CONTRACT 5432 Leasing AgreementAgreement NO. 5432
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Agreement No. 5432
pitney bowes
Pitney Bowes Mailing, North America is committed to providing our customers with the finest products backed by the highest quality
care and service. As long as you continually maintain coverage with a Pitney Bowes maintenance agreement for hardware and a
software maintenance agreement for software after warranty, Pitney Bowes promises to provide you the following:
Guaranteed product performance
For all new and remanufactured Pitney Bowes branded products provided by Pitney Bowes in the
U.S., we guarantee performance to our specifications for the initial term of the lease or three years if
purchased. If, during that period, the product does not perform to our specifications, and we cannot
repair it, we will replace it with a comparable product. If during the first ninety days after installation
the replacement product does not perform as specified, you will be entitled to a refund of payments
made to us for the replacement product. If the original or replacement product fails to perform due
to the use of a non -Pitney Bowes consumable supply or unapproved software/ hardware
modification, this guarantee will not apply.
Guaranteed nationwide service
Our nationwide service force will respond to service and preventative maintenance requests as part
of your maintenance agreement for hardware. If we find that we cannot return your Pitney Bowes
branded equipment to a satisfactory operating condition within a reasonable time, where
appropriate, we will provide you with a loaner at no additional cost.
Help line support
For customers with products that are supported through our Diagnostics Center, toll-free telephone
technical assistance is available Monday through Friday, 8:00 A.M. until 8:00 P.M. EST exclusive of holidays.
Rate change protection
With our ability to accommodate a wide range of carriers, we are your rate data source. Also, should
you select any of our plans that include software rate protection, we guarantee that you will not be
charged for unexpected rate changes within the scope of your plan.
Operator productivity and training excellence
For all products that we install, our skilled professionals will effectively deliver the agreed upon
installation and training services. Furthermore, if you attend our acclaimed Mail Management
Seminar, we will train your employee(s) on the latest and most efficient use of postal services.
Purchase Power° service
The Pitney Bowes Bank, Inc. provides postage advances to all qualified customers in good standing.
You will not have to pay for postage in advance. You can mail now and pay later when you get your bill.
At Pitney Bowes, we are committed to maintaining long-term partnerships with our customers. If our sales and service support team
has been unable to satisfy you, I would like to hear from you. Please call my office at 800 622 2296.
We won't be satisfied until you are satisfied.
/ s �
Harris Warsaw
Senior Vice President of Global Sales, Global SMB Solutions
Agreement No. 5432
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ADSP016-169897
Mailroorn Equij::)rnent, Supplies and Ma�intenance
(5/15/'17-5/14/22) NEW
AIDSIP016-00006:326
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Agreement No. 5432
STATE OF CALIFORNIA
PARTICIPATING ADDENDUM NO. 7-17-70-41-03
Mailroom Equipment, Supplies and Maintenance
Arizona NASPO ValuePoint Master Agreement No. ADSP016-169897
Pitney Bowes Inc. (Contractor)
This Participating Addendum Number 7-17-70-41-03 is entered into between the State of
California, Department of General Services (hereafter referred to as "State" or "DGS") and
Pitney Bowes Inc. (hereafter referred to as 4 ontractor") under the lead State of Arizona
NASPO ValuePoint Master Agreement Number ADSP016-169897.
1. SCOPE
A. This Participating Addendum covers the purchase of Mailroom Equipment, Supplies and
Maintenance under the Arizona NASPO ValuePolnt Master Agreement. The Arizona
NASPO ValuePoint Master Agreement Number ADSP016-169897 is hereby incorporated
by reference. Producttservice categories included under this Participating Addendum are
identified in Section 5 (Available Products and Services).
B. This Participating Add'enduM is available for use by California state departments/agencies
and political subdivisionsllocal governments. For the purposes of this agreement, a
political subdlvlslonllocall government is defined as any city, county, city and county,
district, or other local governmental body or corporation empowered to expend public
funds.
C. Each political subdivision/local government is to make its own determination whether this
Participating Addendum and the Arizona NASPO ValuePoint Master Agreement are
consistent with its procurement policies and regulations.
2. TERM
A. The term of this Participating Addendum shall begin upon signature approval by the
State and will end May 14, 2019, or upon termination by the State, whichever occurs
first:.
B. Lead State amendments to extend the NASPO ValuePoint Master Agreement term date
are riot automatically Incorporated. Into this Participating Addendum. Extensions) to the
term of this Participating Addendum will be through a written amendment upon mutual
agreement between the State and the Contractor.
C. Purchase order placement and execution shall be on or before the expiration of this
Participating Addendum. However, delivery of products or completion of services may
be after the Participating Addendum expiration date.
3. TERMS AND CONDITIONS/INCORPORATION OF DOCUMENTS
A. Teras and conditions listed below are hereby incorporated by reference and made a part
of this Imllarticipating Addendum as if attached herein and shall apply to the purchase of
goods or services made tinder this Participating Addendum.
Page 1 of 8
Agreement No. 5432
Participating Addendum No. 7-17-70-41-03
Pitney Bowes Inc.
1) General Provisions —Information Technology (GSPD-4011T), effective 9/5/2014.
The twelve (12) page document can be viewed at:
htt ://www,documents,cl s.ca.(ov1 d/ )cli roc/GSPD41111T14 0905, df.
Exception: Article 11 of the General Provisions— Information Technology, is
superseded by Section 4 (Order of Precedence) below.
4. ORDER OF PRECEDENCE
In the event of any inconsistency between the articles, attachments, or provisions which
constitute this agreement, the following descending order of precedence shall apply:
A. California Participating Addendum Number 7-17-70-41-03
B. Arizona NASPO ValuePoint Master Agreement Number ADSP016-169897
C. Arizona Solicitation ADSP016-00006328 including all Addendums
D. Contractor's response to the Arizona Solicitation
5. AVAILABLE PRODUCTS AND SERVICES
A. The following categories from the Arizona NASPO ValuePoint Master Agreement
Number ADSP016-169897 are allowed under this Participating Addendum. SECTION
6. RESTRICTIONS/DISALLOWED PRODUCTS AND SERVICES below lists categories
disallowed for purchase by State Departments.
1) Rental Postage Meter
2) Ultra -Low Volume Mailing Systems
3) Low Volume Mailing Systems
4) Medium Volume Mailing Systems
5) High Volume Mailing Systems
6) Production Volume Mailing Systems
7) Integrated Postal Scales
8) Low Volume Letter Openers
9) High Volume Letter Openers
10) Low Volume Letter Folders
11) High Volume Letter Folders
12) Inserters
13) Low Volume Folder Inserter
14) Medium Volume Folder Inserter
15) High Volume Folder Inserter
16) Production Folder Inserter
17) Software (PC Postage)
18) Low Volume Ink Jet Envelope Addressing System
19) Medium Volume Ink Jet Envelope Addressing System
20) High Volume Ink Jet Envelope Addressing System
21) High Volume Tabbers
22) Pre -Sorting Equipment
23) Miscellaneous Services Awards
a) Software License & Subscription
b) Software Consulting
c) Training
d) Design Production
e) Install Assembly Production
f) Relocation Services
Page 2 of 8
Agreement No. 5432
Participating Addendum No. 7-17-70-41-03
Pitney Bowes Inc.
g) Equipment Lease
6. RESTRICTIONSIDISALLOWED PRODUCTS AND SERVICES
A. The following categories are prohibited for purchase by State Departments under this
Participating Addendum. These restrictions do not apply to local governmental entities.
1) Leasing and Rental Options
2) Products:
a) Remanufactured Equipment
b) Inserters
c) High Volume Tabbers
B. Product and service categories that are available on mandatory California statewide
contracts cannot be purchased from this Participating Addendum by State Departments
without an exemption. State Departments are responsible for obtaining an exemption
from DGS prior to issuing a purchase order. This restriction is not applicable to political
subdivisions/local governments.
7. PRICING
A. Contractor shall submit a California -specific Price List that Incorporates the State
Department exclusions listed in SECTION 6. RESTRICTIONSIDISALLOWED
PRODUCTS AND SERVICES for the State's approval.
B. The California -specific Price List shall include all of the following items:
1) Lead State Award Category
2) Product Name
3) Manufacturer Part Number or Item Number
4) Manufacturer Suggest Retail Price (MSRP)
5) Discount off MSRP
6) Contract Price
C. Contractor shall submit a written notice of price increases/decreases and a revised Price
List for the State's approval.
D. State -approved Price List will be posted on the State's Cal eProcure website.
E. Arizona NASPO ValuePoint-approved Price List for local governmental entity use will be
posted on the State's Cal eProcure website.
8. SOFTWARE LICENSE AGREEMENT
Any need for a software license agreement to reflect the scope and/or limitations of the
software usage shall be negotiated to the mutual agreement of the parties and attached to
the purchase document.
Page 3 of 8
Agreement No. 5432
Participating Addendum No. 7-17-70-41-03
Pitney Bowes Inc.
9. EQUIPMENT ADDITIONSIDELETIONS
A. Contractor may add or delete equipment introduced or removed from the market by the
manufacturer under the following conditions:
1) Equipment is within existing awarded categories under the NASPO ValuePoint
Master Price Agreement;
2) Contractor has obtained prior approval from the Arizona NASPO ValuePoint
Contract Administrator; and
3) Contractor receives written approval from the California State Contract
Administrator.
B. Contractor shall submit a written notice of equipment additions/deletions and a revised
Price List for the State's approval.
C. Contractor shall not add new categories or groups of equipment or services under this
Participating Addendum that were not originally Included in the NASPO Valuepoint
Master Price Agreement.
10. AUTHORIZED RESELLERS
A. Contractor may use State -approved Authorized Resellers under this Participating
Addendum for sales and service functions as defined herein.
S. For the purposes of this Participating Addendum, Authorized Resellers are classified as
follows;
1) "Authorized Resellers"
a. Authorized Resellers may provide quotes, accept purchase orders, fulfill
purchase orders, perform maintenancetwarranty services and accept
payment from ordering agencies for products and associated services
offered under this Participating Addendum.
b. Authorized Resellers are responsible for sending a copy of all purchase
orders and invoices to the Contractor for compliance with quarterly
usage reporting and administrative fee requirements.
c. All purchase documents to Authorized Resellers shall reference the
Participating Addendum Number and Contractor Name.
C. Contractor shall be responsible for successful performance and compliance with all
requirements in accordance with the terms and conditions under this Participating
Addendum, even if work is performed by Authorized Resellers, All State policies,
guidelines, and requirements shall apply to Authorized Resellers.
D. Contractor will be the sole point of contact with regard to Participating Addendum
contractual matters, reporting, and administrative fee requirements.
E. Subject to the approval of the State, Authorized Resellers may be added on a quarterly
basis during the term of the contract. Contractors shall notify the State of any deleted
Page 4of8
Agreement No. 5432
Participating Addendum No. 7-17-70-41-03
Pitney Bowes Inc.
Authorized Resellers or changes to current Authorized Resellers contact information at
any time during the contract term.
F. Contractor will be required to submit Authorized Resellers requests, in a format specified
by the State, to the State Contract Administrator for approval.
G. State -approved Authorized Resellers will be posted on the State's Cal eProcure website.
11. ORDERING AGENCY RESPONSIBILITIES
A. State department and political subdivision/local government use of this Participating
Addendum is optional.
B. State departments and political subdivision/local governments must follow the ordering
procedures outlined within the User Instructions guide, administered by the State
Contract Administrator, to execute orders against this Participating Addendum.
12. DELIVERY
A. Delivery shall occur within 30 calendar days after receipt of order, or as negotiated
between ordering agency and contractor and included in the purchase order, or as
otherwise stipulated in the NASPO ValuePoint Master Agreement.
