DIR-TSO-3763 ContractDIR Contract No. DIR-TSO-3763
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STATE OF TEXAS
DEPARTMENT OF INFORMATION RESOURCES
CONTRACT FOR PRODUCTS AND RELATED SERVICES
DELL MARKETING, L.P.
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 Dell Marketing, L.P. (hereinafter “Vendor”), with its principal place of business at One
Dell Way, Round Rock, Texas 78682.
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-251, on September 12, 2016,
for Dell Branded Manufacturer Hardware, Software and Related Services & Cloud
Services. Upon execution of this Contract, a notice of award for RFO DIR-TSO-TMP-251
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, Services Agreement;
Appendix E, Master Operating Lease Agreement (subject to the provisions of Section 1.D.
below); Appendix F, Master Lease Agreement (subject to the provisions of Section 1.E.
below); Appendix G, E-Rate Agreement; Exhibit 1, Vendor’s Response to RFO DIR-TSO-
TMP-251, including all addenda; and Exhibit 2, RFO DIR-TSO-TMP-251, including all
addenda; are incorporated by reference and constitute the entire agreement between DIR
and Vendor governing purchase transactions. For Lease transactions under this Contract
the order of precedence shall be as follows: this Contract; Appendix E, Master Operating
Lease Agreement (subject to the provisions of Section 1.D. below); Appendix F, Master
Lease Agreement (subject to the provisions of Section 1.E. below), as applicable depending
on the type of lease; 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, Services Agreement;
Appendix G, E-Rate Agreement; Exhibit 1, Vendor’s Response to RFO DIR-TSO-TMP-
251, including all addenda; and Exhibit 2, RFO DIR-TSO-TMP-251, including all
addenda; are incorporated by reference and constitute the entire agreement between DIR
and Vendor governing lease transactions. In the event of a conflict between the documents
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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 (subject to the provisions of Section 1.D. below), then Appendix F (subject to
the provisions of Section 1.E. below), then Appendix G, then Exhibit 1, and finally Exhibit
2. In the event of a conflict between the documents listed in this paragraph related to lease
transactions, the controlling document shall be this Contract, then Appendix E (subject to
the provisions of Section 1.D. below) or Appendix F (subject to the provisions of Section
1.E. below), depending on the type of lease transaction, then Appendix A, then Appendix
B, then Appendix C, then Appendix D, then Appendix G, 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.
D. Master Operating Lease Agreement
DIR and Vendor hereby agree that, until DIR directs Vendor otherwise, Vendor is
authorized to utilize the Master Operating Lease Agreement in Appendix E of this Contract
for Lessees that are Texas State Agencies or otherwise authorized to conduct lease
transactions through DIR contracts.
E. Master Lease Agreement
DIR and Vendor hereby agree that, until DIR directs Vendor otherwise, Vendor is
authorized to utilize the Master Lease Agreement in Appendix F of this Contract for DIR
authorized entities as Lessees that are not Texas State Agencies or otherwise required by
statute to utilize the Texas Public Finance Authority for such leasing transactions.
2. Term of Contract
The term of this Contract shall be two (2) years commencing on January 10, 2018. Prior to
expiration of the original term, the contract will renew automatically in two (2) year
increments for two additional terms 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.
3. Product and Service Offerings
A. Products
This Contract is a full Catalog contract, offering all products Dell is authorized to sell or
manufacture.
B. Services
Related services include but are not limited to: deployment, help desk, managed services,
storage and server assessment services, product installation, Custom Factory Integration of
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Customer Imaged Software (“CFI’), maintenance and support, asset recovery services,
product training, and future services Dell may offer upon DIR approval.
4. Pricing
A. Manufacturer’s Suggested Retail Price (MSRP)
MSRP is defined as Dell’s published retail price list as found on
http://ftpbox.us.dell.com/slg/weekly/dellpricereport.pdf.
B. Customer Discount
The minimum Customer discount for all products and services will be set forth in
Appendix C Pricing Index.
Vendor agrees that the DIR standard pricing discounts contained in Appendix C will
remain at least one percent (1%) better than the NASPO (the National Association of
State Procurement Officials ValuePoint (NASPO VP) Category A level, standardized
discounts. This extension of competitive volume sales pricing is intended solely to
ensure that DIR will, at a minimum, remain competitive with the standard price rates
set for NASPO VP as a whole. DIR may not apply, without the express consent of
Vendor, any pre-existing discount structure to the NASPO VP pricing being offered to
DIR by Vendor. DIR may either use DIR discounted pricing or the NASPO VP pricing
but may not combine, or compound the two.
In the event that DIR pricing fails to remain competitive with (i.e., at least one percent
[1%] better than) NASPO VP standardized, category level pricing as described in the
foregoing paragraph, Vendor shall extend such pricing to DIR. Vendor shall use its
commercially reasonable best efforts to notify DIR of such NASPO VP price change
and amend this Contract within thirty (30) days after the amendment to the Vendor’s
NASPO VP contract. The introduction of the NASPO VP pricing to the DIR contract
shall be effective from the date of execution into the Contract by amendment. Both
parties agree that the pricing shall not be retroactive for DIR and shall not extend back
to the date that Vendor reduced NASPO VP catalog pricing. Further, the parties agree
that DIR, or the State of Texas, does not have the right to audit the NASPO VP contract
held by the Vendor. References to the Vendor’s NASPO VP contract are only
contained in this Contract for purposes of referencing the pricing discounts contained
therein. Both parties acknowledge that the Vendor’s NASPO VP contract and pricing
are readily available to the public and may be freely accessed by the Vendors DIR web
page and by the internet for the purposes of validation under the terms and conditions
of this Contract.
C. Customer Price
1) The price to the Customer shall be as set forth in Appendix C, Pricing Index.
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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) During the term of this Contract, if pricing for products or non-customized services
(e.g., CFI, Imaging, and Asset Tagging) available under this Contract are provided by
Vendor at a lower price to an Eligible Texas Customer (headquartered in the State of
Texas) who is not purchasing those products or services under this Contract, then the
available Customer Price in this Contract shall be adjusted to that lower price. This
requirement applies to products or non-customized services actually charged by
Vendor for a quantity of one (1) under substantially similar terms and conditions, for
substantially similar configurations or deliverables. This requirement 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. DIR Administrative Fee
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.
E. Shipping and Handling Fees
The price to the Customer under this Contract shall include all shipping and handling
fees. Shipments will be Free On Board Customer’s destination, provided the products
are shipped to locations in the State of Texas. Except as noted, no additional fees 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. Title to all products shall pass upon shipment to Customer’s dock; however,
risk of loss shall pass to the Customer upon delivery to Customer.
F. Delivery
Shipment of Dell-branded systems from Dell’s facility is estimated at between fifteen
(15) and twenty-five (25) days after receipt of a valid and complete order. While there
may be industry-wide situations of constrained product, current manufacturing lead
times for desktop and notebook systems are ten (10) to fourteen (14) business days.
Current lead times for server systems are nine (9) to twelve (12) business days; this is
specifically designed for extensive testing on these mission-critical systems.
Shipment of third party software and peripheral items is estimated at between seven (7)
and ten (10) days after receipt of a valid and complete order.
Please note that customization through Dell's Configuration Services may increase lead
times. While Dell does not guarantee specific delivery dates, Customers providing Dell
with an accurate quarterly forecast will greatly enhance Dell’s ability to be prepared for
Customer orders and to meet your needed delivery timeframes.
G. Tax-Exempt
As per Section 151.309, Texas Tax Code, Customers under this Contract are exempt
from the assessment of State sales, use and excise taxes. Further, Customers under this
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Contract are exempt from Federal Excise Taxes, 26 United States Code Sections
4253(i) and (j). Customers will provide Vendor with tax exempt certificate upon
request.
H. 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
https://comptroller.texas.gov/purchasing/programs/travel-management/. 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.
