DIR-TSO-4159 ContractDIR Contract No. DIR-TSO-4159
Vendor Contract No. DIR-TSO-4159
DIR-TSO-4159 Page 1 of 19 (DIR rev 03/2018)
STATE OF TEXAS
DEPARTMENT OF INFORMATION RESOURCES
CONTRACT NUMBER DIR-TSO-4159
CONTRACT FOR PRODUCTS AND RELATED SERVICES
HP 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 HP Inc. (hereinafter
“Vendor”), with its principal place of business at 1501 Page Mill Road, Palo Alto, California 94304-
1126.
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-417, on 1/12/2018, for Hewlett-Packard Manufacturer
Branded Hardware, Software, Cloud and Related Services and Services. Upon execution of this
Contract, a notice of award for RFO DIR-TSO-TMP-417 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, Software Licensing and Software and Hardware Support
Agreement; Exhibit 1, Vendor’s Response to RFO DIR-TSO-TMP-417, including all addenda; and
Exhibit 2, RFO DIR-TSO-TMP-417, 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 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do not actually conflict, the more recent provisions shall be deemed to have superseded earlier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 initial term of this Contract shall be two (2) years commencing on the last date of approval by
DIR and Vendor, with two (2) optional two-year renewal terms. Prior to expiration of each term,
the contract will renew automatically 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
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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.
3. Product and Service Offerings
A. Products
Products available under this Contract are limited to HP Inc. branded products such as (but
not all-inclusive) Computer Desktops, Workstations, Retail Solutions Care Pack Services,
Printers, Multifunction Printers, Digital Signage, Notebooks, and Tablets, 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.
B. Services
Services available under this Contract are limited to Services and Support related to HP Inc.
Hardware and/or Software as specified in Appendix C, Pricing Index. Those Services include
but are not limited to: managed services, asset recovery services, Device as a Service
(DaaS)/seat management, and cloud services. 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 (0.75%). 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 dollars.
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
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Facsimile: (512) 475-4759
Email: kelly.parker@dir.texas.gov
If sent to the Vendor:
HP Inc.
Attn: Office of the General Counsel
1501 Page Mill Road Palo Alto, CA 94304
Phone: (650) 857-1501
Facsimile: (650) 857-5518
With a copy to:
HP Inc.
c/o ACO Contract Administrator – Texas
Judith M. Alexander
Senior Counsel, State/Local Government and Education
11403 Compaq Center Drive W., Houston, TX 77070
Phone: (954) 272-0855
Facsimile: (954) 343-2210
Email: judith.alexander@hp.com
7. Software License, Service and Leasing Agreements
A. Software License Agreement
1) Customers acquiring software licenses under the Contract shall hold, use and operate
such software subject to compliance with the Software Licensing and Software and Hardware
Support Agreement set forth in Appendix D of this Contract. No changes to the Software
Licensing and Software and Hardware Support Agreement terms and conditions may be made
unless previously agreed to between Vendor and DIR. Customers may not add, delete or alter
any of the language in Appendix D; provided however, that the Customer and Vendor may
agree, in writing, to additional terms and conditions that do not diminish a term or condition
in the Software Licensing and Software and Hardware Support Agreement, or in any manner
lessen the rights or protections of Customer or the responsibilities or liabilities of Vendor.
Order Fulfiller shall make the Software Licensing and Software and Hardware Support
Agreement terms and conditions available to all Customers at all times.
2) Compliance with the Software Licensing and Software and Hardware Support Agreement
is the responsibility of the Customer. DIR shall not be responsible for any Customer’s
compliance with the Software Licensing and Software and Hardware Support Agreement. If
DIR purchases software licenses for its own use under this Contract, it shall be responsible for
its compliance with the Software Licensing and Software and Hardware Support Agreement
terms and conditions.
