2.27.17 Dell PA_Redacted.pdf

PARTICIPATING ADDENDUM

NASPO ValuePoint COOPERATIVE PURCHASING PROGRAM

Computer Equipment

Administered by the State of Minnesota (hereinafter “Lead State”)

MASTER AGREEMENT

Master Agreement No: MNWNC-108/Dell No: 91AGY

Dell Marketing L.P.

(hereinafter “Contractor”)

And

State of Wisconsin

(hereinafter “Participating State/Entity”)

Participating State Contract #505ENT-O16-NASPOCOMPUT-05

Dell Contract Code WN35AGW

1. Scope: This Participating Addendum pertains to the purchase of Computer

Equipment/Services as authorized in the Master Agreement administered by the

State of Minnesota along with a multi-state sourcing team, which permits use of the

Master Agreement by state agencies and other entities located in the Participating

State that are authorized by that state’s statutes to utilize state contracts, and which receive the prior written approval of the state’s chief procurement official.

Personal use of the Participating Addendum is NOT authorized.

This Participating Addendum authorizes the purchase of equipment and associated

Software and Services in all of the following categories as set forth in the Master

Agreement:

Band 1: Desktop

Band 2: Laptop

Band 3: Tablet

Band 4: Server

Band 5: Storage

Each band includes related Peripherals and Services. The original solicitation contains the requirements and definitions establishing the following Product Bands allowed on the Master Agreement. The Master Agreement identifies the bands awarded to the Contract Vendor.

Services include equipment deployment, installation and Configuration of Dell products. Examples of Services include: warranty services, factory integration, training, and pre-implementation design.

Examples of Peripherals include: printers, monitors, cabling, and modems.

The Configuration dollar limits remain the same as the Master Agreement.

Restrictions are identified in the Master Agreement with any further restrictions identified in this Participating Addendum.

With respect to any educational discount, the parties agree that the following authorized users shall be eligible to receive such discount available under the scope of this Participating Addendum: University of Wisconsin System University, College, or Board; Wisconsin public K-12 schools; Wisconsin Technical College

System; Wisconsin Department of Public Instruction; Wisconsin Educational

Communications Board; Wisconsin School for the Blind and Visually Impaired, Wisconsin School for the Deaf; and any other educational authorized purchasing entity as approved by the Participating State Primary Contact.

This is not a mandatory contract for any Purchasing Entities. The Purchasing

Entities may obtain related Deliverables and Services from other sources during the term of this Participating Addendum. The State makes no express or implied warranties whatsoever that any particular quantity or dollar amount of

Deliverables or Services will be procured.

2. Participation: Use of specific WSCA-NASPO cooperative contracts by state agencies, political subdivisions, and other entities authorized by an individual state’s statutes to use state contracts (collectively, “Purchasing Entity”) are subject to the prior approval of the respective State Chief Procurement Official. Wisconsin

Statutes (s. 16.73, Wis. Stats.) establish authority to allow Wisconsin municipalities to purchase from state contracts. A "municipality" is defined as any county, city, village, town, school district, board of school directors, sewer district, drainage district, vocational, technical and adult education district, or any other public body having the authority to award public contracts (s. 16.70(8), Wis. Stats.). Federally recognized Indian tribes and bands in this state may participate in cooperative purchasing with the state or any municipality under ss. 66.0301(1) and (2), Wis.

Stats.

The Contract is not mandatory for the Purchasing Entities. Issues of interpretation and eligibility for participation are solely within the authority of the State Chief

Procurement Official.

3. Order of Precedence:

1. A Participating Entity’s Participating Addendum (“PA”); A Participating

Entity’s PA shall not diminish, change, or impact the rights of the Lead State with regard to the Lead State’s contractual relationship with the Contract

Vendor under the Terms of Minnesota NASPO ValuePoint Master Agreement;

2. Minnesota NASPO ValuePoint Master Agreement (includes negotiated Terms

& Conditions);

3. The Solicitation including all Addendums; and

4. Contract Vendor's response to the Solicitation;

These documents shall be read to be consistent and complementary. Any conflict among these documents shall be resolved by giving priority to these documents in the order listed above. Contract Vendor terms and conditions that apply to this

Master Agreement are only those that are expressly accepted by the Lead State and must be in writing and attached to the Master Agreement as an Exhibit or

Attachment. No other terms and conditions shall apply, including terms and conditions listed in the Contract Vendor’s response to the Solicitation, or terms listed or referenced on the Contract Vendor's website, in the Contract Vendor quotation/sales order or in similar documents subsequently provided by the

Contract Vendor. The solicitation language prevails unless a mutually agreed exception has been negotiated.

4. Participating State Modifications or Additions to Master Agreement:

A. The attached Exhibits A, B, and C are incorporated in this Participating

Addendum and apply to all transactions under this Participating Addendum.

B. This Participating Addendum will be effective on the later date of October 1, 2015, or final execution by the Participating State. The Participating

Addendum term will be the same as, and co-terminus with, the Master

Agreement term unless terminated pursuant to MASTER AGREEMENT TERMS

AND CONDITIONS B. WSCA-NASPO TERMS AND CONDITIONS, Section 6

Cancellation.

