DIR-TSO-4092 ContractDIR Contract No. DIR-TSO-4092
Vendor Contract No. ________________
Department of Information Resources Page 1 of 9 (DIR rev 10/16/17)
STATE OF TEXAS
DEPARTMENT OF INFORMATION RESOURCES
CONTRACT FOR PRODUCTS AND RELATED SERVICES
SHI Government Solutions, Inc.
1. Introduction
A. Parties
This Contract for products and related services is entered into between the State of Texas,
acting by and through the Department of Information Resources (hereinafter “DIR”) with
its principal place of business at 300 West 15th Street, Suite 1300, Austin, Texas 78701,
and SHI Government Solutions, Inc. (hereinafter “Vendor”), with its principal place of
business at 1301 South MoPac ExpresswaySte. 375 Austin,TX 78746.
B. Compliance with Procurement Laws
This Contract is the result of compliance with applicable procurement laws of the State of
Texas. DIR issued a solicitation on the Comptroller of Public Accounts’ Electronic State
Business Daily, Request for Offer (RFO) DIR-TSO-TMP-404, on 6/08/2017, for Value
Added Software Resellers. Upon execution of this Contract, a notice of award for RFO
DIR-TSO-TMP-404 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; Exhibit 1, Vendor’s Response to RFO
DIR-TSO-TMP-404, including all addenda; and Exhibit 2, DIR-TSO-TMP-404, including
all addenda; Exhibit 3, Eligible Customer Exceptions; are incorporated by reference and
constitute the entire agreement between DIR and Vendor governing purchase 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 Exhibit 3, 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provisions shall be deemed to have superseded earlier provisions.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 two (2) years commencing on the last date of approval
by DIR and Vendor. Prior to expiration of the original term, the contract will renew
automatically in two year increments for two additional years, for a total of six years
(6), under the same terms and conditions unless either party provides notice to the
other party 60 days in advance of the renewal date stating that the party wishes to
discuss modification of terms or not renew. Additionally, the parties by mutual
agreement may extend the term for up to ninety (90) additional calendar days.
DIR Contract No. DIR-TSO-4092
Vendor Contract No. ________________
Department of Information Resources Page 2 of 9 (DIR rev 10/16/17)
3. Product and Service Offerings
A. Products
Products available under this Contract are limited to Microsoft Products as specified in
Appendix C, Pricing Index. Vendor may incorporate changes to their product offering;
however, any changes must be within the scope of products awarded based on the
posting described in Section 1.B above. Vendor may not add a manufacturer’s product
line which was not included in the Vendor’s response to the solicitation described in
Section 1.B above.
B. Services
Services available under this Contract are limited to Software services, plus related
technical services as specified in Appendix C, Pricing Index. Vendor may incorporate
changes to their service offering; however, any changes must be within the scope of
services awarded based on the posting described in Section 1.B above.
4. Pricing
Pricing to the DIR Customer shall be as set forth in Appendix A, Section 8, Pricing,
Purchase Orders, Invoices and Payment, and as set forth in Appendix C, Pricing Index, and
shall include the DIR Administrative Fee.
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 three quarters of one percent (75%).
Payment will be calculated for all sales, net of returns and credits. For example, the
administrative fee for sales totaling $100,000 shall be $750.00
B) All prices quoted to Customers shall include the administrative fee. DIR reserves the
right to change this fee upwards or downwards during the term of this Contract, upon
written notice to Vendor without further requirement for a formal contract amendment.
Any change in the administrative fee shall be incorporated in the price to the Customer.
6. Notification
All notices under this Contract shall be sent to a party at the respective address indicated
below.
If sent to the State:
Kelly A Parker, CTPM, CTCM
Director, Cooperative Contracts
Department of Information Resources
300 W. 15th St., Suite 1300
Austin, Texas 78701
Phone: (512) 475-1647
Facsimile: (512) 475-4759
Email: kelly.parker@dir.texas.gov
DIR Contract No. DIR-TSO-4092
Vendor Contract No. ________________
Department of Information Resources Page 3 of 9 (DIR rev 10/16/17)
If sent to the Vendor:
Victoria Pubylski
SHI Government Solutions, Inc.