I. Changes to Prices
Vendor or Order Fulfiller 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 at
the time of submission of a purchase order, but shall not be retroactive to products for
which a purchase order has been received, or for services currently being rendered
under a prior purchase order.
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 one half of one percent (.50%). Payment
will be calculated for all sales, net of returns and credits. For example, the administrative
fee for sales totaling $100,000 shall be $500.
B. All prices quoted to Customers shall include the administrative fee. DIR may change
administrative fee amounts; however, no revision will take effect before ninety (90) days
following written notice. Vendor may revise pricing to reflect the change in administrative
fees.
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 Parker, CTPM, CTCM
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Director, Cooperative Contracts
Department of Information Resources
300 W. 15th St., Suite 1300
Austin, Texas 78701
Phone: (512) 475-1647
Facsimile: (512) 475-4759
Email: Kelly.Parker@dir.texas.gov
If sent to the Vendor:
Contract Manager
Dell Marketing, L.P.
One Dell Way, Mail Stop RR1-33
Round Rock, Texas 78682
Phone: (231) 747-9294
Facsimile: (512) 283-9092
Email: Cyndi_Radel@dell.com; and Dudley_McClellan@dell.com
7. Software License, Services and Leasing Agreements
A. Software License Agreement
1) Software shall mean any software, library, utility, tool, or other computer or program
code, in object (binary) or source-code form, as well as the related documentation,
provided by Dell to you. Software includes software locally installed on your systems
and software accessed by you through the Internet or other remote means (such as
websites, portals, and "cloud-based" solutions).
2) Software is subject to the separate software license agreements accompanying the
software, along with any product guides, operating manuals, or other documentation
included with the software media packaging or presented to Customer during the
installation or use of the Software. Customer agrees that Customer will be bound by
such license agreement.
3) With respect to Software provided or otherwise made available to you by Dell in
connection with any Services hereunder, if no license terms accompany the Software,
then subject to your compliance with the terms set forth in this Agreement, including
payment for such Software, Dell hereby grants Customer a personal, non-exclusive
license to access and use such Software only during the duration of the Services and
solely as necessary for Customer to enjoy the benefit of the Services as stated in the
applicable Service Agreements (or Statements of Work (SOW’s)).
a) Restrictions. Customer may not copy, modify, or create a derivative work,
collective work, or compilation of the Software, and may not reverse engineer,
decompile or otherwise attempt to extract the code of the Software or any part
thereof. Customer may not license, sell, assign, sublicense, or otherwise transfer
or encumber the Software; may not use the Software in a managed-services
arrangement; and may not use the Software in excess of the authorized number of
licensed seats for concurrent users, sites, or other criteria specified in the
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applicable Service Agreements or Statements of Work. In addition, Customer may
not access the Software to monitor its availability, performance, or functionality,
or for any other benchmarking or competitive purpose.
b) Customer is further prohibited from (1) attempting to use or gain unauthorized
access to Dell or to any third party's networks or equipment; (2) permitting other
individuals or entities to use the Software or copy the Software or Services; (3)
attempting to probe, scan, or test the vulnerability of Software or a system,
account, or network of Dell or any of its customers or suppliers; (4) interfering or
attempting to interfere with service to any user, host, or network; (5) engaging in
fraudulent activity of any nature; (6) transmitting unsolicited bulk or commercial
messages; (7) restricting, inhibiting, or otherwise interfering with the ability of any
other person, regardless of intent, purpose, or knowledge, to use or enjoy the
Software (except for tools with safety and security functions); or (8) restricting,
inhibiting, interfering with, or otherwise disrupting or causing a performance
degradation to any Dell (or Dell Service supplier) facilities used to deliver the
Services.
c) Audit. DIR, on behalf of Customers, hereby grants Dell, or an agent designated by
Dell, the right to perform an audit of any Customers’ use of the Software during
normal business hours; and to cooperate with Dell in such audit; and such
Customer agrees to provide Dell with all records reasonably related to Customers’
use of the Software. The audit will be limited to verification of Customer’s
compliance with the terms of this Agreement.
d) Open Source Software. A portion of the Software may contain or consist of open
source software, which you may use under the terms and conditions of the specific
license under which the open source software is distributed.
THIS OPEN SOURCE SOFTWARE IS DISTRIBUTED IN THE HOPE THAT
IT WILL BE USEFUL, BUT IS PROVIDED "AS IS" WITHOUT ANY
WARRANTY, EXPRESS, IMPLIED, OR OTHERWISE, INCLUDING BUT
NOT LIMITED TO THE IMPLIED WARRANTY OF MERCHANTABILITY
OR FITNESS FOR A PARTICULAR PURPOSE, OR ANY WARRANTY
REGARDING TITLE OR AGAINST INFRINGEMENT. IN NO EVENT
SHALL DELL, THE COPYRIGHT HOLDERS, OR THE CONTRIBUTORS BE
LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL,
EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT
LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES;
LOSS OF USE, DATA, OR PROFITS; OR BUSINESS INTERRUPTION)
HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER
IN CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING
NEGLIGENCE OR OTHERWISE) ARISING IN ANY WAY OUT OF THE USE
OF THIS OPEN SOURCE SOFTWARE, EVEN IF ADVISED OF THE
POSSIBILITY OF SUCH DAMAGE.
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B. Shrink/Click-wrap License Agreement
Customer understands and agrees that the third-party software is subject to the license
agreement shipped with the software or in a separate agreement between Customer and
the software licensor. Dell is authorized to provide the software provided hereunder.
It is the Customer’s responsibility to read the Shrink/Click-wrap License
Agreement and determine if the Customer accepts the license terms. If the
Customer does not agree with the license terms, Dell shall provide reasonable
assistance; however, 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.
C. Services Agreement
Services provided under this Contract shall be in accordance with the Services
Agreement as set forth in Appendix D of this Contract. No changes to the Services
Agreement terms and conditions may be made unless previously agreed to by Vendor
and DIR.
D. Master Operating Lease Agreement
DIR and Vendor hereby agree that, until DIR directs Vendor otherwise, Vendor is
authorized to utilize the Master Operating Lease Agreement in Appendix E of this
Contract for Lessees that are Texas State Agencies or otherwise authorized to conduct
lease transactions through DIR contracts.
E. Master Lease Agreement
DIR and Vendor hereby agree that, until DIR directs Vendor otherwise, Vendor is
authorized to utilize the Master Lease Agreement in Appendix F of this Contract for
DIR authorized entities as Lessees that are not Texas State Agencies or otherwise
required by statute to utilize the Texas Public Finance Authority for such leasing
transactions.
8. Intellectual Property Matters
Customer shall own all right, title and interest to the Deliverables and Dell agrees to grant
to Customer a perpetual, non-exclusive, non-transferable, royalty-free license to use Dell’s
Background IP (defined below), Utilities, and Residual IP solely for Customer to use the
Deliverables, subject to the following:
(i) each party will retain all Intellectual Property Rights that it owned or controlled prior
to the effective date of this Agreement or that it develops or acquires from activities
independent of the Services performed under this Agreement (“Background IP”),
(ii) Dell will retain all right, title and interest in and to all Intellectual Property Rights in or
related to the Services, or tangible components thereof, including but not limited to (a)
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all know-how, intellectual property, methodologies, processes, technologies,
algorithms, software or development tools used in performing the Services
(collectively, the “Utilities”), and (b) such ideas, concepts, know-how, processes and
reusable reports, designs, charts, plans, specifications, documentation, forms, templates
or output which are developed, created or otherwise used by or on behalf of Dell in the
course of performing the Services or creating the Deliverables, other than portions that
specifically incorporate proprietary or Confidential Information or data of Customer
(collectively, the “Residual IP”), even if embedded in the Deliverable, and
(iii) Customer use of software, online services, or software-enabled services in connection
with the Services is pursuant to the terms of the applicable software license or Cloud
Computing Terms.
