5352-DIR Contract SDD-1780
EXHIBIT 2
DIR Contract No. DIR-SDD-1780
STATE OF TEXAS
DEPARTMENT OF INFORMATION RESOURCES
CONTRACT FOR PRODUCTS AND RELATED SERVICES
SPRINT SOLUTIONS, INC.
1. Introduction
A. Parties
ThisContract for products and related services is entered into between the State of Texas,
th
its principal place of business at 300 West 15 Street, Suite 1300, Austin, Texas 78701,
and Sprint Solutions, Inc.
6200 Sprint Parkway, Overland Park, Kansas 66251.
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
Business Daily, Request for Offer (RFO) DIR-SDD-TMP-169, on October 14, 2011, 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-SDD-TMP-169
shall be posted by DIR on the Electronic State Business Daily.
C. Order of Precedence
This Contract; Appendix A, Standard Terms and Conditions For Products and Related
Subcontracting Plan; Appendix C, Pricing Index; Appendix D, Service Agreement
Terms; Exhibit 1-SDD-TMP-169, including all addenda;
and Exhibit 2, RFO DIR-SDD-TMP-169, including all addenda;are incorporated by
reference and constitute the entire agreement between DIR and Vendor. In the event of a
conflict between the documents listed in this paragraph, the controlling document shall be
this Contract, then Appendix A, then Appendix B, then Appendix C, then Appendix D,
then Exhibit 1, then 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actually conflict, the more recent provisions shall be deemed to have superseded earlier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
A.
The term of this Contract shall be one (1) year commencing on the last date of
approval by DIR and Vendor. Prior to expiration of the original term, DIR and
Vendor may extend the Contract, upon mutual agreement, for up to three (3) optional
one-year terms.
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DIR Contract No. DIR-SDD-1780
B.
DIR agrees that Vendor may accept Purchase Orders with a termination date up to
one year beyond the theneffective termination date of the Contract. Vendor agrees
that it shall not
accept Purchase Orders under the Contract for any term beyond one year
from the effective termination date of the Contract.
3. Product and Service Offerings
A. Products
Products available under this Contract are limited to Wireless Voice & Data Products
as specified in Appendix C, Pricing Index. Vendor may incorporate changes to their
product offering; however, any changes must be within the scope of products
awarded based on the posting described in Section 1.B above. Vendor may not add a
solicitation described in Section 1.B above.
B. Services
Services available under this Contract are limited to Wireless Voice & 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
A.
MSRP is defined as the product sales price suggested by the manufacturer or
publisher of a product.
B. Customer Discount
The minimum Customer discount from the Vendor for all standard Sprint Wireless
Voice and Data Service Plans for corporate-units will be 24% off eligible monthly
recurring charges.
The minimum Customer discount from the Vendor for all Sprint and Nextel
accessories for corporate-liable units is 20% off of current retail price. .
C. Customer Price
1)
The price to the Customer shall be calculated as follows:
Customer Price = MSRP Customer Discount
2)
Customers purchasing products and services under this Contract may negotiate
more advantageous pricing or participate in special promotional offers. In such event,
a copy of such better offerings shall be furnished to DIR upon request.
3)
If pricing for products or services available under this Contract are provided at a
lower price to: (i) an eligible Customer who is not purchasing those products or
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DIR Contract No. DIR-SDD-1780
services under this Contract or (ii) any other entity or consortia authorized by Texas
law to sell said products and services to eligible Customers, then the available
Customer Price in this Contract shall be adjusted to that lower price. This requirement
applies to products or services quoted by Vendor or its resellers for a quantity of one
(1) under like terms and conditions, and does not apply to volume or special pricing
purchases. This Contract shall be amended within ten (10) business days to reflect the
lower price.
