lessor's right, title and interest in this MOLA and/or any Schedule; (ii) grant a security
interest in the right, title and interest of Lessor in the MOLA, any Schedule and/or any Asset; and/or
(iii) sell or transfer its title and interest as owner or licensor of the Hardware and Software and/or as
Lessor under any Schedule; and DIR and each Lessee leasing Hardware under the MOLA understand
and agree that Lessor's assigns may each do the same (hereunder collectively "Assignment"). All such
Assignments shall be subject to each Lessee's rights under the Schedule(s) executed between it and
Lessor and to DIR's rights under the MOLA. Each Lessee leasing Assets through Schedules under this
MOLA and DIR hereby consent to such Assignments and agree to execute and deliver promptly such
acknowledgements, Opinions of Counsel and other instruments reasonably requested to effect such
Assignment. Lessor shall remain liable for performance under the MOLA and any Schedule(s)
executed hereunder to the extent Lessor's assigns do not perform Lessor's obligations tinder the
DIR Contract # DIR-SDA-1951 Page M of 18 Appendix E, MOLA
MOLA and Schedule(s) executed hereunder. Upon any such Assignment, all references to Lessor shall
also include all such assigns, whether specific reference thereto is otherwise made herein.
(b) Lessee will not sell, assign, sublet, pledge or otherwise encumber, or permit a lien to exist on or
against any interest in this MOLA or the Assets without Lessor's prior written consent except
otherwise permitted under this MOLA; provided, however, that no such prior written consent from
Lessor is necessary in the event of a legislative mandate to transfer the MOLA to another state agency.
27. Delivery of Related Documents.
For each Schedule, Lessee will provide the following documents and information satisfactory to Lessor:
(a) Certificate of Acceptance (if Acceptance has taken place); (b) Opinion of Counsel; (c) Financial
Statements; (d) incumbency certificate; and (e) other documents specified in the applicable Schedule as
being reasonably required by Lessor.
28. Miscellaneous.
(a) Prior to delivery of any Assets, the obligations of Lessor hereunder shall be suspended to the extent
that it is hindered or prevented frorn performing because of causes beyond its control. In such event,
the obligation of Lessee to commence Rents for such Assets shall also be suspended.
(b) Lessor and Lessee acknowledge that there are no agreements or understanding, written or oral,
between them with respect to the Assets, other than as set forth in this MOLA, including the Contract,
and in each Schedule to which Lessee is a signatory party. Lessor and Lessee further acknowledge
that this MOLA, including the Contract, and each Schedule to which Lessee is a party contain the
entire agreement between Lessor and Lessee and supersedes all previous discussions and terms and
conditions of any purchase orders issued by Lessee, order acknowledgement and other forms issued by
Lessor, and the like. DIR and Lessor acknowledge that there are no agreements or understandings,
written or oral, between them other than as set forth in this MOLA and the Contract and that both
contain the entire agreement between them. The terms and conditions of this MOLA may be amended
only by written instrument executed by Lessor and DIR. The terms of a Schedule may only be
amended in a writing signed by both Lessee and Lessor.
DTR Contract # D1R-SDD-1951 Page 15 of 18 Appendix E, MOLA
Attachment 1 to the Master Operating Lease Agreement
Financial Disclosure Summary
DIR Contract 4 DIR-SDD-1951 Page 16 of 18 Appendix 1;, MOLA
Response
Notes
Lease Rate Factor{s):
Equipment Type A
Equipment Type B
Equipment Type C
How is Daily Rental calculated?
Is Daily Rental invoiced separately
or rolled into monthly rental?
❑ Yes
❑ No
❑ N/A
Is this a Step Lease?
❑ Yes
❑ No
Does this lease include software?
Yes
❑Ye
❑ e
If yes, who owns the software?
El Agency
❑ Lessor
Notes
Personal Property Tax
Response
Estimated PPT
PPT Payment made by
❑ Agency
❑ Lessor on Agency behalf
❑ Agency pays direct
❑ Lessor pays and passes invoice
PPT calculation method
through
❑ Lessor estimates and includes
❑ Lessor sets PPT at disclosed rate
❑ N/A - Agency pays direct
If PPT rate changes, how are charge
backs or short falls handled?
❑ N/A -Lessor pays/passes invoice
through
❑ Lessor is responsible
❑ Lessee is invoiced for short fall
Equipment Schedule Details
_..
Response
Notes
Can Agency make decisions at asset
level (extend, purchase, return)?
❑ Asset level
❑ All and not less than all
Does this ES auto extend?
❑ Yes
❑ No
If Yes, how long?
What is the cost of the Auto
extension?
What is the notice period?
Are negotiated extensions FMV
❑ Yes
DIR Contract 4 DIR-SDD-1951 Page 16 of 18 Appendix 1;, MOLA
based?
❑ No
On FMV, can Agency select own
❑ Yes
evaluator?
❑ No
Is asset and lease information
❑ Yes
available online?
❑ No
End of Lease Details
Response
Notes
Where are the assets returned to?
What is the return freight cost?
Who pays the return freight cost?
❑ Agency
❑ Lessor
Do I need to return original
❑ Yes
packaging?
❑ No
If yes, what is the cost if not returned?
Do I need to return original
❑ Yes
manuals and documentation?
❑ No
If yes, what is the cost if not returned?
❑ Yes
Do I need to return software?
❑ No
If yes, what is the cost if not returned?
❑ Yes
Is there an FMV purchase cost cap?
❑ No
If yes, what is the cost cap percentage?
What is the cost for a lost asset?
What is the cost for missing
equipment?
What is the cost for data
sanitization on assets with
memory?
What is the cost for data
sanitization?
What is the cost for on-site data
destruction?
DIR Contract # DIR-SDD-1951 Page 17 of 18 Appendix E, MOLA
DIR Contract 4 D1R-SDD-1951 Page 18 of 18 Appendix E, MOLA
Exhibit 1 to Appendix D — Services Agreement
to DIR Contract No. DIR-SDD-1951
FORM OF NEW SERVICES TASK ORDER
Task Order No.
Dell Marketing L.P. ("Dell") and ("Customer") hereby enter into
this New Services Task Order No. ("Task Order") under the Master Services Agreement
between such parties, effective as of (the "Agreement"), on the
following terms. Except as otherwise defined herein, all capitalized terms used herein shall have
the same meaning as in the Agreement.
1. Term. This Task Order will commence on (the
"Task Order Effective Date") and will continue until
unless earlier terminated in accordance with the Agreement. Subject to agreement on
rates and services, this Task Order may be extended upon mutual written agreement of
the parties.
[INSERT THE DATE NEW SERVICESARE TO BEGINAND END.]
2. Dell Obligations. Dell will provide the resources described below on a time and
materials basis to work on the activities described below:
[INSERT A DETAILED DESCRIPTION OF THE RESOURCES DELL WILL
PROVIDE AND THE NEW SERVICES SUCHRESOURCES WILL PERFORM.]
3. Proiect Managers.
Customer Project Manager:
Dell Project Manager:
4. CUSTOMER Responsibilities. In addition to its obligations in the Agreement,
CUSTOMER will provide or perform the following to allow Dell to perform its
obligations hereunder:
[INSERT A DETAILED DESCRIPTION OF ALL CUSTOMER OBLIGATIONS
UPON WHICH DELL' PERFORMANCE WILL DEPEND.]
5. Payments. Dell will provide and CUSTOMER will pay for the resources provided
herein on a time and materials basis at the Rates set forth below.
[INSERT THE RATES TO BE PAID BY CUSTOMER FOR NEW SERVICES
UNDER THIS TASK ORDER.]
6. Other Terms.
(INSERT ANY SPECIAL TERMS AND CONDITIONS THAT ARE APPLICABLE
TO THIS TASK ORDER, INCLUDING TERMS FOR NEW SERVICE LEVELS, IF
ANY 4
AGREED:
CUSTOMER DELL MARKETING L.P.
By: By:
Name: Name:
Date: Date:
Appendix D Services Agreement to DIR-SDD-1951
DELL SERVICES AGREEMENT
This Services Agreement ("Agreement") is made between Dell Marketing L.P. with offices located at One Dell
Way, Round Rock, Texas 78682 ("Dell") and with offices located at
("Customer"), as of (the "Effective Date") pursuant to DIR Contract with Dell, DIR-SDD-1951. In
order to procure services of a type that Dell offers pursuant to Section 2 (Scope) of the State of Texas Department of
Information Resources ("DIR") Contract No. DIR-SDD-1951 ("DIR Contract"), Customer agrees to the following:
ARTICLE I
GLOSSARY, SCHEDULES AND STATEMENTS OF WORK
1.1 Defined Terms
Wherever used in this Agreement, unless there is something in the subject matter or context inconsistent therewith,
capitalized words and phrases shall have the respective meanings ascribed to them in Schedule 1 (Glossary).
1.2 Schedules
The following schedules are annexed hereto and form part of this Agreement ("Schedules"):
Schedule 1 -
Glossary
Schedule 2 -
Statement of Work (Service Descriptions and Service Levels)
Schedule 3 -
Fee Schedule/Early Termination Fees
Schedule 4 -
Change Management
Schedule 5 -
DIR Contract
1.3 Order of Precedence
In the event of a conflict or inconsistency, the following is the order of precedence of documents comprising this
Agreement: (1) the Statement of Work; and (2) the Schedules annexed to this Agreement; In the event of a conflict
between DIR Contract DIR-SDD-1951 and this document, the DIR Contract controls.
1.4 Parties
DIR shall not be a party to this Agreement or any Statement of Work executed between Dell and Customer, except
to offer such Services through the DIR Contract. Compliance with this Agreement and a Statement of Work is the
responsibility of the Customer. DIR shall not be responsible for any Customer's compliance as it pertains to this
Agreement or a Statement of Work. If DIR procures Services for its own use under the DIR Contract, it shall be
responsible for its own negotiation of and compliance with this Agreement and any applicable Statements of Work.
ARTICLE 2
SERVICES
2.1 Scope of Services
Dell shall perform the Services described in the Statement of Work in accordance with the terms and conditions of
this Agreement.
2.2 Transition Plan
If applicable and set forth in a Statement of Work, Dell will prepare a transition plan that will provide for the orderly
transition of the performance of the Services from Customer or its current service provider to Dell ("Transition
Plan") over a period of ninety (90) days from the Effective Date or the period specified in the Statement of Work
("Transition Period"). Customer shall have its Representatives, including any current service provider, cooperate
DMSA Rev 03
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with Dell and assist Dell in the preparation and implementation of the Transition Plan. The Transition Plan will be
subject to review and approval of Customer, which will not be unreasonably withheld.
2.3 Adjustment
If the assumptions used to develop the Statement of Work are found to be incorrect, the Parties agree to meet and
negotiate, in good faith, equitable changes to the Statement of Work and/or Fee Schedule, as appropriate.
ARTICLE 3
CUSTOMER RESPONSIBILITIES
3.1 Access and Cooperation
Customer shall perform all of the tasks and obligations of Customer set out in the Statements of Work. Customer
shall provide reasonable assistance, cooperation, timely decisions and support in connection with the provision of
the Services by Dell. Customer shall provide Dell with access to and use of information, data, and internal resources
as reasonably necessary to deliver the Services. Customer represents that all information and data supplied to Dell
under this Agreement is current, complete and accurate.
3.2 Customer Assets
Customer shall provide timely access to and use of the Customer Assets during the applicable service hours
designated in the Statements of Work, to enable Dell to perform the Services. Customer shall provide secure access
to adequate work space, supplies, facilities, telephones, power, and lighting, at no charge. The work space must be
within reasonable proximity to where Services are to be performed. Dell may not use Customer Assets for any
purpose other than the provision of Services under this Agreement without the prior written consent of Customer.
Customer will ensure that, in the course of accessing or using Customer Assets, Dell shall not be exposed to any
materials or conditions which are classified or identified as hazardous, toxic, or unsafe under applicable law.
3.3 Required Consents
Customer shall be responsible for obtaining all consents, approvals, and licenses required by Customer's suppliers,
licensors, lessors, government regulators and other third parties which are necessary to support or permit the
provision of Services under this Agreement, at no cost to Dell ("Required Consents"). In the event that one or
more Required Consents cannot be obtained by Customer, the Parties shall cooperate with each other and take
reasonable steps to resolve the matter, provided however that Dell shall not be liable for failure to provide Services
or to achieve Service Levels under this Agreement to the extent such failure is caused by result of Customer's failure
or inability to obtain any such Required Consents. Dell shall execute such non -disclosure agreements as the
applicable suppliers, owners, licensors or lessors may reasonably request as a condition of providing Required
Consents.
3.4 Replenishment and Refreshment of Customer Assets
Customer shall carryout upgrades of Customer Assets during the term of this Agreement on a reasonable schedule.
3.5 Non-performance by Customer
Dell shall not be responsible for a failure to provide Services or to achieve Service Levels, if any, (to the extent
caused by: (1) any omissions, oversights, errors, failures by Customer to perform its responsibilities under this
Agreement; (2) problems caused by Customer Software or data; (3) a defect or deficiency with respect to Customer
Assets; (4) hardware failures for hardware not maintained by Dell; or (5) modifications to hardware by a party other
Dell or its representatives. Dell shall notify customer and await Customer agreement to have Dell perform
notwithstanding the occurrence of one or more of the foregoing events, with Customer reimbursing Dell for its
additional out of pocket expenses for such efforts.
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ARTICLE 4
RELATIONSHIP MANAGEMENT AND GOVERNANCE
4.1 Relationship Management
If applicable and set forth in a Statement of Work, the Parties shall each appoint a representative with appropriate
authority to serve as the primary point of contact between the Parties ("Program Executive"). Dell will be entitled
to rely on the routine instructions, authorizations, approvals or other information provided by Customer's Program
Executive or by any other Customer personnel identified by Customer's Program Executive as having authority to
provide the same on behalf of Customer. The Program Executives shall meet as often as either Party may
reasonably request. Each Party shall use reasonable efforts to maintain the continuity of its Program Executive.
4.2 Internal Dispute Resolution and Escalation Process
In the event there is a dispute that cannot be resolved by the Parties, either Party may request in writing that their
Program Executives meet within fifteen (15) days to resolve the dispute. If the dispute has not been resolved to the
mutual satisfaction of both Parties within fifteen (15) days of the meeting, then the dispute shall be referred to a
senior executive at each Party who will meet to resolve the dispute. If the dispute has not been resolved by the
representatives within fifteen (15) days of the referral or if the Parties fail to meet, the more formal dispute
resolution process outlined in the DIR Contract Appendix A Section l0A shall begin.
ARTICLE 5
CHARGES
5.1 Terms of Purchases and Charges
5.1.1. Requests for Service; Quotes and Orders.
All orders for Services must specify Dell's quotation (if any), and reference the Service(s) requested and
invoice address. All orders are subject to acceptance by Dell and if not sku'd services, will have a
Statement of Work.
5.2 Prices.
The prices charged for Services purchased under this Services Agreement shall be in accordance with
Appendix C, Pricing Index, of DIR Contract No. DIR-SDD-1951, and either as set forth in an accepted order
form or in a mutually agreed Statement of Work under this Agreement, if applicable.
5.3 If the Services are being performed on a time and materials basis, any estimates provided by Dell are for
planning purposes only. Customer shall pay Dell the charges specified in the applicable Fee Schedule
and/or in the applicable Statement of Work (the "Charges"). Customer will reimburse Dell for all
reasonable out-of-pocket expenses incurred by Dell, with the prior approval of Customer, in the
performance of the Services. Section 4, Pricing, of the DIR Contract is incorporated herein by reference.
5.4 Invoices
Unless specified otherwise in the Statement of Work, Dell will invoice Customer monthly for all amounts payable
hereunder. All invoices shall be due and payable according to the DIR Contract Appendix A Section 5, Purchase
Orders, Invoices and Payments.
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ARTICLE 6
HARDWARE AND SOFTWARE
6.1 Software
To the extent Dell is required or needs to use any software owned or licensed by Customer to perform the Services
("Customer Software"), Customer grants Dell a non-exclusive, worldwide, royalty free license to use Customer
Software during the term of this Agreement solely for the purpose of providing the Services. In the event that
Customer Software includes any third party software, Customer shall ensure that Dell has the right to use, access
and execute such software as necessary to perform the Services. To the extent any Dell Assets include software,
Dell shall ensure that Customer has the right to use, access and execute such software as necessary during the term
of this Agreement.
6.2 Hardware
Dell will perform Services using Customer Hardware and/or Dell Assets as specified in the Statement of Work.
Title to Customer Hardware will be retained by Customer and title to Dell Assets will be retained by Dell. Dell may
upgrade, replace or move Dell Assets as it deems appropriate so long as Dell does not seek to change or revise the
Service Levels.
6.3 Addition of Equipment
In the event that additional equipment needs to be added to the original equipment base, Customer and Dell shall
agree to the time period equipment is to be obtained for, and costs for provisions of the equipment and any
additional services. The Statement of Work shall be amended to list the additional equipment or services and reflect
the new amounts incurred by the equipment or service addition, or a new Statement of Work shall be executed.
6.4 Loss/Damage of Equipment
Customer shall be responsible for Dell Assets provided under the Statement of Work while in Customer's
possession, and shall promptly pay Dell for any and all Losses other than those due to the negligence of Dell, or due
to normal wear and tear. Customer shall be responsible for Dell Asset location reconciliation annually. In the event
of theft, loss or damage beyond repair of Dell Assets while in possession of Customer, Customer shall promptly pay
Dell the fair market residual value determined by taking into consideration historical market pricing and forecasted
future pricing) of the Dell Assets as of the time just prior to the theft, loss or damage. Dell shall provide, as a
replacement, Dell Assets of comparable or greater performance and configuration at a cost as mutually agreed.
Customer shall continue to pay the Charges at the same level and duration as for the original Dell Assets unless
otherwise mutually agreed.
ARTICLE 7
CONFIDENTIALITY
7.1 Confidentiality
To the extent consistent with the Texas Public Information Act, the Parties understand and agree that confidential
information is any and all current and future product and/or Services information, reports, roadmap, technical or
financial information, customer names, addresses and related data, contracts, practices, procedures and other
business information, including software reports, strategies, plans, documents, drawings, machines, tools, models,
patent disclosures, samples, materials and requests for proposals that may be disclosed between the Parties, whether
written, oral, electronic or otherwise, however and wherever acquired ("Confidential Information"). Confidential
Information excludes any information which would otherwise fall in the definitions above, but which was (a) known
to the recipient of the information ("Recipient") before receipt from the disclosing Party; (b) publicly available
through no fault of Recipient; (c) rightly received by Recipient from a third party without a duty of confidentiality;
(d) disclosed by disclosing Party to a third party without a duty of confidentiality on the third party; (e)
independently developed by Recipient without breach of this or any other confidentiality agreement; (f) disclosed by
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Recipient after prior written approval from the disclosing Party; or (g) disclosed in accordance with the Texas Public
Information Act or other legal requirement, including but not limited to subpoena, audit, or legislative or regulatory
request. Notwithstanding the forgoing, if the Recipient is required by the Texas Public Information Act or other
legal requirement, including but not limited to subpoena or audit, (but not including legislative or regulatory request)
to produce Confidential Information of the disclosing Party, Recipient shall, unless prohibited by law, give the
disclosing Party prompt notice of such required disclosure to afford the disclosing Party an opportunity to seek a
protective order or other appropriate remedy.
Recipient agrees to protect the disclosing Party's Confidential Information with the same degree of care, but no less
than a reasonable degree of care, as Recipient uses with respect to its own Confidential Information. Neither Party
has any obligation to exchange Confidential Information.
If Customer believes any Confidential Information is required to be disclosed pursuant to the Texas Public
Information Act, prior to release of such Confidential Information Customer shall notify Dell and allow Dell a
reasonable opportunity to provide written comments regarding whether Dell believes any of the Confidential
Information is subject to an exception under the Texas Public Information Act.
ARTICLE 8
SERVICE LEVELS
8.1 Failure to Achieve Service Levels
Dell will perform the Services in accordance with the Service Levels, if any, listed on the applicable Statement of
Work. If Dell fails to achieve any Service Levels due to its fault, it shall promptly investigate the cause of such
failure and take commercially reasonable steps to prevent such failure from recurring. For the avoidance of doubt, if
Dell does not perform the Services in accordance with a particular Service Level on more than one occasion, the fact
that Dell took commercially reasonable steps to prevent such failure from recurring will not preclude the application
of Service Credits, if any, otherwise required under the Statement of Work or other remedies recoverable by
Customer under this Agreement.
8.2 Service Level Reporting
Dell shall deliver to Customer the Service Level reports described in the Statements of Work in respect of the
achievement of Service Levels on the frequency specified in the applicable Statement of Work.
8.3 Establishment of Service Levels
If set forth in a Statement of Work, during the Transition Period, Dell will analyze the level of performance of
Customer's information technology operations, information provided by Customer, and validate any assumptions
contained in the Statement of Work. The Service Levels contained in the Statement of Work will become effective
at the end of the Transition Period as long as the foregoing analysis does not reveal a material discrepancy with
respect to level of performance of Customer's information technology operations, information provided by
Customer, or assumptions contained in the Statement of Work. If a material discrepancy is found Dell will provide
its recommendations to Customer and the Parties will negotiate revised Service Levels. The revised Services Levels
will become part of the Statement of Work when approved in writing by both Parties.
8.4 Service Level Planning
Dell and Customer shall meet at least once every year to: (i) formally review the adequacy, appropriateness, and
achievement of Service Levels; and (ii) mutually agree on any adjustments to Service Levels, if any, contained in
the Statement of Work. All changes to Service Levels shall be managed as part of the Change Management
Procedure.
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ARTICLE 9
TERM AND TERMINATION
9.1 Term
The term of this Agreement shall be the same as in Section 2 of DIR Contract DIR-SDD-1951. The term of each
Statement of Work shall be stated therein. All applicable Statements of Work that are entered into between Dell and
a Customer under the terms of the DIR Contract DIR-SDD-1951 when it remains in effect, shall survive the
expiration or termination of DIR-SDD-1951.
9.2 Termination
Termination of this Agreement, or all or part of the particular Statement of Work, shall be governed by Section 8.B.,
Termination, of Appendix A of DIR Contract DIR-SDD-1951. Unless otherwise agreed, the Parties will agree to a
mutually agreeable termination fee schedule for each Statement of Work. Except for Termination for Non -
Appropriation, in the event of an early termination of a Statement of Work, such early termination fees shall apply.
If the Charges for the Services under a Statement of Work are prepaid by Customer, the Parties will agree to a
repayment schedule for unexpended fees.
9.3 Wind Down
For managed services and as set forth in the Statement of Work, in the event of the termination or expiration of this
Agreement or any Statement of Work, the Parties shall work together in a cooperative manner to carry out an
orderly termination and Wind Down Services from Dell to Customer or to a third party service provider in
accordance with this Section.
(a) Dell will, upon Customer's request, use reasonable efforts to perform the Wind Down Services
during a one hundred eighty (180) day period after notice of termination ("Wind Down Period").
Dell shall continue to provide the Services during the Wind Down Period and the Charges under
this Agreement shall continue to apply during this time period. Where reasonable, Dell shall
carry out such Wind Down Services by reallocating the resources which were previously allocated
to providing Services to Customer, provided that Customer shall pay Dell's standard rates and
associated expenses for any additional resources needed to provide Wind Down Service or for
additional services requested by Customer.
(b) Customer's right to purchase any Dell Assets exclusively used to provide Services under this
Agreement shall be specified in the applicable Statement of Work.
(c) Dell's performance of Wind Down Services is subject to: (i) Customer's prior payment of all
amounts owed to Dell as of the start of such Services; and (ii) Customer's return of any Dell
owned hardware, software or other property in Customer's possession, except that which is being
purchased pursuant to Section 9.3(b) .
ARTICLE 10
REPRESENTATIONS, WARRANTIES AND COVENANTS
10.1 Dell Representations and Warranties.
Dell represents and warrants that: (i) it has full power and authority to execute and deliver this Agreement; (ii) it is
authorized to perform its obligations hereunder; and (iii) the Services will be performed in a good and workmanlike
manner, using trained personnel in accordance with standard industry practices.
10.2 Customer Representations and Warranties
Customer represents and warrants that: (i) it has full power and authority to execute and deliver this Agreement; and
(ii) it is authorized to perform its obligations hereunder.
10.3 Disclaimer
EXCEPT AS SPECIFICALLY STATED IN THIS ARTICLE 11, THERE ARE NO REPRESENTATIONS,
WARRANTIES, OR CONDITIONS, EXPRESS OR IMPLIED, REGARDING ANY MATTER IN
CONNECTION WITH THIS AGREEMENT, INCLUDING THE MERCHANTABILITY, FITNESS FOR A
PARTICULAR USE OR PURPOSE, OR RESULTS TO BE DERIVED FROM THE USE OF ANY SERVICE,
HARDWARE, SOFTWARE, SYSTEM OR OTHER ITEMS PROVIDED UNDER OR IN CONNECTION WITH
THIS AGREEMENT OR THAT ANY SERVICE, HARDWARE, SOFTWARE, SYSTEM OR ITEMS WILL BE
FREE FROM DEFECTS, OR WILL BE UNINTERRUPTED OR ERROR FREE.
ARTICLE 11
GENERAL
11.1 Interpretation
In this Agreement:
(a) Headings - Headings of Articles and Sections are inserted for convenience of reference only and,
shall not affect the construction or interpretation of this Agreement. The words "hereof',
"hereunder", "hereto" and similar expressions refer to this Agreement and not to any particular
Article, Section or other portion of this Agreement. References to specific Articles, Sections or
Paragraphs, unless otherwise specified, are intended to be references to Articles, Sections and
Paragraphs of this Agreement.
(b) No Strict Construction - The Parties acknowledge and agree that they have mutually negotiated
the terms and conditions of this Agreement and that any provision contained herein with respect to
which an issue of interpretation or construction arises will not be construed to the detriment of the
drafter on the basis that such Party was the drafter, but will be construed according to the intent of
the Parties as evidenced by the entire Agreement.
11.2 Consents
Where either Party has a right of consent or approval in respect of any matter in connection with this Agreement, it
shall not unreasonably withhold such consent or approval and shall respond to the other Party's request for such
consent or approval in a timely manner. Where this Agreement provides that the Parties are to mutually agree upon
certain procedures, standards or details, they shall at all times act reasonably, cooperatively, and in good faith.
11.3 Residual Knowledge
Nothing herein shall prevent either Party or its Affiliates from using the techniques, ideas, and other know-how
gained during the performance of this Agreement in the furtherance of its business, to the extent that this does not
result in disclosure of Confidential Information or unauthorized use of any Intellectual Property Right of the other
Party. Customer acknowledges that information, software, and documentation created by Dell in the course of
delivering the Services which relate to Dell's internal processes and procedures may be used by Dell and its
Affiliates to facilitate delivery of services to other customers.
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11.4 Business Continuity
Dell has no responsibility for business continuity planning or for disaster recovery of Customer's computing
environment, except as may otherwise be expressly agreed to by Dell either in a Statement of Work, or as may be
otherwise expressly provided in some other written agreement as may be entered into by the Parties.
11.5 Waiver
Neither Party's failure to exercise any of its rights under this Agreement shall constitute or be deemed to constitute a
waiver or forfeiture of such rights.
11.6 Further Assurances
The Parties agree to cooperate with and assist each other and take such action as may be reasonably necessary to
implement and carry into effect this Agreement to its full intent.
11.8 Survival.
Any provision of this Agreement which contemplates performance or observance subsequent to termination or
expiration of this Agreement shall survive termination or expiration of this Agreement and continue in full force and
effect.
SCHEDULE 1
GLOSSARY
Wherever used in this Agreement, unless there is something in the subject matter or context inconsistent therewith,
the following words and terms shall have the respective meanings ascribed to them below:
"Affiliate" means, with respect to any person, any person controlling, controlled by or under common
Control with such other person.
"Agreement" means this Agreement entitled "Dell Managed Services Agreement" and all Schedules and
Statements of Work annexed hereto or in amendment or confirmation hereof.
"Change" means any material addition, upgrade, update, reduction, deletion, modification, improvement,
amendment or adjustment to the Services which has a material adverse impact on a Party including, in the
case of Dell, a change in the scope of Services.
"Change Proposal" is defined in Article 1(c) of Schedule 4.
"Change Request" is defined in Article 1(a) of Schedule 4.
"Change Request Procedure" is the process defined in Schedule 4.
"Charges" is defined in Article 5.3 of the Agreement.
"Control" and its derivatives mean, with regard to any entity, the legal or beneficial ownership, directly or
indirectly, of fifty percent (50%) or more of the shares (or other ownership interest, if not a corporation) of
such entity ordinarily having voting rights.
"Customer Assets" means the Customer Facilities, Customer Hardware, and Customer Software.
"Customer Facilities" means the equipment, furniture, office space, office services, secure storage space,
staging areas, facilities or other assets owned, licensed or leased by Customer or its Affiliates to be made
available for use by Dell.
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"Customer Hardware" means any existing Customer owned hardware and any future hardware purchased
by Customer outside the DIR Contract.
"Customer Software" means any existing Customer owned software and any future software purchased
by Customer outside the DIR Contract.
"Dell Assets" means any PC products (desktops/workstations, notebooks/portables, servers, storage area
networks, networking, software, peripherals and associated components/accessories) provided by Dell for
use by Customer under this Agreement as an integral component of the Services provided by Dell. All
products to be provided under the Services shall be specified within the Statement of Work.
"Effective Date" means Effective Date indicated on the first page of this Agreement.
"Intellectual Property Rights" means all copyright, trade -mark, patent, industrial design or trade secret
and all other intellectual property rights.
"Losses" means all losses, liabilities, fines, damages and claims (including third party claims) and all
related costs and expenses (including any and all reasonable attorneys' and other professionals' fees and
reasonable costs of investigation, litigation, settlement, judgment, interest and penalties).
"Program Executive" is defined in Article 4.1 of the Agreement.
"Parties" means Customer and Dell,. and "Party" means any one of them.
"Representatives" means with respect to either Party, each of its shareholders, directors, officers,
employees, agents, professional advisors (including attorneys, accountants, consultants and financial
advisers), its Affiliates, and the shareholders, directors, officers, employees, agents, representatives and
professional advisors (including attorneys, accountants, consultants and financial advisers) of each of its
Affiliates.
"Required Consents" is defined in Article 3.3 of the Agreement.
"Schedules" are defined in Article 1.2 of the Agreement.
"Service Levels" means the performance measures set forth in the Statement of Work, if any, that provide
a representative measure of the quality of the Services being delivered under the Agreement.
"Services" means all of the services and tasks to be performed or provided by Dell pursuant to this
Agreement.
"Transition Plan" is defined in Article 2.2 of the Agreement.
"Transition Period" is defined in Article 2.2 of the Agreement.
"Wind Down Services" are defined as Dell's provision of the following: (1) return of all Customer data;
(2) return or destroy all appropriately identified confidential information, (3) provide a list of all events
being monitored and their status; (4) provide access to Dell managed facilities to remove Customer owned
hardware; and (5) facilitate the relocation of Customer Software to a new Customer or vendor location.
"Wind Down Period" is defined in Article 9.3(a) of the Agreement.
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SCHEDULE2
STATEMENT OF WORK
This Statement of Work shall state, at a minimum, product list (including ownership of each product), the term and
renewal options, invoicing, service level requirements, Customer and Dell responsibilities and scope and nature of
the Services to be performed.
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SCHEDULE3
FEE SCHEDULE/EARLY TERMINATION FEES
Early Termination Fees shall be as follows:
Full termination of a Statement of Work
Partial termination of a Statement of Work
SCHEDULE 4
CHANGE MANAGEMENT
Change Requests By Customer
(a) Customer may request a Change, including a new or out of scope service, at any time by completing and
delivering to Dell a change request in the form agreed by the Parties (a "Change Request").
(b) Each Change Request will be submitted to Dell's Program Executive and will contain all information
reasonably necessary for Dell to evaluate the Change Request. Customer will make such further
information available to Dell as Dell may reasonably request to enable proper evaluation of the Change
Request.
(c) Dell will respond to a Change Request in a timely manner by delivering to Customer a change proposal (a
"Change Proposal"). Each Change Proposal will include the information reasonably necessary for
Customer to evaluate the Change Proposal, including the proposed Charges associated therewith and
changes to Service Levels.
(d) Within fifteen (15) days from receipt of the Change Proposal or as indicated in the Change Proposal from
Dell (or such other longer period as the Parties may agree), Customer will:
(i) seek further clarification as it deems necessary;
approve the Change Proposal by signing and returning the Change Proposal to Dell;
propose modifications and/or suggest improvements to any aspect of the Change
Proposal by notifying Dell in writing; or
(iv) reject the Change Proposal by notifying Dell in writing.
(e) If Customer proposes modifications or improvements to the Change Proposal, unless the Parties agree
otherwise, Dell will submit a revised Change Proposal. If Customer rejects the Change Proposal or does not
respond by the validity date indicated on the Change Request, then the Parties will treat the Change
Proposal, and the Change Request that precipitated it, as withdrawn.
2. Change Proposals by Dell
(a) Where Dell desires to implement a Change, it shall prepare a Change Proposal which will include the
information necessary for Customer to evaluate the Change Proposal. Each such Change Proposal will be
submitted to Customer Program Executive. Dell will make such further information available to Customer
as Customer may reasonably request to enable proper evaluation of the Change Proposal.
(b) Nothing therein shall be deemed to require Customer to accept a Change Proposal initiated by Dell
provided that Customer shall Dell shall give due consideration to all such Change Proposals and shall not
unreasonably reject any such Change Proposal.
(c) Customer acknowledges and agree that Dell shall be entitled to receive additional Charges according to its
then current standard rates for its additional work and effort in performing services which are outside the
scope of the Services including services required as a result of the assumptions in the Statements of Work
ceasing to be valid or Customer failing to perform its obligations under the Agreement. Where reasonable
to do so Dell shall notify Customer before incurring such additional Charges.
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SCHEDULES
DIR Contract No. DIR-SDD-1951 is incorporated herein by reference.
Appendix F
MASTER LEASE AGREEMENT
1. Scope.
Lessor hereby leases to Lessee, and Lessee hereby leases from Lessor the Equipment described on each
Supplementary Schedule ("Schedule"), which is a separate agreement executed from time to time by
Lessor and Lessee and makes specific reference to this Master Lease Agreement ("MLA"). The terms and
conditions contained herein shall apply to each Schedule that is properly executed in conjunction with this
MLA and made subject to such terms and conditions as if a separate MLA were executed for each
Schedule by the Lessee. Each Lessee has made an independent legal and management determination to
enter into each Schedule. DIR has not offered or given any legal or management advice to the Lessor or
to any Lessee under any Schedule. Lessee may negotiate additional terms or more advantageous terms
with the Lessor to satisfy individual procurements, such terms shall be developed by the Lessor and
Lessee and stated within a Rider to the MLA or the Schedule. To the extent that any of the provisions of
the MLA conflict with any of the terms contained in any Schedule, the terms of the Schedule shall control.
It is expressly understood that the term "Equipment" shall refer to the Products and any related Services as
allowed within said Contract number DIR-SDD-1951, as described on a Schedule and any associated
items therewith, including but not limited to all parts, replacements, additions, repairs, and attachments
incorporated therein and/or affixed thereto, all documentation (technical and/or user manuals), operating
system and application software as needed.
If more than one Lessee is named in a Schedule, the liability of each named Lessee shall be joint and
several. However, unless DIR leases Equipment for its own use, DIR is not a party to any Schedule
executed under this MLA and is not responsible for Rents, payments or any other obligations under such
Lessee's Schedule. The invalidation, fulfillment, waiver, termination, or other disposition of any rights or
obligations of either a Lessee or the Lessor or both of them arising from the use of this MLA in
conjunction with any one Schedule shall not affect the status of the rights or obligations of either or both
of those parties arising from the use of this MLA in conjunction with any other Schedule, except in the
Event of Default as provided in Section 23 of this MLA.
Any reference to "MLA" shall mean this Agreement, including the Opinion of Counsel, and any riders,
amendments and addenda thereto, and any other documents as may from time to time be made a part
hereof upon mutual agreement by DIR and Lessor.
As to conditions precedent to Lessor's obligation to purchase any Equipment, (i) Lessee shall accept the
MLA terms and conditions as set forth herein and execute all applicable documents such as the Schedule,
the Acceptance Certificate, Opinion of Counsel, and any other documentation as may be required by the
Lessor that is not in conflict with this MLA, and (ii) there shall be no material adverse change in Lessee's
financial condition except as provided for within Section 7 of this MLA.
2. Term of MLA.
The term of this MLA shall commence on the last date of approval by DIR and Lessor and shall continue
until (i) the obligations of Lessee under every Schedule are fully discharged, (ii) the full and final
DIR Contract # DIR-SDD-1951 Page I of 20 Appendix F
expiration date of the Contract, or (iii) either party exercises their termination rights as stated within
Appendix A, Section 1013 of the Contract. In regards to either the Contract expiration date or Contract
termination date or the termination of this MLA, before all obligations of Lessee under every Schedule are
fully discharged, such Schedules and such other provisions of the Contract and this MLA as may be
necessary to preserve the rights of the Lessor or Lessee hereunder shall survive said termination or
expiration.
3. Term of Schedule.
The term for each Schedule, executed in conjunction to this MLA, shall commence on the date of
execution of an Acceptance Certificate by the Lessee or twenty (20) days after the delivery of the last
piece of Equipment to the Lessee ("Commencement Date"), and unless earlier terminated as provided for
in the MLA, shall continue for the number of whole months or other payment periods as set forth in the
applicable Schedule Term, commencing on the first day of the month following the Commencement Date
(or commencing on the Commencement Date if such date is the first day of the month). The Schedule
Term may be earlier terminated upon: (i) the Non -appropriation of Funds pursuant to Section 7 of this
MLA, (ii) an Event of Loss pursuant to Section 18 of this MLA, or (iii) an Event of Default by Lessee and
Lessor's election to cancel the Schedule pursuant to Section 24 of this MLA.
4. Administration of MLA.
(a) For requests involving the leasing of Equipment, each potential Lessee will submit its request
directly to the Lessor. Lessor shall apply the then current Equipment pricing discounts as stated
within Section 4 of the Contract or the price as agreed upon by Lessee and Lessor, whichever is
lower. Lessor shall submit the lease proposal and all other applicable documents directly to the
potential Lessee and negotiate the Schedule terms directly with the potential Lessee.
(b) All leasing activities in conjunction to this MLA shall be treated as a "purchase sale" in regards to
the requirements of the Lessor to report the sale and make payment of the DIR administrative fee as
defined within Section 5 of the Contract.
(c) Upon agreement by Lessor and Lessee on pricing, availability and the like, Lessee may issue a
purchase order in the amount indicated on the Schedule to Lessor for the Equipment and reference
said Contract number DIR-SDD-1951 on the purchase order. Any pre-printed terms and conditions
on the purchase order submitted by the Lessee shall not be effective with respect to the lease of
Equipment hereunder. Rather, the terms and conditions of this MLA and applicable Schedule terms
and conditions shall control in all respects.
(d) Nothing herein shall require the Lessor to use this MLA exclusively with Lessees. Further, this MLA
shall not constitute a requirements Agreement and Lessor shall not be obligated to enter into any
Schedule for the lease of Equipment with any Lessee.
5. Rent Payments.
During the Schedule Term and any renewal terms, Lessee agrees to pay Lessor Rent Payments. Rent
Payments shall be the amount equal to the Rent Payment amount specified in the Schedule multiplied by
DIR Contract # DIR-SDD-1951 Page 2 of 20 Appendix F
the amount of the total number of Rent Payments specified therein. Lessee shall pay Rent Payments in the
amount and on the due dates specified by Lessor until all Rent Payments and all other amounts due under
the Schedule have been paid in full. If the Schedule Commencement Date is other than the first day of a
month, Lessee shall make an initial payment on the Schedule Commencement Date in an amount equal to
one -thirtieth of the Rent Payment specified in the Schedule for each day from the Schedule
Commencement Date (including the Schedule Commencement Date) through the last day of such month
(including that day). For example, if a scheduled payment amount is $3,000 and the Scheduled
Commencement date is the 15th of the month, a payment of $1,500 will be made.
Any amounts received by Lessor from the Lessee in excess of Rent Payments and any other sums required
to be paid by the Lessee shall be held as non-interest bearing security for Lessee's faithful performance
under the conditions of this MLA and any Schedule. All Rent Payments shall be paid to the Lessor at the
address stated on the Schedule or any other such place as the Lessor or its assigns may hereafter direct to
the Lessee. Lessee shall abide by Appendix A, Section 7C of the Contract in making payments to the
Lessor. Any sum received by the Lessor later than ten (10) business days after its due date will bear
interest from such due date at the rate of one -percent (1%) per month (or the maximum rate allowable by
law, if less) until paid. Late charges, attorney's fees and other costs or expenses necessary to recover Rent
Payments and any other amounts owed by Lessee hereunder are considered an integral part of this MLA.
Each Schedule is a net lease and except as specifically provided herein, Lessee shall be responsible for all
costs and expenses arising in connection with the Schedule or Equipment. Lessee acknowledges and
agrees, except as specifically provided for in Section 7 of this MLA, that its obligation to pay Rent and
other sums payable hereunder, and the rights of Lessor and Lessor's assignees, shall be absolute and
unconditional in all events, and shall not be abated, reduced or subject to offset or diminished as a result
of any event, including without limitation damage, destruction, defect, malfunction, loss of use, or
obsolescence of the Equipment, or any other event, defense, counterclaim or recoupment due or alleged to
be due by reason of any past, present or future claims Lessee may have against Lessor, Lessor's assigns,
the manufacturer, vendor, or maintainer of the Equipment, or any person for any reason whatsoever.
"Price" shall mean the actual purchase price of the Equipment. Rent Payments shall be adjusted
proportionately downward if the actual price of the Equipment is less than the estimate (original proposal),
and the Lessee herein authorizes Lessor to adjust the Rent Payments downward in the event of the
decrease in the actual Equipment price. However, in the event that the Equipment price is more than the
estimate (original proposal), the Lessor may not adjust the Rent Payment without prior written approval of
the Lessee.
6. Liens and Taxes.
Lessee shall keep the Equipment free and clear of all levies, liens and encumbrances, except those in favor
of Lessor or its assigns, and shall give Lessor immediate notice of any attachment or other judicial process
affecting any item of Equipment. Unless Lessee first provides proof of exemption therefrom, Lessee shall
promptly reimburse Lessor, upon receipt of an accurate invoice, as an additional sum payable under this
MLA, or shall pay directly if so requested by Lessor, all license and registration fees, sales, use, personal
property taxes and all other taxes and charges imposed by any federal, state, or local governmental or
taxing authority, from which the Lessee is not exempt, whether assessed against Lessee or Lessor, relating
to the purchase, ownership, leasing, or use of the Equipment or the Rent Payments, excluding all taxes
DIR Contract # DIR-SDD-1951 Page 3 of 20 Appendix F
computed upon the net income of Lessor. Any tax statement received by the Lessor, for taxes payable by
the Lessee, shall be promptly forwarded by the Lessor to the Lessee for payment.
7. Appropriation of Funds.
(a) This paragraph applies only to Lessees designated as state agencies defined in Section 2054.003,
Texas Government Code, including institutions of higher education as defined in Texas Education
Code, Section 61.003 and those state agencies utilizing a DIR contract through an Interagency
Agreement, as authorized by Chapter 771, Texas Government Code.
Lessee intends to continue each Schedule to which it is a party for the Schedule Term and to pay the
Rent and other amounts due thereunder. Lessee reasonably believes that legally available funds in an
amount sufficient to pay all Rent during the Schedule Term can be obtained. Lessee further intends
to act in good faith to do those things reasonably and lawfully within its power to obtain and maintain
funds from which the Rent may be paid. Notwithstanding the foregoing, in the event sufficient funds
are not appropriated to continue the Schedule Term for any Fiscal Period (as set forth on the
Schedule) of Lessee beyond the Fiscal Period first in effect at the Commencement of the Schedule
Term, Lessee may terminate the Schedule with regard to not less than all of the Equipment on the
Schedule so affected. Lessee shall endeavor to provide Lessor written notice sixty (60) days prior to
the end of its current Fiscal Period confirming the Schedule will be so terminated. All obligations of
Lessee to pay Rent due after the end of the Fiscal Period for which such termination applies will
cease, all interests of Lessee in the Equipment will terminate and Lessee shall surrender the
Equipment in accordance with Section 13 of this MLA. Notwithstanding the foregoing, Lessee
agrees, without creating a pledge, lien or encumbrance upon funds available to Lessee in other than
its current Fiscal Period, that it will use reasonable efforts to obtain appropriation of funds to avoid
termination of the Schedule by taking reasonable and appropriate action including the inclusion in
Lessee's budget request for each Fiscal Period during the Schedule Term hereof a request for
adequate funds to meet its obligations and to continue the Schedule in force. Lessee represents and
warrants it has adequate funds to meet its obligations during the first Fiscal Period of the Schedule
Term. Lessor and Lessee understand and intend that the obligation of Lessee to pay Rent hereunder
shall constitute a current expense of Lessee and shall not in any way be construed to be a debt of
Lessee in contravention of any applicable constitutional or statutory limitation or requirement
concerning the creation of indebtedness by Lessee, nor shall anything contained herein constitute a
pledge of the general revenues, funds or monies of Lessee or the State of Texas beyond the Fiscal
Period for which sufficient funds have been appropriated to pay Rent hereunder.
(b) This paragraph applies only to Lessees designated as local government entities.
Lessee intends to continue each Schedule to which it is a party for the Schedule Term and to pay the
Rent and other amounts due thereunder. Lessee reasonably believes that legally available funds in an
amount sufficient to pay all Rent during the Schedule Term can be obtained. Lessee further intends
to act in good faith to do those things reasonably and lawfully within its power to obtain and maintain
funds from which the Rent may be paid. Notwithstanding the foregoing, in the event sufficient funds
are not appropriated for Lessee to continue the Schedule Term for any Fiscal Period (as set forth on
the Schedule) of the Lessee beyond the Fiscal Period first in effect at the commencement of the
Schedule Term, the Lessee may terminate the Schedule with regard to not less than all of the
DIR Contract # DIR-SDD-1951 Page 4 of 20 Appendix F
Equipment on the Schedule so affected. Lessee shall endeavor to provide Lessor written notice sixty
(60) days prior to the end of its current Fiscal Period confirming the Schedule will be terminated. All
obligations of Lessee to pay Rent due after the end of the Fiscal Period first in effect at the
commencement of the Schedule Term will cease, all interests of Lessee in the Asset(s) will terminate
and Lessee shall surrender the Equipment in accordance with Section 13 of this MLA.
Notwithstanding the foregoing, Lessee agrees, without creating a pledge, lien or encumbrance upon
funds available to Lessee in other than its current Fiscal Period, that it will use reasonable efforts to
obtain appropriation of funds to avoid termination of the Schedule by taking reasonable and
appropriate action including the inclusion in Lessee's budget request for each Fiscal Period during the
Schedule Term hereof a request for adequate funds to meet its obligations and to continue the
Schedule in force. Lessee represents and warrants it has adequate funds to meet its obligations during
the first Fiscal Period of the Schedule Term.
8. Selection of Equipment.
The Equipment is the size, design, capacity and manufacture selected by Lessee in its sole judgment and
not in reliance on the advice or representations of Lessor. No representation by the manufacturer or a
vendor shall in any way affect Lessee's duty to pay Rent and perform its other obligations hereunder.
Each Schedule is intended to be a "finance lease" as defined in Article 2A of the Uniform Commercial
Code. Lessor has acquired or will acquire the Equipment in connection with this MLA. Lessor shall not
be liable for damages for any reason, for any act or omission of the supplying manufacturer. Lessor
agrees, to the extent they are assignable, to assign the Lessee, without recourse to Lessor, any warranties
provided to Lessor with respect to the Equipment during the Term of the applicable Schedule. Lessee
acknowledges that neither its dissatisfaction with any unit of Equipment, nor the failure of any of the
Equipment to remain in useful condition for the Schedule Term, nor the loss of possession or the right of
possession of the Equipment or any part thereof by the Lessee, shall relieve Lessee from the obligations
under this MLA or Schedule Term. Lessee shall have no right, title or interest in or to the Equipment
except the right to use the same upon the terms and conditions herein contained. The Equipment shall
remain the sole and exclusive personal property of the Lessor and not be deemed a fixture whether or not
it becomes attached to any real property of the Lessee. Any labels supplied by Lessor to Lessee,
describing the ownership of the Equipment, shall be affixed by Lessee upon a prominent place on each
item of Equipment.
9. Inspection and Acceptance.
Promptly upon delivery of the Equipment, Lessee will inspect and test the Equipment, and not later than
ten (10) business days following the Commencement Date, Lessee will execute and deliver either (i) an
Acceptance Certificate, or (ii) written notification of any defects in the Equipment. If Lessee has not
given notice within such time period, the Equipment shall be conclusively deemed accepted by the Lessee
as of the tenth (10th) business day. Lessor, its assigns or their agents, shall be permitted free access at
reasonable times authorized by the Lessee, the right to inspect the Equipment.
10. Installation and Delivery; Use of Equipment; Repair and Maintenance.
(a) All transportation, delivery, and installation costs associated with the Equipment shall be borne by the
Lessee. Lessor is not and shall not be liable for damages if for any reason the manufacturer of the
DIR Contract # DIR-SDD-1951 Page 5 of 20 Appendix F
Equipment delays the delivery or fails to fulfill the order by the Lessee's desired timeframe. Any
delay in delivery by the manufacturer shall not affect the validity of any Schedule. Lessee shall
provide a place of installation for the Equipment, which conforms to the requirements of the
manufacturer and Lessor.