As used herein, “Deliverables” means the work product or tangible embodiment of the
Services that are (i) prepared or performed by Dell or its subcontractors uniquely and
exclusively for a Customer and (ii) specifically identified in a signed Statement of
Work as Deliverables. “Intellectual Property Rights” means rights to patents, utility
models, mask works, copyrights, trademarks, trade secrets, and any other form of
protection afforded by law to inventions, models, designs, technical information, and
applications.
9. 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:
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;
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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.
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. 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. May include Order
Fulfillers, Resellers and/or Agents.
G. Purchase 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). Neither Dell nor Customer is or shall
be bound by any terms and conditions imprinted on or embedded in orders, order
acknowledgments or other communications between the parties relating to orders.
H. Reseller – any third party approved by Dell to sell to Eligible Customers under this
Contract. Dell will flow this Contract’s terms and conditions to its Resellers under this
Contract, except that pricing shall be as follows: Dell offers pricing to its Reseller(s)
and such Resellers shall resale to Eligible Customers products under this Contract at a
price it sets and that will not exceed the maximum price as set forth in Appendix C,
Pricing Index, of this Contract.
I. State – refers to the State of Texas.
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B. Section 4. General Provisions, E. Survival, is hereby replaced in its entirety:
Each applicable service agreement that was entered into between Vendor and a
Customer under the terms and conditions of the Contract that is still in existence as of
the date of the expiration or termination of the Contract shall survive the expiration or
termination of the Contract until the expiration or termination of such service
agreement. Each Purchase Order issued and accepted by Vendor that is still in existence
on the date of the expiration or termination of the Contract shall survive expiration or
termination of the Contract until the expiration or termination of such Purchase Order.
C. Section 6.A. 2) Product Terms and Conditions, Electronic and Information
Resources Accessibility Standards, As Required by 1 TAC Chapters 206 and 213
(Applicable to State Agency and Institution of Higher Education Purchases Only),
is hereby replaced in its entirety:
2) Upon request by DIR, Vendor shall provide DIR with the URL to its Voluntary
Product Accessibility Template (VPAT) or a copy of the applicable VPAT for
reviewing compliance with the State of Texas Accessibility requirements (based on the
federal standards established under Section 508 of the Rehabilitation Act), or indicate
that the product/service accessibility information is available from the General Services
Administration “Buy Accessible Wizard” (http://www.buyaccessible.gov). Vendors
not listed with the “Buy Accessible Wizard” or supplying a URL to their VPAT must
provide DIR with a report that addresses the same accessibility criteria in substantively
the same format. Additional information regarding the “Buy Accessible Wizard” or
obtaining a copy of the VPAT is located at http://www.section508.gov/.
Customer may go to this page to request VPATs:
http://content.dell.com/us/en/corp/d/corp-comm/cr-diversity-customer-
disabilities.aspx
D. Section 7. Contract Fulfillment and Promotion, A. Service, Sales and Support of
the Contract, is hereby replaced in its entirety:
Vendor shall provide service, sales and support resources available under the Contract
to serve all Customers throughout the State. It is the responsibility of the Vendor to
sell, market, and promote 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.
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E. Section 7. Contract Fulfillment and Promotion, C. Product Warranty and Return
Policies, is hereby replaced in its entirety:
Products Warranty:
A. Limited Warranty. Dell warrants that the Dell-branded hardware Products will
conform to the Dell specifications current when the Product is shipped and will be free
from material defects in materials and workmanship during the applicable warranty
period (“Limited Warranty”). The Limited Warranty period for Product begins on the
Product ship date. Dell has the right to grant the licenses to the Software licensed under
this Agreement, and such Software will substantially conform to the functional
specifications and current documentation provided by Dell.
B. Disclaimers. EXCEPT AS EXPRESSLY STATED IN THE PRECEDING
PARAGRAPH, DELL, (INCLUDING ITS AFFILIATES, CONTRACTORS,
AND AGENTS, AND EACH OF THEIR RESPECTIVE EMPLOYEES,
DIRECTORS, AND OFFICERS), ON BEHALF OF ITSELF AND ITS
SUPPLIERS (COLLECTIVELY, THE “DELL PARTIES”) DISCLAIMS, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ALL
WARRANTIES, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO
ANY OF THE PRODUCTS, SOFTWARE, OR SERVICES, INCLUDING BUT
NOT LIMITED TO ANY WARRANTY (1) OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE, PERFORMANCE,
SUITABILITY, OR NON-INFRINGEMENT; (2) RELATING TO THIRD-
PARTY PRODUCTS, SOFTWARE, OR SERVICES; (3) RELATING TO THE
PERFORMANCE OF ANY HARDWARE OR SOFTWARE, OR DELL’S
PERFORMANCE OF THE SERVICES; OR (4) REGARDING THE RESULTS
TO BE OBTAINED FROM THE PRODUCTS, SOFTWARE, SERVICES, OR
THE RESULTS OF ANY RECOMMENDATION BY DELL.
C. High-Risk Activities. The Products, Software, and Services are not fault-tolerant
and are not designed or intended for use in hazardous environments requiring fail-safe
performance, such as in the operation of nuclear facilities, aircraft navigation or
communication systems, air traffic control, weapons systems, life-support machines, or
any other application in which the failure of the Products, Software, or Services could
lead directly to death, personal injury, or severe physical or property damage
(collectively, “High-Risk Activities”). Dell expressly disclaims any express or
implied warranty of fitness for High-Risk Activities.
D. Warranty Exclusions. Warranties do not cover damage due to external causes,
such as accident, abuse, misuse, problems with electrical power, service not performed
or authorized by Dell (including installation or de-installation), usage not in accordance
with product or software instructions, normal wear and tear, or use of parts and
components not supplied or intended for use with the products, software, or services.
These warranties do not apply to Third-Party Products. Any warranty on a Third-
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Party Product is provided by the publisher, provider, or original manufacturer. To the
extent that Dell is contractually authorized by the applicable Third-Party, Dell will
assign to Customer any additional warranty provided to Dell; otherwise the Third-
Party Products are provided by Dell “as is.” WHETHER DIRECT OR INDIRECT,
NEITHER PARTY SHALL HAVE LIABILITY FOR THE FOLLOWING, (A) LOSS
OF REVENUE, INCOME, PROFIT, OR SAVINGS, (B) LOST OR CORRUPTED
DATA OR SOFTWARE, LOSS OF USE OF SYSTEM(S) OR NETWORK, OR THE
RECOVERY OF SUCH, (C) LOSS OF BUSINESS OPPORTUNITY, (D) BUSINESS
INTERRUPTION OR DOWNTIME, OR (E) SERVICES, VENDOR PRODUCTS OR
THIRD-PARTY PRODUCTS NOT BEING AVAILABLE FOR USE BY
CUSTOMER.
A. With respect to Customer’s use of the Software (1) neither Dell nor any of the
Dell Parties makes any express or implied warranty that Software provided to
Customer in connection with this Agreement is or will be secure, accurate,
complete, uninterrupted, without error, or free of viruses, worms, other harmful
components, or other program limitations; or that any errors in the Software
will be corrected; (2) Customer assumes the entire cost of all necessary
servicing, repair, or correction of problems caused by viruses or other harmful
components, unless such errors or viruses are the direct result of dell's gross
negligence or willful misconduct; (3) Dell and the Dell Parties, jointly and
severally, disclaim and make no warranties or representations as to the
accuracy, quality, reliability, suitability, completeness, truthfulness, usefulness,
or effectiveness of any reports, data, results, or other information obtained or
generated by Customer related to Customer’s use of the Software; and (4) use
of the Software is entirely at Customer’s own risk and neither Dell nor the Dell
Parties shall have any liability relating to such use.
