DIR-TSO-3420 ContractDIR Contract No. DIR-TSO-3420
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STATE OF TEXAS
DEPARTMENT OF INFORMATION RESOURCES
CONTRACT FOR PRODUCTS AND RELATED SERVICES
AT&T CORP
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 AT&T Corp (hereinafter “Vendor”), with its principal place of business at 208 S.
Akard St. Dallas, TX 75203.
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-234, on December 9, 2015, for
Hardware, Software and Services for Wireless Voice, Data, Pagers and Mobile Satellite
Voice. Upon execution of this Contract, a notice of award for RFO DIR-TSO-TMP-234
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-234, including all addenda; and Exhibit 2, RFO DIR-TSO-TMP-234,
including all addenda; 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 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actually conflict, the more recent provisions shall be deemed to have superseded earlier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, DIR and Vendor may extend
the Contract, upon mutual agreement, for up to two (2) optional one-year terms.
Additionally, the parties by mutual agreement may extend the term for up to ninety (90)
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additional calendar days.
3. Product and Service Offerings
A. Products
Products available under this Contract are limited to Wireless Voice and Data Products
required for services offered in 3.B. below 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 Wireless Voice and Data 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. Telecommunications Fees, Taxes, and
Surcharges may not be included on Customer invoices unless they were submitted with
response and verified as required by statute.
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 two percent (2%). Payment will be
calculated for all sales, net of returns and credits. For example, the administrative fee for
sales totaling $100,000 shall be $2,000.
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.
Such Administrative Fees may change over time and DIR will provide Vendor with ninety
(90) days advance written notice of such change.
6. Notification
All notices under this Contract shall be sent to a party at the respective address indicated
below.
If sent to the State:
Shannon Kelley, CTPM, CTCM
Manager, Enterprise Contracts
Department of Information Resources
300 W. 15th St., Suite 1300
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Austin, Texas 78701
Phone: (512) 463-7666
Facsimile: (512) 475-4759
Email: shannon.kelley@dir.texas.gov
If sent to the Vendor:
Marcus Montemayor
AT&T Corp
712 E. Huntland Dr. Rm 313
Austin, Texas 78752
Phone: (512) 421-5160
Facsimile: (512) 870-4388
Email: marcus.montemayor@att.com
7. Authorized Exceptions to Contracts for Products and Related Services and Appendix
A, Standard Terms and Conditions for Product and Related Services Contracts.
A. Appendix A, Section 3. Definitions, B. Compliance Check, is hereby replace in it
entirety with the following:
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. No third party or DIR designee
shall be a direct commercial Vendor Competitor.
B. Appendix A, Section 3. Definitions, I. Affiliate, is hereby added:
“Affiliate” of a party means any entity that controls, is controlled by, or is under
common control with, such party.
C. Appendix A, Section 3. Definitions, J. Damages, is hereby added:
“Damages” means collectively all injury, damage, liability, loss, penalty, interest and
expense incurred.
D. Appendix A, Section 3. Definitions, K. Effective Date, is hereby added:
“Effective Date” means, for any Service Agreement, the date on which the last party
signs the Service Agreement unless a later date is required by regulation or law.
E. Appendix A, Section 3. Definitions, L. Service Agreement, is hereby added:
“Service Agreement” means the agreement executed by Customer for Services
provided under this Contract, including any Statements of Work and/or Schedules.
F. Appendix A, Section 3. Definitions, M. Service, is hereby added:
“Service” means a service (including Equipment) provided under this Contract.
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G. Appendix A, Section 3. Definitions, N. Site, is hereby added:
“Site” means Customer’s physical location, including Customer’s collocation space on
Vendor’s, its Affiliate’s, or subcontractor’s property, where Vendor installs or provides
a Service.
H. Appendix A, Section 4. General Provisions, B. Modification of Contract Terms
and/or Amendments, 2) is hereby replaced in its entirety with the following:
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. Customers shall not have the authority to
modify the terms of the Contract; however, (a) 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 (b) custom terms and conditions that do not
conflict with the Contract (as mutually agreed by Vendor and Customer in writing) may
be added in a Service Agreement 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.
I. Appendix A, Section 4. General Provisions, F. Choice of Law, is hereby replaced in
its entirety with the following:
The laws of the State shall govern the construction and interpretation of the Contract.
Nothing in the Contract or its Appendices shall be construed to waive the State’s
sovereign immunity; or to waive any rights or defenses of Vendor.
J. Appendix A, Section 5. Intellectual Property Matters, is hereby replaced in its
entirety with the following:
This Contract does not contemplate, authorize or support the development or
acquisition of custom software products or services. If Vendor seeks to offer such
products or services to DIR Customers, DIR and Vendor must amend this Contract to
include such services.