B. Free On Board (F.O.B.) Destination
13. INVOICING AND PAYMENT
A. Payment terms for this Participating Addendum are net forty-five (45) days. Payment
will be made in accordance with IT General Provisions Paragraph 30 (Required Payment
Date).
B. Invoices shall be sent to the address identified in the Ordering Agency's purchase order.
The State Participating Addendum Number and Ordering Agency Purchase Order
Number shall appear on each invoice for all purchases placed under this Participating
Addendum.
C. Contractor will accept the State of California credit card (CAL -Card) for payment of
invoices.
14. USAGE REPORTING
A. Contractor shall submit usage reports on a quarterly basis to the State Contract
Administrator for all California entity purchases using the report template attached hereto
as Attachment A. The report is due even when there is no activity.
B. The report shall be an Excel spreadsheet transmitted electronically to the DGS mailbox
at f-�i Cogpgf t ��s.ccs .
C. Any report that does not follow the required format or that excludes information will be
deemed incomplete. Contractor will be responsible for submitting corrected reports
within five business days of the date of written notification from the State.
Page 5 of 8
Agreement No. 5432
Participating Addendum No. 7-17-70-41-03
Pitney Bowes Inc.
D. Tax must not be included in the report, even if it is on the purchase order.
E. Reports are due for each quarter as follows:
F. Failure to meet reporting requirements and submit the reports on a timely basis shall
constitute grounds for suspension of this contract.
G. Amendments for term extensions may be approved only if all due reports have been
submitted to the State.
15. ADMINISTRATIVE FEE
A. Contractor shall submit a check, payable to the State of California, remitted to the
Cooperative Agreement Unit for the calculated amount equal to one percent (0.01) of the
sales for the quarterly period.
B. Contractor must include the Participating Addendum Number on the check. Those
checks submitted to the State without the Participating Addendum Number will be
returned to Contractor for additional identifying information.
C. Administrative fee checks shall be submitted to:
State of California
Department of General Services, Procurement Division
Attention: Cooperative Agreement Program
707 3'd Street, 2"d Floor, MS 2-202
West Sacramento, CA 95605
D. The administrative fee shall not be included as an adjustment to Contractor's NASPO
ValuePoint Master Agreement pricing.
E. The administrative fee shall not be invoiced or charged to the ordering agency.
F. Payment of the administrative fee is due irrespective of payment status on orders or
service contracts from a purchasing entity.
G. Administrative fee checks are due for each quarter as follows:
Page 6 of 8
JUL 1
to
SEP 30
OCT 31
OCT 1
to
31
JAN 31
JAN 1
to
_DEC
MAR 31
APR 30
APR 1
to
JUN 30
JUL 31
Page 6 of 8
Agreement No. 5432
Participating Addendum No, 7-17-70-41-03
Pitney Bowes Inc.
N. Failure to meet administrative fee requirements and submit fees on a timely basis shall
constitute grounds for suspension of this contract.
16. CONTRACT MANAGEMENT
A. The primary Contractor Contract Manager for this Participating Addendum shall be as
follows:
Contractor: Pitney Bowes Inc.
Name:
Bill Walter
Phone:
(480) 206-2984
E -Mail:
Bill.Walter@pb.com
Address:
3001 Summer Street
Stamford, CT 06926
B. The State Contract Administrator for this Participating Addendum shall be as follows:
Name: Stacy Jarvis
Phone: (916) 375-4378
E -Mail: Stacy.Jarvis@dgs.ca.gov
Address: State of California
Department of General Services
Procurement Division
707 Third Street, 2nd Floor, MS 2-202
West Sacramento, CA 95605
C. Should the contact information for either party'change, the party will provide written
notice with updated information no later than ten business days after the change.
17. TERMINATION OF AGREEMENT
The State may terminate this Participating Addendum at any time upon 30 days prior written
notice to the Contractor. Upon termination or other expiration of this Participating
Addendum, each party will assist the other party in orderly termination of the Participating
Addendum and the transfer of all assets, tangible and intangible, as may facilitate the
orderly, nondisrupted business continuation of each party. This provision shall not relieve
the Contractor of the obligation to perform under any purchase order or other similar
ordering document executed prior to the termination becoming effective.
18. AMENDMENT
No amendment or variation of the terms of this Participating Addendum shall be valid unless
mate in writing, signed by the parties and approved as required, No oras understanding or
agreement not incorporated in the Participating Addendum Is bir°rding on any of the parties.
Page 7of8
Agreement No. 5432
Participating Addendum No. 7-17-70-41-03
Pitney Bowes Inc.
19. AGREEMENT
A. This Participating Addendum and the Master Agreement together with its exhibits and/or
amendments, set forth the entire agreement between the parties with respect to the
subject matter of all previous communications, representations or agreements, whether
oral or written, with respect to the subject matter hereof. Terms and conditions
inconsistent with, contrary or in addition to the terms and conditions of this Participating
Addendum and the Master Agreement, together with its exhibits and/or amendments,
shall not be added to or incorporated into this Participating Addendum or the Master
Agreement and its exhibits and/or amendments, by any subsequent purchase order or
otherwise, and any such attempts to add or incorporate such terms and conditions are
hereby rejected. The terms and conditions of this Participating Addendum and the
Master Agreement and its exhibits and/or amendments shall prevail and govern in the
case of any such inconsistent or additional terms.
B. By signing below Contractor agrees to offer the same products/and or services as on the
Arizona NASPO ValuePoint Master Agreement Number ADSPO16-169897, at prices
equal to or lower than the prices on that contract.
C. IN WITNESS WHEREOF, the parties have executed this Participating Addendum as of
the date of execution by both parties below.
STATE OF CALIFORNIA CONTRACTOR
De artment of General Services
A,jgeagy Name
Tlltallll' . ............. .
S6nature ofAut aortz^ed Signer d6 Signed'
fY Ricardo G. Martinez, Deputy Director
Printed Name and Title of Authorized Signer
707 Third Street
_West Sacramento, CA 95605
Address
Page 8 of 8
Pitruey Bowes.lnc.
.ontrarter N
Signatur fAulhorizo SPner Vat'e Signed
! � .� 0901#6.
Printed Nam and Tide of Authorized Signer
3001 Summer Street
Stamford, CT 06926
Address
Agreement No. 5432
GSPD-4011T (REVISED AND EFFECTIVE 9/5/14)
GENERAL PROVISIONS - INFORMATION TECHNOLOGY
f. DEFIN1' IONS: Unless otherwise specifled in the Statement of
Work, the following terms shall be given, the meaning shown,
unless context requires otherwise.
a) "Acceptance Tests" means those tests performed during
the Performance Period which are intended to determine
compliance of Equipment and Software with the
specifications and all other Attachments Incorporated herein
by reference and to determine the reliability of the
Equipsnont,
b) "Application Program" means a computer program which
is intended to be executed for the purpose of performing
useful work,, for the user of the information being processed.
Application programs are developed or otherwise acquired
by the user of the 1-kardw,Karo/Software system, but they may
be supplied by the Contractor.
G) "Attachment" means a mechanical, electrical, or electronic
interconnection to the Contractor-supplled Machine or
System of Equipment, manufactured by other than
the original Equipment manufacturer that is not connected
by the Contractor.
d) "Business entity" means any Individual, business,
partnership, joint venture, corporation. S -corporation,
linnffed liability company, sole proprietorship, Joint stock
company, consortium, or other private legal entity
recognized by statute.
e) "Buyer" means the State's authorized contracting official.
f) "°Commorcial Hardware" Means Hardwa, re developed or
regularly ,used that: ('1) has green sold, leased, or licensed to
the general public; (iii) has been offered for sale, lease,
or license to the general public; (iii) has not been offered,
sold, leased, or licensed to the public but will be available for
commerclal sale, lease, or license In time to satisfy fine
delivery requirements of this Contract; or (Iv) salisfics
a criterion expressed In (1), (I1), or (ill) above and would
require only minor modifications to meet the requirements of
this Contract.
g) "Commercial Softwaro" means Software developed or
regularly used! that: (t) has been sold, leased, or licensed to
the general public; (it) has been offered for sale, lease,
or license to the general public; (i1) has not been offered,
said, leased, or licensed to the public but will be available for
commercial sate, lease, or license In time to satisfy than
deitvery requlrernents of this Contract; or (Iv) satisfies
a criterion expressedIn (1), (Ii), or (111) above and would
require only minor modifications to meet the requirements of
this Contract.
h) "Contract" means this Contract or agreement (Including any
purchase order), by whatever name known or in whatever
format used.
1) "Custom Software" means Software that does not meet
the definition of Commercial Software,
D "Contractor" means the Business Entity with whorn the
State enters into this Contract_ Contractor shrill be
synonymous with"suppfi "vendor" or other similar term.
k) "Data Processing Subsystem" means a complement of
Contractor -furnished individual Machines, Including the
necessary controlling elements (or the functional equivalent),
Operating Software and Software, If any, which are acquired
to operate as an lntegratod gFOup, and which are
Interconnected entirely by Contractor-supptled power and/or
signal cables,. e.g., direct acceess controller and drives,
a cluster of terminals with their controller, etc.
1) "Data Processing System (System)" means the total
complement of Contractor-fumished Machines, including one
or more central processors (or instruction processors),
Operating Sollware which are acquired to operate as an
Integrated ' group,
m) "Deliverables" means Goods, Software, Information
'technology, telecommunications technology, Hardware, and
Wier Items (e.g. reports) to be delivered pursuant to this
Contract, Including any such items furnished Incident to the
provision of services,
n) "Designated CPU(s)" means for each product, if appllcaltle,
the central processing unit of the computers or the server
uralt, Including any associated peripheral units. It no specific
"Designated CPU(s)" are sp:encifferl qct the t.orttr°aof„ the tonin
shall mean any and alp CPUs located at tl site speodiled
therein,
o) "Documentation" means manuals and other printed
materials necessary or useful to the State In Its use or
rtmaintenance of the Equipment or Softvrnre provided
hereunder. Manuals and other printed materials customized
for the Stale hereunder constitute Work Product If such
materials are required by the Statement of Work.
p) "Equipment "Is an aft -Inclusive term which refers either to
individual Machines or to a complete Data Processing
Systern or Subsystem, including Its Hardware and Operating
Software (it Orly),
q) "Equipment Failure" Is a malfunction in the Equipment,
excluding all external factors, which prevents the
accornplisfnrneunt of the Equlpim nt's Intended funncllon(s).
If microcode or Operating Software restdlung In the
Equipment Is rr000ssary for file proper operallon of the
Equipment, a failure of such microcode or Operating
Solfwrrre, which prevents the of tine
Equipment°s Irdended lunOlons shall be deemed to be an
Equipment Failure.
r) "Facility Readiness Date" means the date specified in the
Statement of Work by which the State must have the
slte prepared and available for Equipment delivery and
Installatlon,
s) "Goods"' means all types of tangible personal property,
Including but not limited to materials, supplies„ and
E:qulprment (Including computer and telecrrmnuunications
Equipment).
t) "Hardware" usually refers to computer Equipment and is
contrasted with Software. See also Equipment.
u) "Installation Date" means the date specified In the
Statement of Work by which the Contractor must have the
ordered Equipment ready (certified) for use by the State.
V) "information Technology"' Includes, band Is not limited to,
all electronic toohnology systems and services, automated
Information hartdllrng,, Systema design and analysts,
conversion of data, computer prograrrnming Information
storage and retfleval, lalecoummnntcallons which Include
voice, vide,, and data cammuunicallons" requisite Systertn
controls" stuntuitallon, electronic commerce, and all related
intera,ctforms between people and Machines.