THIRD PARTY PRODUCTS. To the extent Dell has the right to do so under its
agreements with any third parties Dell shall pass through to Customer all Third Party
warranties as Dell receives from such third party in its contracts.
Dell Return Policy (U.S. only)
For any Product return, Customer agrees to follow and comply with the terms and
process applicable according to Dell's return policy at www.Dell.com/returnspolicy.
Note: Before a Customer returns the product to Dell, make sure to back-up any data on
the hard drive(s) and on any other storage device in the product. Remove any and all
confidential, proprietary, and personal information as well as removable media such as
floppy disks, CDs, and PC Cards. Dell is not responsible for any confidential,
proprietary, or personal information; lost or corrupted data; or damaged or lost
removable media that may be included with a Customer’s return.
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Services Warranty:
Limited Warranty. VENDOR WARRANTS THAT SERVICES WILL BE
PERFORMED IN A GOOD AND WORKMANLIKE MANNER. EXCEPT AS
EXPRESSLY STATED IN THE PRECEDING SENTENCE, VENDOR
(INCLUDING ITS AFFILIATES, SUBCONTRACTORS AND AGENTS) AND
EACH OF THEIR RESPECTIVE EMPLOYEES, DIRECTORS AND
OFFICERS (COLLECTIVELY, THE "VENDOR PARTY(IES)") MAKES NO
EXPRESS OR IMPLIED WARRANTIES WITH RESPECT TO ANY OF THE
SERVICES OR DELIVERABLES, INCLUDING BUT NOT LIMITED TO, ANY
WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, PERFORMANCE, SUITABILITY OR NON-INFRINGEMENT; OR
ANY WARRANTY RELATING TO THIRD-PARTY PRODUCTS OR THIRD-
PARTY SERVICES.
High-Risk Application Disclaimer. THE SERVICES ARE NOT FAULT-
TOLERANT AND ARE NOT DESIGNED OR INTENDED FOR USE IN
HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE
PERFORMANCE, INCLUDING WITHOUT LIMITATION, IN THE
OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR
COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, WEAPONS
SYSTEMS, LIFE-SUPPORT MACHINES, OR ANY OTHER APPLICATION
IN WHICH THE FAILURE OF THE SERVICES COULD LEAD DIRECTLY
TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR PROPERTY
DAMAGE (COLLECTIVELY, "HIGH-RISK ACTIVITIES"). VENDOR
EXPRESSLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY OF
FITNESS FOR HIGH-RISK ACTIVITIES.
F. Section 7. Contract Fulfillment and Promotion, E. Internet Access to Contract
and Pricing Information, 1) Vendor Website, is hereby replaced in its entirety:
1) Within thirty (30) calendar days of the effective date of the Contract, Vendor will
establish and maintain a webpage specific to the products and related services and cloud
services awarded under the Contract that are clearly distinguishable from other, non-
DIR Contract offerings on the Vendor’s website. The webpage must include:
a) the products and related services and cloud services awarded;
b) description of product and service awarded;
c) a current price list or mechanism (for example, a services calculator or product
builder) to obtain specific contracted pricing;
d) discount percentage (%) off MSRP or List Price;
e) a link (updated no less than monthly) to the Full Pricing Catalog, listing all products
and services by product description, manufacturer part number, Dell part number,
MSRP;
f) designated Order Fulfillers;
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g) contact information (name, telephone number and email address) for Vendor and
designated Order Fulfillers;
h) instructions for obtaining quotes and placing Purchase Orders;
i) warranty policies;
j) return policies;
k) the DIR Contract number with a hyperlink to the Contract’s DIR webpage;
l) a link to the DIR “Cooperative Contracts” webpage; and
m) the DIR logo in accordance with the requirements of this Section.
G. Section 7. Contract Fulfillment and Promotion, F. Services Warranty and Return
Policies, is hereby replaced in its entirety:
Vendor and Order Fulfiller will adhere to the Vendor’s then-currently published
generally applicable U.S. policies concerning services warranties and returns.
H. Section 7. Contract Fulfillment and Promotion, H. Vendor and Order Fulfiller
Logo, is hereby replaced in its entirety:
DIR may use the Vendor’s and Order Fulfiller’s name and logo in the promotion of the
Contract to communicate the availability of products and services under the Contract
to Customers. Use of the logos may be on the DIR website or on printed materials.
Any use of Vendor’s and Order Fulfiller’s logo by DIR must comply with and be solely
related to the purposes of the Contract and any usage guidelines communicated to DIR
from time to time. Nothing contained in the Contract will give DIR any right, title, or
interest in or to Vendor’s or Order Fulfiller’ trademarks or the goodwill associated
therewith, except for the limited usage rights expressly provided by Vendor and Order
Fulfiller. Dell’s logo is subject to Dell’s corporate compliance usage rules.
I. Section 7. Contract Fulfillment and Promotion, I. Trade Show Participation, is
hereby replaced in its entirety:
At DIR’s discretion, Vendor may be required to participate in no more than two (2)
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 such trade shows in the State of
Texas 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 or Order
Fulfiller’s booth.
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J. Section 8. Pricing, Purchase Orders, Invoices, and Payments, is hereby replaced in
its entirety:
A. Purchase Orders
All Customer Purchase Orders will be placed directly with the Order Fulfiller. Accurate
Purchase Orders shall be effective and binding upon Order Fulfiller when accepted by
Order Fulfiller.
B. Invoices
Invoices shall be submitted by the Vendor directly to the Customer and shall be issued
in compliance with Chapter 2251, Texas Government Code. All payments for services
purchased under the Contract and any provision and receipt of such services shall be
made by the Customer to the Vendor.
Invoices must be timely and accurate. Each invoice must match Customer’s Purchase
Order and include any written changes that may apply, as it relates to services, prices
and quantities. Invoices must include the Customer’s Purchase Order number or other
pertinent information for verification of receipt of the services by the Customer.
C. Payments
The parties shall comply with Chapter 2251, Texas Government Code, in invoicing and
making payments. Payments for goods and services are due thirty (30) days after the
goods are provided, the services completed, or a correct invoice is received, whichever
is later. Payment under the Contract shall not foreclose the right to recover
wrongful payments.
D. Acceptance
Customer and Vendor may establish terms for acceptance of Products and Services.
Absent other terms of acceptance agreed to by Customer and Vendor, the following
terms will apply. With respect to Vendor-branded products delivered to Customers
under the Contract that have Vendor-published specifications, and with respect to
Services provided to Customers by Vendor under the Contract that have mutually
agreed upon specifications described in a Purchase Order executed by the Customer
and Vendor (respectively, the “Specifications”), Customer shall determine whether
such products and Services meet the applicable Specifications. If the product or
Service meets the Specifications applicable to it, the Customer agrees to accept such
product or Service. Unless otherwise agreed upon by the Customer and Vendor, a
product or service shall be deemed accepted if the Customer does not, within Twenty
(20) twenty calendar days from the date such product or service is delivered, issue to
Vendor a written notice of partial acceptance or rejection of the product or service based
on the fact that the product or service did not meet the Specifications applicable to it
(“Deemed Acceptance” or “Deemed Accepted)).
No payment shall due for any such product or Service until the Customer either accepts
the product or service or such product or service is Deemed Accepted.
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K. Section 9. Contract Administration, B. Reporting and Administrative Fees, 2)
Detailed Monthly Report, is hereby replaced in its entirety:
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 calendar month period. Reports are due on the fifteenth (15th) calendar
day of the month following the month of the sale. If the 15th calendar day falls on a
weekend or state or federal holiday, the report shall be due on the next business day.
The monthly report shall include, per transaction: the detailed sales for the period,
Customer name, invoice date, invoice number, description, quantity, MSRP or List
Price, unit price, extended price, Customer Purchase Order number, contact name,
Customer’s complete billing address, the estimated administrative fee for the reporting
period, subcontractor name, EPEAT designation (if applicable), configuration (if
applicable), contract discount percentage, actual discount percentage, negotiated
contract price (if fixed price is offered instead of discount off of MSRP), and other
information as required 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. Vendor shall report in a manner required by DIR
which is subject to change dependent upon DIR’s business needs. Failure to do so
may result in contract termination.