K. Appendix A, Section 7. Contract Fulfillment and Promotion, E. Internet Access to
Contract and Pricing Information, 5) Use of Access Data Prohibited is hereby
replaced in its entirety with the following:
If Vendor stores, collects or maintains data electronically as a condition of accessing
Contract Information, which shall be defined as all information contained in this
Agreement, 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
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the laws of the State and Vendor shall not restrict access to Contract terms and
conditions including pricing, i.e., through use of restrictive technology or passwords.
L. Appendix A, Section 8. Pricing, Purchase Orders, Invoices, and Payments, C.
Customer Price, 3) is hereby replaced in its entirety with the following:
If pricing for products or services available under this Contract are provided at a lower
price to: (i) an eligible Texas Customer who is not purchasing those products or
services under this Contract or (ii) to any other Texas customer under the same terms
and conditions provided for the State for the same commodities and services under this
contract, then the available Customer Price in this Contract shall be adjusted to that
lower price. This requirement applies to products or services quoted to Texas
Customers by Vendor or its resellers for a quantity of one (1) under like terms and
conditions, and does not apply to volume or special pricing purchases or to any
purchases outside the State of Texas. This Contract shall be amended within ten (10)
business days to reflect the lower price.
M. Appendix A, Section 8. Pricing, Purchase Orders, Invoices, and Payments, F.
Back-Billing is hereby replaced in its entirety with the following:
Customer will not be required to pay charges for Services initially invoiced more than
6 months after close of the billing period in which the charges were incurred, except
for calls assisted by an automated or live operator. If Customer disputes a charge,
Customer will provide notice to Vendor specifically identifying the charge and the
reason it is disputed within 6 months after the date of the invoice in which the disputed
charge initially appears, or Customer waives the right to dispute the charge. The portion
of charges in dispute may be withheld and will not be considered overdue until Vendor
completes its investigation of the dispute, but Customer may incur late payment fees in
accordance with Appendix A, Section 8N (Payments). Following Vendor’s notice of
the results of its investigation to Customer, payments shall be in accordance with
Appendix A, Section 8N. Vendor will reverse any late payment fees that were invoiced
in error within 30 business days.
N. Appendix A, Section 8. Pricing, Purchase Orders, Invoices, and Payments, I. Tax-
Exempt is hereby replaced in its entirety with the following:
As per Section 151.309, Texas Tax Code, Customers under this Contract are exempt
from the assessment of State sales, use and excise taxes. Further, Customers under this
Contract are exempt from Federal Excise Taxes, 26 United States Code Sections
4253(i) and (j).
Assistance organizations may be exempt from the assessment of State sales, use and
excise taxes under Section 151.310, Texas Tax Code. Vendor is responsible for
determining applicable taxes on assistance organizations. DIR makes no
representation, qualified to participate in this Contract pursuant to Section 2170.004(5),
Texas Government Code. Vendor must request and receive any
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exemption certificates that may apply from each assistance organization directly.
O. Appendix A, Section 8. Pricing, Purchase Orders, Invoices, and Payments, K.
Changes to Prices, 2) is hereby replaced in its entirety with the following:
Price decreases shall take effect automatically during the term of this Contract and shall
be passed onto the Customer immediately. This section shall not require Vendor to
revise prices for products where Vendor has already placed an order.
P. Appendix A, Section 9. Contract Administration, B. Reporting and
Administrative Fees, 4) DIR Administrative Fee, a) is hereby replaced in its entirety
with the following:
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 fifteenth (15th) calendar day after the close
of the previous month period. DIR may change the amount of the administrative fee
upon ninety (90) calendar days written notice to Vendor without the need for a formal
contract amendment.
Q. Appendix A, Section 9. Contract Administration, C. Records and Audit, 3) is
hereby replaced in its entirety with the following:
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) calendar days
of receipt.
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R. Appendix A, Section 10. Vendor Responsibilities, A. Indemnification, 2) Acts or
Omissions is hereby replaced in its entirety with the following:
Vendor shall indemnify and hold harmless the State of Texas and Customers, AND/OR
THEIR OFFICERS, AGENTS, EMPLOYEES, REPRESENTATIVES,
CONTRACTORS, ASSIGNEES, AND/OR DESIGNEES FROM ANY AND ALL
THIRD PARTY LIABILITY, ACTIONS, CLAIMS, DEMANDS, OR SUITS, AND
ALL RELATED COSTS, ATTORNEY FEES, AND EXPENSES arising out of, or
resulting from any negligent, reckless, willful, intentional, or otherwise wrongful 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. THE DEFENSE SHALL BE
COORDINATED BY VENDOR WITH THE OFFICE OF THE ATTORNEY
GENERAL WHEN TEXAS STATE AGENCIES ARE NAMED DEFENDANTS IN
ANY LAWSUIT AND VENDOR MAY NOT AGREE TO ANY SETTLEMENT
WITHOUT FIRST OBTAINING THE CONCURRENCE FROM THE OFFICE OF
THE ATTORNEY GENERAL. VENDOR AND THE CUSTOMER AGREE TO
FURNISH TIMELY WRITTEN NOTICE TO EACH OTHER OF ANY SUCH
CLAIM.