(b) Subject to the terms hereof, Lessee shall be entitled to use the Equipment in compliance with all laws,
rules, and regulations of the jurisdiction wherein the Equipment is located and will pay all cost,
claims, damages, fees and charges arising out of its possession, use or maintenance. Lessee agrees to
solely use the Equipment in the conduct of Lessee's business. Lessee agrees, at its expense, to obtain
all applicable permits and licenses necessary for the operation of the Equipment, and keep the
Equipment in good working order, repair, appearance and condition (reasonable wear and tear is
acceptable). Lessee shall not use or permit the use of the Equipment for any purpose, which
according to the specification of the manufacturer, the Equipment is not designed or reasonably
suited. Lessee shall use the Equipment in a careful and proper manner and shall comply with all of
the manufacturer's instructions, governmental rules, regulations, requirements, and laws, and all
insurance requirements, if any, with regard to the use, operation or maintenance of the Equipment.
(c) Lessee, at its expense, shall take good and proper care of the Equipment and make all repairs and
replacements necessary to maintain and preserve the Equipment and keep it in good order and
condition. Unless Lessor shall otherwise consent in writing, Lessee shall, at its own expense, enter
into and maintain in force a maintenance agreement covering each unit of Equipment. Lessee shall
furnish Lessor with a copy of such agreement, upon request. Lessee shall pay all costs to install and
dismantle the Equipment. Lessee shall not make any alterations, additions, or improvements, or add
attachments to the Equipment without the prior written consent of Lessor, except for additions or
attachments to the Equipment purchased by Lessee from the original supplier of the Equipment or
any other person approved by Lessor. If Lessee desires to lease any such additions or attachments,
Lessee hereby grants to Lessor the right of first refusal to provide such lease financing to Lessee for
such items. Subject to the provisions of Section 13B of this MLA, Lessee agrees to restore the
Equipment to Return Condition prior to its return to the Lessor.
11. Relocation of Equipment.
Lessee shall at all times keep the Equipment within its exclusive possession and control. Upon Lessor's
prior written consent, which shall not be unreasonably withheld, Lessee may move the Equipment to
another location of Lessee within the continental United States, provided (i) Lessee is not in default on
any Schedule, (ii) Lessee executes and causes to be filed at its expense such instruments as are necessary
to preserve and protect the interests of Lessor and its assigns in the Equipment, (iii) Lessee pays all costs
of, and provides adequate insurance during such movement, and (iv) Lessee pays all costs otherwise
associated with such relocation. Notwithstanding the foregoing, Lessee may move the Equipment to
another location within Texas without notification to, or the consent of, Lessor. Provided, however, that
not later than December 31 of each calendar year, Lessee shall provide Lessor a written report detailing
the total amount of Equipment at each location of Lessee as of that date, and the complete address for
each location. Lessor shall make all filings and returns for property taxes due with respect to the
Equipment, and Lessee agrees that it shall not make or file any property tax returns, including
information returns, with respect to the Equipment.
DIR Contract # DIR-SDD-1951 Page 6 of 20 Appendix F
12. Ownership.
The Equipment shall at all times be and remain the sole and exclusive property of Lessor, subject to the
parties rights under any applicable software license agreement. Lessee shall have no right, title or interest
in the Equipment except a leasehold interest as provided for herein. Lessee agrees that the Equipment
shall be and remain personal property and shall not be so affixed to realty as to become a fixture or
otherwise to lose its identity as the separate property of the Lessor. Upon request, Lessee will enter into
any and all agreements necessary to ensure that the Equipment remain the personal property of Lessor.
13. Purchase and Renewal Options; Location and Surrender of Equipment.
(a) Not less than ninety (90) days prior to the expiration of the initial Schedule Term Lessor shall notify
Lessee of options for continued use of Equipment. Lessee shall have the option to: (i) renew the
Schedule as to all but not less than all of the Equipment, or (ii) purchase all but not less than all of the
Equipment for cash or by the Lessor's acceptance of a purchase order from Lessee upon the last
business day on or prior to the expiration of the Schedule Term thereof for a price equal to the amount
set forth in the Schedule. If the Fair Market Value (FMV) Purchase Option was selected on the
Schedule, the FMV shall be determined on the basis of and shall be equal in amount to, the value
which would be obtained in an arms -length transaction between an informed and willing buyer -user
(other than a used equipment dealer), who would be retaining the Equipment as part of its current
operations, in continuing and consistent use, and an informed and willing seller under no compulsion
to sell, and in such determination, costs of removal from the location of current use shall not be a
deduction from such value. If Lessee desires to exercise either option, it shall give Lessor irrevocable
written notice of its intention to exercise such option at least sixty (60) days (and not more than 180
days) before the expiration of such Schedule Term. In the event that Lessee exercises the purchase
option described herein, upon payment by Lessee to Lessor of the purchase price for the Equipment,
together will all Rent Payments and any other amounts owing to Lessor hereunder, Lessor shall
transfer to Lessee without any representation or warranty of any kind, express or implied, title to such
Equipment. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, IF LESSEE
FAILS TO NOTIFY LESSOR OF ITS INTENT WITH RESPECT TO THE EXERCISE OF THE
OPTIONS DESCRIBED IN THIS SECTION 13 WITHIN THE TIME FRAMES CONTEMPLATED
HEREIN, THE INITIAL SCHEDULE TERM SHALL BE TERMINATED ON THE DATE AS
STATED IN THE SCHEDULE.
(b) The Equipment shall be delivered to and thereafter kept at the location specified in the Schedule and
shall not be removed therefrom without Lessor's prior written consent and in accordance with Section
11 of this MLA. Upon the expiration, early termination as provided herein, or upon final termination
of the Schedule, upon at least ninety (90) days prior written notice to Lessor, Lessee at its cost and
expense, shall immediately disconnect, properly package for transportation and return all (not part) of
the Equipment (including, without limitation, all service records and user manuals), freight prepaid, to
Lessor in good repair, working order, with unblemished physical appearance and with no defects
which affect the operation or performance of the Equipment ("Return Condition"), reasonable wear
and tear excepted. Lessee shall, at Lessor's request, affix to the Equipment, tags, decals or plates
furnished by Lessor indicating Lessor's ownership and Lessee shall not permit their removal or
concealment. Lessee shall return the Equipment to Lessor at a location specified by Lessor, provided,
DIR Contract # DIR-SDD-1951 Page 7 of 20 Appendix F
however, such location shall be within the United States no farther than 500 miles from the original
Lessee delivery location, unless otherwise agreed to on the applicable Schedule. If the Equipment is
not in Return Condition, Lessee shall remain liable for all reasonable costs required to restore the
Equipment to Return Condition. Lessee shall arrange and pay for the de -installation and packing of
the Equipment and the de -installation shall be performed by manufacturer -certified technicians,
approved by Lessor and the Lessor shall have the right to supervise and direct the preparation of the
Equipment for return. IF, UPON TERMINATION OR EXPIRATION OF THE SCHEDULE FOR
ANY REASON, LESSEE FAILS OR REFUSES FORTHWITH TO RETURN AND DELIVER THE
EQUIPMENT TO LESSOR, LESSEE SHALL REMAIN LIABLE FOR ANY RENT PAYMENTS
ACCRUED AND UNPAID WITH RESPECT TO ALL OF THE EQUIPMENT ON THE
SCHEDULE AND SHALL PAY RENT UP TO THE DATE THAT THE EQUIPMENT IS
RETURNED TO THE ADDRESS SPECIFIED BY LESSOR. Notwithstanding the foregoing, Lessor
shall have the right, without notice or demand, to enter Lessee's premises or any other premises where
the Equipment may be found and to take possession of and to remove the Equipment, at Lessee's sole
cost and expense, without legal process. Lessee understands that it may have a right under law to
notice and a hearing prior to repossession of the Equipment. As an inducement to Lessor to enter into
a transaction, but only to the extent that Lessee, if a state agency, has statutory authority to do so,
Lessee hereby expressly waives all rights conferred by existing law to notice and a hearing prior to
such repossession by Lessor or any officer authorized by law to effect repossession and hereby
releases Lessor from all liability in connection with such repossession. Without waiving the doctrines
of sovereign immunity and immunity from suit and to the extent authorized by the constitution and
laws of the State of Texas, Lessee's obligation to return Equipment may, at Lessor's option, be
specifically enforced by Lessor.
14. Quiet Enioyment.
During the Schedule Term, Lessor shall not interfere with Lessee's quiet enjoyment and use of the
Equipment provided that an Event of Default (as hereinafter defined in Section 23 of the MLA) has not
occurred.
15. Warranties.
Lessor and Lessee acknowledge that manufacturer Equipment warranties, if any, inure to the benefit of the
Lessee. Lessee agrees to pursue any warranty claim directly against such manufacturer of the Equipment
and shall not pursue any such claim against Lessor. Lessee shall continue to pay Lessor all amounts
payable under any Schedule under any and all circumstances.
16. No Warranties.
LESSEE ACKNOWLEDGES THAT LESSOR IS NOT THE MANUFACTURER OR LICENSOR OF
THE EQUIPMENT. LESSEE AGREES THAT LESSOR HAS NOT MADE AND MAKES NO
REPRESENTATIONS OR WARRANTIES OF WHATSOEVER NATURE, DIRECTLY OR
INDIRECTLY, EXPRESS OR IMPLIED, AS TO THE SUITABILITY, DURABILITY, FITNESS FOR
USE, MERCHANTABILITY, CONDITION, OR QUALITY OF THE EQUIPMENT OR ANY UNIT
THEREOF. LESSEE SPECIFICALLY WAIVES ALL RIGHT TO MAKE CLAIM AGAINST LESSOR
FOR BREACH OF ANY EQUIPMENT WARRANTY OF ANY KIND WHATSOEVER; AND WITH
DIR Contract # DIR-SDD-1951 Page 8 of 20 Appendix F
RESPECT TO LESSOR, LESSEE LEASES EQUIPMENT "AS IS". LESSOR SHALL NOT BE
LIABLE TO LESSEE FOR ANY LOSS, DAMAGE, OR EXPENSE OF ANY KIND OR NATURE
CAUSED DIRECTLY OR INDIRECTLY BY ANY EQUIPMENT LEASED HEREUNDER, OR BY
THE USE OR MAINTENANCE THEREOF, OR BY THE REPAIRS, SERVICE OR ADJUSTMENT
THERETO OR ANY DELAY OR FAILURE TO PROVIDE ANY THEREOF, OR BY ANY
INTERRUPTION OF SERVICE OR LOSS OF USE THEROF, OR FOR ANY LOSS OF BUSINESS OR
DAMAGE WHATESOEVER AND HOWSOEVER CAUSED WITHOUT IN ANY WAY IMPLYING
THAT ANY SUCH WARRANTY EXISTS AND WITHOUT INCREASING ITS LIABILITY
HEREUNDER, TO ASSIGN TO LESSEE UPON LESSEE'S REQUEST THEREFOR ANY
WARRANTY OF A MANUFACTURER OR LICENSOR OR SELLER RELATING TO THE
EQUIPMENT THAT MAY HAVE BEEN GIVEN TO LESSOR.
17. Indemnification.
(a) Without waiving the doctrines of sovereign immunity and immunity from suit, and to the extent
permitted by the laws and Constitution of the State of Texas, Lessee shall indemnify, protect, save and
hold harmless Lessor, its agents, servants and successors from and against all losses, damages,
injuries, claims, demands and expenses, including legal expenses and attorney's fees, of whatsoever
nature, arising out of the use, misuse, condition, repair, storage, return or operation (including, but not
limited to, latent and other defects, whether or not discoverable by it) of any unit of Equipment,
regardless of where, how and by whom operated, and arising out of negligence (excluding the gross
negligence or willful misconduct of Lessor). Lessee is liable for the expenses of the defense or the
settlement of any suit or suits or other legal proceedings brought to enforce any such losses, damages,
injuries, claims, demands, and expenses and shall pay all judgments entered in any such suit or suits or
other legal proceedings. The indemnities and assumptions of liabilities and obligations herein
provided for shall continue in full force and effect notwithstanding the termination of the MLA or a
Schedule whether by expiration of time, by operation of law or otherwise. With respect to Lessor,
Lessee is an independent contractor, and nothing contained herein authorizes Lessee or any other
person to operate the Equipment so as to impose or incur any liability or obligation for or on behalf of
Lessor.
(b) Without waiving the doctrines of sovereign immunity and immunity from suit, and to the extent
permitted by the laws and Constitution of the State of Texas, Lessee and DIR individually and
collectively assume all risks and liabilities with respect to any claim made by any third party that the
lease arrangements herein are not authorized by law. Without waiving the doctrines of sovereign
immunity and immunity from suit, and to the extent permitted by the laws and Constitution of the
State of Texas, Lessee and DIR agree to indemnify, save and hold harmless Lessor from any and all
such claims and all expenses incurred in connection with such claims or to defend against such claims,
including without limitation any judgments by a court of competent jurisdiction or settlement or
compromise with such claimant.
(c) Lessor is the owner of the Equipment and has title to the Equipment. If any other person attempts to
claim ownership of the Equipment by asserting that claim against Lessee or through Lessee, Lessee
agrees, at its expense, to protect and defend Lessor's title to the Equipment. Lessee further agrees that
it will at all times keep the Equipment free from any legal process, encumbrance or lien whatsoever,
DIR Contract # DIR-SDD-1951 Page 9 of 20 Appendix F
and Lessee shall give Lessor immediate notice if any legal process, encumbrance or lien is asserted or
made against the Equipment.
18. Risk of Loss.
Commencing upon delivery and continuing throughout the Schedule Term, Lessee shall bear the entire
risk of loss or damage in respect to any Equipment, whether partial or complete, from any cause
whatsoever. In the event of loss, theft, destruction or damage of any kind to any item of Equipment, or if
any Equipment is lost stolen, or taken by governmental action for a stated period extending beyond the
Term of any Schedule (an "Event of Loss"), Lessee shall promptly notify Lessor. Lessee shall, at its
option: (a) immediately place the affected Equipment in good condition and working order, (b) replace the
affected Equipment with identical equipment of at least equal value, in good condition and repair, and
transfer clear title thereto to Lessor, or (c) to the extent permitted by law, pay to Lessor, within thirty (30)
days of the Event of Loss, an amount equal to the Stipulated Loss Value ("SLV" as hereafter defined) for
such affected Equipment, plus any other unpaid amounts then due under the Schedule. If an Event of Loss
occurs as to part of the Equipment for which the SLV is paid, a prorated amount of each Rent Payment
shall abate from the date the SLV payment is received by Lessor. The SLV shall be an amount equal to
the sum of all future Rent Payments from the last Rent Payment date to the end of the Schedule Term with
such Rent Payments discounted to present value at the like -term Treasury Bill rate for the remaining
Schedule Term in effect on the date of such Event of Loss, or if such rate is not permitted by law, then at
the lowest permitted rate.
In the event of a governmental taking of Equipment for an indefinite period or for a stated period, which
does not extend beyond the Schedule Term, all obligations of the Lessee with respect to such Equipment
(including payment of Rent) shall continue. So long as Lessee is not in default hereunder, Lessor shall
pay to Lessee all sums received by Lessor from the government by reason of such taking.
19. Insurance.
At its expense, Lessee shall keep the Equipment insured against all risks of loss and damage with
companies acceptable to Lessor for an amount equal to the original cost of the Equipment, with Lessor or
its assign(s) named as a loss payee. Lessee shall also maintain comprehensive general liability insurance,
with Lessor or its assign(s) named as an additional insured. Lessee shall be liable for any loss not covered
by insurance. All said insurance shall be in form and amount satisfactory to Lessor. Lessee shall pay the
premiums therefor and deliver to Lessor or its assign(s) the certificates of insurance or duplicates thereof
or other evidence satisfactory to Lessor or its assign(s) of such insurance coverage. Evidence of such
insurance coverage shall be furnished no later than the Schedule Commencement Date of each Schedule
and from time to time as Lessor or its assign(s) may request. Each insurer shall agree by endorsement
upon the policy or policies issued by it or by independent instrument furnished to Lessor that it will give
Lessor or its assign(s) thirty (30) days prior written notice of the effective date of any alteration or
cancellation of such policy. Lessee hereby irrevocably appoints Lessor as Lessee's attorney-in-fact to
make claim for, receive payment of, and execute and endorse all documents, checks or drafts received in
payment for loss or damage under any said insurance policy. Lessee may self -insure with respect to the
required coverage.
DIR Contract # DIR-SDD-1951 Page 10 of 20 Appendix F
Further, Lessees that are defined as state agencies in accordance with Section 2054.003, Texas
Government Code (including institutions of higher education as defined in Texas Education Code, Section
61.003) and those purchasing from a DIR contract through an Interagency Agreement, as authorized by
Chapter 771, Texas Government Code, may self -insure their obligations in this section.
20. Representations and Warranties of Lessee.
Lessee represents and warrants for the benefit of Lessor and its assigns, and Lessee will provide an
opinion of counsel to the effect that, as of the time of execution of the MLA and each Schedule between
Lessor and Lessee:
(a) Lessee is either a Texas state agency or Texas local government, as defined in Section 2054.003,
Texas Government Code (including institutions of higher education as defined in Texas Education
Code, Section 61.003) or a state agency purchasing from a DIR contract through an Interagency
Agreement, as authorized by Chapter 771, Texas Government Code. Lessee has made an
independent legal and management determination to enter into this transaction;
(b) Each Schedule executed by Lessee has been duly authorized, executed and delivered by Lessee and
constitutes a valid, legal and binding agreement of Lessee, enforceable in accordance with its terms;
(c) No approval, consent or withholding of objection is required from any federal or other
governmental authority or instrumentality with respect to the entering into or performance by
Lessee of any Schedule between Lessor and Lessee;
(d) The entering into and performance of any Schedule between Lessor and Lessee, the MLA or any
Schedule will not violate any judgment, order, law or regulation applicable to Lessee or result in
any breach of, or constitute a default under, or result in the creation of any lien, charge, security
interest or other encumbrance upon assets of the Lessee or on the Equipment leased under any
Schedule between Lessor and Lessee pursuant to any instrument to which the Lessee is a party or by
which it or its assets may be bound;
(e) To the best of Lessee's knowledge and belief, there are no suits or proceedings pending or
threatened against or affecting Lessee, which if determined adversely to Lessee will have a material
adverse effect on the ability of Lessee to fulfill its obligations under the MLA or any Schedule
between Lessor and Lessee;
(f) The use of the Equipment is essential to Lessee's proper, efficient and economic operation, and
Lessee will sign and provide to Lessor upon execution of each Schedule between Lessor and Lessee
hereto written certification to that effect; and
(g) Lessee represents and warrants that (i) It has authority to enter into any Schedule under this MLA,
(ii) the persons executing a Schedule have been duly authorized to execute the Schedule on Lessee's
behalf, (iii) all information supplied to Lessor is true and correct, including all credit and financial
information and (iv) it is able to meet all its financial obligations, including the Rent Payments
hereunder.
DIR Contract # DIR-SDD-1951 Page I 1 of 20 Appendix F
21. Representation and Warranties of DIR.
DIR represents and warrants for the benefit of Lessor and its assigns, and DIR will provide an opinion of
counsel to the effect that, as of the time of execution of the MLA:
(a) DIR is a State agency as defined in Section 2251.001, Texas Government Code. DIR has not
provided the Lessee or the Lessor with any legal or management advice regarding the MLA or any
Schedule executed pursuant thereto;
(b) This MLA has been duly authorized, executed and delivered by DIR and constitutes a valid, legal
and binding Agreement of DIR, enforceable in accordance with its terms;
(c) No approval, consent or withholding of objection is required from any federal or other
governmental authority or governmental authority or instrumentality with respect to the entering
into or performance by DIR of this MLA;
(d) The entering into and performance of the MLA does not violate any judgment, order, law or
regulation applicable to DIR or result in any breach of, constitute a default under, or result in the
creation of any lien, charge, security interest or other encumbrance upon assets of DIR or on the
Equipment pursuant to any instrument to which DIR is a party or by which it or its assets may be
bound;
(e) To the best of DIR's knowledge and belief, there are no suits or proceedings pending or threatened
against or affecting DIR, which if determined adversely to DIR will have a material adverse effect
on the ability of DIR to fulfill its obligations under the MLA;
(f) DIR is authorized to charge and collect the administrative fee as set forth within Section 5 of the
Contract;
(g) Lessor's payment of the administrative fee to DIR shall not constitute an illegal gratuity or
otherwise violate Texas law; and
(h) DIR is a government agency subject to the Texas Public Information Act. Lessor acknowledges that
DIR will comply with the Public Information Act, and with all opinions of the Texas Attorney
Generals' office concerning this Act.
22. Representations and Warranties of Lessor.
(a) Lessor is an entity authorized and validly existing under the laws of its state of organization, is
authorized to do business in Texas, and is not in default as to taxes owed to the State of Texas and
any of its political subdivisions;
(b) The MLA and each Schedule executed in conjunction to this MLA have been duly authorized,
executed and delivered by Lessor and constitute valid, legal and binding agreements of Lessor,
enforceable with respect to the obligations of Lessor herein in accordance with their terms;
DIR Contract # DIR-SDD-1951 Page 12 of 20 Appendix F
(c) No approval, consent or withholding of objection is required from any federal or other
governmental authority or instrumentality with respect to the entering into or performance by
Lessor of this MLA or any Schedule;
(d) The entering into and performance of the MLA or any Schedule will not violate any judgment,
order, law or regulation applicable to Lessor or result in any breach of, or constitute a default under,
or result in the creation of any lien, charge, security interest or other encumbrance upon the assets of
the Lessor, including Equipment leased under the MLA and Schedules thereto, pursuant to any
instrument to which the Lessor is a party or by which it or its assets may be bound; and
(e) To the best of Lessor's knowledge and belief, there are no suits or proceedings pending or
threatened against or affecting Lessor, which if determined adversely to Lessor will have a material
adverse effect on the ability of Lessor to fulfill its obligations under the MLA or any Schedule.
23. Default.
Lessee shall be in default under a Schedule upon the occurrence of any one or more of the following
events (each an "Event of Default"): (a) nonpayment or incomplete payment by Lessee of Rent or any
other sum payable; (b) nonpayment or incomplete payment by Lessee of Rent or any other sum payable
on its due date; (c) failure by Lessee to perform or observe any other term, covenant or condition of this
MLA, any Schedule, or any applicable software license agreement, which is not cured within ten (10)
days after notice thereof from Lessor; (d) insolvency by Lessee; (e) Lessee's filing of any proceedings
commencing bankruptcy or the filing of any involuntary petition against Lessee or the appointment of any
receiver not dismissed within sixty (60) days from the date of said fling or appointment; (f) subjection of
a substantial part of Lessee's property or any part of the Equipment to any levy, seizure, assignment or
sale for or by any creditor or governmental agency; or (g) any representation or warranty made by Lessee
in this MLA, any Schedule or in any document furnished by Lessee to Lessor in connection therewith or
with the acquisition or use of the Equipment being or becoming untrue in any material respect.
24. Remedies.
(a) Upon the occurrence of an "Event of Default" and at any time thereafter Lessor may, in its sole
discretion, do any one or more of the following: (i) After giving fifteen (15) days prior written notice
to Lessee of default, during which time Lessee shall have the opportunity to cure such default,
terminate any or all Schedules executed by Lessor and the defaulting Lessee; (ii) without Lessee and
DIR waiving the doctrines of sovereign immunity and immunity from suit, and to the extent allowed
by the laws and Constitution of the State of Texas, Lessor may proceed by appropriate court action
to enforce the performance of the terms of the Schedule and/or recover damages, including all of
Lessor's economic loss for the breach thereof; (iii) whether or not the Schedule is terminated, upon
notice to Lessee, take possession of the Equipment wherever located, without demand, liability,
court order or other process of law, and for such purposes Lessee, to the extent authorized by Texas
law, hereby authorizes Lessor, its assigns or the agents of either to enter upon the premises where
such Equipment is located or cause Lessee, and Lessee hereby agrees, to return such Equipment to
Lessor in accordance with the requirements of Section 13 of the MLA; (iv) by notice to Lessee, and
to the extent permitted by law, declare immediately due and payable and recover from Lessee, as
liquidated damages and not as a penalty, the sum of (a) the present value of the Rent owed from the
DIR Contract # DIR-SDD-1951 Page 13 of 20 Appendix F
earlier of the date of payment by Lessee or the date Lessor obtains a judgment against Lessee until
the end of the Schedule Term plus, if the Equipment is not returned to or repossessed by Lessor, the
present value of the estimated in-place fair market value of the Equipment at the end of the Schedule
Term as determined by Lessor, each discounted at a rate equal to the rate used by Lessor for business
opportunity analysis; (b) all Rent and other amounts due and payable on or before the earlier of the
date of payment by Lessee or the date Lessor obtains a judgment against Lessee; and (c) without
Lessee and DIR waiving the doctrines of sovereign immunity and immunity from suit, and to the
extent allowed by the laws and Constitution of the State of Texas, costs, fees (including all
attorneys' fees and court costs) and expenses associated with collecting said sums; and (d) interest
on (a) and (b) from the date of default at 1 %z% per month or portion thereof (or the highest rate
allowable by law, if less) and, on (c) from the date Lessor incurs such fees, costs or expenses.
(b) Upon return or repossession of the Equipment, Lessor may, if it so decides in its sole discretion,
upon notice to Lessee, use reasonable efforts to sell, re -lease or otherwise dispose of such
Equipment, in such manner and upon such terms as Lessor may determine in its sole discretion, so
long as such manner and terms are commercially reasonable. Upon disposition of the Equipment,
Lessor shall credit the Net Proceeds (as defined below) to the damages paid or payable by Lessee.
Proceeds upon sale of the Equipment shall be the sale price paid to Lessor less the Stipulated Loss
Value in effect as of the date of default. Proceeds upon a re -lease of the Equipment shall be all rents
to be received for a term not to exceed the remaining Schedule Term, discounted to present value as
of the commencement date of the re -lease at the Lessor's current applicable debt rate. Without
Lessee and DIR waiving the doctrines of sovereign immunity and immunity from suit, and to the
extent allowed by the laws and Constitution of the State of Texas, "Net Proceeds" shall be the
Proceeds of sale or re -lease as determined above, less all costs and expenses incurred by Lessor in
the recovery, storage and repair of the Equipment, in the remarketing or disposition thereof, or
otherwise as a result of Lessee's default, including any court costs and attorney's fees and interest on
the foregoing at eighteen percent (18%) per annum or the highest rate allowable by law, if less,
calculated from the dates such costs and expenses were incurred until received by Lessor. Lessee
shall remain liable for the amount by which all sums, including liquidated damages, due from Lessee
exceeds the Net Proceeds. Net Proceeds in excess thereof are the property of and shall be retained
by Lessor.
(c) No termination, repossession or other act by Lessor in the exercise of its rights and remedies upon an
Event or Default shall relieve Lessee from any of its obligations hereunder. No remedy referred to
in this Section is intended to be exclusive, but each shall be cumulative and in addition to any other
remedy referred to above or otherwise available to Lessor at law or in equity.
(d) Neither DIR nor non -defaulting Lessees shall be deemed in default under the MLA or Schedules
because of the default of a particular Lessee. Lessor's remedies under this Section 24 shall not
extend to DIR and those non -defaulting Lessees.
25. Notices and Waivers.
All notices relating to this MLA shall be delivered to DIR or the Lessor as specified within Section 6 of
the Contract, or to another representative and address subsequently specified in writing by the appropriate
parties hereto. All notices relating to a Schedule shall be delivered in person to an officer of the Lessor or
DIR Contract # DIR-SDD-1951 Page 14 of 20 Appendix F
Lessee or shall be mailed certified or registered to Lessor or Lessee at its respective address shown on the
Schedule or to another address subsequently specified in writing by the appropriate parties thereof. DIR,
Lessee, and Lessor intend and agree that a photocopy or facsimile of this MLA or a Schedule and all
related documents, including but not limited to the Acceptance Certificate, with their signatures thereon
shall be treated as originals, and shall be deemed to be as binding, valid, genuine, and authentic as an
original signature document for all purposes. This MLA and those Schedules in conjunction hereof are a
"Finance Lease" as defined in Article 2A of the Uniform Commercial Code ("UCC"). A waiver of a
specific Default shall not be a waiver of any other or subsequent Default. No waiver of any provision of
this MLA or a provision of a Schedule shall be a waiver of any other provision or matter, and all such
waivers shall be in writing and executed by an officer of the Lessor. No failure on the part of Lessor to
exercise, and no delay in exercising, any right hereunder shall operate as a waiver thereof.
26. Assignment by Lessor; Assignment or Sublease by Lessee.
(a) Lessor may (i) assign all or a portion of Lessor's right, title and interest in this MLA and/or any
Schedule; (ii) grant a security interest in the right, title and interest of Lessor in the MLA, any
Schedule and/or any Equipment; and/or (iii) sell or transfer its title and interest as owner of the
Equipment and/or as Lessor under any Schedule; and DIR and each Lessee leasing Equipment
under the MLA understand and agree that Lessor's assigns may each do the same (hereunder
collectively "Assignment"). All such Assignments shall be subject to each Lessee's rights under the
Schedule(s) executed between it and Lessor and to DIR's rights under the MLA. Each Lessee
leasing Equipment through Schedules under this MLA and DIR hereby consent to such
Assignments and agree to execute and deliver promptly such acknowledgements, Opinions of
Counsel and other instruments reasonably requested to effect such Assignment. Each Lessee leasing
Equipment through Schedules under this MLA and DIR acknowledge that the assigns do not
assume Lessor's obligations hereunder and agree to make all payments owed to the assigns without
abatement and not to assert against the assigns any claim, defense, setoff or counterclaim which
DIR or the Lessee(s) may possess against the Lessor or any other party for any other reason. Lessor
shall remain liable for performance under the MLA and any Schedule(s) executed hereunder to the
extent Lessor's assigns do not perform Lessor's obligations under the MLA and Schedule(s)
executed hereunder. Upon any such Assignment, all references to Lessor shall also include all such
assigns, whether specific reference thereto is otherwise made herein.
(b) LESSEE WILL NOT SELL, ASSIGN, SUBLET, PLEDGE OR OTHERWISE ENCUMBER,
OR PERMIT A LIEN TO EXIST ON OR AGAINST ANY INTEREST IN THIS LEASE, OR
THE EQUIPMENT, OR REMOVE THE EQUIPMENT FROM ITS LOCATION
REFERRED TO ON THE SCHEDULE, WITHOUT LESSOR'S PRIOR WRITTEN
CONSENT EXCEPT AS PROVIDED IN SECTION 11 OF THIS MLA. LESSOR MAY
ASSIGN ITS INTEREST IN THIS LEASE AND SELL OR GRANT A SECURITY
INTEREST IN ALL OR ANY PART OF THE EQUIPMENT WITHOUT LESSEE'S
CONSENT. LESSEES THAT ARE STATE AGENCIES, WITHOUT WAIVING THE
DOCTRINE OF SOVEREIGN IMMUNITY AND IMMUNITY FROM SUIT, AND ONLY
AS MAY BE AUTHORIZED BY THE CONSTITUTION AND LAWS OF THE STATE OF
TEXAS, AGREE THAT IN ANY ACTION BROUGHT BY AN ASSIGNEE AGAINST
LESSEE TO ENFORCE LESSOR'S RIGHTS HEREUNDER, LESSEE WILL NOT
ASSERT AGAINST SUCH ASSIGNEE AND EXPRESSLY WAIVES AS AGAINST ANY
DIR Contract # DIR-SDD-1951 Page 15 of 20 Appendix F
ASSIGNEE, ANY BREACH OR DEFAULT ON THE PART OF LESSOR HEREUNDER
OR ANY OTHER DEFENSE, CLAIM OR SET-OFF WHICH LESSEE MAY HAVE
AGAINST LESSOR EITHER HEREUNDER OR OTHERWISE. NO SUCH ASSIGNEE
SHALL BE OBLIGATED TO PERFORM ANY OBLIGATION, TERM OR CONDITION
REQUIRED TO BE PERFORMED BY LESSOR HEREUNDER. Without the prior written
consent of Lessor, DIR shall not assign, sublease, transfer, pledge or hypothecate the Master Lease
Agreement; provided, however, that no such prior written consent from Lessor is necessary in the
event of a legislative mandate to transfer the contract to another state agency.
27. Delivery of Related Documents.
For each Schedule, Lessee will provide the following documents and information satisfactory to Lessor:
(a) Certificate of Acceptance; (b) Opinion of Counsel; (c) proof of self-insurance acceptable to Lessor; (d)
Financial Statements; (e) Incumbency Certificate; and (f) Other documents as reasonably required by
Lessor.
28. Lessee's Waivers.
To the extent permitted by applicable law, Lessee hereby waives the following rights and remedies
conferred upon Lessee by the Uniform Commercial Code: to (i) cancel any Schedule under the MLA; (ii)
repudiate any Schedule; (iii) reject the Equipment; (iv) revoke acceptance of the Equipment; (v) recover
damages from Lessor for any breach of warranty by the manufacturer; (vi) claim a security interest in the
Equipment in Lessee's possession or control for any reason; (vii) deduct all or any part of any claimed
damages resulting from Lessor's default, if any, under any Schedule; (viii) accept partial delivery of the
Equipment; (ix) "cover" by making any purchase or lease of or contract to purchase or lease equipment in
substitution for the Equipment due from Lessor; (x) recover any special, punitive, incidental or
consequential damages, for any reason whatsoever. Lessee agrees that any delay or failure to enforce
Lessor's rights under this MLA or a Schedule does not prevent Lessor from enforcing any rights at a later
time.
29. Security Interest and UCC Filings.
To secure payments hereunder, Lessor reserves and Lessee hereby grants to Lessor a continuing security
interest in the Equipment and any and all additions, replacements, substitutions, and repairs thereof.
When all of the Lessee's obligations under this MLA and respective Schedules have been fully paid and
satisfied, Lessor's security interest shall terminate. Nothing contained herein shall in any way diminish
Lessor's right, title, or interest in or to the Equipment. Lessor and Lessee agree that a reproduction of this
MLA and/or any associated Schedule may be filed as a financing statement and shall be sufficient as a
financing statement under the Uniform Commercial Code ("UCC"). Lessee hereby appoints Lessor, its
agents, successors or assigns its true and lawful attorney-in-fact for the limited purpose of executing and
filing on behalf of Lessee any and all UCC Financing Statements which in Lessor's sole discretion are
necessary or proper to secure Lessor's interest in the Equipment in all applicable jurisdictions. Lessee
shall execute or obtain and deliver to Lessor, upon Lessor's request, such instruments, financing
statements and assurances, as Lessor deems necessary or advisable for the protection or perfection of this
Lease and Lessor's rights hereunder and will pay all costs incident thereto.
DIR Contract 4 DIR-SDD-1951 Page 16 of 20 Appendix F
30. Miscellaneous.
(a) Jurisdiction. The MLA and each Schedule SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS. In the event of a dispute
between the parties, suit may be brought in the federal or state courts where Lessee has its principal
office or where the Equipment is located.
(b) Counterpart. Only original counterpart No. 1 of each Schedule shall be deemed to be an "Original"
for chattel paper purposes under the Uniform Commercial Code. Any and all other counterparts
shall be deemed to be a "Copy". NO SECURITY INTEREST IN THIS MLA, IN ANY
SCHEDULE, OR IN ANY OF THE EQUIPMENT MAY BE CREATED, TRANSFERRED,
ASSIGNED OR PERFECTED BY THE TRANSFER AND POSSESSION OF THIS MLA
ALONE OR OF ANY "COPY" OF THE SCHEDULE, BUT RATHER SOLELY BY THE
TRANSFER AND POSSESSION OF THE "ORIGINAL" COUNTERPART OF THE SCHEDULE
INCORPORATING THIS MLA BY REFERENCE.
(c) Suspension of Obligations of Lessor. Prior to delivery of any Equipment, the obligations of Lessor
hereunder shall be suspended to the extent that it is hindered or prevented from performing because
of causes beyond its control.
(d) Severability. In the event of any provision of this MLA or any Schedule shall be determined by a
court of competent jurisdiction to be invalid or unenforceable, the parties hereto agree that such
provision shall be ineffective without invalidating the remaining provisions thereof.
(e) Entire Agreement. Lessor and Lessee acknowledge that there are no agreements or understanding,
written or oral, between them with respect to the Equipment, other than as set forth in this MLA and
in each Schedule to which Lessee is a signatory party. Lessor and Lessee further acknowledge that
this MLA and each Schedule to which Lessee is a party contain the entire agreement between
Lessor and Lessee and supersedes all previous discussions and terms and conditions of any purchase
orders issued by Lessee. DIR and Lessor acknowledge that there are no agreements or
understandings, written or oral, between them other than as set forth in this MLA and Contract
Number DIR-SDD-1951 and that both contain the entire agreement between them. Neither this
MLA nor any Schedule may be altered, modified, terminated, or discharged except by a writing
signed by the party against whom enforcement of such action is sought.
(f) Headers. The descriptive headings hereof do not constitute a part of any Schedule and no
inferences shall be drawn therefrom.
(g) Language context. Whenever the context of this MLA requires, the masculine gender includes the
feminine or neuter, and the singular number includes the plural, and whenever the word Lessor is
used herein, it shall include all assignees of Lessor.
(h) Lessor Certifications. Lessor certifies that:
DIR Contract # DIR-SDD-1951 Page 17 of 20 Appendix F
(i) it has not given, offered to give, and does 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 this MLA and/or any Schedules executed
hereunder;
(ii) it is not currently delinquent in the payment of any franchise tax owed the State of Texas and
is not ineligible to receive payment under Section 231.006, Texas Family Code and
acknowledges this MLA may be terminated and payment withheld if this certification is
inaccurate;
(iii) neither it , nor anyone acting for it, has violated the antitrust laws of the United States or the
State of Texas, nor communicated directly or indirectly to any competitor or any other person
engaged in such line of business for the purpose of obtaining an unfair price advantage;
(iv) it has not received payment from DIR, Lessee or any of their employees for participating in
the preparation of this MLA and the Schedule(s) hereunder;
(v) during the term of this MLA, it will not discriminate unlawfully against any employee or
applicant and that, upon request it 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,
(vi) under Section 2155.004, Texas Government Code, the Lessor certifies that the individual or
business entity named in this MLA is not ineligible to receive the specified MLA and
acknowledges that this MLA may be terminated and payment withheld if this certification is
inaccurate;
(vii) 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 MLA;
(viii) are not suspended or debarred from doing business with the federal government as listed in
the Excluded Parties List System (EPLS) maintained by the General Services Administration;
(ix) as of the effective date of the MLA, are not listed in the prohibited vendors list authorized by
Executive Order # 13224, "Blocking Property and Prohibiting Transactions with Persons Who
Commit, Threaten to Commit, or Support Terrorism ", published by the United States
Department of the Treasury, Office of Foreign Assets Control;
(x) to the extent applicable to this scope of this MLA, Lessor 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;
DIR Contract # DIR-SDD-1951 Page 18 of 20 Appendix F
(xi) Lessor agrees that any payments due under this MLA will be applied towards any debt,
including but not limited to delinquent taxes and child support that is owed to the State of
Texas;
(xii) Vendor certifies that they are in compliance Section 669.003, Texas Government Code,
relating to contracting with executive head of a state agency;
(xiii) Vendor certifies for itself and its subcontractors that it has identified all current or former,
within the last five years, employees of the State of Texas assigned to work on the DIR
Contract 20% or more of their time and has disclosed them to DIR and has disclosed or does
not employ any relative of a current or former state employee within two degrees of
consanguinity, and, if these facts change during the course of the Contract, Vendor certifies it
shall disclose for itself and on behalf of subcontractors the name and other pertinent
information about the employment of current and former employees and their relatives within
two degrees of consanguinity;
(xiv) Lessor represents and warrants that the provision of goods and services or other
performance under the MLA will not constitute an actual or potential conflict of interest and
certifies that it will not reasonably create the appearance of impropriety, and, if these facts
change during the course of the MLA, Lessor certifies it shall disclose for itself and on behalf
of subcontractors the actual or potential conflict of interest and any circumstances which create
the appearance of impropriety;
(xv) Lessor represents and warrants that the Lessee's payment to Lessor and Lessor's receipt of
appropriated or other funds under this Agreement are not prohibited by Sections 556.005 or
Section 556.008, Texas Government Code;
(xvi) under Section 2155.006, Government Code, Lessor certifies that the individual or business
entity in this MLA is not ineligible to receive the specified MLA and acknowledges that this
MLA may be terminated and payment withheld if this certification is inaccurate. In addition,
Lessor acknowledges the applicability of §2155.444 and §2155.4441, Texas Government
Code, in fulfilling the terms of the MLA; and (xviii) Lessor certifies that it has complied with
the Section 556.0055, Texas Government Code, restriction on lobbying expenditures.. In
addition, Vendor acknowledges the applicability of §2155.444 and §2155.4441, Texas
Government Code, in fulfilling the terms of the Contract.
During the term of the MLA, Lessor shall, for itself and on behalf of its subcontractors,
promptly disclose to DIR all changes that occur to the foregoing certifications, representations
and warranties. Lessor covenants to fully cooperate in the development and execution of
resulting documentation necessary to maintain an accurate record of the certifications,
representations and warranties
(i) Dispute Resolution. The following paragraph applies only to Lessees designated as a State agency
as defined in Section 2054.003, Texas Government Code, including a university system or
institution of higher education, and those purchasing from a DIR contract through an Interagency
Agreement, as authorized by Chapter 771, Texas Government Code.
DIR Contract # DIR-SDD-1951 Page 19 of 20 Appendix F
To the extent that Chapter 2260 of the Texas Government Code, as it may be amended from time to
time ("Chapter 2260"), is applicable to this Agreement and is not preempted by other applicable
law, the dispute resolution process provided for in Chapter 2260, and rules promulgated there under
shall be used by the Lessee and Lessor to attempt to resolve any claim for breach of agreement
made by Lessor.
0) Sovereign Immunity. Nothing herein shall be construed to waive the State's sovereign immunity.
31. Amendments.
The terms and conditions of this MLA may be amended only by written instrument executed by the
Lessor and DIR.
DIR Contract # DIR-SDD-1951 Page 20 of 20 Appendix F
City of Round Rock
ROUND ROCK TIXAS
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Agenda Item Summary
Agenda Number: G3.
Title: Consider a resolution authorizing the Mayor to execute a Master Lease
Agreement with Dell Marketing, L.P. for Computer Products and Services.
Type: Resolution
Governing Body: City Council
Agenda Date: 3/14/2013
Dept Director: Brooks Bennett, Chief Information Officer
Cost: $0.00
Indexes:
Attachments: Resolution, Exhibit "A"
Text of Legislative File 13-064
Currently, many machines in the City of Round Rock are five years old or older. These machines are
more susceptible to mechanical issues, and are woefully underpowered for modern business tasks.
Executing a rental agreement with Dell Inc. will allow the City of Round Rock to replace select
computers and equipment on a regular three-year cycle. This will provide more current technology
to our employees and eliminate the cost of storing, and auctioning machines with little residual
value. There is no cost associated with this agreement. It simply allows the City to rent computer
from Dell on an as -needed basis in the future. Funding for the rental program will come from the
City's existing computer replacement budget line item.
Staff recommends approval.
City of Round Rock Page 1 Printed on 311412013
EXECUTED
ORIGINAL
DOCUMEN15
FOLLOW
DIR Contract No. DIR-SDD-1951
Vendor Contract No.
STATE OF TEXAS
DEPARTMENT OF INFORMATION RESOURCES
CONTRACT FOR PRODUCTS AND RELATED SERVICES
DELL MARKETING, L.P.
1. Introduction
A. Parties
This Contract for products and related services is entered into between the State of Texas,
acting by and through the Department of Information Resources (hereinafter "DIR") with
its principal place of business at 300 West 15'h Street, Suite 1300, Austin, Texas 78701,
and Dell Marketing, L.P. (hereinafter "Vendor"), with its principal place of business at
One Dell Way, Round Rock, Texas 78682.
B. Compliance with Procurement Laws
This Contract is the result of compliance with applicable procurement laws of the State of
Texas. DIR issued a solicitation on the Comptroller of Public Accounts' Electronic State
Business Daily, Request for Offer (RFO) DIR-SDD-TMP-190, on August 6, 2012, for
Dell Branded Manufacturer Hardware, Software and Related Services. Upon execution
of this Contract, a notice of award for RFO DIR-SDD-TMP-190 shall be posted by DIR
on the Electronic State Business Daily.
C. Order of Precedence
For purchase transactions under this Contract, the order of precedence shall be as follows:
this Contract; Appendix A, Standard Terms and Conditions For Products and Related
Services Contracts; Appendix B, Vendor's Historically Underutilized Businesses
Subcontracting Plan; Appendix C, Pricing Index; Appendix D, Services Agreement;
Appendix E, Master Operating Lease Agreement; Appendix F, Master Lease Agreement;
Exhibit 1, Vendor's Response to RFO DIR-SDD-TMP-190, including all addenda; and
Exhibit 2, RFO DIR-SDD-TMP-190, including all addenda; are incorporated by
reference and constitute the entire agreement between DIR and Vendor governing
purchase transactions. For Lease transactions under this Contract the order of precedence
shall be as follows: this Contract; Appendix E, Master Operating Lease Agreement;
Appendix F, Master Lease Agreement, as applicable depending on the type of lease;
Appendix A, Standard Terms and Conditions For Products and Related Services
Contracts; Appendix B, Vendor's Historically Underutilized Businesses Subcontracting
Plan; Appendix C, Pricing Index; Appendix D, Services Agreement; Exhibit 1, Vendor's
Response to RFO DIR-SDD-TMP-190, including all addenda; and Exhibit 2, RFO DIR-
SDD-TMP-190, including all addenda; are incorporated by reference and constitute the
entire agreement between DIR and Vendor governing lease transactions. In the event of a
conflict between the documents listed in this paragraph related to purchases, the
controlling document shall be this Contract, then Appendix A, then Appendix B, then
Appendix C, then Appendix D, then Appendix E, then Appendix F, then Exhibit 1, and
Page 1 of 36
x-13 _03-1, _P3
DIR Contract No. DIR-SDD-1951
Vendor Contract No.
finally Exhibit 2. In the event of a conflict between the documents listed in this paragraph
related to lease transactions, the controlling document shall be this Contract, then
Appendix E or Appendix F, depending on the type of lease transaction, then Appendix A,
then Appendix B, then Appendix C, then Appendix D, then Exhibit 1, and finally Exhibit
2. In the event and to the extent any provisions contained in multiple documents address
the same or substantially the same subject matter but do not actually conflict, the more
recent provisions shall be deemed to have superseded earlier provisions.
2. Term of Contract
The term of this Contract shall be one (1) year commencing on the last date of approval
by DIR and Vendor. Prior to expiration of the original term, DIR and Vendor may extend
the Contract, upon mutual agreement, for up to three (3) optional one-year terms.
Protracted contract negotiations may, in DIR's sole discretion, result in fewer optional
terms.
3. Product and Service Offerings
A. Products
This Contract is a full Catalog contract, offering all products Dell is authorized to sell or
manufacture.
B. Services
Related services include but are not limited to: deployment, help desk, managed services,
storage and server assessment services, product installation, Custom Factory Integration
of Customer Imaged Software ("CFI'), maintenance and support, asset recovery services,
product training, and future services Dell may offer upon DIR approval (note Deliverable
Based IT Services are offered under a separate contract, DIR-SDD-1961).
4. Pricing
A. Manufacturer's Suggested Retail Price (MSRP)
MSRP is defined as Dell's published retail price.
B. Customer Discount
The minimum Customer discount for all products and services will be set forth in
Appendix C Pricing Index.
Vendor agrees that the DIR standard pricing discounts contained in Appendix C will
remain one percent (1%) better than the Western States Contracting Alliance
(WSCA) Category A level, standardized discounts. This extension of competitive
volume sales pricing is intended solely to insure that DIR will, at a minimum, remain
competitive with the standard price rates set for WSCA as a whole. DIR may not
apply, without the express consent of Vendor, any pre-existing discount structure to
the WSCA pricing being offered to DIR by Vendor. DIR may either use DIR
discounted pricing or the WSCA pricing but may not combine, or compound the two.
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In the event that DIR pricing fails to remain competitive to WSCA standardized,
category level pricing, Vendor shall extend such pricing to DIR. Vendor shall use its
commercially reasonable best efforts to notify DIR of such WSCA price change and
amend this Contract within thirty (30) days after the amendment to the Vendor's
WSCA contract. The introduction of the WSCA pricing to the DIR contract shall be
effective from the date of execution into the Contract by amendment. Both parties
agree that the pricing shall not be retroactive for DIR and shall not extend back to the
date that Vendor reduced WSCA catalog pricing. Further, the parties agree that DIR,
or the State of Texas, does not have the right to audit the WSCA contract held by the
Vendor. References to the Vendor's WSCA contract are only contained in this
Contract for purposes of referencing the pricing discounts contained therein. Both
parties acknowledge that the Vendor's WSCA contract and pricing are readily
available to the public and may be freely accessed by the internet for the purposes of
validation under the terms and conditions of this Contract.
C. Customer Price
1) The price to the Customer shall be as set forth in Appendix C, Pricing Index.
2) Customers purchasing products and services under this Contract may negotiate
more advantageous pricing or participate in special promotional offers. In such event,
a copy of such better offerings shall be furnished to DIR upon request.
3) During the term of this Contract, if pricing for products or non -customized
services (e.g., CFI, Imaging, and Asset Tagging) available under this Contract are
provided by Vendor at a lower price to an Eligible Customer who is not purchasing
those products or services under this Contract, then the available Customer Price in
this Contract shall be adjusted to that lower price. This requirement applies to
products or non -customized services actually charged by Vendor for a quantity of one
(1) under substantially similar terms and conditions, for substantially similar
configurations or deliverables. This requirement does not apply to volume or special
pricing purchases. This Contract shall be amended within ten (10) business days to
reflect the lower price.