D.Telecommunications Fees and Surcharges and Taxes
(a) The only applicable FCC authorized fee, surcharge or assessment in effect as of
the date of this Contract is the Federal Universal Service Fund charge. Any
additional FCC, PUC or other authorized telecommunications taxes, fees and
surcharges applicable to any Service may only be imposed during the Term, upon
a written amendment to authorize such imposition under the Contract. Vendor
acknowledges that certain Customers that are political subdivisions of the State,
are exempt from the imposition and collection of certain State
telecommunications fees, including the Texas Universal Service Fund Charge and
the Texas Infrastructure Fund assessment. In addition, State agency Customers
have additional exemptions from State telecommunications fees, including the 9-
1-1 emergency service fee, 9-1-1 equalization surcharge, poison control
surcharge, and late charges imposed under Section 55.010, Texas Utilities Code.
Vendor agrees to not bill for any items which are not mandated by the FCC, PUC
or other proper authority and which are otherwise not applicable to the Services
and for which Vendor has requested and received valid exemption certificates
from Customers. Vendor agrees to promptly correct any incorrect billings of
telecommunications fees and surcharges that occur. Vendor acknowledges that
DIR makes no representations about the exemption status of any Customers that
are assistance organizations, as defined in Section 2175.001, Texas Government
Code or certain private institutions of higher education under Section 2170.004
(5), Texas Government Code. Vendor must request and receive any exemption
certificates that may apply from each such organization directly.
(b) During the Term, all changes in the law or fee structures, which creates or
authorizes Vendor to impose an unlisted telecommunications fee and surcharge on
the Services, which Vendor desires to impose and for which DIR Customers do
not have an exemption, shall require an amendment in order to be effective
against the State, DIR and Customers. In the event of a change in the law or
telecommunications fees and surcharges structures, which results in an exemption
from payment in favor of the State, DIR and/or Customers, Vendor shall give
effect to theexemption without the necessity of an amendment hereto.
(c) Vendor acknowledges that certain Government Entity Customers are exempt from
state sales, use and excise taxes, Section 151.309, Texas Tax Code, and Federal
Excise Tax, 26 USC Sections 4253 (i) and (j). Vendor further acknowledges that
State agency Customers are exempt from the assessment and collection of sales
taxes imposed by political subdivisions of the State. See Sections 321.208
(municipalities) and 323.207 (counties), Texas Tax Code. The Government Entity
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Customers shall issue a tax exemption certificate upon request to Vendor. Vendor
acknowledges that DIR makes no representation about the exemption status of
any Customers that are assistance organizations, as defined in Section 2175.001,
Texas Government Code or certain private institutions of higher education under
Section 2170.004 (5), Texas Government Code. Vendor must request and receive
any exemption certificates that may apply from each such organization directly.
E.Other Fees
Vendor acknowledges all activation fees and termination fees, including early
termination fees, are waived for all Customers.
F.Back-billing
Prices to Customers for Services inadvertently left off previous invoices by the
Vendor may be back-billed no more than 120 calendar days for usage. Pursuant to
PUC Rule 26.27, a six-month limit from the date of discovery of an error applies to
back-billing of all billed Services. Back-billing shall be included in the Adjustments.
For purposes of this paragraph, a billing Adjustment is as modification or correction
of a billing amount or an element of a Service.
G. DIR Cost Recovery Fee
The DIR Cost Recovery Fee (CRF) is authorized by Chapter 2170, Texas
Government Code, and DIR has the discretion to set the rate of the CRF to recover its
costs in accordance with the statute. The initial rate for the CRF is set forth in
Section 5 herein. The DIR CRF specified in Section 5 below shall not be broken out
as a separate line item when pricing or invoice is provided to Customer.
H. Shipping and Handling Fees
The price to the Customer under this Contract shall include all shipping and handling
shall be charged to the Customer for standard shipping and handling. If the Customer
requests expedited delivery, Customer will be responsible for any charges for
expedited delivery.
I. Tax-Exempt
As per Section 151.309, Texas Tax Code, Government Entity Customers under this
Contract are exempt from the assessment of State sales, use and excise taxes.