B. 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
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supersede and govern the license terms between Customers and Vendor for HP branded
software. Any purchases of Third-Party Software shall be subject to the third party’s license
terms. It is the Customer’s responsibility to read the third party Shrink/Click-wrap License
Agreement and determine if the Customer accepts the license terms. Customers are bound
by and will abide by such third party Shrink/Click-wrap License term unless the Customer
does not agree with the license terms, then 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 which the parties shall agree to in writing.
C. Service Agreement
Services provided under this Contract shall be in accordance with the Software Licensing and
Software and Hardware Support Agreement as set forth in Appendix D of this Contract. No
changes to the Software Licensing and Software and Hardware Support Agreement terms and
conditions may be made unless previously agreed to by Vendor and DIR. The parties agree
that the Managed Print Services, Device as a Service, and Managed Print Services – Premium
Support Schedule agreements will be further negotiated following execution of this Contract,
for inclusion by amendment upon agreement of terms and conditions by both parties.
D. Master Lease Agreement
DIR and Vendor agree that a Master Lease Agreement may be added to the Contract by
amendment upon agreement of terms and conditions of both parties.
E. Conflicting or Additional Terms
In the event that conflicting or additional terms in Vendor Software License Agreements,
Shrink/Click Wrap License Agreements, Service Agreements or linked or supplemental
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.
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.
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If Vendor attempts to do any of the foregoing, the prohibited documents will be void and
inapplicable to the contract between DIR and Vendor or Vendor and Customer, and Vendor
will nonetheless be obligated to perform the contract without regard to the prohibited
documents, unless Customer elects instead to terminate the contract, which in such case may
be identified as a termination for cause against Vendor.
The foregoing requirements apply to all contracts, including, but not limited to, contracts
between Customer and a reseller/Order Fulfiller who attempts to pass through documents
and obligations from its Manufacturer or Publisher.
8. 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 as follows:
A. Customer – any Texas state agency, unit of local government, institution of higher
education as defined in Section 2054.003, Texas Government Code, the Electric Reliability
Council of Texas, the Lower Colorado River Authority, a private school, as defined by
Section 5.001, Education Code, a private or independent institution of higher education,
as defined by Section 61.003, Education Code, a volunteer fire department, as defined by
Section 152.001, Tax Code, and those state agencies purchasing from a DIR contract
through an Interagency Agreement, as authorized by Chapter 771, Texas Government
Code, any local 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, 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, unless otherwise specified as calendar days. If the Contract calls for
performance on a day that is not a business day, then performance is intended to occur
on the next business day.
F. Order Fulfiller – the party, either Vendor or a party that may be designated by Vendor,
who is fulfilling a Purchase Order pursuant to the Contract.
G. Purchase Order or Order - the Customer’s fiscal form or format, which is used when
making a purchase (e.g., formal written Purchase Order, Procurement Card, Electronic
Purchase Order, or other authorized instrument).
H. State – refers to the State of Texas.
I. Affiliate of a party means an entity controlling, controlled by, or under common
control with, that party.
J. HP branded means Products and Services bearing a trademark of service mark of HP
Inc. or any HP Inc. Affiliate.
K. Product means hardware and software listed in HP’s standard price list at the time of
HP’s acceptance of Customer purchase order, and including products that are modified,
altered, or customized to meet Customer requirements (“Custom Products”).
L. Services means Support and Technology Services.
M. Specification means technical information about Products published in HP Product
manuals, user documentation, and technical data sheets in effect on the date HP delivers
Products to Customer.
N. Support means hardware maintenance and repair, software maintenance, training,
installation and configuration, and other standard support services provided by HP, and
includes “Custom Support,” which is any agreed non-standard Support as described in a
Statement of Work ONLY if the Custom Support Service is detailed and listed in
accordance with Appendix C Pricing Index.
O. Supporting Material may include (as examples) product lists, hardware, or software
specifications, standard or negotiated service descriptions, data sheets and their
supplements, Statements of Work (“SOW”), published warranties and service level
agreements, and may be available to Customer in hard copy or by accessing a designated
Vendor website.
