7360022876TC.pdf

FIRST AMENDMENT TO

CONTRACT NUMBER INSERT

CONTRACT NUMBER

BETWEEN

THE NEW YORK STATE OFFICE OF GENERAL SERVICES

AND

INSERT CONTRACTOR NAME

FIRST AMENDMENT, CONTRACT INSERT CONTRACT NUMBER – INSERT CONTRACTOR NAME

GROUP 73600 – Information Technology Umbrella Contract Distributor Based (Statewide)

THIS FIRST AMENDMENT is made by and between the State of New York, acting by and through the Office of General Services (hereinafter “OGS” or the “State”), with offices at 36th Floor, Corning Tower, The Governor Nelson A. Rockefeller Empire State Plaza, Albany, New York 12242, pursuant to authority granted under New York State Finance Law 163, and INSERT CONTRACTOR NAME, (hereinafter “Contractor” or “Vendor”), with its principal place of business at INSERT ADDRESS. The State and the Contractor are collectively referred to as the “Parties”.

WITNESSETH:

WHEREAS, the State and Contractor entered Contract INSERT CONTRACT NUMBER for Information Technology Contract Distributor Based; and

WHEREAS, the Parties have agreed to amend the Contract to extend the term of the Contract and make various other revisions to the Contract;

NOW THEREFORE, in consideration of the mutual covenants herein contained, the Parties hereby agree as follows:

Section 1. Pursuant to Contract §6, Contract Term, the Contract is extended for 5 years, being the period of December 7, 2021 through and including December 6, 2026.

Section 2. Section 12 of the Contract, Appendix A, is deleted in its entirety and replaced with the following language:

Section 12, Appendix A. Appendix A, Standard Clauses for New York State Contracts, dated October 2019, attached hereto, is hereby incorporated in, and expressly made a part of this Contract. All references in the Contract to Appendix A, dated January 2014, shall be deemed to reference Appendix A, dated October 2019.

Section 3. Section 25 of the Contract, Contractor Requirements And Procedures For Equal Employment And Business Participation Opportunities For Minority Group Members And New York State Certified Minority- And Women-Owned Business Enterprises, is deleted in its entirety and replaced with the following language:

Section 25. CONTRACTOR REQUIREMENTS AND PROCEDURES FOR PARTICIPATION BY

NEW YORK STATE CERTIFIED MINORITY- AND WOMEN-OWNED BUSINESS ENTERPRISES

AND EQUAL EMPLOYMENT OPPORTUNITIES FOR MINORITY GROUP MEMBERS AND

WOMEN

I. New York State Law

Pursuant to New York State Executive Law Article 15-A and Parts 140-145 of Title 5 of the New York Codes, Rules and Regulations (“NYCRR”), the New York State Office of General Services (“OGS”) is required to promote opportunities for the maximum feasible participation of New York State-certified Minority- and Women-Owned Business Enterprises (“MWBEs”) and the employment of minority group members and women in the performance of OGS contracts.

II. General Provisions

A. OGS is required to implement the provisions of New York State Executive Law Article 15-A and 5 NYCRR Parts 140-145 (“MWBE Regulations”) for all State contracts as defined therein, with a value

(1) in excess of $25,000 for labor, services, equipment, materials, or any combination of the foregoing or (2) in excess of $100,000 for real property renovations and construction.

B. The Contractor agrees, in addition to any other nondiscrimination provision of the Contract and at no additional cost to OGS, to fully comply and cooperate with OGS in the implementation of New York State Executive Law Article 15-A and the regulations promulgated thereunder. These requirements include equal employment opportunities for minority group members and women (“EEO”) and contracting opportunities for MWBEs. Contractor’s demonstration of “good faith efforts” pursuant to 5 NYCRR § 142.8 shall be a part of these requirements. These provisions shall be deemed supplementary to, and not in lieu of, the nondiscrimination provisions required by New York State Executive Law Article 15 (the “Human Rights Law”) or other applicable federal, State, or local laws.