D. DIR Administrative Fee
The administrative fee specified in Section 5 below shall not be broken out as a
separate line item when pricing or invoice is provided to Customer.
F. Shipping and Handling Fees
The price to the Customer under this Contract shall include all shipping and handling
fees. Shipments will be Free On Board Customer's destination, provided the products
are shipped to locations in the State of Texas. Except as noted, no additional fees
shall be charged to the Customer for standard shipping and handling. If the Customer
requests expedited delivery, Customer will be responsible for any charges for
expedited delivery. Title to all products shall pass upon shipment to Customer's dock;
however, risk of loss shall pass to the Customer upon delivery to Customer.
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F. Delivery
Shipment of Dell -branded systems from Dell's facility is estimated at between fifteen
(15) and twenty-five (25) days after receipt of a valid and complete order. While there
may be industry -wide situations of constrained product, current manufacturing lead times
for desktop and notebook systems are ten (10) to fourteen (14) business days. Current
lead times for server systems are nine (9) to twelve (12) business days; this is specifically
designed for extensive testing on these mission -critical systems.
Shipment of third party software and peripheral items is estimated at between seven (7)
and ten (10) days after receipt of a valid and complete order.
Please note that customization through Dell's Configuration Services may increase lead
times. While Dell does not guarantee specific delivery dates, Customers providing Dell
with an accurate quarterly forecast will greatly enhance Dell's ability to be prepared for
Customer orders and to meet your needed delivery timeframes in accordance with the
Deployment Plan outlined below.
Sample Deployment Plan for Dell's Configuration Services Projects
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Customer to select Dell as vendor.
One (1) business day
Dell will begin to manufacture Customer's evaluation
Six (6) business days
unit. The Project Manager will work directly with
manufacturing to ensure that lead times are not exceeded
and that the agreed upon schedule for delivery is met.
Evaluation unit is received by Customer.
Customer will create ghost images and return these
Three (3) to five (5) business days
images to Dell within 24 hours to factory install on all
remaining units prior to shipment.
Deli will produce hard copy Technical
One (1) business day—Technical
Specifications within twenty-four (24) hours for
Specifications
Customer's approval. Customer will review and
One (1) business day—Review, approve,
approve the specifications and return to Dell
return to Dell
within twenty-four (24) hours. Once approval is
Ten (10) business days— Hardware
received, the Configuration Services engineering
Customization engineering
process can begin provided the image has also
been received.
A Customer Master Services Agreement must be
Two (2) business days — Customer executes
executed prior to the release of any First Article units by
and returns IS Agreement.
Dell Marketing L.P.
Dell will manufacture the First Article order. Customer
Six (6) business days — First Article
will receive the First Article and approve.
manufacture
Three (3) business days — Receive and approve
Upon approval of First Article order, Dell will begin
Ten (10) business days— Manufacture
production of the balance of units in accordance with the
additional units
Customer's mutually agreed to delivery schedule.
Five (5) business days - Shipping
All systems will be delivered according to the mutually
On-going
agreed upon schedule.
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G. Tax -Exempt
As per Section 151.309, Texas Tax Code, Customers under this Contract are exempt
from the assessment of State sales, use and excise taxes. Further, Customers under
this Contract are exempt from Federal Excise Taxes, 26 United States Code Sections
4253(1) and 0). Customers will provide Vendor with tax exempt certificate upon
request.
H. Travel Expense Reimbursement
Pricing for services provided under this Contract are exclusive of any travel expenses
that may be incurred in the performance of those services. Travel expense
reimbursement may include personal vehicle mileage or commercial coach
transportation, hotel accommodations, parking and meals; provided, however, the
amount of reimbursement by Customers shall not exceed the amounts authorized for
state employees as adopted by each Customer; and provided, further, that all
reimbursement rates shall not exceed the maximum rates established for state
employees under the current State Travel Management Program
(http://www.window.state.tx.us/procurement/proalstmp/). Travel time may not be
included as part of the amounts payable by Customer for any services rendered under
this Contract. The DIR administrative fee specified in Section 5 below is not
applicable to travel expense reimbursement. Anticipated travel expenses must be pre -
approved in writing by Customer.
I. Changes to Prices
Vendor or Order Fulfiller may change the price of any product or service at any time,
based upon changes to the MSRP, but discount levels shall remain consistent with the
discount levels specified in this Contract. Price decreases shall take effect
automatically during the term of this Contract and shall be passed onto the Customer
immediately at the time of submission of a purchase order, but shall not be retroactive
to products for which a purchase order has been received, or for services currently
being rendered under a prior purchase order.
DIR Administrative Fee
A) The administrative fee to be paid by the Vendor to DIR based on the dollar value of
all sales to Customers pursuant to this Contract is one quarter of one percent (.25%).
Payment will be calculated for all sales, net of returns and credits. For example, the
administrative fee for sales totaling $100,000 shall be $250.
B) All prices quoted to Customers shall include the administrative fee. DIR may change
administrative fee amounts; however, no revision will take effect before ninety (90) days
following written notice. Vendor may revise pricing to reflect the change in
administrative fees.
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6. Notification
All notices under this Contract shall be sent to a party at the respective address indicated
below.
If sent to the State:
Robin Abbott, Manager
Contract and Vendor Management
Department of Information Resources
300 W. 15th St., Suite 1300
Austin, Texas 78701
Phone: (512) 475-4700
Facsimile: (512) 475-4759
If sent to the Vendor:
Diane Wigington
Dell Marketing, LP
One Dell Way, Mail Stop RR8-06
Round Rock, Texas 78682
Phone: (512) 728-4805
Facsimile: (512) 283-9092
Email: Diane Wigington@Dell.com
7. Software License, Services and Leasing Agreements
A. Software License Agreement
A. Software shall mean any software, library, utility, tool, or other computer or program
code, in object (binary) or source -code form, as well as the related documentation,
provided by Dell to you. Software includes software locally installed on your
systems and software accessed by you through the Internet or other remote means
(such as websites, portals, and "cloud -based" solutions).
B. Software is subject to the separate software license agreements accompanying the
software, along with any product guides, operating manuals, or other documentation
included with the software media packaging or presented to Customer during the
installation or use of the Software. Customer agrees that Customer will be bound by
such license agreement.
C. With respect to Software provided or otherwise made available to you by Dell in
connection with any Services hereunder, if no license terms accompany the
Software, then subject to your compliance with the terms set forth in this Agreement,
including payment for such Software, Dell hereby grants Customer a personal, non-
exclusive license to access and use such Software only during the duration of the
Services and solely as necessary for Customer to enjoy the benefit of the Services as
stated in the applicable Service Agreements (or SOW'S).
I. Restrictions. Customer may not copy, modify, or create a derivative work,
collective work, or compilation of the Software, and may not reverse engineer,
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decompile or otherwise attempt to extract the code of the Software or any part
thereof. Customer may not license, sell, assign, sublicense, or otherwise transfer
or encumber the Software; may not use the Software in a managed -services
arrangement; and may not use the Software in excess of the authorized number
of licensed seats for concurrent users, sites, or other criteria specified in the
applicable Service Agreements or Statements of Work. In addition, Customer
may not access the Software to monitor its availability, performance, or
functionality, or for any other benchmarking or competitive purpose.
II. Customer is further prohibited from (1) attempting to use or gain unauthorized
access to Dell or to any third party's networks or equipment; (2) permitting other
individuals or entities to use the Software or copy the Software or Services; (3)
attempting to probe, scan, or test the vulnerability of Software or a system,
account, or network of Dell or any of its customers or suppliers; (4) interfering or
attempting to interfere with service to any user, host, or network; (5) engaging in
fraudulent activity of any nature; (6) transmitting unsolicited bulk or commercial
messages; (7) restricting, inhibiting, or otherwise interfering with the ability of
any other person, regardless of intent, purpose, or knowledge, to use or enjoy the
Software (except for tools with safety and security functions); or (S) restricting,
inhibiting, interfering with, or otherwise disrupting or causing a performance
degradation to any Dell (or Dell Service supplier) facilities used to deliver the
Services.
111. Audit. DIR, on behalf of Customers, hereby grants Dell, or an agent designated by
Dell, the right to perform an audit of any Customers' use of the Software during
normal business hours; and to cooperate with Dell in such audit; and such
Customer agrees to provide Dell with all records reasonably related to
Customers' use of the Software. The audit will be limited to verification of
Customer's compliance with the terms of this Agreement.
IV. Open Source Software. A portion of the Software may contain or consist of open
source software, which you may use under the terms and conditions of the
specific license under which the open source software is distributed.
THIS OPEN SOURCE SOFTWARE IS DISTRIBUTED IN THE HOPE THAT
IT WILL BE USEFUL, BUT IS PROVIDED "AS IS" WITHOUT ANY
WARRANTY, EXPRESS, IMPLIED, OR OTHERWISE, INCLUDING BUT
NOT LIMITED TO THE IMPLIED WARRANTY OF MERCHANTABILITY
OR FITNESS FOR A PARTICULAR PURPOSE, OR ANY WARRANTY
REGARDING TITLE OR AGAINST INFRINGEMENT. IN NO EVENT
SHALL DELL, THE COPYRIGHT HOLDERS, OR THE CONTRIBUTORS
BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL,
EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT
LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES;
LOSS OF USE, DATA, OR PROFITS; OR BUSINESS INTERRUPTION)
HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER
IN CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING
NEGLIGENCE OR OTHERWISE) ARISING IN ANY WAY OUT OF THE
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USE OF THIS OPEN SOURCE SOFTWARE, EVEN IF ADVISED OF THE
POSSIBILITY OF SUCH DAMAGE.
B. Shrink/Click-wrap License Agreement
Customer understands and agrees that the third party software is subject to the license
agreement shipped with the software or in a separate agreement between Customer
and the software licensor. Dell is authorized to provide the software provided
hereunder. It is the Customer's responsibility to read the Shrink/Click-wrap
License Agreement and determine if the Customer accepts the license terms. If
the Customer does not agree with the license terms, Dell shall provide reasonable
assistance; however, Customer shall be responsible for negotiating with the reseller to
obtain additional changes in the Shrink/Click-wrap License Agreement language
from the software publisher.
C. Services Agreement
Services provided under this Contract shall be in accordance with the Services
Agreement as set forth in Appendix D of this Contract. No changes to the Services
Agreement terms and conditions may be made unless previously agreed to by Vendor
and DIR.
D. Master Operating Lease Agreement
DIR and Vendor hereby agree that Vendor is authorized to utilize the Master
Operating Lease Agreement in Appendix E of this Contract for Lessees that are Texas
State Agencies or otherwise authorized to conduct lease transactions through DIR
contracts.
E. Master Lease Agreement
DIR and Vendor hereby agree that Vendor is authorized to utilize the Master Lease
Agreement in Appendix F of this Contract for DIR authorized entities as Lessees that
are not Texas State Agencies or otherwise required by statute to utilize the Texas
Public Finance Authority for such leasing transactions.
S. Intellectual Property Matters
Customer shall own all right, title and interest to the Deliverables and Dell agrees to grant
to Customer a perpetual, non-exclusive, non -transferable, royalty -free license to use
Dell's Background IP (defined below), Utilities, and Residual IP solely for Customer to
use the Deliverables, subject to the following:
(i) each party will retain all Intellectual Property Rights that it owned or
controlled prior to the effective date of this Agreement or that it develops or acquires
from activities independent of the Services performed under this Agreement
(`Background IP"),
(ii) Dell will retain all right, title and interest in and to all Intellectual Property Rights
in or related to the Services, or tangible components thereof, including but not limited
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to (a) all know-how, intellectual property, methodologies, processes, technologies,
algorithms, software or development tools used in performing the Services
(collectively, the "Utilities"), and (b) such ideas, concepts, know-how, processes and
reusable reports, designs, charts, plans, specifications, documentation, forms,
templates or output which are developed, created or otherwise used by or on behalf of
Dell in the course of performing the Services or creating the Deliverables, other than
portions that specifically incorporate proprietary or Confidential Information or data
of Customer (collectively, the "Residual IP"), even if embedded in the Deliverable,
and
(iii) Customer use of software, online services, or software -enabled services in
connection with the Services is pursuant to the terms of the applicable software
license or Cloud Computing Terms.
As used herein, "Deliverables" means the work product or tangible embodiment of
the Services that are (i) prepared or performed by Dell or its subcontractors uniquely
and exclusively for a Customer and (ii) specifically identified in a signed Statement
of Work as Deliverables. "Intellectual Property Rights" means rights to patents,
utility models, mask, works, copyrights, trademarks, trade secrets, and any other form
of protection afforded by law to inventions, models, designs, technical information,
and applications.
9. Authorized Exceptions to Request for Offer DIR-SDD-TMP-190 for Dell Branded
Manufacturer Hardware, Software and Related Services.
A. Section 2. Scope, 2.1 Products is hereby replaced in its entirety:
DIR intends to contract for all Dell branded product categories, including but not
limited to desktops, laptops, printers, servers, and the related accessories, software,
and/or supplies applicable to each product category.
This Contract is a full Catalog contract, offering all products Dell is authorized to sell
or manufactures and services Dell offers, including, but not limited to deployment,
help desk, outsourcing, IT security services, managed services, storage and server
assessment services, and future services Dell may offer subject to DIR approval (note
Deliverable Based IT Services are offered under a separate contract, DIR-SDD-1961).
In addition, third party products are included, with the exception noted herein. NOTE:
DIR has established Microsoft Volume Licensing agreements directly with the
Publisher of the software, Microsoft Licensing, GP to consider the State of Texas as a
single customer and grant discounts based on the volume of the State of Texas as a
whole. Therefore, for any contract awarded as a result from this RFO, Customers may
not issue purchase orders and Vendors are prohibited from selling any Microsoft
Volume Licensing software licenses that may infringe on any Volume Licensing
program and related agreements that DIR has established directly with the Publisher.
Vendors may sell software that is installed/loaded as pail of an operating system at
the time of configuration.
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Customers may submit or request that Vendor prepare a statement of work
when obtaining a quote based on their service needs.
Any Vendor responding to this RFO must submit pricing for the products requested
herein. A representative sample of Dell branded products has been included for the
purposes of obtaining pricing and evaluating the responses to this RFO. This sample
is contained in the Excel spreadsheet attached as "bid package 2" to the posting for
this RFO, requisition number DIR-SDD-TMP-190, on the Electronic State Business
Daily, http://esbd.cpa.state.tx.us/. "Bid package 2" is a representative sample only.
All products of Dell Marketing, L.P. may be made available through a Contract.
In addition to purchase sales, DIR and any Vendor awarded a Contract as a result of
this RFO may agree to provisions that allow teasing of the products offered under the
resulting Contract.
DIR is not soliciting Dell branded hardware, software and related services for the
agency. DIR establishes statewide master contracts for use by DIR eligible customers
(state agencies, higher education, K-12 independent school districts, and local
governments). DIR competitively bids for information technology products and
services.
Note to customers: This Contract complies with state purchasing requirements.
Eligible customers may procure directly from the Contract and are not required to
issue requests for proposals or take other additional procurement actions.
Customers must identify their own needs, then contact an awarded DIR Vendor and
obtain a price quote for products/services. Customers may submit a statement of
work to the vendor when obtaining a quote based on their needs. The Customer
makes the best value determination and issues a purchase order directly to the
Vendor.
Vendors may propose their catalog of Dell branded hardware, software, and related
services.
Under Texas Government Code, Chapter 2054, Subchapter M, and DIR
implementing rules, DIR state agency Customers must procure products that comply
with the Accessibility Standards defined in the Texas Administrative Code, 1 TAC
206 and 1 TAC 213, when such Products are available in the commercial marketplace
or when such products are developed in response to a procurement solicitation.
Accordingly, Vendor must provide electronic and information resources and
associated Product documentation and technical support that comply with these
Accessibility Standards in its response to this RFO. Vendors who do not already
have accessibility documentation should complete the form located here:
http://www.itic.org:8080/dotAsset/5644ecd2-5024-417f-bc23-a5265Of47ef8.doc.
Vendors that claim their products are exempt from accessibility requirements must
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present that position to DIR as a question to be handled in the question and answer
period of the solicitation.
Customer may go to this page to request VPATs:
http•//content del] com/us/en/corp/d/corp-comm/cr-diversity-customer-
disabilities.aspx
B. Section 3.7.3, Mandatory Response Documents, 6. Voluntary Product
Accessibility Templates, is hereby replaced in its entirety:
Vendor shall provide DIR with the URL to its Voluntary Product Accessibility
Template (VPAT) or a copy of the applicable VPAT for reviewing compliance with
the State of Texas Accessibility requirements (based on the federal standards
established under Section 508 of the Rehabilitation Act), or indicate that the
product/service accessibility information is available from the General Services
Administration "Buy Accessible Wizard" (http://www.buyaccessible.gov). Vendors
not listed with the "Buy Accessible Wizard" or supplying a URL to their VPAT must
provide DIR with a report that addresses the same accessibility . criteria in
substantively the same format. Additional information regarding the "Buy Accessible
Wizard" or obtaining a copy of the VPAT is located at http://www.section508.gov/.
http•//content dell com/us/en/co!p/d/corp-comm/cr-diversity-customer-
disabilities.aspx
C. Appendix A of the RFO, Item 2013, Certification Statement, is hereby replaced in
its entirety:
The undersigned hereby certifies on behalf of Dell Marketing, L.P. that RFO DIR-
SDD-TMP-190 has been read and understood. In submitting its response Dell
Marketing, L.P. represents to DIR the following:
i) Vendor is capable of providing the products and services as described in the RFO;
ii) Vendor is offering true and correct pricing and discounts for the products and
services;
iii) Vendor agrees, if awarded a contract, to abide by the terms and conditions of the
resulting contract;
iv) as of the date of signature below, Vendor is not listed in the prohibited vendors list
authorized by Executive Order #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;
v) Vendor is not suspended or debarred from doing business with the federal
government as listed in the Excluded Parties List ,System (EPLS) maintained by the
General Services Administration;
vi) Vendor certifies, under Texas Government Code, Sections 2155.004 and
2155.006, that the individual or business entity named in this bid or contract is not
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DIR Contract No. DIR-SDD-1951
Vendor Contract No.
ineligible to receive the specified contract and acknowledges that this contract may
be terminated and payment withheld if this certification is inaccurate;
(vii) Vendor certifies that, to the extent applicable to this scope of this RFO, Vendor
is in compliance with Health and Safety Code, Chapter 361, Subchapter Y, related to
the Computer Equipment Recycling Program, and the related rules found at 30 TAC
Chapter 328;
(viii) Vendor has not given, offered to give, nor intends to give at any time hereafter
any economic opportunity, future employment, gift, loan, gratuity, special discount,
trip, favor, or service to a public servant in connection with the submitted response;
(ix) Vendor has not received compensation for participation in the preparation of
specifications for this solicitation as required by Texas Government Code, Section
2155.004(a);
(x) Vendor has not, nor has anyone acting for Vendor, violated the antitrust laws of
the United States or the State of Texas, nor communicated directly or indirectly to
any competitor or any other person engaged in such Iine of business for the purpose
of obtaining an unfair price advantage;
(xi) Vendor is not currently delinquent in the payment of any franchise tax owed the
State of Texas and is not ineligible to receive payment. under Section 231.006 of the
Texas Family Code and acknowledges the Contract may be terminated and payment
withheld if this certification is inaccurate, and any Vendor subject to Section 231.006
must include names and social security numbers of each person with at least 25%
ownership of the business entity submitting the response, prior to award (the parties
agree that Vendor may submit these Social Security numbers marked as confidential
so that disclosure or confidentiality will determined by the Office of the Attorney
General);
(xii) Vendor agrees that any payments due under this Contract will be applied
towards any debt, including but not limited to delinquent taxes and child support that
is owed to the State of Texas;
(xiii) Vendor agrees to comply with Texas Government Code, Section 2155.4441,
relating to use of service contracts for products produced in the State of Texas;
(xiv) Vendor certifies it is in compliance with Texas Government Code, Section
669.003, relating to contracting with executive head of a state agency;
(xv) Vendor certifies for itself and its subcontractors that it has identified all current
or former, within the last five years, employees of the State of Texas assigned to work
on this DIR Contract 20% or more of their time and has disclosed them to DIR and
has disclosed or does not employ any relative of a current or former state employee
within two degrees of consanguinity, and, if these facts change during the course of
the Contract, Vendor certifies it shall disclose for itself and on behalf of
subcontractors the name and other pertinent information about the employment of
current and former employees and their relatives within two degrees of
consanguinity;
(xvi) Vendor represents and warrants that the provision of goods and services or other
performance under the Contract will not constitute an actual or potential conflict of
interest;
(xvii) Vendor certifies that if a Texas address is shown as the Principle Place of
Business in Appendix A, Vendor Information Form, Vendor qualifies as a Texas
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Resident Bidder as defined in Texas Administrative Code, Title 34, Part I, Chapter
20;
(xviii) Vendor understands and agrees that Vendor may be required to comply with
additional terms and conditions (that do not conflict with the terms and conditions of
this Contract) or certifications that an individual Customer may require due to state
and federal law (e.g., privacy and security requirements); and
(xix) Vendor agrees that these representations will be incorporated into any
subsequent agreement(s) between Vendor and Customer that result from this RFO.
10. Authorized Exceptions to Appendix A, Standard Terms and Conditions for Product
and Related Services Contracts.
A. Section 3. Definitions, is hereby replaced in its entirety:
A. Customer - any Texas state agency, unit of local government, institution of higher
education as defined in Section 2054.003, Texas Government Code, and those state
agencies purchasing from a DIR contract through an Interagency Agreement, as
authorized by Chapter 771, Texas Government Code, any local government as authorized
through the Interlocal Cooperation Act, Chapter 791, Texas Government Code, and the
state agencies and political subdivisions of other states as authorized by Section
2054.0565, Texas Government Code and, except for telecommunications services under
Chapter 2170, Texas Government Code, assistance organizations as defined in Section
2175.001, Texas Government Code to mean:
1) A non-profit organization that provides educational, health or human
services or assistance to homeless individuals;
2) A nonprofit food bank that solicits, warehouses, and redistributes edible
but unmarketable food to an agency that feeds needy families and
individuals;
3) Texas Partners of the Americas, a registered agency with the Advisory
Committee on Voluntary Foreign Aid, with the approval of the Partners
of the Alliance Office of the Agency for International Development;
4) A group, including a faith -based group, that enters into a financial or
non-financial agreement with a health or human services agency to
provide services to that agency's clients;
5) A local workforce development board created under Section 2308.253;
6) A nonprofit organization approved by the Supreme Court of Texas that
provides free legal services for low-income households in civil matters;
7) The Texas Boll Weevil Eradication Foundation, Inc., or an entity
designated by the commissioner of agriculture as the foundation's
successor entity under Section 74. 1011, Texas Agriculture Code;
8) A nonprofit computer bank that solicits, stores, refurbishes and
redistributes used computer equipment to public school students and
their families; and
9) A nonprofit organization that provides affordable housing.
B. Compliance Check — an audit of Vendor's compliance with the Contract may be
performed by, but not limited to, a third party auditor, DIR Internal Audit department, or
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DIR contract management staff or their designees.
C. Contract — the document executed between DIR and Vendor into which this
Appendix A is incorporated.
D. CPA — refers to the Texas Comptroller of Public Accounts.
E. Day - shall mean business days, Monday through Friday, except for State and Federal
holidays. If the Contract calls for performance on a day that is not a business day, then
performance is intended to occur on the next business day.
F. Order Fulfiller — the party, either Vendor or a patty that may be designated by
Vendor, who is fulfilling a Purchase Order pursuant to the Contract. May include Order
Fulfillers, Resellers and/or Agents.
G. Purchase Order - the Customer's fiscal form or format, which is used when making a
purchase (e.g., formal written Purchase Order, Procurement Card, Electronic Purchase
Order, or other authorized instrument). Neither Dell nor Customer is or shall be bound by
any terms and conditions imprinted on or embedded in orders, order acknowledgments or
other communications between the parties relating to orders.
H. Reseller — any third patty approved by Dell to sell to Eligible Customers under this
Contract. Dell will flow this Contract's terms and conditions to its Resellers under this
Contract, except that pricing shall be as follows: Dell offers pricing to its Reseller(s) and
such Resellers shall resale to Eligible Customers products under this Contract at a price it
sets and that will not exceed the maximum price as set forth in Appendix C, Pricing
Index, of this Contract.
1. State — refers to the State of Texas.
B. Section 4. General Provisions, E. Survival, is hereby replaced in its entirety:
Each applicable service agreement that was entered into between Vendor and a
Customer under the terms and conditions of the Contract that is still in existence as of
the date of the expiration or termination of the Contract shall survive the expiration or
termination of the Contract until the expiration or termination of such service
agreement. Each Purchase Order issued and accepted by Vendor that is still in
existence on the date of the expiration or termination of the Contract shall survive
expiration or termination of the Contract until the expiration or termination of such
Purchase Order.
C. Section 5. Product Terms and Conditions, Electronic and Information Resources
Accessibility Standards, As Required by 1 TAC Chapters 206 and 213 (Applicable to
State Agency and Institution of Higher Education Purchases Only), is hereby replaced
in its entirety:
Upon request by DIR, Vendor shall provide DIR with the URL to its Voluntary
Product Accessibility Template (VPAT) or a copy of the applicable VPAT for
reviewing compliance with the State of Texas Accessibility requirements (based on
the federal standards established under Section 508 of the Rehabilitation Act), or
indicate that the product/service accessibility information is available from the
General Services Administration "Buy Accessible Wizard"
(http://www.buyaccessible.gov). Vendors not listed with the "Buy Accessible
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Wizard" or supplying a URL to their VPAT must provide DIR with a report that
addresses the same accessibility criteria in substantively the same format. Additional
information regarding the "Buy Accessible Wizard" or obtaining a copy of the VPAT
is located at http://www.section508.gov/.
Customer may go to this page to request VPATs:
httl2:Hcontent.del l.com/tis/en/corp/d/corp-comm/cr-d iversity-customer-
disabilities.aspx
D. Section 6. Contract Fulfillment and Promotion, A. Service, Sales and Support of
the Contract, is hereby replaced in its entirety:
Vendor shall provide service, sales and support resources available under the Contract
to serve all Customers throughout the State. It is the responsibility of the Vendor to
sell, market, and promote services available under the Contract. Vendor shall use
commercially reasonable efforts to ensure that potential Customers are made aware of
the existence of the Contract.
E. Section 6. Contract Fulfillment and Promotion, C. Product Warranty and
Return Policies, is hereby replaced in its entirety:
Products Warranty:
A. Limited Warranty. Dell warrants that the Dell -branded hardware Products will
conform to the Dell specifications current when the Product is shipped and will be
free from material defects in materials and workmanship during the applicable
warranty period ("Limited Warranty"). The Limited Warranty period for Product
begins on the Product ship date. Dell has the right to grant the licenses to the
Software licensed under this Agreement, and such Software will substantially
conform to the functional specifications and current documentation provided by Dell.
B. Disclaimers. EXCEPT AS EXPRESSLY STATED IN THE PRECEDING
PARAGRAPH, DELL, (INCLUDING ITS AFFILIATES, CONTRACTORS,
AND AGENTS, AND EACH OF THEIR RESPECTIVE EMPLOYEES,
DIRECTORS, AND OFFICERS), ON BEHALF OF ITSELF AND ITS
SUPPLIERS (COLLECTIVELY, THE "DELL PARTIES") DISCLAIMS, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ALL
WARRANTIES, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO
ANY OF THE PRODUCTS, SOFTWARE, OR SERVICES, INCLUDING BUT
NOT LIMITED TO ANY WARRANTY (1) OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE, PERFORMANCE,
SUITABILITY, OR NON -INFRINGEMENT; (2) RELATING TO THIRD -
PARTY PRODUCTS, SOFTWARE, OR SERVICES; (3) RELATING TO THE
PERFORMANCE OF ANY HARDWARE OR SOFTWARE, OR DELL'S
PERFORMANCE OF THE SERVICES; OR (4) REGARDING THE RESULTS
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TO BE OBTAINED FROM THE PRODUCTS, SOFTWARE, SERVICES, OR
THE RESULTS OF ANY RECOMMENDATION BY DELL.
C. High -Risk Activities. The Products, Software, and Services are not fault-tolerant
and are not designed or intended for use in hazardous environments requiring fail-safe
performance, such as in the operation of nuclear facilities, aircraft navigation or
communication systems, air traffic control, weapons systems, life-support machines,
or any other application in which the failure of the Products, Software, or Services
could lead directly to death, personal injury, or severe physical or property damage
(collectively, "High -Risk Activities"). Dell expressly disclaims any express or
implied warranty of fitness for High -Risk Activities.
D. Warranty Exclusions. Warranties do not cover damage due to external causes,
such as accident, abuse, misuse, problems with electrical power, service not
performed or authorized by Dell (including installation or de -installation), usage not
in accordance with product or software instructions, normal wear and tear, or use of
parts and components not supplied or intended for use with the products, software, or
services. These warranties do not apply to Third -Party Products. Any warranty
on a Third -Party Product is provided by the publisher, provider, or original
manufacturer. All Third -Party Products are provided by Dell "as is." WHETHER
DIRECT OR INDIRECT, NEITHER PARTY SHALL HAVE LIABILITY FOR THE
FOLLOWING, (A) LOSS OF REVENUE, INCOME, PROFIT, OR SAVINGS, (B)
LOST OR CORRUPTED DATA OR SOFTWARE, LOSS OF USE OF SYSTEM(S)
OR NETWORK, OR THE RECOVERY OF SUCH, (C) LOSS OF BUSINESS
OPPORTUNITY, (D) BUSINESS INTERRUPTION OR DOWNTIME, OR (E)
SERVICES, VENDOR PRODUCTS OR THIRD -PARTY PRODUCTS NOT BEING
AVAILABLE FOR USE BY CUSTOMER.
A. With respect to Customer's use of the Software (1) neither Dell nor any of the
Dell Parties makes any express or implied warranty that Software provided to
Customer in connection with this Agreement is or will be secure, accurate,
complete, uninterrupted, without error, or free of viruses, worms, other
harmful components, or other program limitations; or that any errors in the
Software will be corrected; (2) Customer assumes the entire cost of all
necessary servicing, repair, or correction of problems caused by viruses or
other harmful components, unless such errors or viruses are the direct result of
dell's gross negligence or willful misconduct; (3) Dell and the Dell Parties,
jointly and severally, disclaim and make no warranties or representations as to
the accuracy, quality, reliability, suitability, completeness, truthfulness,
usefulness, or effectiveness of any reports, data, results, or other information
obtained or generated by Customer related to Customer's use of the Software;
and (4) use of the Software is entirely at Customer's own risk and neither Dell
nor the Dell Parties shall have any liability relating to such use.
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THIRD PARTY PRODUCTS. To the extent Dell has the right to do so under its
agreements with any third parties Dell shall pass through to Customer all third Party
warranties as Dell receives from such third party in its contracts.
Dell Return Policy (U.S. only)
Dell offers Customers the option to return most products Customer purchases
directly from Dell. Customer may return eligible products for a credit or a refund of
the purchase price paid, less shipping and handling and any applicable restocking
fees, as set forth in detail below.
30 -Day Return Period for Certain Hardware and Software Products and
Accessories: Except as provided below, all hardware, accessories, peripherals, parts,
and certain media -based software that is unopened and still in its sealed package may
be returned within 30 days from the date on the packing slip or invoice for a credit or
a refund of the purchase price paid, less shipping and handling and any applicable
restocking fees. Any product returned to Dell without prior authorization from Dell
will be considered an unauthorized return, and the customer will not receive credit
for the product and Dell will not ship the product back to you.
Notations and Exceptions to Dell's 30 -Day Return Period:
N
ew PowerEdge, PowerConnect, and PowerVault products purchased directly
from Dell may be returned within 30 days from the date on the packing slip or
invoice.
a New
Vostro, Optiplex, Latitude, and Dell Precision systems purchased directly
from divisions designated by Dell as Commercial or Public may be returned
within 30 days from the date on the packing slip or invoice.
Application
software and operating systems that have been installed by Dell may be
returned only if installed on a returnable system, and only if Customer returns
that system within the applicable return period.
Software licenses purchased
under any type of volume license agreement may be returned only with the
express approval of the publisher, which in many circumstances will not be
granted.
Restocking Fees: Unless the product is defective or the return is a direct result of a
Dell error, Dell may charge a restocking fee of up to 15% of the purchase price paid,
plus any applicable sales tax.
How to Return a Product: Before returning a product, Customer must first contact
Dell customer service and obtain a Credit Return Authorization (CRA) number before
the end of the applicable return period. Dell will not accept returns without a CRA
number. To find the appropriate phone number or to send an e-mail to customer
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service to request a CRA number, go to www.dell.com/contact, or see the
"Contacting Dell" or "Getting Help" section of a Customer's specific documentation.
NOTE: Customer must ship the product to Dell within5 days of the date that Dell
issues the Credit Return Authorization number as follows:
Ship back all products Customer is
seeking to return to Dell and for which Customer received a CRA number. For
partial returns, a Customer's credit may be less than the invoice or individual
component price due to bundled or promotional pricing or any unadvertised
discounts or concessions.
0 Return the products in their original packaging, in as -
new condition, along with any media, documentation, and any other items that
were included in Customer's original shipment.
Ship the products at Customer's expense, and insure the
shipment or accept the risk of loss or damage during shipment.
Upon receipt of Customer's return, Dell will issue a credit or a refund of the purchase
price paid, less shipping and handling and any applicable restocking fees subject to
this policy.
Note: Before a Customer returns the product to Dell, make sure to back-up any data
on the hard drive(s) and on any other storage device in the product. Remove any and
all confidential, proprietary, and personal inforination as well as removable media
such as floppy disks, CDs, and PC Cards. Dell is not responsible for any confidential,
proprietarj; or personal information; lost or corrupted data; or damaged or lost
removable media that may be included with a Customer's return.
Services Warranty:
Limited Warranty. VENDOR WARRANTS THAT SERVICES WILL BE
PERFORMED IN A GOOD AND WORKMANLIKE MANNER. EXCEPT AS
EXPRESSLY STATED IN THE PRECEDING SENTENCE, VENDOR
(INCLUDING ITS AFFILIATES, SUBCONTRACTORS AND AGENTS) AND
EACH OF THEIR RESPECTIVE EMPLOYEES, DIRECTORS AND
OFFICERS (COLLECTIVELY, THE "VENDOR PARTY(IES)") MAKES NO
EXPRESS OR IMPLIED WARRANTIES WITH RESPECT TO ANY OF THE
SERVICES OR DELIVERABLES, INCLUDING BUT NOT LIMITED TO,
ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, PERFORMANCE, SUITABILITY OR NON -
INFRINGEMENT; OR ANY WARRANTY RELATING TO THIRD -PARTY
PRODUCTS OR THIRD -PARTY SERVICES.
High -Risk Application Disclaimer. THE SERVICES ARE NOT FAULT-
TOLERANT AND ARE NOT DESIGNED OR INTENDED FOR USE IN
HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE
PERFORMANCE, INCLUDING WITHOUT LIMITATION, IN THE
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OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR
COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, WEAPONS
SYSTEMS, LIFE-SUPPORT MACHINES, OR ANY OTHER APPLICATION
IN WHICH THE FAILURE OF THE SERVICES COULD LEAD DIRECTLY
TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR PROPERTY
DAMAGE (COLLECTIVELY, "HIGH-RISK ACTIVITIES"). VENDOR
EXPRESSLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY OF
FITNESS FOR HIGH-RISK ACTIVITIES.
F. Section 6. Contract Fulfillment and Promotion, E. Internet Access to Contract
and Pricing Information 1) Vendor Website, is hereby replaced in its entirety:
Vendor will maintain a website specific to the products and services being offered
under the Contract which is clearly distinguishable from other, non-DIR contract
offerings at the Vendor's website. The website must include at a minimum:
A. The Contract number and a statement that the customer must reference the
Contract Number on their purchase order.
B. A statement designating who can procure through the Contract.
C. Examples of products and services offered under the Contract.
D. Examples of product and services specifications, to the extent they exist and are
offered under the Contract.
E. Current Contract pricing — or how to obtain pricing.
F. Contact information for Vendor business segments (i.e., State and Local, Higher
Education, K-12, Healthcare, etc.).
G. Named Order Fulfillers and contact information for each designated Order
Fulfiller.
H. Instructions for obtaining quotes and placing Purchase Orders through Vendor
direct or through a designated Order Fulfiller.
1. Warranty policy terms and conditions, if applicable.
J. Return policy terms and conditions, if applicable.
The Vendor's website shall list the DIR Contract number, reference the DIR
Cooperative Contracts program, display the DIR logo in accordance with the
requirements in paragraph F of this Section, and contain a link to the DIR, website for
the Contract.
G. Section 6. Contract Fulfillment and Promotion, G. Vendor and Order Fulfiller
Logo, is hereby replaced in its entirety:
DIR may use the Vendor's and Order Fulfiller's name and logo in the promotion of
the Contract to communicate the availability of products and services under the
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DIR Contract No. DIR-SDD-1951
Vendor Contract No.
Contract to Customers. Use of the logos may be on the DIR website or on printed
materials. Any use of Vendor's and Order Fulfiller's logo by DIR must comply with
and be solely related to the purposes of the Contract and any usage guidelines
communicated to DIR from time to time. Nothing contained in the Contract will give
DIR any right, title, or interest in or to Vendor's or Order Fulfiller' trademarks or the
goodwill associated therewith, except for the limited usage rights expressly provided
by Vendor and Order Fulfiller. Dell's logo is subject to Dell's corporate compliance
usage rules.
H. Section 6. Contract Fulfillment and Promotion, H. Trade Show Participation, is
hereby replaced in its entirety:
At DIR's discretion, Vendor may be required to participate in no more than two (2)
DIR sponsored trade shows each calendar year. Vendor understands and agrees that
participation, at the Vendor's expense, includes providing a manned booth display or
similar presence. DIR will provide four months advance notice of any required
participation. Vendor must display the DIR logo at all such trade shows in the State
of Texas that potential Customers will attend. DIR reserves the right to approve or
disapprove of the location or the use of the DIR logo in or on the Vendor's or Order
Fulfiller's booth.
I. Section 7. Purchase Orders, Invoices and Payments, is hereby replaced in its
entirety:
A. Purchase Orders
All Customer Purchase Orders will be placed directly with the Order Fulfiller.
Accurate Purchase Orders shall be effective and binding upon Order Fulfiller when
accepted by Order Fulfiller.
B. Invoices
Invoices shall be submitted by the Vendor directly to the Customer and shall be
issued in compliance with Chapter 2251, Texas Government Code. All payments for
services purchased under the Contract and any provision and receipt of such services
shall be made by the Customer to the Vendor.
Invoices must be timely and accurate. Each invoice must match Customer's Purchase
Order and include any written changes that may apply, as it relates to services, prices
and quantities. Invoices must include the Customer's Purchase Order number or other
pertinent information for verification of receipt of the services by the Customer.
C. Payments
The parties shall comply with Chapter 2251, Texas Government Code, in invoicing
and making payments. Payments for goods and services are due thirty (30) days after
the goods are provided, the services completed, or a correct invoice is received,
whichever is later. Payment under the Contract shall not foreclose the right to recover
wrongful payments.
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D. Acceptance
Customer and Vendor may establish terms for acceptance of Products and Services.
Absent other terms of acceptance agreed to by Customer and Vendor, the following
terms will apply. With respect to Vendor -branded products delivered to Customers
under the Contract that have Vendor -published specifications, and with respect to
Services provided to Customers by Vendor under the Contract that have mutually
agreed upon specifications described in a Purchase Order executed by the Customer
and Vendor (respectively, the "Specifications"), Customer shall determine whether
such products and Services meet the applicable Specifications. If the product or
Service meets the Specifications applicable to it, the Customer agrees to accept such
product or Service. Unless otherwise agreed upon by the Customer and Vendor, a
product or service shall be deemed accepted if the Customer does not, within ten (10)
calendar days from the date such product or service is delivered, issue to Vendor a
written notice of partial acceptance or rejection of the product or service based on the
fact that the product or service did not meet the Specifications applicable to it
("Deemed Acceptance" or "Deemed Accepted)).
No payment shall due for any such product or Service until the Customer either
accepts the product or service or such product or service is Deemed Accepted.
1. Section 8. Contract Administration, B. Reporting and Administrative Fees, 2)
Detailed Monthly Report, is hereby replaced in its entirety:
Vendor shall electronically provide DIR with a detailed monthly report in the format
required by DIR showing the dollar volume of any and all sales under the Contract
for the previous month period. Reports shall be submitted to the DIR ICT
Cooperative Contracts E -Mail Box at ict.sales(2cdir.texas.gov. Reports are due on the
fifteenth (15th) calendar day after the close of the previous month period. If such
date falls on a holiday or weekend, the report shall be due the first business day
following. It is the responsibility of Vendor to collect and compile all sales under the
Contract from participating Order Fulfillers and submit one (1) monthly report. The
monthly report shall include, per transaction: the detailed sales for the period, the
Order Fulfiller's company name, if applicable, Customer name, invoice date, invoice
number, description, SKU, manufacturer, quantity, unit price, extended price,
Customer Purchase Order number, contact name if provided, Customer's complete
billing address, Manufacturer's Suggested Retail Price and other information as
reasonably required by DIR. Each report must contain all information listed above
per transaction or the report will be rejected and returned to the Vendor for correction
in accordance with this section.
K. Section 8. Contract Administration, B. Reporting and Administrative Fees, 4)
DIR Administrative Fee, is hereby replaced in its entirety:
a) An administrative fee shall be paid by Vendor to DIR to defray the DIR costs of
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DIR Contract No. DIR-SDD-1951
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negotiating, executing, and administering the Contract. The maximum administrative
fee is set by the Texas Legislature in the biennial General Appropriations Act.
Payment of the administrative fee shall be due on the fifteenth (15th) calendar day
after the close of the previous month period. DIR may change administrative fee
amounts; however, no revision will take effect before ninety (90) days following
written notice. Vendor may revise pricing to reflect the change in administrative fees.
b) Vendor shall reference the DIR Contract number on any remittance instruments.
L. Section 8. Contract Administration, B. Reporting and Administrative Fees, 5)
Accurate and Timely Submission of Reports, is hereby replaced in its entirety:
a) The reports and administrative fees shall be accurate and timely and submitted in
accordance with the due dates specified in this section. Vendor shall correct any
inaccurate reports or administrative fee payments within a maximum of five business
days upon written notification by DIR. Vendor shall deliver any late reports or late
administrative fee payments within a maximum of five business days upon written
notification by DIR. If Vendor is unable to correct inaccurate reports or administrative
fee payments or deliver late reports and fee payments within a maximum of five
business days, Vendor must contact DIR and provide a corrective plan of action,
including the timeline for completion of correction. The corrective plan of action shall
be subject to DIR approval.
b) Should Vendor fail to correct inaccurate reports or cure the delay in timely delivery
of reports and payments within the corrective plan of action timeline, DIR reserves the
right to require an independent third party audit of the Vendor's records as specified in
C.3 of this Section, at DIR's expense.
c) Failure to timely submit three (3) reports within any rolling twelve (12) month
period may, at DIR's discretion, result in termination of Vendor's Contract.
M. Section 8. Contract Administration, C. Records and Audit, is hereby
replaced in its entirety:
1) Acceptance of funds under the Contract by Vendor and/or Order Fulfiller acts as
acceptance of the authority of the State Auditor's Office, or any successor agency, to
conduct an audit or investigation in connection with those funds. Vendor further
agrees to cooperate fully with the State Auditor's Office or its successor in the
conduct of the audit or investigation, including providing all records requested.
Vendor will ensure that this clause concerning the authority to audit funds received
indirectly by subcontractors through Vendor or directly by Order Fulfillers and the
requirement to cooperate is included in any subcontract or Order Fulfiller contract it
awards pertaining to the Contract. Under the direction of the Legislative Audit
Committee, a Vendor that is the subject of an audit or investigation by the State
Auditor's Office must provide the State Auditor's Office with access to any
information the State Auditor's Office considers relevant to the investigation or audit.
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2) Vendor shall maintain adequate records relating to the requirements of this
Contract and relevant to the performance of the Contract to DIR, to establish
compliance with the Contract until the later of a period of four (4) years after
termination of the Contract or until full, final and unappealable resolution of all
Compliance Check or litigation issues that arise under the Contract. Such records
shall include per transaction: Customer name, invoice date, invoice number,
description, quantity, unit price, extended price, Customer Purchase Order number,
contact name, Customer's complete billing address, the calculations supporting each
administrative fee owed DIR under the Contract, Historically Underutilized
Businesses Subcontracting reports, and such other documentation as DIR may
request.
3) Vendor and/or Order Fulfillers shall grant access to all paper and electronic
records, books, documents, accounting procedures, practices and any other items
relevant to the performance of the Contract to the DIR Internal Audit department or
DIR Contract Management staff, including the compliance checks designated by the
DIR Internal Audit department, DIR Contract Management staff, the State Auditor's
Office, and of the United States, and such other persons or entities designated by DIR
for the purposes of inspecting, Compliance Checking and/or copying such books and
records. Vendor and/or Order Fulfillers shall provide copies and printouts requested
by DIR without charge. DIR shall provide Vendor and/or Order Fulfillers ten (10)
business days' notice prior to inspecting, Compliance Checking, and/or copying
Vendor's and/or Order Fulfiller's records. Vendor's and/or Order Fulfillers records,
whether paper or electronic, shall be made available during regular office hours.
Vendor and/or Order Fulfiller personnel familiar with the Vendor's and/or Order
Fulfiller's books and records shall be available to the DIR Internal Audit department,
or DIR Contract Management staff and designees as needed. Vendor and/or Order
Fulfiller shall provide adequate office space to DIR staff during the performance of
Compliance Check. If any audit reveals a Material Accounting Error, Vendor must
reimburse DIR for actual and reasonable costs of such audit. Material Aceountin�
Error means (a) with regard to audits of invoices, an aggregate variance from all
applicable invoices of Vendor reviewed during such audit in excess of 1.5% of the
aggregate amount shown on all of the invoices reviewed during such audit; and (b)
with regard to audits of fees, an aggregate underpayment of all fees due to DIR under
this Contract during a Vendor fiscal quarter in excess of 5%.
N. Section 9. Vendor Responsibilities, A. Indemnification, 1) Acts and
Omissions is hereby replaced in its entirety:
Vendor shall indemnify and hold harmless the State of Texas and Customers,
AND/OR THEIR OFFICERS, AGENTS, EMPLOYEES, REPRESENTATIVES,
CONTRACTORS, ASSIGNEES, AND/OR DESIGNEES FROM AND AGAINST
ANY AND ALL THIRD PARTY CLAIMS FOR LIABILITY, ACTIONS, CLAIMS,
DEMANDS, OR SUITS, AND ALL RELATED COSTS, ATTORNEY FEES, AND
EXPENSES arising out of, or resulting from any acts or omissions of the Vendor or
its agents, employees, subcontractors, Order Fulfillers, or suppliers of subcontractors
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in the execution or performance of the Contract and any Purchase Orders issued
under the Contract resulting in bodily injury (including death) or damage to tangible
property and to the extent caused by Dell or its Order Fulfillers, Agents, Resellers or
subcontractors. VENDOR'S OBLIGATIONS TO INDEMNIFY AND HOLD
HARMLESS ARE NOT SUBJECT TO OR LIMITED BY CONTRIBUTORY
NEGLIGENCE. VENDOR SHALL PAY ALL COSTS OF DEFENSE INCLUDING
REASONABLE ATTORNEYS FEES. The defense shall be coordinated by the
Office of the Attorney General FOR TEXAS STATE AGENCIES OR BY
CUSTOMER'S LEGAL COUNSEL FOR NON -STATE AGENCY CUSTOMERS,
VENDOR'S COUNSEL FOR VENDOR, AND BY CUSTOMERS COUNSEL FOR
NON -STATE AGENCY CUSTOMERS AND VENDOR MAY NOT AGREE TO
ANY SETTLEMENT AS TO CLAIMS AGAINST TEXAS STATE AGENCIES
WITHOUT FIRST OBTAINING CONCURRENCE FROM THE OFFICE OF THE
ATTORNEY GENERAL.
O. Section 9. Vendor Responsibilities, A. Indemnification, 2) Infringements
is hereby replaced in its entirety:
a) Vendor shall indemnify and hold harmless the State of Texas and Customers,
AND/OR THEIR EMPLOYEES, AGENTS, REPRESENTATIVES,
CONTRACTORS, ASSIGNEES, AND/OR DESIGNEES, from any and all third
party claims involving infringement of United States patents, copyrights, trade and
service marks, and any other intellectual or intangible property rights in connection
with the PERFORMANCES of Services or the provision of Dell -branded Products by
VENDOR PURSUANT TO THIS CONTRACT. "Dell -Branded Products" shall
mean hardware products (including all Dell standard components and parts contained
within the Dell system), components, or parts bearing the Dell logo that are included
on Seller's standard price list.
VENDOR and the CUSTOMER agree to furnish timely written notice to each other
of any such claim. VENDOR SHALL BE LIABLE TO PAY ALL COSTS OF
DEFENSE OF THE CLAIMS AS SPECIFIED IN THIS SECTION INCLUDING
ATTORNEYS' FEES. The defense shall be coordinated by the Office of the Attorney
General FOR TEXAS STATE AGENCY CUSTOMERS, Vendor's Counsel for
Vendor, AND BY CUSTOMER'S LEGAL COUNSEL FOR NON -STATE
AGENCY CUSTOMERS AND VENDOR MAY NOT AGREE TO ANY
SETTLEMENT AS TO CLAIMS AGAINST TEXAS STATE AGENCIES
WITHOUT FIRST OBTAINING CONCURRENCE FROM THE OFFICE OF THE
ATTORNEY GENERAL. In addition, the foregoing IP obligations shall extend to
third party claims involving infringement of United States patents, copyrights, trade
and service marks, and any other intellectual or intangible property rights in
connection with Vendor's sale of third party equipment and license of third party
software under this Contract, if and to the extent the applicable third party equipment
manufacturer or third party software licensor is contractually obligated to Vendor to
provide indemnification for such claims.
