DIR-CPO-4491 ContractDIR Contract No. DIR-CPO-4491
Vendor Contract No. ________________
Department of Information Resources Page 1 of 6 (DIR rev 01/2020)
STATE OF TEXAS
DEPARTMENT OF INFORMATION RESOURCES
CONTRACT FOR PRODUCTS AND RELATED SERVICES
The Arcanum Group, 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 The Arcanum
Group, Inc. (hereinafter “Vendor”), with its principal place of business at 4600 South Syracuse
Street, nineth(9) Floor, Denver, Colorado 80112.
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-416, on February 26, 2018, for Software Products, Software
as a Service, and Enterprise Resource Planning Software Modules Products and Services. Upon
execution of this Contract, a notice of award for RFO DIR-TSO-TMP-416 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, On-Premise Software License Agreement; Appendix E, On-
Premises Software Support Agreement; Appendix F, Subscription License and Services
Agreement; Exhibit 1, Vendor’s Response to RFO DIR-TSO-TMP-416, including all addenda; and
Exhibit 2, DIR-TSO-TMP-416, 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 Appendix E, then Appendix F, 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) two-year renewal. 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 wishes to discuss
modification of terms or not renew. Additionally, the parties by mutual agreement may extend
the term for up to ninety (90) additional calendar days.
DIR Contract No. DIR-CPO-4491
Vendor Contract No. ________________
Department of Information Resources Page 2 of 6 (DIR rev 01/2020)
3. Product and Service Offerings
A. Products
Products available under this Contract are limited to Software Products, Software as a Service,
and Enterprise Resource Planning Software Modules Products as specified in Appendix C,
Pricing Index. Vendor may incorporate changes to their product offering; however, any
changes must be within the scope of products awarded based on the posting described in
Section 1.B above. Vendor may not add a manufacturer’s product line which was not included
in the Vendor’s response to the solicitation described in Section 1.B above.
B. Services
Services available under this Contract are limited to Software Products related services, and
Technical Services as specified in Appendix C, Pricing Index. Vendor may incorporate changes
to their service offering; however, any changes must be within the scope of services awarded
based on the posting described in Section 1.B above.
C. Emerging Technologies and Future Acquisitions
DIR recognizes that technology is ever-evolving and advancing. DIR reserves the right to
consider the addition of emerging technology such as next generation, enhancements and
upgrades for services that are within the scope of Software Products, Software as a Service,
Software Services. Vendor may propose such services throughout the term of the contract.
Pricing and terms will be negotiated upon DIR acceptance. Any determination will be at DIR’s
sole discretion and any decision will be final. In addition, Texas DIR and Vendor may mutually
agree to add future acquisitions of Vendor to the contract. Subsequent terms of the
acquisition(s) and pricing will be mutually agreed upon in writing and amended under the
contract.
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-fourth of one percent (.75%). Payment will be
calculated for all sales, net of returns and credits. For example, the administrative fee for sales
totaling $100,000 shall be $750.00.
B. All prices quoted to Customers shall include the administrative fee. DIR reserves the right to
change this fee upwards or downwards during the term of this Contract, upon written notice
to Vendor without further requirement for a formal contract amendment. Any change in the
administrative fee shall be incorporated in the price to the Customer.
6. Notification
All notices under this Contract shall be sent to a party at the respective address indicated below.
DIR Contract No. DIR-CPO-4491
Vendor Contract No. ________________
Department of Information Resources Page 3 of 6 (DIR rev 01/2020)
If sent to the State:
Hershel Becker or Successor in Office
Department of Information Resources
300 W. 15th St., Suite 1300
Austin, Texas 78701
Phone: (512) 475-4700
If sent to the Vendor:
David Waters
President and CEO
The Arcanum Group, Inc.
4600 South Syracuse Street, 9th Floor
Denver, CO 80237
Phone: (303) 731-1547
Email: david.waters@thearcanumgroup.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 License Agreement set forth in
Appendix E, and F of this Contract. No changes to the Software License 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 a
Customer and Vendor may agree to additional terms and conditions that do not diminish a
term or condition in the Software License Agreement, or in any manner lessen the rights or
protections of Customer or the responsibilities or liabilities of Vendor. Order Fulfiller shall
always make the Software License Agreement terms and conditions available to all
Customers.
2) Compliance with the Software License Agreement is the responsibility of the Customer.
DIR shall not be responsible for any Customer’s compliance with the Software License
Agreement. If DIR purchases software licenses for its own use under this Contract, it shall be
responsible for its compliance with the Software License 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
supersede and govern the license terms between Customers and Vendor. It is the
Customer’s responsibility to read the Shrink/Click-wrap License Agreement and determine
if the Customer accepts the license terms as amended by this Contract. If the Customer
does not agree with the license terms, Customer shall be responsible for negotiating with
the reseller to obtain additional changes in the Shrink/Click-wrap License Agreement
language from the software publisher.
DIR Contract No. DIR-CPO-4491
Vendor Contract No. ________________
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C. Service Agreement
Services provided under this Contract shall be in accordance with the Service Agreement as
set forth in Appendix E, and F of this Contract. No changes to Support and Service Agreements
terms and conditions may be made unless previously agreed to by Vendor and DIR.
D. Conflicting or Additional Terms
1) 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.
2) 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.
3) 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.
4) 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.
5) 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.
6) The foregoing requirements apply to all contracts, including, but not limited to, contracts
between Customer and a reseller who attempts to pass through documents and
obligations from its Manufacturer of Publisher.
DIR Contract No. DIR-CPO-4491
Vendor Contract No. ________________
Department of Information Resources Page 5 of 6 (DIR rev 01/2020)
8. Authorized Exceptions to Appendix A, Standard Terms and Conditions for Product and Related
Services Contracts.
A. Appendix A, Section 5, Intellectual Property is hereby deleted and replaced in its entirety as
follows:
This contract does not contemplate, authorize or support acquisition of custom software
products or services. If Vendor and Customer seek to contract for such product or service,
they must use a separate contract or seek amendment with DIR of this contract. If DIR and
Vendor decide to authorize customized software or hardware products; then the intellectual
property language will be negotiated and applied.
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DIR Contract No. DIR-CPO-4491
Vendor Contract No. ________________
Department of Information Resources Page 6 of 6 (DIR rev 01/2020)
This Contract is executed to be effective as of the date of last signature.
The Arcanum Group, Inc.
Authorized By: Signature on File
Name: David Waters
Title: CEO
Date: 5/29/2020
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: 6/12/2020
Office of General Counsel: Signature on File Date: 6/9/2020