C. Failure to comply with all of the requirements herein may result in a finding of non-responsiveness, a finding of non-responsibility, breach of contract, withholding of funds, suspension or termination of the Contract, and/or such other actions or enforcement proceedings as allowed by the Contract and applicable law.

III. Equal Employment Opportunity (EEO)

A. The provisions of Article 15-A of the Executive Law and the rules and regulations promulgated thereunder pertaining to equal employment opportunities for minority group members and women shall apply to all Contractors, and any subcontractors, awarded a subcontract over $25,000 for labor, services, including legal, financial and other professional services, travel, supplies, equipment, materials, or any combination of the foregoing, to be performed for, or rendered or furnished to, the contracting State agency (the “Work”) except where the Work is for the beneficial use of the Contractor.

1. Contractor and subcontractors shall undertake or continue existing EEO programs to ensure that minority group members and women are afforded equal employment opportunities without discrimination because of race, creed, color, national origin, sex, age, disability, or marital status. For these purposes, EEO shall apply in the areas of recruitment, employment, job assignment, promotion, upgrading, demotion, transfer, layoff or termination, and rates of pay or other forms of compensation. This requirement does not apply to: (i) the performance of work or the provision of services or any other activity that is unrelated, separate, or distinct from the Contract; or (ii) employment outside New York State.

2. By entering into this Contract, Contractor certifies that the text set forth in clause 12 of Appendix A, attached hereto and made a part hereof, is Contractor’s equal employment opportunity policy. In addition, Contractor agrees to comply with the Non-Discrimination Requirements set forth in clause 5 of Appendix A.

B. Form EEO 100 – Staffing Plan To ensure compliance with this section, the Contractor agrees to submit, or has submitted with the Bid, a staffing plan on Form EEO 100 to OGS to document the composition of the proposed workforce to be utilized in the performance of the Contract by the specified categories listed, including ethnic background, gender, and federal occupational categories.

C. NYS Contract System Workforce Utilization Reporting Module (Commodities & Services)

1. The Contractor shall complete and shall require each of its subcontractors to complete a

Workforce Audit on a quarterly basis throughout the term of this Contract, by the 10th day of April, July, October, and January. To report the actual workforce utilized in the performance of the Contract by the specified categories listed including ethnic background, gender, and Federal occupational categories. Contractor shall coordinate with its subcontractors to ensure that all workers associated with this Contract are properly counted and reported. To prepare the report, Contractor and its subcontractors shall use the NYS Contract System Workforce Audit Module found at the following website: https://ny.newnycontracts.com.

2. Separate audits shall be completed by Contractor and all subcontractors utilized on this contract and the Contractor is responsible for ensuring timely submission of the Workforce Audit by their subcontractors.

3. In limited instances, the Contractor or subcontractor may not be able to separate out the workforce utilized in the performance of the Contract from its total workforce. When a separation can be made, the Contractor or subcontractor shall complete the Workforce Audit and indicate that the information provided relates to the actual workforce utilized on the Contract. When the workforce to be utilized on the Contract cannot be separated out from the Contractor's or subcontractor's total workforce, the Contractor or subcontractor shall complete the Workforce Audit and indicate that the information provided is the Contractor's or subcontractor’s total workforce during the subject time frame, not limited to work specifically performed under the Contract.

D. Contractor shall comply with the provisions of the Human Rights Law and all other State and federal statutory and constitutional non-discrimination provisions. Contractor and subcontractors shall not discriminate against any employee or applicant for employment because of race, creed (religion), color, sex, national origin, sexual orientation, military status, age, disability, predisposing genetic characteristic, marital status, or domestic violence victim status, and shall also follow the requirements of the Human Rights Law with regard to non-discrimination on the basis of prior criminal conviction and prior arrest.

IV. Contract Goals

A. For purposes of this procurement, OGS conducted a comprehensive search and determined that the Contract does not offer sufficient opportunities to set goals for participation by MWBEs as subcontractors, service providers, or suppliers to Contractor. Contractor is, however, encouraged to make every good faith effort to promote and assist the participation of MWBEs on this Contract for the provision of services and materials. The directory of New York State Certified MWBEs can be viewed at: https://ny.newnycontracts.com/FrontEnd/VendorSearchPublic.asp?TN=ny&XID=2528.