Further, Government Entity 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 with
regard to the tax-exempt status of private institutions of higher education, qualified to
participate in this Contract pursuant to Section 2170.004(5), Texas Government
Code.
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DIR Contract No. DIR-SDD-1780
J. Travel Expense Reimbursement
Pricing for services provided under this Contract are exclusive of any travel expenses
that may be incurred in the performance of those services. Travel expense
reimbursement may include personal vehicle mileage or commercial coach
transportation, hotel accommodations, parking and meals; provided, however, the
amount of reimbursement by Customers shall not exceed the amounts authorized for
state employees as adopted by each Customer; and provided, further, that all
reimbursement rates shall not exceed the maximum rates established for state
employees under the current State Travel Management Program. Travel time may not
be included as part of the amounts payable by Customer for any services rendered
under this Contract. The DIR administrative fee specified in Section 5 below is not
applicable to travel expense reimbursement. Anticipated travel expenses must be pre-
approved in writing by Customer.
K.Changes to Prices
Vendor may change the price of any product or service at any time, based upon
changes to the MSRP, but discount levels shall remain consistent with the discount
levels specified in this Contract. Price decreases shall take effect automatically during
the term of this Contract and shall be passed onto the Customer immediately.
5. DIR Cost Recovery Fee
A)
The Cost Recovery Fee (CRF) to be paid by the Vendor to DIR for
Telecommunications Products and Services based on the dollar value of all sales to
Customers pursuant to this Contract is two percent (2%). Payment will be calculated for
all telecommunications sales, net of returns and credits. For example, the CRF fee for
sales totaling $100,000 shall be $2,000.
B)
All prices quoted to Customers shall include the applicable CRF fee. DIR reserves the
right to change this fees upwards or downwards during the term of this Contract, upon
written notice to Vendor. Changes in the CRF fees shall be incorporated into the price to
the Customers on the date designated by DIR.
6. Notification
All notices under this Contract shall be sent to a party at the respective address indicated
below.
If sent to the State:
Director, Communications Technology Services Division
With a copy to:
Attorney, Communications Technology Services Division
Department of Information Resources
300 W. 15th Street, Suite 1300
Austin, Texas 78701
Facsimile: (512) 475-4759
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DIR Contract No. DIR-SDD-1780
If sent to the Vendor:
Michaela Clairmonte
Sprint Solutions, Inc.
12502 Sunrise Valley Drive
Reston, VA 20196
Phone: (703)433-8581
Facsimile: (703)433-8796
Email: michaela.clairmonte@sprint.com
7. Shrink/Click-wrap License Agreement
Regardless of any other provision or other license terms which may be issued by Vendor
after the effective date of this Contract, and irrespective of whether any such provisions
have been proposed prior to or after the issuance of a Purchase Order for products
licensed under this Contract, or the fact that such other agreement may be affixed to or
accompany software upon delivery (shrink-wrap), the terms and conditions set forth in
this Contract shall supersede and govern the license terms between Customers and
It is the CustomeShrink/Click-wrap License
Vendor.
Agreement and determine if the Customer accepts the license terms as amended by
this Contract. If the Customer does not agree with the license terms, Customer shall
be responsible for negotiating with the reseller to obtain additional changes in the
Shrink/Click-wrap License Agreement language from the software publisher.
8. Authorized Exceptions to Appendix A, Standard Terms and Conditions for Product
and Related Services Contracts.
Appendix A, Section 4.D. Assignment
1.is hereby restated as follows:
D. Assignment
DIR or Vendor may assign the Contract without prior written approval to: i) a
successor in interest (for DIR, another state agency as designated by the Texas
Legislature and for Vendor, entity that has purchased all or substantially all of its
assets), or ii) a subsidiary, parent company or affiliate, or iii) as necessary to satisfy a
regulatory requirement imposed upon a party by a governing body with the
appropriate authority. Assignment of the Contract under the above terms shall require
written notification by the assigning party. Any other assignment by a party shall
require the written consent of the other party. Each party agrees to cooperate to
amend the Contract as necessary to maintain an accurate record of the contracting
parties.