1301 South Mo-Pac Expressway, Suite 375
Austin, Texas 78746
Phone: (512) 582-6724
Fax: (512) 732-0232
Email: Victoria_Pubylski@shi.com
7. Software License Agreements
A. Shrink/Click-wrap License Agreement
Regardless of any other provision or other license terms which may be issued by
Vendor after the effective date of this Contract, and irrespective of whether any such
provisions have been proposed prior to or after the issuance of a Purchase Order for
products licensed under this Contract, or the fact that such other agreement may be
affixed to or accompany software upon delivery (shrink-wrap), the terms and
conditions set forth in this Contract shall supersede and govern the license terms
between Customers and Vendor. It is the Customer’s responsibility to read the
Shrink/Click-wrap License Agreement and determine if the Customer accepts the
license terms as amended by this Contract. If the Customer does not agree with
the license terms, Customer shall be responsible for negotiating with the reseller
to obtain additional changes in the Shrink/Click-wrap License Agreement
language from the software publisher.
B. Conflicting or Additional Terms
In the event that conflicting or additional terms in Vendor Software License
Agreements, Vendor Shrink/Click Wrap License Agreements, Vendor Service
Agreements or linked or supplemental Vendor documents amend or diminish the rights
of DIR Customers or the State, such conflicting or additional terms shall not take
precedence over the terms of this Contract.
In the event of a conflict, any linked documents may not take precedence over the
printed or referenced documents comprising this contract; provided further that any
update to such linked documents shall only apply to purchases or leases of the
associated Vendor product or service offering after the effective date of the update;
and, provided further, that, if Vendor has responded to a solicitation or request for
pricing, no update of such linked documents on or after the initial date of Vendor’s
initial response shall apply to that purchase unless Vendor directly informs Customer
of the update before the purchase is consummated.
In the event that different or additional terms or conditions would otherwise result from
accessing a linked document, agreement to said linked document shall not be effective
until reviewed and approved in writing by Customer’s authorized signatory.
DIR Contract No. DIR-TSO-4092
Vendor Contract No. ________________
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Vendor shall not [without prior written agreement from Customer’s authorized
signatory,] require any document that: 1) diminishes the rights, benefits, or protections
of the Customer, or that alters the definitions, measurements, or method for determining
any authorized rights, benefits, or protections of the Customer; or 2) imposes additional
costs, burdens, or obligations upon Customer, or that alters the definitions,
measurements, or method for determining any authorized costs, burdens, or obligations
upon Customer. The foregoing requirements do not apply to contracts between
Customer and a software publisher.
8. Eligible Customers
Vendor is authorized to sell awarded products and related services to all eligible DIR
customers, excluding Texas state agencies. Exceptions to this provision are noted in
Exhibit 3, Eligible Customer Exceptions. Appendix A, Standard Terms and Conditions
for Product and Related Services Contracts, Section 3, Definitions Customer is
hereby restated in its entirety and replaced as follows:
A. Customer - any unit of local government, institution of higher education as defined
in Section 2054.003, Texas Government Code, the Electric Reliability Council of
Texas, the Lower Colorado River Authority, a private school, as defined by Section
5.001, Education Code, a private or independent institution of higher education, as
defined by Section 61.003, Education Code, a volunteer fire department, as defined
by Section 152.001, Tax Code, and those state agencies purchasing from a DIR
contract through an Interagency Agreement, as authorized by Chapter 771, Texas
Government Code, any local government as authorized through the Interlocal
Cooperation Act, Chapter 791, Texas Government Code, and the state agencies and
political subdivisions of other states as authorized by Section 2054.0565, Texas
Government Code and, except for telecommunications services under Chapter
2170, Texas Government Code, assistance organizations as defined in Section
2175.001, Texas Government Code to mean:
1) A non-profit organization that provides educational, health or human
services or assistance to homeless individuals;
2) A nonprofit food bank that solicits, warehouses, and redistributes edible
but unmarketable food to an agency that feeds needy families and
individuals;
3) Texas Partners of the Americas, a registered agency with the Advisory
Committee on Voluntary Foreign Aid, with the approval of the Partners
of the Alliance Office of the Agency for International Development;
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;
DIR Contract No. DIR-TSO-4092
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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.