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b) Notwithstanding the foregoing, Vendor shall have no obligation under this Section
for any claim to the extent that it results or arises from (1) Customer's modifications
of such products, services or deliverables that were not performed by or on behalf of
Vendor; (2) the combination, operation or use of such product, service or deliverable
in connection with a third -party product or service (the combination of which causes
the infringement); or (3) Vendor's compliance with Customer's written specifications
(to the extent such specifications were not developed by Vendor) or directions,
including the incorporation of any software or other materials or process provided by
or requested by Customer, provided that, in the first case, Vendor's employees who
complied with Customer's specifications did not have actual knowledge that such
specifications infringe one or more United States patents, copyrights, trade and
service marks, and any other intellectual or intangible property rights and fails to so
inform Customer. In the event Vendor has no obligation for a claim as set forth
above, Vendor agrees to provide such assistance (e.g., producing documents and its
employees as witnesses) as is reasonably requested by the Attorney General in
connection with the Attorney General's defense of such claim.
c) If Vendor becomes aware of an actual or potential claim, or Customer provides
Vendor with notice of an actual or potential claim, Vendor may (or in the case of an
injunction against Customer, shall), at Vendor's sole option and expense: (i) procure
for the Customer the right to continue to use the affected portion of the product or
service, or (ii) modify or replace the affected portion of the product or service with
functionally equivalent or superior product or service so that Customer's use is non -
infringing, or (iii) provide a refund that reflects reasonable depreciation for time of
use, and for services/custom software, (iii) applies only if the remedies described in
subparts (i) and (ii) are not obtainable despite Vendor's commercially reasonable
efforts. This subsection states Customer's exclusive remedies for any third -party
intellectual property claim. Notwithstanding the foregoing, if Vendor provides the
remedy described in subpart (iii) and the affected Customer incurs transition expenses
relating to the replacement in such Customer's IT environment of the affected portion
of Dell -Branded Products or services, such Customer may tender to Vendor a claim
for such actual and reasonable transition expenses in an amount up to the difference
between (y) the original purchase price for the affected portion of the product or
service being removed and (z) the refund provided to such Customer pursuant to
subpart (iii), above, and Vendor will pay such claim..
P. Section 9. Vendor Responsibilities, B. Taxes/Worker's Compensation/
UNEMPLOYMENT INSURANCE is hereby replaced in its entirety:
VENDOR AGREES AND ACKNOWLEDGES 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,
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AND WORKERS' COMPENSATION. VENDOR AGREES AND
ACKNOWLEDGES THAT VENDOR ITS EMPLOYEES, REPRESENTATIVES,
AGENTS OR SUBCONTRACTORS SHALL NOT BE ENTITLED TO ANY
STATE BENEFIT OR BENEFIT OF ANOTHER GOVERNMENTAL ENTITY
CUSTOMER AS A RESULT OF WORKING UNDER T141S CONTRACT. THE
CUSTOMER AND/OR THE STATE SHALL NOT BE LIABLE TO THE VENDOR
ITS EMPLOYEES, AGENTS, OR OTHERS FOR THE PAYMENT OF TAXES OR
THE PROVISION OF UNEMPLOYMENT INSURANCE AND/OR WORKERS'
COMPENSATION OR ANY BENEFIT AVAILABLE TO A STATE EMPLOYEE
OR EMPLOYEE OF ANOTHER GOVERNMENTAL ENTITY CUSTOMER AS A
RESULT OF ITS PERFORMANCE UNDER THIS CONTRACT.
2) VENDOR AGREES TO INDEMNIFY AND HOLD HARMLESS CUSTOMERS,
THE STATE OF TEXAS AND/OR THEIR EMPLOYEES, AGENTS,
REPRESENTATIVES, CONTRACTORS, ASSIGNEES, AND/OR DESIGNEES
FROM ANY AND ALL LIABILITY, ACTIONS, CLAIMS, DEMANDS, OR
SUITS, AND ALL RELATED COSTS, ATTORNEY FEES, AND EXPENSES,
RELATING TO TAX LIABILITY, UNEMPLOYMENT INSURANCE AND/OR
WORKERS' COMPENSATION OR EXPECTATIONS OF BENEFITS BY
VENDOR, ITS EMPLOYEES, REPRESENTATIVES, AGENTS OR
SUBCONTRACTORS IN ITS PERFORMANCE UNDER THIS CONTRACT.
VENDOR SHALL BE LIABLE TO PAY ALL COSTS OF DEFENSE INCLUDING
REASONABLE ATTORNEYS' FEES FOR CLAIMS UNDER THIS CLAUSE AS
A RESULT OF ITS PERFORMANCE UNDER THIS CONTRACT.
THE DEFENSE SHALL BE COORDINATED BY THE OFFICE OF THE
ATTORNEY GENERAL FOR TEXAS STATE AGENCY CUSTOMERS,
VENDOR'S COUNSEL FOR VENDOR AND BY CUSTOMER'S LEGAL
COUNSEL FOR NON -STATE AGENCY CUSTOMERS, AND VENDOR MAY
NOT AGREE TO ANY SETTLEMENT AS TO CLAIMS AGAINST TEXAS
STATE AGENCIES WITHOUT FIRST OBTAINING CONCURRENCE FROM
THE OFFICE OF THE ATTORNEY GENERAL.
Q. Section 9. Vendor Responsibilities, C. Vendor Certifications, is hereby
replaced in its entirety:
Vendor certifies as of the effective date of this Contract, on behalf of Vendor and its
designated Order Fulfillers that they:
(i) have not given, offered to give, and do not intend to give at any time hereafter any
economic opportunity, future employment, gift, loan, gratuity, special discount,
trip, favor, or service to a public servant in connection with obtaining the
Contract;
(ii) are not currently delinquent in the payment of any franchise tax owed the State of
Texas and are not ineligible to receive payment under §231.006 of the Texas
Family Code and acknowledge the Contract may be terminated and payment
withheld if this certification is inaccurate;
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DIR Contract No. DIR-SDD-1951
Vendor Contract No.
(iii)neither they, nor anyone acting for them, have violated the antitrust laws of the
United States or the State of Texas, nor communicated directly or indirectly to
any competitor or any other person engaged in such line of business for the
purpose of obtaining an unfair price advantage;
(iv)have not received payment from DIR or any of its employees for participating in
the preparation of the Contract;
(v) under Section 2155.004, Texas Government Code, the vendor certifies that the
individual or business entity named in this bid or contract is not ineligible to
receive the specified contract and acknowledges that this contract may be
terminated and payment withheld if this certification is inaccurate;
(vi)to the best of their knowledge and belief, there are no suits or proceedings
pending or threatened against or affecting them, which if determined adversely
to them will have a material adverse effect on the ability to fulfill their
obligations under the Contract;
(vii) are not suspended or debarred from doing business with the federal
government as listed in the Excluded Parties List System (EPLS) maintained by
the General Services Administration;
(viii) as of the effective date of the Contract, are not listed in the prohibited vendors
list authorized by Executive Order #13224, "Blocking Property and
Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or
Support Terrorism ", published by the United States Department of the
Treasury, Office of Foreign Assets Control; (ix) to the extent applicable to this
scope of this Contract, Vendor hereby certifies that it is in compliance with
Subchapter Y, Chapter 361, Health and Safety Code related to the Computer
Equipment Recycling Program and its rules, 30 TAC Chapter 328;
(ix)agree that any payments due under this contract will be applied towards any debt,
including but not limited to delinquent taxes and child support that is owed by
Vendor to the State of Texas;
(x) are in compliance Section 669.003, Texas Government Code, relating to
contracting with executive head of a state agency;
(xi)have identified all current or former, within the last five years, employees of the
State of Texas assigned to work on the DIR Contract 20% or more of their time
and have disclosed them to DIR and have disclosed or do not employ any
relative of a current or former state employee within two degrees of
consanguinity, and, if these facts change during the course of the Contract,
certify they shall disclose the name and other pertinent information about the
employment of current and former employees and their relatives within two
degrees of consanguinity;
(xii) represent and warrant that the provision of goods and services or other
performance under the Contract will not constitute an actual conflict of
interest, and, if these facts change during the course of the Contract, certify
they shall disclose the actual or potential conflict of interest and any
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DIR Contract No. DIR-SDD-1951
Vendor Contract No.
circumstances that create the appearance of impropriety;
(xiii) under Section 2155.006, Government Code, are not ineligible to receive the
specified contract and acknowledge that this contract may be terminated and
payment withheld if this certification is inaccurate; and
(xiv) they acknowledge the applicability of §2155.444 and §2155.4441, Texas
Government Code, in fulfilling the terms of the Contract.
During the term of the Contract, Vendor shall, for itself and on behalf of its
Order Fulfillers, promptly disclose to DIR all changes that occur to the
foregoing certifications, representations and warranties. Vendor covenants to
fully cooperate in the development and execution of resulting documentation
necessary to maintain an accurate record of the certifications, representations
and warranties.
In addition, Vendor understands and agrees that Vendor may be required to
comply with additional terms and conditions or certifications that an individual
customer may require due to applicable state and federal law (e.g, privacy and
security requirements).
R. Section 9. Vendor Responsibilities, G. Responsibility for Actions, is hereby
replaced in its entirety:
1) Vendor is solely responsible for its actions and those of its agents, employees, or
subcontractors, and agrees that neither Vendor nor any of the foregoing has any
authority to act or speak on behalf of DIR or the State.
S. Section 9. Vendor Responsibilities, 1. Security of Premises, Equipment,
Data and Personnel, is hereby replaced in its entirety:
(a) Vendor and/or Order Fulfiller may, from time to time during the performance of the
Contract, have access to the personnel of Customers and the premises, equipment,
and other tangible property belonging to the Customer. Vendor shall use
commercially reasonable efforts to preserve the safety of such personnel and the
safety, security, and the integrity of such premises, equipment, and other tangible
property, in accordance with the instruction of the applicable Customer provided to
Vendor or the applicable Order Fulfiller by the Customer in writing or in the manner
that Customer generally provides such instructions to its own employees and other
contractors. Vendor shall be responsible for damage to Customer's premises,
equipment and other tangible property when such damage is caused by its employee
or subcontractor. If Vendor and/or an Order Fulfiller materially fails to comply with
the applicable Customer's security requirements, then such Customer may
immediately terminate its Purchase Order and related Service Agreement.
(b) In addition, Vendor and/or Order Fulfiller may, from time to time during performance
of the Contract, have access to Customer's data ("Data") that is hosted either at
Customer's or a third party's premises (other than premises of Vendor's Affiliates or
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Vendor Contract No.
subcontractors) (collectively, "Customer Premises") or at Vendor's premises or the
premises of Vendor's Affiliates or subcontractors (collectively, "Vendor Premises").
(i) As to Data hosted at any Customer Premises, Vendor shall comply with
Customer's instructions related to preserving the safety, security and integrity of
such Data provided to Vendor or the applicable Order Fulfiller by the Customer in
writing or in the manner that Customer generally provides such instructions to its
own employees and other contractors.
(ii) As to Data hosted at any Vendor Premises, Vendor will comply with its generally
applicable security standards designed to preserve the safety, security and
integrity of such Data, as well as any additional security obligations expressly
agreed in the applicable Statement of Work executed by Customer and Vendor.
(iii)Notwithstanding anything to the contrary in this Agreement, including this
Section 9.1, except as otherwise expressly provided in a Statement of Work
executed by Customer and Vendor, (A) Customer is responsible for backing up
its own Data, (B) Vendor and Order Fulfiller shall not have operational or
financial responsibility for refreshes, upgrades, modifications or improvements to
Customer -provided facilities, equipment or software that may be required to
preserve the safety, security and integrity of such Data, and (C) if Vendor or
Order Fulfiller's compliance with Customer's instructions constitutes a material
change to the scope of Services or their other obligations, the parties will
equitably adjust the charges to account for such material change. Vendor and
Order Fulfiller shall not be responsible, or liable for any damages, for any Data
losses to the extent such Data cannot be retrieved due to Customer's (or
Customer's applicable third party vendor's) failure to use standard industry
practices relating to data backups and retrieval of Data.
(iv)If Vendor has Data backup responsibility under the applicable Statement of Work,
Vendor shall be operationally and financially responsible for restoring such Data
that is lost or corrupted as soon as reasonably practicable in accordance with its
Data restore responsibilities set forth in the Statement of Work, provided that, if
the loss or corruption of Data results from a Force Majeure Event or other event
for which Vendor's non-performance is excused, then Vendor and Customer will
equitably adjust the charges to account for the additional effort incurred by
Vendor in restoring the Data to the extent such additional charges result from
activities in addition to the responsibilities Vendor is expressly obligated to
perform under the applicable Statement of Work. In either of the foregoing cases
in which additional charges may apply, Vendor will consult with the applicable
Customer before performing such restoration, and the applicable Customer may,
at its discretion, direct Vendor not to restore the Data.
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T. Section 9. Vendor Responsibilities, J. Background and/or Criminal
History Investigation, is hereby replaced in its entirety:
Prior to commencement of any services, background and/or criminal history
investigation of the Vendor's employees and subcontractors who will be providing
services to the Customer under the Contract may be performed by Vendor or
Customers (as required by Customer) , provided this requirement is added to the
applicable specific Purchase Order between such Customer and Vendor. Should any
employee or subcontractor of the Vendor who will be providing services to the
Customer under such Purchase Order not be acceptable to the Customer as a result of
the background and/or criminal history check, then Customer may immediately
require replacement of the employee or subcontractor in question. If Vendor fails to
promptly replace the employee or subcontractor personnel, then Customer may
immediately terminate its Purchase Order and related Service Agreement.
U. Section 9. Vendor Responsibilities, K. Limitation of Liability, is hereby
replaced in its entirety:
For any claim or cause of action arising out of or related to the Contract: i) to the
extent permitted by the Constitution and the laws of the State of Texas, none of the
parties shall be liable to the other for indirect, punitive, special, or consequential
damages, even if it is advised of the possibility of such damages; and ii) Vendor's
cumulative liability for all claims and damages of any kind to all Customers under the
Contract shall be limited, in the aggregate, to $5,000,000. The foregoing limitations
shall apply regardless of whether the claim for such damages is based in contract,
warranty, strict liability, negligence, tort or otherwise. Insofar as applicable law
prohibits any limitation herein, the parties agree that such limitation will be
automatically modified, but only to the extent so as to make the limitation permitted
to the fullest extent possible under such law. However, this limitation of Vendor's
liability shall not apply to Vendor's indemnification obligations for claims of patent,
trademark, or copyright infringement of Vendor -branded products or Vendor -
provided services and deliverables as set forth in Section 9.A.3.
V. Section 9. Vendor Responsibilities, L. Overcharges, is hereby replaced in
its entirety:
Vendor hereby assigns to DIR any and all of its claims for overcharges associated
with this contract which arise under the antitrust laws of the United States, 15
U.S.C.A. Section 1, et seq., and which arise under the antitrust laws of the State of
Texas, Tex. Bus. and Comm. Code Section 15.01, et seq., to the extent that such
overcharge was, in fact, passed on to DIR or its Customers in the computer products
or other goods and/or services purchased by DIR or its Customers under this Contract
during the time period referenced in the litigation.
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Vendor Contract No.
W. Section 9. Vendor Responsibilities, M. Prohibited Conduct, is hereby
deleted in its entirety.
X. Section 9. Vendor Responsibilities, N. Required Insurance Coverage, is
hereby replaced in its entirety:
As a condition of this Contract with DIR, Vendor shall provide the listed insurance
coverage within 5 days of execution of the Contract if the Vendor is awarded services
which require that Vendor's employees perform work at any Customer premises
and/or use employer vehicles to conduct work on behalf of Customers. In addition,
when engaged by a Customer to provide services on Customer premises, the Vendor
shall, at its own expense, secure and maintain the insurance coverage specified
herein, and shall provide proof of such insurance coverage to the related Customer
within five (5) business days following the execution of the Purchase Order. Vendor
may not begin performance under the Contract and/or a Purchase Order until such
proof of insurance coverage is provided to, and approved by, DIR and the Customer.
All required insurance must be issued by companies that are A- financially rated and
duly licensed evaluated by AM Best Company as having financial strength ratings of
"A-" or better, and are admitted and authorized to do business in the State of Texas.
The Customer and DIR will be named as Additional Insureds on all required coverage
with the exception of Workers' Compensation and Employers Liability coverage.
Required coverage must remain in effect through the term of the Contract and each
Purchase Order issued to Vendor there under. The minimum acceptable insurance
provisions are as follows:
1) Commercial General Liability
Commercial General Liability must include a combined single limit of $500,000 per
occurrence for coverage A, B, & C including products/completed operations, where
appropriate, with a separate aggregate of $500,000. The policy shall contain the
following provisions:
a) Blanket contractual liability coverage for liability assumed under the Contract;
b) Independent Contractor coverage;
c) State of Texas, DIR and Customer listed as an additional insured;
d) Notice of Termination in favor of DIR and/or Customer; and
e) Waiver of Transfer Right of Recovery Against Others in favor of DIR and/or
Customer.
2) Workers' Compensation Insurance
Workers' Compensation Insurance and Employers' Liability coverage must include
limits consistent with statutory benefits outlined in the Texas Workers' Compensation
Act (Art. 8308-1.01 et seq. Tex. Rev. Civ. Stat) and minimum policy limits for
Employers' Liability of $250,000 bodily injury per accident, $500,000 bodily injury
disease policy limit and $250,000 per disease per employee.
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3) Business Automobile Liability Insurance
Business Automobile Liability Insurance must cover all owned, non -owned and hired
vehicles with a minimum combined single limit of $500,000 per occurrence for
bodily injury and property damage. Alternative acceptable limits are $250,000 bodily
injury per person, $500,000 bodily injury per occurrence and at least $100,000
property damage liability per accident. The policy shall contain the following
endorsements in favor of DIR and/or Customer:
a) Waiver of Subrogation;
b) Notice of Termination; and
c) Additional Insured,
Y. Section 9. Vendor Responsibilities, S. Secure Erasure of Hard Disk Products
and/or Services, is hereby replaced in its entirety:
Vendor agrees that all products that are equipped with hard disk drives (e.g.,
computers, servers, printers, scanners, multifunction devices) shall have the capability
to erase data written to the hard drive prior to final disposition of such managed
service products and/or services, either at the end of the managed service product
and/or services' useful life or at the end of the Customer's managed service product
and/or services' useful life or the end of the related Customer Managed Services
Agreement for such products and/or services, in accordance with 1 TAC 202.28.
Z. Section 9. Vendor Responsibilities, T. Deceptive Trade Practices; Unfair
Business Practices, is hereby replaced in its entirety:
Vendor represents and warrants as of the Effective Date of this Contract, that neither
Vendor nor any of its Subcontractors has been (i) found liable in any administrative
hearing, litigation or other proceeding of Deceptive Trade Practices violations as
defined under Chapter 17, Texas Business & Commerce Code, or (ii) has outstanding
allegations of any Deceptive Trade Practice pending in any administrative hearing,
litigation or other proceeding.
Vendor certifies that it has no officers who have served as officers of other entities
who (i) have been found liable in any administrative hearing, litigation or other
proceeding of Deceptive Trade Practices violations or (ii) have outstanding
allegations of any Deceptive Trade Practice pending in any administrative hearing,
litigation or other proceeding.
AA. Section 9. Vendor Responsibilities, U. Drug Free Workplace Policy, is hereby
replaced in its entirety:
Vendor will comply with drug and alcohol rules and regulations that are legally
mandated for employers in the State of Texas. Vendor and Customers may agree to
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DIR Contract No. DIR-SDD-1951
Vendor Contract No.
more specific requirements for onsite services in a mutually agreed statement of
work.
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BB. Section 10. Contract Enforcement, B. Termination, a) Termination for Non -
Appropriation by Customer, is hereby replaced in its entirety:
Customer shall not place Purchase Orders if funds sufficient to pay its obligations
under the Contract are not appropriated: i) by the governing body on behalf of local
governments; ii) by the Texas legislature on behalf of state agencies; or iii) by budget
execution authority provisioned to the Governor or the Legislative Budget Board as
provided in Chapter 317, Texas Government Code. In the event of non -
appropriation, Vendor and/or Order Fulfiller will be provided ten (10) calendar days
written notice of intent to terminate. Notwithstanding the foregoing, if a Customer
issues a Purchase Order and has accepted delivery of the product or services, they are
obligated to pay for the product or services or they may return the product and
discontinue using services under any return provisions that Vendor offers. In the
event of such termination, the Customer will not be considered to be in default or
breach under this Contract, nor shall it be liable for any further payments ordinarily
due under this Contract, nor shall it be liable for any damages or any other amounts
which are caused by or associated with such termination. Notwithstanding the
foregoing, if a Customer issues a Purchase Order and has accepted delivery of the
product or services, they are obligated to pay for the product or services or they may
return products and discontinue using services under any return provisions that
Vendor offers.
CC. Section 10. Contract Enforcement, B. Termination, 3) Termination for Convenience,
is hereby replaced in its entirety:
DIR may terminate the Contract, in whole or in part, by giving the other party thirty
(30) calendar days written notice. A Customer may terminate a Purchase Order if it is
determined by the Customer that Order Fulfiller- will not be able to deliver product or
services prior to manufacturing process for products, and for services, in accordance
with a mutually agreed Statement of Work. For qualifying products, Custorner may
return following receipt, in accordance with the Return Policy in Appendix A, Section
6C.
DD. Section 10. Contract Enforcement, C. Force Majeure, is hereby replaced in its
entirety:
DIR, Customer, or Vendor may be excused from performance under the Contract for
any period when performance is prevented as the result of an act of God, strike, war,
civil disturbance, epidemic, or court order, provided that the party experiencing the
event of Force Majeure has prudently and promptly acted to take any and all steps
that are within the party's control to ensure performance and to shorten the duration
of the event of Force Majeure. The party suffering an event of Force Majeure shall
provide notice of the event to the other parties when commercially reasonable.
Subject to this provision, such non-performance shall not be deemed a default or a
ground for termination. However, a Customer may terminate a Purchase Order if 1)
its performance is or will be delayed by 20 days or more by event(s) of Force Majeure
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(or a longer period if agreed to by the Customer) and 2) if it is reasonably determined
by the Customer that Vendor will not be able to deliver services in a timely manner to
meet the business needs of the Customer.
EE. Section 13. Export Compliance, is hereby added:
Compliance/Export Restrictions. Dell and Customer acknowledge that Products
licensed or sold under this Agreement are subject to the export control laws and
regulations of the United States or those of other countries from which they were
supplied and in which they are used. Under U.S. laws and regulations, Products
purchased under this Agreement may not be sold, leased or otherwise transferred to
restricted end-users or to restricted countries. In addition, the products may not be
sold, leased or otherwise transferred to, or utilized by, an end-user engaged in
activities related to weapons of mass destruction, including but not necessarily limited
to, activities related to the design, development, production or use of nuclear
materials, nuclear facilities, or nuclear weapons, missiles or support of missile
projects, or chemical or biological weapons. Customer warrants that any software
provided by Customer and used as part of the Services contains no encryption or, to
the extent that it contains encryption, such software is approved for export without a
license. If Customer cannot make the preceding representation, Customer agrees to
provide Dell with all of the information needed for Dell to obtain export licenses from
the United States government and to provide Dell with such additional assistance as
may be necessary to obtain such licenses. Notwithstanding the foregoing, Customer is
solely responsible for obtaining any specific licenses relating to the export of software
if a license is needed. Dell may also require export certifications from Customer for
Customer provided software. Dell's acceptance of any order for Services is
contingent upon the issuance of any applicable export license required by the United
States Government; Dell is not liable for delays or failure to deliver a product
resulting from Customer's failure to obtain such license or to provide such
certification.
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Page 35 of 36
DIR Contract No. DIR-SDD-1951
Vendor Contract No.
This Contract is executed to be effective as of the date of last signature.
Dell Marketing, L.P.
Authorized By: signature on file
Name: Kelly L. O'Shieles
Title: Contracts Consultant
Date: 1/8/13
The State of Texas, acting by and through the Department of Information Resources
Authorized By: signature on file
Name: Carl Marsh
Title: Chief Operating Officer
Date: 1/9/13
Office of General Counsel: signature on file 1/9/13
Page 36 of 36
DIR Contract No. DIR-SDD-1951
Vendor Contract No.
This Contract is executed to be effective as of the date of last signature.
City of Round Rock, Texas
By:0�
Printed Nanje:
Title:
Date Signed:
For City, Attest:
By: mi ,
Sara L. White, City Clerk
For City, Appr as to orm:
By:
Stephan L Sheets, City Attorney
Appendix A
Standard Terms and Conditions For Product and Related Services Contracts
Table of Contents
1. Contract Scope....................................................................................................................... 1
2. No Quantity Guarantees......................................................................................................... 1
3. Definitions..............................................................................................................................1
4. General Provisions................................................................................................................. 2
A. Entire Agreement................................................................................................ 2
B. Modification of Contract Terms and/or Amendments .................................................. 2
C. Invalid Term or Condition............................................................................................ 2
D. Assignment................................................................................................................... 3
E. Survival.........................................................................................................................3
F. Choice of Law......................................................►.................................................. 3
G. Limitation of Authority...........................................................I ................. 3
5. Product Terms and Conditions.......................:...................................................................... 3
A.
Electronic and Information Resources Accessibility Standards, As Required
by 1 TAC Chapters 206 and 213 (Applicable io State Agency and
Institution of Higher Education Purchases Only) `........................................................
B.
Purchase of Commodity Items (Applicable to State Agency Purchases
Only)............................................................................................................................. 4
6. Contract
Fulfillment and Promotion...................................................................................... 4
A.
Service, Sales and Support of the Contract................................................................... 4
B.
Use of Order Fulfillers.................................................................................................. 5
1) Designation of Order Fulfillers............................................................................... 5
2) Changes in Order Fulfiller List............................................................................... 5
3) Order Fulfiller Pricing to Customer........................................................................ 5
C.
Product Warranty and Return Policies.......................................................................... 5
D.
Customer Site Preparation............................................................................................ 6
E.
Internet Access to Contract and Pricing Information................................................... 6
1), Vendor Website...................................................................................................... 6
2) Accurate and Timely Contract Information............................................................ 6
3) Website Compliance Checks.................................................................................. 6
4) Website Changes..................................................................................................... 6
5) Use of Access Data Prohibited............................................................................... 6
6) Responsibility for Content...................................................................................... 7
F.
DIR Logo...................................................................................................................... 7
G.
Vendor and Order Fulfiller Logo.................................................................................. 7
H.
Trade Show Participation.............................................................................................. 7
1.
Orientation Meeting...................................................................................................... 7
J.
Performance Review Meetings..................................................................................... 7
K.
DIR Cost Avoidance..................................................................................................... 8
06/08/12
Appendix A
Standard Terms and Conditions For Product and Related Services Contracts
7. Purchase Orders, Invoices, and Payments............................................................................. 8
A. Purchase Orders............................................................................................................ 8
B. Invoices......................................................................................................................... 8
C. Payments.......................................................................................................................8
8. Contract Administration......................................................................................................... 8
A.
Contract Administrators................................................................................................
8
1) State Contract Administrator..................................................................................
8
2) Vendor Contract Administrator..............................................................................
9
B.
Reporting and Administrative Fees.............................................................................. 9
1) Reporting Responsibility ........................................................................................
9
2) Detailed Monthly Report........................................................................................
9
3) Historically Underutilized Businesses Subcontract Reports ...................................
9
4) DIR Administrative Fee.......................................................................................... 9
5) Accurate and Timely Submission of Reports.......................................................
10
C.
Records and Audit.......................................................................................................
10
D.
Contract Administration Notification.........................................................................
t I
9. Vendor Responsibilities....................................................................................................... 11
A. Indemnification...................................................................................................I....... I 1
B. Taxes/Worker's Compensation/UNEMPLOYMENT INSURANCE ........................ 12
C. Vendor Certifications.................................................................................................. 13
D. Ability to Conduct Business in Texas......................................................................... 15
E. Equal Opportunity Compliance.................................................................................. 15
F. Use of Subcontractors................................................................................................. 15
G. Responsibility for Actions.......................................................................................... 15
H. Confidentiality............................................................................................................ 16
I. Security of Premises, Equipment, Data and Personnel ............................................... 16
J. Background and/or Criminal History Investigation.................................................... 16
K. Limitation of Liability................................................................................................. 16
L. Overcharges................................................................................................................ 17
M. Prohibited Conduct..................................................................................................... 17
N. Required Insurance Coverage..................................................................................... 17
O. Use of State Property.................................................................................................. 18
P. Immigration................................................................................................................. 18
Q. Public Disclosure........................................................................................................ 18
R. Product and/or Services Substitutions........................................................................ 19
S. Secure Erasure of Hard Disk Products and/or Services .............................................. 19
T. Deceptive Trade Practices; Unfair Business Practices ............................................... 19
U. Drug Free Workplace Policy...................................................................................... 19
10. Contract Enforcement.......................................................................................................... 19
A. Enforcement of Contract and Dispute Resolution...................................................... 19
B. Termination.................................................................................................................20
1) Termination for Non-Appropriation..................................................................... 20
06/08/12 ii
Appendix A
Standard Terms and Conditions For Product and Related Services Contracts
a) Termination for Non -Appropriation by Customer .................................................. 20
b) Termination for Non -Appropriation by DIR.......................................................... 20
2) Absolute Right ............................... ....................................................................... 20
3) Termination for Convenience............................................................................... 21
4) Termination for Cause.......................................................................................... 21
a) Contract...........................................................................................................21
b) Purchase Order................................................................................................ 21
5) Customer Rights Under Termination.................................................................... 21
6) Vendor or Order Fulfiller Rights Under Termination ........................................... 21
C. Force Majeure............................................................................................................. 22
11. Notification.......................................................................................................................... 22
A. Notices........................................................................................................................ 22
B. Handling of Written Complaints................................................................................. 22
12. Captions............................................................................................................................... 22
06/08/12 Ki
Appendix A
Standard Terms and Conditions For Product and Related Services Contracts
The following terms and conditions shall govern the conduct of DIR and Vendor during the term
of the Contract.
1. Contract Scope
The Vendor shall provide the products and related services specified in Section 3 of the
Contract for purchase by Customers. 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.
No Quantity Guarantees
The Contract is not exclusive to the Vendor. Customers may obtain products and related
services from other sources during the term of the Contract. DIR makes no express or
implied warranties whatsoever that any particular quantity or dollar amount of products
and related services will be procured through the Contract.
3. Definitions
A. Customer - any Texas state agency, unit of local government, institution of higher
education as defined in Section 2054.003, Texas Government Code, and those state
agencies purchasing from a DIR contract through an Interagency Agreement, as
authorized by Chapter 771, Texas Government Code, any local government as
authorized through the Interlocal Cooperation Act, Chapter 791, Texas Government
Code, and the state agencies and political subdivisions of other states as authorized by
Section 2054.0565, Texas Government Code and, except for telecommunications
services under Chapter 2170, Texas Government Code, assistance organizations as
defined in Section 2175.001, Texas Government Code to mean:
1) A non-profit organization that provides educational, health or human
services or assistance to homeless individuals;
2) A nonprofit food bank that solicits, warehouses, and redistributes edible
but unmarketable food to an agency that feeds needy families and
individuals;
3) Texas Partners of the Americas, a registered agency with the Advisory
Committee on Voluntary Foreign Aid, with the approval of the Partners
of the Alliance Office of the Agency for International Development;
4) A group, including a faith -based group, that enters into a financial or
non-financial agreement with a health or human services agency to
provide services to that agency's clients;
5) A local workforce development board created under Section 2308.253;
6) A nonprofit organization approved by the Supreme Court of Texas that
provides free legal services for low-income households in civil matters;
7) The Texas Boll Weevil Eradication Foundation, Inc., or an entity
designated by the commissioner of agriculture as the foundation's
successor entity under Section 74. 1011, Texas Agriculture Code;
8) A nonprofit computer bank that solicits, stores, refurbishes and
redistributes used computer equipment to public school students and
their families; and
9) A nonprofit organization that provides affordable housing.
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B. Compliance Check — an audit of Vendor's compliance with the Contract may be
performed by, but not limited to, a third party auditor, Dl Internal Audit department,
or DIR contract management staff or their designees.
C. Contract — the document executed between DIR and Vendor into which this
Appendix A is incorporated.
D. CPA — refers to the Texas Comptroller of Public Accounts.
E. Day - shall mean business days, Monday through Friday, except for State and Federal
holidays. If the Contract calls for performance on a day that is not a business day,
then performance is intended to occur on the next business day.
F. Order Fulfiller — the party, either Vendor or a party that may be designated by
Vendor, who is fulfilling a Purchase Order pursuant to the Contract.
G. Purchase Order - the Customer's fiscal form or format, which is used when malting
a purchase (e.g., formal written Purchase Order, Procurement Card, Electronic
Purchase Order, or other authorized instrument).
H. State — refers to the State of Texas.
4. General Provisions
A. Entire Agreement
The Contract, Appendices, and Exhibits constitute the entire agreement between DIR
and the Vendor. No statement, promise, condition, understanding, inducement or
representation, oral or written, expressed or implied, which is not contained in the
Contract, Appendices, or its Exhibits shall be binding or valid.
B. Modification of Contract Terms and/or Amendments
1) The terms and conditions of the Contract shall govern all transactions by
Customers under the Contract. The Contract may only be modified or amended upon
mutual written agreement of DIR and Vendor.
2) Customers shall not have the authority to modify the terms of the Contract;
however, additional Customer terms and conditions that do not conflict with the
Contract and are acceptable to Order Fulfiller may be added in a Purchase Order and
given effect. No additional term or condition added in a Purchase Order issued by a
Customer can conflict with or diminish a term or condition of the Contract. Pre-
printed terms and conditions on any Purchase Order issued by Customer hereunder
will have no force and effect. In the event of a conflict between a Customer's
Purchase Order and the Contract, the Contract term shall control.
3) Customers and Vendor will negotiate and enter into written agreements regarding
statements of work, service level agreements, remedies, acceptance criteria,
information confidentiality and security requirements, and other terms specific to
their Purchase Orders under the Contract with Vendors.
C. Invalid Term or Condition
1) To the extent any term or condition in the Contract conflicts with the applicable
Texas and/or United States law or regulation, such Contract term or condition is void
and unenforceable. By executing a contract which contains the conflicting term or
condition, DIR makes no representations or warranties regarding the enforceability of
such term or condition and DIR does not waive the applicable Texas and/or United
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States law or regulation which conflicts with the Contract term or condition.
2) If one or more term or condition in the Contract, or the application of any term or
condition to any party or circumstance, is held invalid, unenforceable, or illegal in
any respect by a final judgment or order of the State Office of Administrative
Hearings or a court of competent jurisdiction, the remainder of the Contract and the
application of the term or condition to other parties or circumstances shall remain
valid and in full force and effect.
D. Assignment
DIR or Vendor may assign the Contract without prior written approval to: i) a successor
in interest (for DIR, another state agency as designated by the Texas Legislature), or ii) a
subsidiary, parent company or affiliate, or iii) as necessary to satisfy a regulatory
requirement imposed upon a party by a governing body with the appropriate authority.
Assignment of the Contract under the above terms shall require written notification by
the assigning party. Any other assignment by a party shall require the written consent of
the other party. Each party agrees to cooperate to amend the Contract as necessary to
maintain an accurate record of the contracting parties.
E. Survival
All applicable software license agreements, warranties or service agreements that were
entered into between Vendor and a Customer under the terms and conditions of the
Contract shall survive the expiration or termination of the Contract. All Purchase Orders
issued and accepted by Order Fulfiller shall survive expiration or termination of the
Contract.
F. Choice of Law
The laws of the State of Texas shall govern the construction and interpretation of the
Contract. Exclusive venue for all actions with be in state court, Travis County, Texas.
Nothing in the Contract or its Appendices shall be construed to waive the State's
sovereign immunity.
G. Limitation of Authority
Vendor shall have no authority to act for or on behalf of the Texas Department of
Information Resources or the State of Texas except as expressly provided for in this
Contract; no other authority, power or use is granted or implied. Vendor may not incur
any debts, obligations, expenses, or liabilities of any kind on behalf of the State of Texas
or Texas Department of Information Resources.
5. Product Terms and Conditions
A. Electronic and Information Resources Accessibility Standards, As Required by 1
TAC Chapters 206 and 213 (Applicable to State Agency and Institution of
Higher Education Purchases Only)
1) Effective September 1, 2006 state agencies and institutions of higher education
shall procure products which comply with the State of Texas Accessibility
requirements for Electronic and Information Resources specified in 1 TAC Chapters
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206 and 213 when such products are available in the commercial marketplace or
when such products are developed in response to a procurement solicitation.
2) Upon request, but not later thirty (30) days after request, Vendor shall provide DIR
with a completed Voluntary Product Accessibility Template (VPAT) of the specified
product or a URL to the VPAT for reviewing compliance with the State of Texas
Accessibility requirements (based on the federal standards established under Section
508 of the Rehabilitation Act).
B. Purchase of Commodity Items (Applicable to State Agency Purchases Only)
1) Texas Government Code, §2157.068 requires State agencies to buy commodity
items, as defined in 5.8.2 below, in accordance with contracts developed by DIR,
unless the agency obtains an exemption from DIR.
2) Commodity items are commercially available software, hardware and technology
services that are generally available to businesses or the public and for which DIR
determines that a reasonable demand exists in two or more state agencies. Hardware
is the physical technology used to process, manage, store, transmit, receive or deliver
information. Software is the commercially available programs that operate hardware
and includes all supporting documentation, media on which the software may be
contained or stored, related materials, modifications, versions, upgrades,
enhancements, updates or replacements. Technology services are the services,
functions and activities that facilitate the design, implementation, creation, or use of
software or hardware. Technology services include seat management, staffing
augmentation, training, maintenance and subscription services. Technology services
do not include telecommunications services. Seat management is services through
which a state agency transfers its responsibilities to a vendor to manage its personal
computing needs, including all necessary hardware, software and technology services.
3) Vendor agrees to coordinate all State agency commodity item sales through
existing DIR contracts. Institutions of higher education are exempt from this
Subsection S.B.
6. Contract Fulfillment and Promotion
A. Service, Sales and Support of the Contract
Vendor shall provide service, sales and support resources to serve all Customers
throughout the State. It is the responsibility of the Vendor to sell, market, and promote
products and services available under the Contract. Vendor shall use its best efforts to
ensure that potential Customers are made aware of the existence of the Contract. All sales
to Customers for products and services available under the Contract shall be processed
through the Contract.
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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 DTR determine it is in the best interest of the State.
c) Vendor shall be fully liable for its Order Fulfillers' performance under and
compliance with the terms and conditions of the Contract. Vendor shall enter into
contracts with Order Fulfillers and use terms and conditions that are consistent
with the terms and conditions of the Contract.
d) Vendor shall have the right to qualify Order Fulfillers and their participation
under the Contract provided that: i) any criteria is uniformly applied to all
potential Order Fulfillers based upon Vendor's established, neutrally applied
criteria, ii) the criteria is not based on a particular procurement, and iii) all
Customers are supported under the different criteria.
e) Vendor shall not prohibit Order Fulfiller from participating in other
procurement opportunities offered through DIR.
2) Changes in Order Fulfiller List
Vendor may add or delete Order Fulfillers throughout the term of the Contract upon
written authorization by DIR. Prior to adding or deleting Order Fulfillers, Vendor
must make a good faith effort in the revision of its Subcontracting Plan in accordance
with the State's Policy on Utilization of Historically Underutilized Businesses.
Vendor shall provide DIR with its updated Subcontracting Plan and the Order
Fulfiller information listed in Section 6.B.l.a above.
3) Order Fulfiller Pricing to Customer
Order Fulfiller pricing to the Customer shall comply with the Customer price as
stated within Section 4 of the Contract. This pricing shall only be offered by Order
Fulfillers to Customers for sales that pass through the Contract.
C. Product Warranty and Return Policies
Order Fulfiller will adhere to the Vendor's then -currently published policies concerning
product warranties and returns. Product warranty and return policies for Customers will
not be more restrictive or more costly than warranty and return policies for other
similarly situated Customers for like products.
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D. Customer Site Preparation
Customers shall prepare and maintain its site in accordance with written instructions
furnished by Order Fulfiller prior to the scheduled delivery date of any product or service
and shall bear the costs associated with the site preparation.
E. Internet Access to Contract and Pricing Information
1) Vendor Website
Within thirty days of the effective date of the Contract, Vendor will establish and
maintain a website specific to the product and service offerings under the Contract
which is clearly distinguishable from other, non-DIR Contract offerings at Vendor's
website. The website must include: the product and services offered, product and
service specifications, Contract pricing, designated Order Fulfillers, contact
information for Vendor and designated Order Fulfillers, instructions for obtaining
quotes and placing Purchase Orders, and warranty and return policies. The Vendor's
website shall list the DIR Contract number, reference the DIR Information and
Communications Technology (ICT) Cooperative Contracts program, display the DIR
logo in accordance with the requirements in paragraph F of this Section, and contain a
link to the DIR website for the Contract.
2) Accurate and Timely Contract Information
Vendor warrants and represents that the website information specified in the above
paragraph will be accurately and completely posted, maintained and displayed in an
objective and timely manner. Vendor, at its own expense, shall correct any non-
conforming or inaccurate information posted at Vendor's website within ten (10)
business days after written notification by DIR.
3) Website Compliance Checks
Periodic compliance checks of the information posted for the Contract on Vendor's
website will be conducted by DIR. Upon request by DIR, Vendor shall provide
verifiable documentation that pricing listed upon this website is uniform with the
pricing as stated in Section 4 of the Contract.
4) Website Changes
Vendor hereby consents to a link from the DIR website to Vendor's website in order
to facilitate access to Contract information. The establishment of the link is provided
solely for convenience in carrying out the business operations of the State. DIR
reserves the right to terminate or remove a link at any time, in its sole discretion,
without advance notice, or to deny a future request for a link. DIR will provide
Vendor with subsequent notice of link termination or removal. Vendor shall provide
DIR with timely written notice of any change in URL or other information needed to
access the site and/or maintain the link.
5) Use of Access Data Prohibited
If Vendor stores, collects or maintains data electronically as a condition of accessing
Contract information, such data shall only be used internally by Vendor for the
purpose of implementing or marketing the Contract, and shall not be disseminated to
third parties or used for other marketing purposes. The Contract constitutes a public
document under the laws of the State and Vendor shall not restrict access to Contract
terms and conditions including pricing, i.e., through use of restrictive technology or
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passwords.
6) Responsibility for Content
Vendor is solely responsible for administration, content, intellectual property rights,
and all materials at Vendor's website. DIR reserves the right to require a change of
listed content if, in the opinion of DIR, it does not adequately represent the Contract.
F. DIR Logo
Order Fulfiller may use the DIR logo in the promotion of the Contract to Customers with
the following stipulations: (i) the logo may not be modified in any way, (ii) when
displayed, the size of the DIR logo must be equal to or smaller than the Order Fulfiller
logo, (iii) the DIR logo is only used to communicate the availability of products and
services under the Contract to Customers, and (iv) any other use of the DIR logo requires
prior written permission from DIR.
G. Vendor and Order Fulfiller Logo
DIR may use the Vendor's and Order Fulfiller's name and logo in the promotion of the
Contract to communicate the availability of products and services under the Contract to
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 one or
more DIR sponsored trade shows each calendar year. Vendor understands and agrees that
participation, at the Vendor's and Order Fulfiller's expense, includes providing a manned
booth display or similar presence. DIR will provide four months advance notice of any
required participation. Vendor and Order Fulfillers must display the DIR logo at all trade
shows that potential Customers will attend. DIR reserves the right to approve or
disapprove of the location or the use of the DIR logo in or on the Vendor's or Order
Fulfiller's booth.
I. Orientation Meeting
Upon thirty (30) calendar days from execution of the Contract, Vendor and Order
Fulfillers will be required to attend an orientation meeting to discuss the content and
procedures of the Contract. The meeting will be held within the Austin, Texas area at a
date and time mutually acceptable to DIR and the Vendor. DIR shall bear no cost for the
time and travel of the Vendor or Order Fulfillers for attendance at the meeting.
J. Performance Review Meetings
DIR will require the Vendor to attend periodic meetings to review the Vendor's
performance under the Contract. The meetings will be held within the Austin, Texas area
at a date and time mutually acceptable to DIR and the Vendor. DIR shall bear no cost for
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the time and travel of the Vendor for attendance at the meeting.
K. DIR Cost Avoidance
As pail 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 DTR with a detailed report of a representative sample of products
sold under the Contract. The report shall contain: product part number, product
description, list price, price to Customer under the Contract, and pricing from three (3)
alternative sources under which DIR customers can procure the products.
7. Purchase Orders, Invoices, and Payments
A. Purchase Orders
All Customer Purchase Orders will be placed directly with the Order Fulfiller. Accurate
Purchase Orders shall be effective and binding upon Order Fulfiller when accepted by
Order Fulfiller.
B. Invoices
1) Invoices shall be submitted by the Order Fulfiller directly to the Customer and
shall be issued in compliance with Chapter 2251, Texas Government Code. All
payments for products and/or services purchased under the Contract and any
provision of acceptance of such products and/or services shall be made by the
Customer to the Order Fulfiller.
2) Invoices must be timely and accurate. Each invoice must match Customer's
Purchase Order and include any written changes that may apply, as it relates to
products, prices and quantities. Invoices must include the Customer's Purchase Order
number or other pertinent information for verification of receipt of the product or
services by the Customer.
C. Payments
Customers shall comply with Chapter 2251, Texas Government Code, in making
payments to Order Fulfiller. The statute states that payments for goods and services are
due thirty (30) days after the goods are provided, the services completed, or a correct
invoice is received, whichever is later. Payment under the Contract shall not foreclose the
right to recover wrongful payments.
8. Contract Administration
A. Contract Administrators
DIR and the Vendor will each provide a Contract Administrator to support the Contract.
Information regarding the Contract Administrators will be posted on the Internet website
designated for the Contract.
1) State Contract Administrator
DIR shall provide a Contract Administrator whose duties shall include but not be
limited to: i) supporting the marketing and management of the Contract, ii) advising
DIR of Vendor's performance under the terms and conditions of the Contract, and iii)
periodic verification of product pricing and monthly reports submitted by Vendor.
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2) Vendor Contract Administrator
Vendor shall provide a dedicated Contract Administrator whose duties shall include
but not be limited to: i) supporting the marketing and management of the Contract, ii)
facilitating dispute resolution between a Order Fulfiller and a Customer, and iii)
advising DIR of Order Fulfillers performance under the terms and conditions of the
Contract. DIR reserves the right to require a change in Vendor's then -current
Contract Administrator if the assigned Contract Administrator is not, in the opinion of
DIR, adequately serving the needs of the State.
B. Reporting and Administrative Fees
1) Reporting Responsibility
a) Vendor shall be responsible for reporting all products and services purchased
through Order Fulfillers under the Contract. Vendor shall file the monthly reports,
subcontract reports, and pay the administrative fees in accordance with the due
dates specified in this section.
b) DIR shall have the right to verify required reports and to take any actions
necessary to enforce its rights under this section, including but not limited to,
compliance checks of Vendor's applicable Contract books at DIR's expense.
2) Detailed Monthly Report
Vendor shall electronically provide DIR with a detailed monthly report in the format
required by DIR showing the dollar volume of any and all sales under the Contract
for the previous month period. Reports shall be submitted to the DIR ICT
Cooperative Contracts E -Mail Box at ict.sales@dir.texas.gov. Reports are due on the
fifteenth (15th) calendar day after the close of the previous month period. It is the
responsibility of Vendor to collect and compile all sales under the Contract from
participating Order Fulfillers and submit one (1) monthly report. The monthly report
shall include, per transaction: the detailed sales for the period, the Order Fulfiller's
company name, if applicable, Customer name, invoice date, invoice number,
description, part number, manufacturer, quantity, unit price, extended price, Customer
Purchase Order number, contact name, Customer's complete billing address, and
other information as required by DIR. Each report must contain all information listed
above per transaction or the report will be rejected and returned to the Vendor for
correction in accordance with this section.
3) Historically Underutilized Businesses Subcontract Reports
a) Vendor shall electronically provide each Customer with their relevant
Historically Underutilized Business Subcontracting Report, pursuant to the
Contract, as required by Chapter 2161, Texas Government Code. Reports shall
also be submitted to DIR.
b) Reports shall be due in accordance with the CPA rules.
4) DIR Administrative Fee
a) An administrative fee shall be paid by Vendor to DIR to defray the DIR costs
of negotiating, executing, and administering the Contract. The maximum
administrative fee is set by the Texas Legislature in the biennial General
Appropriations Act. Payment of the administrative fee shall be due on the
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fifteenth (15'h) calendar day after the close of the previous month period. DIR
may change the amount of the administrative fee upon thirty (30) days written
notice to Vendor without the need for a formal contract amendment.
b) Vendor shall reference the DIR Contract number on any remittance
instruments.