P. Technology Services means seat management, training, maintenance, subscription
services, and other technical or configurable services performed by HP under a Statement
of Work, service agreement, or other Supporting Materials.
B. Section 4. General Provisions, B. Modification of Contract Terms and/or Amendments,
2) is hereby replaced in its entirety as follows:
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 or Statement of Work and
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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.
C. Section 5. Intellectual Property Matters, A. Definitions, 1) is hereby replaced in its
entirety as follows:
1) “Work Product” or “Deliverables” means any and all deliverables produced by Vendor
for Customer under a Statement of Work issued pursuant to this Contract, including any
and all tangible items or things that have been or will be prepared, created, developed,
invented or conceived at any time following the effective date of the Contract.
D. Section 5. Intellectual Property Matters, A. Definitions, 3) is hereby replaced in its
entirety as follows:
3) “Statement of Work” means a document signed by Customer and Vendor
describing a specific set of activities and/or deliverables.
E. Section 5. Intellectual Property Matters, A. Definitions, 4) is hereby replaced in its
entirety as follows:
4) “Third Party IP” means the Intellectual Property Rights of any third party that is not a
party to this Contract.
F. Section 5. Intellectual Property Matters, A. Definitions, 5) is hereby replaced in its
entirety as follows:
5) “Vendor IP” means, as between Vendor and Customer, Vendor’s ownership of all
materials, software (whether written or machine-readable) and the copyrights, patents,
trademarks, trade secrets and all other (a) owned by or licensed to Vendor or one of its
Affiliates prior to the Effective Date of the Contract; (b) all Intellectual Property Rights
developed by Vendor or one of its Affiliates outside the scope of this Contract, and (c) all
modifications, enhancements, and derivative works thereof.
G. Section 5. Intellectual Property Matters, B. Ownership is hereby replaced in its entirety
as follows:
B. Ownership
As between Vendor and Customer,
a) The Deliverable(s) and all Intellectual Property Rights associated with the
Deliverable(s) will be owned by the Vendor at creation and will not be considered
works made for hire. The Vendor grants to the Customer a non-exclusive, royalty-free,
site-wide, irrevocable license to use, copy, and distribute the Deliverable(s) and related
documentation according to the terms and conditions of this Contract and Supporting
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Materials. For the purposes of this license, "site-wide" includes any Customer office
regardless of its physical location. Customer may further sublicense those Deliverables
to its Affiliates or Third-Party service providers, strictly in furtherance of Customer’s
internal use.
b) Customer may modify the Deliverable(s) and may combine such with other
programs or materials to form a derivative work. Customer will own and hold all
copyright, trademark, patent and other intellectual property rights in any derivative
work, excluding any rights or interest in the Deliverable(s) other than those granted in
this Contract.
c) The Customer may copy the Deliverable(s) to multiple hard drives or networks.
d) The Customer may copy the Deliverable(s) in the course of routine backups for the
purpose of recovery.
e) In the event that the Vendor ceases to conduct business, or ceases to support the
Deliverable(s), the Customer’s license will not cease. The license may be terminated if
used in a manner that would violate the terms of this Contract and Supporting
Material.
f) Notwithstanding the license grants, any Third-Party IP incorporated into any
licensed Deliverable(s) will be subject to the license terms applicable to such Third-
Party IP.
g) The Customer and the Vendor will continue to own their respective Intellectual
Property Rights developed before entering into the Contract or developed outside the
scope of this Contract, and all modifications or derivative works thereof. Any software
licensed through the Vendor and sold to the Customer will be licensed directly to the
Customer.
H. Section 5. Intellectual Property Matters, C. Further Actions is hereby replaced in its
entirety as follows:
C. Further Actions
Vendor, upon request and without further consideration, shall perform any acts that may
be deemed reasonably necessary or desirable by Customer to evidence more fully the
transfer of ownership and/or registration of applicable Intellectual Property Rights in the
Work Product to Customer including but not limited to the execution, acknowledgement
and delivery of such further documents in a form agreed by the parties.