9. Change of Channel Partner
For all agreements, enrollments and tenant enrollments associated with DIR’s Data
Center Services (DCS) program, and any other Texas state agency, the authorized
Reseller and Channel Partner transition to a new value-added reseller will be effective on
the date stated in the Change of Channel Partner and Change of Direct and Large
Account Reseller amendments executed by all Parties. Vendor agrees to sign and return
the Change of Channel Partner amendments within 5 days of receipt.
10. Authorized Exceptions
1. Appendix A, Standard Terms and Conditions for Product and Related Services
Contracts.
B. Contract, Section 3, Definitions, B) Compliance Check is hereby restated in its
entirety as follows:
B) Compliance Check – an audit of Vendor’s, to the extent reasonably necessary, to
verify performance hereunder. Vendor’s audit may be performed by, but not limited to,
a third-party auditor, DIR Internal Audit department, DIR contract management staff
or their designees.
C. Contract, Section 5, Intellectual Property Matters, Section A Definitions, Item 1,
Work Product is hereby restated in its entirety as follows:
1)“ Work Product” means any and all tangible and intangible output of Vendor’s Services
produced by Vendor for Customer under a Statement of Work issued pursuant to this
Contract, including any and all tangible or intangible items or things that have been or
will be prepared, created, developed for Customer, including but not limited to any (i)
works of authorship (such as manuals, instructions, printed material, graphics, artwork, images, illustrations, photographs, flow charts, notes, writings, data, information,
multimedia files, other written or machine readable expression of such works fixed in
any tangible media, and all other copyrightable works), (ii) any copies, and similar or
derivative works to any of the foregoing, (iii) documentation and materials, and (iv) all
Intellectual Property Rights in any of the foregoing, and which are or were created, prepared, developed, invented or conceived for the use or benefit of Customer in
connection with this Contract or a Statement of Work, or with funds appropriated by or
for Customer or Customer’s benefit: (a) by any Vendor personnel or Customer
personnel, or (b) any Customer personnel who then became personnel to Vendor or any
of its affiliates or subcontractors, where, although creation or reduction-to-practice is
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completed while the person is affiliated with Vendor or its personnel, any portion of
same was created, invented or conceived by such person while affiliated with Customer.
D. Contract, Section 5, Intellectual Property Matters, A Definitions, Item 2)
“Intellectual Property Rights” is hereby restated in its entirety as follows:
2) “Intellectual Property Rights” means the worldwide legal rights or interests
evidenced by or embodied in: (i) any compilations, diagrams, layouts, mask works, idea,
design, concept, personality right, method, process, formula, technique, apparatus,
invention, discovery, or improvement, including any patents, trade secrets, and know-
how, show-how, research and development; (ii) any work of authorship, including any
copyrights, moral rights or neighboring rights; (iii) any software (including routines and
sub routines, trademark, service mark, logo, Confidential Information, pre-existing and
independently developed materials, trade dress, trade name, or other indicia of source
or origin; (iv) domain name registrations; and (v) any other proprietary or similar rights.
The Intellectual Property Rights of a party include all worldwide legal rights or interests
that the party may have acquired by assignment or license with the right to grant
sublicenses.
E. Contract, Section 5, Intellectual Property Matters, A Definitions, Item 5)
“Vendor IP” is hereby restated in its entirety as follows:
5) “Vendor IP” shall mean all tangible or intangible items or things, including the
Intellectual Property Rights therein, created or developed by Vendor (a) prior to
providing any Services or Work Product to Customer and prior to receiving any
documents, materials, information or funding from or on behalf of Customer relating
to the Services or Work Product, or (b) after the Effective Date of the Contract if such
tangible or intangible items or things do not include (i) any Confidential Information
of Customer; or (ii) any ideas, concepts, know-how, skills, methodologies, or
techniques which (A) are developed solely by Customer, or (B) are unique to Customer
or its applications and are developed for inclusion in the Work Product.