S. Appendix A, Section 10. Vendor Responsibilities, A. Indemnification, is hereby
replaced in its entirety with the following:
a) Vendor shall indemnify and hold harmless the State of Texas and Customers,
AND/OR THEIR EMPLOYEES, AGENTS, REPRESENTATIVES,
CONTRACTORS, AND/OR PERMITTED ASSIGNEES, 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 (“SERVICES”) PURSUANT TO
THIS CONTRACT, but not in circumstances where the claimed infringement arises
out of or results from: (a) Customer’s, its Affiliate’s or a User’s content; (b)
modifications to the Service by Customer, its Affiliates or third parties, or combinations
of the Service with any services or products not provided by Vendor; (c) Vendor’s
adherence to Customer’s or its Affiliate’s written requirements; or (d) use of the Service
in violation of this Contract (including the Service Agreement). VENDOR AND THE
CUSTOMER AGREE TO FURNISH TIMELY WRITTEN NOTICE TO EACH
OTHER OF ANY SUCH CLAIM. VENDOR SHALL BE LIABLE TO PAY ALL
REASONABLE 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
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which the product or service was not designed, (ii) any modification made to the
product without Vendor’s written approval, (iii) any modifications made to the product
by the Vendor pursuant to Customer’s specific instructions, (iv) any intellectual
property right owned by or licensed to Customer, or (v) any use of the product or
service by Customer that is not in conformity with the terms of any applicable license
agreement.
c) If Vendor becomes aware of an actual or potential claim, or Customer provides
Vendor with notice of an actual or potential claim, Vendor may (or in the case of an
injunction against Customer, shall), at Vendor’s sole option and expense: (i) procure
for the Customer the right to continue to use the affected portion of the service, or (ii)
modify or replace the affected portion of the service with functionally equivalent or
superior service so that Customer’s use is non-infringing. If neither option (i) nor (ii)
are reasonably available, Vendor may terminate the affected service without liability
other than as stated in section a), above.
T. Appendix A, Section 10. Vendor Responsibilities, B. Taxes/Worker’s
Compensation/UNEMPLOYMENT INSURANCE, is hereby replaced in its entirety
with the following:
1) VENDOR AGREES AND ACKNOWLEDGES THAT DURING THE
EXISTENCE OF THIS CONTRACT, VENDOR SHALL BE ENTIRELY
RESPONSIBLE FOR THE LIABILITY AND PAYMENT OF VENDOR’S AND
VENDOR'S EMPLOYEES' TAXES OF WHATEVER KIND, ARISING OUT OF
THE PERFORMANCES IN THIS CONTRACT. VENDOR AGREES TO COMPLY
WITH ALL STATE AND FEDERAL LAWS APPLICABLE TO ANY SUCH
PERSONS, INCLUDING LAWS REGARDING WAGES, TAXES, INSURANCE,
AND WORKERS' COMPENSATION. THE CUSTOMER AND/OR THE STATE
SHALL NOT BE LIABLE TO THE VENDOR ITS EMPLOYEES, AGENTS, OR
OTHERS FOR THE PAYMENT OF TAXES OR THE PROVISION OF
UNEMPLOYMENT INSURANCE AND/OR WORKERS' COMPENSATION OR
ANY EMPLOYMENT BENEFIT AVAILABLE TO A STATE EMPLOYEE OR
EMPLOYEE OF ANOTHER GOVERNMENTAL ENTITY CUSTOMER.
2) VENDOR AGREES TO INDEMNIFY AND HOLD HARMLESS CUSTOMERS,
THE STATE OF TEXAS AND/OR THEIR EMPLOYEES, AGENTS,
REPRESENTATIVES, CONTRACTORS, ASSIGNEES AND/OR DESIGNEES,
FROM ANY AND ALL LIABILITY, ACTIONS, CLAIMS, DEMANDS, OR SUITS,
AND ALL RELATED COSTS, REASONABLE ATTORNEY FEES, AND
EXPENSES, RELATING TO TAX LIABILITY OF VENDOR, UNEMPLOYMENT
INSURANCE AND/OR WORKERS' COMPENSATION IN ITS PERFORMANCE
UNDER THIS CONTRACT. VENDOR SHALL BE LIABLE TO PAY ALL
REASONABLE COSTS OF DEFENSE INCLUDING REASONABLE
ATTORNEYS' FEES. THE DEFENSE SHALL BE COORDINATED BY VENDOR
WITH THE OFFICE OF THE ATTORNEY GENERAL WHEN TEXAS STATE
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AGENCIES ARE NAMED DEFENDANTS IN ANY LAWSUIT AND VENDOR
MAY NOT AGREE TO ANY SETTLEMENT WITHOUT FIRST OBTAINING THE
CONCURRENCE FROM THE OFFICE OF THE ATTORNEY GENERAL.