C. The Contractor must submit electronic reports via e-mail on a quarterly basis and one annual summary report on all sales, including service/maintenance, made against this Participating Addendum/Master Agreement to the

Participating State Primary Contact or designee.

1) Report format shall follow the excel format in Exhibit C;

2) The report file format shall be Microsoft Excel compatible format and shall easily be sorted for various data and inclusion into a pivot table;

3) The quarterly reports will be filed using the schedule in Subsection 6 below. The annual report shall contain all data within the quarterly reports and include an annual sum total with any additional description notes;

4) Such reports shall retain the same format throughout the life of the contract unless mutually agreed upon;

5) The Contractor agrees to provide additional reports if requested by the

State of Wisconsin in a format and frequency as mutually agreed upon by both parties; and

6)

The annual summary report is provided after four (4) full quarters of data is collected from the start of the Participating Addendum.

D. If the Purchasing Entity is making a payment with a purchasing card, Contractor requires the card be presented at the time of order placement.

Purchasing Entity may provide the purchasing card information during the placement of an online or phone order, but will not be permitted to use that same card for later payment of invoices issued by the Contractor.

E. Any assignment by Purchasing Entity of its purchase order to a third-party financing company (other than Dell Financial Services, LLC) must be approved in advance in writing by Contractor, and in no case shall any such approval excuse Purchasing Entity from its obligations hereunder.

F. Returns and Exchanges. Additional fees, including up to a 15% restocking fee, may apply.

G. Contractor may not subcontract or delegate the performance of its obligations under the Master Agreement, or this Participating Addendum, in whole or in part, or any rights, duties, obligations or liabilities under the

Master Agreement or Participating Addendum, by operation of law or otherwise, without the prior written consent of Participating State/Entity

Quarter From To Due

Q1 Jan 1 Mar 31 Apr 30

Q2 Apr 1 Jun 30 Jul 31

Q3 Jul 1 Sept 30 Oct 31

Q4 Oct 1 Dec 31 Jan 31

(other than subcontractors retained by Contractor from time to time in the ordinary course of business to perform CFI, warranty, break/fix, administrative and back office services who will not have access to

Participating State/Entity’s confidential data other than billing and contact information) and provided that Contractor shall remain responsible for the performance of its obligations under the Master Agreement and Participating

Addendum.

5. Primary Contacts: The primary contact individuals for this Participating

Addendum are as follows (or their named successors):

Contractor Participating Addendum Contact

Name Cyndi Radel

Address One Dell Way, RR1-33, Round Rock, Texas 78682

Telephone 231-747-9294

Fax 512-283-9092

E-mail cyndi_radel@dell.com

Contractor

Name Diane Wigington

Address One Dell Way, RR1-33, Round Rock, TX 78682

Telephon e

512-728-4805

Fax 512-283-9092

E-mail diane_wigington@dell.com

Participating Entity

Name

Brenda Derge, CPPO, CPPB

Address Wisconsin Department of Administration

101 E. Wilson St.

P.O. Box 7867

Madison, WI 53707

Telephon e

608-266-8613

Fax 608-267-0600

E-mail brenda.derge@wisconsin.gov

The contacts listed above can be changed by the parties in writing. Such updates do not require an amendment to this Participating Addendum.

6. Partner/Subcontractor Utilization: All Contractor authorized Resellers and

Agents in the State of Wisconsin, as shown on the dedicated Dell

(cooperative contract) website, are approved to provide sales and service support to participants in the WSCA-NASPO Master Price Agreement. Only

Contractor authorized Resellers and Agents approved by the State of

Wisconsin may be utilized. Contractor shall make all determinations about which entities in the State of Wisconsin that the Contractor authorized

Reseller and Agents may support. The Contractor authorized Resellers and

Agents participation will be in accordance with the terms and conditions set forth in the aforementioned Master Agreement.

A. Contractor authorized Resellers

1) Contractor authorized Resellers shall provide quotes, accept purchase orders, and accept payment from entities ordering under this Participating Addendum.

B. Contractor authorized Agents

1) Contractor authorized Agents are authorized to provide quotes, sales assistance, configuration guidance and ordering support for hardware, software and services available this Participating

Addendum.

2) Contractor authorized Agents ARE NOT authorized to accept orders, purchase orders or payment from entities ordering under this Participating Addendum.

7. Terms: The Participating State is agreeing to the terms of the Master

Agreement only to the extent the terms are not in conflict with applicable law and this Participating Addendum.

8. Orders: Any Order placed by a Participating Entity or Purchasing Entity for a product and/or Service available from the Master Agreement shall be deemed to be a sale under (and governed by the prices and other terms and conditions) of the

Master Agreement unless the parties to the Order agree in writing that another contract or agreement applies to such Order.

EXHIBIT A – Dell Marketing, L.P.

Participating State Modifications or Additions to Master Agreement.

1. Additional Term Definitions. All terms used and not defined herein shall have the meaning given within the Master Agreement and Request for

Proposal.