Appendix A, Section 6.A. Service, Sales and Support of the Contract
2.is hereby
restated 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 good
faith efforts to ensure that current and potential DIR Eligible Customers are made
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DIR Contract No. DIR-SDD-1780
aware of the existence of the Contract. Excluding any existing and new purchases on
existing federal, cooperative and standalone contracts held by Vendor which were
executed prior to the effective date of this Contract and which DIR acknowledges are
not in conflict with Section 4(C)(3) of the Contract, all new sales to Texas DIR
Customers for products and services available under the Contract shall be processed
through the Contract.
Appendix A, Section 8.B.2. Detailed Monthly Report
3.is hereby restated as follows:
2)Detailed Monthly Report
Vendor shall electronically provide DIR with a detailed monthly report in the format
required by DIR showing the dollar volume of any and all sales under the Contract
for the previous month period. Reports shall be submitted to the DIR Go DIRect
Coordinator. Reports are due on the fifteenth (15th) calendar day after the close of
the previous month period. If the fifteenth (15th) calendar day falls on a non-business
day, the report shall be due on the next business day. It is the responsibility of
Vendor to collect and compile all sales under the Contract from participating Order
Fulfillers and submit one (1) monthly report. The monthly report shall include, per
applicable, Customer name, invoice date, invoice number, description, part number,
manufacturer, quantity, unit price, extended price, Customer Purchase Order number,
by DIR. Each report must contain all information listed above per transaction or the
report will be rejected and returned to the Vendor for correction in accordance with
this section.
Appendix A, Section 8.B.4.A.
4.is hereby restated as follows:
4)DIR CRF
a)
The applicable CRF/administrative fee shall be paid by Vendor to DIR to defray the
DIR costs of negotiating, executing, and administering the Contract and to recover costs
of the telecommunications program. The CRF/ fee is as specified in Section 5 of the
th
Contract. Payment of the CRF fee shall be due on the seventeen (17) calendar day after
th
the close of the previous month period.If the seventh (17)calendar day falls on a non-
business day, the cost recovery fee shall be due on the next business day.
Appendix A, Section 9.N. Required Insurance Covers
5.is hereby restated as
follows:
N. Required Insurance Coverage
As a condition of this Contract with DIR, Vendor shall provide the listed insurance
coverage within 5 days of execution of the Contract if the Vendor is awarded services
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
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DIR Contract No. DIR-SDD-1780
may not begin performance under the Contract and/or a Purchase Order until such
proof of insurance coverage is provided to, and approved by, DIR and the Customer.
All required insurance must be issued by companies that are A- financially rated and
duly licensed, admitted, and authorized to do business in the State of Texas. The
Customer and DIR will be named as Additional Insureds on all required coverage.
Required coverage must remain in effect through the term of the Contract and each
Purchase Order issued to Vendor there under. The minimum acceptable insurance
provisions are as follows:
Commercial General Liability
1)
Commercial General Liability must include a combined single limit of $500,000
per occurrence for coverage A, B, & C including products/completed operations,
where appropriate, with a separate aggregate of $500,000. The policy shall
contain the following provisions:
a) Blanket contractual liability coverage for liability assumed under the Contract;
b) Independent Contractor coverage;
c) State of Texas, DIR and Customer listed as an additional insured;
d) 30-day Notice of Termination in favor of DIR and/or Customer; and
e) Waiver of Transfer Right of Recovery Against Others in favor of DIR and/or
Customer.
2)
include limits consistent with statutory benefits outlined in the Texa
Compensation Act (Art. 8308-1.01 et seq. Tex. Rev. Civ. Stat) and minimum
$500,000 bodily injury disease policy limit and $250,000 per disease per
employee.