I. Section 5. Intellectual Property Matters, D. Waiver of Moral Rights is hereby replaced in
its entirety as follows:
D. Waiver of Moral Rights
Vendor hereby irrevocably and forever waives, and agrees never to assert, any Moral
Rights in any portion of the Work Product that contains “Customer” content, which
Vendor may now have or which may accrue to Vendor’s benefit under U.S. or foreign
copyright or other laws and any and all other residual rights and benefits which arise
under any other applicable law now in force or hereafter enacted. However, Vendor does
not waive any Moral Rights or rights in the Work Product for any Software or templates
that Vendor may deliver as part of the Services. Vendor acknowledges the receipt of
equitable compensation for its assignment and waiver of such Moral Rights. The term
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“Moral Rights” shall mean any and all rights of paternity or integrity of the Work Product
and the right to object to any modification, translation or use of the Work Product, and
any similar rights existing under the judicial or statutory law of any country in the world
or under any treaty, regardless of whether or not such right is denominated or referred
to as a moral right.
J. Section 5. Intellectual Property Matters, E. Confidentiality is hereby replaced in its
entirety as follows:
E. Confidentiality
In the performance of the Services hereunder, either party may receive or have access to
documents, technical information, information about product plans and strategies,
promotions, customers, and related technical, financial or business information, which
the disclosing party considers to be the confidential information of that party or its Third-
Party contractors or suppliers (“Confidential Information”). The following will apply to
any such Confidential Information to the extent consistent with the Texas Public
Information Act and its trade secret exemptions:
1) Before any Confidential Information is disclosed, the parties will first agree to
disclose and receive such information in confidence. If then disclosed, the
Confidential Information will be marked as confidential at the time of disclosure, or if
disclosed orally but stated to be confidential, will be designated as confidential in a
writing by the disclosing party summarizing the Confidential Information disclosed
and sent to the receiving party within thirty (30) days after such oral disclosure;
2) The receiving party’s confidentiality obligation will continue as long as the
receiving party has the information or until the information is no longer confidential.
3) The confidentiality obligations of the parties will not extend to information that:
a) was in the receiving party’s possession before receipt from the disclosing
party;
b) is or becomes publicly known without breach by the receiving party;
c) is rightfully received by the receiving party from a third party without a
duty of confidentiality;
d) is independently developed or learned by the receiving party;
e) is disclosed by the receiving party with the disclosing party’s prior written
approval; or
f) is required to be disclosed pursuant to the Texas Public Information Act
and its trade secret exemptions.
K. Section 5. Intellectual Property Matters, F. Injunctive Relief is hereby replaced in its
entirety as follows:
F. Injunctive Relief
The Contract is intended to protect both parties’ proprietary rights pertaining to the Work
Product, and the Intellectual Property Rights therein, and any misuse of such rights would
cause substantial and irreparable harm to the non-breaching party. Therefore, to the
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extent authorized by Texas Law and Constitution, both parties acknowledge and stipulate
that a court of competent jurisdiction may immediately enjoin any material breach of the
intellectual property, use, and confidentiality provisions of this Contract, upon a request
by the non-breaching party, without requiring proof of irreparable injury as same should
be presumed.
L. Section 5. Intellectual Property Matters, G. Return of Materials Pertaining to Work
Product is hereby replaced in its entirety as follows:
G. Return of Materials Pertaining to Work Product
Upon the request of Customer, but in any event upon termination or expiration of this
Contract or a Statement of Work, Vendor shall surrender to Customer all documents and
things pertaining to the Work Product, including but not limited to drafts, memoranda,
notes, records, drawings, manuals, computer software, reports, data, and all other
documents or materials (and copies of same) generated or developed by Vendor,
including all materials embodying the Work Product, or Intellectual Property Rights in
such Work Product, regardless of whether complete or incomplete for which the
Customer has paid all undisputed sums and any other documents or Confidential
Information furnished by Customer to Vendor. This section is intended to apply to all
Work Product as well as to all documents and things furnished to Vendor by Customer or
by anyone else that pertains to the Work Product.