“Agency” or “State Agency” means an office, department, agency, institution of higher education, association, society or other body in the State of

Wisconsin government created or authorized to be created by the State

Constitution or any law, which is entitled to expend moneys appropriated by law, including the legislature and the courts, but not including an authority, as defined in Wis. Stat. s. 16.70(2).

“Contract” means a binding agreement for the procurement of goods and services under the terms and conditions contained within the Participating

Addendum, Master Agreement, Solicitation and addendums, Contract

Vendor’s response to the Solicitation, and related agreements.

“Data Breach” means an unauthorized access of Personally Identifiable

Information stored electronically or digitally on any computer system or other database. Good faith access of Personally Identifiable Information by an employee or agent of the Contract Vendor does not constitute a breach of security, provided that the information is not used for a purpose unrelated to the obligations of Contract Vendor under the Contract or subject to further unauthorized use.

“Days” means calendar days unless otherwise specified.

“Deliverables” means the reports, studies, photographs, negatives, databases, computer programs, drawings, manuals, written procedures and recommendations or other documents, whether in tangible or electronic forms, prepared by the Contract Vendor in performance of its obligations under the Contract and paid for by the Purchasing Entity.

“Inspection” means an examination of Products, Deliverables, or Services provided under this Contract in order to determine their compliance with the Contract requirements and/or Contract Vendor’s specifications.

“Personally Identifiable Information” means an individual’s last name and the individual’s first name or first initial, in combination with and linked to any of the following elements, if that element is not publicly available information and is not encrypted, redacted, or altered in any manner that renders the element unreadable: (a) the individual’s Social Security number;

(b) the individual’s driver’s license number or state identification number;

(c) the number of the individual’s financial account, including a credit or debit card account number, or any security code, access code, or password that would permit access to the individual’s financial account; (d) the individual’s DNA profile; or (e) the individual’s unique biometric data, including fingerprint, voice print, retina or iris image, or any other unique physical representation, and any other information protected by state or federal law.

“Products” as used within this Participating Addendum means the hardware and software licenses purchased or leased under this Contract.

“Properly-submitted Invoice” is one that is submitted in accordance with instructions contained on the Purchasing Entity or State’s Order provided that such instructions comply with the Contract or are otherwise agreed to in writing by the parties, includes a reference to the proper Order number, and is submitted to the proper address for processing.

“State” for this Participating Addendum, means the State of Wisconsin.

“Security Incident” means the attempted or successful unauthorized access, use, disclosure, modification, or destruction of Personally Identifiable

Information or interference with system operations in an information system. “Security Incident” does not include trivial incidents that occur on a frequent basis, such as scans, “pings” or unsuccessful attempts to penetrate computer networks or servers with an invalid password or user name, denial of service attacks, and port scans.

“Subcontract” means any contract, express or implied, between the Contract

Vendor and another party or between a Subcontractor and another party delegating or assigning, in whole or in part, the Subcontractor to fulfill the requirements and performance obligations of this Contract.

“Subcontractor” means any entity that enters into a Subcontract with the

Contract Vendor for the purpose of fulfilling the requirements and performance obligations of this Contract.

“Third Party” means any party who does not have a direct connection with this Contract, but who might be affected by it. A Third Party is a supplier of ancillary goods or support for a Product or Service who is neither the

Contract Vendor, Subcontractor, nor the Purchasing Entity.

2. Applicable Law. This Contract shall be governed by the laws of the State of

Wisconsin. Venue for any action brought under this Contract shall lie in

Madison, Dane County, Wisconsin.

3. Amendments. The terms of this Participating Addendum, excluding the

Master Agreement, shall not be waived, altered, modified, supplemented or amended in any manner whatsoever without prior written approval of the

Participating State.

4. Contract Term. The term of this Participating Addendum will be effective upon the date of the final execution by the Participating State and coterminous with the Master Agreement term unless otherwise cancelled or terminated as set forth in this Participating Addendum by the Participating

State.

5. Vendor Agreement Form. The Contract Vendor must sign the State of

Wisconsin Vendor Agreement, Wisconsin’s Cooperative Purchasing Service form (DOA-3333), to allow entities, as defined on the DOA-3333 form, to purchase through this Participating Addendum. Contract Vendor is responsible for verifying all sales under this Participating Addendum are to

Purchasing Entities authorized by this Participating Addendum.

6. Quotes.

a. Contract Vendor shall respond to Purchasing Entity quote requests by providing the requested quote within two (2) business days of receiving the request, or within the soonest commercially reasonable timeframe if the two (2) day requirement cannot be met.

b. When a quote may take longer due to delays by the manufacturer, Contract Vendor shall provide an estimate for when the quote will be provided. Quotes shall contain any applicable shipping charges not covered under the Contract. Except for custom shipping/delivery charges allowed under the Contract and resulting from a customer request or customer instructions submitted after the quote was provided, any shipping costs listed on an invoice that were not included on the quote will not be paid by the Purchasing Entity.