Additionally, following Contract execution, Contractor is encouraged to contact the Division of Minority and Women’s Business Development ((518) 292-5250; (212) 803-2414; or (716) 846-8200) to discuss additional methods of maximizing participation by MWBEs on the Contract.

B. Good Faith Efforts

Pursuant to 5 NYCRR § 142.8, evidence of good faith efforts shall include, but not be limited to, the following:

1. A list of the general circulation, trade, and MWBE-oriented publications and dates of publications in which the Contractor solicited the participation of certified MWBEs as subcontractors/suppliers, copies of such solicitations, and any responses thereto.

2. A list of the certified MWBEs appearing in the Empire State Development (“ESD”) MWBE directory that were solicited for this Contract. Provide proof of dates or copies of the solicitations and copies of the responses made by the certified MWBEs. Describe specific reasons that responding certified MWBEs were not selected.

3. Descriptions of the Contract documents/plans/specifications made available to certified MWBEs by the Contractor when soliciting their participation and steps taken to structure the scope of work for the purpose of subcontracting with, or obtaining supplies from, certified MWBEs.

4. A description of the negotiations between the Contractor and certified MWBEs for the purposes of complying with the MWBE goals of this Contract.

https://ny.newnycontracts.com/ https://ny.newnycontracts.com/FrontEnd/VendorSearchPublic.asp?TN=ny&XID=2528

5. Dates of any pre-bid, pre-award, or other meetings attended by Contractor, if any, scheduled by OGS with certified MWBEs whom OGS determined were capable of fulfilling the MWBE goals set in the Contract.

6. Other information deemed relevant to the request.

V. Fraud Any suspicion of fraud, waste, or abuse involving the contracting or certification of MWBEs shall be immediately reported to ESD’s Division of Minority and Women’s Business Development at (855) 373- 4692.

ALL FORMS ARE AVAILABLE AT: https://ogs.ny.gov/MWBE Vendor must scroll down to the section titled COMMODITY & SERVICE CONTRACTS and use the appropriate forms under this section only.

Section 4. The Contract is amended to add a new Section 25-A, Participation Opportunities For New York State Certified Service-Disabled Veteran Owned Businesses, to read as follows:

Section 25-A. PARTICIPATION OPPORTUNITIES FOR NEW YORK STATE CERTIFIED

SERVICE-DISABLED VETERAN OWNED BUSINESSES

Article 17-B of the New York State Executive Law provides for more meaningful participation in public procurement by certified Service-Disabled Veteran-Owned Businesses (“SDVOBs”), thereby further integrating such businesses into New York State’s economy. OGS recognizes the need to promote the employment of service-disabled veterans and to ensure that certified service-disabled veteran-owned businesses have opportunities for maximum feasible participation in the performance of OGS contracts.

In recognition of the service and sacrifices made by service-disabled veterans and in recognition of their economic activity in doing business in New York State, Bidders/Contractors are strongly encouraged and expected to consider SDVOBs in the fulfillment of the requirements of the Contract. Such participation may be as subcontractors or suppliers, as protégés, or in other partnering or supporting roles.

For purposes of this procurement, OGS conducted a comprehensive search and determined that the

Contract does not offer sufficient opportunities to set specific goals for participation by SDVOBs as subcontractors, service providers, and suppliers to Contractor. Nevertheless, Bidder/Contractor is encouraged to make good faith efforts to promote and assist in the participation of SDVOBs on the Contract for the provision of services and materials. The directory of New York State Certified SDVOBs can be viewed at: https://ogs.ny.gov/Veterans/

Bidder/Contractor is encouraged to contact the Office of General Services’ Division of Service-Disabled

Veteran’s Business Development at 518-474-2015 or VeteranDevelopment@ogs.ny.gov to discuss methods of maximizing participation by SDVOBs on the Contract.