M. Section 5. Intellectual Property Matters, I. Third-Party Underlying and Derivative Works
is hereby replaced in its entirety as follows:
I. Third-Party Underlying and Derivative Works
In all instances, in its’ SOW or quote, and before contracting with a Customer, the Vendor
will disclose the use or incorporation of any Third-Party IP into the Work Product or
Deliverables and a description of the ownership and use rights that will be provided to
the Customer. At the time of delivery, the Vendor will provide in writing the name and
use of any Third-Party IP, including information regarding the Vendor's authorization to
include and utilize such Third-Party IP. The notice shall include a copy of any ownership
agreement or license that authorizes the Vendor to use the Third-Party IP, if Vendor
procures any Third-Party IP for the State, then Vendor must assign or otherwise transfer
to the State, or afford the State the benefits of, any license rights, including the
manufacturer's warranty, for the Third-Party IP.
N. Section 5. Intellectual Property Matters, J. Agreement with Subcontracts is hereby
replaced in its entirety as follows:
J. Agreement with Subcontracts
Vendor agrees that it shall have written agreement(s) that are consistent with the
provisions hereof related to Work Product and Intellectual Property Rights with any
employees, agents, consultants, contractors or subcontractors providing Services or Work
Product pursuant to the Contract, prior to their providing such Services or Work Product,
and that it shall maintain such written agreements at all times during performance of this
Contract, which are sufficient to support all performance and grants of rights by Vendor.
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Copies of such agreements shall be provided to the Customer promptly upon request.
Vendor may redact confidential information, but in any event must provide copies
sufficient to ensure Vendor's compliance with this section.
O. Section 5. Intellectual Property Matters, L. Vendor Development Rights is hereby
replaced in its entirety as follows:
L. Vendor Development Rights
To the extent not inconsistent with Customer’s rights in the Work Product or as set forth
herein, nothing in this Contract shall preclude Vendor from developing for itself, or for
others, materials which are competitive with those produced as a result of the Services
provided hereunder, provided that no Work Product is utilized, and no Intellectual
Property Rights of Customer therein are infringed by such competitive materials.
P. Section 7. Contract Fulfillment and Promotion, A. Service Sales and Support of the
Contract is hereby replaced in its entirety as follows:
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 commercially
reasonable 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 first be quoted through the Contract, except if a Customer advises it will
only purchase under an alternate contract.
Q. Section 7. Contract Fulfillment and Promotion, B. Use of Order Fulfillers is hereby
replaced in its entirety as follows:
DIR agrees to permit Vendor to utilize designated Order Fulfillers to provide services with
Vendor part numbers, re-sale of HP branded Products and provide sales and support
resources to Customers and Vendor is liable to ensure that their designated Order
Fulfillers comply and maintain those boundaries. 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 with Vendor part numbers 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.
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R. Section 7. Contract Fulfillment and Promotion, C. Product Warranty and Return Policies
is hereby replaced in its entirety as follows:
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 than warranty and return policies for other similarly situated
Customers for like products, or more costly consistent with section 8.C.3.
S. Section 7. Contract Fulfillment and Promotion, H. Trade Show Participation is hereby
replaced in its entirety as follows:
At DIR’s discretion, Vendor may be required to participate in no more than two DIR
sponsored trade shows each calendar year. Vendor understands and agrees that
participation, at the Vendor’s 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 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 booth.