F. Contract, Section 5, Intellectual Property Matters, B Ownership is hereby restated
in its entirety as follows:
Vendor owns all right, title, and interest the Vendor IP. As between Vendor and
Customer, and upon payment by Customer, of any undisputed invoice of vendor directly
related to a specific element of work product, that absent of the Work Product and
Intellectual Property Rights therein are and shall be owned exclusively by Customer, and
not Vendor. Vendor specifically agrees that the Work Product shall be considered “works
made for hire” and that the Work Product shall, upon creation, be owned exclusively by
Customer. Subject to Vendor’s confidentiality obligations to customer; Nothing in this
Contract precludes Vendor from providing services similar to those described in this
Contract or any Statement of Work to any other customers. To the extent that the Work
Product, under applicable law, may not be considered works made for hire, Vendor
hereby agrees that the Contract effectively transfers, grants, conveys, assigns, and
relinquishes exclusively to Customer all right, title and interest in and to all ownership
rights in the Work Product, and all Intellectual Property Rights in the Work Product,
without the necessity of any further consideration, and Customer shall be entitled to
obtain and hold in its own name all Intellectual Property Rights in and to the Work
Product. Vendor acknowledges that Vendor and Customer do not intend Vendor to be a
DIR Contract No. DIR-TSO-4092
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joint author of the Work Product within the meaning of the Copyright Act of 1976.
Customer shall have access, during normal business hours (Monday through Friday,
8AM to 5PM) and upon reasonable prior notice to Vendor, to all necessary and relevant
Vendor materials, premises and computer files containing the Work Product Vendor and
Customer, as appropriate, will cooperate with one another and execute such other
documents as may be reasonably appropriate to achieve the objectives herein. No license
or other right is granted hereunder to any Third-Party IP, except as may be incorporated
in the Work Product by Vendor.
G. Contract, Section 5, Intellectual Property Matters, G) Return of Materials
Pertaining to Work Product is hereby restated in its entirety as follows:
Upon the request of Customer, but in any event upon termination or expiration of this
Contract or a Statement of Work, Vendor shall surrender to Customer all documents
and things necessary to the understanding and operation of the work product and all
things pertaining to the Work Product, including but not limited to drafts, memoranda,
notes, records, drawings, manuals, reports, data, and all other documents or materials
(and copies of same) generated or developed by Vendor or furnished by Customer to Vendor, including all materials embodying the Work Product, any Customer
confidential information, or Intellectual Property Rights in such Work Product,
regardless of whether complete or incomplete. This section is intended to apply to all
Work Product as well as to all documents and things furnished to Vendor by Customer
or by anyone else that pertain to the Work Product.
H. Contract, Section 5, Intellectual Property Matters, K) License to Customer is hereby restated in its entirety as follows:
If Vendor includes any Vendor IP , then Vendor grants to Customer, a limited, perpetual, irrevocable, royalty free, non-exclusive license, solely for the Customer’s internal
business purposes, to use, copy, modify, display, perform (by any means), transmit and
prepare derivative works of any Vendor IP, solely to the extent such Vendor IP is
necessary to use the Work Product, embodied in or delivered to Customer in conjunction
with the Work Product. The foregoing license includes the right to sublicense third
parties, solely for the purpose of engaging such third parties to assist or carryout
Customer’s internal business use of the Work Product. Except for the preceding license, all rights in Vendor IP remain in Vendor.
I. Contract, Section 5, Intellectual Property Matters, L) Vendor Development
Rights is hereby restated in its entirety as follows:
To the extent not inconsistent with Customer’s rights in the Work Product or as set forth
herein, nothing in this Contract shall preclude Vendor from developing for itself, or for
others, materials which are competitive with those produced as a result of the Services
provided hereunder, provided that no Work Product is utilized, and no Intellectual
Property Rights of Customer therein are infringed by such competitive materials. To the
extent that Vendor wishes to use the Work Product, or acquire licensed rights in certain
Intellectual Property Rights of Customer therein in order to offer competitive goods or
services to third parties, Vendor and Customer agree to negotiate in good faith regarding
an appropriate license and royalty agreement to allow for such. Customer shall not and
shall not permit any affiliates or third party to translate, reverse engineer, decompile,
recompile, update, or modify any Vendor IP. If Customer provides any input, comments
or suggestions regarding the Services, Vendor IP, or Vendor’s business or technology
DIR Contract No. DIR-TSO-4092
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plans, including comments or suggestions regarding the possible creation, development,
modification, correction, improvement or enhancement of the Services or Vendor IP
(collectively “Feedback”), then Customer shall grant and hereby grants Vendor a
perpetual, nonexclusive, world-wide, royalty free, license to use such Feedback without
restriction.