W) '"Machine°' reams, an individual unit at a luta Processirig
Systent or Subsysteum, separately Identffied by a typo anc or.
model numbor, comprised of but riot limited to mechank;al,
etectro-mechanical, and electronic parts, microcode,
and specialfeatures installed thereon and Including any
necessary Software, e.g„ central processirig unit, memory
module, tape unit, card reader, etc,
x) "Machine Alteration" means any change to a Contractor -
supplied Machine which Is riot made by the Contracter,
and Mich rest4ts In the Maclaine doviatimj from Its physical,
mechanical, electrical" or electronic (including mlcr000de)
design, Mother or not additional devices or parts are
employed In making such change.
y) "Maintenance Diagnostic Routines" rneans the diagnostic
programs customarily used by the Contractor to tont
Equipment for proper fuamctioning sand reliability.
z) "Manufacturing Materiais means parrs, tools, dies, JIgs,
fixtures, plans, drav ngs, and Information produced or
acquired, or rights acquired, specificaity to fulfill Obligations
sort forth herein,
aa) "Mean Time Between Falluro (MTBF)" means the average
expected or observed time betty en consecutive faltures in a
System or component.
bb) "Mean Time to Repair (MTfR)" means the average
expected or observed time required to repair a System or
compouaent and return It to normal open'zntloru
Page 1 of 12
GSPD-4011T
Agreement No. 5432
(REVISED AND EFFECTIVE 9/5/14)
GENERAL. PROVISIONS- INFORMATION TECHNOLOGY
cc) "Operating Software" rrrear^is those routings, whethnr or not
Identified as Prograrn Products, that res'id'e in the f;qulprnent
and are required for the Equipment to perform its intended
function(s), and which interface the operator, other
Contractor -supplied programs, and user programs to the
Equipment.
dd) "Operational Use Time" means for performance
measurement purposes, that time during which Equipment Is
in actual operation by the State. For maintenance
Operational Use Time purposes, that time dudrig which
Equipment Is in actual operatlon and is not synonyrnous with
power on time.
ee) "Period of Maintenance Coverage" means the period of
time, as selected by the State, during which maintenance
services are provided by the Contractor for a fixed monthly
charge, as opposed to an hourly charge for services
rendered. The Period of Maintenance Coverage consists of
the Principal Period of Maintenance and any additional hours
of coverage per day, andlor Increased coverage for
weekends and holidays.
ff) "Prevo TtIve Maintenance" means that maintenance,
pert'oirned on a scheduled basis by the Contractor, which is
designed to keep the Equipment in proper operating
condition.
gg) "Principal Period of Maintenance' means any nine
consecutive hours per day (usually between the hours of
7:00 am. and 6:00 p.m.) as selected by the State,
Including an official meal period not to exceed one hour,
Monday through Friday, excluding holidays observed at
the installation.
hh) "Programming Aids" means Contractor-suppiled programs
and routines executable on the Contractor's Equipment
which assists a programmer In the development of
applications Including language processors, sorts,
communications modules, data base management systems,
and utility routines, (tape -to -disk routines, disk -to -print
routines, etc.).
ii) "Program Product" means programs, routines,
subroutines, and related items which are proprietary to the
Contractor and which are licensed to the State for its use,
usually on the basis of separately stated charges and
appropriate contractual provisions,
"Remedial Malntonance" means that miIntonan
performed by the Contractor Winch results from Equipment
(Including Operating Software) failure, and Wilch is
performed as required, t e„ on an unscheduled basis.
kk) "Software" means an all-inclusive term which refers to any
computer programs, routines, or subroutines supplied by the
Contractor, including Operating Software, Programming
Aids, Application Programs, and ft -grain Products.
Il) "Software FallurraIneans a malfunction In the Contractor -
supplied Software, other than Operating Software,
which, prevents time accomplishment of work, even though
lite Equipment (including its Operating Software) may still be
capable of operating property. For operating Software
failure„ see definition of Equipment Failure.
mm) "State" means the government of the State of California,
Its employees and authorized representatives, Including
without limitation any department, agency, or other unit of
the government of the State of California.
nn) "Systorn" means the complete collection of Hardware,
Sottvrare and services as describedin this Contract,
integrated and functioning together, and performing in
accordance with this Contract.
oo) "U.S. Intellectual Property Rights" means Intellectual
properly rights enforceable In the United States of America,
Including without limitation rights In trade secrets, copyrights,
and U.S. patents.
CONTRACT FORMATION:
a) If this Contract results from a sealed bid offered In response
to a solicitation conducted pursuant to Chapters 2
(commencing with Section 10290), 3 (commencing with
Section 12100), and 3.6 (commencing Mlh Section 12125)
of Part 2 of Division 2 of the Public Contract Code (PCC),
then Contractor's bid is a firm offer to the State which Is
accepted by the issuance of this Contract and no further
action Is required by either party.
b) If this Contract results from a solicitation other than
described in paragraph a), above, the Contractor's quotation
or proposal is deemed a firm offer and this Contract
document Is the State's acceptance of that offer.
c) If this Contract resulted from a joint bid, it shall be deemed
one Indivisible Contract. Each such joint Contractor will
bejointly and severally liable for the performance of
the entire Contract. The State assumes no responsibility or
obligation for the division of orders or purchases among
joint Contractors.
3. COMPLETE INTEGRATION: This Contract, Including any
documents incorporated herein by express reference, Is intended
to be a complete integration and there are no prior or
contemporaneous different or additional agreements pertaining to
the subject matter of the Contract.
4„ SEVERABILITY: The Contractor and the State agree that if any
provision of this Contract Is found to be illegal or unenforceable,
such term or provision shall be deemed stricken and the
remainder of the Contract shall remain in full force and effect.
Either party having knowledge of such term or provision shall
promptly inform the other of the presumed non -applicability of
such provision.
5, INDEPENDENT CONTRACTOR: Contractor and the agents and
employees of the Contractor, In the performance of this Contract,
shall act in an independent capacity and not as officers or
employees or agents of the State,
6, APPLICABLE LAW: This Contract shall be governed by and
shall be interpreted in accordance with the laws of the State of
Cal(fomia; venue of any action brought with regard to this
Contract shall be Intw rto County, try, California.
The United Nations Conn" ort Contra is for (tie Inter„rratfonal
Sats of Goods shall not apply to hits Confract^. , A, „
7. COMPLIANCE WITH STATUTES AND REGULATIONS:
a) The Slate and the Contractor warrants and certifies that in
the performance of this Contract, it will comply with all
applicable statutes, rules, regulations and orders of the
United Stales and the State of California. The Contractor
agrees to indemnify the State against any loss, cost,
damage or liability by reason of the Contractor=s violation of
this provision.
b) The State Wit notify the Contractor of any such claim in
wrtiting and tender the defense thereof within a reasonable
time; and
c) The Contractor will have sole control of the defense of any
action on such claim and all negotiations for Its settlement or
compromise; provided that (1) when substantial principles of
government or public law are involved, when litigation might
create precedent affecting future State operations or flabllity,
or when involvement of the State is otherwise mandated by
law, the State may participate In such action at Its our
expense with respect to attorneys' fees and costs (Inst not
liability); (11) Mere a settlement would fraapose liability on the
State, affect principles of California government or public
law, or impact the authority of the State, the Department of
General Services will have the right to approve or
disapprove any settlement or compromise,
which approval will not unreasonably be withheld or delayed;
and (ill) the State will reasonably cooperate in the defense
and in any related settlement negotiations.
d) If this Contract is In excess of $564,000, It Is subject to the
requirements of the World Trade Organization (WTO)
Government Procurement Agreement (GPA).
e) To the extent that Oils Contract falls Wthln the scope of
Government Code Sect ou 11135, the Contractor hereby
agrees to respond to and resolve any complaint brought to
Page 2 of 12
t.
Agreement No. 5432
GSPD-4011T (REVISED AND EFFECTIVE 9!5114)
GENERAL PROVISIONS - INFORMATION TECHNOLOGY
its attention, regarding accessibility of its products or
services.
CONTRACTOR'S POWER AND AUTHORITY: The Contractor
vrarrants that it has full power and authority to grant the rights
herein granted and will hold the State harmless from and against
any loss, cost, liability, and expense (Including reasonable
attorney fees) arising out of any breach of this warranty.
Further, the Contractor avers that It will not enter Into any
arrangement with any third party which might abridge any rights of
the State under this Contract.
a) The State will notify the Contractor of any such claim In
writing and tender the defense thereof within a reasonable
time; and
b) The Contractor will have sole control of the defense of any
action on such claim and all negotiations for its settlement or
compromise; provided that (1) Men substantial pdnclples of
government or public law are involved, when litigation might
create precedent affecting future State operations or liability,
or when Involvement of the State is otherwise mandated by
law, the State may participate in such action at its
own expense with respect to attorneys' fees and costs
(but not liability); (it) where a settlement would impose
liability on the State, affect principles of California
government or public law, or impact the authority of the
State, the Department of General Services will have the right
to approve or disapprove any settlement or compromise,
vvhlch approval will not unreasonably be withheld or delayed;
and (iii) the Stale will reasonably cooperate In the defense
and in any related settlement negotiations.
9, ASSIGNMENT. This Contract shall not be assignable by the
Contractor In whole or In part without the written consent of the
State. The State's consent shall not be unreasonably withheld or
delayed. For the purpose of this paragraph, the State will not
unreasonably prohibit the Contractor from freely assigning its right
to payment, provided that the Contractor remains responsible for
Its obligations hereunder.
13.
10. WAVER OF RIGHTS: Any action or inactlon by the State or the
failure of the State on any occasion, to enforce any right or 14.
provision of the Contract, shall not be construed to be a waiver by
the State of its rights hereunder and shall not prevent the State
from enforcing such provision or right on any future occasion.
The rights and remedies of the State herein are cumulative and
are In addition to any father rights or remedies that the State may
have at law or in equity.
11. ORDER OF PRECEDENCE. In the event of any inconsistency
between the articles, attachments, specifications or provisions
which constitute this Contract, the following order of precedence
shall apply:
a) These General Provisions — Information Technology (In the
instances provided herein where the paragraph bagina:
''Unloss otherwise specified In the Statement. of Work'
provisions specifiedIn the Staternertt of Wort replacing
these paragraphs shall lake precedence over the paragraph
referenced in these General Provisions);
b) Contract form, Le., Purchase warder STD 65, Standard
Agreement STD 213, etc., and any amendments thereto;
c) Other Special Provisions;
d) Statement of Work, including any specifications Incorporated
by reference herelrr;
e) Cost worksheets; and
0 All other attachments Incorporated In the Contract
by reference.
12. PACKING AND SHIPMENT.
a) All Goods are to be packed In suitable containers for
protection in shipment and storage, and in accordance with
applicable specifications, Each container of a multiple
container shipment shall be identified to;
1) show the number of the container and the total number
of containers in the shipment; and
11) the number of the container in which the packing sheet
has been enclosed.
b) All shIpments by the Contractor or its subcontractors must.
Include packing sheets identifying: the Sta'te's Corulract
number; item number; quantity and unit of measure;
part number and descripIfon of the goods shipped;
and appropriate ovldenco of €nspectlon, If requlrod.
Goods for diffesont Contracts shall be Iisted on soprirate
packing sheets.
c) Shipments must be made as specified in this Contract, as it
may be amended, or otheMse directed in milling by the
State's Transportation Management Unit within the
Department of General Services, Procurement Division.