3)Business Automobile Liability Insurance
Business Automobile Liability Insurance must cover all owned, non-owned and
hired vehicles with a minimum combined single limit of $500,000 per occurrence
for bodily injury and property damage. Alternative acceptable limits are $250,000
bodily injury per person, $500,000 bodily injury per occurrence and at least
$100,000 property damage liability per accident. The policy shall contain the
following endorsements in favor of DIR and/or Customer:
a) Waiver of Subrogation;
b) 30-day Notice of Termination; and
c) Additional Insured.
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DIR Contract No. DIR-SDD-1780
This Contract is executed to be effective as of the date of last signature.
Sprint Solutions, Inc.
Authorized By: Signature on File
Name: John Dupree
Title: Senior Vice President
Date: 4/25/12
The State of Texas, acting by and through the Department of Information Resources
Authorized By: Signature on File
Name: Carl Marsh
Title: Chief Operating Officer
Date: 4/30/12
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EXHIBIT 2
Amendment Number 2
to
Contract Number DIR-SDD-1780
between
State of Texas, acting by and through the Department of Information Resources
And
SPRINT SOLUTIONS, INC.
This Amendment Number 2 to Contract Number DIR-SDD-1780)is between the
Sprint Solutions, Inc. ). DIR
andVendoragree to modify the terms and conditions of the Contractas follows:
Contract, Section 2, Term of Contract,
1. is hereby restated in its entirety as follows:
A)
The term of this Contract is extended through April 30, 2015. Prior to the
expiration date of the term, DIR and Vendor may extend the Contract upon
mutual agreement, for up to one (1) additional one-year term.
B)
All prices quoted to Customers shall include the applicable administrative fee.
DIR reserves the right to change this fees upwards or downwards during the
term of this Contract, upon written notice to Vendor. Changes in the
administrative fees shall be incorporated into the price to the Customers on the
date designated by DIR.
Contract, Section 4, Pricing, G. DIR Cost Recovery FeeDIR
2., is re-titled
Administrative Fee
, and is hereby restated in its entirety as follows:
G. DIR Administrative Fee
Theadministrative fee is authorized by Chapter 2170, Texas Government Code,
and DIR has the discretion to set the rate of the administrative fee to recover its
costs in accordance with the statute. The initial rate for the administrative fee is set
forth in Section 5 herein. The administrative fee specified in Section 5 below shall
not be broken out as a separate line item when pricing or invoice is provided to
Customer.
Contract, Section 5, Cost Recovery Fee,DIR Administrative Fee
3. is re-titled ,
and is hereby restated in its entirety as follows:
A)
The administrative fee to be paid by the Vendor to DIR for Telecommunications
Products and Services based on the dollar value of all sales to Customers pursuant
to this Contract is two percent (2%). Payment will be calculated for all
telecommunications sales, net of returns and credits. For example, the
administrative fee for sales totaling $100,000.00 shall be $2,000.00.
B)
All prices quoted to Customers shall include the applicable administrative fee.
DIRreserves the right to change this fees upwards or downwards during the term
of this Contract, upon written notice to Vendor. Changes in the administrative fee
Amendment Number 2
Contract Number DIR-SDD-1780Page 1
EXHIBIT 2
shall be incorporated into the price to the Customers on the date designated by
DIR.
Contract, Section 6, Notification,If Sent to the State,
4. is hereby restated in its
entirety as follows:
If sent to the State:
Grace Windbigler, CTPM, CTCM
Department of Information Resources
Manager,Enterprise Contract Management
300 W. 15th Street, Suite 1300
Austin, Texas 78701
Phone: (512) 463-2861
Facsimile: (512) 475-4759
Appendix A, Section 8, Contract Administration, B. Reporting and CRF/
5.