7. Pricing.

a. Purchasing Entities will be allowed to negotiate any of the pricing available in the Master Agreement for lower pricing or higher discounts;

b. Purchasing Entities may negotiate a lower rate or higher discount for bulk/volume purchases;

c. Contract Vendor shall offer such lower pricing or higher discount options available to the Purchasing Entity prior to an Order being placed, provided Purchasing Entity does not utilize a purchase method that makes notice of such an offer commercially unreasonable, such as an online order where the discount data has not been provided or approved in advance. Such discounts shall not require the Purchasing

Entity or the Participating State to provide additional documentation to participate in such pricing; and

d. Contract Vendor may offer promotions for deeply discounted Products based on their inventory and sales. Contract Vendor will be responsible to market such offers and adhere to the terms and conditions regarding advertising and news releases.

8. Refund of Credits. Within sixty (60) Days of Contract Vendor’s receipt of a

Product returned in accordance with the requirements of Master Agreement

Section B.37, the Contract Vendor shall pay to the Purchasing Entity any credits resulting from a returned Product. Other credits (including but not limited to overpayment or prepayment for cancelled orders) shall be refunded to the Purchasing Entity within sixty (60) days of determination by

Contract Vendor that such credit is due to the Purchasing Entity. Contract

Vendor will apply credits to any currently outstanding invoice upon receipt of request from the Purchasing Entity.

9. Promotional Advertising and News Releases. Reference to or use of the

State of Wisconsin, the Great Seal of the State, the Wisconsin Coat of Arms, any Agency or other subunits of the State government, or any State official or employee, for commercial promotion is strictly prohibited. News releases or release of broadcast e-mails pertaining to this Participating Addendum shall not be made without prior written approval of the State.

10. Replacement Parts. Replacement parts provided under a product warranty or service agreement will be provided in accordance with the applicable warranty or service agreement. Parts used in repairing or servicing hardware

Products may be new, equivalent-to-new, or reconditioned.

11. Restrictions. In addition to the Master Agreement, restrictions for hardware, Software, Services, and additional Products/Services are as follows:

a. Hardware.

Purchasing Entities that have a mandatory contract such as the

State Computer contract shall first obtain a written waiver from the mandatory contract prior to using this Participating Addendum to purchase equipment that would otherwise be available off of that contract; and

Such hardware is subject to equipment configuration dollar limits.

b. Software.

Purchasing entities that have a mandatory contract such as the

State Microcomputer Software contract for Commercial Off-The-

Shelf (COTS) Software shall first obtain a written waiver from the mandatory contract prior to using this Participating Addendum to purchase COTS Software;

Such COTS Software is subject to equipment configuration dollar limits: and

The program terms and conditions, software license agreement and/or End User License Agreement (EULA) terms available under this Participating Addendum were not reviewed at the time of the

Participating Addendum signing. Such terms shall be negotiated between the Purchasing Entity and the Contract Vendor. Any transfer of equipment or license agreement purchased from this

Contract can be done by a Purchasing Entity consistent with the applicable software license terms without additional cost to the

Purchasing Entity by the Contract Vendor.

c. Value-Added Services.

Acquisition of such Services shall be subject to this Participating

Addendum and the Master Agreement and to other additional terms that may be required by the Purchasing Entity and as mutually agreed to in writing by the parties. Services shall be described in a

Statement of Work (SOW). Such Statement of Work shall include specific terms detailing the Services such as, but not limited to: the time for performance, the payment amounts, payment contingencies, acceptance provisions, testing or other verification against specifications.

Services are broadly classed as installation, de-installation, maintenance support, minimal operation training, migration, training, and optimization of Products offered or supplied.

Contract Vendor Services shall include the following, within the scope of the Contract:

o Warranty Services, including upgrades;

o Break-Fix – Non Warranty o Equipment Maintenance;

o Staging;

o Deployment;

o Installation/ De-Installation;

o Image Loading;

o Factory Integration (Software or equipment components);

o Asset Management, including Asset Tagging;

o Pre-Implementation Design;

o Disaster Recovery Planning and Support;

o Equipment Operation Training; and o Onsite, offsite, or online training is allowed.

Services allowed within this section must be related to the equipment. Additional professional Services, including general consulting, regardless of length of engagement, are not allowed;

Purchasing Entities that have a mandatory contract for Information

Technology (IT) staffing Services shall first obtain a written waiver from the mandatory contract prior to using this Participating

Addendum to purchase any value-added Services that can be purchased from such mandatory contracts;

All travel expenses, if applicable, shall be agreed to in writing between the Purchasing Entity and the Contract Vendor as specified with the applicable Statement of Work, but such travel expenses shall not be reimbursed at rates below the rates noted in the current published State of Wisconsin Pocket Travel Guide published by the Office of State Employment Relations for the same conditions. However, Purchasing Entities may be responsible for justifying the cost of travel expense reimbursements that have been mutually agreed upon at rates higher than those published in the Wisconsin Pocket Travel Guide; and

When the Purchasing Entity Order requires a background check prior to providing Services, Contract Vendor shall be responsible for meeting any background check requirements. Such background check requirements and the payment of the background checks shall be agreed to in writing between the

Purchasing Entity and the Contract Vendor. The Purchasing Entity shall have the sole discretion to allow or deny access to any individual providing Contract Services after conducting a background check.

d. Additional Product/Services.