TRANSPORTATION COSTS AND OTHER FEES OR
EXPENSES: No charge for delivery, drayage express, parcel
post, packing, cartage, insurance, license fees, pe:annits, cost of
bonds, or for any oftrer purpose will bo paid by the Stale unless
expressly Included and ilemlied inthe Contract.
a) "fire Contractor must strictly follow Contraoq requiae,niwils'
regarding Free on Board (F.O.B.), freight terns and routlrig
instructions The Slate may permit use of are ailernote
carrier at no additional cost to the State with advance written
authorization of the Buyer.
b) If "prepay and add"' Is selected, sulrporfing freight bills are
required viten over $ 0, unless an exact freight charge is
approved by the Transporlition Maraagenlent Unit Wthin the
Department of General Services Procurement Division and a
waiver is granted.
c) On "F.O.B. Shipping Point" transactions, should any
shipments under the Contract be received by the State in a
darnaged condition acrd any related freight lass and darnage
Claims filed against The carrier or carriers be Molly or
partially declined by the carrier or carriers + flti the Inference
that damage was the result of the act of the shipper such as
inadequate packaging or loading or some inherent defect in
the Equipment andlor material, the Contractor, on request of
the State, shall at Contractor's own expense assist the State
in establishing carrier liability by supplying evidence that the
Equipment and/or material was properly constructed,
manufactured, packaged, and secured to withstand normal
transportation conditions.
DELIVER., The Contractor shall strictly adhere to the dedlvery
and completion schedules specified In this Contract. Time, if stated
as a number of days, shall nrean calendar days unless
otherwise specified. The quantities specified herein are the ordy
quarittlic : required, If the Contractor delivers in excess of Vie
quantities specified herein, the State shall not be required to make
any payment for the excess Dellverables, and may return them
to Contractor at the Contractor's expense or utilize any other rights
available to the Stale at law or in equity,
15. SUBSTITUTIONS: Subs ilullon of Deliverables niay not be
tendered without advance +miter consent of the Buyer. The
Contractor shall not use any specification In Rau of those
contained In the Contract Mhout written consent of the Buyer..
16. INSPECTION, ACCEPTANCE AND REJECTION: Unless
otherwise specified in the Statement of Work:
a) When acquiring Commercial Hardware or Commercial
Software, the Stater shall rely err Contractor's existing quality
assurance systeara as a substitute for State Inspectlorr and
testing. For all other acquisitions, Contractor and Its
subcontractors will provide and maintain a quality assurance
system acceptable to the State covering Dellverebtes and
services under this Contract and wilt tender to the Stale only
those Dellvarables that have been inspected arid found to
conform to thts Contract's requirements. "rho Contractor Will
keep records evidencing Inspections and their result, and will
make these records avallable to the State during Contract
performance and for three years after final payment, The
Contractor shall paaratrlt the Slate to review procedures,
praollces, processes,
and related documents to determine tine acceptability of the
COntractOes quality assurance System or other similar
business practices related to performance of the Contract.
Page 3 of 12
Agreement No. 5432
GSPD-401 IT (REVISED AND EFFECTIVE 9/5114)
GENERAL PROVISIONS -- INFORMATION TECHNOLOGY
b) All Deliverables may be subject to inspection and test by the
Stale or its authorized representatives,
c) The Contractor and its subcontractors shall provide all
reasonable facilities for the safety and convenience of
inspectors at no additional cost to the State. The Contractor
shall furnish to inspectors all Information and data as may be
reasonably required to perform their Inspection.
d) Subject to subsection 16 (a) above, all Deliverables may be
subject to final Inspection, fest and acceptance by the State
at destination, notwithstanding any payment or Inspection at
source..
e) The State shalt give written notice of rejection of
Deliverables delivered or services performed hereunder
within a reasonable time after receipt of such Dellverables or
performance of such services. Such notice of rejection will
state the respects in which the Deliverables do not
substantially conform to their specifications. If the State
does not provide such notice of rejection within fifteen (15)
days of delivery for purchases of Commercial Hardware or
Commercial Software or thirty (30) days of delivery for all
other purchases, such Deliverables and services will be
deemed to have been accepted. Acceptance by the State
will be final and irreversible, except as it relates to latent
defects, fraud, and gross mistakes amounting to fraud.
Acceptance shall not be construed to waive any warranty
rights (hat the State might have at law or by
express reservation In this Contract with respect to
any nonccrrrformlty.
i Unless otherwise specified in the Statement of Work, title to
Equipment shall remain with the Contractor and assigns, If
any, unfit such time as successful acceptance testing has
been achieved. Title to a spebial feature installed on a
Machine and for which only a single installation charge was
paid shall pass to the State at no additional charge, together
with title to the Machine on Mich it was Installed.
17. SAMPLES:
a) Samples of items may be required by the State for
inspection and specification testing and must be furnished
free of expense to the State, The samples furnished most
be identical In all respeols to the products bid andlor
specified In the Contract.
b) Samples, if not destroyed by tests, may, upon request made
at the time the sample is furnished, be returned at the
Contractor's expense.
18. WARRANTY:
a) Unless otherwise speolfled In the Statement of Work,
the warranties in this subsection a) begin upon delivery of
the goods or services In question and end one (1) year
thereafter. The Contractor warrants that (l) Dellverables and
services furnished hereunder will substantially conform to
the requirements of this Contract (Including without limitation
all descriptions, specifrcaWns, and drawings Identified in the
Statement of Work), and f? the Deliverables will be free
from material defects in materials and workmanshlp. Where
the parties have agreed to design spe,c1ficallons (such as a
Detailed Malign Document) and Incorporated the same or
equivalent in the Statement of Work directly or by reference,
the Contractor will warrant that It's Dellverables provide all
material functionality required thereby. In addition to the
other warranties set forth herein, where the Contract cans for
delivery of Commercial Software, the Contractor warrants
that such Saftware will perform In accordance with Its license
and accompanying Documentation. The State's approval of
designs or speclficatlons furnished by Contractor shall not
relieve the Contractor of Its obligations under this warranty.
b) The Contractor warrants that Dellverables furnished
hereunder p) will be free, at the time of delivery, of harmful
code
(,e, computer viruses, worms, trap doors, time tombs,
disabling code, or any similar malicious mechanism
designed to interfere with the intended operation of, or cause
damage to, computers, data, or Software): and (G) will not
infringe or violate any U.S. Intellectual Property Right
Without limiting the generality of the foregoing, if the State
believes that harmful code may be present in any
Commercial Software delivered hereunder, the Contractor
will, upon the State's request, provide a new or clean install
of the Software.
c) Unless otherwise specified in the Statement of Work;
(i) The Contractor does not warrant that any Software
provided hereunder is error -free or that it will run
without immaterial interruption.
(it) The Contractor does not warrant and will have no
responsbillty for a claim to the extent that it arises
directly from (A) a modification made by the Stale,
unless such modification Is approved or directed by the
Contractor, (B) use of Software in combination with or
on products other than as specified by (he Contractor,
or (C) misuse by the State.
(iii) Where the Contractor resells Commercial Hardware or
Commercial Software It purchased from a third party,
Contractor, to the extent It is legally able to do so, will
pass through any such third party warrantles to the
State and will reasonably cooperate in enforcing them.
Such warranty pass-through will not relieve the
Contractor from Contractor's warranty obligations set
forth above.
d) All warranties, including special warranties specified
elsewhere herein; shall Inure to the State, Its successors,
assigns, customer agencies and governmental users of the
Dellverables or services.
e) Except as may be specifically provided in the Statement of
Work or elsewhere in this Contract:, for any breach of the
warranties provided in this Section, the State's exclusive
remedy and the Contractor's sole obligation will be limited to:
(1) re -performance, repair, or replacement of the
nonconforming Deliverable (including without limitation
an Infringing Deliverable) or service; or
(i7 should the State in its sole discretion consent, refund of
all amounts paid by the State for the nonconforming
Deliverable or service and payment to the State of any
additional amounts necessary to equal the State's Cost
to Cover. "Cost to Cover" means the cost, properly
mitigated, of procuring Deliverables or services of
equivalent capability, function, and performance. The
payment obligation In subsection (e)pi) above will not
exceed the limits on the Contractor's lability set forth In
the Section entitled'Limitation of Liablllty "
f) EXCEPT FOR THE EXPRESS WARRANTIES SPECIFIED
IN THIS SECTION, THE CONTRACTOR MAKES NO
WARRANTIES EITHER EXPRESS OR IMPLIED,
INCLUDING WITHOUT LIMITATION ANY IMPLIED
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR
A PARTICULAR PURPOSE.
18. SAFETY AND ACCIDENT PREVENTION; In performing work
under this Contract on Slate premises, the Contractor shall
conform to any specific safety requirements contained In the
Contract or as required by law or regulation. The Contractor shall
take any additional precautions as the Slate may reasonably
require for safety and accident prevention purposes. Any
violation of such rules and requirements, unless promptly
corrected, shall be grounds for termination of this Contract in
accordance with the default provisions hereof.
20. INSURANCE: The Contractor shall maintain all commercial
general liability Insurance, workers' compensation insurance and
any other Insurance required under the Contract. The
Contractor shall furnish insurance certificates) evidencing
required insurance coverage acceptable to the State, Including
endorsements showing the State as an 'additional Insured' If
required under the Contract. Any required endorsements
requested by the State must be separately provided; merely
referring to such coverage on the certificates(s) Is insufficient for
this purpose. When performing work on state owned or controlled
properly, Contractor shall provide a waiver of subrogatlon In favor
of the State for its workers' compensation policy.
21.TERMiNATION FOR NON -APPROPRIATION OF FUNDS:
Page 4 of 12
Agreement No. 5432
GSPD-401 IT (REVISED AND EFFECTIVE 915114)
GENERAL PROVISIONS -- INFORMATION TECHNOLOGY
a) If the term of this Contract extends Into fiscal years
subsequent to that In which It Is approved, such continuation
of the Contract is contingent on the appropriation of funds for
such purpose by the Legislature. If funds to effect such
continued payment are not appropriated, the Contractor
agrees to take back any affected Dellverables furnished
underthis, Contract, terminate any services supplied to the
State unrler this Contract, and relleve the State of any further
obligation therefor.
b) The State agrees that If It appears likely That suiection a)
above will he Invoked, the State and Contractor shall agree
to take all reasonable steps to prioritize work and
Deliverables and mintalize, the Incurrence of costs prior to
the expiration of funding forthis Contract.
c) THE STATE AGREES THAT IF PARAGRAPH a) ABOVE IS
INVOKED, COMMERCIAL HARDWARE AND SOFTWARE
THAT HAS NOT BEEN PAID FOR SHALL BE RETURNED
TO THE CONTRACTOR IN SUBSTANTIALLY THE SAME
CONDITION IN WHICH DELIVERED TO THE STATE,
SUBJECT TO NORMAL WEAR AND TEAR.
THE STATE FURTHER AGREES TO PAY FOR PACKING,
CRATING, TRANSPORTATION TO THE CONTRACTOR'S
NEAREST FACILITY AND FOR REIMBURSEMENT TO
THE CONTRACTOR FOR EXPENSES INCURRED FOR
THEIR ASSISTANCE IN SUCH PACKING AND CRATING.
22. TERMINATION FOR THE CONVENIENCE OF THE STATE:
a) The Slate may terminate performance of mrk under this
Contract for Its convenience In whole or, from time to time, In
part, if the Department of General Services, Deputy Director
Procurement Division, or designee, determines that a
termination is in the Staten's Interest. The Department of
General Services, Deputy Director, Procurement Division,
or designee, shall terminate by delivering to the Contractor a
Notice of Termination specifying the extent of termination
and the, effective date thereof.
b) After receipt of a Notice of Termination, and except as
directed by the State, the. Contractor shall immediately
proceed uvula the following obllgat'foras, as applicable:,
regardless of tiny delay In detonnfning or adjusting any
amounts due ureter this clause. The Contractor shaW
(d) Stop work as specified In the Notice of Termination.
(i1) Place no further subcontracts for 'materials, services,
or facilities, except as necessary to complete the
continuing portion of the Contract.