ALL FORMS ARE AVAILABLE AT: https://ogs.ny.gov/Veterans/

Section 5. Except as herein modified all other terms and conditions of this Contract remain in full force and effect.

https://ogs.ny.gov/MWBE

IN WITNESS WHEREOF, the Parties have executed this First Amendment as of the date last written below. The Parties further hereby certify that original copies of this executed and approved signature page will be affixed, upon final approval, to exact copies of this First Amendment being executed simultaneously herewith. The acknowledgment must be fully and properly executed by an authorized person. By signing you certify your express authority to sign on behalf of yourself, your company, or other entity, and full knowledge and acceptance of this agreement, Appendix A (Standard Clauses For New York State Contracts), Appendix B (General Specifications), and State Finance Law §139-j and §139-k (Procurement Lobbying), and that all information provided is complete, true and accurate. By signing, Contractor affirms that it understands and agrees to comply with the procedures relative to permissible contacts as required by State Finance Law §139-j (3) and §139-j (6) (b).

INSERT CONTRACTOR NAME NYS Office of General Services

Signature: ____________________ Signature: ____________________

Printed Name: _____________________ Printed Name: _____________________

Title: ________________________________ Title: _____________________________

Federal ID:______________ Date: _____________________________

NYS Vendor ID: _________________

Date: _______________________________

NOTICE: This First Amendment becomes effective once an authorized signatory for OGS approves and executes. OGS will then post a notification to its website in the form of a Purchasing Memorandum.

INDIVIDUAL, CORPORATION, PARTNERSHIP, OR LLC ACKNOWLEDGMENT

STATE OF

: Sworn Statement:

COUNTY OF

On the ________ day of ______________________ in the year 20_____ , before me personally appeared

_____________________________________________, known to me to be the person who executed the foregoing instrument, who, being duly sworn by me did depose and say that they maintain an office at

Town of_____________________________________________________________________________

County of ____________________________, State of___________; and further that:

[Check One] ( If an individual): they executed the foregoing instrument in their name and on their own behalf.

( If a corporation): they are the __________________________________________________________ of ______________________________________, the corporation described in said instrument; that, by authority of the Board of Directors of said corporation, they are authorized to execute the foregoing instrument on behalf of the corporation for purposes set forth therein; and that, pursuant to that authority, ________________________ executed the foregoing instrument in the name of and on behalf of said corporation as the act and deed of said corporation.

( If a partnership): they are the _________________________________________________________ of ______________________________________, the partnership described in said instrument; that, by the terms of said partnership, they are authorized to execute the foregoing instrument on behalf of the partnership for purposes set forth therein; and that, pursuant to that authority, they executed the foregoing instrument in the name of and on behalf of said partnership as the act and deed of said partnership.

( If a limited liability company): they are a duly authorized member of

__________________________________, LLC, the limited liability company described in said instrument; that, they are authorized to execute the foregoing instrument on behalf of the limited liability company for purposes set forth therein; and that, pursuant to that authority, they executed the foregoing instrument in the name of and on behalf of said limited liability company as the act and deed of said limited liability company.

Signature of Notary Public

Notary Public Registration No.________________________________________State________________

Corning Tower, Empire State Plaza, Albany, NY 12242 | http://nyspro.ogs.ny.gov | customer.service@ogs.ny.gov | 518-474-6717

Contract

Contract Term: December 7, 2016 - December 6, 2021 (see Section 6 for details).

THIS CONTRACT (hereinafter “Contract” or “Centralized Contract”) for the acquisition of Information Technology Software and Hardware is made between the People of the State of New York, acting by and through the Commissioner of the Office of General Services (hereinafter “State” or “OGS”) whose principal place of business is the 41st Floor, Corning Tower, The Governor Nelson A. Rockefeller Empire State Plaza, Albany, New York 12242, pursuant to authority granted under New York State Finance Law §163, and INSERT CONTRACTOR NAME (hereinafter “Contractor”), with its principal place of business at INSERT ADDRESS.