L. Section 9. Contract Administration, B. Reporting and Administrative Fees, 4) DIR
Administrative Fee, is hereby replaced in its entirety:
a) The Vendor shall pay an administrative fee to DIR to defray the DIR costs of
negotiating, executing, and administering the Contract. The maximum
administrative fee is set by the Texas Legislature in the biennial General
Appropriations Act. DIR will review Vendor monthly sales reports, close the sales
period, and notify the Vendor of the administrative fee no later than the fourteenth
(14th) day of the second month following the date of the reported sale. Vendor shall
pay the administrative fee by the twenty-fifth (25th) calendar day of the second
month following the date of the reported sale. For example, Vendor reports January
sales by February 15th; DIR closes January sales and notifies Vendor of
administrative fee by March 14th; Vendor submits administrative fee for January
sales by March 25th.
b) DIR may change the amount of the administrative fee upon thirty (30) calendar
days written notice to Vendor without the need for a formal contract amendment.
c) Vendor shall reference the DIR Contract number, reporting period, and
administrative fee amount on any remittance instruments.
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M. Section 9. Contract Administration, B. Reporting and Administrative Fees, 5)
Accurate and Timely Submission of Reports, is hereby replaced in its entirety:
a) The reports and administrative fees shall be accurate and timely and submitted in
accordance with the due dates specified in this section. Vendor shall correct any
inaccurate reports or administrative 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 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 Vendor’s records
as specified in C.3 of this Section, at Vendor’s expense. DIR will select the auditor
(and all payments to auditor will require DIR approval).
Failure to timely submit three (3) reports or administrative fee payments within any
rolling twelve (12) month period may, at DIR’s discretion, result in the addition of
late fees of $100/day for each day the report or payment is due (up to $1000/month)
or suspension or termination of Vendor’s Contract.
N. Section 9. Contract Administration, C. Records and Audit, is hereby replaced in its
entirety:
1) Acceptance of funds under the Contract by Vendor and/or Order Fulfiller acts as
acceptance of the authority of the State Auditor’s Office, or any successor agency, to
conduct an audit or investigation in connection with those funds. Vendor further agrees
to cooperate fully with the State Auditor’s Office or its successor in the conduct of the
audit or investigation, including providing all records requested. Vendor will ensure
that this clause concerning the authority to audit funds received indirectly by
subcontractors through Vendor or directly by Order Fulfillers and the requirement to
cooperate is included in any subcontract or Order Fulfiller contract it awards pertaining
to the Contract. Under the direction of the Legislative Audit Committee, a Vendor that
is the subject of an audit or investigation by the State Auditor’s Office must provide
the State Auditor’s Office with access to any information the State Auditor’s Office
considers relevant to the investigation or audit.
2) Vendor shall maintain adequate records relating to the requirements of this Contract
and relevant to the performance of the Contract to DIR, to establish compliance with
the Contract until the later of a period of four (4) years after termination of the Contract
or until full, final and unappealable resolution of all Compliance Check or litigation
issues that arise under the Contract. Such records shall include per transaction:
Customer name, invoice date, invoice number, description, quantity, unit price,
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extended price, Customer Purchase Order number, contact name, Customer’s complete
billing address, the calculations supporting each administrative fee owed DIR under
the Contract, Historically Underutilized Businesses Subcontracting reports, and such
other documentation as DIR may request.
3) Vendor and/or Order Fulfillers shall grant access to all paper and electronic records,
books, documents, accounting procedures, practices and any other items relevant to the
performance of the Contract to the DIR Internal Audit department or DIR Contract
Management staff, including the compliance checks designated by the DIR Internal
Audit department, DIR Contract Management staff, the State Auditor’s Office, and of
the United States, and such other persons or entities designated by DIR for the purposes
of inspecting, Compliance Checking and/or copying such books and records. Vendor
and/or Order Fulfillers shall provide copies and printouts requested by DIR without
charge. DIR shall provide Vendor and/or Order Fulfillers ten (10) business days’ notice
prior to inspecting, Compliance Checking, and/or copying Vendor’s and/or Order
Fulfiller’s records. Vendor’s and/or Order Fulfillers records, whether paper or
electronic, shall be made available during regular office hours. Vendor and/or Order
Fulfiller personnel familiar with the Vendor’s and/or Order Fulfiller’s books and
records shall be available to the DIR Internal Audit department, or DIR Contract
Management staff and designees as needed. Vendor and/or Order Fulfiller shall
provide adequate office space to DIR staff during the performance of Compliance
Check. If any audit reveals a Material Accounting Error, Vendor must reimburse DIR
for actual and reasonable costs of such audit. Material Accounting Error means (a) with
regard to audits of invoices, an aggregate variance from all applicable invoices of
Vendor reviewed during such audit in excess of 1.5% of the aggregate amount shown
on all of the invoices reviewed during such audit; and (b) with regard to audits of fees,
an aggregate underpayment of all fees due to DIR under this Contract during a Vendor
fiscal quarter in excess of 5%.
O. Section 10. Vendor Responsibilities, A. Indemnification, 2) ACTS OR
OMISSIONS is hereby replaced in its entirety:
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 AND AGAINST
ANY AND ALL THIRD PARTY CLAIMS FOR 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 resulting in bodily injury (including death) or damage to tangible property and
to the extent caused by Dell or its Order Fulfillers, Agents, Resellers or subcontractors.
VENDOR’S OBLIGATIONS TO INDEMNIFY AND HOLD HARMLESS BY
NEGLIGENCE VENDOR SHALL PAY ALL COSTS OF DEFENSE INCLUDING
REASONABLE ATTORNEYS FEES. The defense shall be coordinated by the Office
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of the Attorney General FOR TEXAS STATE AGENCIES OR BY CUSTOMER’S
LEGAL COUNSEL FOR NON-STATE AGENCY CUSTOMERS, VENDOR’S
COUNSEL FOR VENDOR, AND BY CUSTOMERS COUNSEL FOR NON-STATE
AGENCY CUSTOMERS AND VENDOR MAY NOT AGREE TO ANY
SETTLEMENT AS TO CLAIMS AGAINST TEXAS STATE AGENCIES
WITHOUT FIRST OBTAINING CONCURRENCE FROM THE OFFICE OF THE
ATTORNEY GENERAL.
P. Section 10. Vendor Responsibilities, A. Indemnification, 3) Infringements is
hereby replaced in its entirety:
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 of Services or the provision of Dell-branded Products by
VENDOR PURSUANT TO THIS CONTRACT. “Dell-Branded Products” shall mean
hardware products (including all Dell standard components and parts contained within
the Dell system), components, or parts bearing the Dell logo that are included on
Seller's standard price list.