5) Accurate and Timely Submission of Reports
a) The reports and administrative fees shall be accurate and timely and submitted
in accordance with the due dates specified in this section. Vendor shall correct
any inaccurate reports or administrative fee payments within three (3) business
days upon written notification by DIR. Vendor shall deliver any late reports or
late administrative fee payments within three (3) business days upon written
notification by DIR. If Vendor is unable to correct inaccurate reports or
administrative fee payments or deliver late reports and fee payments within three
(3) business days, Vendor must contact DIR and provide a corrective plan of
action, including the timeline for completion of correction. The corrective plan of
action shall be subject to DIR approval.
b) Should Vendor fail to correct inaccurate reports or cure the delay in timely
delivery of reports and payments within the corrective plan of action timeline,
DIR reserves the right to require an independent third party audit of the Vendor's
records as specified in C.3 of this Section, at DIR's expense.
c) Failure to timely submit three (3) reports within any rolling twelve (12) month
period may, at DIR's discretion, result in termination of Vendor's Contract.
C. Records and Audit
1) Acceptance of funds under the Contract by Vendor and/or Order Fulfiller acts as
acceptance of the authority of the State Auditor's Office, or any successor agency, to
conduct an audit or investigation in connection with those funds. Vendor further
agrees to cooperate fully with the State Auditor's Office or its successor in the
conduct of the audit or investigation, including providing all records requested.
Vendor will ensure that this clause concerning the authority to audit funds received
indirectly by subcontractors through Vendor or directly by Order Fulfillers and the
requirement to cooperate is included in any subcontract or Order Fulfiller contract it
awards pertaining to the Contract. Under the direction of the Legislative Audit
Committee, a Vendor that is the subject of an audit or investigation by the State
Auditor's Office must provide the State Auditor's Office with access to any
information the State Auditor's Office considers relevant to the investigation or audit.
2) Vendor and Order Fulfillers shall maintain adequate records to establish
compliance with the Contract until the later of a period of four (4) years after
termination of the Contract or until full, final and unappealable resolution of all
Compliance Check or litigation issues that arise under the Contract. Such records
shall include per transaction: the Order Fulfiller's company name if applicable,
Customer name, invoice date, invoice number, description, pant number,
manufacturer, quantity, unit price, extended price, Customer Purchase Order number,
contact name, Customer's complete billing address, the calculations supporting each
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administrative fee owed DIR under the Contract, Historically Underutilized
Businesses Subcontracting reports, and such other documentation as DIR may
request.
3) Vendor and/or Order Fulfillers shall grant access to all paper and electronic
records, books, documents, accounting procedures, practices and any other items
relevant to the performance of the Contract to the DIR Internal Audit department or
DIR Contract Management staff, including the compliance checks designated by the
DIR Internal Audit department, DIR Contract Management staff, the State Auditor's
Office, and of the United States, and such other persons or entities designated by DIR
for the purposes of inspecting, Compliance Checking and/or copying such books and
records. Vendor and/or Order Fulfillers shall provide copies and printouts requested
by DIR without charge. DIR shall provide Vendor and/or Order Fulfillers ten (10)
business days' notice prior to inspecting, Compliance Checking, and/or copying
Vendor's and/or Order Fulfiller's records. Vendor's and/or Order Fulfillers records,
whether paper or electronic, shall be made available during regular office hours.
Vendor and/or Order Fulfiller personnel familiar with the Vendor's and/or Order
Fulfiller's books and records shall be available to the DIR Internal Audit department,
or DIR Contract Management staff and designees as needed. Vendor and/or Order
Fulfiller shall provide adequate office space to DIR staff during the performance of
Compliance Check. If Vendor is found to be responsible for inaccurate reports, DIR
may invoice for the reasonable costs of the audit, which Vendor must pay within
thirty (30) days of receipt.
4) For procuring State Agencies whose payments are processed by the Texas
Comptroller of Public Accounts, the volume of payments made to Order Fulfillers
through the Texas Comptroller of Public Accounts and the administrative fee based
thereon shall be presumed correct unless Vendor can demonstrate to DIR's
satisfaction that Vendor's calculation of DIR's administrative fee is correct.
D. Contract Administration Notification
1) Upon execution of the Contract, Vendor shall provide DIR with written
notification of the following: i) Vendor Contract Administrator name and contact
information, ii) Vendor sales representative name and contact information, and iii)
name and contact information of Vendor personnel responsible for submitting reports
and payment of administrative fees specified herein.
2) Upon execution of the Contract, DIR shall provide Vendor with written
notification of the following: i) DIR Contract Administrator name and contact
information, and ii) DIR ICT Cooperative Contracts E -Mail Box information.
9. Vendor Responsibilities
A. Indemnification
1) Acts or Omissions
Vendor shall indemnify and hold harmless the State of Texas and Customers,
AND/OR THEIR OFFICERS, AGENTS, EMPLOYEES, REPRESENTATIVES,
CONTRACTORS, ASSIGNEES, AND/OR DESIGNEES FROM AND AGAINST
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ANY AND ALL LIABILITY, ACTIONS, CLAIMS, DEMANDS, OR SUITS, AND
ALL RELATED COSTS, ATTORNEY FEES, AND EXPENSES arising out of, or
resulting from any acts or omissions of the Vendor or its agents, employees,
subcontractors, Order Fulfillers, or suppliers of subcontractors in the execution or
performance of the Contract and any Purchase Orders issued under the Contract
REGARDLESS OF THE NEGLIGENCE OF THE CUSTOMER, THE STATE OF
TEXAS AND/OR THEIR EMPLOYEES, AGENTS, REPRESENTATIVES,
CONTRACTORS, ASSIGNEES, AND/OR DESIGNEES. VENDOR SHALL PAY
ALL COSTS OF DEFENSE INCLUDING ATTORNEYS FEES. TIIE DEFENSE
SHALL BE COORDINATED BY THE OFFICE OF THE ATTORNEY GENERAL
FOR TEXAS STATE AGENCIES AND BY CUSTOMER'S LEGAL COUNSEL
FOR NON -STATE AGENCY CUSTOMERS.
2) Infringements
a) Vendor shall indemnify and hold harmless the State of Texas and Customers,
AND/OR THEIR EMPLOYEES, AGENTS, REPRESENTATIVES,
CONTRACTORS, ASSIGNEES, AND/OR DESIGNEES, from any and all third
party claims involving infringement of United States patents, copyrights, trade and
service marks, and any other intellectual or intangible property rights in connection
with the PERFORMANCES OR ACTIONS OF VENDOR PURSUANT TO THIS
CONTRACT. VENDOR AND THE CUSTOMER AGREE TO FURNISH TIMELY
WRITTEN NOTICE TO EACH OTHER OF ANY SUCH CLAIM. VENDOR
SHALL BE LIABLE TO PAY ALL COSTS OF DEFENSE INCLUDING
ATTORNEYS' FEES. THE DEFENSE SHALL BE COORDINATED BY THE
OFFICE OF THE ATTORNEY GENERAL FOR TEXAS STATE AGENCY
CUSTOMERS AND BY CUSTOMER'S LEGAL COUNSEL FOR NON -STATE
AGENCY CUSTOMERS.
b) If Vendor becomes aware of an actual or potential claim, or Customer provides
Vendor with notice of an actual or potential claim, Vendor may (or in the case of an
injunction against Customer, shall), at Vendor's sole option and expense: (i) procure
for the Customer the right to continue to use the affected portion of the product or
service, or (ii) modify or replace the affected portion of the product or service with
functionally equivalent or superior product or service so that Customer's use is non -
infringing.
3) Independent Contractor
VENDOR AGREES AND ACKNOWLEDGES THAT DURING THE
EXISTENCE OF THIS CONTRACT, IT IS FURNISHING SERVICES IN THE
CAPACITY OF AN INDEPENDENT CONTRACTOR AND THAT VENDOR
IS NOT AN EMPLOYEE OF THE CUSTOMER, DIR OR THE STATE OF
TEXAS.
B. Taxes/Worker's Compensation/UNEMPLOYMENT INSURANCE
1) VENDOR AGREES AND ACKNOWLEDGES THAT DURING THE
EXISTENCE OF THIS CONTRACT, VENDOR SHALL BE ENTIRELY
RESPONSIBLE FOR THE LIABILITY AND PAYMENT OF VENDOR'S AND
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VENDOR'S EMPLOYEES' TAXES OF WHATEVER KIND, ARISING OUT OF
THE PERFORMANCES IN THIS CONTRACT. VENDOR AGREES TO
COMPLY WITH ALL STATE AND FEDERAL LAWS APPLICABLE TO ANY
SUCH PERSONS, INCLUDING LAWS REGARDING WAGES, TAXES,
INSURANCE, AND WORKERS' COMPENSATION. VENDOR AGREES AND
ACKNOWLEDGES THAT VENDOR ITS EMPLOYEES, REPRESENTATIVES,
AGENTS OR SUBCONTRACTORS SHALL NOT BE ENTITLED TO ANY
STATE BENEFIT OR BENEFIT OF ANOTHER GOVERNMENTAL ENTITY
CUSTOMER. THE CUSTOMER AND/OR THE STATE SHALL NOT BE
LIABLE TO THE VENDOR ITS EMPLOYEES, AGENTS, OR OTHERS FOR TIE
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,
TIIE STATE OF TEXAS AND/OR THEIR EMPLOYEES, AGENTS,
REPRESENTATIVES, CONTRACTORS, ASSIGNEES, AND/OR DESIGNEES
FROM ANY AND ALL LIABILITY, ACTIONS, CLAIMS, DEMANDS, OR
SUITS, AND ALL RELATED COSTS, ATTORNEY FEES, AND EXPENSES,
RELATING TO TAX LIABILITY, UNEMPLOYMENT INSURANCE AND/OR
WORKERS' COMPENSATION OR EXPECTATIONS OF BENEFITS BY
VENDOR, ITS EMPLOYEES, REPRESENTATIVES, AGENTS OR
SUBCONTRACTORS IN ITS PERFORMANCE UNDER THIS CONTRACT.
VENDOR SHALL BE LIABLE TO PAY ALL COSTS OF DEFENSE INCLUDING
ATTORNEYS' FEES. THE DEFENSE SHALL BE COORDINATED BY THE
OFFICE OF THE ATTORNEY GENERAL FOR TEXAS STATE AGENCY
CUSTOMERS AND BY CUSTOMER'S LEGAL COUNSEL FOR NON -STATE
AGENCY CUSTOMERS.
C. Vendor Certifications
Vendor certifies on behalf of Vendor and its designated Order Fulfillers that they:
(i) have not given, offered to give, and do not intend to give at any time hereafter any
economic opportunity, future employment, gift, loan, gratuity, special discount,
trip, favor, or service to a public servant in connection with the Contract;
(ii) are not currently delinquent in the payment of any franchise tax owed the State of
Texas and are not ineligible to receive payment under §231.006 of the Texas
Family Code and acknowledge the Contract may be terminated and payment
withheld if this certification is inaccurate;
(iii) neither they, nor anyone acting for them, have violated the antitrust laws of the
United States or the State of Texas, nor communicated directly or indirectly to
any competitor or any other person engaged in such line of business for the
purpose of obtaining an unfair price advantage;
(iv) have not received payment from DIR or any of its employees for participating in
the preparation of the Contract;
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(v) under Section 2155.004, Texas Government Code, the vendor certifies that the
individual or business entity named in this bid or contract is not ineligible to
receive the specified contract and acknowledges that this contract may be
terminated and payment withheld if this certification is inaccurate;
(vi) to the best of their knowledge and belief, there are no suits or proceedings
pending or threatened against or affecting them, which if determined adversely to
them will have a material adverse effect on the ability to firlfill their obligations
under the Contract;
(vii) are not suspended or debarred from doing business with the federal government as
listed in the Excluded Parties List System (EPLS) maintained by the General
Services Administration;
(viii) as of the effective date of the Contract, are not listed in the prohibited vendors list
authorized by Executive Order 413224, "Blocking Property and Prohibiting
Transactions with Persons Who Commit., Threaten to Commit, or Support
Terrorism ", published by the United States Department of the Treasury, Office of
Foreign Assets Control; (ix) to the extent applicable to this scope of this Contract,
Vendor hereby certifies that it is in compliance with Subchapter Y, Chapter 361,
Health and Safety Code related to the Computer Equipment Recycling Program
and its rules, 30 TAC Chapter 328;
(ix) agree that any payments due under this contract will be applied towards any debt,
including but not limited to delinquent taxes and child support that is owed to the
State of Texas;
(x) are in compliance Section 669.003, Texas Government Code, relating to
contracting with executive head of a state agency;
(xi) have identified all current or former, within the last five years, employees of the
State of Texas assigned to work on the DIR Contract 20% or more of their time
and have disclosed them to DIR and have disclosed or do not employ any relative
of a current or former state employee within two degrees of consanguinity, and, if
these facts change during the course of the Contract, certify they shall disclose the
name and other pertinent information about the employment of current and former
employees and their relatives within two degrees of consanguinity;
(xii) represent and warrant that the provision of goods and services or other
performance under the Contract will not constitute an actual or potential conflict
of interest and certify that they will not reasonably create the appearance of
impropriety, and, if these facts change during the course of the Contract, certify
they shall disclose the actual or potential conflict of interest and any
circumstances that create the appearance of impropriety;
(xiii) represent and warrant that the Customer's payment and their receipt of
appropriated or other funds under this Agreement are not prohibited by Sections
556.005 or Section 556.008, Texas Government Code;
(xiv) under Section 2155.006, Government Code, are not ineligible to receive the
specified contract and acknowledge that this contract may be terminated and
payment withheld if this certification is inaccurate; and
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(xv) have complied with the Section 556.0055, Texas Government Code, restriction on
lobbying expenditures. In addition, they acknowledge the applicability of
§2155.444 and §2155.4441, Texas Government Code, in fulfilling the terms of
the Contract.
During the term of the Contract, Vendor shall, for itself and on behalf of its Order
Fulfillers, promptly disclose to DIR all changes that occur to the foregoing
certifications, representations and warranties. Vendor covenants to fully cooperate
in the development and execution of resulting documentation necessary to
maintain an accurate record of the certifications, representations and warranties.
In addition, Vendor understands and agrees that Vendor may be required to
comply with additional terms and conditions or certifications that an individual
customer may require due to state and federal law (e.g, privacy and security
requirements).
D. Ability to Conduct Business in Texas
Vendor and its Order Fulfiller shall be authorized and validly existing under the laws of
its state of organization, and shall be authorized to do business in the State of Texas.
E. Equal Opportunity Compliance
Vendor agrees to abide by all applicable laws, regulations, and executive orders
pertaining to equal employment opportunity, including federal laws and the laws of the
State in which its primary place of business is located. In accordance with such laws,
regulations, and executive orders, the Vendor agrees that no person in the United States
shall, on the grounds of race, color, religion, national origin, sex, age, veteran status or
handicap, be excluded from employment with or participation in, be denied the benefits
of, or be otherwise subjected to discrimination under any program or activity performed
by Vendor under the Contract. If Vendor is found to be not in compliance with these
requirements during the term of the Contract, Vendor agrees to take appropriate steps to
correct these deficiencies. Upon request, Vendor will furnish information regarding its
nondiscriminatory hiring and promotion policies, as well as specific information on the
composition of its principals and staff, including the identification of minorities and
women in management or other positions with discretionary or decision-making
authority.
F. Use of Subcontractors
If Vendor uses any subcontractors in the performance of this Contract, Vendor must
make a good faith effort in the submission of its Subcontracting Plan in accordance with
the State's Policy on Utilization of Historically Underutilized Businesses. A revised
Subcontracting Plan shall be required before Vendor can engage additional
subcontractors in the performance of this Contract. Vendor shall remain solely
responsible for the performance of its obligations under the Contract.
G. Responsibility for Actions
1) Vendor is solely responsible for its actions and those of its agents, employees, or
subcontractors, and agrees that neither Vendor nor any of the foregoing has any authority
to act or speak on behalf of DIR or the State.
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2) Vendor, for itself and on behalf of its subcontractors, shall report to DIR promptly
when the disclosures under Item 18 of Appendix A to the RFO and/or Section 9.C. (xii)
and (xiii), Vendor Certifications of this Appendix A to the Contract change. Vendor
covenants to fully cooperate with DIR to update and amend the Contract to accurately
disclose employment of current or former State employees and their relatives and/or the
status of conflicts of interest.
H. Confidentiality
1) Vendor acknowledges that DIR and Customers that are state agencies are government
agencies subject to the Texas Public Information Act. Vendor also acknowledges that
DIR and Customers that are state agencies will comply with the Public Information Act,
and with all opinions of the Texas Attorney General's office concerning this Act.
2) Under the terms of the Contract, DIR may provide Vendor with information related to
Customers. Vendor shall not re -sell or otherwise distribute or release Customer
information to any party in any manner.
I. Security of Premises, Equipment, Data and Personnel
Vendor and/or Order Fulfiller may, from time to time during the performance of the
Contract, have access to the personnel, premises, equipment, and other property,
including data, files and /or materials (collectively referred to as "Data") belonging to the
Customer. Vendor and/or Order Fulfiller shall use thein best efforts to preserve the safety,
security, and the integrity of the personnel, premises, equipment, Data and other property
of the Customer, in accordance with the instruction of the Customer. Vendor and/or
Order Fulfiller shall be responsible for damage to Customer's equipment, workplace, and
its contents when such damage is caused by its employees or subcontractors. If a Vendor
and/or Order Fulfiller fails to comply with Customer's security requirements, then
Customer may immediately terminate its Purchase Order and related Service Agreement.
J. Background and/or Criminal History Investigation
Prior to commencement of any services, background and/or criminal history investigation
of the Vendor and/or Order Fulfiller's employees and subcontractors who will be
providing services to the Customer under the Contract may be performed by certain
Customers having legislative authority to require such investigations. Should any
employee or subcontractor of the Vendor and/or Order Fulfiller who will be providing
services to the Customer under the Contract not be acceptable to the Customer as a result
of the background and/or criminal history check, then Customer may immediately
terminate its Purchase Order and related Service Agreement or request replacement of the
employee or subcontractor in question.
K. Limitation of Liability
For any claim or cause of action arising under or related to the Contract: i) to the extent
permitted by the Constitution and the laws of the State of Texas, none of the parties shall
be liable to the other for punitive, special, or consequential damages, even if it is advised
of the possibility of such damages; and ii) Vendor's liability for damages of any kind to
the Customer shall be limited to the total amount paid to Vendor under the Contract
during the twelve months immediately preceding the accrual of the claim or cause of
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action. However, this limitation of Vendor's liability shall not apply to claims of patent,
trademark, or copyright infringement.
L. Overcharges
Vendor hereby assigns to DTR any and all of its claims for overcharges associated with
this contract which arise under the antitrust laws of the United States, 15 U.S.C.A.
Section 1, et seq., and which arise under the antitrust laws of the State of Texas, Tex.
Bus. and Comm. Code Section 15.01, et seq.
M. Prohibited Conduct
Vendor represents and warrants that, to the best of its knowledge as of the date of this
certification, neither Vendor nor any Order Fulfiller, subcontractor, firm, corporation,
partnership, or institution represented by Vendor, nor anyone acting for such Order
Fulfiller, subcontractor, firm, corporation or institution has: (1) violated the antitrust laws
of the State of Texas under Texas Business & Commerce Code, Chapter 15, or the
federal antitrust laws; or (2) communicated its response to the Request for Offer directly
or indirectly to any competitor or any other person engaged in such line of business
during the procurement for the Contract.
N. Required Insurance Coverage
As a condition of this Contract with DIR, Vendor shall provide the listed insurance
coverage within 5 days of execution of the Contract if the Vendor is awarded services
which require that Vendor's employees perform work at any Customer premises and/or
use employer vehicles to conduct work on behalf of Customers. In addition, when
engaged by a Customer to provide services on Customer premises, the Vendor shall, at its
own expense, secure and maintain the insurance coverage specified herein, and shall
provide proof of such insurance coverage to the related Customer within five (5) business
days following the execution of the Purchase Order. Vendor may not begin performance
under the Contract and/or a Purchase Order until such proof of insurance coverage is
provided to, and approved by, DIR and the Customer. All required insurance must be
issued by companies that are A+ financially rated and duly licensed, admitted, and
authorized to do business in the State of Texas. The Customer and DIR will be named as
Additional Insureds on all required coverage. Required coverage must remain in effect
through the term of the Contract and each Purchase Order issued to Vendor there under.
The minimum acceptable insurance provisions are as follows:
1) Commercial General Liability
Commercial General Liability must include a combined single limit of $500,000 per
occurrence for coverage A, B, & C including products/completed operations, where
appropriate, with a separate aggregate of $500,000. The policy shall contain the
following provisions:
a) Blanket contractual liability coverage for liability assumed under the Contract;
b) Independent Contractor coverage;
c) State of Texas, DIR and Customer listed as an additional insured;
d) 30 -day Notice of Termination in favor of DIR and/or Customer; and
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e) Waiver of Transfer Right of Recovery Against Others in favor of DIR and/or
Customer.
2) Workers' Compensation Insurance
Workers' Compensation Insurance and Employers' Liability coverage must include
limits consistent with statutory benefits outlined in the Texas Workers' Compensation
Act (Art. 8308-1.01 et seq. Tex. Rev. Civ. Stat) and minimum policy limits for
Employers' Liability of $250,000 bodily injury per accident, $500,000 bodily injury
disease policy limit and $250,000 per disease per employee.
3) Business Automobile Liability Insurance
Business Automobile Liability Insurance must cover all owned, non -owned and hired
vehicles with a minimum combined single limit of $500,000 per occurrence for
bodily injury and property damage. Alternative acceptable limits are $250,000 bodily
injury per person, $500,000 bodily injury per occurrence and at least $100,000
property damage liability per accident. The policy shall contain the following
endorsements in favor of DIR and/or Customer:
a) Waiver of Subrogation;
b) 30 -day Notice of Termination; and
c) Additional Insured.
O. Use of State Property
Vendor is prohibited from using the Customer's equipment, the Customer's Location, or
any other resources of the Customer or the State of Texas for any purpose other than
performing services under this Agreement. For this purpose, equipment includes, but is
not limited to, copy machines, computers and telephones using State of Texas long
distance services. Any charges incurred by Vendor using the Customer's equipment for
any purpose other than performing services under this Agreement must be fully
reimbursed by Vendor to the Customer immediately upon demand by the Customer.
Such use shall constitute breach of contract and may result in termination of the contract
and other remedies available to DIR and Customer under the contract and applicable law.
P. Immigration
Vendor shall comply with all requirements related to federal immigration laws and
regulations, to include but not be limited to, the Immigration and Reform Act of 1986, the
Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA") and
the Immigration Act of 1990 (8 U.S.C.I101, et seq.) regarding employment verification
and retention of verification forms for any individual(s) hired on or after the effective
date of the 1996 Act who will perform any labor or services under this Contract. Nothing
herein is intended to exclude compliance by Vendor with all other relevant federal
immigration statutes and regulations promulgated pursuant thereto.
Q. Public Disclosure
No public disclosures or news releases pertaining to this contract shall be made without
prior written approval of DIR.
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R. Product and/or Services Substitutions
Substitutions are not permitted without the written permission of DIR or Customer.
S. Secure Erasure of Hard Disk Products and/or Services
Vendor agrees that all products and/or services equipped with hard disk drives (i.e.
computers, telephones, printers, fax machines, scanners, multifunction devices, etc.) shall
have the capability to securely erase data written to the hard drive prior to final
disposition of such products and/or services, either at the end of the Customer's Managed
Services product's useful life or the end of the related Customer Managed Services
Agreement for such products and/ services, in accordance with 1 TAC 202.
T. Deceptive Trade Practices; Unfair Business Practices
a) Vendor represents and warrants that neither Vendor nor any of its Subcontractors has
been (i) found liable in any administrative hearing, litigation or other proceeding of
Deceptive Trade Practices violations as defined under Chapter 17, Texas Business &
Commerce Code, or (ii) has outstanding allegations of any Deceptive Trade Practice
pending in any administrative hearing, litigation or other proceeding.
b)Vendor certifies that it has no officers who have served as officers of other entities who
(i) have been found liable in any administrative hearing, litigation or other proceeding of
Deceptive Trade Practices violations or (ii) have outstanding allegations of any Deceptive
Trade Practice pending in any administrative hearing, litigation or other proceeding.
U. Drug Free Workplace Policy
The contractor shall comply with the applicable provisions of the Drug -Free Work Place
Act of 1988 (Public Law 100-690, Title V, Subtitle D; 41 U.S.C. 701 ET SEQ.) and
maintain. a drug-free work environment; and the final rule, government -wide
requirements for drug-free work place (grants), issued by the Office of Management and
Budget and the Department of Defense (32 CFR Part 280, Subpart F) to implement the
provisions of the Drug -Free Work Place Act of 1988 is incorporated by reference and the
contractor shall comply with the relevant provisions thereof, including any amendments
to the final rule that may hereafter be issued.
10. Contract Enforcement
A. Enforcement of Contract and Dispute Resolution
1) Vendor and DIR agree to the following: (i) a party's failure to require strict
performance of any provision of the Contract shall not waive or diminish that party's
right thereafter to demand strict compliance with that or any other provision, (ii) for
disputes not resolved in the normal course of business, the dispute resolution process
provided for in Chapter 2260, Texas Government Code, shall be used, and (iii)
actions or proceedings arising from the Contract shall be heard in a state court of
competent jurisdiction in Travis County, Texas.
2) Disputes arising between a Customer and the Vendor shall be resolved in
accordance with the dispute resolution process of the Customer that is not
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inconsistent with subparagraph A.1 above. DIR shall not be a party to any such
dispute unless DIR, Customer, and Vendor agree in writing.
B. Termination
1) Termination for Non -Appropriation
a) Termination for Non -Appropriation by Customer
Customer may terminate Purchase Orders if funds sufficient to pay its obligations
under the Contract are not appropriated: i) by the governing body on behalf of
local governments; ii) by the Texas legislature on behalf of state agencies; or iii)
by budget execution authority provisioned to the Governor or the Legislative
Budget Board as provided in Chapter 317, Texas Government Code. In the event
of non -appropriation, Vendor and/or Order Fulfiller will be provided ten (10)
calendar days written notice of intent to terminate. Notwithstanding the foregoing,
if a Customer issues a Purchase Order and has accepted delivery of the product or
services, they are obligated to pay for the product or services or they may return
the product and discontinue using services under any return provisions that
Vendor offers. In the event of such termination, the Customer will not be
considered to be in default or breach under this Contract, nor shall it be liable for
any further payments ordinarily due under this Contract, nor shall it be liable_ for
any damages or any other amounts which are caused by or associated with such
termination.
b) Termination for Non -Appropriation by DIR
DIR may terminate Contract if funds sufficient to pay its obligations under the
Contract are not appropriated: by the i) Texas legislature or ii) by budget
execution authority provisioned to the Governor or the Legislative Budget Board
as provided in Chapter 317, Texas Government Code. In the event of non -
appropriation, Vendor and/or Order Fulfiller will be provided thirty (30) calendar
days written notice of intent to terminate. In the event of such termination, DIR
will not be considered to be in default or breach under this Contract, nor shall it
be liable for any further payments ordinarily due under this Contract, nor shall it
be liable for any damages or any other amounts which are caused by or associated
with such termination.
2) Absolute Right
DIR shall have the absolute right to terminate the Contract without recourse in the
event that: i) Vendor becomes listed on the prohibited vendors list authorized by
Executive Order #13224, 'Blocking Property and Prohibiting Transactions with
Persons Who Commit, Threaten to Commit; or Support Terrorism ", published by the
United States Department of the Treasury, Office of Foreign Assets Control; ii)
Vendor becomes suspended or debarred from doing business with the federal
government as listed in the Excluded Parties List System (EPLS) maintained by the
General Services Administration; or (iii) Vendor is found by DIR to be ineligible to
hold this Contract under Subsection (b) of Section 2155.006, Texas Government
Code. Vendor shall be provided written notice in accordance with Section I1.A,
Notices, of intent to terminate.
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3) Termination for Convenience
DIR may terminate the Contract, in whole or in part, by giving the other party thirty
(30) calendar days written notice. A Customer may terminate a Purchase Order if it is
determined by the Customer that Order Fulfiller will not be able to deliver product or
services in a timely manner to meet the business needs of the Customer.
4) Termination for Cause
a) Contract
Either DIR or Vendor may issue a written notice of default to the other upon the
occurrence of a material breach of any covenant, warranty or provision of the
Contract, upon the following preconditions: first, the parties must comply with the
requirements of Chapter 2260, Texas Government Code in an attempt to resolve a
dispute; second, after complying with Chapter 2260, Texas Government Code,
and the dispute remains unresolved, then the non -defaulting party shall give the
defaulting party thirty (30) calendar days from receipt of notice to cure said
default. If the defaulting party fails to cure said default within the timeframe
allowed, the non -defaulting party may, at its option and in addition to any other
remedies it may have available, cancel and terminate the Contract. Customers
purchasing products or services under the Contract have no power to terminate the
Contract for default.
b) Purchase Order
Customer or Order Fulfiller may terminate a Purchase Order upon the occurrence
of a material breach of any term or condition: (i) of the Contract, or (ii) included
in the Purchase Order in accordance with Section 4.13.2 above, upon the following
preconditions: first, the parties must comply with the requirements of Chapter
2260, Texas Government Code, in an attempt to resolve a dispute; second, after
complying with Chapter 2260, Texas Government Code, and the dispute remains
unresolved, then the non -defaulting party shall give the defaulting party thirty
(30) calendar days from receipt of notice to cure said default. If the defaulting
party fails to cure said default within the timeframe allowed, the non -defaulting
party may, at its option and in addition to any other remedies it may have
available, cancel and terminate the Purchase Order.
5) Customer Rights Under Termination
In the event the Contract expires or is terminated for any reason, a Customer shall
retain its rights under the Contract and the Purchase Order issued prior to the
termination or expiration of the Contract. The Purchase Order survives the expiration
or termination of the Contract for its then effective term.
6) Vendor or Order Fulfiller Rights Under Termination
In the event a Purchase Order expires or is terminated, a Customer shall pay: 1) all
amounts due for products or services ordered prior to the effective termination date
and ultimately accepted, and 2) any applicable early termination fees agreed to in
such Purchase Order.
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C. Force Majeure
DIR, Customer, or Order Fulfiller may be excused from performance under the Contract
for any period when performance is prevented as the result of an act of God, strike, war,
civil disturbance, epidemic, or court order, provided that the party experiencing the event
of Force Majeure has prudently and promptly acted to take any and all steps that are
within the party's control to ensure performance and to shorten the duration of the event
of Force Majeure. The party suffering an event of Force Majeure shall provide notice of
the event to the other parties when commercially reasonable. Subject to this provision,
such non-performance shall not be deemed a default or a ground for termination.
However, a Customer may terminate a Purchase Order if it is determined by the
Customer that Order Fulfiller will not be able to deliver product or services in a timely
manner to meet the business needs of the Customer.
11. Notification
A. Notices
All notices, demands, designations, certificates, requests, offers, consents, approvals and
other instruments given pursuant to the Contract 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 DIR
may direct their written complaints to the following office:
Public Information Office
Department of Information Resources
Attn: Public Information Officer
300 W. 15`h Street, Suite 1300
Austin, Texas 78701
(512) 475-4759, facsimile
12. Captions
The captions contained in the Contract, Appendices, and its Exhibits are intended for
convenience and reference purposes only and shall in no way be deemed to define or
limit any provision thereof.
06/08/12 Page 22 of 22
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HUB SUBCONTRACTING PLAN (HSP)
In accordance with Texas Gov't Code §2161.252, the contracting agency has determined that subcontracting opportunities are probable under this contract.
Therefore, all respondents, including State of Texas cerfified Historically Underutilized Businesses (HUBS) must complete and submit this State of Texas HUB
Subcontracting Plan (HSP) with their response to the bid requisition (solicitation).
NOTE: Responses that do not include a completed HSP shall be rejected pursuant to Texas Gov't Code §2161.252(b).
The HUB Program promotes equal business opportunities for economically disadvantaged persons to contract with the State of Texas in accordance with the goals
specified in the 2009 State of Texas Disparity Study. The statewide HUB goals defined in 34 Texas Administrative Code (TAC) §20.13 are:
• 11.2 percent for heavy construction other than building contracts,
• 21.1 percent for all building construction, Including general contractors and operative builders contracts,
• 32.7 percent for all special trade construction contracts,
• 23.6 percent for professional services contracts,
• 24.6 percent for all otherservices contracts, and
• 21 percent for commodities contracts.
- - Agency Special Instructions/Additional Requirements - -
In accordance with 34 TAC §20.14(d)(1)(D)(iii), a respondent (prime contractor) may demonstrate good faith effort to utilize Texas certified HUBs for its
subcontracting opportunities if the total value of the respondent's subcontracts with Texas certified HUBs meets or exceeds the statewide HUB goal or the agency
speck HUB goal, whichever is higher. When a respondent uses this method to demonstrate good faith effort, the respondent must identify the HUBs with which it
will subcontract. If using existing contracts with Texas certified HUBs to satisfy this requirement, only contracts that have been in place for five years or less shall
qualify for meeting the HUB goal. This limitation is designed to encourage vendor rotation as recommended by the 2009 Texas Disparity Study.
For assistance in completing the HSP, contact the HUB Coordinator, Bernadette Davis at
bernadette.davis(r7i.dir.texas.gov .
• RESPONDENT AND REQUISITION INFORMATION
a. Respondent (Company) Name: Dell Marketing L.P. State of Texas VID M 1742616805400
Point of Contact: Diane Wigington Phone #: 512-728.4805
E-mail Address: Diane_Wigington@Dell.com Fax M 512-283-9092
b. Is your company a State of Texas certified HUB? ❑ - Yes 0 -No
c. Requisition M DIR-SDD-1951
Bid Open Date:
(mmlddlyyyy)
Enter your company's name here: Dell Marketing L.P. Requisition #: DIR-SDD-1951
WANOMM SUBCONTRACTING INTENTIONS
After dividing the contract work into reasonable lots or portions to the extent consistent with prudent industry practices, and taking into consideration the scope of
work to be performed under the proposed contract, including all potential subcontracting opportunities, the respondent must determine what portions of work,
including goods and services, will be subcontracted. Note: In accordance with 34 TAC §20.11„ an 'Subcontractor" means a person who contracts with a prime
contractor to work, to supply commodities, or to contribute toward completing work for a governmental entity.
a. Check the appropriate box (Yes or No) that identifies your subcontracting intentions:
® - Yes, I will be subcontracting portions of the contract. (If Yes, complete Item b, of this SECTION and continue to Item c of this SECTION.)
❑ - No, I will not be subcontracting any portion of the contract, and I will be fulfilling the entire contract with my own resources. (If No, continue to SECTION 3.)
b. List all the portions of work (subcontracting opportunities) you will subcontract. Also, based on the total value of the contract, identify the percentages of the
contract you expect to award to Texas certified HUBs, and the percentage of the contract you expect to award to vendors that are not a Texas certified HUB
(i.e., Non -HUB).
Item q
Subcontracting Opportunity Description
HUBs
Non -HUBS
Percentage of the contract
expected to be subcontracted
to HUBs with which you have
had contracts in place for
five (5) years or less
Percentage of the contract
expected to be subcontracted
to HUBs with which you have
had contracts in place for
more than five (5)y eek.
percentage of the contract
expected to be subcontracted
to non-HUBs ,
1
Order Fulfiller 1 Marketing Agent as requested by Customers
%
%
%
2
%
%
%
3
%
%
%
4
%
%
%
5
%
%
%
8
%
%
%
7
%
%
%
8
%
%
%
g
%
%
%
10
%
%
%
11
%
%
%
12
%
%
%
13
%
%
%
14
%
%
%i
Aggregate percentages of the contract expected to be subcontracted:
%
%.
%
(Note: If you have more than fifteen subcontracting opportunities, a continuation sheet is available online at http:flwindow.state,tx,uslprocurementlproglhublhub-subcontracting-plant)
c. Check the appropriate box (Yes or No) that indicates whether you will be using only Texas certified HUBs to perform all of the subcontracting opportunities you
listed in SECTION 2, Item b.
❑ - Yes (If Yes, continue to SECTION 4 and complete an 'HSP Good Faith Effort - Method A (Attachment A)' for each of the subcontracting opportunities you listed.)
® - No (if No, continue to Item d, of this SECTION.)
Check the appropriate box (Yes or No) that indicates whether the aggregate expected percentage of the contract you will subcontract with Texas certified
HUBs with which you have had contracts in place with for five (5) Years or less meets or exceeds the HUB goal the contracting agency identified on page 1 in
the 'Agency S ecial Instructions/Additional Requirement .
❑ - Yes (If Yes, continue to SECTION 4 and complete an "HSP Good Faith Effort - Method A (Attachment A)" for each of the subcontracting opportunities you listed.)
0 No (If No, continue to SECTION 4 and complete an "HSP Good Faith Effort - Method B (Attachment B)" for each of the subcontracting opportunities you listed.)
Enter your company's name here: Dell Marketing L.P. Requisition #: DIR•SDD•1951
• SUBCONTRACTING INTENTIONS (CONTINUATION SHEET)
a. This page can be used as a continuation sheet to the HSP Form's page 2, SECTION 2, Item b. Continue listing the portions of work (subcontracting
opportunities) you will subcontract. Also, based on the total value of the contract, identify the percentages of the contract you expect to award to Texas certified
HUBS, and the percentage of the contract you expect to award to vendors that are not a Texas certified HUB (i.e., Non -HUB).
Item p
Subcontracting Opportunity Description
HUBs
Non -HUBS
Percentage of the contract
expected to be subcontracted
to HUBs with which you have
had contracts in place for
five (5) yearsorless.
Percentage of the contract
expected lobe subcontracted
to HUBs with which you have
had contracts in place for
more than five 1151 years,
Percentage of the contract
expected to be subcontracted
to non -1-11.18s.
%
%
%
No
%
%
%
Aggregate percentages of the contract expected to be subcontracted:
%
%
%
HSP -- SECTION 2
(Continuation Sheet)
• SELF PERFORMING JUSTIFICATION (If you responded "No" to SECTION 2, Item a, you must complete this SECTION and continue to SECTION d.)
Check the appropriate box (Yes or No) that indicates whether your responsetproposal contains an explanation demonstrating how your company will fulfill the entire
contract with its own resources.
❑ -Yes (If Yes, in the space provided below list the specific page(s)lsection(s) of your proposal which explains how your company will perform the entire
contract with its own equipment, supplies, materials and/or employees.)
❑ - No (if No, in the space provided below explain how your company will perform the entire contract with its own equipment, supplies, materials and/or
employees.)
• AFFIRMATION
As evidenced by my signature below, I affirm that I am an authorized representative of the respondent listed in SECTION 1, and that the information and supporting
documentation submitted with the HSP is true and correct. Respondent understands and agrees that, if awarded any portion of the requisition:
• The respondent will provide notice as soon as practical to all the subcontractors (HUBS and Non-HUBs) of their selection as a subcontractor for the awarded
contract. The notice must specify at a minimum the contracting agency's name and its pant of contact for the contract, the contract award number, the
subcontracting opportunity they (the subcontractor) will perform, the approximate dollar value of the subcontracting opportunity and the expected percentage of
the total contract that the subcontracting opportunity represents. A copy of the notice required by this section must also be provided to the contracting agency's
pant of contact for the contract no later than ten (10) working days after the contract is awarded.
• The respondent must submit monthly compliance reports (Prime Contractor Progress Assessment Report — PAR) to the contracting agency, verifying its
compliance with the HSP, including the use of and expenditures made to its subcontractors (HUBs and Non-HUBs). (The PAR is available at
ht(pr//www.window.state.tx.uslprocurement/proglhublhub-formslprogressassessmentrpt xls).
The respondent must seek approval from the contracting agency prior to making any modifications to its HSP, including the hiring of additional or different
subcontractors and the termination of a subcontractor the respondent identified in its HSP. If the HSP is modified without the contracting agency's prior
approval, respondent may be subject to any and all enforcement remedies available under the contract or otherwise available by law, up to and including
debarment from all state contracting.
The respondent must, upon request, allow the contracting agency to perform on-site reviews of the company's headquarters and/or work -site where services are being performed
provide documentation regarding staffing and other resources.
Signature on File Diane Wigington Public Contracts Manager January 24. 2013
Signature Printed Name Title Date
REMINDER: ➢ If you responded "Yes"to SECTION 2, Items c or d, you must complete an'HSP Good Faith Effort - Method A (Attachment A)' for each of
the subcontracting opportunities you listed in SECTION 2, Item b.
➢ If you responded "No" SECTION 2, Items c and d, you must complete an 'HSP Good Faith Effort - Method a (Attachment B)' for each of
the subcontracting opportunities you listed in SECTION 2, Item b.
HSP Good Faith Effort - Method A (Attachment A)
Enter your company's name here: Dell Marketing L.P. Requisition #: DIR-SDD-1951
IMPORTANT If you responded 'Yee to SECTION 2, Items c or d of the completed HSP form, you must submit a completed "HSP Good Faith Effort - Method
A (Attachment A)" for each of the subcontracting opportunities you listed in SECTION 2, Item b of the completed HSP form. You may photo -copy this page or
download the form at http;//www.window.sfate.tx.us/procurement/prog/hub/hub-formstHUBSubcontracfingPlanAftachmenf-A.doc
E� SUBCONTRACTING OPPORTUNITY
Enter the item number and description of the subcontracting opportunity you fisted in SECTION 2, Item b, of the completed HSP form for which you are completing
this attachment.
Item M Description:
• SUBCONTRACTOR SELECTION
List the subcontractor(s) you selected to perform the subcontracting opportunity you listed above in SECTION A-1. Also identify whether they are a Texas Certified
HUB and their VID number, the approximate dollar value of the work to be subcontracted, the expected percentage of work to be subcontracted, and indicate whether
the company is a Texas certified HUB.
Company Name
Texas
Certified HUB
VID #
(Required If Texas
Cadifled HUB)
Approximate
Dotlar Amount
Expected Percentage
of Contract
❑-Yes El -No
$
%
❑-Yes E] -No
$
%
❑-Yes ❑-No
$
%
❑- Yes El -No
$
%
E] -Yes ❑-No
$
%
❑-Yes ❑-No
$
%
❑-Yes 0 -No
$
%
[I -Yes ❑-No
$
%
❑-Yes ❑-No
$
%
❑ -yes ❑ - No
$
%
❑-Yes ❑- No
$
%
❑ -yes ❑ - No
$
%
❑ - Yes ❑ - No
$
%
❑ - Yes ❑ - No
$
%
❑- Yes ❑-No
$
%
El -Yes ❑-No
$
%
El -Yes El -No
$
%
[3 -Yes No
$
%
❑-Yes No
$
%
❑-Yes No
$
%,
El -Yes ❑-No
$
%
REMINDER: As specified in SECTION 4 of the completed HSP form, if you (respondent) are awarded any portion of the requisition, you are required to provide
notice as soon as practical to all the subcontractors (HUBs and Non-HUBs) of their selection as a subcontractor. The notice must specify at a minimum the
contracting agency's name and its point of contact for the contract, the contract award number, the subcontracting opportunity they (the subcontractor) will perform,
the approximate do{lar value of the subcontracting opportunity and the expected percentage of the total contract that the subcontracting opportunity represents. A
copy of the notice required by this section must also be provided to the contracting agency's point of contact for the contract no later than ten (10) working days after
the contract is awarded.
Page 1 of 1
(Attachment A)
HSP Good Faith Effort - Method B (Attachment B)
Enter your company's name here: Dell Marketing L.P. Requisition #: DIR-SDD-1951
IMPORTANT: If you responded 'No' to SECTION 2, Items c and d of the completed HSP form, you must submit a completed 'HSP Good Faith Effort -Method
B (Attachment B)' for each of the subcontracting opportunities you listed in SECTION 2, Item b of the completed HSP form. You may photo -copy this page or
download the form at http:liwww.window.state.tx.usiprocurementiprog/hub/hub-forms/HUBSubcontractingPlanAttachment-B.doc
• ► : SUBCONTRACTING OPPORTUNITY
Enter the item number and description of the subcontracting opportunity you listed in SECTION 2, Item b, of the completed HSP form for which you are completing
this attachment.
Item #: 1 Description: Order Fulfiller f Marketing Agent
• MENTOR PROTEGE PROGRAM
If respondent is participating as a Mentor in a State of Texas Mentor Protege Program, submitting its Protege (Protege must be a State of Texas certified HUB) as a
subcontractor to perform the subcontracting opportunity listed in SECTION B-1, constitutes a good faith effort to subcontract with a Texas certified HUB towards that
soeebfic portion of work.
Check the appropriate box (Yes or No) that indicates whether you will be subcontracting the portion of work you listed in SECTION B-1 to your Protege.
❑ - Yes (If Yes, to continue to SECTION B-4.)
®- No / Not Applicable (If No or Not Applicable, continue to SECTION B-3.)
• : NOTIFICATION OF SUBCONTRACTING OPPORTUNITY
When completing this section you MUST comply with items a, b, c and d, thereby demonstrating your Good Faith Effort of having notified Texas certified HUBs and minority or
women trade organizations or development centers about the subcontracting opportunity you listed in SECTION B-1. Your notice should include the scope of work, information
regarding the location to review plans and specifications, bonding and insurance requirements, required qualifications, and identify a contact person.
When sending notice of your subcontracting opportunity, you are encouraged to use the attached HUB Subcontracting Opportunity Notice form, which is also available online
at http://www.window.state.tx.us/procurementfprogthub/hub-subcontracting-plan/
Retain supporting documentation (i.e., certified letter, fax, e-mail) demonstrating evidence of your good faith effort to notify the Texas certified HUBs and minority or
women trade organizations or development centers.
a. Provide written notification of the subcontracting opportunity you listed in SECTION B-1, to three 3 or more Texas certified HUBs. Unless the contracting
agency specified a different time period, you must allow the HUBs at least seven (7) working days to respond to the notice prior to your submitting your bid
response to the contracting agency. When searching for Texas certified HUBs, ensure that you use the State of Texas' Centralized Master Bidders List (CMBL)
and Historically Underutilized Business (HUB) Search directory located at htip.lAvww.window.state.tx.us/procurement//cmbl/cmblhub.hfmt. HUB Status
code *A7 signifies that the company is a Texas certified HUB,
b. List the three 3 Texas certified HUBs you notified regarding the subcontracting opportunity you listed in SECTION B-1. Include the company's Vendor ID (VID)
number, the date you sent notice to that company, and indicate whether it was responsive or non-responsive to your subcontracting opportunity notice.
Company Name
VID #
Date Notice Sent
(mmfddlyM)
Did the HUB Respond?
/ I
❑ -Yes ❑ No
1 I
❑-Yes No
❑ Yes ❑ No
1 1
❑ Yes ❑ No
f !
❑-Yes No
c. Provide written notification of the subcontracting opportunity you listed in SECTION B-1 to minority or women trade organizations or development centers to
assist in identifying potential HUBs by disseminating the subcontracting opportunity to their members/participants. Unless the contracting agency specified a
different time period, you must provide your subcontracting opportunity notice to minority or women trade organizations or development centers at least seven
(7) working days prior to submitting your bid response to the contracting agency.
A list of trade organizations and development centers that have expressed an interest in receiving notices of subcontracting opportunities is available on the
Statewide HUB Program's webpage at http:l/www.window.state.tx.uslprocurementlprogthublmwb-links-11
d. Enter the name of the minority or women trade organizations or development centers you notified regarding the subcontracting opportunity you listed in
SECTION B-1. Include the date when you sent notice to it and indicate if it accepted or rejected your notice.
/Women Trade Organizations or Development Centers
Minority/Women Y 9 P
Date Notice Sent
(mmladlyyyy)
Was the Notice
Accepted?
/ I
❑ -Yes ❑ No
I I
❑ Yes ❑ No
Pagel of 2
(Attachment B)
NSP Good Faith Effort - Method B (Attachment B) conn.
Enter your company's name here: Dell {Marketing L.P. Requisition #: DIR-SDD-890
= ' SUBCONTRACTOR SELECTION
a. List the subcontractor(s) you selected to perform the subcontracting opportunity you listed in SECTION B-1. Also identify whether they are a Texas Certified
HUB and their VID number, the approximate dollar value of the work to be subcontracted, the expected percentage of work to be subcontracted, and indicate
whether the company is a Texas certified HUB.
Company Name
Texas
Certified HUB
VID #
(RequlredNTeeas
Certified HUB)
Approximate
Dollar Amount
Expected Percentage
of Contract
Austin Ribbon and Computing
® - Yes ❑ - No
17423397900
$
%
Checkpoint Services
® -yes ❑ - No
1742775490200
$
%
Commonwealth Computer Company
® -Yes ❑ - No
1742748769300
$
%
xNet Systems
ESI - Yes ❑ - No
1752837171300
$
e%
SHI Government Solutions
0 -Yes ❑ - No
1752837171300
$
%
Advant Tech Solutions
0 -Yes ❑ - No
1421606450200
$
°%
Sirius Computer Solutions Inc.
❑ -Yes ® - No
1742836721700
$
e%
Summus Industries, Inc.
® - Yes ❑ - No
1760533392500
$
%
Blue Line Services
❑ - Yes M - No
18105834867
$
e%
Centre Technologies
® -Yes 0 -No
1510609177800
$
%
Virtual Communications
❑-Yes ®-No
1571164705500
$
°%
Waypoint
❑ - Yes ® No
7605503659
$
e%
CMC
❑ - Yes ® - No
14708993028
$
%
Solid IT Networks
❑ - Yes ®- No
1752950821400
$
%
EST Group
9 -Yes ❑ -No
1203330208900
$
%
HiEd Inc.
0 -Yes ❑ - No
1760385002900
$
'%
Freeit Data Solutions, Inc.
® -Yes ❑ - No
1272209002900
$
•%
Abacus Computers, Inc.
® -Yes ❑ - No
1751644304300
$
%
Decision Tree Inc.