The foregoing are collectively referred to as the “Parties.”

WHEREAS, on August 25, 2016 OGS issued a Request for Proposals (“Solicitation”) for Distributor based miscellaneous Software and Hardware, and Related Services; and

WHEREAS, the Solicitation was structured with two separate lots: Lot 1–Software, and Lot 2–Hardware; and

WHEREAS, the State evaluated Contractor’s submission and determined that the Contractor was eligible for a contract award for those Lot(s) set forth in Appendix D; and

WHEREAS, in accordance with State Finance Law Article 11, the State has made a determination that the Contractor’s not to exceed pricing is reasonable; and

WHEREAS, this Centralized Contract requires, for each transaction, that the Authorized User issue a competitive Request for Quote (RFQ) to be issued to eligible Contractors pursuant to a How to Use Process.

Each Authorized User Agreement resulting from the competitive RFQ process will be governed first by the terms and conditions specified herein and second by terms and conditions added to the Authorized User Agreement by the Authorized User; and

NOW THEREFORE, in consideration of the terms hereinafter mentioned and also the mutual covenants and obligations moving to each party hereto from the other, the Parties hereby agree as follows:

Table of Contents

1. SCOPE __________________________________________________________________________________ 3

2. PROHIBITED LIST ________________________________________________________________________ 4

3. CONTRACTOR QUALIFICATIONS ___________________________________________________________ 4

4. COST-PLUS/COST-MINUS PERCENTAGES ___________________________________________________ 4

5. NEW YORK STATE VENDOR RESPONSIBILITY QUESTIONNAIRE FOR-PROFIT BUSINESS ENTITY ____ 4

6. CONTRACT TERM ________________________________________________________________________ 5

7. SHORT TERM EXTENSION _________________________________________________________________ 5

8. CONTRACT MODIFICATION PROCEDURES ___________________________________________________ 5

9. PERIODIC RECRUITMENT __________________________________________________________________ 6

10. ESTIMATED QUANTITIES __________________________________________________________________ 6

Office of General Services Procurement Services

Group 73600 – Solicitation 22876 Information Technology Umbrella Contract Distributor Based (Statewide) Page 2 of 25