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
OF THE CLAIMS AS SPECIFIED IN THIS SECTION INCLUDING ATTORNEYS'
FEES. The defense shall be coordinated by the Office of the Attorney General FOR
TEXAS STATE AGENCY CUSTOMERS, Vendor’s Counsel for Vendor, AND BY
CUSTOMER’S LEGAL COUNSEL FOR NON-STATE AGENCY CUSTOMERS
AND VENDOR MAY NOT AGREE TO ANY SETTLEMENT AS TO CLAIMS
AGAINST TEXAS STATE AGENCIES WITHOUT FIRST OBTAINING
CONCURRENCE FROM THE OFFICE OF THE ATTORNEY GENERAL. In
addition, the foregoing IP obligations shall extend to 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 Vendor’s sale of third
party equipment and license of third party software under this Contract, if and to the
extent the applicable third party equipment manufacturer or third party software
licensor is contractually obligated to Vendor to provide indemnification for such
claims.
b) Notwithstanding the foregoing, Vendor shall have no obligation under this Section
for any claim to the extent that it results or arises from (1) Customer’s modifications of
such products, services or deliverables that were not performed by or on behalf of
Vendor; (2) the combination, operation or use of such product, service or deliverable
in connection with a third-party product or service (the combination of which causes
the infringement); or (3) Vendor’s compliance with Customer’s written specifications
(to the extent such specifications were not developed by Vendor) or directions,
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including the incorporation of any software or other materials or process provided by
or requested by Customer, provided that, in the first case, Vendor’s employees who
complied with Customer’s specifications did not have actual knowledge that such
specifications infringe one or more United States patents, copyrights, trade and service
marks, and any other intellectual or intangible property rights and fails to so inform
Customer. In the event Vendor has no obligation for a claim as set forth above, Vendor
agrees to provide such assistance (e.g., producing documents and its employees as
witnesses) as is reasonably requested by the Attorney General in connection with the
Attorney General’s defense of such claim.
c) If Vendor becomes aware of an actual or potential claim, or Customer provides
Vendor with notice of an actual or potential claim, Vendor may (or in the case of an
injunction against Customer, shall), at Vendor’s sole option and expense: (i) procure
for the Customer the right to continue to use the affected portion of the product or
service, or (ii) modify or replace the affected portion of the product or service with
functionally equivalent or superior product or service so that Customer’s use is non-
infringing, or (iii) provide a refund that reflects reasonable depreciation for time of use,
and for services/custom software. (iii) applies only if the remedies described in subparts
(i) and (ii) are not obtainable despite Vendor’s commercially reasonable efforts. This
subsection states Customer’s exclusive remedies for any third-party intellectual
property claim. Notwithstanding the foregoing, if Vendor provides the remedy
described in subpart (iii) and the affected Customer incurs transition expenses relating
to the replacement in such Customer’s IT environment of the affected portion of Dell-
Branded Products or services, such Customer may tender to Vendor a claim for such
actual and reasonable transition expenses in an amount up to the difference between
(y) the original purchase price for the affected portion of the product or service being
removed and (z) the refund provided to such Customer pursuant to subpart (iii), above,
and Vendor will pay such claim.
Q. Section 10. Vendor Responsibilities, B. Taxes/Worker’s Compensation/
UNEMPLOYMENT INSURANCE is hereby replaced in its entirety:
1) VENDOR AGREES AND ACKNOWLEDGES THAT DURING THE
EXISTENCE OF THIS CONTRACT, VENDOR SHALL BE ENTIRELY
RESPONSIBLE FOR THE LIABILITY AND PAYMENT OF VENDOR’S AND
VENDOR'S EMPLOYEES' TAXES OF WHATEVER KIND, ARISING OUT OF
THE PERFORMANCES IN THIS CONTRACT. VENDOR AGREES TO COMPLY
WITH ALL STATE AND FEDERAL LAWS APPLICABLE TO ANY SUCH
PERSONS, INCLUDING LAWS REGARDING WAGES, TAXES, INSURANCE,
AND WORKERS' COMPENSATION. VENDOR AGREES AND
ACKNOWLEDGES THAT VENDOR ITS EMPLOYEES, REPRESENTATIVES,
AGENTS OR SUBCONTRACTORS SHALL NOT BE ENTITLED TO ANY
STATE BENEFIT OR BENEFIT OF ANOTHER GOVERNMENTAL ENTITY
CUSTOMER AS A RESULT OF WORKING UNDER THIS CONTRACT. THE
CUSTOMER AND/OR THE STATE SHALL NOT BE LIABLE TO THE VENDOR
ITS EMPLOYEES, AGENTS, OR OTHERS FOR THE PAYMENT OF TAXES OR
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THE PROVISION OF UNEMPLOYMENT INSURANCE AND/OR WORKERS'
COMPENSATION OR ANY BENEFIT AVAILABLE TO A STATE EMPLOYEE
OR EMPLOYEE OF ANOTHER GOVERNMENTAL ENTITY CUSTOMER AS A
RESULT OF ITS PERFORMANCE UNDER THIS CONTRACT.
2) VENDOR AGREES TO INDEMNIFY AND HOLD HARMLESS CUSTOMERS,
THE STATE OF TEXAS AND/OR THEIR EMPLOYEES, AGENTS,
REPRESENTATIVES, CONTRACTORS, ASSIGNEES, AND/OR DESIGNEES
FROM ANY AND ALL LIABILITY, ACTIONS, CLAIMS, DEMANDS, OR SUITS,
AND ALL RELATED COSTS, ATTORNEY FEES, AND EXPENSES, RELATING
TO TAX LIABILITY, UNEMPLOYMENT INSURANCE AND/OR WORKERS'
COMPENSATION OR EXPECTATIONS OF BENEFITS BY VENDOR, ITS
EMPLOYEES, REPRESENTATIVES, AGENTS OR SUBCONTRACTORS IN ITS
PERFORMANCE UNDER THIS CONTRACT. VENDOR SHALL BE LIABLE TO
PAY ALL COSTS OF DEFENSE INCLUDING REASONABLE ATTORNEYS'
FEES FOR CLAIMS UNDER THIS CLAUSE AS A RESULT OF ITS
PERFORMANCE UNDER THIS CONTRACT.
THE DEFENSE SHALL BE COORDINATED BY THE OFFICE OF THE
ATTORNEY GENERAL FOR TEXAS STATE AGENCY CUSTOMERS,
VENDOR’S COUNSEL FOR VENDOR AND BY CUSTOMER’S LEGAL
COUNSEL FOR NON-STATE AGENCY CUSTOMERS, AND VENDOR MAY
NOT AGREE TO ANY SETTLEMENT AS TO CLAIMS AGAINST TEXAS STATE
AGENCIES WITHOUT FIRST OBTAINING CONCURRENCE FROM THE
OFFICE OF THE ATTORNEY GENERAL.
R. Section 10. Vendor Responsibilities, C. Vendor Certifications, is hereby replaced in
its entirety:
C. Vendor Certifications
Vendor certifies on behalf of Vendor and its designated Order Fulfillers that they:
(i) have not given, offered to give, and do not intend to give at any time hereafter any
economic opportunity, future employment, gift, loan, gratuity, special discount, trip,
favor, or service to a public servant in connection with the Contract;
(ii) are not currently delinquent in the payment of any franchise tax owed the State and
are not ineligible to receive payment under §231.006 of the Texas Family Code and
acknowledge the Contract may be terminated and payment withheld if this certification
is inaccurate;
(iii) neither they, nor anyone acting for them, have violated the antitrust laws of the
United States or the State, nor communicated directly or indirectly to any competitor
or any other person engaged in such line of business for the purpose of obtaining an
unfair price advantage;
(iv) have not received payment from DIR or any of its employees for participating in
the preparation of the Contract;
(v) under Section 2155.004, Texas Government Code, the vendor certifies that the
individual or business entity named in this bid or contract is not ineligible to receive
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the specified contract and acknowledges that this contract may be terminated and
payment withheld if this certification is inaccurate;
(vi) to the best of their knowledge and belief, there are no suits or proceedings pending
or threatened against or affecting them, which if determined adversely to them will
have a material adverse effect on the ability to fulfill their obligations under the
Contract;
(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;
(viii) as of the effective date of the Contract, are not listed in the prohibited vendors list
authorized by Executive Order #13224, "Blocking Property and Prohibiting
Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism”,
published by the United States Department of the Treasury, Office of Foreign Assets
Control;
(ix) Vendor certifies that, for its performance of this contract, it shall purchase products
and materials produced in the State of Texas when available at the price and time
comparable to products and materials produced outside the state, to the extent that such
is required under Texas Government Code, Section 2155.4441. This certification will
not be interpreted to prohibit or impair Vendor’s provision of product from its then
current and commercially available inventory.