Administrative Fees, B. Reporting and Administrative Fees,
is re-titled and is
restated as follows:
B. Reporting and Administrative Fees
1) Reporting Responsibility
a)
Vendor shall be responsible for reporting all products and services purchased
through Order Fulfillers under the Contract. Vendor shall file the monthly reports,
subcontract reports, and pay the applicable DIR Administrative Fees in
accordance with the due dates specified in this section.
b)
DIR shall have the right to verify required reports and to take any actions
necessary to enforce its rights under this section, including but not limited to,
2)Detailed Monthly Report
Commented [mkc1]:
The requested
COMMENT TO DIR:
changes below are consistent with the original Contract and
Vendor shall electronically provide DIR with a detailed monthly report in the
Amendment 1 with Sprint.
format required by DIR showing the dollar volume of any and allsales under the
Contract for the previous month period. Reports shall be submitted to the DIR
ICT Cooperative Contracts E-Mail Box at ict.sales@dir.texas.gov. Reports are
due on the fifteenth (15 th) calendar day after the close of the previous month
period. If the fifteenth (15th) calendar day falls on a non-business day, the report
shall be due on the next business day. It is the responsibility of Vendor to collect
and compile all sales under the Contract from participating Order Fulfillers and
submit one (1) monthly report. The monthly report shall include, per transaction:
the detailed sales for the period, the Order F
applicable, Customer name, invoice date, invoice number, description, part
number, manufacturer, quantity, unit price, applicable administrative fee
assessed, extended price, Customer Purchase Order number, contact name,
Custome
Each report must contain all information listed above per transaction or the
report will be rejected and returned to the Vendor for correction in accordance
with this section.
3) Historically Underutilized Businesses Subcontract Reports
a)
Vendor shall electronically provide each Customer with their relevant
Historically Underutilized Business Subcontracting Report, pursuant to the
Amendment Number 2
Contract Number DIR-SDD-1780Page 2
EXHIBIT 2
Contract, as required by Chapter 2161, Texas Government Code. Reports shall
also be submitted to DIR.
b)
Reports shall be due in accordance with the CPA rules.
4)DIR Administrative Fee
Commented [mkc2]:
The requested
COMMENT TO DIR:
changes below are consistent with the original Contract with
a)
The applicable administrative fee shall be paid by Vendor to DIR to defray
Sprint.
the DIR costs of negotiating, executing, and administering the Contract and to
recover costs of the telecommunications program. The administrative fee is as
specified in Section 5 of the Contract. Payment of the administrative fee shall
be due on the seventeenth(17th) calendar day after the close of the previous
month period.If the seventeenth(17th) calendar day falls on a non-business
day, the administrativefee shall be due on the next business day.
b)
Vendor shall reference the DIR Contract number on all remittance
instruments.
5)Accurate and Timely Submission of Reports
Commented [mkc3]:
There was
COMMENT TO DIR:
language added by DIR to Section 8, Contract Administration,
a)
The reports and payment of the applicable administrative fee shall be
subsection B. Reporting and Administrative Fees, 5)Accurate
accurate and timely and submitted in accordance with the due dates specified
and Timely Submission of Reports as a new paragraph c) in
in this section. Vendor shall correct any inaccurate reports or administrative
Amendment 1.It was not included in this Amendment 2, so
please confirm it is meant to be deleted from the Contract?
fee payments within three (3) business days upon written notification by DIR.
Vendor shall deliver any late reports or late administrative fee payments within
three (3) business days upon written notification by DIR. If Vendor is unable to
correct inaccurate reports or administrative fee payments or deliver late reports
and applicable fee payments within three (3) business days, Vendor must
contact DIR and provide a corrective plan of action, including the timeline for
completion of correction. The corrective plan of action shall be subject to DIR
approval.
b)
Should Vendor fail to correct inaccurate reports or cure the delay in timely
delivery of reports and payments within the corrective plan of action timeline,
DIR reserves the right to require an independent third party audit of the
c)
Failure to timely submit three (3) reports within any rolling twelve (12) month
Appendix A, Section 8, Contract Administration, C. Records and Audit, 4),
6. is
hereby restated in its entirety as follows:
4)
For procuring State Agencies whose payments are processed by the Texas
Comptroller of Public Accounts, the volume of payments made to Order Fulfillers
through the Texas Comptroller of Public Accounts and the administrative fee based
Appendix A, Section 9, Vendor Responsibilities, subsection A.