11. DEFINITIONS _____________________________________________________________________________ 6

12. APPENDIX A _____________________________________________________________________________ 9

13. APPENDIX B ____________________________________________________________________________ 10

14. APPENDIX C ____________________________________________________________________________ 10

17. APPENDIX F ____________________________________________________________________________ 10

20. CONTRACT INTEGRATION, MERGER AND ORDER OF PRECEDENCE ___________________________ 10

21. REPORT OF CONTRACT USAGE ___________________________________________________________ 11

22. REPORTS GENERATED BY STATE OGS PROCUREMENT SERVICES ____________________________ 11

23. REQUIRED INSURANCE __________________________________________________________________ 11

24. PERFORMANCE AND BID BONDS __________________________________________________________ 11

26. TAX LAW §5-A __________________________________________________________________________ 14

27. SUMMARY OF POLICY AND PROHIBITIONS ON PROCUREMENT LOBBYING _____________________ 14

28. NEW YORK STATE RIGHTS _______________________________________________________________ 15

29. NEW YORK STATE STATEWIDE FINANCIAL SYSTEM _________________________________________ 15

30. ELECTRONIC PROCUREMENT SYSTEMS (EPROCUREMENT) __________________________________ 15

31. ON-LINE CONTRACTOR CATALOG _________________________________________________________ 15

33. EXTENSION OF USE _____________________________________________________________________ 16

34. PREFERRED SOURCE PRODUCTS _________________________________________________________ 16

36. PROCUREMENT INSTRUCTIONS ___________________________________________________________ 16

37. AUTHORIZED USER RESERVED RIGHTS ____________________________________________________ 17

38. POOR PERFORMANCE ___________________________________________________________________ 17

39. PARKING FEES/ALCOHOL AND DRUG USE _________________________________________________ 17

40. SPECIFICATIONS ________________________________________________________________________ 17

41. SHIPPING DATES AND DELIVERY TIME _____________________________________________________ 17

42. BULK DELIVERY AND ALTERNATE PACKAGING _____________________________________________ 18

43. CONTRACT PAYMENTS __________________________________________________________________ 18

44. RETURN OF UNUSED PRODUCT ___________________________________________________________ 18

45. DELIVERY OF SOFTWARE VIA DOWNLOAD _________________________________________________ 18

46. TIME TO RETURN PHONE CALLS OR RESPOND TO EMAILS ___________________________________ 18

47. OBTAINING QUOTES _____________________________________________________________________ 18

48. PURCHASE ORDERS AND INVOICING ______________________________________________________ 19

49. MANUFACTURER WHO HAS NO PRIOR RELATIONSHIP WITH THE CONTRACTOR ________________ 19

50. CONSISTENT QUOTE FORMAT ____________________________________________________________ 20

51. NOTIFICATION OF UPCOMING MAINTENANCE EXPIRATION ___________________________________ 20

52. CONTRACT TERMINATION AND MAINTENANCE EXPIRATION __________________________________ 20

53. MANUFACTURER UPGRADES AND/OR “PATCHES” __________________________________________ 20

54. AUTHORIZED USER SECURITY PROCEDURES _______________________________________________ 20

55. STATE SECURITY POLICIES AND PROCEDURES _____________________________________________ 20

56. MERCURY ADDED CONSUMER PRODUCTS _________________________________________________ 21

57. SURPLUS/TAKE-BACK/RECYCLING ________________________________________________________ 21

Information Technology Umbrella Contract Distributor Based (Statewide) Page 3 of 25

58. ENVIRONMENTAL ATTRIBUTES AND NYS EXECUTIVE ORDER NO. 4 ____________________________ 21

59. USE OF RECYCLED OR REMANUFACTURED PRODUCTS _____________________________________ 21

61. LIVING WAGE ___________________________________________________________________________ 22

62. PREVAILING WAGE RATES - PUBLIC WORKS AND BUILDING SERVICES CONTRACTS ____________ 22

63. NOTICES _______________________________________________________________________________ 22

64. CAPTIONS ______________________________________________________________________________ 23

65. SEVERABILITY __________________________________________________________________________ 23

66. COUNTERPARTS ________________________________________________________________________ 23

67. ENTIRE AGREEMENT ____________________________________________________________________ 23

APPENDICES

APPENDIX A – Standard Clauses for New York State Contracts (January 2014) APPENDIX B – General Specifications – Manufacturer Based APPENDIX C – Contract Modification Procedure APPENDIX D – Contractor Information

APPENDIX E – Insurance Requirements APPENDIX F – How to Use the Distributor Umbrella Contract

• Attachment 1 – Request for Quote APPENDIX G – Report of Contract Sales APPENDIX H – Contract Rates

1. SCOPE

Contractor can sell Products of a Manufacturer only if the Manufacturer itself does not have an OGS contract to sell the Manufacturer’s Products. Contractor cannot sell any Products of a Manufacturer that holds an OGS Contract for the sale of the Manufacturer’s Products, or any Products purchased from a vendor which holds a Distributor Contract. The Contractor can and will provide and make available the Products from the Manufacturers listed in Appendix H.

See Appendix D, Contractor Information, for the Lot(s) awarded under this Contract. Lots 1 and 2 are described as follows:

Lot 1 – Software

This Lot provides Authorized Users with a mechanism to purchase Software commercially available and Maintenance/Support for Manufacturer’s Proprietary product line, and Related Services listed in the Manufacturer’s commercial price list.

Lot 2 – Hardware

This Lot provides Authorized Users with a mechanism to purchase Hardware products (including new, refurbished, and remanufactured Hardware), Telecommunications Hardware, Appliances, Storage and the Hardware’s Related Ancillary Products and Related Software. This lot also provides Warranties and Maintenance/Support for Manufacturer’s Proprietary product line and Related Services listed in the Manufacturer’s commercial price list.