VENDOR AND THE CUSTOMER AGREE TO FURNISH TIMELY WRITTEN
NOTICE TO EACH OTHER OF ANY SUCH CLAIM.
U. Appendix A, Section 10. Vendor Responsibilities, H. Confidentiality, is hereby
updated by adding the following:
3) Confidential Information. Confidential Information means: (a) information the
parties share with each other in connection with this Agreement or in anticipation of
providing Services under this Agreement, but only to the extent identified as
Confidential Information in writing; and (b) except as may be required by applicable
law or regulation, the terms of this Agreement and any pricing or other proposals.
a) Obligations. Each party’s Confidential Information will, permanently following its
disclosure to the other party (i) be held in confidence; and (ii) not be disclosed, except
to the receiving party’s employees, agents and contractors having a need-to-know (but
only if such agents and contractors are not direct competitors of the other party and
agree in writing to use and disclosure restrictions as restrictive as this Section 9), or to
the extent compelled to be revealed by law (including the Texas Public Information
Act), governmental authority or legal process (but only if such disclosure is limited to
that which is compelled by such legal process and prompt notice is provided to the
disclosing party to the extent practicable and not prohibited by law or legal process).
These obligations will survive the expiration or termination of the Contract or any
Purchase Order under it.
b) Exceptions. The restrictions in this Section will not apply to any information that:
(a) is independently developed by the receiving party; (b) is lawfully received by the
receiving party free of any obligation to keep it confidential; or (c) becomes generally
available to the public other than by breach of this Agreement.
c) Privacy Laws. Each party is responsible for complying with the privacy laws
applicable to its business. If Customer does not want Vendor personnel to comprehend
Customer data to which they may have access in performing Services, Customer
should encrypt such data so that it will be unintelligible. Until directed otherwise by
Customer in writing, if Vendor designates a dedicated account representative as
Customer’s primary contact with Vendor, Customer authorizes that representative to
discuss and disclose Customer’s customer proprietary network information (CPNI) to
any employee or agent of Customer without a need for further authentication or
authorization.
V. Appendix A, Section 10. Vendor Responsibilities, I. Security of Premises,
Equipment, Data and Personnel, is hereby replaced in its entirety with the following:
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
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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. The Customer will give Vendor adequate notice any
applicable security requirements.
W. Appendix A, Section 10. Vendor Responsibilities, K. Limitation of Liability, is
hereby replaced in its entirety with the following:
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, none of the parties shall be
liable to the other for punitive, special, or consequential damages, even if it is advised
of the possibility of such damages; and ii) Vendor’s liability for damages of any kind
to the Customer shall be limited to the total amount paid to Vendor under the Contract
during the twelve months immediately preceding the accrual of the claim or cause of
action. However, this monetary limitation of Vendor’s liability (as set forth in item (ii)
above) shall not apply to claims of patent, trademark, or copyright infringement;
indemnification requirements under this Contract; and violation of State or Federal
law including but not limited to disclosures of confidential information and any
penalty of any kind lawfully assessed as a result of such violation.
X. Appendix A, Section 10. Vendor Responsibilities, L. Overcharges, is hereby
replaced in its entirety with the following:
Vendor hereby assigns to DIR any and all claims against its suppliers for overcharges
associated with products and services provided to DIR and Customers under this
contract if such claims arise under the antitrust laws of the United States, 15 U.S.C.A.
Section1, et seq. (1973), as amended and the antitrust laws of the State, Section 15.01,
et seq, Texas Business & Commerce Code.