J. Contract, Section 10, Vendors Responsibibility, A Indemnification, Item 3
Infringements is hereby restated in its entirety as follows: 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 direct damages
arising from all third party claims that the Work Product involve infringement of any
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. SHALL BE LIABLE TO PAY
ALL COSTS OF DEFENSE INCLUDING ATTORNEYS' FEES. THE DEFENSE
SHALL BE COORDINATED BY VENDOR WITH THE OFFICE OF THE
ATTORNEY GENERAL WHEN TEXAS STATE AGENCIES ARE NAMED DEFENDANTS IN ANY LAWSUIT AND VENDOR MAY NOT AGREE TO ANY
SETTLEMENT WITHOUT FIRST OBTAINING THE CONCURRENCE FROM
THE OFFICE OF THE ATTORNEY GENERAL.
b) Vendor shall have no liability under this section if the alleged infringement is
caused in whole or in part by: (i) use of the product or service for a purpose or in a
manner for which the product or service was not designed, (ii) any modification made
to the product without Vendor’s written approval, (iii) any modifications made to the
product by the Vendor pursuant to Customer’s specific instructions, (iv) any
intellectual property right owned by or licensed to Customer, (v) Customer’s
combination or use of the Work Product or Service with software, services, or products
developed by Customer or third parties or (vi) any use of the product or service by
Customer that is not in conformity with the terms of any applicable license agreement.
c) If Vendor becomes aware of an actual or potential claim, or Customer provides
Vendor with notice of an actual or potential claim, Vendor may (or in the case of an
injunction against Customer, shall), at Vendor’s sole option and expense: (i) procure
for the Customer the right to continue to use the affected portion of the product or
service, (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) replace the Work Product or Services at no cost to Customer with
non-infringing substitutes provided that the substitutes do not entail a material
diminution in function in Customer’s reasonable estimation.
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DIR Contract No. DIR-TSO-4092
Vendor Contract No. ________________
Department of Information Resources Page 9 of 9 (DIR rev 10/16/17)
This Contract is executed to be effective as of the date of last signature.
SHI Government Solutions, Inc.
Authorized By: Signature on File
Name: Natalie Castagno
Title: Director of Response Team
Date: 2/20/2018
The State of Texas, acting by and through the Department of Information Resources
Authorized By: Signature on File
Name: Hershel Becker
Title: Chief Procurement Officer
Date: 2/21/2018
Office of General Counsel: David Brown
Signature on File 2/21/2018
Exhibit 3 to DIR‐TSO‐4092
Eligible Customers Exceptions
Vendor is authorized, through the applicable agreement end date stated below, to conduct all business
necessary to meet agency requirements of current and existing Microsoft Enterprise License
Agreements (EA) for the following agencies and pertaining to the agency’s agreement numbers listed
herein.
Agreement
Number Primary Customer Name
Primary Public
Customer
Number
Program
License
Agreement
Type
Agreement
Status
Agreement
Start Date
Agreement
End Date
5069791
Texas Health & Human
Services Commission on
behalf of itself and its
affiliates B7FF95C2
Enterprise
Subscription 6 Government Active 12/1/2015 11/30/2018
6365385
Texas HHS Commission
on behalf of itself and its
affiliates‐5069791‐HHSC
Test Tenant B34833B3
Enterprise
Subscription 6 Government Active 12/1/2015 11/30/2018
4944569 Texas Legislative Council 9C6CED4B Enterprise 6 Government Active 12/1/2015 11/30/2018
5000039 Texas Legislative Council BF449D30 Enterprise 6 Government Active 12/1/2015 11/30/2018
7617237 Texas Medical Board 905EB7DD Enterprise 6 Government Active 1/1/2016 12/31/2018
5679409
Texas Office of Court
Administration AB73A50F Enterprise 6 Government Active 1/1/2016 12/31/2018
6609840
Texas Office of Court
Administration BAC04E4C Enterprise 6 Government Active 1/1/2016 12/31/2018
7610597
TX Commission on Fire
Protection 8F83B4A3 Enterprise 6 Government Active 8/28/2015 8/31/2018