The EPEAT Bronze requirement is not waived;

Rental equipment is not authorized under this Participating

Addendum; and

Purchasing Entity may finance their purchases through a lease agreement. Financing lease agreements pursuant to this Contract by a Purchasing Entity requires separate procurement authority as permitted by that Purchasing Entity’s procurement laws and regulations. The competitive process for finance lease agreements was not conducted with this solicitation. As a result, this Contract does not provide procurement authority for such financing lease agreements. Upon procurement authority obtained by the

Purchasing Entity, financing lease agreements may be entered into for goods and Services within Contract scope. Any such agreement must be entered into prior to the Contract expiration between the

Contract Vendor and the Purchasing Entity. Each Purchasing Entity is responsible for all aspects of the financing lease agreement such as any required competition, negotiations, equipment schedule, and signature on any financial leasing document.

12. Trade-in Program. The Purchasing Entity shall follow all required surplus property disposal procedures and policies. Use of the current or subsequently awarded contract for disposal shall be used when applicable. If required disposal procedures allow, and if the Trade-In Program offers savings or disposal not offered elsewhere for the Purchasing Entity, such program may be utilized.

13. Website Ordering. The Participating State may inherit the NASPO Contract

Vendor website or require Contract Vendor to provide a hosted or punchout site for use on an e-procurement system. Contract Vendor will work with the

State where needed for implementation. Contract pricing for only the scope of this Participating Addendum will be available on the website.

14. Services performed in United States. Pursuant to s. 16.705(1r), Wis. Stats., Services must performed within the United States. Notwithstanding the foregoing, the Contract Vendor may perform certain services in the ordinary course of business outside the United States, including image loading, factory integration, and administrative and back office services, the performance of which will not require access to the Purchasing Entity’s confidential data other than billing and contact information.

15. State Tax Exemption. The State is exempt from payment of Wisconsin sales or use tax on all purchases. The Contract Vendor shall be responsible for paying all applicable taxes. The Purchasing Entity shall provide the tax-exempt status to the Contract Vendor. In the event taxes are due and tax-exempt status is not provided by the Purchasing Entity upon request within a reasonable time, the Purchasing Entity shall pay all applicable local sales or use taxes, duties and other imposts, if any, due on account of purchases hereunder.

16. Delivery. A Purchasing Entity will not incur additional shipping costs for any partial or split shipments made by Contract Vendor of any Product on a single Order, unless the Purchasing Entity has requested expedited shipping on a portion of such Order.

17. Prompt Payment. The State shall pay the Contract Vendor’s Properly-submitted Invoices within thirty (30) Days of receipt, provided that the

Products, Deliverables or Services to be provided to the State have been delivered, rendered, or installed, and accepted as specified in this Contract, the Order document, and Master Agreement Section B.28. If the State fails to pay a Properly-submitted Invoice within thirty (30) Days of receipt, it shall pay a late payment penalty as provided in §16.528, Wis. Stats. However, if the State declares a good faith dispute in regard to an invoice pursuant to

§16.528 (3)(e), Wis. Stats., it may pay any undisputed portion of said invoice, and will be exempt from the prompt payment requirement for the disputed portion. Contract Vendor may discontinue performance with any Purchasing

Entity if such entity fails to pay any undisputed sum due. The Participating

State and Purchasing Entities do not agree to pay attorney fees, costs, or late payment charges beyond those available under the prompt payment provisions.

18. Substitution. Contract Vendor will not substitute equipment, Products, Deliverables or Services specified by the Purchasing Entity in an Order. If

Products, Deliverables or Services cannot be supplied and delivered as specified, Contract Vendor shall promptly inform the Purchasing Entity in writing and the Purchasing Entity will be offered the choice of terminating the Order, accepting back order status, or consulting with the Contract

Vendor sales representative about selecting alternative goods or Services.

19. Product Recalls. In the event Contract Vendor recalls a Contract Vendor branded product, Contract Vendor agrees to use commercially reasonable efforts in cooperation with appropriate regulatory agencies, including the

U.S. Consumer Product Safety Commission, to provide written notice to the

Participating State’s Primary Contact in a timely manner as required by federal laws and regulations. Written notice shall identify the Contract

Vendor branded product being recalled, the reason for the recall (if applicable), and the process for replacing, repairing, or modifying the recalled Contract Vendor branded product. Contract Vendor agrees to notify the Participating State’s Primary Contact within a reasonable time after

Contract Vendor’s receipt of a Third Party manufacturer’s written recall notice to Contract Vendor, if applicable.

20. Rush Orders. Purchasing Entity may request, and Contract Vendor will arrange for its carrier to provide, expedited delivery of in-stock equipment in accordance with the Order. Any additional shipping incurred costs above and beyond the already included shipping costs as a result of a request for expedited delivery shall be quoted and accepted by the Purchasing Entity prior to shipment.