(iii) Terminate all subcontracts to the extent they relate to
thework terminated.
(Iv) Settle all outstanding liabilities and termination
settlement proposals arising from the termination
of subcontracts;
c) After termination, the Contractor shall submit a final
termination settlement proposal to the State In the form and
with the information prescribed by the State. The Contractor
shall submit the proposal promptly, but no later than 90 days
after the effective date of temrrinallon, unless a different time
is provided In the Statement of Work or in the Notice of
Termination.
d) The Contractor and the State may agree upon the whole or
any part of the amount to be pald as requested under
subsection (p) above.
e) Unless otherwise set forth in the Statement of Work, if the
Contractor and the State fall to agree on the amount to be
paid because of the termination for convenience, the State
Wit pay Ilse Contractor the following amounts; provicled that
In no event will total payments exceed the amount payable
to tine Contractor If Ilia Contract had been frilly performed;
(1) The Contract price for Deliverables or services
accepted or retained by the State and not previously
paid for; adjusted for any savings on freight and other
charges, and
(11) The total of:
A) The reasonable costs Incurred In the performance
of the work terminated, Including initial costs and
preparatory expenses allocable thereto,
but excluding any cost attributable to Deliverables
or services paid or to be paid;
B) Tim reasontrbler cost of settling and paying
termination settlement proposals urulor terminated
subcontracts drat We property chargeable to the
terminated portion of llae Contract,,, and
C) Reasonable storage, trans artatior'r,
demobilization, uraarnaerNlzed overhead and capital
costs, and other costs reasonably Incairred by the
Coratr8010r ill Wndaag dower and terrninaling
Its work.
f) The Contractor Will use gerteratiy accepted accounting
prinol'ptes, or accounting princlplas otherwise agreed to in
writing by the parties„ and Sound busiriess practices In
determintrg alt costs claimed, agreed to, or doterrnl'ned
cinder this clause..
23. TERMINATION FOR DEFAULT:
a) The State may, subject to the clause titled '*force Majeure'
and to sub-seclion d) belwty, by written notice of default to
the Contractor, lonrrinate thts Contract. In vdaole or in part if
the Contractor falls to:
1) Deliver the Detiverables or perform the services Within
the time specified In the Contract or any amendment
thereto;
ii) Make progress„ So that tine lacks of progress endangers
performance of this Contract; or
Ili} Perform any of the otherprovlsloris of this Contract.
b) The State's right to terminate, this Confraot under sub•seclion
a) above, may be exercised only if the failure constitutor, a
material breach or this Contract and If the Contractor does
not cure such failure within the time frame stated In fire:
State's cure notice, which in no event will be less than
fifteen (15) days, unless the Statement of Work calls for a
different period.
c) If (lie Slate tennInates this Contract In whole or In part
PUrStlant to this SeCdon, It may acquire„ uruicr, terrns and In
the mannar (lie Buyer considers appropriate, Dellverables or
services sloilliar to those lanninated, and Ilia Contractor will
be liable to the State for arty excess costs for those
Dellver abler and services, Inclu(fi g without Ilrmitation costs
third party vendors charge for Manufacturing Materials
(but subject to the clause entitled 'Uniltation of 'Liability),
l•loWever, the Contractor shall continue the work
not terminated.
d) If the Contract Is terminated for default, the State rimy
require the Contractor to transfer title„ or In the case of
ticered Software, license, and deliver to tine State,
as directed by the Buyer,, any:
(t) completed Deliverables,
(11) partially completed Deliverables, and,
(IID subject to provisions of sub -section e) below,
Manufacturing Materials related to the terminated
portion of this Contract,. Nothing in this sorb -section d)
WIl be construed to grant the State rights to
Deliverables that. It would not have received had this
Contract been fully performed. Upon direction of tho
Buyer, the Contractor shall also protect and preserve
property In its possession In which tare State has
an interest.
e) The State $]nail pay Contract price for completed
Deflverables delivererd and accepted and tremas the State
requires the Conlractor to transfer under. section (d) above.
Unless the Staternont of Work calla for different procedures
or requires no -charge delivery of materials„ (lie Contractor
and Buyer shall attempt to agree on the amount of payment
for Manufacturing Materials and other materials delivered
and accepted by the State for the protection and
preservation of the property; provided that Wiere the
Contractor has billed the State for any such nraterlats, no
additional charge Wil apply. Failure to agree Wit constitute a
dispute under the Disputes clause, The State may vdthhold
from these amounts any sura 11 delemadnes to be necessary
to protect Ilia estate against loss baoause of outstanding (lens
or debris of former llen holders.
Page 6 of 12
GSPD-4011T
24.
25.
26.
Agreement No. 5432
(REVISED AND EFFECTIVE 9/5/2014)
GENERAL PROVISIONS — INFORMATION TECHNOLOGY
t) If, after lermination, it Is detemitned by a final derision that
the Contractor was not In default, the rig his and obligations
of the parties shall be the same as If the termination had
been issued for the convenlence of the State.
g) Both parties, State and Contractor, upon any termination for
default, have a duty to mitigate the damages suffered by It
h) The rights and remedies of the State in this clause are in
addition to any other rights and remedies provided by law or
under this Contract, and are subject to the clause titled
"Umitatlon of Uabilily."
FORCE MAJEURE: Except for defaults of subcontractors at any
tier, the Contractor shall not be liable for any excess costs if the
failure to perform the Contract arises from causes beyond the
control and without the fault or negligence of the Contractor.
Examples of such causes include, but are not limited to:
a) Acts of God or of the public enemy, and
b) Acts of the federal or State government in either its
sovereign or contractual capacity.
If the fal'iute to perform is caused by ilia default of a subcontractor
at any tier„ and if the cause of the default Is beyond the control of
both the Contractor and subcontractor, and without the fault or
negligence of either, the Contractor shall not be liable for any
excess costs for failure to perform.
RIGHTS AND REMEDIES OF STATE FOR DEFAULT:
a) In the event any Deliverables furnished or services provided
by the Contractor in the performance of the Contract should
fall to conform to the requirements herein, or to the sample
submitted by the Contractor, the State may reject the same,
and it shall become the duty of the Contractor to reclaim and
remove the Item promptly or to correct the performance of
services, without expense to the State, and immediately
replace all such rejected items with others conforming to the
Contract.
b) In addition to any other rights and remedies the State may
have, the State may require the Contractor, at Contractor's
expense, to ship Deliverables via air freight or expedited
routing to avoid or mtailmire actual or potential delay if the
delay Is the fault of tho Contractor.
c) in the event of the termination of the Contract, either in
Mote or In part, by reason of default or breach by the
Contractor, any loss or damage sustained by the State In
procuring any Items which the Contractor agreed to supply
shalt be borne and paid for by the Contractor (but subject to
the clause entitled "Limitation of Llability').
d) 'Ciro State reserves the right to offset tine reasonable cost of
all damages caused to the State against any outstanding
Invoices or amounts cawed to the Contractor or to make a
claim against the Contractor therefore.
LIMITATION OF LIABILITY:
a) Except as may be otherwise approved by the Department of
General Services Deputy Director, Procurement Division or
their designee, Contractors hablilly tor, darnages to the State
for any cause Wialsoever, and regardless of the form of
action, W*Iher In Contract or In tort„ shalt be limited to the
Purchase Price. For purposes of this sub -section a),
'Purchase Price' will mean the. aggregate Contract: price;
except that, with respect to a Contract under which multiple
purchase orders will be issued (e.g,,, a Master Agreement or
lulllple Award Schedulecontract), "'Purchase Price" Wil
rmeaur the total price of ilia purchase order for the
Dellverabie() or servlce(s) that gave rise to the loss, such
that the Contractor will have a separate limitation of liability
for each purchase order,
b) The, foregoing ilmitafion of liability shall riot apply (4) to any
liability under the General Pro sloes entitled "Compliance
with Statutes and Regulations" (1,0 to liability Linder the
General Provisions, entitled "Patent, Copyright, and Trade
Secret Indenublty" or to any other liability (including without
limitation Indemrifficatlon obligations) for Infringement of third
party Intellectuat property rights'; (461) to claIrns arising under
provisions herelm calling tot- indemnlficatdon for third party
claims against the State for death, bodily Injury to porsorrs or
damage to real or, fartgtirle personal property caused by the
Contractor's negligence or Wilful misconducC or (4v) to tosis
or attorney's fees that the 'St'ate become entitled to recover
as a prevailing party in -any action,
c) The State's liability for damages for any cause whatsoever,
and regardless of the form of action, whether in Contract or
in tort, shall be limited to the Purchase Price, as that tern Is
defined In subsection a) above. Nothing herein shall be
construed to waive or limit the State's sovereign immunity or
any other immunity from suit provided by law.
d) In aro event Wil either the Contractor or the State be liable for
consequential, Incldonlarl, Indirect, special, or punilive
damages, even if notification has been given as to the
possibility of such damages, except (f) to the extent that the
Contractor's liability for such damages Is specifically set forth
In the Statement of Work or (11) to the extent that the
Contractor's liability for such damages arises out of sub-
section b)(1), b)(i), or b)(iv) above.
27. CONTRACTOR'S LIABILITY FOR INJURY TO PERSONS OR
DAMAGE TO PROPERTY:
a) The Contractor shall be liable for damages arising out of
injury to the person and/or damage to the property of the
State, employees of the State, persons designated by the
State for training, or any other person(s) other than agents or
employees of the Contractor, designated by the State for any
purpose, prior to, during, or subsequent to delivery,
installation, acceptance, and use of the Deliverables either at
the Contractor's site or at the State's place of business,
provided that the injury or damage was caused by the fault
or negligence of the Contractor,
b) The Contractor shall not be liable for damages arising out of
or caused by an alteration or an Attachment not made or
Installed by the Contractor, or for damage to alterations or
Attachments that may result from the normal operation and
maintenance of the Deliverables provided by the Contractor
during the Contract.
26. INDEMNIFICATION: The Contractor agrees to indemnify, defend
and save harmless the State, Its officers, agents and employees
from any and all third party claims, costs (including without
limitation reasonable attorneys' fees), and losses due to the Injury
or death of any Individual„ or the loss or damage to any real or
tangible personal property, resulting from the wiliful misconduct or
negligent acts v omissions of the Contractor or any of its
affflfate% agents, subcontractors, ernployees, suppliers, or
laborers furnishing or supplying work, services, materials, or
supplies in connection with the performance of this Contract.
Such defense and payment will be conditional upon
the following:
a) The State will notify the Contractor of any such claim In
writing and tender the defense thereof vdthln a reasonable
time; and
b) The Contractor will have sole control of the defense of any
action on such claim and all negotiations for its settlement or
compromise; provided that (1) when substantial principles of
government or public law are involved, when litigation might
create precedent affecting future State operations or liability,
or when involvement of the State is otherwise mandated by
law, the State may participate In such action at Its own
expense with respect to attorneys' fees and costs (but riot
liability); (11) 'urrtrere a settlement would Impose llabfiity on taxa
State, affect principles of California government or public
law, or Impact the authority of the State, the Department of
General Services will have the right to approve or
disapprove any settlement or compromise, which approval
will not unreasonably be withheld or delayed; and (til) the
State will reasonably cooperate In the defense and In any
related settlement negotiations.
29, INVOICES: Unless otherwise specified, Invoices shall be sent to
the address set forth herein, Invoices shall be submitted In
triplicate and shall Include the Contract number, rolease order
number (If applicable); Itern number; unfit price, extended Item
price and 'invoice total amount. State safes tax and/or use tax
shall be Itemized separately and adder/ to each Invoice as
applicable.