0 -Yes ❑ -No
1742538104700
$
%
DAG Consulting LLC
N -Yes ❑ - No
1731724421200
$
%
b. If any of the subcontractors you have selected to perform the subcontracting opportunity you listed in SECTION B-1 is not a Texas certified HUB, provide written
justification for your selection process (attach additional page if necessary):
REMINDE R: As specified in SECTION 4 of the completed HSP form, if You (respondent) are awarded any portion of the requisition, you are required to provide
notice as soon as practical to all the subcontractors (HUBS and Non -HUBS) of their selection as a subcontractor. The notice must specify at a minimum the
contracting agency's name and its point of contact for the contract, the contract award number, the subcontracting opportunity it (the subcontractor) will perform, the
approximate dollar value of the subcontracting opportunity and the expected percentage of the total contract that the subcontracting opportunity represents. A copy of
the notice required by this section must also be provided to the contracting agency's point of contact for the contract no later than ten (10) working days after the
contract is awarded.
HSP Good Faith Effort - Method B (Attachment B)
Enter your company's name here: Dell Marketing L.P. Requisition #: DIR-SDD-1951
IMPORTANT: If you responded'No- to SECTION 2, Items c and d of the completed HSP form, you must submit a completed `HSP Good Faith Effort - Method
B (Attachment B)' for each of the subcontracting opportunities you listed in SECTION 2, Item b of the completed HSP form. You may photo -copy this page or
download the form at http:iiwww.window.state.tx.usiprocurementiprog/hub/hub-formslHUBSubcontractingPlanAttachment-B.doc
FRMr*1kT-.= SUBCONTRACTING OPPORTUNITY
Enter the item number and description of the subcontracting opportunity you listed in SECTION 2, Item b, of the completed HSP form for which you are completing
this attachment.
Item #: Description:
• = MENTOR PROT�G!` PROGRAM
If respondent is participating as a Mentor in a State of Texas Mentor Prolegb Program, submitting its Protege (Protege must be a State of Texas certified HUB) as a
subcontractor to perform the subcontracting opportunity listed in SECTION B-1, constitutes a good faith effort to subcontract with a Texas certified HUB towards that
specific portion of work.
Check the appropriate box (Yes or No) that indicates whether you will be subcontracting the portion of work you listed in SECTION B-1 to your Prolegb.
❑ - Yes (If Yes, to continue to SECTION BA.)
❑ - No I Not Applicable (If No or Not Applicable, continue to SECTION B-3.)
• = NOTIFICATION OF SUBCONTRACTING OPPORTUNITY
When completing this section you MUST comply with items a, b, c and d, thereby demonstrating your Good Faith Effort of having notified Texas certified HUBs and minority or
women trade organizations or development centers about the subcontracting opportunity you listed in SECTION B-1. Your notice should include the scope of work, information
regarding the location to review plans and specifications, bonding and insurance requirements, required qualifications, and identify a contact person.
When sending notice of your subcontracting opportunity, you are encouraged to use the attached HUB Subcontracting Opportunity Notice form, which is also available online
at httplhvww.window.state.onus/procurementlpmg/hublhub-subcontracting-plant
Retain supporting documentation (i.e., certified letter, fax, e-mail) demonstrating evidence of your good faith effort to notify the Texas certified HUBs and minority or
women trade organizations or development centers.
e. Provide written notification of the subcontracting opportunity you listed in SECTION B-1, to three 3 or more Texas certified HUBs. Unless the contracting
agency specified a different time period, you must allow the HUBs at least seven (7) working days to respond to the notice prior to your submitting your bid
response to the contracting agency. When searching for Texas certified HUBs, ensure that you use the State of Texas' Centralized Master Bidders List (CMBL)
and Historically Underutilized Business (HUB) Search directory located at http.lAvww.w/ndow.state.tx.us/procurement//cmbYcmblhub.himl. HUB Status
code 'A' signifies that the company is a Texas certified HUB.
f. List the three 3 Texas certified HUBs you notified regarding the subcontracting opportunity you listed in SECTION B-1. Include the company's Vendor ID (VID)
number, the date you sent notice to that company, and indicate whether it was responsive or non-responsive to your subcontracting opportunity notice.
Company Name
VID #
Date Notice Sent
(mMddryyyy)
Did the HUB Respond?
1 1
❑-Yes ❑-No
! 1
❑-Yes ❑-No
0 -Yes El -No
1 1
❑ -Yes ❑ -No
1 1
❑ - Yes ❑ -No
g. Provide written notification of the subcontracting opportunity you listed in SECTION B-1 to minority or women trade organizations or development centers to
assist in identifying potential HUBs by disseminating the subcontracting opportunity to their membersiparticipants. Unless the contracting agency specified a
different time period, you must provide your subcontracting opportunity notice to minority or women trade organizations or development centers at least seven
(7) working days prior to submitting your bid response to the contracting agency.
A list of trade organizations and development centers that have expressed an interest in receiving notices of subcontracting opportunities is available on the
Statewide HUB Program's webpage at http:tlwww.window.state.tx.us/procurementiprogfhub/mwb-links-1/
h. Enter the name of the minority or women trade organizations or development centers you notified regarding the subcontracting opportunity you listed in
SECTION B-1. Include the date when you sent notice to it and indicate if it accepted or rejected your notice.
MinoritylWomen Trade Organizations or Development Centers
Date Notice Sent
(mmrddfyyyy)
Was the Notice
Accepted?
1 1
❑-Yes ❑-No
f 1
0 -Yes El -No
HSP Goof Faith Effort - Method B (Attachment B) cont
Enter your company's name here: Dell Marketing L.P. Requisition #: DIR-SDD-1951
•= ' SUBCONTRACTOR SELECTION
c. List the suboontractor(s) you selected to perform the subcontracting opportunity you listed in SECTION B-1. Also identify whether they are a Texas Certified
HUB and their VID number, the approximate dollar value of the work to be subcontracted, the expected percentage of work to be subcontracted, and indicate
whether the company is a Texas certified HUB.
Company Name
Texas
VID #
Approximate
Expected Percentage
Certified HUB
(Required is Texas
Dollar Amount
of Contract
caddied HUB)
❑ - Yes ❑ - No
$
%
0 -Yes ❑ - No
$
%
d. If any of the subcontractors you have selected to perform the subcontracting opportunity you listed in SECTION B-1 is not a Texas certified HUB, provide written
justification for your selection process (attach additional page if necessary):
REMINDER: As specified in SECTION 4 of the completed HSP form, ifyou(respondent) are awarded any portion of the requisition, you are required to provide
notice as soon as practical to all the subcontractors (HUBS and Non-HUBs) of their selection as a subcontractor. The notice must specify at a minimum the
contracting agency's name and its point of contact for the contract, the contract award number, the subcontracting opportunity it (the subcontractor) will perform, the
approximate dollar value of the subcontracting opportunity and the expected percentage of the total contract that the subcontracting opportunity represents. A copy of
the notice required by this section must also be provided to the contracting agency's point of contact for the contract no later than ten (10) working days after the
contract is awarded.
Appendix E
MASTER OPERATING LEASE AGREEMENT
1. Definitions. Capitalized terms used in this Appendix and not otherwise defined will have the
meanings set forth in the Contract.
(a) "Assets" refers to the Products as allowed within the Contract, including the Hardware, Software, and
related Services, which are specifically identified on the applicable Schedule. Assets includes any
items associated with the foregoing, including but not limited to all parts, replacements, additions,
repairs, and attachments incorporated therein and/or affixed thereto, and documentation (technical
and/or user manuals).
(b) "Contract" refers to DIR Contract number DIR-SDD-1951 into which this Appendix is incorporated.
(c) "Event of Default' is defined in Section 23, "Default."
(d) "Event of Loss" means an event of loss, theft, destruction or damage of any kind to any item of the
Assets, including the loss, theft or taking by governmental action of any item of the Assets for a stated
period extending beyond the Term of any Schedule.
(e) "Hardware" refers to the computer machinery and equipment specifically identified on the applicable
Schedule.
(f) "Lease" means the financing transaction described in this MOLA.
(g) "Lessee" means any Texas state agency, unit of local government, institution of higher education as
defined in Section 2054.003 (8-a), Texas Government Code, and those state agencies purchasing from
a DIR contract through an Interagency Agreement, as authorized by Chapter 771, Texas Government
Code, any local government as authorized through the Interlocal Cooperation Act, Chapter 791, Texas
Government Code, and the state agencies and political subdivisions of other states as authorized by
Section 2054.0565, Texas Government Code.
(h) "Lessor" means the Vendor identified in the Contract.
(i) "MOLA" means this Master Operating Lease Agreement (Appendix E). Any reference to "MOLA"
includes the Contract, the Opinion of Counsel, and any riders, amendments and addenda thereto, and
any other documents as may from time to time be made a part hereof upon mutual agreement in a
writing signed by authorized representatives of both parties.
(j) "Rent Payment" means the amount payable by Lessee for the Assets as specified in the applicable
Schedule.
(k) "Schedule" or "Supplementary Schedule" to this MOLA means the form or format entered into
between Lessor and Lessee which contains, at a minimum, a description of the Assets, the name of the
DIR Contract # DIR-SDD-1951 Page 1 of 18 Appendix I;, MOLA
Lessee, applicable Rent Payment, and term of the Lease. To be effective, a Schedule must be executed
by both Lessor and Lessee.
(1) "Services" refers to the configuration, installation, implementation, support, training, and other
professional and consulting services specifically identified on the applicable Schedule.
(m)"Software" refers to the computer programs specifically identified on the applicable Schedule.
(n) "Stipulated Loss Value" is the value of each unit of Hardware at various times during the Lease as
specified in the applicable Schedule; however, in no event will the Stipulated Loss Value of a
Hardware unit exceed its fair market value.
2. Lease.
(a) Lessor and Lessee intend that this MOLA constitute an operating lease and a true lease as those terms
are defined in the Statement of Financial Accounting Standards No. 13 and as provided for under the
Uniform Commercial Code — Leases, Tex. Bus. & Comm. Code Article 2A. Under no circumstances
shall this MOLA or any Schedules entered into under it be construed as a "finance lease" as defined in
Tex. Bus. & Comm. Code § 2A.103 (7). In addition, Lessor acknowledges that Lessee is not a
"merchant lessee" for purposes of Tex. Bus. & Comm. Code § 2A.511.
(b) Lessor hereby leases to Lessee, and Lessee hereby leases from Lessor, the Assets described on each
Schedule. Each such Schedule constitutes a separate agreement between Lessor and Lessee. In
addition, each Schedule is subject to the terms and conditions of this MOLA as if a separate MOLA
were executed for such Schedule by the parties.
(c) In the event of Lessee's rightful rejection of the Assets as specified in Section 10 ("Inspection and
Acceptance") of this MOLA, Lessee shall have the right, at its sole option, to cancel this Lease as to
the rejected Assets or as to all of the Assets to be leased under the Schedule applicable to such Assets.
Upon cancellation, Lessee shall have no obligations under this MOLA with respect to the porion of
this Lease so cancelled.
(d) Each Lessee has made an independent legal and management determination to enter into each
Schedule. DIR has not offered or provided any legal or management advice to Lessor or to any Lessee
under any Schedule. Lessee may negotiate additional terms or more advantageous terms with Lessor
to satisfy individual procurements in which case such terms shall be set forth in a Rider to the MOLA
or the Schedule. To the extent that any of the provisions of the MOLA conflict with any of the terms
contained in any Schedule, the terms of this MOLA shall control.
(e) If more than one Lessee is named in a Schedule, the liability of each named Lessee shall be joint and
several. However, unless DIR leases Assets for its own use, DIR is not a party to any Schedule
executed under this MOLA and is not responsible for Rent Payments or any other obligations under
such Lessee's Schedule. The invalidation, fulfillment, waiver, termination, or other disposition of any
rights or obligations of either a Lessee or Lessor (or both of them) arising from the use of this MOLA
in conjunction with any one Schedule shall not affect the status of the rights or obligations of either or
DIR Contract # DIR-SDD-1951 Page 2 of 18 Appendix E, MOLA
both of those parties arising from the use of this MOLA in conjunction with any other Schedule,
except in the Event of Default as provided in Section 23 ("Default") of this MOLA.
3. Term of MOLA.
The term of this MOLA shall commence (a) upon commencement of the term of the Contract. The term of
this MOLA shall continue until the last to occur of the following: (i) the Schedule Term of each Schedule
entered into by the parties has expired or been terminated, or (ii) the Contract has expired or been
terminated. In the event of any termination or expiration of the Contract or termination of this MOLA, any
provisions of the Contract and this MOLA as may be necessary to preserve the rights of Lessor or Lessee
hereunder shall survive said termination or expiration.
4. Term of Schedule.
The term for each Schedule agreed to by a Lessee and Lessor under this MOLA shall commence on the
effective date specified in the Schedule (and, if no date is specified, then on the date the Schedule was
signed by Lessee, provided Lessor has also signed the ScheduIe). Unless earlier terminated as provided for
herein, the Schedule shall continue for the number of whole months or other payment periods set forth in
it (the "Schedule Term"). Specifically with respect to Hardware, under no circumstances shall the
Schedule Term exceed seventy five percent (75%) of the economic life of the Hardware. The Schedule
Term may be earlier terminated upon: (i) the non -appropriation of funds pursuant to Section 8
("Appropriation of Funds") of this MOLA, (ii) an Event of Loss, (iii) an Event of Default by Lessee and
Lessor's election to cancel the Schedule pursuant to Section 24 ("Remedies") of this MOLA, (iv) an event
of default or other- breach of this Agreement by Lessor and Lessee's election to cancel the Schedule
pursuant to Section 24 ("Remedies") of this MOLA, or (v) as otherwise set forth herein.
5. Administration of MOLA.
(a) When a prospective Lessee wishes to lease Assets under this MOLA, the prospect will submit its
request directly to Lessor. Lessor shall apply the applicable pricing discounts as stated in Section 4 of
the Contract or the price as agreed upon by Lessee and Lessor in the applicable Schedule, whichever is
lower and submit the lease proposal to the prospective Lessee. If the prospective Lessee wishes to
proceed to lease Assets based on the proposal, Lessor will negotiate the applicable Rent Payment,
availability of Assets, and term of the Lease directly with the prospective Lessee.
(b) With respect to Lessor's obligations under Section 5 of the Contract to report the sale and make
payment of the DIR administrative fee as defined in that Section, all leasing activities in conjunction
to this MOLA shall be treated as a "purchase sale." Notwithstanding treatment of this Lease as a
"purchase sale" as to the transaction between Lessor and DIR under the Contract, however, under no
circumstances shall this MOLA be construed as creating anything other than a true lease and operating
lease as stated in Section 2 ("Lease") hereof for the transaction(s) between Lessor and Lessee.
(c) Upon agreement by Lessor and Lessee on the applicable Rent Payment, availability, Lease term, and
the like, Lessee may issue a purchase order in the amount indicated on the applicable Schedule to
Lessor for the Assets and reference the Contract number on the purchase order. Any pre-printed terms
and conditions on the Schedule issued by Lessor (with respect to any item other than the specific
DIR Contract 9 DIR-SDD-1951 Page 3 of 18 Appendix E, MOLA
Assets which are the subject of the Lease, the Schedule Term, and the Rent Payments), Lessor's order
acknowledgement form or the like shall not be effective with respect to the lease of Assets hereunder.
Rather, the terms and conditions of this MOLA shall control in all respects.
(d) Until a Schedule is entered into by Lessor and a Lessee per the process set forth in this MOLA, neither
DIR nor any Lessee is obligated under this MOLA to lease Assets from Lessor nor is Lessor obligated
under this MOLA to lease Assets to a Lessee.
6. Rent Payments.
(a) During the Schedule Term and any renewal terms agreed to by Lessee as specified herein, Lessee
agrees to pay Lessor the Rent Payments set forth in the relevant Schedule for each Asset. Rent
Payments shall be the amount equal to the Rent Payment amount specified in the Schedule multiplied
by the amount of the total number of Rent Payments specified therein. Lessee shall pay Rent Payments
in the amount and on the due dates specified by Lessor until all Rent Payments and all other amounts
due under the Schedule have been paid in full. If the Schedule Commencement Date is other than the
first day of a month, Lessee shall make an initial payment on the Schedule Commencement Date in an
amount equal to one -thirtieth of the Rent Payment specified in the Schedule for each day from the
Schedule Commencement Date (including the Schedule Commencement Date) through the last day of
such month (including that day). For example, if a scheduled payment amount is $3,000 and the
Scheduled Commencement date is the 15'x' of the month, a payment of $1,500 will be made. Under no
circumstances shall the present value of the Rent Payments exceed ninety percent (90%) of the value
of the Assets.
(b) Any amounts received by Lessor from Lessee in excess of Rent Payments and any other sums required
to be paid by Lessee shall be held as non-interest bearing security for Lessee's faithful performance
under the conditions of this MOLA (and any Schedule), and applied to reduce future Rent Payments.
All Rent Payments shall be paid to Lessor at the address stated on the Schedule or any other such
place as Lessor or its assigns may hereafter direct to Lessee. Lessee shall abide by Appendix A,
Section 7C of the Contract in making payments to Lessor. Lessor's (including its assignees') remedy
for late payments is as set forth in Chapter 2251, Texas Government Code.
(c) Lessee acknowledges and agrees, except as specifically provided for in Section 8 ("Appropriation of
Funds") of this MOLA and excluding claims resulting from a breach of Lessor's obligations as set
forth in this MOLA or any Schedule or of Lessee's rights under Section 16 ("Quiet Enjoyment")
hereof, that Lessee's obligation to pay Rent and other sums payable hereunder, shall not be abated,
reduced or subject to offset or diminished as a result of any past, present or future claims Lessee may
have against Lessor under this Lease. Notwithstanding the foregoing, nothing in this Section or any
other provision of this MOLA shall affect or preclude Lessee from enforcing any and all other rights it
may have against Lessor and its assignees under this MOLA or otherwise affect any right Lessee may
have against the manufacturer or licensor of the Assets or any party other than Lessor.
DIR Contract # DIR-SDD-1951 Page 4 of 18 Appendix E, MOLA
7. Liens.
Lessee shall keep the Assets free and clear of all levies, liens and encumbrances, and shall give Lessor
immediate notice of any attachment or other judicial process affecting any item of the Assets.
8. Appropriation of Funds.
Lessee intends to continue each Schedule to which it is a party for the Schedule Term and to pay the Rent
and other amounts due hereunder. Lessee reasonably believes that legally available funds in an amount
sufficient to pay all Rent during the Schedule Term can be obtained. Lessee further intends to act in good
faith to do those things reasonably and lawfully within its power to obtain and maintain funds from which
the Rent may be paid. Notwithstanding the foregoing, in the event sufficient fiends are not appropriated to
continue the Schedule Term for any fiscal period (as set forth on the Schedule) of Lessee beyond the fiscal
period first in effect at the commencement of the Schedule Term, Lessee may terminate the Schedule with
regard to those of the Assets on the Schedule so affected. Lessee shall endeavor to provide Lessor with
written notice sixty (60) days prior to the end of its current Fiscal Period confirming which Assets on the
Schedule will be so affected by the termination. All obligations of Lessee to make Rent Payments due
with respect to those Assets after the end of the Fiscal Period for which such termination applies will
cease, all interests of Lessee in those Assets will terminate, Lessee shall surrender those Assets in
accordance with Section 15 ("Option to Extend; Surrender of Assets") of this MOLA, and the applicable
Schedule shall be deemed amended. Lessee represents and warrants it has adequate funds to meet its
obligations during the first fiscal period of the Schedule Term. Lessor and Lessee intend that the
obligation of Lessee to make Rent Payments under this MOLA shall constitute a current expense of
Lessee and shall not in any way be construed to be a debt of Lessee in contravention of any applicable
constitutional or statutory limitation or requirement concerning the creation of indebtedness by Lessee,
nor shall anything contained herein constitute a pledge of the general revenues, funds or monies of Lessee
or the State of Texas, as applicable, beyond the fiscal period for which sufficient funds have been
appropriated to make Rent Payments hereunder.
9. Assignment of Warranties.
Each Schedule is intended to be a true lease and operating lease as defined in Tex. Bus. & Comm. Code
Article 2A. Lessor has acquired or will acquire the Assets in connection with this MOLA and hereby
agrees to assign to Lessee any warranties provided to Lessor with respect to the Assets during the Term of
the applicable Schedule, to the extent the warranties are assignable. Unless Lessor' is the manufacturer or
is otherwise Iiable under the Contract, Lessor shall not be liable for damages for any reason for any act or
omission of the manufacturer of the Assets. Except as provided in Section 24 ("Remedies") hereof, Lessee
acknowledges that none of the following shall relieve Lessee from the obligations under this MOLA
during the Schedule Term unless due to Lessor's acts or omissions: (i) Lessee's dissatisfaction with any
unit of the Assets, (ii) the failure of an Asset to remain in useful condition for the Schedule Term, or (iii)
the loss or right of possession of the Assets (or any part thereof) by Lessee. Lessee shall have no right,
title or interest in or to the Assets except the right to use the same upon the terms and conditions herein
contained. The Assets shall remain the sole and exclusive personal property of Lessor and not be deemed
a fixture whether or not it becomes attached to any real property of Lessee.
DIR Contract # DIR-SDD-1951 Page 5 of 18 Appendix E, MOLA
10. Inspection and Acceptance.
Promptly upon delivery of the Assets, Lessee will inspect and test the Assets. No later than twenty (20)
business days following its date of delivery (or, if the Assets are part of a system, the date of last delivery
of the Assets comprising the system), Lessee will execute and deliver either (i) a Certificate of
Acceptance, or (ii) written notification of any defects in the Assets. If Lessee has not given notice within
such time period, the Assets shall be deemed accepted by Lessee as of the twentieth (20th) business day,
as described above. In the event Lessee does not accept the Assets, Lessor will promptly remove the
Assets from Lessee's premises and deliver conforming Assets within the timeframe agreed to and
provided for by the supplier or manufacturer under that supplier's or manufacturer's applicable
procurement contract with the State. if conforming Assets are not delivered within that timeframe, Lessee
may terminate the Schedule on written notice to Lessor. Lessee's acceptance of any Assets shall not be
deemed to waive any rights Lessee may have against the manufacturer or licensor, as applicable. Lessor
and its assigns, including either of their respective agents shall have the right to inspect the Assets upon
reasonable notice to Lessee and during normal business hours provided that anyone who does so has first
executed a non -disclosure agreement acceptable to Lessee.
11. Installation and Delivery; Use of Assets; Repair and Maintenance.
(a) Except as set forth in this MOLA, all transportation, delivery, installation, and de -installation costs
associated with the Assets shall be borne by Lessee. Lessee shall provide a place of installation for the
Assets, which conforms to the requirements of the manufacturer and Lessor.
(b) Subject to the terms hereof, Lessee shall be entitled to use the Assets for the conduct of its business in
compliance with all laws, rules, and regulations of the jurisdiction in which the Assets are located.
Lessee shall not use or permit the use of the Assets for any purpose for which, according to the
specification of the manufacturer, the Assets are not designed.
(c) Lessee, at its expense, shall take good and proper care of the Hardware and make all repairs and
replacements necessary to maintain and preserve the Hardware and keep the Hardware in good order
and condition (reasonable wear and tear excepted). Unless Lessor shall otherwise consent in writing,
Lessee shall, at its own expense, enter into and maintain in force a maintenance agreement covering
each Hardware unit. Lessee shall furnish Lessor with a copy of such agreement, upon request.
Lessee shall not make any alterations, additions, or improvements, or add attachments to the Hardware
without the -prior written consent of Lessor, except for additions or attachments to the Hardware leased
by Lessee from Lessor or purchased by Lessee from the manufacturer of the Hardware (or an
authorized distributor of the manufacturer) or any other person approved by Lessor. Lessee shall affix
on a prominent place on each item of Hardware any tags, decals or labels supplied by Lessor to Lessee
which describe the ownership of the Hardware. Subject to the provisions of Section 15(b) under
"Option to Extend; Surrender of Hardware and Software Assets," Lessee agrees to restore the
Hardware to Return Condition prior to its return to Lessor.
12. Relocation of Hardware and Software.
DTR Contract # DIR-SDD-1951 Page 6 of 18 Appendix E, MOLA
Except as set forth on the applicable Schedule, Lessee shall at all times keep the Hardware and Software
within its exclusive possession and control. Lessee may move the Hardware or Software to another
location of Lessee within the continental United States, provided Lessee is not in default on any Schedule
and pays all costs associated with such relocation. If such relocation requires Lessor's prior written
consent, Lessee shall obtain such consent prior to relocating the Hardware or Software, as applicable,
which consent Lessor shall not unreasonably withhold. Notwithstanding the foregoing, in those situations
where consent is otherwise required, Lessee may move the IIardware or Software to another location
within Texas without notification to, or the consent of, Lessor; provided, however, that not later than
December 31 of each calendar year, Lessee shall provide Lessor a written report detailing the total amount
of Hardware and Software at each location of Lessee as of that date, and the complete address for each
location. Lessor shall make all filings and returns for property taxes due with respect to the Hardware and
Software, and Lessee agrees that it shall not make or file any property tax returns, including information
returns, with respect to the Hardware and Software.
13. Taxes.
Unless otherwise agreed by the parties on the applicable Schedule, Lessor will pay any Imposition or file
any forms or returns with respect thereto. Lessee shall, when billed, and with copy of Imposition
invoice(s) with respect to Assets specified on the Schedule, reimburse Lessor for such payment. For
purposes of this paragraph "Impositions" means all taxes, including personal property taxes and fees,
without pro -ration as described in the Financial Disclosure Summary Work Sheet (Attachment 1)
hereafter imposed, assessed or payable during the term of the relevant Schedule including any extension
thereof. Because the reimbursement date for an Imposition may occur after the expiration or termination
of the term of the relevant Schedule, it is understood and agreed that Lessee's liability to reimburse for
such Impositions shall survive the expiration or termination of the term of the relevant Schedule.
14.Ownership.
The Hardware and Software shall at all times be and remain the sole and exclusive property of Lessor,
subject to the parties' rights under any applicable software license agreement. Lessee shall have no right,
title or interest in the Hardware except a leasehold interest as provided for herein. Lessee agrees that the
Hardware shall be and remain personal property and shall not be so affixed to realty as to become a fixture
or otherwise to lose its identity as the separate property of Lessor. Upon Lessor's request, Lessee will
enter into agreements necessary to ensure that the Hardware remains the personal property of Lessor.
15. Option to Extend; Surrender of Hardware and Software Assets.
(a) Not less than ninety (90) days prior to the expiration of the initial Schedule Term, Lessor shall notify
Lessee in writing of options to extend the Schedule for continued use of the Hardware or Software
specified in that Schedule. If Lessee desires to exercise any of the options offered by Lessor (and
provided that, with respect to Hardware, any extension does not exceed seventy five percent (75%) of
its economic life), Lessee shall give Lessor irrevocable written notice of the option Licensee intends to
exercise at least forty-five (45) days before the expiration of such Schedule Term. In the event the
Lease is extended for some but not all of the Hardware and Software specified on a Schedule, the
Schedule shall be updated to reflect those changes. At the end of the Schedule Term (as well as with
DIR Contract # DIR-SDD-1951 Page 7 of 18 Appendix E, MOLA
respect to any Hardware and Software not extended as described immediately above), Lessee will
surrender and return the Hardware and Software to Lessor in compliance with Section 15(b) below.
(b) Except as specified otherwise herein, upon the expiration, early termination as provided herein, or
final termination of the Schedule, Lessee, at its cost and expense, shall promptly return the Hardware,
freight prepaid, to Lessor in good repair and working order, with reasonably unblemished physical
appearance and with no defects which affect the operation or performance of the Hardware ("Return
Condition"), reasonable wear and tear excepted. If the Hardware is not in Return Condition, Lessee
shall, at its option, either restore the Hardware (at Lessee's cost) to Return Condition or pay for the
Hardware at its Stipulated Loss Value if the Hardware is not reasonably repairable. Lessee shall
arrange and pay for the de -installation and packing of the Hardware in suitable packaging, and return
the Hardware to Lessor at the location specified by Lessor; provided, however, that such location shall
be within the United States no farther than 500 miles from the original Lessee delivery location, unless
othetwise agreed to on the applicable Schedule. At its option and expense, Lessor shall have the right
to supervise and direct the preparation of the Hardware for return. If, upon termination or expiration of
the Schedule for any reason, Lessee fails or refuses to return to Lessor a Hardware unit or Software
program specified in that Schedule or to pay Lessor the Stipulated Loss Value for a Hardware unit,
Lessee shall remain liable for Rent Payments for that unit or program up to the date on which the unit
or program is returned to the address specified by Lessor (or on which Lessee has paid Lessor the
Stipulated Loss Value). In such event and specifically with respect to the Hardware, Lessor shall also
have the right to enter Lessee's premises or any other premises where the Hardware may be found to
take possession of and to remove the Hardware, at Lessee's sole cost and expense, without legal
process. Lessee understands that it may have a right under law to notice and a hearing prior to
repossession of the Hardware. However, as an inducement to Lessor to enter into a transaction, but
only to the extent that Lessee, if a state agency, has statutory authority to do so, Lessee hereby
expressly waives all tights conferred by existing law to notice and a hearing prior to such repossession
by Lessor or any officer authorized by law to effect repossession and hereby releases Lessor from all
liability in connection with such repossession. Without waiving the doctrines of sovereign immunity
and immunity from suit and to the extent authorized by the Constitution and laws of the State of
Texas, Lessee's obligation to return Hardware may, at Lessor's option, be specifically enforced by
Lessor.
16. Quiet Enjoyment.
During the Schedule Term, Lessor shall not interfere with Lessee's quiet enjoyment and use of the Assets
as long as an Event of Default (as hereinafter defined in Section 23 ("Default") of the MOLA) has not
occurred.
17. Warranties re2ardintl the Assets.
Lessor acknowledges that warranties made by the manufacturer or licensor of the Assets, if any, inure to
the benefit of Lessee. Lessee agrees to pursue any warranty claim directly against such manufacturer or
licensor of the Assets and shall not pursue any such claim against Lessor.
18. No Warranties by Lessor retarding the Assets.
DIR Contract # D1R-SDD-1951 Page 8 of 18 Appendix E, MOLA
Except as set forth in the Contract, Lessee acknowledges that Lessor is not the manufacturer or licensor of
the Hardware or Software Assets. Lessee agrees that Lessor makes no representations or warranties of
whatsoever nature, directly or indirectly, express or implied, as to the suitability, durability, fitness for
use, merchantability, condition, or quality of the Hardware or Software Assets or any unit thereof. Except
to the extent Lessor is the manufacturer or licensor of the Hardware or Software Assets, Lessee
specifically waives all right to make claim against Lessor for breach of any warranty of any kind
whatsoever; and with respect to Lessor, Lessee leases the Hardware and Software "as is". Except to the
extent Lessor is the manufacturer or licensor of the Hardware or Software Assets, Lessor shall not be
liable to Lessee for any loss, damage, or expense of any kind or nature caused directly or indirectly by any
Hardware or Software leased hereunder, or by the use or maintenance thereof, or by the repairs, service or
adjustment thereto or any delay or failure to provide any thereof, or by any interruption of service or loss
of use thereof, or for any loss of business or damage whatsoever and howsoever caused. Lessor agrees to
assign to Lessee, upon Lessee's request therefor, any warranty of a manufacturer or licensor or seller
relating to the Hardware and Software that may have been given to Lessor.
19. Risk of Loss.
Commencing upon delivery and continuing throughout the Schedule Term, Lessee shall bear the entire
risk of loss or damage in respect to the Hardware specified on the Schedule, whether partial or complete,
from any cause whatsoever. Lessee shall promptly notify Lessor regarding any Event of Loss. Upon any
Event of Loss, Lessee shall, at its option: (a) immediately repair the affected Hardware so that it is in good
condition and working order, (b) replace the affected Hardware with identical equipment of at least equal
value, in good condition and repair, and transfer clear title thereto to Lessor, or (c) to the extent permitted
by law, pay to Lessor, within thirty (30) days of the Event of Loss, an amount equal to the Stipulated Loss
Value for such affected Hardware unit, plus any other unpaid amounts then due under the Schedule. If an
Event of Loss occurs as to, part of the Hardware for which the SLV is paid, a prorated amount of each
Rent Payment shall abate from the date the SLV payment is received by Lessor. The SLV shall be an
amount equal to the sum of all future Rent Payments from the last Rent Payment date to the end of the
Schedule Term with such Rent Payments discounted to present value at the like -term Treasury Bill rate for
the remaining Schedule Term in effect on the date of such Event of Loss, or if such rate is not permitted
by law, then at the lowest permitted rate.
In the event of a governmental taking of a Hardware unit for an indefinite period or for a stated period,
which does not extend beyond the Schedule Term, all obligations of Lessee with respect to such Hardware
unit (including payment of Rent) shall continue. So long as Lessee is not in default hereunder, Lessor
shall pay to Lessee all sums received by Lessor from the government by reason of such taking.
20. Representations and Warranties of Lessee.
Lessee represents and warrants for the benefit of Lessor and its assigns, and Lessee will provide an
opinion of counsel to the effect that, as of the time of execution of the MOLA and each Schedule between
Lessor and Lessee:
(a) Lessee is either a Texas state agency or Texas local government, as defined in Section 2054.003,
Texas Government Code (including institutions of higher education as defined in Section 2054.003 (8-
a), Texas Government Code) or a state agency purchasing from a DIR contract through an Interagency
DIR Contract # DIR-SDD-1951 Page 9 of 18 Appendix E, MOLA
Agreement, as authorized by Chapter 771, Texas Government Code. Lessee has made an independent
legal and management determination to enter into this transaction;
(b) Each Schedule executed by Lessee has been duly authorized, executed and delivered by Lessee and
constitutes a valid, legal and binding true lease and operating lease agreement of Lessee, enforceable
in accordance with its terms;
(c) No approval, consent or withholding of objection is required from any federal or other
governmental authority or instrumentality with respect to the entering into or performance by Lessee
of any Schedule between Lessor and Lessee;
(d) The entering into and performance of any Schedule between Lessor and Lessee, this MOLA or any
Schedule will not violate any judgment, order, law or regulation applicable to Lessee or result in any
breach of, or constitute a default under, or result in the creation of any lien, charge, security interest or
other encumbrance upon assets of Lessee or on the Hardware or Software leased under any Schedule
between Lessor and Lessee pursuant to any instrument to which Lessee is a party or by which it or its
assets may be bound;
(e) To the best of Lessee's la-►owledge and belief, there are no suits or proceedings pending or
threatened against or affecting Lessee, which if determined adversely to Lessee will have a material
adverse effect on the ability of Lessee to fulfill its obligations under the MOLA or any Schedule
between Lessor and Lessee;
(f) The use of the Assets is essential to Lessee's proper, efficient and economic operation, and Lessee will
sign and provide to Lessor upon execution of each Schedule between Lessor and Lessee hereto written
certification to that effect; and
(g) Lessee represents and warrants that (i) It has authority to enter into any Schedule under this MOLA,
(ii) the persons executing a Schedule have been duly authorized to execute the Schedule on Lessee's
behalf, (iii) all information supplied to Lessor is true and correct, including all credit and financial
information and (iv) it is able to meet all its financial obligations, including the Rent Payments
hereunder.
21. Representation and Warranties of DIR.
DIR represents and warrants for the benefit of Lessor and its assigns, and DIR will provide an opinion of
counsel to the effect that, as of the time of execution of the MOLA:
(a) DIR is a State agency as defined in Section 2251.001, Texas Government Code. DIR has not
provided Lessee or Lessor with any legal or management advice regarding the MOLA or any Schedule
executed pursuant thereto;
(b) This MOLA has been duly authorized, executed and delivered by DTR and constitutes a valid, legal
and binding agreement of DIR, enforceable in accordance with its terms;
DIR Contract # DIR-SDD-1951 Page 10 of 18 Appendix E, MOLA
(c) No approval, consent or withholding of objection is required from any federal or other
governmental authority or governmental authority or instrumentality with respect to the entering into
or performance by DIR of this MOLA;
(d) The entering into and performance of the MOLA does not violate any judgment, order, law or
regulation applicable to DIR or result in any breach of, constitute a default under, or result in the
creation of any lien, charge, security interest or other encumbrance upon assets of DIR or on the
Hardware or Software pursuant to any instrument to which DIR is a party or by which it or its assets
may be bound;
(e) To the best of DIR's knowledge and belief, there are no suits or proceedings pending or threatened
against or affecting DIR, which if determined adversely to DIR will have a material adverse effect on
the ability of DIR to fulfill its obligations under the MOLA;
(f) DIR is authorized to charge and collect the administrative fee as set forth within Section 5 of the
Contract; and
(g) Lessor's payment of the administrative fee to DIR shall not constitute an illegal gratuity or
otherwise violate Texas law.
22. Representations and Warranties of Lessor.
Lessor represents and warrants for the benefit of DIR and each Lessee:
(a) Lessor is an entity authorized and validly existing under the laws of its state of organization, is
authorized to do business in Texas, and is not in default as to taxes owed to the State of Texas and any
of its political subdivisions;
(b) The MOLA and each Schedule executed in conjunction to this MOLA have been duly authorized,
executed and delivered by Lessor and constitute valid, legal and binding agreements of Lessor,
enforceable with respect to the obligations of Lessor herein in accordance with their terms;
(c) No approval, consent or withholding of objection is required from any federal or other
governmental authority or instrumentality with respect to the entering into or performance by Lessor
of this MOLA or any Schedule;
(d) The entering into and performance of the MOLA or any Schedule will not violate any judgment,
order, law or regulation applicable to Lessor or result in any breach of, or constitute a default under, or
result in the creation of any lien, charge, security interest or other encumbrance upon the assets of
Lessor, including the Hardware or Software leased under the MOLA and Schedules thereto, pursuant
to any instrument to which Lessor is a party or by which it or its assets may be bound;
(e) To the best of Lessor's knowledge and belief, there are no suits or proceedings pending or
threatened against or affecting Lessor, which if determined adversely to Lessor will have a material
adverse effect on the ability of Lessor to fulfill its obligations under the MOLA or any Schedule;
DIR Contract # DIR-SDD-1951 Page I I of 18 Appendix E, MOLA
(f) The Schedule Term as specified in the applicable Schedule does not exceed 75% of the useful life
of the Hardware, and the present value of the Rent Payments for the Hardware on the Schedule
Commencement Date does not equal or exceed ninety percent (90%) of the value of the Hardware; and
(g) Lessor acknowledges that DIR, as a government agency, is subject to the Texas Public Information
Act, and that DIR will comply with such Act, including all opinions of the Texas Attorney General's
Office concerning this Act.
23. Default.
Lessee shall be in default under a Schedule upon the occurrence of any one or more of the following
events (each an "Event of Default"): (a) nonpayment or incomplete payment by Lessee of Rent or any
other sum payable on its due date; (b) Lessee's material breach of this MOLA, any Schedule, or any
applicable software license agreement, which is not cured within thirty (30) days after written notice
thereof from Lessor; (c) Lessee's filing of any proceedings commencing bankruptcy or the taking of other
similar action by Lessee ander any state insolvency or simitar law, (d) the filing of any involuntary
petition against Lessee or the appointment of any receiver not dismissed within sixty (60) days from the
date of said filing or appointment; (e) subjection of a substantial part of Lessee's property or any part of
the IIardware to any levy, seizure, assignment or sale for or by any .creditor or governmental agency; or (f)
any representation or warranty made by Lessee in this MOLA, any Schedule or in any document furnished
by Lessee to Lessor in connection therewith or with the acquisition or use of the Assets being or becoming
untrue in any material respect.
24. Remedies.
(a) Lessor's Remedies.
i. Upon the occurrence of an "Event of Default," Lessor may, in its sole discretion, do any one or
more of the following:
A. after giving thirty (30) days prior written notice to Lessee of the Event of Default, during
which time Lessee shall have the opportunity to cure such Default, terminate any or all
Schedules executed by Lessor and the defaulting Lessee;
B. without Lessee and DIR waiving the doctrines of sovereign immunity and immunity from
suit, and to the extent allowed by the laws and Constitution of the State of Texas, Lessor may
proceed by appropriate court action to enforce the performance of the terms of the Schedule;
C. after giving thirty (30) days prior written notice to Lessee of the Event of Default, during
which time Lessee shall have the opportunity to cure such Default, and whether or not the
Schedule is terminated, take possession of the Hardware and Software wherever located,
without additional demand, liability, court order or other process of law. To the extent
permitted by Texas law, Lessee hereby authorizes Lessor, its assigns or the agents of either to
enter upon the premises where such Hardware or Software is located or cause Lessee, and
Lessee hereby agrees, to return such Hardware and Software to Lessor in accordance with the
DIR Contract # DIR-SDD-1951 Page 12 of 18 Appendix E, MOLA
requirements of Section 15 ("Option to Extend; Surrender of Hardware and Software
Assets") hereof;
D. by notice to Lessee, and to the extent permitted by law, declare immediately due and payable
and recover from Lessee, as liquidated damages and not as a penalty, the sum of.
I. the present value of the Rent owed from the earlier of the last date of payment by Lessee or
the date Lessor obtains a judgment against Lessee until the end of the Schedule Term
plus, if the Hardware is not returned to or repossessed by Lessor, the present value of the
Stipulated Loss Value of the Hardware at the end of the Schedule Term, each discounted
at a rate equal to the rate used by Lessor for business opportunity analysis;
II. without Lessee and DIR waiving the doctrines of sovereign immunity and immunity from
suit, and to the extent allowed by the laws and Constitution of the State of Texas, costs,
fees (including all attorneys' fees and court costs) and expenses associated with
collecting said sums; and
Ill. interest on (1) from the date of default at 1'h% per month or portion thereof (or the highest
rate allowable by law, if less) and, on (II) from the date Lessor incurs such fees, costs or
expenses.
ii. Upon return or repossession of the Hardware, Lessor may, if it so decides in its sole discretion,
upon notice to Lessee, use reasonable efforts to sell, re -lease or otherwise dispose of such
Hardware, in such manner and upon such terms as Lessor may determine in its sole discretion, so
long as such manner and terms are commercially reasonable. Upon disposition of the Hardware,
Lessor shall credit the Net Proceeds (as defined below) to the damages paid or payable by
Lessee. Proceeds upon sale of the Hardware shall be the sale price paid to Lessor less the
Stipulated Loss Value in effect as of the date of default. Proceeds upon a re -lease of the
Hardware shall be all rents to be received for a term not to exceed the remaining Schedule Term,
discounted to present value as of the commencement date of the re -lease at Lessor's current
applicable debt rate. Without Lessee and DIR waiving the doctrines of sovereign immunity and
immunity from suit, and to the extent allowed by the laws and Constitution of the State of Texas,
"Net Proceeds" shall be the Proceeds of sale or re -lease as determined above, less all costs and
expenses incurred by Lessor in the recovery, storage and repair of the Hardware, in the
remarketing or disposition thereof, or otherwise as a result of Lessee's default, including any
court costs and attorney's fees and interest on the foregoing at eighteen percent (18%) per annum
or the highest rate allowable by law, if less, calculated from the dates such costs and expenses
were incurred until received by Lessor. Lessee shall remain liable for the amount by which all
sums, including liquidated damages, due from Lessee exceeds the Net Proceeds. Net Proceeds in
excess thereof are the property of and shall be retained by Lessor.
iii. No termination, repossession or other act by Lessor in the exercise of its rights and remedies upon
an Event or Default by Lessee shall relieve Lessee from any of its obligations hereunder. No
remedy referred to in this Section is intended to be exclusive, but each shall be cumulative and in
addition to any other remedy referred to above or otherwise available to Lessor at law or in
equity.
DIR Contract # DIR-SDD-1951 Page 13 of 18 Appendix E, MOLA
iv. Neither DIR nor non -defaulting Lessees shall be deemed in default under the MOLA or Schedules
because of the default of a particular Lessee. Lessor's remedies under this Section 24 shall not
extend to DIR and those non -defaulting Lessees.
(b) Lessee's Remedies. Anything herein to the contrary notwithstanding, Lessee shall have all rights
provided under Tex. Bus. & Comm. Code § 2A.508 through § 2A.522, including without limitation,
the right to cancel a Schedule and recover damages from Lessor in the event of nonperformance of or
other default by Lessor hereunder.
(c) Each party agrees that any delay or failure by the other party to enforce that party's rights under this
MOLA or a Schedule does not prevent that party from enforcing its rights at a later time.
25. Notices and Waivers.
(a) All notices relating to this MOLA shall be delivered to DIR or Lessor as specified in Section 6 of the
Contract, or to another representative and address subsequently specified in writing by the appropriate
parties hereto. All notices relating to a Schedule shall be delivered in person to an officer of Lessor or
Lessee or shall be given by certified or registered mail or overnight carrier to Lessor. or Lessee at its
respective address shown on the Schedule or to another address subsequently specified in writing by
the appropriate parties thereof. DIR, Lessee, and Lessor intend and agree that a photocopy or
facsimile of this MOLA or a Schedule and all related documents, including but not limited to the
Acceptance Certificate, with their signatures thereon shall be treated as originals, and shall be deemed
to be as binding, valid, genuine, and authentic as an original signature document for all purposes.
(b) A waiver of a specific default shall not be a waiver of any other or subsequent default. No waiver of
any provision of this MOLA or a provision of a Schedule shall be a waiver of any other provision or
matter, and all such waivers shall be in writing and executed by an officer of the waiving party. No
failure on the part of a party to exercise, and no delay in exercising, any right hereunder shall operate
as a waiver thereof.
26. Assignment by Lessor; Assignment or Sublease by Lessee.
(a) Upon thirty (30) days advance written notice to Lessee and provided that any such assignee expressly
assumes Lessor's obligations under this MOLA and each Schedule, Lessor may (i) assign all or a
portion of Lessor's right, title and interest in this MOLA and/or any Schedule; (ii) grant a security
interest in the right, title and interest of Lessor in the MOLA, any Schedule and/or any Asset; and/or
(iii) sell or transfer its title and interest as owner or licensor of the Hardware and Software and/or as
Lessor under any Schedule; and DIR and each Lessee leasing Hardware under the MOLA understand
and agree that Lessor's assigns may each do the same (hereunder collectively "Assignment"). All such
Assignments shall be subject to each Lessee's rights under the Schedule(s) executed between it and
Lessor and to DIR's rights under the MOLA. Each Lessee leasing Assets through Schedules under this
MOLA and DIR hereby consent to such Assignments and agree to execute and deliver promptly such
acknowledgements, Opinions of Counsel and other instruments reasonably requested to effect such
Assignment. Lessor shall remain liable for performance under the MOLA and any Schedule(s)
executed hereunder to the extent Lessor's assigns do not perform Lessor's obligations under the
DIR Contract # DIR-SM-1951 Page 14 of 18 Appendix E, MOLA
MOLA and Schedule(s) executed hereunder. Upon any such Assignment, all references to Lessor shall
also include all such assigns, whether specific reference thereto is otherwise made herein.
(b) Lessee will not sell, assign, sublet, pledge or otherwise encumber, or permit a lien to exist on or
against any interest in this MOLA or the Assets without Lessor's prior written consent except
otherwise permitted under this MOLA; provided, however, that no such prior written consent from
Lessor is necessary in the event of a legislative mandate to transfer the MOLA to another state agency.
27. Delivery of Related Documents.
For each Schedule, Lessee will provide the following documents and information satisfactory to Lessor:
(a) Certificate of Acceptance (if Acceptance has taken place); (b) Opinion of Counsel; (c) Financial
Statements; (d) incumbency certificate; and (e) other documents specified in the applicable Schedule as
being reasonably required by Lessor.
28. Miscellaneous.
(a) Prior to delivery of any Assets, the obligations of Lessor hereunder shall be suspended to the extent
that it is hindered or prevented from -performing because of causes beyond its control. In such event,
the obligation of Lessee to commence Rents for such Assets shall also be suspended.
(b) Lessor and Lessee acknowledge that there are no agreements or understanding, written or oral,
between them with respect to the Assets, other than as set forth in this MOLA, including the Contract,
and in each Schedule to which Lessee is a signatory party. Lessor and Lessee further actmowledge
that this MOLA, including the Contract, and each Schedule to which Lessee is a party contain the
entire agreement between Lessor and Lessee and supersedes all previous discussions and terms and
conditions of any purchase orders issued by Lessee, order acknowledgement and other forms issued by
Lessor, and the like. DIR and Lessor acknowledge that there are no agreements or understandings,
written or oral, between them other than as set forth in this MOLA and the Contract and that both
contain the entire agreement between them. The terms and conditions of this MOLA may be amended
only by written instrument executed by Lessor and DIR. The terms of a Schedule may only be
amended in a writing signed by both Lessee and Lessor.
DIR Contract # DIR-SDD-1951 Page 15 of 18 Appendix E, MOLA
Attachment 1 to the Master Operating Lease Agreement
Financial Disclosure Summary
Lease Rate Factor(s):
Response
Notes
Equipment Type A
Equipment Type B
Equipment Type C
How is Daily Rental calculated?
Is Daily Rental invoiced separately
❑ Yes
❑ No
or rolled into monthly rental?
❑ N/A
Is this a Step Lease?
❑ Yes
❑ No
❑ Yes
Does this lease include software?
❑ No
❑ Agency
If yes, who owns the software?
❑ Lessor
Personal Property Tax
Response
Notes
Estimated PPT
PPT Payment made by
❑ Agency
❑ Lessor on Agency behalf
❑ Agency pays direct
❑ Lessor pays and passes invoice
PPT calculation method
through
❑ Lessor estimates and includes
❑ Lessor sets PPT at disclosed rate
❑ N/A - Agency pays direct
_
If PPT rate changes, how are charge
❑ N/A - Lessor pays/passes invoice
backs or short falls handled?
through
❑ Lessor is responsible
❑ Lessee is invoiced for short fall
Equipment Schedule Details
Response
Notes
Can Agency make decisions at asset
❑ Asset level
level (extend, purchase, return)?
❑ All and not less than all
Does this ES auto extend?
Yes
❑Yee
❑ No
If Yes, how long?