21. Termination of Participating Addendum.

a. Termination for Convenience; Cancellation. The Cancellation terms and conditions remain as stated in the Master Agreement. Additional terms include:

1. The Participating State reserves the right to cancel this Contract in whole or in part without penalty, and without prior notice, if the

Contract Vendor:

Files a petition in bankruptcy, becomes insolvent, or otherwise takes action to dissolve as a legal entity; or

Makes an assignment for the benefit of creditors; or

Fails to maintain the confidentiality of the Purchasing Entity’s or

Participating State’s information that is considered to be

Confidential Information; or

Performs in a manner that threatens the health or safety of a

Purchasing Entity or Participating State employee, citizen, or customer.

2. The State reserves the right to cancel this Contract in whole or in part without penalty upon the failure of Contract Vendor to cure within thirty (30) Days’ of receipt of notice, if the Contract Vendor:

Fails to follow the sales and use tax certification requirements of

s. 77.66 of the Wisconsin Statutes; or

Fails to maintain and keep in force all required insurance, permits, and licenses as provided in this Contract;

Incurs a delinquent Wisconsin tax liability; or

Fails to submit a non-discrimination or affirmative action plan as required herein; or

Fails to follow the non-discrimination or affirmative action requirements of subch. II, Chapter 111 of the Wisconsin Statutes

(Wisconsin’s Fair Employment Law); or

Contract Vendor has not satisfied a certified or verifiable delinquent payment owed to the State, or to any state or local unit of government; or

Becomes a state or federally debarred Contract Vendor.

b. Termination for Cause. The Cancellation terms and conditions remain as stated in the Master Agreement.

22. Nonappropriation of Funds. The Contract Vendor acknowledges that the

Purchasing Entity cannot contract for the payment of funds not yet appropriated. If funding is reduced due to an order by the Legislature or the

Governor, or is required by State law, or if federal funding (when applicable) is not provided, the Purchasing Entity may terminate this contract or proportionately reduce the Services and purchase obligations upon thirty

(30) Days written notice. In the case that funds are not appropriated, or are reduced, the Purchasing Entity will reimburse Contract Vendor for

Deliverables and Products delivered or Services performed through the date of cancellation or reduction, and the Purchasing Entity will not be liable for any future commitments, penalties, or liquidated damages.

23. Delay and Remedy. In case of failure to deliver Products, Deliverables, or

Services in accordance with this Contract, the State, upon written notice to the Contract Vendor and failure to cure in accordance with the Master

Agreement Section B.9, may procure such Products, Deliverables, or Services from other sources as necessary, and the Contract Vendor shall be responsible for the additional cost incurred which shall not exceed the difference between the fair market price for equivalent Products, Deliverables, and Services and the Contract price, provided that Contract

Vendor also promptly refund any amounts pre-paid by the Purchasing Entity for the Services that have not been performed in accordance with this

Contract or amounts pre-paid by the Purchasing Entity for the Product or

Deliverables not delivered. This remedy shall be in addition to any other legal remedies available to the Purchasing Entity or Participating State.

24. State Payment Offsets for Contract Vendor’s Delinquency. The State shall offset payments made to the Contract Vendor under this Contract in an amount necessary to satisfy a certified or verifiable delinquent payment owed to the State, or to any state or local unit of government. The State also reserves the right to cancel this Contract if the delinquency is not satisfied by the offset or other means during the term of the Contract.

25. Post Contract Obligations. Upon the termination of this Contract for any reason, or upon Contract expiration, each party shall be released from all obligations to the other party arising after the date of termination or expiration, except for those that by their terms survive such termination or expiration.

26. Contract Vendor Compliance and Responsibility for Actions. The

Contract Vendor shall at all times comply with and observe all applicable federal, state, and local laws, ordinances, and regulations that are in effect during the term of this Contract that may affect the Contract Vendor’s work or obligations hereunder. The Contract Vendor shall be solely responsible for its actions and those of its agents, employees, or Subcontractors.

Neither the Contract Vendor nor any of the foregoing parties has authority to act or speak on behalf of the State.

27. Nondiscrimination and Affirmative Action. The Contract Vendor shall not discriminate against any employee or applicant for employment because of age, race, religion, color, handicap, sex, physical condition, national origin, developmental disability as defined in § 51.01(5), Wis. Stats., or sexual orientation as defined in §111.32(13m), Wis. Stats. This provision shall include, but is not limited to, employment, upgrading, demotion or transfer;

recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. Except with respect to sexual orientation, the Contract

Vendor shall take affirmative action to ensure equal employment opportunities.

Unless exempted by workforce size (50 or fewer employees) or Contract amount ($50,000 or less), the Contract Vendor must submit a written affirmative action plan to the State.

The Contract Vendor shall post a notice provided by the State, setting forth the provisions of the State's nondiscrimination laws, in any Contract Vendor workplace located in the State of Wisconsin, in order that the Contract

Vendor’s employees and applicants for employment are able to read it. For workplace locations outside of the State of Wisconsin, Contract Vendor shall post employment related notices as required by federal law and applicable state law where Contract Vendor’s principal place of business is located.

Failure to comply with the conditions of this provision may result in the following consequences:

termination of this Contract as provided in Section 21, Termination of

Participating Addendum, herein, designation of the Contract Vendor as "ineligible" for future consideration as a responsible, qualified bidder or proposer for State contracts, or withholding of a payment due under the Contract until the Contract

Vendor is in compliance

Instructions for Contract Vendors regarding Affirmative Action

Requirements can be found at http://vendornet.state.wi.us/vendornet/contract/contcom.asp.