(x) agrees that all equipment and materials used in fulfilling the requirements of this
contract are of high-quality and consistent with or better than applicable industry
standards, if any. All Works and Services performed pursuant to this Contract shall be
of high professional quality and workmanship and according consistent with or better
than applicable industry standards, if any;
(xi) to the extent applicable to this scope of this Contract, Vendor hereby certifies that
it is in compliance with Subchapter Y, Chapter 361, Health and Safety Code related to
the Computer Equipment Recycling Program and its rules, 30 TAC Chapter 328;
(xii) agree that any payments due under this contract will be applied towards any debt,
including but not limited to delinquent taxes and child support that is owed to the State
of Texas;
(xiii) are in compliance Section 669.003, Texas Government Code, relating to
contracting with executive head of a state agency;
(xiv) certify that the provision of goods and services or other performance under the
Contract will not constitute an actual or potential conflict of interest and certify that
they will not reasonably create the appearance of impropriety, and, if these facts change
during the course of the Contract, certify they shall disclose the actual or potential
conflict of interest and any circumstances that create the appearance of impropriety;
(xv) under Section 2155.006, and Section 2261.053, Texas Government Code, are not
ineligible to receive the specified contract and acknowledge that this contract may be
terminated and payment withheld if this certification is inaccurate;
(xvi) have complied with the Section 556.0055, Texas Government Code, restriction
on lobbying expenditures. In addition, they acknowledge the applicability of §2155.444
and §2155.4441, Texas Government Code, in fulfilling the terms of the Contract; and
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(xvii) certify that the Customer’s payment and their receipt of appropriated or other
funds under this Agreement are not prohibited by Sections 556.005 or Section 556.008,
Texas Government Code.
(xviii) certify that in accordance with Section 2270.002 of the Texas Government Code,
by signature hereon, Vendor does not boycott Israel and will not boycott Israel during
the term of this Contract.
During the term of the Contract, Vendor will, for itself and on behalf of its Order
Fulfillers, promptly disclose to DIR any changes that occur to the foregoing
certifications. Vendor covenants to fully cooperate in the development and execution
of resulting documentation necessary to maintain an accurate record of the
certifications.
In addition, Vendor understands and agrees that if Vendor responds to certain Customer
pricing requests or Statements of Work, then, in order to contract with the Customer,
Vendor may be required to comply with additional terms and conditions or
certifications that an individual customer may require due to state and federal law (e.g.,
privacy and security requirements).
S. Section 10. Vendor Responsibilities, G. Responsibility for Actions, is hereby
replaced in its entirety:
1) Vendor is solely responsible for its actions and those of its agents, employees,
or subcontractors, and agrees that neither Vendor nor any of the foregoing has any
authority to act or speak on behalf of DIR or the State.
T. Section 10. Vendor Responsibilities, I. Security of Premises, Equipment, Data and
Personnel, is hereby replaced in its entirety:
a) Vendor and/or Order Fulfiller may, from time to time during the performance
of the Contract, have access to the personnel of Customers and the premises,
equipment, and other tangible property belonging to the Customer. Vendor shall
use commercially reasonable efforts to preserve the safety of such personnel
and the safety, security, and the integrity of such premises, equipment, and other
tangible property, in accordance with the instruction of the applicable Customer
provided to Vendor or the applicable Order Fulfiller by the Customer in writing
or in the manner that Customer generally provides such instructions to its own
employees and other contractors. Vendor shall be responsible for damage to
Customer’s premises, equipment and other tangible property when such
damage is caused by its employee or subcontractor. If Vendor and/or an Order
Fulfiller materially fails to comply with the applicable Customer’s security
requirements, then such Customer may immediately terminate its Purchase
Order and related Service Agreement.
b) In addition, Vendor and/or Order Fulfiller may, from time to time during
performance of the Contract, have access to Customer’s data (“Data”) that is
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hosted either at Customer’s or a third party’s premises (other than premises of
Vendor's Affiliates or subcontractors) (collectively, "Customer Premises") or at
Vendor’s premises or the premises of Vendor's Affiliates or subcontractors
(collectively, "Vendor Premises").
i. As to Data hosted at any Customer Premises, Vendor shall comply with
Customer’s instructions related to preserving the safety, security and
integrity of such Data provided to Vendor or the applicable Order Fulfiller
by the Customer in writing or in the manner that Customer generally
provides such instructions to its own employees and other contractors.
ii. As to Data hosted at any Vendor Premises, Vendor will comply with its
generally applicable security standards designed to preserve the safety,
security and integrity of such Data, as well as any additional security
obligations expressly agreed in the applicable Statement of Work executed
by Customer and Vendor.
iii. Notwithstanding anything to the contrary in this Agreement, including this
Section 10.I, except as otherwise expressly provided in a Statement of Work
executed by Customer and Vendor: (A) Customer is responsible for
backing up its own Data, (B) Vendor and Order Fulfiller shall not have
operational or financial responsibility for refreshes, upgrades, modifications
or improvements to Customer-provided facilities, equipment or software
that may be required to preserve the safety, security and integrity of such
Data, and (C) if Vendor or Order Fulfiller’s compliance with Customer’s
instructions constitutes a material change to the scope of Services or their
other obligations, the parties will equitably adjust the charges to account for
such material change. Vendor and Order Fulfiller shall not be responsible,
or liable for any damages, for any Data losses to the extent such Data cannot
be retrieved due to Customer’s (or Customer’s applicable Third-Party
Vendor’s) failure to use standard industry practices relating to data backups
and retrieval of Data.
iv. If Vendor has Data backup responsibility under the applicable Statement of
Work, Vendor shall be operationally and financially responsible for
restoring such Data that is lost or corrupted as soon as reasonably
practicable in accordance with its Data restore responsibilities set forth in
the Statement of Work, provided that, if the loss or corruption of Data
results from a Force Majeure Event or other event for which Vendor’s non-
performance is excused, then Vendor and Customer will equitably adjust
the charges to account for the additional effort incurred by Vendor in
restoring the Data to the extent such additional charges result from activities
in addition to the responsibilities Vendor is expressly obligated to perform
under the applicable Statement of Work. In either of the foregoing cases in
which additional charges may apply, Vendor will consult with the
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applicable Customer before performing such restoration, and the applicable
Customer may, at its discretion, direct Vendor not to restore the Data.
U. Section 10. Vendor Responsibilities, J. Background and/or Criminal History
Investigation, is hereby replaced in its entirety:
Prior to commencement of any services, background and/or criminal history
investigation of the Vendor’s employees and subcontractors who will be providing
services to the Customer under the Contract may be performed by Vendor or Customers
(as required by Customer), provided this requirement is added to the applicable specific
Purchase Order between such Customer and Vendor. Should any employee or
subcontractor of the Vendor who will be providing services to the Customer under such
Purchase Order 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 and related Service Agreement.
V. Section 10. Vendor Responsibilities, K. Limitation of Liability, is hereby replaced
in its entirety:
For any claim or cause of action arising out of or related to the Contract: i) to
the extent permitted by the Constitution and the laws of the State of Texas,
none of the parties shall be liable to the other for indirect, punitive, special, or
consequential damages, even if it is advised of the possibility of such damages;
and ii) Vendor’s cumulative liability for all claims and damages of any kind to
all Customers under the Contract shall be limited, in the aggregate, to
$5,000,000. The foregoing limitations shall apply regardless of whether the claim
for such damages is based in contract, warranty, strict liability, negligence, tort or
otherwise. Insofar as applicable law prohibits any limitation herein, the parties
agree that such limitation will be automatically modified, but only to the extent so
as to make the limitation permitted to the fullest extent possible under such law.
However, this limitation of Vendor’s liability shall not apply to Vendor’s
indemnification obligations for claims of patent, trademark, or copyright
infringement of Vendor-branded products or Vendor-provided services and
deliverables as set forth in Section 10.A.3 (“Infringements”).