What is the cost of the Auto
extension?
What is the notice period?
Are negotiated extensions FMV
❑ Yes
DIR Contract 4 DIR-SDD-1951 Page 16 of 18 Appendix 1;, MQI,A
based?
❑ No
On FMV, can Agency select own
❑ Yes
evaluator?
❑ No
Is asset and lease information
❑ Yes
available online?
❑ No
End of Lease Details
Response
Notes
Where are the assets returned to?
What is the return freight cost?
❑ Agency
Who pays the return freight cost?
❑ Lessor
❑ Yes
Do I need to return original
❑ No
packaging?
If yes, what is the cost if not returned?
❑ Yes
Do I need to return original
0 No
manuals and documentation?
If yes, what is the cost if not returned?
❑ Yes
Do I need to return software?
❑ No
If yes, what is the cost if not returned?
❑ Yes
Is there an FMV purchase cost cap?
❑ No
If yes, what is the cost cap percentage?
What is the cost for a lost asset?
What is the cost for missing
equipment?
What is the cost for data
sanitization on assets with
memory?
What is the cost for data
sanitization?
What is the cost for on-site data
destruction?
DIR Contract # DIR-SDD-1951 Page 17 of 18 Appendix E, MOLA
DIR Contract 4 DIR-SDD-1451 Page 18 of 18 Appendix E, MOLA
Exhibit 1 to Appendix D — Services Agreement
to DIR Contract No. DIIR-SDD-1951
FORM OF NEW SERVICES TASK ORDER
Task Order No.
Dell Marketing L.P. ("Dell') and ("Customer") hereby enter into
this New Services Task Order No. ("Task Order") under the Master Services Agreement
between such parties, effective as of (the "Agreement"), on the
following terms. Except as otherwise defined herein, all capitalized terms used herein shall have
the same meaning as in the Agreement.
1. Term. This Task Order will commence on _ (the
"Task Order Effective Date") and will continue until ,
unless earlier terminated in accordance with the Agreement. Subject to agreement on
rates and services, this Task Order may be extended upon mutual written agreement of
the parties.
[INSERT THE DATE NEW SERVICESARE TO BEGINAND END.]
2. Dell Oblieations. Dell will provide the resources described below on a time and
materials basis to work on the activities described below:
[INSERT A DETAILED DESCRIPTION OF THE RESOURCES DELL WILL
PROVIDE AND THE NEW SERVICES SUCH RESOURCES WILL PERFORM.]
3. Proiect Managers.
Customer Project Manager:
Dell Project Manager:
4. CUSTOMER Responsibilities. In addition to its obligations in the Agreement,
CUSTOMER will provide or perform the following to allow Dell to perform its
obligations hereunder:
[INSERT A DETAILED DESCRIPTION OF ALL CUSTOMER OBLIGATIONS
UPON WHICH DELL' PERFORMANCE WILL DEPEND.]
5. Payments. Dell will provide and CUSTOMER will pay for the resources provided
herein on a time and materials basis at the Rates set forth below.
[INSERT THE RATES TO BE PAID BY CUSTOMER FOR NEW SERVICES
UNDER THIS TASK ORDER.]
6. Other Terms.
(INSERT ANY SPECIAL TERMS AND CONDITIONS THAT ARE APPLICABLE
TO THIS TASK ORDER, INCLUDING TERMS FOR NEW SERVICE LEVELS, IF
ANY 4
AGREED:
CUSTOMER
DELL MARKETING L.P.
Name: Naive:
Date: Date:
LAppendix D Services Agreement to DIR-SDD-1951
DELL SERVICES AGREEMENT
This Services Agreement ("Agreement") is made between Dell Marketing L.P. with offices located at One Dell
Way, Round Rock, Texas 78682 ("Dell") and with offices located at
("Customer"), as of (the "Effective Date") pursuant to DIR Contract with Dell, DIR-SDD-1951. In
order to procure services of a type that Dell offers pursuant to Section 2 (Scope) of the State of Texas Department of
Information Resources ("DIR") Contract No. DIR-SDD-1951 ("DIR Contract"), Customer agrees to the following:
ARTICLE 1
GLOSSARY, SCHEDULES AND STATEMENTS OF WORK
1.1 Defined Terms
Wherever used in this Agreement, unless there is something in the subject matter or context inconsistent therewith,
capitalized words and phrases shall have the respective meanings ascribed to them in Schedule 1 (Glossary).
1.2 Schedules
The following schedules are annexed hereto and form part of this Agreement ("Schedules"):
Schedule 1 - Glossary
Schedule 2 - Statement of Work (Service Descriptions and Service Levels)
Schedule 3 - Fee Schedule/Early Termination Fees
Schedule 4 - Change Management
Schedule 5 - DIR Contract
1.3 Order of Precedence
In the event of a conflict or inconsistency, the following is the order of precedence of documents comprising this
Agreement: (1) the Statement of Work; and (2) the Schedules annexed to this Agreement; In the event of a conflict
between DIR Contract DIR-SDD-1951 and this document, the DIR Contract controls.
1.4 Parties
DIR shall not be a party to this Agreement or any Statement of Work executed between Dell and Customer, except
to offer such Services through the DIR Contract. Compliance with this Agreement and a Statement of Work is the
responsibility of the Customer. DIR shall not be responsible for any Customer's compliance as it pertains to this
Agreement or a Statement of Work. If DIR procures Services for its own use under the DIR Contract, it shall be
responsible for its own negotiation of and compliance with this Agreement and any applicable Statements of Work.
ARTICLE 2
SERVICES
2.1 Scope of Services
Dell shall perform the Services described in the Statement of Work in accordance with the terms and conditions of
this Agreement.
2.2 Transition Plan
If applicable and set forth in a Statement of Work, Dell will prepare a transition plan that will provide for the orderly
transition of the performance of the Services from Customer or its current service provider to Dell ("Transition
Plan") over a period of ninety (90) days from the Effective Date or the period specified in the Statement of Work
("Transition Period"). Customer shall have its Representatives, including any current service provider, cooperate
DMSA Rev 03
081104
-2 -
with Dell and assist Dell in the preparation and implementation of the Transition Plan. The Transition Plan will be
subject to review and approval of Customer, which will not be unreasonably withheld.
2.3 Adjustment
If the assumptions used to develop the Statement of Work are found to be incorrect, the Parties agree to meet and
negotiate, in good faith, equitable changes to the Statement of Work and/or Fee Schedule, as appropriate.
ARTICLE 3
CUSTOMER RESPONSIBILITIES
3.1 Access and Cooperation
Customer shall perform all of the tasks and obligations of Customer set out in the Statements of Work. Customer
shall provide reasonable assistance, cooperation, timely decisions and support in connection with the provision of
the Services by Dell. Customer shall provide Dell with access to and use of information, data, and internal resources
as reasonably necessary to deliver the Services. Customer represents that all information and data supplied to Dell
under this Agreement is current, complete and accurate.
3.2 Customer Assets
Customer shall provide timely access to and use of the Customer Assets during the applicable service hours
designated in the Statements of Work, to enable Dell to perform the Services. Customer shall provide secure access
to adequate work space, supplies, facilities, telephones, power, and lighting, at no charge. The work space must be
within reasonable proximity to where Services are to be performed. Dell may not use Customer Assets for any
purpose other than the provision of Services under this Agreement without the prior written consent of Customer.
Customer will ensure that, in the course of accessing or using Customer Assets, Dell shall not be exposed to any
materials or conditions which are classified or identified as hazardous, toxic, or unsafe under applicable law.
3.3 Required Consents
Customer shall be responsible for obtaining all consents, approvals, and licenses required by Customer's suppliers,
licensors, lessors, government regulators and other third parties which are necessary to support or permit the
provision of Services under this Agreement, at no cost to Dell ("Required Consents"). In the event that one or
more Required Consents cannot be obtained by Customer, the Parties shall cooperate with each other and take
reasonable steps to resolve the matter, provided however that Dell shall not be liable for failure to provide Services
or to achieve Service Levels under this Agreement to the extent such failure is caused by result of Customer's failure
or inability to obtain any such Required Consents. Dell shall execute such non -disclosure agreements as the
applicable suppliers, owners, licensors or lessors may reasonably request as a condition of providing Required
Consents.
3.4 Replenishment and Refreshment of Customer Assets
Customer shall carryout upgrades of Customer Assets during the term of this Agreement on a reasonable schedule
3.5 Non-performance by Customer
Dell shall not be responsible for a failure to provide Services or to achieve Service Levels, if any, (to the extent
caused by: (1) any omissions, oversights, errors, failures by Customer to perform its responsibilities under this
Agreement; (2) problems caused by Customer Software or data; (3) a defect or deficiency with respect to Customer
Assets; (4) hardware failures for hardware not maintained by Dell; or (5) modifications to hardware by a party other
Dell or its representatives. Dell shall notify customer and await Customer agreement to have Dell perform
notwithstanding the occurrence of one or more of the foregoing events, with Customer reimbursing Dell for its
additional out of pocket expenses for such efforts.
-3 -
ARTICLE 4
RELATIONSHIP MANAGEMENT AND GOVERNANCE
4.1 Relationship Management
If applicable and set forth in a Statement of Work, the Parties shall each appoint a representative with appropriate
authority to serve as the primary point of contact between the Parties ("Program Executive"). Dell will be entitled
to rely on the routine instructions, authorizations, approvals or other information provided by Customer's Program
Executive or by any other Customer personnel identified by Customer's Program Executive as having authority to
provide the same on behalf of Customer. The Program Executives shall meet as often as either Party may
reasonably request. Each Party shall use reasonable efforts to maintain the continuity of its Program Executive.
4.2 Internal Dispute Resolution and Escalation Process
In the event there is a dispute that cannot be resolved by the Parties, either Party may request in writing that their
Program Executives meet within fifteen (15) days to resolve the dispute. If the dispute has not been resolved to the
mutual satisfaction of both Parties within fifteen (15) days of the meeting, then the dispute shall be referred to a
senior executive at each Party who will meet to resolve the dispute. If the dispute has not been resolved by the
representatives within fifteen (15) days of the referral or if the Parties fail to meet, the more formal dispute
resolution process outlined in the DIR Contract Appendix A Section l0A shall begin.
ARTICLE 5
CHARGES
5.1 Terms of Purchases and Charges
5.1.1. Requests for Service; Quotes and Orders.
All orders for Services must specify Dell's quotation (if any), and reference the Service(s) requested and
invoice address. All orders are subject to acceptance by Dell and if not sku'd services, will have a
Statement of Work.
5.2 Prices.
The prices charged for Services purchased under this Services Agreement shall be in accordance with
Appendix C, Pricing Index, of DIR Contract No. DIR-SDD-1951, and either as set forth in an accepted order
form or in a mutually agreed Statement of Work under this Agreement, if applicable.
5.3 If the Services are being performed on a time and materials basis, any estimates provided by Dell are for
planning purposes only. Customer shall pay Dell the charges specified in the applicable Fee Schedule
and/or in the applicable Statement of Work (the "Charges"). Customer will reimburse Dell for all
reasonable out-of-pocket expenses incurred by Dell, with the prior approval of Customer, in the
performance of the Services. Section 4, Pricing, of the DIR Contract is incorporated herein by reference.
5.4 Invoices
Unless specified otherwise in the Statement of Work, Dell will invoice Customer monthly for all amounts payable
hereunder. All invoices shall be due and payable according to the DIR Contract Appendix A Section 5, Purchase
Orders, Invoices and Payments.
-4 -
ARTICLE 6
HARDWARE AND SOFTWARE
6.1 Software
To the extent Dell is required or needs to use any software owned or licensed by Customer to perform the Services
("Customer Software"), Customer grants Dell a non-exclusive, worldwide, royalty free license to use Customer
Software during the term of this Agreement solely for the purpose of providing the Services. In the event that
Customer Software includes any third party software, Customer shall ensure that Dell has the right to use, access
and execute such software as necessary to perform the Services. To the extent any Dell Assets include software,
Dell shall ensure that Customer has the right to use, access and execute such software as necessary during the term
of this Agreement.
6.2 Hardware
Dell will perform Services using Customer Hardware and/or Dell Assets as specified in the Statement of Work.
Title to Customer Hardware will be retained by Customer and title to Dell Assets will be retained by Dell. Dell may
upgrade, replace or move Dell Assets as it deems appropriate so long as Dell does not seek to change or revise the
Service Levels.
6.3 Addition of Equipment
In the event that additional equipment needs to be added to the original equipment base, Customer and Dell shall
agree to the time period equipment is to be obtained for, and costs for provisions of the equipment and any
additional services. The Statement of Work shall be amended to list the additional equipment or services and reflect
the new amounts incurred by the equipment or service addition, or a new Statement of Work shall be executed.
6.4 Loss/Damage of Equipment
Customer shall be responsible for Dell Assets provided under the Statement of Work while in Customer's
possession, and shall promptly pay Dell for any and all Losses other than those due to the negligence of Dell, or due
to normal wear and tear. Customer shall be responsible for Dell Asset location reconciliation annually. In the event
of theft, loss or damage beyond repair of Dell Assets while in possession of Customer, Customer shall promptly pay
Dell the fair market residual value determined by taking into consideration historical market pricing and forecasted
future pricing) of the Dell Assets as of the time just prior to the theft, loss or damage. Dell shall provide, as a
replacement, Dell Assets of comparable or greater performance and configuration at a cost as mutually agreed.
Customer shall continue to pay the Charges at the same level and duration as for the original Dell Assets unless
otherwise mutually agreed.
ARTICLE 7
CONFIDENTIALITY
7.1 Confidentiality
To the extent consistent with the Texas Public Information Act, the Parties understand and agree that confidential
information is any and all current and future product and/or Services information, reports, roadmap, technical or
financial information, customer names, addresses and related data, contracts, practices, procedures and other
business information, including software reports, strategies, plans, documents, drawings, machines, tools, models,
patent disclosures, samples, materials and requests for proposals that may be disclosed between the Parties, whether
written, oral, electronic or otherwise, however and wherever acquired ("Confidential Information"). Confidential
Information excludes any information which would otherwise fall in the definitions above, but which was (a) known
to the recipient of the information ("Recipient") before receipt from the disclosing Party; (b) publicly available
through no fault of Recipient; (c) rightly received by Recipient from a third party without a duty of confidentiality;
(d) disclosed by disclosing Party to a third party without a duty of confidentiality on the third party; (e)
independently developed by Recipient without breach of this or any other confidentiality agreement; (f) disclosed by
G
Recipient after prior written approval from the disclosing Party; or (g) disclosed in accordance with the Texas Public
Information Act or other legal requirement, including but not limited to subpoena, audit, or legislative or regulatory
request. Notwithstanding the forgoing, if the Recipient is required by the Texas Public Information Act or other
legal requirement, including but not limited to subpoena or audit, (but not including legislative or regulatory request)
to produce Confidential Information of the disclosing Party, Recipient shall, unless prohibited by law, give the
disclosing Party prompt notice of such required disclosure to afford the disclosing Party an opportunity to seek a
protective order or other appropriate remedy.
Recipient agrees to protect the disclosing Party's Confidential Information with the same degree of care, but no less
than a reasonable degree of care, as Recipient uses with respect to its own Confidential Information. Neither Party
has any obligation to exchange Confidential Information.
If Customer believes any Confidential Information is required to be disclosed pursuant to the Texas Public
Information Act, prior to release of such Confidential Information Customer shall notify Dell and allow Dell a
reasonable opportunity to provide written comments regarding whether Dell believes any of the Confidential
Information is subject to an exception under the Texas Public Information Act.
ARTICLE 8
SERVICE LEVELS
8.1 Failure to Achieve Service Levels
Dell will perform the Services in accordance with the Service Levels, if any, listed on the applicable Statement of
Work. If Dell fails to achieve any Service Levels due to its fault, it shall promptly investigate the cause of such
failure and take commercially reasonable steps to prevent such failure from recurring. For the avoidance of doubt, if
Dell does not perform the Services in accordance with a particular Service Level on more than one occasion, the fact
that Dell took commercially reasonable steps to prevent such failure from recurring will not preclude the application
of Service Credits, if any, otherwise required under the Statement of Work or other remedies recoverable by
Customer under this Agreement.
8.2 Service Level Reporting
Dell shall deliver to Customer the Service Level reports described in the Statements of Work in respect of the
achievement of Service Levels on the frequency specified in the applicable Statement of Work.
8.3 Establishment of Service Levels
If set forth in a Statement of Work, during the Transition Period, Dell will analyze the level of performance of
Customer's information technology operations, information provided by Customer, and validate any assumptions
contained in the Statement of Work. The Service Levels contained in the Statement of Work will become effective
at the end of the Transition Period as long as the foregoing analysis does not reveal a material discrepancy with
respect to level of performance of Customer's information technology operations, information provided by
Customer, or assumptions contained in the Statement of Work. If a material discrepancy is found Dell will provide
its recommendations to Customer and the Parties will negotiate revised Service Levels. The revised Services Levels
will become part of the Statement of Work when approved in writing by both Parties.
8.4 Service Level Planning
Dell and Customer shall meet at least once every year to: (i) formally review the adequacy, appropriateness, and
achievement of Service Levels; and (ii) mutually agree on any adjustments to Service Levels, if any, contained in
the Statement of Work. All changes to Service Levels shall be managed as part of the Change Management
Procedure.
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ARTICLE 9
TERM AND TERMINATION
9.1 Term
The term of this Agreement shall be the same as in Section 2 of DIR Contract DIR-SDD-1951. The term of each
Statement of Work shall be stated therein. All applicable Statements of Work that are entered into between Dell and
a Customer under the terms of the DIR Contract DIR-SDD-1951 when it remains in effect, shall survive the
expiration or termination of DIR-SDD-1951.
9.2 Termination
Termination of this Agreement, or all or part of the particular Statement of Work, shall be governed by Section 8.13.,
Termination, of Appendix A of DIR Contract DIR-SDD-1951. Unless otherwise agreed, the Parties will agree to a
mutually agreeable termination fee schedule for each Statement of Work. Except for Termination for Non -
Appropriation, in the event of an early termination of a Statement of Work, such early termination fees shall apply.
If the Charges for the Services under a Statement of Work are prepaid by Customer, the Parties will agree to a
repayment schedule for unexpended fees.
9.3 Wind Down
For managed services and as set forth in the Statement of Work, in the event of the termination or expiration of this
Agreement or any Statement of Work, the Parties shall work together in a cooperative manner to carry out an
orderly termination and Wind Down Services from Dell to Customer or to a third party service provider in
accordance with this Section.
(a) Dell will, upon Customer's request, use reasonable efforts to perform the Wind Down Services
during a one hundred eighty (180) day period after notice of termination ("Wind Down Period").
Dell shall continue to provide the Services during the Wind Down Period and the Charges under
this Agreement shall continue to apply during this time period. Where reasonable, Dell shall
carry out such Wind Down Services by reallocating the resources which were previously allocated
to providing Services to Customer, provided that Customer shall pay Dell's standard rates and
associated expenses for any additional resources needed to provide Wind Down Service or for
additional services requested by Customer.
(b) Customer's right to purchase any Dell Assets exclusively used to provide Services under this
Agreement shall be specified in the applicable Statement of Work.
(c) Dell's performance of Wind Down Services is subject to: (i) Customer's prior payment of all
amounts owed to Dell as of the start of such Services; and (ii) Customer's return of any Dell
owned hardware, software or other property in Customer's possession, except that which is being
purchased pursuant to Section 9.3(b) .
ARTICLE 10
REPRESENTATIONS, WARRANTIES AND COVENANTS
10.1 Dell Representations and Warranties.
Dell represents and warrants that: (i) it has full power and authority to execute and deliver this Agreement; (ii) it is
authorized to perform its obligations hereunder; and (iii) the Services will be performed in a good and workmanlike
manner, using trained personnel in accordance with standard industry practices.
10.2 Customer Representations and Warranties
Customer represents and warrants that: (i) it has full power and authority to execute and deliver this Agreement; and
(ii) it is authorized to perform its obligations hereunder.
10.3 Disclaimer
EXCEPT AS SPECIFICALLY STATED IN THIS ARTICLE 11, THERE ARE NO REPRESENTATIONS,
WARRANTIES, OR CONDITIONS, EXPRESS OR IMPLIED, REGARDING ANY MATTER IN
CONNECTION WITH THIS AGREEMENT, INCLUDING THE MERCHANTABILITY, FITNESS FOR A
PARTICULAR USE OR PURPOSE, OR RESULTS TO BE DERIVED FROM THE USE OF ANY SERVICE,
HARDWARE, SOFTWARE, SYSTEM OR OTHER ITEMS PROVIDED UNDER OR IN CONNECTION WITH
THIS AGREEMENT OR THAT ANY SERVICE, HARDWARE, SOFTWARE, SYSTEM OR ITEMS WILL BE
FREE FROM DEFECTS, OR WILL BE UNINTERRUPTED OR ERROR FREE.
ARTICLE 11
GENERAL
11.1 Interpretation
In this Agreement:
(a) Headings - Headings of Articles and Sections are inserted for convenience of reference only and
shall not affect the construction or interpretation of this Agreement. The words "hereof',
"hereunder", "hereto" and similar expressions refer to this Agreement and not to any particular
Article, Section or other portion of this Agreement. References to specific Articles, Sections or
Paragraphs, unless otherwise specified, are intended to be references to Articles, Sections and
Paragraphs of this Agreement.
(b) No Strict Construction - The Parties acknowledge and agree that they have mutually negotiated
the terms and conditions of this Agreement and that any provision contained herein with respect to
which an issue of interpretation or construction arises will not be construed to the detriment of the
drafter on the basis that such Party was the drafter, but will be construed according to the intent of
the Parties as evidenced by the entire Agreement.
11.2 Consents
Where either Party has a right of consent or approval in respect of any matter in connection with this Agreement, it
shall not unreasonably withhold such consent or approval and shall respond to the other Party's request for such
consent or approval in a timely manner. Where this Agreement provides that the Parties are to mutually agree upon
certain procedures, standards or details, they shall at all times act reasonably, cooperatively, and in good faith.
11.3 Residual Knowledge
Nothing herein shall prevent either Party or its Affiliates from using the techniques, ideas, and other know-how
gained during the performance of this Agreement in the furtherance of its business, to the extent that this does not
result in disclosure of Confidential Information or unauthorized use of any Intellectual Property Right of the other
Party. Customer acknowledges that information, software, and documentation created by Dell in the course of
delivering the Services which relate to Dell's internal processes and procedures may be used by Dell and its
Affiliates to facilitate delivery of services to other customers.
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1 l.4 Business Continuity
Dell has no responsibility for business continuity planning or for disaster recovery of Customer's computing
environment, except as may otherwise be expressly agreed to by Dell either in a Statement of Work, or as may be
otherwise expressly provided in some other written agreement as may be entered into by the Parties.
11.5 Waiver
Neither Party's failure to exercise any of its rights under this Agreement shall constitute or be deemed to constitute a
waiver or forfeiture of such rights.
11.6 Further Assurances
The Parties agree to cooperate with and assist each other and take such action as may be reasonably necessary to
implement and carry into effect this Agreement to its full intent.
11.8 Survival.
Any provision of this Agreement which contemplates performance or observance subsequent to termination or
expiration of this Agreement shall survive termination or expiration of this Agreement and continue in full force and
effect.
SCHEDULEI
GLOSSARY
Wherever used in this Agreement, unless there is something in the subject matter or context inconsistent therewith,
the following words and terms shall have the respective meanings ascribed to them below:
"Affiliate" means, with respect to any person, any person controlling, controlled by or under common
Control with such other person.
"Agreement" means this Agreement entitled "Dell Managed Services Agreement" and all Schedules and
Statements of Work annexed hereto or in amendment or confirmation hereof.
"Change" means any material addition, upgrade, update, reduction, deletion, modification, improvement,
amendment or adjustment to the Services which has a material adverse impact on a Party including, in the
case of Dell, a change in the scope of Services.
"Change Proposal" is defined in Article 1(c) of Schedule 4.
"Change Request" is defined in Article 1(a) of Schedule 4.
"Change Request Procedure" is the process defined in Schedule 4.
"Charges" is defined in Article 5.3 of the Agreement.
"Control" and its derivatives mean, with regard to any entity, the legal or beneficial ownership, directly or
indirectly, of fifty percent (50%) or more of the shares (or other ownership interest, if not a corporation) of
such entity ordinarily having voting rights.
"Customer Assets" means the Customer Facilities, Customer Hardware, and Customer Software.
"Customer Facilities" means the equipment, furniture, office space, office services, secure storage space,
staging areas, facilities or other assets owned, licensed or leased by Customer or its Affiliates to be made
available for use by Dell.
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"Customer Hardware" means any existing Customer owned hardware and any future hardware purchased
by Customer outside the DIR Contract.
"Customer Software" means any existing Customer owned software and any future software purchased
by Customer outside the DIR Contract.
"Dell Assets" means any PC products (desktops/workstations, notebooks/portables, servers, storage area
networks, networking, software, peripherals and associated components/accessories) provided by Dell for
use by Customer under this Agreement as an integral component of the Services provided by Dell. All
products to be provided under the Services shall be specified within the Statement of Work.
"Effective Date" means Effective Date indicated on the first page of this Agreement.
"Intellectual Property Rights" means all copyright, trade -mark, patent, industrial design or trade secret
and all other intellectual property rights.
"Losses" means all losses, liabilities, fines, damages and claims (including third party claims) and all
related costs and expenses (including any and all reasonable attorneys' and other professionals' fees and
reasonable costs of investigation, litigation, settlement, judgment, interest and penalties).
"Program Executive" is defined in Article 4.1 of the Agreement.
"Parties" means Customer and Dell, and "Party" means any one of them.
"Representatives" means with respect to either Party, each of its shareholders, directors, officers,
employees, agents, professional advisors (including attorneys, accountants, consultants and financial
advisers), its Affiliates, and the shareholders, directors, officers, employees, agents, representatives and
professional advisors (including attorneys, accountants, consultants and financial advisers) of each of its
Affiliates.
"Required Consents" is defined in Article 3.3 of the Agreement.
"Schedules" are defined in Article 1.2 of the Agreement.
"Service Levels" means the performance measures set forth in the Statement of Work, if any, that provide
a representative measure of the quality of the Services being delivered under the Agreement.
"Services" means all of the services and tasks to be performed or provided by Dell pursuant to this
Agreement.
"Transition Plan" is defined in Article 2.2 of the Agreement.
"Transition Period" is defined in Article 2.2 of the Agreement.
"Wind Down Services" are defined as Dell's provision of the following: (1) return of all Customer data;
(2) return or destroy all appropriately identified confidential information, (3) provide a list of all events
being monitored and their status; (4) provide access to Dell managed facilities to remove Customer owned
hardware; and (5) facilitate the relocation of Customer Software to a new Customer or vendor location.
"Wind Down Period" is defined in Article 9.3(a) of the Agreement.
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SCHEDULE2
STATEMENT OF WORK
This Statement of Work shall state, at a minimum, product list (including ownership of each product), the term and
renewal options, invoicing, service level requirements, Customer and Dell responsibilities and scope and nature of
the Services to be performed.
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SCHEDULE3
FEE SCHEDULE/EARLY TERMINATION FEES
Early Termination Fees shall be as follows:
Full termination of a Statement of Work
Partial termination of a Statement of Work
�-3
SCHEDULE 4
CHANGE MANAGEMENT
Change Requests By Customer
(a) Customer may request a Change, including a new or out of scope service, at any time by completing and
delivering to Dell a change request in the form agreed by the Parties (a "Change Request").
(b) Each Change Request will be submitted to Dell's Program Executive and will contain all information
reasonably necessary for Dell to evaluate the Change Request. Customer will make such further
information available to Dell as Dell may reasonably request to enable proper evaluation of the Change
Request.
(c) Dell will respond to a Change Request in a timely manner by delivering to Customer a change proposal (a
"Change Proposal"). Each Change Proposal will include the information reasonably necessary for
Customer to evaluate the Change Proposal, including the proposed Charges associated therewith and
changes to Service Levels.
(d) Within fifteen (15) days from receipt of the Change Proposal or as indicated in the Change Proposal from
Dell (or such other longer period as the Parties may agree), Customer will:
(i) seek further clarification as it deems necessary;
(ii) approve the Change Proposal by signing and returning the Change Proposal to Dell;
(iii) propose modifications and/or suggest improvements to any aspect of the Change
Proposal by notifying Dell in writing; or
(iv) reject the Change Proposal by notifying Dell in writing.
(e) If Customer proposes modifications or improvements to the Change Proposal, unless the Parties agree
otherwise, Dell will submit a revised Change Proposal. If Customer rejects the Change Proposal or does not
respond by the validity date indicated on the Change Request, then the Parties will treat the Change
Proposal, and the Change Request that precipitated it, as withdrawn.
Change Proposals by Dell
(a) Where Dell desires to implement a Change, it shall prepare a Change Proposal which will include the
information necessary for Customer to evaluate the Change Proposal. Each such Change Proposal will be
submitted to Customer Program Executive. Dell will make such further information available to Customer
as Customer may reasonably request to enable proper evaluation of the Change Proposal.
(b) Nothing therein shall be deemed to require Customer to accept a Change Proposal initiated by Dell
provided that Customer shall Dell shall give due consideration to all such Change Proposals and shall not
unreasonably reject any such Change Proposal.
(c) Customer acknowledges and agree that Dell shall be entitled to receive additional Charges according to its
then current standard rates for its additional work and effort in performing services which are outside the
scope of the Services including services required as a result of the assumptions in the Statements of Work
ceasing to be valid or Customer failing to perform its obligations under the Agreement. Where reasonable
to do so Dell shall notify Customer before incurring such additional Charges.
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SCHEDULES
DIR Contract No. DIR-SDD-1951 is incorporated herein by reference.
Appendix F
MASTER LEASE AGREEMENT
1. Scope.
Lessor hereby leases to Lessee, and Lessee hereby leases from Lessor the Equipment described on each
Supplementary Schedule ("Schedule"), which is a separate agreement executed from time to time by
Lessor and Lessee and makes specific reference to this Master Lease Agreement ("MLA"). The terms and
conditions contained herein shall apply to each Schedule that is properly executed in conjunction with this
MLA and made subject to such terms and conditions as if a separate MLA were executed for each
Schedule by the Lessee. Each Lessee has made an independent legal and management determination to
enter into each Schedule. DIR has not offered or given any legal or management advice to the Lessor or
to any Lessee under any Schedule. Lessee may negotiate additional terms or more advantageous terms
with the Lessor to satisfy individual procurements, such terms shall be developed by the Lessor and
Lessee and stated within a Rider to the MLA or the Schedule. To the extent that any of the provisions of
the MLA conflict with any of the terms contained in any Schedule, the terms of the Schedule shall control.
It is expressly understood that the term "Equipment" shall refer to the Products and any related Services as
allowed within said Contract number DIR-SDD-1951, as described on a Schedule and any associated
items therewith, including but not limited to all parts, replacements, additions, repairs, and attachments
incorporated therein and/or affixed thereto, all documentation (technical and/or user manuals), operating
system and application software as needed.
If more than one Lessee is named in a Schedule, the liability of each named Lessee shall be joint and
several. However, unless DIR leases Equipment for its own use, DIR is not a party to any Schedule
executed under this MLA and is not responsible for Rents, payments or any other obligations under such
Lessee's Schedule. The invalidation, fulfillment, waiver, termination, or other disposition of any rights or
obligations of either a Lessee or the Lessor or both of them arising from the use of this MLA in
conjunction with any one Schedule shall not affect the status of the rights or obligations of either or both
of those parties arising from the use of this MLA in conjunction with any other Schedule, except in the
Event of Default as provided in Section 23 of this MLA.
Any reference to "MLA" shall mean this Agreement, including the Opinion of Counsel, and any riders,
amendments and addenda thereto, and any other documents as may from time to time be made a part
hereof upon mutual agreement by DIR and Lessor.
As to conditions precedent to Lessor's obligation to purchase any Equipment, (i) Lessee shall accept the
MLA terms and conditions as set forth herein and execute all applicable documents such as the Schedule,
the Acceptance Certificate, Opinion of Counsel, and any other documentation as may be required by the
Lessor that is not in conflict with this MLA, and (ii) there shall be no material adverse change in Lessee's
financial condition except as provided for within Section 7 of this MLA.
2. Term of MLA.
The term of this MLA shall commence on the last date of approval by DIR and Lessor and shall continue
until (i) the obligations of Lessee under every Schedule are fully discharged, (ii) the full and final
DIR Contract # DIR-SDD-1951 Page 1 of 20 Appendix F
expiration date of the Contract, or (iii) either party exercises their termination rights as stated within
Appendix A, Section 1013 of the Contract. In regards to either the Contract expiration date or Contract
termination date or the termination of this MLA, before all obligations of Lessee under every Schedule are
fully discharged, such Schedules and such other provisions of the Contract and this MLA as may be
necessary to preserve the rights of the Lessor or Lessee hereunder shall survive said termination or
expiration.
3. Term of Schedule.
The term for each Schedule, executed in conjunction to this MLA, shall commence on the date of
execution of an Acceptance Certificate by the Lessee or twenty (20) days after the delivery of the last
piece of Equipment to the Lessee ("Commencement Date"), and unless earlier terminated as provided for
in the MLA, shall continue for the number of whole months or other payment periods as set forth in the
applicable Schedule Term, commencing on the first day of the month following the Commencement Date
(or commencing on the Commencement Date if such date is the first day of the month). The Schedule
Term may be earlier terminated upon: (i) the Non -appropriation of Funds pursuant to Section 7 of this
MLA, (ii) an Event of Loss pursuant to Section 18 of this MLA, or (iii) an Event of Default by Lessee and
Lessor's election to cancel the Schedule pursuant to Section 24 of this MLA.
4. Administration of MLA.
(a) For requests involving the leasing of Equipment, each potential Lessee will submit its request
directly to the Lessor. Lessor shall apply the then current Equipment pricing discounts as stated
within Section 4 of the Contract or the price as agreed upon by Lessee and Lessor, whichever is
lower. Lessor shall submit the lease proposal and all other applicable documents directly to the
potential Lessee and negotiate the Schedule terms directly with the potential Lessee.
(b) All leasing activities in conjunction to this MLA shall be treated as a "purchase sale" in regards to
the requirements of the Lessor to report the sale and make payment of the DIR administrative fee as
defined within Section 5 of the Contract.
(c) Upon agreement by Lessor and Lessee on pricing, availability and the like, Lessee may issue a
purchase order in the amount indicated on the Schedule to Lessor for the Equipment and reference
said Contract number DIR-SDD-1951 on the purchase order. Any pre-printed terms and conditions
on the purchase order submitted by the Lessee shall not be effective with respect to the lease of
Equipment hereunder. Rather, the terms and conditions of this MLA and applicable Schedule terms
and conditions shall control in all respects.
(d) Nothing herein shall require the Lessor to use this MLA exclusively with Lessees. Further, this MLA
shall not constitute a requirements Agreement and Lessor shall not be obligated to enter into any
Schedule for the lease of Equipment with any Lessee.
5. Rent Payments.
During the Schedule Term and any renewal terms, Lessee agrees to pay Lessor Rent Payments. Rent
Payments shall be the amount equal to the Rent Payment amount specified in the Schedule multiplied by
DIR Contract # DIR-SDD-1951 Page 2 of 20 Appendix F
the amount of the total number of Rent Payments specified therein. Lessee shall pay Rent Payments in the
amount and on the due dates specified by Lessor until all Rent Payments and all other amounts due under
the Schedule have been paid in full. If the Schedule Commencement Date is other than the first day of a
month, Lessee shall make an initial payment on the Schedule Commencement Date in an amount equal to
one -thirtieth of the Rent Payment specified in the Schedule for each day from the Schedule
Commencement Date (including the Schedule Commencement Date) through the last day of such month
(including that day). For example, if a scheduled payment amount is $3,000 and the Scheduled
Commencement date is the 15th of the month, a payment of $1,500 will be made.
Any amounts received by Lessor from the Lessee in excess of Rent Payments and any other sums required
to be paid by the Lessee shall be held as non-interest bearing security for Lessee's faithful performance
under the conditions of this MLA and any Schedule. All Rent Payments shall be paid to the Lessor at the
address stated on the Schedule or any other such place as the Lessor or its assigns may hereafter direct to
the Lessee. Lessee shall abide by Appendix A, Section 7C of the Contract in making payments to the
Lessor. Any sum received by the Lessor later than ten (10) business days after its due date will bear
interest from such due date at the rate of one -percent (1%) per month (or the maximum rate allowable by
law, if less) until paid. Late charges, attorney's fees and other costs or expenses necessary to recover Rent
Payments and any other amounts owed by Lessee hereunder are considered an integral part of this MLA.
Each Schedule is a net lease and except as specifically provided herein, Lessee shall be responsible for all
costs and expenses arising in connection with the Schedule or Equipment. Lessee acknowledges and
agrees, except as specifically provided for in Section 7 of this MLA, that its obligation to pay Rent and
other sums payable hereunder, and the rights of Lessor and Lessor's assignees, shall be absolute and
unconditional in all events, and shall not be abated, reduced or subject to offset or diminished as a result
of any event, including without limitation damage, destruction, defect, malfunction, loss of use, or
obsolescence of the Equipment, or any other event, defense, counterclaim or recoupment due or alleged to
be due by reason of any past, present or future claims Lessee may have against Lessor, Lessor's assigns,
the manufacturer, vendor, or maintainer of the Equipment, or any person for any reason whatsoever.
"Price" shall mean the actual purchase price of the Equipment. Rent Payments shall be adjusted
proportionately downward if the actual price of the Equipment is less than the estimate (original proposal),
and the Lessee herein authorizes Lessor to adjust the Rent Payments downward in the event of the
decrease in the actual Equipment price. However, in the event that the Equipment price is more than the
estimate (original proposal), the Lessor may not adjust the Rent Payment without prior written approval of
the Lessee.
6. Liens and Taxes.
Lessee shall keep the Equipment free and clear of all levies, liens and encumbrances, except those in favor
of Lessor or its assigns, and shall give Lessor immediate notice of any attachment or other judicial process
affecting any item of Equipment. Unless Lessee first provides proof of exemption therefrom, Lessee shall
promptly reimburse Lessor, upon receipt of an accurate invoice, as an additional sum payable under this
MLA, or shall pay directly if so requested by Lessor, all license and registration fees, sales, use, personal
property taxes and all other taxes and charges imposed by any federal, state, or local governmental or
taxing authority, from which the Lessee is not exempt, whether assessed against Lessee or Lessor, relating
to the purchase, ownership, leasing, or use of the Equipment or the Rent Payments, excluding all taxes
DIR Contract # DIR-SDD-1951 Page 3 of 20 Appendix F
computed upon the net income of Lessor. Any tax statement received by the Lessor, for taxes payable by
the Lessee, shall be promptly forwarded by the Lessor to the Lessee for payment.
7. Appropriation of Funds.
(a) This paragraph applies only to Lessees designated as state agencies defined in Section 2054.003,
Texas Government Code, including institutions of higher education as defined in Texas Education
Code, Section 61.003 and those state agencies utilizing a DIR contract through an Interagency
Agreement, as authorized by Chapter 771, Texas Government Code.
Lessee intends to continue each Schedule to which it is a party for the Schedule Term and to pay the
Rent and other amounts due thereunder. Lessee reasonably believes that legally available funds in an
amount sufficient to pay all Rent during the Schedule Term can be obtained. Lessee further intends
to act in good faith to do those things reasonably and lawfully within its power to obtain and maintain
funds from which the Rent may be paid. Notwithstanding the foregoing, in the event sufficient funds
are not appropriated to continue the Schedule Term for any Fiscal Period (as set forth on the
Schedule) of Lessee beyond the Fiscal Period first in effect at the Commencement of the Schedule
Term, Lessee may terminate the Schedule with regard to not less than all of the Equipment on the
Schedule so affected. Lessee shall endeavor to provide Lessor written notice sixty (60) days prior to
the end of its current Fiscal Period confirming the Schedule will be so terminated. All obligations of
Lessee to pay Rent due after the end of the Fiscal Period for which such termination applies will
cease, all interests of Lessee in the Equipment will terminate and Lessee shall surrender the
Equipment in accordance with Section 13 of this MLA. Notwithstanding the foregoing, Lessee
agrees, without creating a pledge, lien or encumbrance upon funds available to Lessee in other than
its current Fiscal Period, that it will use reasonable efforts to obtain appropriation of funds to avoid
termination of the Schedule by taking reasonable and appropriate action including the inclusion in
Lessee's budget request for each Fiscal Period during the Schedule Term hereof a request for
adequate funds to meet its obligations and to continue the Schedule in force. Lessee represents and
warrants it has adequate funds to meet its obligations during the first Fiscal Period of the Schedule
Term. Lessor and Lessee understand and intend that the obligation of Lessee to pay Rent hereunder
shall constitute a current expense of Lessee and shall not in any way be construed to be a debt of
Lessee in contravention of any applicable constitutional or statutory limitation or requirement
concerning the creation of indebtedness by Lessee, nor shall anything contained herein constitute a
pledge of the general revenues, funds or monies of Lessee or the State of Texas beyond the Fiscal
Period for which sufficient funds have been appropriated to pay Rent hereunder.
(b) This paragraph applies only to Lessees designated as local government entities.
Lessee intends to continue each Schedule to which it is a party for the Schedule Term and to pay the
Rent and other amounts due thereunder. Lessee reasonably believes that legally available funds in an
amount sufficient to pay all Rent during the Schedule Term can be obtained. Lessee further intends
to act in good faith to do those things reasonably and lawfully within its power to obtain and maintain
funds from which the Rent may be paid. Notwithstanding the foregoing, in the event sufficient funds
are not appropriated for Lessee to continue the Schedule Term for any Fiscal Period (as set forth on
the Schedule) of the Lessee beyond the Fiscal Period first in effect at the commencement of the
Schedule Term, the Lessee may terminate the Schedule with regard to not less than all of the
DIR Contract # DIR-SDD-1951 Page 4 of 20 Appendix F
Equipment on the Schedule so affected. Lessee shall endeavor to provide Lessor written notice sixty
(60) days prior to the end of its current Fiscal Period confirming the Schedule will be terminated. All
obligations of Lessee to pay Rent due after the end of the Fiscal Period first in effect at the
commencement of the Schedule Term will cease, all interests of Lessee in the Asset(s) will terminate
and Lessee shall surrender the Equipment in accordance with Section 13 of this MLA.
Notwithstanding the foregoing, Lessee agrees, without creating a pledge, lien or encumbrance upon
funds available to Lessee in other than its current Fiscal Period, that it will use reasonable efforts to
obtain appropriation of funds to avoid termination of the Schedule by taking reasonable and
appropriate action including the inclusion in Lessee's budget request for each Fiscal Period during the
Schedule Term hereof a request for adequate funds to meet its obligations and to continue the
Schedule in force. Lessee represents and warrants it has adequate funds to meet its obligations during
the first Fiscal Period of the Schedule Term.
8. Selection of Equipment.
The Equipment is the size, design, capacity and manufacture selected by Lessee in its sole judgment and
not in reliance on the advice or representations of Lessor. No representation by the manufacturer or a
vendor shall in any way affect Lessee's duty to pay Rent and perform its other obligations hereunder.
Each Schedule is intended to be a "finance lease" as defined in Article 2A of the Uniform Commercial
Code. Lessor has acquired or will acquire the Equipment in connection with this MLA. Lessor shall not
be liable for damages for any reason, for any act or omission of the supplying manufacturer. Lessor
agrees, to the extent they are assignable, to assign the Lessee, without recourse to Lessor, any warranties
provided to Lessor with respect to the Equipment during the Term of the applicable Schedule. Lessee
acknowledges that neither its dissatisfaction with any unit of Equipment, nor the failure of any of the
Equipment to remain in useful condition for the Schedule Term, nor the loss of possession or the right of
possession of the Equipment or any part thereof by the Lessee, shall relieve Lessee from the obligations
under this MLA or Schedule Term. Lessee shall have no right, title or interest in or to the Equipment
except the right to use the same upon the terms and conditions herein contained. The Equipment shall
remain the sole and exclusive personal property of the Lessor and not be deemed a fixture whether or not
it becomes attached to any real property of the Lessee. Any labels supplied by Lessor to Lessee,
describing the ownership of the Equipment, shall be affixed by Lessee upon a prominent place on each
item of Equipment.
9. Inspection and Acceptance.
Promptly upon delivery of the Equipment, Lessee will inspect and test the Equipment, and not later than
ten (10) business days following the Commencement Date, Lessee will execute and deliver either (i) an
Acceptance Certificate, or (ii) written notification of any defects in the Equipment. If Lessee has not
given notice within such time period, the Equipment shall be conclusively deemed accepted by the Lessee
as of the tenth (10th) business day. Lessor, its assigns or their agents, shall be permitted free access at
reasonable times authorized by the Lessee, the right to inspect the Equipment.
10. Installation and Delivery; Use of Equipment; Repair and Maintenance.
(a) All transportation, delivery, and installation costs associated with the Equipment shall be borne by the
Lessee. Lessor is not and shall not be liable for damages if for any reason the manufacturer of the
DIR Contract # DIR-SDD-1951 Page 5 of 20 Appendix F
Equipment delays the delivery or fails to fulfill the order by the Lessee's desired timeframe. Any
delay in delivery by the manufacturer shall not affect the validity of any Schedule. Lessee shall
provide a place of installation for the Equipment, which conforms to the requirements of the
manufacturer and Lessor.
(b) Subject to the terms hereof, Lessee shall be entitled to use the Equipment in compliance with all laws,
rules, and regulations of the jurisdiction wherein the Equipment is located and will pay all cost,
claims, damages, fees and charges arising out of its possession, use or maintenance. Lessee agrees to
solely use the Equipment in the conduct of Lessee's business. Lessee agrees, at its expense, to obtain
all applicable permits and licenses necessary for the operation of the Equipment, and keep the
Equipment in good working order, repair, appearance and condition (reasonable wear and tear is
acceptable). Lessee shall not use or permit the use of the Equipment for any purpose, which
according to the specification of the manufacturer, the Equipment is not designed or reasonably
suited. Lessee shall use the Equipment in a careful and proper manner and shall comply with all of
the manufacturer's instructions, governmental rules, regulations, requirements, and laws, and all
insurance requirements, if any, with regard to the use, operation or maintenance of the Equipment.
(c) Lessee, at its expense, shall take good and proper care of the Equipment and make all repairs and
replacements necessary to maintain and preserve the Equipment and keep it in good order and
condition. Unless Lessor shall otherwise consent in writing, Lessee shall, at its own expense, enter
into and maintain in force a maintenance agreement covering each unit of Equipment. Lessee shall
furnish Lessor with a copy of such agreement, upon request. Lessee shall pay all costs to install and
dismantle the Equipment. Lessee shall not make any alterations, additions, or improvements, or add
attachments to the Equipment without the prior written consent of Lessor, except for additions or
attachments to the Equipment purchased by Lessee from the original supplier of the Equipment or
any other person approved by Lessor. If Lessee desires to lease any such additions or attachments,
Lessee hereby grants to Lessor the right of first refusal to provide such lease financing to Lessee for
such items. Subject to the provisions of Section 13B of this MLA, Lessee agrees to restore the
Equipment to Return Condition prior to its return to the Lessor.
11. Relocation of Equipment.
Lessee shall at all times keep the Equipment within its exclusive possession and control. Upon Lessor's
prior written consent, which shall not be unreasonably withheld, Lessee may move the Equipment to
another location of Lessee within the continental United States, provided (i) Lessee is not in default on
any Schedule, (ii) Lessee executes and causes to be filed at its expense such instruments as are necessary
to preserve and protect the interests of Lessor and its assigns in the Equipment, (iii) Lessee pays all costs
of, and provides adequate insurance during such movement, and (iv) Lessee pays all costs otherwise
associated with such relocation. Notwithstanding the foregoing, Lessee may move the Equipment to
another location within Texas without notification to, or the consent of, Lessor. Provided, however, that
not later than December 31 of each calendar year, Lessee shall provide Lessor a written report detailing
the total amount of Equipment at each location of Lessee as of that date, and the complete address for
each location. Lessor shall make all filings and returns for property taxes due with respect to the
Equipment, and Lessee agrees that it shall not make or file any property tax returns, including
information returns, with respect to the Equipment.
DIR Contract # DIR-SDD-1951 Page 6 of 20 Appendix F
12. Ownership.
The Equipment shall at all times be and remain the sole and exclusive property of Lessor, subject to the
parties rights under any applicable software license agreement. Lessee shall have no right, title or interest
in the Equipment except a leasehold interest as provided for herein. Lessee agrees that the Equipment
shall be and remain personal property and shall not be so affixed to realty as to become a fixture or
otherwise to lose its identity as the separate property of the Lessor. Upon request, Lessee will enter into
any and all agreements necessary to ensure that the Equipment remain the personal property of Lessor.
13. Purchase and Renewal Options; Location and Surrender of Equipment.
(a) Not less than ninety (90) days prior to the expiration of the initial Schedule Term Lessor shall notify
Lessee of options for continued use of Equipment. Lessee shall have the option to: (i) renew the
Schedule as to all but not less than all of the Equipment, or (ii) purchase all but not less than all of the
Equipment for cash or by the Lessor's acceptance of a purchase order from Lessee upon the last
business day on or prior to the expiration of the Schedule Term thereof for a price equal to the amount
set forth in the Schedule. If the Fair Market Value (FMV) Purchase Option was selected on the
Schedule, the FMV shall be determined on the basis of and shall be equal in amount to, the value
which would be obtained in an arms -length transaction between an informed and willing buyer -user
(other than a used equipment dealer), who would be retaining the Equipment as part of its current
operations, in continuing and consistent use, and an informed and willing seller under no compulsion
to sell, and in such determination, costs of removal from the location of current use shall not be a
deduction from such value. If Lessee desires to exercise either option, it shall give Lessor irrevocable
written notice of its intention to exercise such option at least sixty (60) days (and not more than 180
days) before the expiration of such Schedule Term. In the event that Lessee exercises the purchase
option described herein, upon payment by Lessee to Lessor of the purchase price for the Equipment,
together will all Rent Payments and any other amounts owing to Lessor hereunder, Lessor shall
transfer to Lessee without any representation or warranty of any kind, express or implied, title to such
Equipment. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, IF LESSEE
FAILS TO NOTIFY LESSOR OF ITS INTENT WITH RESPECT TO THE EXERCISE OF THE
OPTIONS DESCRIBED IN THIS SECTION 13 WITHIN THE TIME FRAMES CONTEMPLATED
HEREIN, THE INITIAL SCHEDULE TERM SHALL BE TERMINATED ON THE DATE AS
STATED IN THE SCHEDULE.