Y. Appendix A, Section 10. Vendor Responsibilities, N. Required Insurance
Coverage, is hereby replaced in its entirety with the following:
As a condition of this Contract with DIR, Vendor shall provide evidence satisfactory
to DIR and/or the Customer of the listed insurance coverage within 5 business days of
execution of the Contract if the Vendor is awarded services which require that
Vendor’s employees perform work at any Customer premises and/or use employer
vehicles to conduct work on behalf of Customers. In addition, when engaged by a
Customer to provide services on Customer premises, the Vendor shall, at its own
expense, secure and maintain the insurance coverage specified herein, and shall
provide proof of such insurance coverage to the related Customer within five (5)
business days following the execution of the Purchase Order. Vendor may not begin
performance under the Contract and/or a Purchase Order until such proof of insurance
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coverage is provided to, and approved by, DIR and the Customer. All required
insurance must be issued by companies that are at least rated A minus by A.M. Best
eligible to do business in the State of Texas, and authorized to provide the
corresponding coverage. The Customer and DIR will be required as Additional
Insureds on all required liability coverage. Required coverage must remain in effect
through the term of the Contract and each Purchase Order issued to Vendor there
under. The acceptable insurance provisions are as follows:
1) Commercial General Liability
Commercial General Liability must include a combined single limit of
$1,000,000 per occurrence for coverage A, B, & C including products/completed
operations, where appropriate, with a separate aggregate limit of $2,000,000.
Agencies may require additional Umbrella/Excess Liability insurance. The
policy shall contain the following provisions:
a) Blanket contractual liability coverage;
b) Independent Contractor coverage;
c) State of Texas, DIR and Customer included as an additional insured; and
d) 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 $1,000,000 bodily injury per accident,
$1,000,000 bodily injury disease policy limit and $1,000,000 per disease per
employee.
3) Business Automobile Liability Insurance
Business Automobile Liability Insurance must cover all owned, non-owned and
hired vehicles with a 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; and
b) Additional Insured.
Vendor shall provide DIR at least thirty days’ advanced written notice of
cancellation of any required coverage that is not replaced.
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Z. Appendix A, Section 10. Vendor Responsibilities, T. Deceptive Trade Practices;
Unfair Business Practices, is hereby replaced in its entirety with the following:
Vendor represents and warrants that (i) neither Vendor nor any of its Subcontractors
within the last three years have been found liable in any administrative hearing,
litigation or other proceedings of Deceptive Trade Practices violations as defined
under Chapter 17, Texas Business & Commerce Code, and (ii) it has no officers who
have been found liable in any administrative hearing, litigation or other proceedings
of Deceptive Trade Practices violations under Chapter 17, Texas Business and
Commerce Code.
AA. Appendix A, Section 10. Vendor Responsibilities, X. Disclaimer of Warranties,
is hereby added as follows:
Disclaimer of Warranties. EXCEPT AS SET FORTH IN SECTION 10. A. 3)
INFRINGEMENTS, VENDOR MAKES NO REPRESENTATIONS OR
WARRANTIES, EXPRESS OR IMPLIED, AND SPECIFICALLY DISCLAIMS
ANY REPRESENTATION OR WARRANTY OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, OR
ANY WARRANTY ARISING BY USAGE OF TRADE OR COURSE OF
DEALING. FURTHER, VENDOR MAKES NO REPRESENTATION OR
WARRANTY THAT TELEPHONE CALLS OR OTHER TRANSMISSIONS WILL
BE ROUTED OR COMPLETED WITHOUT ERROR OR INTERRUPTION
(INCLUDING CALLS TO 911 OR ANY SIMILAR EMERGENCY RESPONSE
NUMBER), OR GUARANTEE REGARDING NETWORK SECURITY, THE
ENCRYPTION EMPLOYED BY ANY SERVICE, THE INTEGRITY OF ANY
DATA THAT IS SENT, BACKED UP, STORED OR SUBJECT TO LOAD
BALANCING, OR THAT VENDOR’S SECURITY PROCEDURES WILL
PREVENT THE LOSS OR ALTERATION OF, OR IMPROPER ACCESS TO,
CUSTOMER’S DATA AND CONFIDENTIAL INFORMATION.
BB. Appendix A, Section 10. Vendor Responsibilities, Y. Disclaimer of Liabilities,
is hereby added as follows:
Disclaimer of Liability. VENDOR WILL NOT BE LIABLE FOR ANY DAMAGES,
EXCEPT TO THE EXTENT CAUSED BY VENDORS’S GROSS NEGLIGENCE
OR WILLFUL MISCONDUCT, ARISING OUT OF OR RELATING TO:
INTEROPERABILITY, ACCESS OR INTERCONNECTION OF THE SERVICES
WITH APPLICATIONS, EQUIPMENT, SERVICES, CONTENT, OR NETWORKS
PROVIDED BY CUSTOMER OR THIRD PARTIES; SERVICE DEFECTS,
SERVICE LEVELS, DELAYS, OR INTERRUPTIONS (EXCEPT FOR LIABILITY
FOR SUCH EXPLICITLY SET FORTH IN THIS AGREEMENT OR A SERVICE
AGREEMENT); ANY INTERRUPTION OR ERROR IN ROUTING OR
COMPLETING CALLS OR OTHER TRANSMISSIONS (INCLUDING 911
CALLS OR ANY SIMILAR EMERGENCY RESPONSE NUMBER); LOST OR
ALTERED MESSAGES OR TRANSMISSIONS; OR UNAUTHORIZED ACCESS
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TO OR THEFT, ALTERATION, LOSS, OR DESTRUCTION OF CUSTOMER’S,
ITS AFFILIATE’S, USERS’, OR THIRD PARTIES’ APPLICATIONS, CONTENT,
DATA, PROGRAMS, CONFIDENTIAL INFORMATION, NETWORK, OR
SYSTEMS.