W. Section10. Vendor Responsibilities, L. Overcharges, is hereby replaced in its
entirety:
Vendor hereby assigns to DIR any and all of its claims for overcharges associated
with this contract which arise under the antitrust laws of the United States, 15
U.S.C.A. Section 1, et seq., and which arise under the antitrust laws of the State of
Texas, Tex. Bus. and Comm. Code Section 15.01, et seq., to the extent that such
overcharge was, in fact, passed on to DIR or its Customers in the computer products
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or other goods and/or services purchased by DIR or its Customers under this
Contract during the time period referenced in the litigation.
X. Section 10 Vendor Responsibilities, M. Prohibited Conduct, is hereby deleted in its
entirety because the subject matter is addressed in 10.C.iii.
Y. Section 10. Vendor Responsibilities, N. Required Insurance Coverage, is hereby
replaced in its entirety:
N. Required Insurance Coverage
As a condition of this Contract with DIR, Vendor shall provide the listed insurance
coverage within 5 business days of execution of the Contract if the Vendor is
awarded services which require that Vendor’s employees perform work at any
Customer premises and/or use employer vehicles to conduct work on behalf of
Customers. In addition, when engaged by a Customer to provide services on
Customer premises, the Vendor shall, at its own expense, secure and maintain the
insurance coverage specified herein, and shall provide proof of such insurance
coverage to the related Customer within five (5) business days following the
execution of the Purchase Order. Vendor may not begin performance under the
Contract and/or a Purchase Order until such proof of insurance coverage is provided
to, and approved by, DIR and the Customer. All required insurance must be issued
by companies that have an A rating and a Financial Size Category Class of VII from
A.M. Best and are licensed in the State of Texas and authorized to provide the
corresponding coverage. 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:
1) Commercial General Liability
Commercial General Liability must include $1,000,000 per occurrence for Bodily
Injury and Property Damage, with a separate aggregate limit of $2,000,000;
Medical Expense per person of $5,000; Personal Injury and Advertising Liability
of $1,000,000; Products/Completed Operations Aggregate Limit of $2,000,000;
and Damage to Premises Rented: $50,000. Agencies may require additional
Umbrella/Excess Liability insurance. 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; and
d) Waiver of Subrogation
2) Workers’ Compensation Insurance
WORKERS’ COMPENSATION INSURANCE AND EMPLOYERS’
LIABILITY COVERAGE MUST INCLUDE LIMITS CONSISTENT WITH
STATUTORY BENEFITS OUTLINED IN THE TEXAS WORKERS’
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COMPENSATION ACT (ART. 8308-1.01 ET SEQ. TEX. REV. CIV. STAT)
AND MINIMUM POLICY LIMITS FOR EMPLOYERS’ LIABILITY OF
$1,000,000 BODILY INJURY PER ACCIDENT, $1,000,000 BODILY INJURY
DISEASE PER EMPLOYEE AND $1,000,000 PER DISEASE POLICY LIMIT.
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. The policy shall contain the following
endorsements in favor of DIR and/or Customer:
a) Waiver of Subrogation; and
b) Additional Insured.
Z. Section 10. Vendor Responsibilities, S. Secure Erasure of Hard Disk Products
and/or Services, is hereby replaced in its entirety:
Vendor agrees that all products that are equipped with hard disk drives (e.g.,
computers, servers, printers, scanners, multifunction devices) shall have the
capability to erase data written to the hard drive prior to final disposition of such
managed service products and/or services, either at the end of the managed service
product and/or services’ useful life or at the end of the Customer’s managed service
product and/or services’ useful life or the end of the related Customer Managed
Services Agreement for such products and/or services, in accordance with 1 TAC
202.28.
AA. Section 10. Vendor Responsibilities, T. Deceptive Trade Practices; Unfair
Business Practices, is hereby replaced in its entirety:
Vendor certifies as of the Effective Date of this Contract, that neither Vendor nor
any of its Subcontractors has been (i) found liable in any administrative hearing,
litigation or other proceeding of Deceptive Trade Practices violations as defined
under Chapter 17, Texas Business & Commerce Code, or (ii) has outstanding
allegations of any Deceptive Trade Practice pending in any administrative hearing,
litigation or other proceeding.
Vendor certifies that it has no officers who have served as officers of other entities
who (i) have been found liable in any administrative hearing, litigation or other
proceeding of Deceptive Trade Practices violations or (ii) have outstanding
allegations of any Deceptive Trade Practice pending in any administrative hearing,
litigation or other proceeding.
BB. Section 10. Vendor Responsibilities, U. Drug Free Workplace Policy, is hereby
replaced in its entirety:
Vendor will comply with drug and alcohol rules and regulations that are legally
mandated for employers in the State of Texas. Vendor and Customers may agree to
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more specific requirements for onsite services in a mutually agreed statement of
work.
CC. Section 11. Contract Enforcement, B. Termination, a) Termination for Non-
Appropriation by Customer, is hereby replaced in its entirety:
Customer shall not place 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 ten (10) calendar days
written notice of intent to terminate. 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, nor shall it be liable for any damages or any other amounts
which are caused by or associated with such termination. 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 products and discontinue using services under any return provisions that
Vendor offers.
DD. Section 11. Contract Enforcement, B. Termination, 3) Termination for
Convenience, is hereby replaced in its entirety:
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 if
it is determined by the Customer that Order Fulfiller will not be able to deliver
product or services prior to manufacturing process for products, and for services,
in accordance with a mutually agreed Statement of Work. For qualifying products,
Customer may return following receipt, in accordance with the Vendor’s Return
Policy.
EE. Section 11. Contract Enforcement, C. Force Majeure, is hereby replaced in its
entirety:
DIR, Customer, or Vendor 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
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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 1) its performance is or will be delayed by 20 days or more by event(s) of
Force Majeure (or a longer period if agreed to by the Customer) and 2) if it is
reasonably determined by the Customer that Vendor will not be able to deliver
services in a timely manner to meet the business needs of the Customer.
FF. Section 14. Export Compliance, is hereby added:
Compliance/Export Restrictions. Dell and Customer acknowledge that Products
licensed or sold under this Agreement are subject to the export control laws and
regulations of the United States or those of other countries from which they were
supplied and in which they are used. Under U.S. laws and regulations, Products
purchased under this Agreement may not be sold, leased or otherwise transferred
to restricted end-users or to restricted countries. In addition, the products may not
be sold, leased or otherwise transferred to, or utilized by, an end-user engaged in
activities related to weapons of mass destruction, including but not necessarily
limited to, activities related to the design, development, production or use of nuclear
materials, nuclear facilities, or nuclear weapons, missiles or support of missile
projects, or chemical or biological weapons. Customer warrants that any software
provided by Customer and used as part of the Services contains no encryption or,
to the extent that it contains encryption, such software is approved for export
without a license. If Customer cannot make the preceding representation, Customer
agrees to provide Dell with all of the information needed for Dell to obtain export
licenses from the United States government and to provide Dell with such
additional assistance as may be necessary to obtain such licenses. Notwithstanding
the foregoing, Customer is solely responsible for obtaining any specific licenses
relating to the export of software if a license is needed. Dell may also require export
certifications from Customer for Customer provided software. Dell’s acceptance
of any order for Services is contingent upon the issuance of any applicable export
license required by the United States Government; Dell is not liable for delays or
failure to deliver a product resulting from Customer’s failure to obtain such license
or to provide such certification.
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This Contract is executed to be effective as of January 10, 2018.
Dell Marketing, L.P.
Authorized By: _Signature on File_________ _
Name: _Dudley McClellan_________________
Title: _ Commercial Counsel, Dell Legal___ _
Date: __December 15, 2017________________
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: __ December 18, 2017________________
Office of General Counsel: _DB____ _12/15/2017__
Initials Date