Page 6 of 12
Agreement No. 5432
GSPD-4011T (REVISED AND EFFECTIVE 9/5/2014)
GENERAL PROVISIONS — INFORMATION TECHNOLOGY
30. REQUIRED PAYMENT DATE: Payment will be made In
acoorriarwe with the provislons of the California Prompt Payment
Act, Government Code Section 927 et. seq, Unless expressly 37
exempted by statute, the A I: requires State agencies iris to pay
property subrrptted, undisputed invoices not more than 45 days
after (1) the dtde of acceptance of Del[verables or performance
of services; or (ii) receipt of an undisputed invoice,
whichever is later.
31.
32.
33.
34.
35.
36.
TAXES: Unless otherwise required by law, the State of California
Is exempt from Federal excise taxes. The State will only pay for
any State or local sales or use taxes on the services rendered or
Goods supplied to the State pursuant to this Contract.
NEWLY MANUFACTURED GOODS: All Goods furnished under
this Contract shall be newly manufactured Goods or certified as
new and warranted as new by the manufacturer; used or
reconditioned Goods are prohibited, unless otherwise specified.
CONTRACT MODIFICATION: No amendment or variation of the
terms of this Contract shall be valld unless made In writing, signed
by the parties and approved as required. No oral understanding
or agreement not Incorporated In the Contract is binding on any of
the parties.
CONFIDENTIALITY OF DATA All financial, statistical, personal,
technical and other data and information relating to the State's
operation which are designated confidential by the State and
ntade available to the Contractor In order to carry out this
Contract, or which become available to the Contractor In carrying
out this Contract, shall be protected by the Contractor from
unauthorized use and disclosure through the observance of the
same or more offective procedural requlremenls as are applicable
to the State. The identification of all such confidential data and
Information as well as the State's procedural requirornents for
protection of such data and information from unauthorized use
and disclosure shall be provided by the State in wlting to the
Contractor. if the methods and procedures employed by the
Contractor for time protection of the Contractors data and
information are deemed by the State to be adequate for the
protection of the State's confidential information, such methods
and procedures may be used, with the written consent of the
State, to carry out the intent of this paragraph. The Contractor
shall not be required under the provisions of this paragraph to
keep conffdontial any data or information which Is or becomes
publicly available, Is already rightfully In the Contractor's
possession without obligation of confidentiality, is Independently
developed by the Contractor outside the scrape of this Contract, or
is rightfully obtained from third parties.
NEWS RELEASES: Unless otherwise exempted, news releases,
endorsements, advertising, and social media content pertaining
to this Contract shall not be made without prior written approval of
the Department of General Services.
DOCUMENTATION:
a) The Contractor agrees to provide to the Slate, at no charge,
all Documentation as described within the Statement of
Work, and updated versions thereof, which are necessary or
useful to the State In Its use of the Equipment or Software
provided hereunder. The Contractor agrees to provide
additional Documentation at prices not in excess of charges
made by the Contractor to its other customers for
similar Documentation.
b) if the Contractor Is unable to perform maintenance or the
State desires to perform its own maintenance on Equipment
purchased under this Contract then upon vwritten notice by
the State the Coritractor will provide at Contractor's then
current rates and fees adequate and reasonable assistance
including relevant Documentation to allow the State to
maintain the Equipment based on the Contractor's
methodology. The Contractor agrees that the State may
reproduce such Documentation for its own use In
maintaining the Equipment. If the Contractor Is unable to
perform maintenance, the Contractor agrees to license any
other Contractor that the State may have hired to maintain
the Equipment to use the above noted Documentation. The
State agrees to Include the Contractor's copyright notice on
38,
any such Documcntatlon reproduced, In accordance with
copyright tnstru.rctlons to be provided by the Contractor.
RIGHTS IN WORK PRODUCT:
a) Ali Invontionrs, discoveries, .,, Int0ectual property, tr i,hr'r'iral
con,irnunpcallons and records 000naied or prepared lay the
contractor pursuant to this Contract Including papers,
reports, charts, computer programs, and ollaer°
Documentation or improvements ffw,,relo, and including the
Contractor's administrative communications and records
relating to Iblsw Contract (collocttvely, the 'Work Product"),
shall be this Contractor's exclusive property. The provisions
of this sub sw1lon a) may be revised In a Statenaerit of
Work.
b) Sra'fhtmre and other materials developed or othervlse
obtalned by or for the Contractor or Its affiliates
Indopendentty of this Contract or applicable purchase order
("Pre-Exlsting Materials") do not constttule Work Product, If
the Contractor creates derivatNo works of Pre -Existing
Materials, the elemerills of such derivative works created
pursuant to this Contract constitute Work Product, but other
elements do not. Nothing in this Section 37 will be
construed to interfere with the Contractor's or Its affiliates'
ownership of Pre -Existing Materials.
c) The Slate will have Government Purpose Rights to the
Work. Product as Deilvenable or delivered to the State
hereunder. "Government Purpose Rights' are the
unlimited, Irrevocable, worldWdo, perpetual, royally-froa,
non-exclusive rights and licenses to use, modify, reproduce,
perfona, release, display, create derivative vmrks from, and
disclose the Work Product. "Government Purpose Rlplhts"
also Include the right to release or disclose the Work
Product outside the State for any State government
purpose and to authorize recipients to use, modify,
reproduce., perform, release, display, create derivative
works from, and disclose the Work Product for any State
government purpose. Such redplents of the Work Product
may include, without limitation, State Contractors, California
local governments, the U.S. federal government, and the
State and local governments of Cather states. "Government
Purpose Rights" do not Include any rights to use, modify,
reproduce, perform, release, display, create derivative
works from, or disclose the Work Product for any
commercial purpose.
d) The Ideas„ concepts, know-how, or techniques relating to
data processing, developed during Itte course of this
Contract by the Contractor or jointly by the Contractor and
the State may be, used by either party WIhout obligation of
notice. or accounting„
e) This Contract shall not preclude the Contractor from
developing materials outside this Contract that are
competitive, Irrespective of their similarity to materials which
might be delivered to the State pursuant to this Contract
SOFTWARE LICENSE: Unless otherwise specified In the
Statement of Work, the Contractor hereby grants to the State and
the State accepts from the Contractor, subject to the terms and
conditions of this Contract, a perpetual, Irrevocable, royalty -free,
non-exclusive, license to use the Software Products In this
Contract (hereinafter referred to as "Software Products).
a) The State may use the Software Products in the conduct of
its own business, and any division thereof
b) The license granted above authorizes the State to use the
Software Products In machine-readable form on the
Computer System located at the sfte(s) specified in the
Statement of Work. Said Computer System and Its
associated units (collectively referred to as CPU) are as
designated In the Statement of Work. if the designated CPU
is inoperative due to malfunction, the license herein granted
shall be temporarily extended to authorize the State to use
the Software Products, in machine-readable form, on any
other State CPU until the designated CPU Is returned to
operation.
Page 7 of 12
GSPD-401 IT
Agreement No. 5432
(REVISED AND EFFECTIVE 915/2014)
GENERAL PROVISIONS -- INFORMATION TECHNOLOGY
c) By prior written notice, the State may redesignate the CPU in
Contractor will provide all codes to the State with delivery of
which the Software Products are to be used provided that
the Software.
the redesignated CPU is substantially similar in size and
b) In case of an inoperative CPU, the Contractor will provide a
scale at no additional cost. The redesignation shall not be
temporary encryption/CPU iD authorization code to the Stale
limited to the original site and will be effective upon the date
for use on a temporarily authorized CPU until the designated
specified in the notice of redesignation.
CPU is returned to operation.
d) Acceptance of Commercial Software (including third party
c) When changes in designated CPUs occur, the State will
Software) and Custom Software will be governed by the
notify the Contractor via telephone and/or facsanllele-mall of
terms and conditions of this Contract,
such change. Upon receipt of such notice, the Contractor will
Issue via telephone and/or facslmllele-mall to the State
39. PROTECTION OF PROPRIETARY SOFTWARE AND OTHER
within 24 hours, a temporary encryption ID authorization
PROPRIETARY DATA:
code for use on the newly designated CPU until such time as
a) The State agrees that all material appropriately marked or
permanent code is assigned.
identified in writing as proprietary, and furnished hereunder
are provided for the State's exclusive use for the purposes of
43. PATENT, COPYRIGHT AND TRADE SECRET INDEMNITY:
this Contract only. All such proprietary data shall remain the
a) Contractor will indemnify, defend, and save harmless the
properly of the Contractor. The State agrees to take all
State, Its officers, agents, and employees, from any and all
reasonable steps to insure that such proprietary data are not
third party claims, costs (including without limitation
disclosed to others, without prior written consent of the
reasonable attorneys' fees), and losses for infringement or
Contractor, subject to the California Public Records Act.
violation of any U.S. Intellectual Properly Right by any
b) The State will insure, prior to disposing of any media,
product or service provided hereunder. With respect to
that any licensed materials contained thereon have been
claims arising from computer Hardware or Software
erased or otherwise destroyed.
manufactured by a third party and sold by Contractor as a
c) The State agrees that it will take appropriate action by
reseller, Contractor will pass through to the State such
Instruction, agreement or otherwise with its employees or
indemnity rights as It receives from such third party ("Third
other persons permitted access to licensed software and
Party Obligation") and will cooperate in enforcing them;
other proprietary data to satisfy its obligations in this
provided that if the third party manufacturer fails to honor the
Contract with respect to use, copying, modification,
Third Party Obligation, Contractor will provide the State with
protection and security of proprietary software and other
indemnity protection equal to that called for by the Third
proprietary data.
Party Obligation, but In no event greater than that called for
40. RIGHT TO COPY OR MODIFY:
in the first sentence of this Section ). The provisions of the
a) Any Software Product provided by the Contractor in
preceding sentence apply only to third party computer
machlne-readable form may be copied, In Whole or in part, in
Hardware or Software sold as a distinct unit and accepted by
printed or machine-readable form for use by the State with
the State.
the designated CPU, to perform one-time benchmark tests,
Unless a Third Party Obligation provides otherwise,
for archival or emergency restart purposes, to replace a
the defense and payment obligations set forth In this
worn copy, to understand the contents of such machine-
Section will be conditional upon the following:
readable material, or to modify the Software Product as
(I) The State will notify the Contractor of any such claim in
provided below, provided, however, that no more than the
writing and tender the defense thereof within a
number of printed copies and 'machine-readable copies as
reasonable time; and
specified in the Statement of W ork will be in existence under
(il) The Contractor will have .sole control of the defense of
this Contract at any time without prior written consent of the
any action on such claim and all negotlations for its
Contractor. Such consent shall not be unreasonably withheld
settlement or compromise; provided that
by the Contractor. The original, and any copies of the
(a) when substantial principles of government or public
Software Product, in whole or in part, -which are made
law are involved, when litigation might create precedent
hereunder shall be the property of the Contractor.
affecting future .State operations or liability, or when
b) The State may modify any non -personal computer Software
Involvement of the State is otherwise mandated by law,
Product, in machine-readable form, for its own use and
the State may participate in such action at its own
merge it Into other program malerial. Any portlon of the
expense Wth respect to attorneys' fees and costs
Software Product Included in any merged prograrm material
(taut not liability); (b) where a settlement would Impose
shall be used only on the designated CPUs and shall be
liability on the State, affect principles of California
subject to the terms and conditions of the Contract
government or public law, or impact the authority of the
State, the Department of General Services Will have the
41. FUTURE RELEASES: Unless otherwise specifically provided In
right to approve or disapprove any settlement or
this Contract, or the Statement of Work, if unproved versions, e.g.,
compromise, which approval will not unreasonably be
patches, bug fixes, updates or releases, of any Software Product
withheld or delayed; and (c) the State will reasonably
are developed by lire contractor, and are made available to ollrer
cooperate In the defense and in any related settlement
licensees, they will be made available to the State at no additional
negotiations.