28. Confidential Information; Indemnification in Event of Contract Vendor

Breach.

In the event of a breach of Contract Vendor’s obligations under Master

Agreement Section B.7, Contract Vendor shall indemnify, defend and hold harmless the State of Wisconsin and any of its officers, employees, or agents from any third party claims or regulatory agency penalties arising from the acts or omissions of the Contract Vendor, and its Subcontractors, employees and agents including, but not limited to, disallowances or penalties from federal oversight agencies, and any court costs, expenses, and reasonable attorney fees, incurred by the State in the enforcement of this Section and, with respect to Personally Identifiable Information, the costs for up to one year of monitoring the credit of all persons whose Personally Identifiable

Information was disclosed.

29. Records, Recordkeeping and Record Retention. Pursuant to §19.36 (3) of the Wisconsin Statutes, all records of the Contract Vendor that are produced or collected under this Contract are subject to disclosure pursuant to a public records request. The Contract Vendor shall establish and maintain adequate records of all documentation developed or compiled and expenditures incurred under this Contract. All expenditure records shall be kept in accordance with Generally Accepted Accounting Procedures (GAAP).

All procedures shall be in accordance with federal, State and local laws or ordinances. The Contract Vendor shall retain all records produced or collected under this Contract for six (6) years. The record retention shall be longer if the particular records are the subject of an audit, needed for a legal action, or if an open records request has been made.

30. Examination of Records.

a. Without a specific request, the Contract Vendor will automatically provide a copy of or a link to the manufacturer’s warranty accompanying Products ordered.

http://vendornet.state.wi.us/vendornet/contract/contcom.asp

b. In the event a Third Party Product manufacturer fails to honor its standard product warranty, Contract Vendor’s sole responsibility will be to use its commercially reasonable efforts to provide only those

Services as defined in the Third Party Product manufacturer’s instrument for the Third Party Product at issue during the life of the manufacturer’s original warranty and subject to all terms, conditions and exclusions in that instrument.

31. Disclosure. If a state public official (as defined in §19.42 (14) of the

Wisconsin Statutes) or an organization in which a state public official holds at least a 10% interest is or becomes a party to this Agreement, it shall be voidable by the State unless appropriate disclosure is made to the State of

Wisconsin Government Accountability Board, 212 East Washington Avenue, Madison, Wisconsin 53703 (Telephone 608-266-8005).

32. Liens, Claims and Encumbrances. The Contract Vendor warrants and represents that all Products and Deliverables purchased hereunder are free and clear of all liens, claims or encumbrances of any kind.

33. Warranty of Items Offered. Products, Deliverables and Services rendered shall be strictly in accordance with the Order placed and may not deviate in any way from the terms, conditions or specifications of this Contract, without the prior written approval of the Purchasing Entity. Products delivered under this Contract are subject to Inspection and testing upon receipt. The Contract Vendor warrants that the Products and Deliverables provided shall conform to the specifications in this Contract, are fit and sufficient for the purpose manufactured, of good material and workmanship, and free from defect. Products offered must be new and unused and of the latest model or manufacture, unless otherwise specified by the Purchasing

Entity. Products, Deliverables and Services delivered that do not conform to the Contract terms, conditions, and specifications may be rejected and returned, repaired or replaced to bring into compliance in accordance with the warranty or return provisions of the Contract at the Contract Vendor’s expense. For third party Products sold by the Contract Vendor, the Contract

Vendor will assign the manufacturer or publisher’s warranty and maintenance. All warranties made by the Contract Vendor under this

Contract shall survive the expiration or termination of the Contract for the original duration of the term of the warranty. Insofar as applicable law prohibits any limitation within the manufacturer’s Product warranty, the parties agree that such limitation will be automatically modified, but only to the extent so as to make the limitation permitted to the fullest extent possible under such law and consistent with the terms herein. The

Purchasing Entity and State is not subject to or barred any limitations of actions regarding warranty.

34. Receipt of goods. The Purchasing Entity’s receipt of Products and

Deliverables upon delivery is for the sole purpose of identification. Such identification shall not be construed as acceptance of the Products or

Deliverables if they do not conform to contractual requirements. If there are any apparent defects in the Products or Deliverables at the time of delivery, the Purchasing Entity shall promptly notify the Contract Vendor of its rejection of said Products or Deliverables. Defective Products will be repaired or replaced in accordance with the applicable Product warranty. In addition, Products may be returned in accordance with this Contract. For third party Products sold by the Contract Vendor, the Contract Vendor will assign the manufacturer or publisher’s warranty and maintenance. The

Contract Vendor will provide warranty and maintenance call numbers and assist the customer in engaging the manufacturer on warranty and maintenance issues.