T. Section 8. Pricing, Purchase Orders, Invoices, and Payments, C. Customer Price, 3) is
hereby replaced in its entirety as follows:
3) During the Contract term, if pricing for products, specific product configurations, or
services available under this Contract is provided by the Vendor at a lower price to: (i) an
eligible Texas Customer who is not purchasing those products, specific product
configurations, or services under this Contract or (ii) to any other entity or consortia
authorized by Texas law to sell said products and services to eligible Texas Customers,
under like terms and conditions provided for the State for those 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, specific product configurations,
or services quoted by Vendor for a quantity of one (1) under like terms and conditions,
and does not apply to volume or special pricing purchases. To the extent that either party
identifies and confirms that better pricing is offered by Vendor in accordance with this
section, both parties will utilize best efforts to amend this Contract within ten (10) days
to reflect the lower price. Any Contract price changes pursuant to this section shall be
effective for all transactions between Vendor and DIR Customers entered into on or after
the date that the transaction including the lower price was identified.
U. Section 9. Contract Administration, C. Records and Audit, 3) is hereby replaced in its
entirety as follows:
3) Vendor and/or Order Fulfillers shall grant access to all paper and electronic records,
books, documents, accounting procedures, practices, customer records including but not
limited to contracts, agreements, purchase orders and statements of work, and any other
items relevant to the performance of the Contract to the DIR Internal Audit department
or DIR Contract Management staff, including the compliance checks designated by the
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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. This Section 9.C. 3)
shall also apply to Vendor’s confidential, proprietary, and/or trade secret information that
may be accessed as part of an audit or compliance check.
V. Section 10. Vendor Responsibilities, A. Indemnification, 2) is hereby replaced in its
entirety as follows:
2) Acts or Omissions
Vendor shall indemnify and hold harmless the State of Texas and Customers, AND/OR
THEIR OFFICERS, AGENTS, EMPLOYEES, REPRESENTATIVES, CONTRACTORS, AND/OR
ASSIGNEES FROM ANY AND ALL LIABILITY, ACTIONS, CLAIMS, DEMANDS, OR SUITS, AND
ALL RELATED COSTS, ATTORNEY FEES, AND EXPENSES for THIRD-PARTY CLAIMS, 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. 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.
W. Section 10. Vendor Responsibilities, A. Indemnification, 3) Infringements, b) is hereby
replaced in its entirety as follows:
b) Vendor shall have no liability under this section if the alleged infringement is caused in
whole or in part by: (i) use of the product or service for a purpose or in a manner for which
the product or service was not designed, (ii) any modification made to the product
without Vendor’s written approval, (iii) any modifications made to the product by the
Vendor pursuant to Customer’s specific instructions, (iv) any intellectual property right
owned by or licensed to Customer, or (v) any use of the product or service by Customer
that is not in conformity with the terms of any applicable license agreement, (vi)
unauthorized use or products or services, or (vii) use of the product or service in
combination with product or services not provided under the Contract.
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X. Section 10. Vendor Responsibilities, A. Indemnification, 3) Infringements, d) and e) are
hereby added in their entirety as follows:
d) Vendor will transfer to Customer any Third-Party intellectual property infringement
indemnification for non-HP Branded Products, Software, and Services delivered under
the Contract and transferable to Customer.
e) This section shall also apply to Deliverables identified as such in the relevant
Supporting Material except that Vendor is not responsible for claims resulting from
Deliverables content or design provided by Customer.
Y. Section 10. Vendor Responsibilities, J. Background and/or Criminal History
Investigation is hereby replaced in its entirety as follows:
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 the
Customer or performed and paid by Vendor. 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 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 or related Service Agreement under the Contract.
Z. Section 10. Vendor Responsibilities; K. Limitation of Liability is hereby replaced in its
entirety as follows:
For any claims 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 any indirect, punitive, special, or consequential costs or damages
whether arising in contract, tort (including negligence) or otherwise, 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 greater of $1,000,00 or a sum equal to three (3)
times the total amount paid to Vendor by Customer for all Orders placed by Customer
under the Contract during the twelve months immediately preceding the accrual of the
claim or cause of action. However, this limitation of Vendor’s liability shall not apply to
claims of bodily injury; violation of intellectual property rights including but not limited
to patent, trademark, or copyright infringement as set forth in Appendix A, Section
10.A.3 (“Infringements”).