7.
Indemnification,:
is hereby restated in its entirety as follows
Amendment Number 2
Contract Number DIR-SDD-1780Page 3
EXHIBIT 2
A. Indemnification
1) INDEPENDENT CONTRACTOR
VENDOR AGREES AND ACKNOWLEDGES THAT DURING THE EXISTENCE OF
THIS CONTRACT, IT IS FURNISHING PRODUCTS AND SERVICES IN THE
CAPACITY OF AN INDEPENDENT CONTRACTOR AND THAT VENDOR IS NOT
AN EMPLOYEE OF THE CUSTOMER OR THE STATE OF TEXAS.
2) Acts or Omissions
Vendor shall 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
LIABILITY, ACTIONS, CLAIMS, DEMANDS, OR SUITS, AND ALL RELATED
COSTS, ATTORNEY FEES, AND EXPENSES arising out of, or resulting from any
acts or omissions of the Vendor or its agents, employees, subcontractors, Order
Fulfillers, or suppliers of subcontractors in the execution or performance of the
Contract and any Purchase Orders issued under the Contract. THE DEFENSE
SHALL BE COORDINATED BY VENDOR WITH THE OFFICE OF THE ATTORNEY
GENERAL WHEN TEXAS STATE AGENCIES ARE NAMED DEFENDANTS IN
ANY LAWSUIT AND VENDOR MAY NOT AGREE TO ANY SETTLEMENT
WITHOUT FIRST OBTAINING THE CONCURRENCE FROM THE OFFICE OF
THE ATTORNEY GENERAL. VENDOR AND THE CUSTOMER AGREE TO
FURNISH TIMELY WRITTEN NOTICE TO EACH OTHER OF ANY SUCH CLAIM.
3) Infringements
a)
Vendor shall indemnify and hold harmless the State of Texas and Customers,
AND/OR THEIR EMPLOYEES, AGENTS, REPRESENTATIVES,
CONTRACTORS, ASSIGNEES, AND/OR DESIGNEES from any and all third party
claims involving infringement of United States patents, copyrights, trade and service
marks, and any other intellectual or intangible property rights in connection with the
PERFORMANCES OR ACTIONS OF VENDOR PURSUANT TO THIS
CONTRACT. VENDOR AND THE CUSTOMER AGREE TO FURNISH TIMELY
WRITTEN NOTICE TO EACH OTHER OF ANY SUCH CLAIM. VENDOR SHALL
BE LIABLE TO PAY ALL COSTS OF DEFENSE INCLUDING ATTORNEYS' FEES.
THE DEFENSE SHALL BE COORDINATED BY VENDOR WITH THE OFFICE OF
THE ATTORNEY GENERAL WHEN TEXAS STATE AGENCIES ARE NAMED
DEFENDANTS IN ANY LAWSUIT AND VENDOR MAY NOT AGREE TO ANY
SETTLEMENT WITHOUT FIRST OBTAINING THE CONCURRENCE FROM THE
OFFICE OF THE ATTORNEY GENERAL.
b)
Vendor shall have no liability under this section if the alleged infringement is
caused in whole or in part by: (i) use of the product or service for a purpose or in a
manner for which the product or service was not designed, (ii) any modification
to the product by the Vendor pursuant
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
Amendment Number 2
Contract Number DIR-SDD-1780Page 4
EXHIBIT 2
for the Customer the right to continue to use the affected portion of the product or
service, or (ii) modify or replace the affected portion of the product or service with
-
infringing.
Appendix A, Section 9, Vendor Responsibilities, subsection B.
8.
is hereby
restated in its entirety as follows:
B.
1)
VENDOR AGREES AND ACKNOWLEDGES THAT DURING THE EXISTENCE
OF THIS CONTRACT, VENDOR SHALL BE ENTIRELY RESPONSIBLE FOR THE
LIABILITY AND PAYMENXES
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
COMPENSATION OR ANY BENEFIT AVAILABLE TO A STATE EMPLOYEE OR
EMPLOYEE OF ANOTHER GOVERNMENTAL ENTITY CUSTOMER.