Upon breach of the warranty, the Contract Vendor will repair or replace (at no charge to the Purchasing Entity) the Product whose nonconformance is discovered and made known to the Contract Vendor. If the repaired and/or replaced Product proves to be inadequate, or fails of its essential purpose, the Contract Vendor will refund the full amount of any payments that have been made. The rights and remedies of the parties under this warranty are in addition to any other rights and remedies of the parties provided by law or so ordered by the court.

35. Performance. Services rendered under this Contract shall be performed in a timely, professional and diligent manner by qualified and efficient personnel in accordance with generally accepted industry practices, and in compliance with the Contract requirements and applicable laws and regulations. The Contract Vendor shall be solely responsible for controlling the manner and means by which it and its Contracted Personnel or its

Subcontractors render Services, and the Contract Vendor shall observe, abide by, and perform all of its obligations in accordance with all legal requirements and Purchasing Entity’s workplace policies as provided to

Contract Vendor prior to performing Services, or during the performance of

Services as may become necessary, on Purchasing Entity’s premises, or those workplace policies which have been publicly posted or should reasonably have been known by Contract Vendor. Without limiting the foregoing, the

Contract Vendor shall control the manner and means of the Services rendered so as to do so in a reasonably safe manner and in compliance with all applicable codes, regulations and requirements imposed or enforced by any government agencies, including all applicable requirements of the

Occupational Safety and Health Administration (OSHA) and all safety codes and procedures mandated or recommended by all generally recognized organizations establishing safety standards, including without limitation the

National Fire Protection Association. Notwithstanding the foregoing, any stricter standard provided in plans, specifications or other documents incorporated as part of this Contract shall govern.

36. Acceptance/Acceptance Testing. In addition to the Master Agreement, Section 28, the Contract Vendor shall not require the Purchasing Entity to sign or electronically accept additional terms and conditions for acceptance or acceptance testing except under a custom Statement of Work that has been mutually agreed to by both parties in writing. Such additional terms and conditions for acceptance or acceptance testing shall be consistent and complementary with the terms and conditions of the Contract.

37. Installation. If the Contract Vendor is providing installation with the product purchase, and there are specific site requirements for equipment installation, such requirements shall be provided to the Purchasing Entity under a Service Agreement or custom Statement of Work that has been mutually agreed to by both parties in writing.

38. Contractual Remedies. In addition to the Master Agreement remedies, the

Purchasing Entity or State shall be entitled to offset against any sums due the Contract Vendor, any reasonable expenses or costs incurred by the

Purchasing Entity or State, or damages awarded to the Purchasing Entity or

State concerning the Contract Vendor’s non-conforming and uncured performance or material breach of performance under the Contract.

39. State Employees; Organizational Conflict of Interest. Master Agreement

Section C.23 shall apply to this Contract. Contract Vendor may not contract with or employ a State employee or an individual retained as a full-time

Contract Vendor by the State during the term of this Participating

Addendum.

40. Severability. If any provision of this Contract is found by a court of competent jurisdiction to be invalid or unenforceable, the remainder of the

Contract shall remain valid and in full force and effect. The invalid provision shall be replaced by a valid provision that comes closest in intent to the invalid provision.

41. Notice and Change of Contact Information. Any notice required or permitted to be given hereunder shall be deemed to have been given on the date of delivery or three (3) business days after mailing by postal service, certified or registered mail-receipt requested. In the event the Contract

Vendor moves or updates contact information, the Contract Vendor shall inform the Participating State Primary Contact of such changes in writing within ten (10) business days. The Purchasing Entity shall not be held responsible for payments on Orders delayed due to the Contract Vendor’s failure to provide such notice, but Purchasing Entity will make timely payment on such Orders when Contract Vendor provides the requisite notice.

42. Assignment of Contract. The Contract Vendor shall provide prior written notice to the Participating State Primary Contact before assigning this

Contract to another party. The Participating State reserves the right to withhold approval of any such assignment, provided such approval shall not be unreasonably withheld. The terms and conditions of this Contract as well as any rights obligations and liabilities associated with such shall survive any and all assignments, mergers, or acquisitions by a Third Party until cancelled in writing by both parties.

43. Contract Dispute Resolution. In the event of any dispute or disagreement between the parties under this Contract, whether with respect to the interpretation of any provision of this Contract, or with respect to the performance of either party hereto, each party shall appoint a representative to meet for the purpose of endeavoring to resolve such dispute or negotiate for an adjustment to such provision. The existence or results of any such negotiation will be treated as Confidential Information to the extent that the

Participating State or Purchasing Entity is not compelled by law to disclose such information. No legal action of any kind, except for the seeking from a state or federal court a temporary restraining order, preliminary injunction, or other equitable relief to preserve the status quo, prevent irreparable harm, avoid the expiration of any applicable limitations period, or preserve a superior position with respect to other creditors, or in the case of the public’s health, safety or welfare, may begin in regard to the dispute until this dispute resolution procedure has been utilized, and either of the representatives in good faith concludes, after a good faith attempt to resolve the dispute, that amicable resolution through continued negotiation of the matter at issue does not appear likely.

44. Rendering of Services. The Contract Vendor shall render Services in a good and workmanlike manner, in accordance with generally accepted industry practices, and in compliance with the Contract requirements and applicable laws and regulations.

If the…