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AA. Section 11. Contract Enforcement, B. Termination, 1) Termination for Non-
Appropriation a) Termination for Non-Appropriation by Customer and b) Termination for Non-
Appropriation by DIR are hereby replaced in their entirety as follows:
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 thirty (30)
calendar days written notice of intent to terminate. Failure to provide such notice
will not affect the rights and obligations set forth herein. 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 (except for
Products shipped and Support and Services performed to the extent funds are
available for payment), 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. Failure to provide such notice will not
affect the rights and obligations set forth herein. 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 (except
for Products shipped and Support and Services performed to the extent funds are
available for payment), nor shall it be liable for any damages or any other
amounts which are caused by or associated with such termination.
BB. Section 11. Contract Enforcement, B. Termination, 3) Termination for Convenience is
hereby replaced in its entirety as follows:
3) Termination for Convenience
DIR may terminate the Contract, in whole or in part, by giving the other party thirty (30)
calendar days written notice. A Customer may terminate a Purchase Order or other
contractual document or relationship pursuant to this Contract by giving the other party
thirty (30) calendar days written notice.
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CC. Section 11. Contract Enforcement, B. Enforcement, 4) Termination for Cause, b)
Purchase Order is hereby replaced in its entirety as follows:
b) Purchase Order
Customer or Order Fulfiller may terminate a Purchase Order or other contractual
document or relationship pursuant to this Contract upon the occurrence of a material
breach of any term or condition: (i) of the Contract, or (ii) included in the Purchase Order
or other contractual document or relationship pursuant to this Contract in accordance
with Section 4.B.2 above, upon the following preconditions: first, the parties must comply
with the requirements of Chapter 2260, Texas Government Code, in an attempt to resolve
a dispute; second, after complying with Chapter 2260, Texas Government Code, and the
dispute remains unresolved, then the non-defaulting party shall give the defaulting party
thirty (30) calendar days from receipt of notice to cure said default. If the defaulting party
fails to cure said default within the timeframe allowed, the non-defaulting party may, at
its option and in addition to any other remedies it may have available, cancel and
terminate the Purchase Order. Customer may immediately suspend or terminate a
Purchase Order without advance notice in the event Vendor fails to comply with
confidentiality, privacy, security requirements, environmental or safety laws or
regulations, if such non-compliance relates or may relate to vendor provision of goods or
services to the Customer.
DD. Section 11. Contract Enforcement, C. Force Majeure is hereby replaced in its entirety as
follows:
C. Force Majeure
DIR, Customer, Vendor, 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 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.
EE. Section 14. Additional Terms are hereby added in its entirety as follows:
14. Additional Terms
A. Products
a) Title. Risk of loss or damage and title for Hardware Products will pass upon delivery
to Customer or its designee. Where permitted by law, Vendor retains a security
interest in Products sold until full payment is received.
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b) Delivery. Vendor will use all commercially reasonable efforts to deliver Products in
a timely manner. Vendor may elect to deliver Software and related product/license
information by electronic transmission or via download.
c) Installation. If Vendor is providing installation with the Product purchase, Vendor’s
site guidelines (available upon request) will describe Customer requirements. Vendor
will conduct its standard installation and test procedures to confirm completion and
acceptance by Customer.
d) Product Performance. All HP branded Hardware Products are covered by Vendor’s
limited warranty statements that are provided with the products or otherwise made
available. Hardware warranties begin on the date of delivery or if applicable, upon
completion of Vendor installation, or (where Customer delays Vendor installation) at
the latest 30 days from the date of delivery. Non-Vendor branded products receive
warranty coverage as provided by the relevant Third-Party supplier.