CC. Appendix A, Section 11. Contract Enforcement, B. Termination, 1)
Termination for Non-Appropriation is hereby replaced in its entirety with the
following:
In the event Customer is unable to obtain the necessary appropriations or funding for
the Services, Customer may terminate the Agreement without liability for early
termination charges upon the following conditions: (i) Customer has taken all actions
necessary to obtain adequate appropriations or funding; and (ii) despite Customer’s
best efforts funds have not been appropriated and are otherwise unavailable to pay for
the Services. Customer must provide Vendor thirty (30) days’ written notice of its
intent to terminate under this section. Termination for failure to obtain necessary
appropriations or funding shall be effective as of the last day for which funds were
appropriated or otherwise made available. If Customer terminates the Agreement
under this Section, Customer agrees as follows: (i) it will pay all amounts due for
Services incurred through date of termination; and (ii) it will not contract with any
other provider for the same or substantially similar services or equipment for a period
equal to the original Term.
DD. Appendix A, Section 11. Contract Enforcement, B. Termination, 4)
Termination for Cause, b) Purchase Order is hereby replaced in its entirety with the
following:
b) Purchase Order or Service Agreement
Customer or Order Fulfiller may terminate a Purchase Order or Service Agreement
upon the occurrence of a material breach of any term or condition: (i) of the Contract,
or (ii) included in the Purchase Order or Service Agreement in accordance with
Section 4.B.2 above, upon the following preconditions: first, the parties must comply
with the requirements of Chapter 2260, Texas Government Code, in an attempt to
resolve a dispute; second, after complying with Chapter 2260, Texas Government
Code or if Chapter 2260 is not applicable, 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 or Service Agreement.
EE. Appendix A, Section 11. Contract Enforcement, B. Termination, 5) Customer
Rights Under Termination, is hereby replaced in its entirety with the following:
In the event the Contract expires or is terminated for any reason, a Customer shall
retain its rights under the Contract and as related to any Purchase Order issued prior
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to the termination or expiration of the Contract. The Purchase Order survives the
expiration or termination of the Contract. However, such Purchase Order shall expire
no later than the end of its then effective term, and shall not be subject to renewal
and/or extension unless the Vendor and Customer mutually agree in writing.
FF. Appendix A, Section 11. Contract Enforcement, B. Termination, 7) Suspension
and Termination of Services, is hereby added as follows:
7) Suspension and Termination of Services
The following additional suspension and termination of Services provisions apply:
a) Fraud or Abuse. Vendor may terminate or suspend an affected Service for cause
immediately by providing Customer with as much advance notice as is reasonably
practicable under the circumstances if Customer (i) commits a fraud upon Vendor,
(ii) utilizes the Service to commit a fraud upon another party, (iii) unlawfully uses
the Service, (iv) abuses or misuses Vendor’s network or Service, or (v) interferes
with another customer’s use of Vendor’s network or services.
b) Withdrawal of Services. Notwithstanding that a Pricing Schedule or Service
Agreement may commit Vendor to provide a Service to Customer for a Term, and
unless applicable law or regulation mandates otherwise, Vendor may discontinue
providing a Service upon 12 months’ notice, or a Service Component upon 120
days’ notice, but only where Vendor generally discontinues providing the Service
or Service Component to similarly–situated customers.
c) Materially Adverse Change. If Vendor revises a Service Publication and the
revision has a materially adverse impact on Customer, and Vendor does not effect
revisions that remedy such materially adverse impact within 30 days after notice
from Customer, then Customer may, as Customer’s sole remedy, elect to terminate
the affected Service Components on 30 days’ notice to Vendor, given not later than
90 days after Customer first learns of the revision to the Service Publication.
“Materially adverse impacts” do not include changes to non-stabilized pricing,
changes required by governmental authority, or assessment of or changes to
additional charges such as surcharges or taxes.
d) Internet Services. If Customer fails to rectify a violation of the AUP within 5 days
after notice from Vendor, Vendor may suspend (and later terminate for cause) or
terminate the Service for cause. If Services are provided over or access the Internet,
Vendor may act immediately and without notice to suspend or terminate Service in
response to a court order or government notice that certain conduct must be stopped
or when Vendor reasonably determines (i) that it may be exposed to sanctions or
prosecution; (ii) that such violation may cause harm to or interfere with the integrity
or normal operations or security of Vendor’s network or networks with which
Vendor is interconnected or interfere with another customer’s use of Vendor
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services or the Internet; or (iii) that continuation of the Services otherwise presents
imminent risk of harm to Vendor or Vendor’s customers or their respective
employees.