cost only If such are made available to other licensees at no
additional cost. If the Contractor offers new versions or upgrades
b) Should the Deliverables, or the operation thereof, become,
to the Software Product, they shall be made available to the
or In the Contractor's opinion are likely to become, the
State at the State's option at a price no greater than the Contract
subject of a claim of infringement or violation of a U.S.
price plus a price Increase proportionate to the Increase from the
Intellectual Property Right, the State shall permit the
list price of the original version to that of the new version, If any. If
Contractor, at Its option and expense, either to procure for
the Software Product has no list price, such price Increase will be
the State the right to continue using the Deliverables, or to
proportionate to the Increase In average price from the original to
replace or modify the same so that they become
the new version, If any, as estimated by the Contractor In good
non -Infringing, If none of these options can reasonably be
faith.
taken, or If the use of such Dellverables by the State shall be
prevented by Injunction, the Contractor agrees to take back
42. ENCRYPTION/CPU ID AUTHORIZATION CODES:
such Dellverables and make every reasonable effort to
a) When Encryptlon/CPU Identification (ID) authorization codes
assist the State in procuring substitute Deliverables.
are required to operate the Software Products, the
If, In the sole opinion of the State, the return of such
Page 8 of 12
GSPD-401IT
Agreement No. 5432
(REVISED AND EFFECTIVE 91512014)
GENERAL PROVISIONS — INFORMATION TECHNOLOGY
Infringing Deliverables makes the retention of other
Deliverables acquired from the Contractor under this
Contract Impractical, the State shall then have
the option of terminating such Contracts, or applicable
portions thereof, vAlhout penalty or tenninatton charge,
The Contractor agrees to take back such Deilverables and
refund any sums the State has paid the Contractor less any
reasonable amount for use or damage.
The Contractor shah have no liability to the State under any
provision of this ciause with respect to any clalni of patent,
copyright or (i'aCte secrete infrirggen'aerit whlota is based upon:
(i) The cornbinatlora or uttilzation of Deliverambtos Iurnlshod
hereunder with Equipment, Software or devices not
made or furnished by the Contractor; or,
(1D The operation of Equipment furnished by the Contractor
under the control of any Operating Softyare other
than, or in addition to, the current version of
Contractor -supplied Operating Software; or
(Iii) The modification initiated by the State, or a third party
at the State's direction, of any Deliverable furnished
hereunder; or
(Iv) The combination or utilization of Software furnished
hereunder with non -contractor supplied Software.
The Contractor certifies that it has appropriate systems and
controls In place to ensure that State funds will not be used
in the performance of this Contract for the acquisition,
operation or maintenance of computer Software In violation
of copyright laws.
44. DISPUTES -
a) The parties shall deal in good faith and attempt to resolve
potential disputes informally, If the dispute persists, the
Contractor shall submit to the contracting Department
Director or designee a written demand for a final decision
regarding the disposition of any dispute between the parties
arising under, related to or involving this Contract.
Contractor's vritten demand shall be fully supported by
factual Information, and if such demand Involves a cost
adjustment to the Contract, the Contractor shall Include Wth
the demand a written statement signed by an authorized
person indicating that the demand is made In good faith, that
the supporting data are accurate and complete and that the
amount requested accurately reflects the Contract
adjustment for which Contractor believes the State is liable.
The contracting Departmerit Director or designee shall have
30 days after recelpt of Contractors written demand Invoking
this Section "Disputeso to render a tlrrr'itten decision, If a
written decision Is not rendered WHitn 30 days after receipt
of the Contractors demand, It shall be deerned a declslon.
adverse to the Contractor's contention. If the Contractor is
not sattstled with the decision of the conlractfrV Department
Director or designee„ the Contractor may appeal [lie
decision, 1n wilting, within 15 days of Its Issuance (or the
expiration of the 30 day period In the event no decision Is
rendered by the contracting department), to the Deparknent
Of General Services„
Deputy Director, Procurement Division, who shall have 45
days to render a final decision. If the Contractor does not
appeal the decision of the contracting Department Director
or designee, (tie decision shall lie conclusive and binding
iegarding the dispute and the Contractor shall be barred
from commencing an action in court, or with the Victims
Compensation Government Claims Board, for failure to
exhaust Contractor's administrative remedies.
b) Pending the final resolution of any dispute arising under,
related to or Involving this Contract, Contractor agrees to
diligently proceed with the performance of this Contract,
Including the delivery of Goods or providing of services in
accordance with the State's Instructions regarding this
Contract. Contractor's failure to diligently proceed In
accordance with the States instructions regarding this
Contract shall be considered a material breach of
this Contract.
Any final decision of the State shall be expressly identified
as such, shad be In, willing, and shall be signed by the
Deptrty Director, Procurement Division It ort appeal y0js
made. If tire Duput,y investor, Procurement Divlslon falls to
render a final decision within 45 days after receipt of the
Contractor's appeal for a final decision, it shall be doomed a
final decision adverse to the Contractor's contentions. The
State's final decision shall be conr„ustv_e and binding
regarding the dispute unless the Contractor commences an
action In a court of competent jurdsdl'cdion to contest such
dectslon witlihi, 00 days follovwfng the date of the final
decision or one (t) year lotlovAng (tie acerml of the cause of
action, whichever is later.
For disputes Involving purdiases made by the Department of
General Services, Procurement Division, the Contractor
shall submit to file Department Director ordesignee a
vaHlen demand for a final decision, which shall be fulty,
supported In the rn€innor described in subsection a above.
Thio Department Director or designee shall have 30 days to
render a final decision. If a final decision Is not rendered
Wthln 30 dayra after receipt of the Contractor's demand, It
shad be deemed a final decision adverse to the C'ontiractor's
contention. The final decision shall be conclusive and
binding regarding the dispute unless the Contractor
c.orttmenceas an action In a court of competent jurisdiction to
contest such decision. wwilhin 90 days foRoWng live dale, of
the final decision or one (1) year folloWng the accntat of the
cause of action, whichever is later.
The (fates of decision and appeal in this section may be
modified by mutual consent, as applicabie, excepting the
time 10 o011111lence all action In a ooturt of Wllpeterd
jurisdictiom
45. STOP WORK:
a) The State may, at any time., by witten Stop Work Order to
the Contractor, require the Contractor to stop all, or any per,
of Ilio work called for by this Contract for a period up to
45 days rafter the 'Stop Work; Order Is dellve d to the
Contractor, and for .any further period to which the parties
may agree. The Stop Work Order shall be specifically
klonitfted as such and shall Indicate It is issued under this
clause. Upon receipt of the Stop Work Order, the Contractor
shall immediately comply with Its terms and take all
reasonable steps to minimize the Incurrence of costs
allocable to the work cowered lay fire Stop Work. Order during
the periost of work stoppage, Within a period of 45 days
after a Stop Work Order Is dol re(i to the Contractor; or
Wthin any extension of that perlod to watch the parties shall
have agreed, the State shelf elllior:
(0 Cancel the Stop Work Order, or
(i0 Terminate the work covered by the Stop Work Order as
providedfor in the termination for default or the
termination for convenience clause of this Contract.
b) if a Stop Work Order issued under this clause Is canceled or
the periost of the Stop Work Order or any extension thereof
expires, the Contractor shall restirrie work. The State shall
make- an equitable adjustment. In the delivery schedule,
the Contract price„ or both, and the Contract shall
be modtlfed, Iii wilting, accogIlrigly, it.
(l) The Stop Work Order results In an Increase In the (Ime
required for;or in the Contractor's cost properly
allocable to the performance of any part of this
Contract; and
01) "rhe C€antractor asserts Its right to an equitable
adjustment vAthin 60 days ager the end of the period of
wink stoppage; provided, that if (lie State decides the
facts justify the action, the State may receive and act
upon a proposal submitted at any time before final
payment under this Contract,
c) If a Stop Work Order is not canceled and the work covered
by the Stop Work Order is terminated In accordance with the
provlston entitled Termination for the Convenience of the
State, the State shall allow roasonable casts resulting from
the Stop Work Ogler In arriving at the tormtnatlon settlement.
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Agreement No. 5432
GSPD-401IT (REVISED AND EFFECTIVE 9/612014)
GENERAL PROVISIONS — INFORMATION TECHNOLOGY
d) The State shall not be liable to the Contractor for loss of
profits because of a Stop Work Order Issued under
this clause.
46. EXAMINATION AND AUDIT: The Contractor agrees that the
Slate or its designated representative shall have the right to
review and copy any records and supporting documentation
directly pertaining to performance of this Contract. The Contractor
agrees to maintain such records for possible audit for a minimum
of three (3) years after final payment, unless a longer period _of
records retention is stipulated. The Contractor agrees to allow the
auditor(s) access to such records during normal business hours
and in such a manner so as to not interfere unreasonably with
normal business activities and to allow interviews of any
employees or others who might reasonably
have information related to such records. Further, the Contractor agrees to
Include a similar right of the Stale to audit records and Interview
staff in any subcontract related to performance of this Contract.
The State shall provide reasonable advance written notice of such
audit(s) to the Contractor.
47. FOLLOW-ON CONTRACTS:
a) If the Contractor or Its affiliates provides Technical
Consulting and Direction (as defined below), the Contractor
and its affiliates:
(t) will not be awarded a subsequent Contract to supply
the service or system, or any significant component
thereof, that Is used for or in connection with any
subject of such Technical Consulting and Direction; and
(II will not act as consultant to any person or entity that
does receive a Contract described In sub -section (i).
This prohibition will continue for .one (1) year after
termination of this Contract or completion of the
Technical Consulting and Direction, whichever comes
later.
b) "Technical Consulting and Direction" means services for
Mich the Contractor received compensation from the State
and includes:
(I) development of or assistance in the development of
work statements, specifications, solicitations, or
feasibility studies;
(11) development or design of test requirements;
(hit) evaluation of lest data;
(iv) direction of or evaluation of another Contractor;
(v) provision of formal recommendations regarding the
acquisition of Information Technology products or
services; or
(v) provisions of formal recommendations regarding any of
the above. For purposes of this Section, "affiliates" are
employees, directors, partners, joint venture
participants, parent corporations, subsidiaries, or any
other entity controlled by, controlling, or under common
control with the Contractor. Control exists when an
entity owns or directs more than fifty percent (50%) of
the outstanding shares or securities representing the
right to vote for the election of directors or other
managing authority,
c) To the extent pemmisslble by .law, the Director of the
Department `of General Services, or designee, may waive the
restrictions set forth in this Section by written notice to the
Contractor If the Director determines their application would
not be in the State's best Interest. Except as prohibited by
law, the restrictions of this Section will not apply:
(i) to follovrxon advice given by vendors of commercial
off-the-shelf products, Including Software and
Hardware, on the operation, integration, repair,
or maintenance of such products after sale; or
(11) where the State has entered Into a master agreement
for Software or services anti the scope of vx)rk at
the time of Contract execution expressly calls for
future recommendations among the Contractor's
own products.
d) The restrictions set forth In this Section are In addition to
conflict of interest restrictions imposed on public Contractors
by Cali(ornla law ("Conflict Laws"), In the event of any
inconsistency, such Conflict Laws override the provisions of
this Section, even If enacted after execution of this Contracl.