e) Product Warranty Claims. When Vendor receives a valid warranty claim for a
Vendor Hardware or Software Product, Vendor will either repair the relevant defect
or replace the Product. If Vendor is unable to complete the repair or replace the
Product within a reasonable time, Customer will be entitled to a full refund upon the
prompt return of the product to Vendor (if Hardware) or upon written confirmation
by Customer that the relevant Software product has been destroyed or permanently
disabled. Vendor will pay for shipment of repaired or replaced Hardware or Software
Products to Customer. If under warranty, shipment cost will be Vendor responsibility.
B. Services
a) Technology Services. Vendor will deliver any ordered Technology, training or other
Services as described in the applicable Supporting Material, Services Agreement or
Statement of Work.
b) Technology Services Acceptance. The acceptance process (if any) will be described
in the applicable Supporting Material, Services Agreement or Statement of Work and
will apply only to the Deliverables specified and shall not apply to other Products or
Services to be provided by Vendor.
c) Services Performance. Services are performed using generally recognized
commercial practices and standards. Customer agrees to provide prompt notice of
any such Service concerns and Vendor will re-perform any Service that fails to meet
this standard.
d) Services with Deliverables. If Supporting Material for Services defines specific
Deliverables, Vendor warrants those Deliverables will conform materially to their
written specifications for 30 days following delivery. If Customer notifies Vendor of
such a non-conformity during the 30-day period, Vendor will promptly remedy the
impacted Deliverables or refund to Customer the fees paid for those deliverables and
Customer will return those Deliverables to Vendor via freight pre-paid and charged to
Vendor.
e) Dependencies. Vendor’s ability to deliver Services will depend on Customer’s
reasonable and timely cooperation and the accuracy and completeness of any
information from Customer needed to deliver the Services.
f) Change Orders. Vendor and Customer each agree to appoint a project
representative to serve as the principal point of contact in managing the delivery of
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Services and in dealing with issues that may arise. Requests to change the scope of
Services or Deliverables will require a change order signed by both parties.
g) Payment Schedule. Section 8.J. of Appendix A shall take precedence in all events
regarding Payments. Any applicable payment schedule, as negotiated by the parties,
will be set forth in the Statement of Work, if applicable. Any Services provided on a
subscription basis will be invoiced monthly, unless otherwise agreed in the Statement
of Work or Supporting Material.
C. Support Services
Vendor’s support services will be described in the applicable Supporting Material, which
will cover the description of HP’s offering, eligibility requirements, service limitations and
Customer responsibilities, as well as the Customer systems supported.
D. Eligibility
Vendor’s service, support and warranty commitments do not cover claims resulting from:
a) improper use, site preparation, or site or environmental conditions or other non-
compliance with applicable Supporting Material;
b) Modifications or improper system maintenance or calibration not performed by
HP or authorized by HP;
c) failure or functional limitations of any non-HP software or product impacting
systems receiving HP support or service;
d) malware (e.g. virus, worm, etc.) not introduced by HP; or
e) abuse, negligence, accident, fire or water damage, electrical disturbances,
transportation by Customer, or other causes beyond HP’s control.
E. Personal Information
Each party shall comply with their respective obligations under applicable data protection
legislation.
F. Compliance With Laws
Each party shall, in the performance of all of its rights and obligations under this Contract,
comply with all applicable laws. Section 4.E of Appendix A to DIR Contract Number DIR-
TSO-4159 addresses Choice of Law.
G. Remedies
This Contract states all remedies for warranty claims. To the extent permitted by law, HP
disclaims all other warranties.
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This Contract is executed to be effective as of the date of last signature.
HP Inc.
Authorized By: Signature on File
Name: Judith M. Alexander
Title: Senior Counsel, State/Local Government and Education
Date: September 21, 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: September 28, 2018
Office of General Counsel: DB September 28, 2018