GG. Appendix A, Section 11. Contract Enforcement, B. Termination, 8) Effect of
Termination, is hereby added as follows:
8) Effect of Termination
a) Termination or suspension by either party of a Service Component or
Service does not waive any other rights or remedies a party may have under
the Service Agreement. Termination or suspension of a Service Component
or Service will not affect the rights and obligations of the parties regarding
any other Service.
b) If a Service or Service Component is terminated, Customer will pay all
amounts incurred prior to the effective date of termination.
c) Termination Charges
(1) If Customer terminates a Purchase Order or Service
Agreement for cause above in accordance with this Contract or if Vendor
terminates a Purchase Order or Service Agreement other than for cause,
Customer will not be liable for the termination charges.
(2) If Customer or Vendor terminates a Purchase Order or
Service Agreement other than as set forth in Section 8.4(a) prior to the date
Customer’s obligation to pay for Services begins, Customer will reimburse
Vendor for time and materials incurred prior to the effective date of
termination, plus any third party charges resulting from the termination.
d) If, on or after Customer’s obligation to pay for Services begins, Customer or
Vendor terminates a Purchase Order or Service Agreement other than as set
forth in Section 8.4(a), Customer will pay termination charges as follows:
(1) If such Service Agreement termination occurs before the end of the
term of the Service Agreement, 50% (unless a higher percentage is
specified in the Service Agreement) of the monthly recurring charges
specified in the Service Agreement for the terminated Service or
Service Component multiplied by the months remaining in the Service
Agreement term, plus any waived or unpaid non-recurring charges
identified in the Service Agreement, plus any charges incurred by
Vendor from a third party (e.g., not an Vendor Affiliate) identified in
the Service Agreement, due to the termination.
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HH. Appendix A, Section 11. Contract Enforcement, C. Force Majeure, is hereby
replaced in its entirety with the following:
Except in the case of payment of amounts due, DIR, Customer, or Order Fulfiller
may be excused from performance under the Contract for any period when
performance is prevented due to any cause beyond such non-performing party’s
reasonable control including an act of God, strike, war, civil disturbance, epidemic,
loss or damage due to fire, explosion, cable cuts, power blackout, earthquake, flood
embargo, labor disputes, acts of civil or military authority, acts of a public enemy,
acts or omissions of carriers or suppliers, acts of regulatory or governmental
agencies, 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 within thirty
(30) days of the issuance of the Purchase Order if it is reasonably determined by
the Customer that as a result of a Force Majeure event, Vendor or Order Fulfiller
will not be able to deliver product or services in a timely manner to meet the
business needs of the Customer.
II. Appendix A, Section 14. Import/Export Control, is hereby added as follows:
14. Import/Export Control
The parties acknowledge that equipment, services, software, and technical
information (including technical assistance and training) provided under this
Contract may be subject to import and export laws, conventions or regulations, and
any use or transfer of the equipment, products, software, and technical information
must be in compliance with all such laws, conventions and regulations. The parties
will not use, distribute, transfer, or transmit the equipment, services, software, or
technical information (even if incorporated into other products) except in
compliance with such laws, conventions and regulations. Customer, not Vendor, is
responsible for complying with such laws, conventions and regulations for all
information, equipment and software Customer transmits between countries using
the Services.
JJ. Appendix A, Section 15. No Third-Party Beneficiaries, is hereby added as follows:
15. No Third Party Beneficiaries
This Agreement is for the benefit of permitted Customers and Vendor, and does not
provide any third party (including Users) the right to enforce or bring an action for
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any remedy, claim, liability, reimbursement, cause of action or other right or
privilege.
KK. Appendix A, Section 16. Vendor Deliverables, is hereby added as follows:
16. Vendor Deliverables
A. Services
Vendor agrees to either provide or arrange to have a Vendor Affiliate
provide Services to Customer in accordance with this Contract, subject to
availability and operational limitations of systems, facilities and equipment.
Where required, a Vendor Affiliate authorized by the appropriate regulatory
authority will be the service provider.
B. Vendor Equipment
Services may include use of certain equipment owned by Vendor that is
located at the Site (“Vendor Equipment”), but title to the Vendor Equipment
will remain with Vendor. Customer must provide electric power for the
Vendor Equipment and keep the Vendor Equipment physically secure and
free from liens and encumbrances. Customer will bear the risk of loss or
damage to Vendor Equipment (other than ordinary wear and tear) except to
the extent caused by Vendor or its agents.