40 PRIORITY HIRING CONSIDERATIONS: If this Contract Includes
services in excess of $200,000, the Contractor shall give priority
consideration in filling vacancies in positions funded by
the Contract to qualified recipients of aid under Welfare and
institutions Code Section 11200 In accordance with PCC Section
10353,
49. COVENANT AGAINST GRATUITIES: The Contractor warrants
that no gratuities (In the form of entertainment, gifts, or otherwise)
were offered or given by the Contractor, or any agent or
representative of the Contractor, to any officer or employee of the
State with a view toward securing the Contract or securing
favorable treatment with respect to any determinations concerning
the performance of the Contract. For breach or violation of this
warranty, the State shall have the right to terminate the Contract,
either In whole or In part, and any loss or damage sustained by
the Stale in procuring on the open market any items which the
Contractor agreed to supply shall be borne and paid for by the
Contractor. The rights and remedies of the State provided In this
clause shall not be exclusive and are In addition to any other
rights and remedies provided by law or in equity.
60. NONDISCRIMINATION CLAUSE:
a) During the performance of this Contract, the Contractor and
its subcontractors shall not unlawfully discriminate, harass or
allow harassment, against any employee or applicant for
employment because of sex, sexual orientation, race, color,
ancestry, religious creed, national origin, disability
(including HIV and AiDS), medical condition (cancer), age,
marital status, and denial of family care leave. The
Contractor and subcontractors shall insure that the
evaluation and treatment of their employees and applicants
for employment are free from such discrimination and
harassment, The Contractor and subcontractors shall
comply with the provisions of the l=air Employment and
Housing Act (Government Code, Section 12990 et seq.) and
the applicable regulations promulgated thereunder
(California Code of Regulations, Title 2, Section 7285.0 et
seq.). The applicable regulations of the Fair Employment
and Housing Commission implementing Government Code
Section 12990 (a -f), set forth in Chapter 5 of Division 4 of
Title 2 of the California Code of Regulations are Incorporated
Into this Contract by reference and made a part hereof as 9
set forth in full. The Contractor and its subcontractors shall
give written notice of their obligations under this clause to
labor organizations with which they have a collective
bargaining or other agreement.
b) The Contractor shall Include the nondiscrimination and
compliance provisions of this clause In all subcontracts to
perform work under the Contract,
51. NATIONAL LABOR RELATIONS BOARD CERTIFICATION:
The Contractor swears under penally of perjury that no more than
one final, unappealable finding of contempt of court by a federal
court has been Issued against the Contractor within, the
immediately preceding two-year period because of the
Contractor's failure to comply with an order of the National Labor
Relations Board. This provision is required by, and shall be
construed In accordance with, PCC Section 10296.
52. ASSIGNMENT OF ANTITRUST ACTIONS: Pursuant to
Government Code Sections 4552, 4553, and 4564, the following
provisions are incorporated herein:
a) In submitting a bid to the State, the supplier offers and
agrees that If the bid is accepted, it will assign to the State all
rights, title, and Interest in and to all causes of action it may
have under Section 4 of the Clayton Act (15 U,S.C. 15)
or under the Cartwright Act (Chapter 2, commencing with
Section 16700, of Part 2 of Dlvislon 7 of the Business and
Professions Code), arising from purchases of Goods,
material or other items, or services by the supplier for sale to
the State pursuant to the solicitation, Such assignment shall
Page 10 of 12
Agreement No. 5432
GSPD-401IT (REVISED AND EFFECTIVE 9'5!2014)
GENERAL PROVISIONS — INFORMATION TECHNOLOGY
be made and became effective at the time the State tenders
final payment to the supplier.
b) If the State receives, either through judgment or settlement,
a monetary recovery for a cause of action assigned under
this chapter, the assignor shall be entitled to receive
reimbursement for actual legal costs Incurred and may, upon
demand, recover fcorrr the State any portion of the recovery,
including treble damages altribulable to overcharges that
were paid by the assignor but were not paid by the State as
part of the bid price, less the expenses Incurred in obtaining
that portion of the recovery.
c) Upon demand in writing by the assignor, the assignee shall,
within one year from such demand, reassign the cause of
action assigned under this part if the assignor has been or
may have been injured by the violation of law for Mich the
cause of action arose, and
(i) the assignee has not been Injured thereby, or
(ii) the assignee declines to file a court action for the cause
of action.
53. DRUG-FREE WORKPLACE CERTIFICATION: The Contractor
certifies under penalty of perjury under the lavr. of the State of
California that the Contractor Will comply with the requirements of
the Drug -Free Workplace Act of 1990 (Government Code
Section 8350 et seq) and will provide a drug-free workplace by
taking the folloy4ng actions:
a) Publish a statement notifying employees that unlavAil
manufacture, distribution, dispensation, possession, or use
of a controlled substance is prohibited and specifying actions
to be taken against employees for violations, as required by
Government Code Section 8355(a),
b) Establish a Drug -Free Awareness Program as required by
Government Code Section 8355(b) to inform employees
about all of the fotlovAng:
(f) the dangers of drug abuse In the workplace;
(ff) the persons or organization's policy of maintaining a
drug -flee workplace;
(ill) any available counseling, rehabilitation and employee
assistance programs; and,
(iv) penalties that may be Imposed upon employees for
drug abuse violations,
c) Provide, as required by Government Code Section 8365(c),
that every enaialoyee who works ora the proposed or tMillIng
Contract
(1) will resolve a copy of the company's drug-free policy
statement; and,
(11) will agree to abide by the terms of the company's
statement as a condition of employment on
the Contract,
64. FOUR -DIGIT DATE COMPLIANCE: Contractor warrants that it
wit provide only Four-ugit Date Compllant (as defined below)
Dellverables and/or services to the State, 'Four Digit Date
Compliant" Deliverables and services can accurately process,
calculate, compare, and sequence date data, Including Wthout
limitation date data arising out of or relating to leap years and
changes In centuries. This warranty and representation Is
subject to the warranty terms and conditions of this Contract and
does not limit the generality of warranty obligations set forth
elsewdaere herein.
55. SWEATFREE CODE OF CONDUCT:
a) Contractor declares under penalty of perjury that no
equipment, materials, or supplies furnished to the State
pursuant to the Contract have been produced In whole or in
part by sweatshop labor, forced labor, convict labor,
Indentured labor under penal sanction, abusive forms of
child labor or exploitation of chlldron In sweatshop labor, or
Will the benefit of sweatshop labor, forced labor, convict
labor, Indentured labor under penal sanction, abusive forms
of child labor or extafoitalion of children Ira sweatshop Tabor.
The Contractor further declares sander penalty of
perjury that they adhere to the Sa werrtfree Code of Gonaduct
as set forth on the California Department of Industrial
Relations website located at titsllfpq and Public
Contract Code Section 6108.
b) The C.onlractor agrees to cooperate fully in providing
roe<SV'lable access to Its records, docurnents, agents or
employees, or preunlses if reasonably requlrod by authod7ed
officials of the Aarto, the Department of IndusIdaf Rw tatiorm,
or the Depadment of Justice to deterrone the Contractor's
compliance with the requirements under paragraph (a).
66. RECYCLED CONTENT REQUIRMENTS: The Contractor shall
certify in writing under penally of perjury, the minimum, if not
exact, percentage of post-censurver rnateriai (as definud In the
Public: Conliarl Code (PCC) Section 12700.12209), In products,
n1aAW1z1I% goods, or supplies offered or sold to Iia, State tizat fail
under any of the statutory categories regardless of whether the
product meets the requirements of Section 12209. The certification
shall be provided by the contractor, every If the product or good
contains no postconsumer recycled material, and even if the
postoorosurner content is unknovm, With respect to printer or
dupticallon cartridges that comply Wth tine rerlOremerats of Section
12166(e), the ceitffication roquiaed by'thals subdivision shall specify
that lire cartridges so comply (PCC 12205 (dr)(2)), A stater agency
contracting officer may valve the ce-allfication requirements If the
pprcenlage of postconsumer material in the products, materials,
goods, or supplies can be verified In a YA'Itten radver0senient,
Including, but not ItAted to, a product label, e catalog, or a
rnanufooturer or vendor Internet vwob site. Conlraclom are to use,
to the aWdrFlurn extent economically feasible In the performance
of the contract vmrk, recycled content products (POC 12203(4)),
57. CHILD SUPPORT COMPLIANCE ACT: For any Contract in
excess of $100,000, the Contractor acknowledges in accordance
Mil PCC Section 7110„ that:
a) The Contractor recognizes the importance of child and famity
support obligations, and shall fufly comply with at applicable
State and federal) laws relating to child and fanr'fly support
enforcement, including, but not linilted to, disclosure of
Infonnallon and 001Trp110u100, with eamIngs assignunent
orders, as provided in Chapter 8 (commencing Will Section
6200) of Part 5 of Division 9 of the Famiily Code; and'
b) The Contractor, to the best of Its knovAeatgo is fully
complying Will the earnings assignrnont onfors of all
employees and Is providing the names of all new employers
to tine New Hire Registry maintained by the California
Employment Development Department.
5B. AMERICANS WITH DISABILITIES ACT. The Contractor assures
the State that the Contractor complies with the Americans with
Disabilities Act of 1990 (42 U.S.C, 12101 et seq).
59. ELECTRONIC WASTE RECYCLING ACT OF 2003:
The Contractor coritfies Ihat it compiles vhth the applicable
requirements of tho 'Electronic Waste fiecycling: Act of 2003,
Chapter &5, Part 3 of Division 30, commencing with Section
42460 of tine Public Resources Code, The Contractor shall
maintain documentation and provide reasonable access to its
records and documents that evidence compliance.
60. USE TAX COLLECTION: In accordance with PCC
Section "10295.1, the Contractor certifies that it compffes with the
requirements of Section 7101 of the revenue and Taxation Code,
Contractor furlhor caartiftes that it Will 'Immediately advise the Slate
of any change In its retdller's seller's permit or oertiffeation
Of registratfora of applicable affiliate's seller's pemait or
cortificate of registration as described In subdivision (a°t) of PCC
Section 102955,
61. EXPATRIATE CORPORATIONS: Contractor hereby declares
that. it. Is not an expatriates corporation or subsidiary of an
expatriate corporation WU)I a the rneaning of PCC Sectloas 102M
and 110286,1„ amid Is eltglble, to contract vAth tine Stale,
62. DOMESTIC PARTNERS: For contracts over $100,000 executed
or amended after January 1, 2007, the contractor certifies that the
contractor Is in compliance with Public Contract Code Section
10295.3.
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Agreement No. 5432
GSPD-4011T (REVISEDAND EFFECTIVE 915/2014)
GENERAL PROVISIONS -- INFORMATION TECHNOLOGY
63. SMALL BUSINESS PARTICIPATION AND DVBE
PARTICIPATION REPORTING REQUIREMENTS:
a) If for this Contract the Contractor made a commitment to
achieve small business participation, then the Contractor
must within 60 days of receiving final payment under this
Contract (or within such other time period as may be
specified elsewhere in this Contract) report to the awarding
department the actual peroentago of . mall business
participation that was ach,Ieved, (Govt. Code § 14841.)
b) If for this Contract the Contractor made a commitment to
achieve disabled veteran business enterprise (DVBE)
part aipation, then Conlractor must Wthin 60 days of
re(xeivfnq final payment under this Contract (or Wthin such
other time period as may be specified elsewhere In this
Contract) certify in a report to the awarding department: (1)
the total amount the prime Contractor received under the
Contract; (2) the name and address of the DVBE(s) that
participated In the performance of the Contract; (3) the
amount each DVBE received from the prime Contractor; (4)
that all payments under the Contract have been made to the
DVBE; and (5) the actual percentage of DVBE participation
that was achieved. A person or entity that knowingly
provides false Information shall be subject to a civil penalty
for each violatlon. (Mil. & Vets. Code § 999.5(d);
Govt. Code § 14841.)
64. LOSS LEADER: It is unlawful for any person engaged In
business within this state to sell or use any article or product as a
"loss leader" as defined In Section 17030 of the Business and
Professions Code. (PCC 12104.5(b).).
Page 12 of 12