(b) The Equipment shall be delivered to and thereafter kept at the location specified in the Schedule and
shall not be removed therefrom without Lessor's prior written consent and in accordance with Section
11 of this MLA. Upon the expiration, early termination as provided herein, or upon final termination
of the Schedule, upon at least ninety (90) days prior written notice to Lessor, Lessee at its cost and
expense, shall immediately disconnect, properly package for transportation and return all (not part) of
the Equipment (including, without limitation, all service records and user manuals), freight prepaid, to
Lessor in good repair, working order, with unblemished physical appearance and with no defects
which affect the operation or performance of the Equipment ("Return Condition"), reasonable wear
and tear excepted. Lessee shall, at Lessor's request, affix to the Equipment, tags, decals or plates
furnished by Lessor indicating Lessor's ownership and Lessee shall not permit their removal or
concealment. Lessee shall return the Equipment to Lessor at a location specified by Lessor, provided,
DIR Contract # DIR-SDD-1951 Page 7 of 20 Appendix F
however, such location shall be within the United States no farther than 500 miles from the original
Lessee delivery location, unless otherwise agreed to on the applicable Schedule. If the Equipment is
not in Return Condition, Lessee shall remain liable for all reasonable costs required to restore the
Equipment to Return Condition. Lessee shall arrange and pay for the de -installation and packing of
the Equipment and the de -installation shall be performed by manufacturer -certified technicians,
approved by Lessor and the Lessor shall have the right to supervise and direct the preparation of the
Equipment for return. IF, UPON TERMINATION OR EXPIRATION OF THE SCHEDULE FOR
ANY REASON, LESSEE FAILS OR REFUSES FORTHWITH TO RETURN AND DELIVER THE
EQUIPMENT TO LESSOR, LESSEE SHALL REMAIN LIABLE FOR ANY RENT PAYMENTS
ACCRUED AND UNPAID WITH RESPECT TO ALL OF THE EQUIPMENT ON THE
SCHEDULE AND SHALL PAY RENT UP TO THE DATE THAT THE EQUIPMENT IS
RETURNED TO THE ADDRESS SPECIFIED BY LESSOR. Notwithstanding the foregoing, Lessor
shall have the right, without notice or demand, to enter Lessee's premises or any other premises where
the Equipment may be found and to take possession of and to remove the Equipment, at Lessee's sole
cost and expense, without legal process. Lessee understands that it may have a right under law to
notice and a hearing prior to repossession of the Equipment. As an inducement to Lessor to enter into
a transaction, but only to the extent that Lessee, if a state agency, has statutory authority to do so,
Lessee hereby expressly waives all rights conferred by existing law to notice and a hearing prior to
such repossession by Lessor or any officer authorized by law to effect repossession and hereby
releases Lessor from all liability in connection with such repossession. Without waiving the doctrines
of sovereign immunity and immunity from suit and to the extent authorized by the constitution and
laws of the State of Texas, Lessee's obligation to return Equipment may, at Lessor's option, be
specifically enforced by Lessor.
14. Quiet Enioyment.
During the Schedule Term, Lessor shall not interfere with Lessee's quiet enjoyment and use of the
Equipment provided that an Event of Default (as hereinafter defined in Section 23 of the MLA) has not
occurred.
15. Warranties.
Lessor and Lessee acknowledge that manufacturer Equipment warranties, if any, inure to the benefit of the
Lessee. Lessee agrees to pursue any warranty claim directly against such manufacturer of the Equipment
and shall not pursue any such claim against Lessor. Lessee shall continue to pay Lessor all amounts
payable under any Schedule under any and all circumstances.
16. No Warranties.
LESSEE ACKNOWLEDGES THAT LESSOR IS NOT THE MANUFACTURER OR LICENSOR OF
THE EQUIPMENT. LESSEE AGREES THAT LESSOR HAS NOT MADE AND MAKES NO
REPRESENTATIONS OR WARRANTIES OF WHATSOEVER NATURE, DIRECTLY OR
INDIRECTLY, EXPRESS OR IMPLIED, AS TO THE SUITABILITY, DURABILITY, FITNESS FOR
USE, MERCHANTABILITY, CONDITION, OR QUALITY OF THE EQUIPMENT OR ANY UNIT
THEREOF. LESSEE SPECIFICALLY WAIVES ALL RIGHT TO MAKE CLAIM AGAINST LESSOR
FOR BREACH OF ANY EQUIPMENT WARRANTY OF ANY KIND WHATSOEVER; AND WITH
DIR Contract # DIR-SDD-1951 Page 8 of 20 Appendix F
RESPECT TO LESSOR, LESSEE LEASES EQUIPMENT "AS IS". LESSOR SHALL NOT BE
LIABLE TO LESSEE FOR ANY LOSS, DAMAGE, OR EXPENSE OF ANY KIND OR NATURE
CAUSED DIRECTLY OR INDIRECTLY BY ANY EQUIPMENT LEASED HEREUNDER, OR BY
THE USE OR MAINTENANCE THEREOF, OR BY THE REPAIRS, SERVICE OR ADJUSTMENT
THERETO OR ANY DELAY OR FAILURE TO PROVIDE ANY THEREOF, OR BY ANY
INTERRUPTION OF SERVICE OR LOSS OF USE THEROF, OR FOR ANY LOSS OF BUSINESS OR
DAMAGE WHATESOEVER AND HOWSOEVER CAUSED WITHOUT IN ANY WAY IMPLYING
THAT ANY SUCH WARRANTY EXISTS AND WITHOUT INCREASING ITS LIABILITY
HEREUNDER, TO ASSIGN TO LESSEE UPON LESSEE'S REQUEST THEREFOR ANY
WARRANTY OF A MANUFACTURER OR LICENSOR OR SELLER RELATING TO THE
EQUIPMENT THAT MAY HAVE BEEN GIVEN TO LESSOR.
17. Indemnification.
(a) Without waiving the doctrines of sovereign immunity and immunity from suit, and to the extent
permitted by the laws and Constitution of the State of Texas, Lessee shall indemnify, protect, save and
hold harmless Lessor, its agents, servants and successors from and against all losses, damages,
injuries, claims, demands and expenses, including legal expenses and attorney's fees, of whatsoever
nature, arising out of the use, misuse, condition, repair, storage, return or operation (including, but not
limited to, latent and other defects, whether or not discoverable by it) of any unit of Equipment,
regardless of where, how and by whom operated, and arising out of negligence (excluding the gross
negligence or willful misconduct of Lessor). Lessee is liable for the expenses of the defense or the
settlement of any suit or suits or other legal proceedings brought to enforce any such losses, damages,
injuries, claims, demands, and expenses and shall pay all judgments entered in any such suit or suits or
other legal proceedings. The indemnities and assumptions of liabilities and obligations herein
provided for shall continue in full force and effect notwithstanding the termination of the MLA or a
Schedule whether by expiration of time, by operation of law or otherwise. With respect to Lessor,
Lessee is an independent contractor, and nothing contained herein authorizes Lessee or any other
person to operate the Equipment so as to impose or incur any liability or obligation for or on behalf of
Lessor.
(b) Without waiving the doctrines of sovereign immunity and immunity from suit, and to the extent
permitted by the laws and Constitution of the State of Texas, Lessee and DIR individually and
collectively assume all risks and liabilities with respect to any claim made by any third party that the
lease arrangements herein are not authorized by law. Without waiving the doctrines of sovereign
immunity and immunity from suit, and to the extent permitted by the laws and Constitution of the
State of Texas, Lessee and DIR agree to indemnify, save and hold harmless Lessor from any and all
such claims and all expenses incurred in connection with such claims or to defend against such claims,
including without limitation any judgments by a court of competent jurisdiction or settlement or
compromise with such claimant.
(c) Lessor is the owner of the Equipment and has title to the Equipment. If any other person attempts to
claim ownership of the Equipment by asserting that claim against Lessee or through Lessee, Lessee
agrees, at its expense, to protect and defend Lessor's title to the Equipment. Lessee further agrees that
it will at all times keep the Equipment free from any legal process, encumbrance or lien whatsoever,
DIR Contract # DIR-SDD-1951 Page 9 of 20 Appendix F
and Lessee shall give Lessor immediate notice if any legal process, encumbrance or lien is asserted or
made against the Equipment.
18. Risk of Loss.
Commencing upon delivery and continuing throughout the Schedule Term, Lessee shall bear the entire
risk of loss or damage in respect to any Equipment, whether partial or complete, from any cause
whatsoever. In the event of loss, theft, destruction or damage of any kind to any item of Equipment, or if
any Equipment is lost stolen, or taken by governmental action for a stated period extending beyond the
Term of any Schedule (an "Event of Loss"), Lessee shall promptly notify Lessor. Lessee shall, at its
option: (a) immediately place the affected Equipment in good condition and working order, (b) replace the
affected Equipment with identical equipment of at least equal value, in good condition and repair, and
transfer clear title thereto to Lessor, or (c) to the extent permitted by law, pay to Lessor, within thirty (30)
days of the Event of Loss, an amount equal to the Stipulated Loss Value ("SLV" as hereafter defined) for
such affected Equipment, plus any other unpaid amounts then due under the Schedule. If an Event of Loss
occurs as to part of the Equipment for which the SLV is paid, a prorated amount of each Rent Payment
shall abate from the date the SLV payment is received by Lessor. The SLV shall be an amount equal to
the sum of all future Rent Payments from the last Rent Payment date to the end of the Schedule Term with
such Rent Payments discounted to present value at the like -term Treasury Bill rate for the remaining
Schedule Term in effect on the date of such Event of Loss, or if such rate is not permitted by law, then at
the lowest permitted rate.
In the event of a governmental taking of Equipment for an indefinite period or for a stated period, which
does not extend beyond the Schedule Term, all obligations of the Lessee with respect to such Equipment
(including payment of Rent) shall continue. So long as Lessee is not in default hereunder, Lessor shall
pay to Lessee all sums received by Lessor from the government by reason of such taking.
19. Insurance.
At its expense, Lessee shall keep the Equipment insured against all risks of loss and damage with
companies acceptable to Lessor for an amount equal to the original cost of the Equipment, with Lessor or
its assign(s) named as a loss payee. Lessee shall also maintain comprehensive general liability insurance,
with Lessor or its assign(s) named as an additional insured. Lessee shall be liable for any loss not covered
by insurance. All said insurance shall be in form and amount satisfactory to Lessor. Lessee shall pay the
premiums therefor and deliver to Lessor or its assign(s) the certificates of insurance or duplicates thereof
or other evidence satisfactory to Lessor or its assign(s) of such insurance coverage. Evidence of such
insurance coverage shall be furnished no later than the Schedule Commencement Date of each Schedule
and from time to time as Lessor or its assign(s) may request. Each insurer shall agree by endorsement
upon the policy or policies issued by it or by independent instrument furnished to Lessor that it will give
Lessor or its assign(s) thirty (30) days prior written notice of the effective date of any alteration or
cancellation of such policy. Lessee hereby irrevocably appoints Lessor as Lessee's attorney-in-fact to
make claim for, receive payment of, and execute and endorse all documents, checks or drafts received in
payment for loss or damage under any said insurance policy. Lessee may self -insure with respect to the
required coverage.
DIR Contract # DIR-SDD-1951 Page 10 of 20 Appendix F
Further, Lessees that are defined as state agencies in accordance with Section 2054.003, Texas
Government Code (including institutions of higher education as defined in Texas Education Code, Section
61.003) and those purchasing from a DIR contract through an Interagency Agreement, as authorized by
Chapter 771, Texas Government Code, may self -insure their obligations in this section.
20. Representations and Warranties of Lessee.
Lessee represents and warrants for the benefit of Lessor and its assigns, and Lessee will provide an
opinion of counsel to the effect that, as of the time of execution of the MLA and each Schedule between
Lessor and Lessee:
(a) Lessee is either a Texas state agency or Texas local government, as defined in Section 2054.003,
Texas Government Code (including institutions of higher education as defined in Texas Education
Code, Section 61.003) or a state agency purchasing from a DIR contract through an Interagency
Agreement, as authorized by Chapter 771, Texas Government Code. Lessee has made an
independent legal and management determination to enter into this transaction;
(b) Each Schedule executed by Lessee has been duly authorized, executed and delivered by Lessee and
constitutes a valid, legal and binding agreement of Lessee, enforceable in accordance with its terms;
(c) No approval, consent or withholding of objection is required from any federal or other
governmental authority or instrumentality with respect to the entering into or performance by
Lessee of any Schedule between Lessor and Lessee;
(d) The entering into and performance of any Schedule between Lessor and Lessee, the MLA or any
Schedule will not violate any judgment, order, law or regulation applicable to Lessee or result in
any breach of, or constitute a default under, or result in the creation of any lien, charge, security
interest or other encumbrance upon assets of the Lessee or on the Equipment leased under any
Schedule between Lessor and Lessee pursuant to any instrument to which the Lessee is a party or by
which it or its assets may be bound;
(e) To the best of Lessee's knowledge and belief, there are no suits or proceedings pending or
threatened against or affecting Lessee, which if determined adversely to Lessee will have a material
adverse effect on the ability of Lessee to fulfill its obligations under the MLA or any Schedule
between Lessor and Lessee;
(f) The use of the Equipment is essential to Lessee's proper, efficient and economic operation, and
Lessee will sign and provide to Lessor upon execution of each Schedule between Lessor and Lessee
hereto written certification to that effect; and
(g) Lessee represents and warrants that (i) It has authority to enter into any Schedule under this MLA,
(ii) the persons executing a Schedule have been duly authorized to execute the Schedule on Lessee's
behalf, (iii) all information supplied to Lessor is true and correct, including all credit and financial
information and (iv) it is able to meet all its financial obligations, including the Rent Payments
hereunder.
DIR Contract # DIR-SDD-1951 Page 11 of 20 Appendix F
21. Representation and Warranties of DIR.
DIR represents and warrants for the benefit of Lessor and its assigns, and DIR will provide an opinion of
counsel to the effect that, as of the time of execution of the MLA:
(a) DIR is a State agency as defined in Section 2251.001, Texas Government Code. DIR has not
provided the Lessee or the Lessor with any legal or management advice regarding the MLA or any
Schedule executed pursuant thereto;
(b) This MLA has been duly authorized, executed and delivered by DIR and constitutes a valid, legal
and binding Agreement of DIR, enforceable in accordance with its terms;
(c) No approval, consent or withholding of objection is required from any federal or other
governmental authority or governmental authority or instrumentality with respect to the entering
into or performance by DIR of this MLA;
(d) The entering into and performance of the MLA does not violate any judgment, order, law or
regulation applicable to DIR or result in any breach of, constitute a default under, or result in the
creation of any lien, charge, security interest or other encumbrance upon assets of DIR or on the
Equipment pursuant to any instrument to which DIR is a party or by which it or its assets may be
bound;
(e) To the best of DIR's knowledge and belief, there are no suits or proceedings pending or threatened
against or affecting DIR, which if determined adversely to DIR will have a material adverse effect
on the ability of DIR to fulfill its obligations under the MLA;
(f) DIR is authorized to charge and collect the administrative fee as set forth within Section 5 of the
Contract;
(g) Lessor's payment of the administrative fee to DIR shall not constitute an illegal gratuity or
otherwise violate Texas law; and
(h) DIR is a government agency subject to the Texas Public Information Act. Lessor acknowledges that
DIR will comply with the Public Information Act, and with all opinions of the Texas Attorney
Generals' office concerning this Act.
22. Representations and Warranties of Lessor.
(a) Lessor is an entity authorized and validly existing under the laws of its state of organization, is
authorized to do business in Texas, and is not in default as to taxes owed to the State of Texas and
any of its political subdivisions;
(b) The MLA and each Schedule executed in conjunction to this MLA have been duly authorized,
executed and delivered by Lessor and constitute valid, legal and binding agreements of Lessor,
enforceable with respect to the obligations of Lessor herein in accordance with their terms;
DIR Contract # DIR-SDD-1951 Page 12 of 20 Appendix F
(c) No approval, consent or withholding of objection is required from any federal or other
governmental authority or instrumentality with respect to the entering into or performance by
Lessor of this MLA or any Schedule;
(d) The entering into and performance of the MLA or any Schedule will not violate any judgment,
order, law or regulation applicable to Lessor or result in any breach of, or constitute a default under,
or result in the creation of any lien, charge, security interest or other encumbrance upon the assets of
the Lessor, including Equipment leased under the MLA and Schedules thereto, pursuant to any
instrument to which the Lessor is a party or by which it or its assets may be bound; and
(e) To the best of Lessor's knowledge and belief, there are no suits or proceedings pending or
threatened against or affecting Lessor, which if determined adversely to Lessor will have a material
adverse effect on the ability of Lessor to fulfill its obligations under the MLA or any Schedule.
23. Default.
Lessee shall be in default under a Schedule upon the occurrence of any one or more of the following
events (each an "Event of Default"): (a) nonpayment or incomplete payment by Lessee of Rent or any
other sum payable; (b) nonpayment or incomplete payment by Lessee of Rent or any other sum payable
on its due date; (c) failure by Lessee to perform or observe any other term, covenant or condition of this
MLA, any Schedule, or any applicable software license agreement, which is not cured within ten (10)
days after notice thereof from Lessor; (d) insolvency by Lessee; (e) Lessee's filing of any proceedings
commencing bankruptcy or the fling of any involuntary petition against Lessee or the appointment of any
receiver not dismissed within sixty (60) days from the date of said filing or appointment; (f) subjection of
a substantial part of Lessee's property or any part of the Equipment to any levy, seizure, assignment or
sale for or by any creditor or governmental agency; or (g) any representation or warranty made by Lessee
in this MLA, any Schedule or in any document furnished by Lessee to Lessor in connection therewith or
with the acquisition or use of the Equipment being or becoming untrue in any material respect.
24. Remedies.
(a) Upon the occurrence of an "Event of Default" and at any time thereafter Lessor may, in its sole
discretion, do any one or more of the following: (i) After giving fifteen (15) days prior written notice
to Lessee of default, during which time Lessee shall have the opportunity to cure such default,
terminate any or all Schedules executed by Lessor and the defaulting Lessee; (ii) without Lessee and
DIR waiving the doctrines of sovereign immunity and immunity from suit, and to the extent allowed
by the laws and Constitution of the State of Texas, Lessor may proceed by appropriate court action
to enforce the performance of the terms of the Schedule and/or recover damages, including all of
Lessor's economic loss for the breach thereof; (iii) whether or not the Schedule is terminated, upon
notice to Lessee, take possession of the Equipment wherever located, without demand, liability,
court order or other process of law, and for such purposes Lessee, to the extent authorized by Texas
law, hereby authorizes Lessor, its assigns or the agents of either to enter upon the premises where
such Equipment is located or cause Lessee, and Lessee hereby agrees, to return such Equipment to
Lessor in accordance with the requirements of Section 13 of the MLA; (iv) by notice to Lessee, and
to the extent permitted by law, declare immediately due and payable and recover from Lessee, as
liquidated damages and not as a penalty, the sum of (a) the present value of the Rent owed from the
DIR Contract # DIR-SDD-1951 Page 13 of 20 Appendix F
earlier of the date of payment by Lessee or the date Lessor obtains a judgment against Lessee until
the end of the Schedule Term plus, if the Equipment is not returned to or repossessed by Lessor, the
present value of the estimated in-place fair market value of the Equipment at the end of the Schedule
Term as determined by Lessor, each discounted at a rate equal to the rate used by Lessor for business
opportunity analysis; (b) all Rent and other amounts due and payable on or before the earlier of the
date of payment by Lessee or the date Lessor obtains a judgment against Lessee; and (c) without
Lessee and DIR waiving the doctrines of sovereign immunity and immunity from suit, and to the
extent allowed by the laws and Constitution of the State of Texas, costs, fees (including all
attorneys' fees and court costs) and expenses associated with collecting said sums; and (d) interest
on (a) and (b) from the date of default at 1 '/z% per month or portion thereof (or the highest rate
allowable by law, if less) and, on (c) from the date Lessor incurs such fees, costs or expenses.
(b) Upon return or repossession of the Equipment, Lessor may, if it so decides in its sole discretion,
upon notice to Lessee, use reasonable efforts to sell, re -lease or otherwise dispose of such
Equipment, in such manner and upon such terms as Lessor may determine in its sole discretion, so
long as such manner and terms are commercially reasonable. Upon disposition of the Equipment,
Lessor shall credit the Net Proceeds (as defined below) to the damages paid or payable by Lessee.
Proceeds upon sale of the Equipment shall be the sale price paid to Lessor less the Stipulated Loss
Value in effect as of the date of default. Proceeds upon a re -lease of the Equipment shall be all rents
to be received for a term not to exceed the remaining Schedule Term, discounted to present value as
of the commencement date of the re -lease at the Lessor's current applicable debt rate. Without
Lessee and DIR waiving the doctrines of sovereign immunity and immunity from suit, and to the
extent allowed by the laws and Constitution of the State of Texas, "Net Proceeds" shall be the
Proceeds of sale or re -lease as determined above, less all costs and expenses incurred by Lessor in
the recovery, storage and repair of the Equipment, in the remarketing or disposition thereof, or
otherwise as a result of Lessee's default, including any court costs and attorney's fees and interest on
the foregoing at eighteen percent (18%) per annum or the highest rate allowable by law, if less,
calculated from the dates such costs and expenses were incurred until received by Lessor. Lessee
shall remain liable for the amount by which all sums, including liquidated damages, due from Lessee
exceeds the Net Proceeds. Net Proceeds in excess thereof are the property of and shall be retained
by Lessor.
(c) No termination, repossession or other act by Lessor in the exercise of its rights and remedies upon an
Event or Default shall relieve Lessee from any of its obligations hereunder. No remedy referred to
in this Section is intended to be exclusive, but each shall be cumulative and in addition to any other
remedy referred to above or otherwise available to Lessor at law or in equity.
(d) Neither DIR nor non -defaulting Lessees shall be deemed in default under the MLA or Schedules
because of the default of a particular Lessee. Lessor's remedies under this Section 24 shall not
extend to DIR and those non -defaulting Lessees.
25. Notices and Waivers.
All notices relating to this MLA shall be delivered to DIR or the Lessor as specified within Section 6 of
the Contract, or to another representative and address subsequently specified in writing by the appropriate
parties hereto. All notices relating to a Schedule shall be delivered in person to an officer of the Lessor or
DIR Contract # DIR-SDD-1951 Page 14 of 20 Appendix F
Lessee or shall be mailed certified or registered to Lessor or Lessee at its respective address shown on the
Schedule or to another address subsequently specified in writing by the appropriate parties thereof. DIR,
Lessee, and Lessor intend and agree that a photocopy or facsimile of this MLA or a Schedule and all
related documents, including but not limited to the Acceptance Certificate, with their signatures thereon
shall be treated as originals, and shall be deemed to be as binding, valid, genuine, and authentic as an
original signature document for all purposes. This MLA and those Schedules in conjunction hereof are a
"Finance Lease" as defined in Article 2A of the Uniform Commercial Code ("UCC"). A waiver of a
specific Default shall not be a waiver of any other or subsequent Default. No waiver of any provision of
this MLA or a provision of a Schedule shall be a waiver of any other provision or matter, and all such
waivers shall be in writing and executed by an officer of the Lessor. No failure on the part of Lessor to
exercise, and no delay in exercising, any right hereunder shall operate as a waiver thereof.
26. Assignment by Lessor; Assignment or Sublease by Lessee.
(a) Lessor may (i) assign all or a portion of Lessor's right, title and interest in this MLA and/or any
Schedule; (ii) grant a security interest in the right, title and interest of Lessor in the MLA, any
Schedule and/or any Equipment; and/or (iii) sell or transfer its title and interest as owner of the
Equipment and/or as Lessor under any Schedule; and DIR and each Lessee leasing Equipment
under the MLA understand and agree that Lessor's assigns may each do the same (hereunder
collectively "Assignment"). All such Assignments shall be subject to each Lessee's rights under the
Schedule(s) executed between it and Lessor and to DIR's rights under the MLA. Each Lessee
leasing Equipment through Schedules under this MLA and DIR hereby consent to such
Assignments and agree to execute and deliver promptly such acknowledgements, Opinions of
Counsel and other instruments reasonably requested to effect such Assignment. Each Lessee leasing
Equipment through Schedules under this MLA and DIR acknowledge that the assigns do not
assume Lessor's obligations hereunder and agree to make all payments owed to the assigns without
abatement and not to assert against the assigns any claim, defense, setoff or counterclaim which
DIR or the Lessee(s) may possess against the Lessor or any other party for any other reason. Lessor
shall remain liable for performance under the MLA and any Schedule(s) executed hereunder to the
extent Lessor's assigns do not perform Lessor's obligations under the MLA and Schedule(s)
executed hereunder. Upon any such Assignment, all references to Lessor shall also include all such
assigns, whether specific reference thereto is otherwise made herein.
(b) LESSEE WILL NOT SELL, ASSIGN, SUBLET, PLEDGE OR OTHERWISE ENCUMBER,
OR PERMIT A LIEN TO EXIST ON OR AGAINST ANY INTEREST IN THIS LEASE, OR
THE EQUIPMENT, OR REMOVE THE EQUIPMENT FROM ITS LOCATION
REFERRED TO ON THE SCHEDULE, WITHOUT LESSOR'S PRIOR WRITTEN
CONSENT EXCEPT AS PROVIDED IN SECTION 11 OF THIS MLA. LESSOR MAY
ASSIGN ITS INTEREST IN THIS LEASE AND SELL OR GRANT A SECURITY
INTEREST IN ALL OR ANY PART OF THE EQUIPMENT WITHOUT LESSEE'S
CONSENT. LESSEES THAT ARE STATE AGENCIES, WITHOUT WAIVING THE
DOCTRINE OF SOVEREIGN IMMUNITY AND IMMUNITY FROM SUIT, AND ONLY
AS MAY BE AUTHORIZED BY THE CONSTITUTION AND LAWS OF THE STATE OF
TEXAS, AGREE THAT IN ANY ACTION BROUGHT BY AN ASSIGNEE AGAINST
LESSEE TO ENFORCE LESSOR'S RIGHTS HEREUNDER, LESSEE WILL NOT
ASSERT AGAINST SUCH ASSIGNEE AND EXPRESSLY WAIVES AS AGAINST ANY
DIR Contract # DIR-SDD-1951 Page 15 of 20 Appendix F
ASSIGNEE, ANY BREACH OR DEFAULT ON THE PART OF LESSOR HEREUNDER
OR ANY OTHER DEFENSE, CLAIM OR SET-OFF WHICH LESSEE MAY HAVE
AGAINST LESSOR EITHER HEREUNDER OR OTHERWISE. NO SUCH ASSIGNEE
SHALL BE OBLIGATED TO PERFORM ANY OBLIGATION, TERM OR CONDITION
REQUIRED TO BE PERFORMED BY LESSOR HEREUNDER. Without the prior written
consent of Lessor, DIR shall not assign, sublease, transfer, pledge or hypothecate the Master Lease
Agreement; provided, however, that no such prior written consent from Lessor is necessary in the
event of a legislative mandate to transfer the contract to another state agency.
27. Delivery of Related Documents.
For each Schedule, Lessee will provide the following documents and information satisfactory to Lessor:
(a) Certificate of Acceptance; (b) Opinion of Counsel; (c) proof of self-insurance acceptable to Lessor; (d)
Financial Statements; (e) Incumbency Certificate; and (f) Other documents as reasonably required by
Lessor.
28. Lessee's Waivers.
To the extent permitted by applicable law, Lessee hereby waives the following rights and remedies
conferred upon Lessee by the Uniform Commercial Code: to (i) cancel any Schedule under the MLA; (ii)
repudiate any Schedule; (iii) reject the Equipment; (iv) revoke acceptance of the Equipment; (v) recover
damages from Lessor for any breach of warranty by the manufacturer; (vi) claim a security interest in the
Equipment in Lessee's possession or control for any reason; (vii) deduct all or any part of any claimed
damages resulting from Lessor's default, if any, under any Schedule; (viii) accept partial delivery of the
Equipment; (ix) "cover" by making any purchase or lease of or contract to purchase or lease equipment in
substitution for the Equipment due from Lessor; (x) recover any special, punitive, incidental or
consequential damages, for any reason whatsoever. Lessee agrees that any delay or failure to enforce
Lessor's rights under this MLA or a Schedule does not prevent Lessor from enforcing any rights at a later
time.
29. Security Interest and UCC Filings.
To secure payments hereunder, Lessor reserves and Lessee hereby grants to Lessor a continuing security
interest in the Equipment and any and all additions, replacements, substitutions, and repairs thereof.
When all of the Lessee's obligations under this MLA and respective Schedules have been fully paid and
satisfied, Lessor's security interest shall terminate. Nothing contained herein shall in any way diminish
Lessor's right, title, or interest in or to the Equipment. Lessor and Lessee agree that a reproduction of this
MLA and/or any associated Schedule may be filed as a financing statement and shall be sufficient as a
financing statement under the Uniform Commercial Code ("UCC"). Lessee hereby appoints Lessor, its
agents, successors or assigns its true and lawful attorney-in-fact for the limited purpose of executing and
filing on behalf of Lessee any and all UCC Financing Statements which in Lessor's sole discretion are
necessary or proper to secure Lessor's interest in the Equipment in all applicable jurisdictions. Lessee
shall execute or obtain and deliver to Lessor, upon Lessor's request, such instruments, financing
statements and assurances, as Lessor deems necessary or advisable for the protection or perfection of this
Lease and Lessor's rights hereunder and will pay all costs incident thereto.
DIR Contract # DIR-SDD-1951 Page 16 of 20 Appendix F
30. Miscellaneous.
(a) Jurisdiction. The MLA and each Schedule SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS. In the event of a dispute
between the parties, suit may be brought in the federal or state courts where Lessee has its principal
office or where the Equipment is located.
(b) Counterpart. Only original counterpart No. 1 of each Schedule shall be deemed to be an "Original"
for chattel paper purposes under the Uniform Commercial Code. Any and all other counterparts
shall be deemed to be a "Copy". NO SECURITY INTEREST IN THIS MLA, IN ANY
SCHEDULE, OR IN ANY OF THE EQUIPMENT MAY BE CREATED, TRANSFERRED,
ASSIGNED OR PERFECTED BY THE TRANSFER AND POSSESSION OF THIS MLA
ALONE OR OF ANY "COPY" OF THE SCHEDULE, BUT RATHER SOLELY BY THE
TRANSFER AND POSSESSION OF THE "ORIGINAL" COUNTERPART OF THE SCHEDULE
INCORPORATING THIS MLA BY REFERENCE.
(c) Suspension of Obligations of Lessor. Prior to delivery of any Equipment, the obligations of Lessor
hereunder shall be suspended to the extent that it is hindered or prevented from performing because
of causes beyond its control.
(d) Severability. In the event of any provision of this MLA or any Schedule shall be determined by a
court of competent jurisdiction to be invalid or unenforceable, the parties hereto agree that such
provision shall be ineffective without invalidating the remaining provisions thereof.
(e) Entire Agreement. Lessor and Lessee acknowledge that there are no agreements or understanding,
written or oral, between them with respect to the Equipment, other than as set forth in this MLA and
in each Schedule to which Lessee is a signatory party. Lessor and Lessee further acknowledge that
this MLA and each Schedule to which Lessee is a party contain the entire agreement between
Lessor and Lessee and supersedes all previous discussions and terms and conditions of any purchase
orders issued by Lessee. DIR and Lessor acknowledge that there are no agreements or
understandings, written or oral, between them other than as set forth in this MLA and Contract
Number DIR-SDD-1951 and that both contain the entire agreement between them. Neither this
MLA nor any Schedule may be altered, modified, terminated, or discharged except by a writing
signed by the party against whom enforcement of such action is sought.
(f) Headers. The descriptive headings hereof do not constitute a part of any Schedule and no
inferences shall be drawn therefrom.
(g) Language context. Whenever the context of this MLA requires, the masculine gender includes the
feminine or neuter, and the singular number includes the plural, and whenever the word Lessor is
used herein, it shall include all assignees of Lessor.
(h) Lessor Certifications. Lessor certifies that:
DIR Contract # DIR-SDD-1951 Page 17 of 20 Appendix F
(i) it has not given, offered to give, and does 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 this MLA and/or any Schedules executed
hereunder;
(ii) it is not currently delinquent in the payment of any franchise tax owed the State of Texas and
is not ineligible to receive payment under Section 231.006, Texas Family Code and
acknowledges this MLA may be terminated and payment withheld if this certification is
inaccurate;
(iii) neither it , nor anyone acting for it, has violated the antitrust laws of the United States or the
State of Texas, nor communicated directly or indirectly to any competitor or any other person
engaged in such line of business for the purpose of obtaining an unfair price advantage;
(iv) it has not received payment from DIR, Lessee or any of their employees for participating in
the preparation of this MLA and the Schedule(s) hereunder;
(v) during the term of this MLA, it will not discriminate unlawfully against any employee or
applicant and that, upon request it 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,
(vi) under Section 2155.004, Texas Government Code, the Lessor certifies that the individual or
business entity named in this MLA is not ineligible to receive the specified MLA and
acknowledges that this MLA may be terminated and payment withheld if this certification is
inaccurate;
(vii) 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 MLA;
(viii) are not suspended or debarred from doing business with the federal government as listed in
the Excluded Parties List System (EPLS) maintained by the General Services Administration;
(ix) as of the effective date of the MLA, are not listed in the prohibited vendors list authorized by
Executive Order #13224, 'Blocking Property and Prohibiting Transactions with Persons Who
Commit, Threaten to Commit, or Support Terrorism ", published by the United States
Department of the Treasury, Office of Foreign Assets Control;
(x) to the extent applicable to this scope of this MLA, Lessor 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;
DIR Contract # DIR-SDD-1951 Page 18 of 20 Appendix F
(xi) Lessor agrees that any payments due under this MLA will be applied towards any debt,
including but not limited to delinquent taxes and child support that is owed to the State of
Texas;
(xii) Vendor certifies that they are in compliance Section 669.003, Texas Government Code,
relating to contracting with executive head of a state agency;
(xiii) Vendor certifies for itself and its subcontractors that it has identified all current or former,
within the last five years, employees of the State of Texas assigned to work on the DIR
Contract 20% or more of their time and has disclosed them to DIR and has disclosed or does
not employ any relative of a current or former state employee within two degrees of
consanguinity, and, if these facts change during the course of the Contract, Vendor certifies it
shall disclose for itself and on behalf of subcontractors the name and other pertinent
information about the employment of current and former employees and their relatives within
two degrees of consanguinity;
(xiv) Lessor represents and warrants that the provision of goods and services or other
performance under the MLA will not constitute an actual or potential conflict of interest and
certifies that it will not reasonably create the appearance of impropriety, and, if these facts
change during the course of the MLA, Lessor certifies it shall disclose for itself and on behalf
of subcontractors the actual or potential conflict of interest and any circumstances which create
the appearance of impropriety;
(xv) Lessor represents and warrants that the Lessee's payment to Lessor and Lessor's receipt of
appropriated or other funds under this Agreement are not prohibited by Sections 556.005 or
Section 556.008, Texas Government Code;
(xvi) under Section 2155.006, Government Code, Lessor certifies that the individual or business
entity in this MLA is not ineligible to receive the specified MLA and acknowledges that this
MLA may be terminated and payment withheld if this certification is inaccurate. In addition,
Lessor acknowledges the applicability of §2155.444 and §2155.4441, Texas Government
Code, in fulfilling the terms of the MLA; and (xviii) Lessor certifies that it has complied with
the Section 556.0055, Texas Government Code, restriction on lobbying expenditures.. In
addition, Vendor acknowledges the applicability of §2155.444 and §2155.4441, Texas
Government Code, in fulfilling the terms of the Contract.
During the term of the MLA, Lessor shall, for itself and on behalf of its subcontractors,
promptly disclose to DIR all changes that occur to the foregoing certifications, representations
and warranties. Lessor covenants to fully cooperate in the development and execution of
resulting documentation necessary to maintain an accurate record of the certifications,
representations and warranties
(i) Dispute Resolution. The following paragraph applies only to Lessees designated as a State agency
as defined in Section 2054.003, Texas Government Code, including a university system or
institution of higher education, and those purchasing from a DIR contract through an Interagency
Agreement, as authorized by Chapter 771, Texas Government Code.
DIR Contract # DIR-SDD-1951 Page 19 of 20 Appendix F
To the extent that Chapter 2260 of the Texas Government Code, as it may be amended from time to
time ("Chapter 2260"), is applicable to this Agreement and is not preempted by other applicable
law, the dispute resolution process provided for in Chapter 2260, and rules promulgated there under
shall be used by the Lessee and Lessor to attempt to resolve any claim for breach of agreement
made by Lessor.
0) Sovereign Immunity. Nothing herein shall be construed to waive the State's sovereign immunity.
31. Amendments.
The terms and conditions of this MLA may be amended only by written instrument executed by the
Lessor and DIR.
DIR Contract # DIR-SDD-1951 Page 20 of 20 Appendix F
SECRETARY/CLERK CERTIFICATE
do hereby certify that:
(i) 1 am the duly elected, qualified, and acting �rJ.NJ
(Clerk,
Secretary, etc.) of City of Round Rock, Texas, a public entity (the "lic Entity").
(ii) Each of the persons whose name, title and signature appear below is a duly authorized
representative of the Public Entity and holds on the date of this Certificate the formal title set forth opposite
his/her name and the signature appearing opposite each such person's name is his/her genuine signature:
NAME OF AUTHORIZED TITLE OF AUTHORIZED SIGNATURE OF AUTHORIZED
SIGNATORY SIGNATORY SIGNATORY
(cannot be Clerk/Secretary
authenticating this certificate)
145,n M `G -mow Mho"A
(iii) Each such representative is duly authorized for and on behalf of the Public Entity to
execute and deliver that certain Master Lease Agreement No. __ (the "Agreement") and
any related Lease Schedules from time to time thereunder (the "Schedules") between the Public Entity and Dell
Financial Services L.L.C., or its assignee (collectively, "Lessor"), and all agreements, documents, and
instruments in connection therewith, including without limitation, schedules, riders and certificates of
acceptance.
(iv) The execution and delivery of any such Agreement and/or Schedule and all
agreements, documents, and instruments in connection therewith for and on behalf of the Public Entity are not
prohibited by or in any manner restricted by the terms of the Charter or other document pursuant to which it is
organized or of any loan agreement, indenture or contract to which the Public Entity is a party or by which it or
any of its property is bound.
(v) [STRIKE IF NOT APPLICABLE] The Public Entity did, at a duly called WW—(C-h?-
(regular or special) meeting of the governi g bod of the Public Entity attended throughout by the requisite
majority of the members thereof held on 1 20a, by motion duly made, seconded and carried, in
accordance with all requirements of law, approve and authorize the execution and delivery of the Agreement,
the related Schedule(s) and all agreements, documents, and instruments in connection therewith on its behalf
by the authorized representative(s) of the Public Entity named in paragraph (ii) above. Such action approving
the Agreement, the related Schedule(s) and all agreements, documents, and instruments in connection
therewith and authorizing the execution thereof has not been altered or rescinded by the Public Entity.
(vi) No event or condition that constitutes, or with the giving of notice or the lapse of time
or both would constitute, an Event of Default (as such term is defined in the Agreement) exists at the date
hereof.
(vii) All insurance required in accordance with the Agreement is currently maintained by the
Public Entity.
(viii) The Public Entity has, in accordance with the requirements of law, fully budgeted and
appropriated sufficient funds for the current budget year to make the Rent payments scheduled to come due
during the first Fiscal Period and to meet its other obligations for the first Fiscal Period (as such terms are
defined in the Agreement) and such funds have not been expended for other purposes.
�M"�Y x- �f he Fiscal Period of the Public Entity is from oUte' Y17% to
DFS Public Secretar-Clerk Certiricate.012208
on or before the last day of the Primary Term. "Fair Market Value" means the price of the Products, installed, in use and in the
condition required by the Agreement as determined by Lessor in its reasonable judgment. If Lessee disagrees with the Fair
Market Value, Lessee shall notify Lessor in writing within 60 days prior to the Expiration Date and, upon Lessee's request, and
within ten (10) days after receipt of Lessee's notice, Lessor shall appoint a qualified appraiser reasonably acceptable to Lessee to
appraise the retail value of the Products. The amount determined by such appraiser shall be the final Fair Market Value. Lessor
and Lessee shall share the expense of such appraisal equally.
(c) If Lessee desires to renew a lease, Lessee and Lessor shall enter into a supplement to this Schedule
describing the length of the renewal Lease Term and the renewal Rent provided, however, all other terms of this Schedule and
the Agreement shall remain in full force and effect.
(d) Whether or not Lessee has given Lessor notice if its intent as described above, if Lessee does not return or
purchase the Products or renew the Lease as required above, the Lease Term shall automatically extend on a month-to-month
basis at the Rent in effect on the Expiration Date (prorated on a monthly basis if the Payment Period was other than monthly
during the Primary Term). Such extension shall continue until Lessee: (i) provides thirty (30) days prior written notice of its
intention to return or purchase the Products (to take effect on the next Rent payment date that is at least 30 days after the notice
is received by Lessor) and (ii) either returns or purchases all of the Products in accordance with the End of Lease options above.
Payments of Rent during the month-to-month extension are due and payable monthly as specified in Lessor's invoice. If Lessee
fails to return or purchase any Products, the Schedule and associated Rent for the Products that have not been returned or
purchased shall extend on a month-to-month basis in accordance with the prior sentence.
3. SECTION 30. MISCELLANEOUS.
Insert the following at the end of subsection (b):
"Notwithstanding the foregoing, this Schedule may be signed in any number of counterparts each of which when so executed or
otherwise authenticated and delivered shall be an original but all counterparts shall together constitute one and the same
instrument. To the extent this Schedule would constitute chattel paper as that term is defined in the UCC, no security interest
may be created through the transfer or control or possession, as applicable, of a counterpart of a Schedule other than the original
in Lessor's possession marked by Lessor as either "original" or "Counterpart Number 1".
Insert the following at the end of subsection (e):
"If Lessee delivers this Schedule or any amendment (each a "Document") to Lessor by facsimile transmission, and Lessor does
not receive all of the pages of that Document, Lessee agrees that, except for any pages which require a signature, Lessor may
supply the missing pages to the Document from Lessors database which conforms to the version number at the bottom of the
page. If Lessee delivers a signed Document to Lessor as an e-mail attachment, facsimile transmission or by U.S. mail, Lessee
acknowledges that Lessor is relying on Lessee's representation that the Document has not been altered. Lessee further agrees
that, notwithstanding any rule of evidence to the contrary, in any hearing, trial or proceeding of any kind with respect to a
Document, Lessor may produce a tangible copy of the Document transmitted by Lessee to Lessor by facsimile or as an e-mail
attachment and such signed copy shall be deemed to be the original of the Document. To the extent (if any) that the Document
constitutes chattel paper under the Uniform Commercial Code, the authoritative copy of the Document shall be the copy
designated by Lessor or its assignee, from time to time, as the copy available for access and review by Lessee, Lessor of its
assignee. All other copies are deemed identified as copies of the authoritative copy. In the event of inadvertent destruction of the
authoritative copy, or corruption of the authoritative copy for any reason or as the result of any cause, the authoritative copy may
be restored from a backup or archive copy, and the restored copy shall become the authoritative copy. At Lessor's option, this
electronic record may be converted into paper form. At such time, such paper copy will be designated or marked as the
authoritative copy of the Document."
4. COMPLETION OF SCHEDULE. Lessee hereby authorizes Lessor to insert or update the serial numbers of the
Products from time to time if necessary.
By signing below, each of the parties hereto agrees to be bound by the terms of the Agreement, this Schedule and
the attached Exhibit "A".
CITY OF ROUND ROCK, TEXAS
(Lessee)
By:
v
(A tho zeWVn tu� / p-
(Name/Title)
(Date)
State of TX.FMVSchedu1e.bg.012313
DELL FINANCIAL SERVICES L.L.C.
(Lessor)
By:
(Authorized Signature)
(Name/Title)
(Date)
Page 2 of 3
LEASE
SCHEDULES
FOLLOW
D"L I Financial Services COPY
CITY OF ROUND ROCK, TEXAS
TRUE LEASE SCHEDULE NO. 001-6667292-001
TO MASTER LEASE AGREEMENT NO. 6667292
THIS SCHEDULE, ENTERED INTO BETWEEN DELL FINANCIAL SERVICES L.L.C. ("Lessor") and CITY OF ROUND ROCK,
TEXAS ("Lessee"), IS SUBJECT TO AND INCORPORATES THE TERMS AND CONDITIONS OF THE MASTER LEASE
AGREEMENT NO. 6667292 ("Agreement") DATED January 9, 2013 BETWEEN DELL FINANCIAL SERVICES L.L.C. ("Lessor')
AND THE STATE OF TEXAS ACTING BY AND THROUGH THE DEPARTMENT OF INFORMATION RESOURCES ("DIR")
UNDER APPENDIX F OF CONTRACT # DIR-SDD-1951 BETWEEN THE DIR AND DELL MARKETING L.P.
Lessor hereby agrees to lease and/or make available to Lessee subject to the terms, conditions and provisions set forth in this
Schedule and in the Agreement, the Products described below. Any capitalized term used herein and not defined herein shall
have the meaning ascribed to it in the Agreement.
PRODUCT DESCRIPTION AND LOCATION: See below or Exhibit "A" attached to and made a part hereof.
PRODUCT SELLER: (Dell Inc.. One Dell Way. Round Rock. TX 786821
Product Description
Product Location
Lessee Purchase
Order No.
Rent"
Primary
Term
Commencement
Date
Mos.
See Exhibit A
See Exhibit A
NROCK0000037691
$20,436.26
36
July 1, 2013
Total Product Acquisition Cost: $65,009.84
Rent is payable: X in advance; in arrears [specify)
Payment Period: _Monthly _ Quarterly __& _Annually _ Other (specify)
Lessee is responsible for applicable taxes, shipping, and other amounts as described in the Agreement, and, with the first payment of Rent,
any prorated Rent, if applicable. Such amounts are further described in Exhibit "A".
" The Commencement Date may be extended for one Payment Period until the Schedule is returned in accordance with the terms stated
the Agreement. Lessor may charge Lessee prorated Rent accruing from the Acceptance Date to the Commencement Date, as such date
finally determined.
TRUE LEASE PROVISIONS
The following provisions shall apply to this Schedule in addition to the provisions in the Agreement:
1. TRUE LEASE: The parties intend for this lease to constitute a true lease of Products under the UCC and all
applicable laws. If this Lease is determined to be a lease intended as security, in no event shall Lessee be obligated to pay any
time price balance differential in excess of the maximum amount permitted by applicable law (as specified herein or the state
where the Products are located, whichever law permits the greater amount). In the event Lessor shall receive anything of value
under a Lease that is deemed interest which would exceed the maximum amount of interest allowed under the law, the excess
amount shall be applied to the reduction of the unpaid time price balance or shall be refunded to Lessee. In order to reduce the
unpaid time price balance, any amount deemed interest shall, to the fullest extent permitted by applicable law, be amortized and
spread uniformly throughout the Lease Term."
2. END OF LEASE OPTIONS.
(a) Provided that no Event of Default has occurred and is continuing, and at least 90 days but no more than 180
days prior to the expiration of the Primary Term (the "Expiration Date'), Lessee will give irrevocable written notice to Lessor of its
intention to either.
(i) purchase all of the Products at the Fair Market Value (as defined below);
(ii) renew the Lease Term for a minimum of six (6) months at a rate and for a term agreed upon by both parties; or
(iii) return all of the Products in accordance with the Agreement.
(b) If Lessee exercises the option to purchase the Products then, upon receipt of payment of the "Fair Market
Value" (defined below), plus applicable taxes, Lessor will sell the Products to Lessee AS IS -WHERE IS, WITHOUT WARRANTY
OR RECOURSE, EXPRESS, IMPLIED OR OTHERWISE, INCLUDING ANY WARRANTIES OF DESIGN, MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE, OR AGAINST INFRINGEMENT. The Fair Market Value purchase price shall be paid
Page 1 of 3
State of TX.FMVSchedu1e.bg.012313
W The foregoing authority and information shall remain true and in full force and effect,
and Lessor shall be entitled to rely upon same, until written notice of the modification, rescission, or revocation
of same, in whole or in part, has been delivered to Lessor, but in any event, shall be effective with respect to
any documents executed or actions taken in reliance upon the foregoing authority prior to the delivery to
Lessor of said written notice of said modification, rescission or revoc tion. 11
IN WITNESS WHEREOF, I have hereunto set my hand this � —day of 20 L�
By:_� .
Name: _UVI �- YVV111�r It�1C
Title: _hAv�
(Clerk r Secretary)
Subscribed to and sworn before me this a day of fA---. 2011.
SARIDON CHAMBLESS
= Notary Public, State of Texas
My Commission Expires
May 17, 2016
My commission expires
DFS Public Secretary -Clerk Certi(icate.012208
'Im 0"
Notary Public