C. Software
Any software used with the Services will be governed by the written terms
and conditions applicable to such software. Title to software remains with
Vendor or its supplier. Customer must comply with all such terms and
conditions and they take precedence over this Contract as to such software.
LL. Appendix A, Section 17. Customer’s Cooperation, is hereby added as follows:
17. Customer’s Cooperation
A. Access Right
Customer will in a timely manner allow Vendor to access property and
equipment that Customer controls as reasonably required to provide the
Services, and Customer will obtain, at Customer’s expense, timely access
for Vendor to property that Customer does not control (other than public
property) as reasonably required to provide the Services. Access rights
include the right to construct, install, repair, maintain, replace and remove
access lines and network facilities, as well as to use ancillary equipment
space within a building, as necessary for Customer’s connection to
Vendor’s network. Customer must provide Vendor timely information and
access to Customer’s facilities and equipment as Vendor reasonably
requires to provide the Services, subject to Customer’s reasonable security
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policies. Customer will furnish any conduit, holes, wireways, wiring, plans,
equipment, space, power/utilities, and other items reasonably required to
perform installation of the Services, and obtain any necessary licenses,
permits and consents (including easements and rights-of-way). Customer
will have the Site ready for Vendor to perform its work according to a
mutually agreed schedule.
B. Safe Working Environment
Customer will ensure that the location at which Vendor installs, maintains
or provides Services is a suitable and safe working environment, free of
Hazardous Materials. “Hazardous Materials” means any substance or
material capable of posing an unreasonable risk to health, safety or property
or whose use, transport, storage, handling, disposal, or release is regulated
by any law related to pollution, protection of air, water, or soil, or health
and safety. Vendor does not handle, remove or dispose of Hazardous
Materials, and Vendor has no obligation to perform work at a location that
is not a suitable and safe working environment. Vendor will not be liable
for any Hazardous Materials. If Vendor encounters any Hazardous
Materials at the Site where Vendor is to install, maintain or provide
Services, Vendor may terminate the affected Service or Service
Component, or suspend performance until Customer removes and
remediates Hazardous Materials at Customer’s expense in accordance with
applicable law.
C. Users
“User” means anyone who uses or accesses any Service provided to
Customer. Customer will cause Users to comply with this Agreement, and
Customer agrees that Customer is responsible for Users’ use of any
Services, unless expressly provided to the contrary in applicable Service
Publications.
D. Resale of Services
Customer may not resell the Services to third parties without Vendor’s
written consent. Where permitted under applicable law, Customer may
resell the Services to Customer’s Affiliates without Vendor’s consent.
E. Internet Services
If a Service is provided over or accesses the Internet, Customer, Customer’s
Affiliates, and Users must comply with the AUP.
MM. Appendix A, Section 18. Overview of Documents, is hereby added as follows:
18. Overview of Documents
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The terms and conditions governing the Services that Vendor provides to Customer
are set forth in the Contract, Service Agreement and the following additional
documents, and any other documents executed by the parties and referencing this
Contract (which documents together with this Contract are called “this Contract” ):
(a) Pricing Schedules
A Pricing Schedule (including related attachments), attached to and a part
of a Service Agreement, which identifies the Services Vendor may provide
to Customer, the price (including discounts, if applicable) for each Service,
and the term during which such prices are in effect (“Pricing Schedule
Term”).
(b) Tariffs and Guidebooks
“Tariffs” are documents containing the standard descriptions, pricing, and
other terms and conditions for a Service that Vendor files with regulatory
commissions. “Guidebooks” are documents containing the standard
descriptions, pricing, and other terms and conditions for a Service that were,
but no longer are, filed with regulatory commissions. Tariffs and
Guidebooks may be found at att.com/service publications or other locations
Vendor may designate.
(c) Acceptable Use Policy
Vendor’s Acceptable Use Policy (“AUP”) applies to Services provided over
or accessing the Internet. The AUP may be found at att.com/aup, or other
locations Vendor may designate.
(d) Service Guides
The description, pricing, and other terms and conditions for the Service may
be contained in a Service Guide, which may be found at att.com/service
publications or other locations Vendor may designate.
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This Contract is executed to be effective as of the date of last signature.
AT&T Corp
Authorized By: _Signature on file________
Name: __John D. Irwin Jr._______________
Title: _Senior Vice President_____________
Date: ____6/8/2016____________________
The State of Texas, acting by and through the Department of Information Resources
Authorized By: Signature on File_________
Name: _ Wayne Egeler_______________
Title: __CTS Director_ ________
Date: __6/10/2016_____ _ __
Office of General Counsel: _Signature on file________6/9/2016 _