2)
VENDOR AGREES TO INDEMNIFY AND HOLD HARMLESS CUSTOMERS,
THE STATE OF TEXAS AND/OR THEIR EMPLOYEES, AGENTS,
REPRESENTATIVES, CONTRACTORS, AND/OR ASSIGNEES FROM ANY AND
ALL LIABILITY, ACTIONS, CLAIMS, DEMANDS, OR SUITS, AND ALL RELATED
ES, AND EXPENSES, RELATING TO TAX LIABILITY,
UNEMPLOYMENT INSURANCE AND/TION IN ITS
PERFORMANCE UNDER THIS CONTRACT. VENDOR SHALL BE LIABLE TO
PAY ALL COSTS OF DEFENSE INCLUDING ATTOR
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.
Appendix A, Section 9, Vendor Responsibilities, subsection C. Vendor
9.
Certifications, vii,
is hereby restated in its entirety as follows:
(vii) Vendor and its principals are not suspended or debarred from doing business
with the federal government as listed in the System for Award Management (SAM)
maintained by the General Services Administration;
10. Appendix A, Section 9, Vendor Responsibilities, subsection G. Responsibility for
Actions, 2), is hereby restated as follows:
Amendment Number 2
Contract Number DIR-SDD-1780Page 5
EXHIBIT 2
2)
Vendor, for itself and on behalf of its subcontractors, shall report to DIR promptly
when the conflict of interest disclosures under Article xvi of the Certification
Statement of Appendix A to the RFO and/or Section 9.C. (xii), Vendor Certifications
of this Appendix Ato the Contract change. Vendor covenants to fully cooperate with
DIR to update and amend the Contract to accurately disclose employment of current
or former State employees and their relatives and/or the status of conflicts of
interest.
Appendix A, Section 10, Contract Enforcement, subsection B. Termination, 2)
11.
Absolute Right,
is hereby restated in its entirety as follows:
2) Absolute Right
DIR shall have the absolute right to terminate the Contract without recourse in the
event that: i) Vendor becomes listed on the prohibited vendors list authorized by
Executive Order #13224, "Blocking Property and Prohibiting Transactions with
Persons Who C published by the
United States Department of the Treasury, Office of Foreign Assets Control; ii)
Vendor becomes suspended or debarred from doing business with the federal
government as listed in the System for Award Management (SAM) maintained by
the General Services Administration; or (iii) Vendor is found by DIR to be ineligible
to hold this Contract under Subsection (b) of Section 2155.006, Texas Government
Code. Vendor shall be provided written notice in accordance with Section 11.A,
Notices, of intent to terminate.
12. All other terms and conditions of the Contract as amended, not specifically modified
herein, shall remain in full force and effect. In the event of conflict among the
provisions, the order of precedence shall be Amendment Number 2, then
Amendment Number 1 and then the Contract.
Remainder of Page Intentionally Left Blank
Amendment Number 2
Contract Number DIR-SDD-1780Page 6
EXHIBIT 2
IN WITNESS WHEREOF,
the parties hereby execute this amendment to be effective as of
the date of the last party to sign, but in all events no later than March 21, 2014.
SPRINT SOLUTIONS, INC.
Authorized By:
__ _ signature on file____________
(Sprint Ref. # BSG1403-0151)
Name:
___Brian S. Miller_____________________
Title:
_ __ Vice President Enterprise Sales______ _
Date:
__3/18/14______________________________
The State of Texas, acting by and through the
Department of Information Resources
Authorized By:
___signature on file_____________
Name:
____Karen Robinson___________________
Title:
Executive Director______________________
Date:
___3/27/14____________________________
Office of General Counsel:
___3/26/14__________
Amendment Number 2
Contract Number DIR-SDD-1780Page 7