This Contract prohibits the sale and purchase of the following Products:

• Products of a Manufacturer that holds an OGS Contract for the sale of Software and/or Hardware (please refer to Section 2, Prohibited List)

Information Technology Umbrella Contract Distributor Based (Statewide) Page 4 of 25

• All Cloud products (see glossary definition for “Cloud”) regardless if the Manufacturer has an OGS contract.

2. PROHIBITED LIST

The Prohibited lists are lists of Manufacturers that are not available under Lot 1 – Software and/or Lot 2 – Hardware of this Contract due to the Manufacturers having other OGS contracts or circumstances that make their Products unable to be purchased through any Contract resulting from this solicitation. Contractor cannot sell any Products of a Manufacturer within a Lot included in this solicitation if the Manufacturer already holds an OGS Contract for the sale of the Manufacturer’s Products that fall within the scope of the Lot. For example, if a Manufacturer holds another OGS contract for hardware, that Manufacturer’s Products cannot be sold under Lot 2 – Hardware. The prohibited Software Manufacturer and prohibited Hardware Manufacturer lists will be updated by OGS from time to time and such updated lists will apply to this Contract.

A listing of prohibited Software Manufacturers can be found through the following link:

http://www.ogs.ny.gov/purchase/biddocument/22876Bid.asp.

A listing of prohibited Hardware Manufacturers can be found through the following link:

http://www.ogs.ny.gov/purchase/biddocument/22876Bid.asp.

If a Manufacturer included in the Contract pricelist obtains an OGS Contract for Software and/or Hardware, that Manufacturer will be added to the prohibited list for Lot 1 – Software and/or Lot 2 – Hardware and the Manufacturer’s Products will no longer be eligible to be sold under Lot1 and/or Lot2 of the this Contract.

In light of the frequent changes in the IT industry, an Authorized User is strongly encouraged to contact the NYS Office of General Services with any questions about whether a particular Product is produced by a prohibited Manufacturer.

3. CONTRACTOR QUALIFICATIONS

Contractor shall maintain a current Manufacturer Authorization for all Products sold under this Contract.

Products not supported with a Manufacturer Authorization on file with OGS may not be sold under the Contract.

4. COST-PLUS/COST-MINUS PERCENTAGES

The Cost-Plus percentages will NOT increase over the life of the Contract. The Cost-Minus percentages bid will NOT decrease over the life of the Contract. The Cost-Plus or Cost-Minus percentages for Products will also apply to maintenance provided for the Products.

The Cost-Plus or Cost-Minus percentage in Appendix H will apply to all products sold under the Contract.

More favorable pricing can be offered to Authorized Users in the Request for Quote (RFQ) process. At time of purchase, to facilitate competition, Authorized Users will be required to solicit quotes from all awardees within a lot; Contractor is encouraged to quote the best pricing possible during the RFQ process.

5. NEW YORK STATE VENDOR RESPONSIBILITY QUESTIONNAIRE FOR-PROFIT BUSINESS ENTITY

(HEREINAFTER THE “QUESTIONNAIRE”)

Contractor shall at all times during the Contract term remain responsible. The Contractor agrees, if requested by the Commissioner of OGS or her designee, to present evidence of its continuing legal authority to do business in New York State, integrity, experience, ability, prior performance, and organizational and financial capacity.

The Commissioner of OGS or her designee, in his or her sole discretion, reserves the right to suspend any or all activities under this Contract, at any time, when he or she discovers information that calls into question the responsibility of the Contractor. In the event of such suspension, the Contractor will be given written notice outlining the particulars of such suspension. Upon issuance of such notice, the Contractor must comply with the http://www.ogs.ny.gov/purchase/biddocument/22876Bid.asp http://www.ogs.ny.gov/purchase/biddocument/22876Bid.asp

Information Technology Umbrella Contract Distributor Based (Statewide) Page 5 of 25 terms of the suspension order. Contract activity may resume at such time as the Commissioner of OGS or her designee issues a written notice authorizing a resumption of performance under the Contract.

The Contractor agrees that if it is found by the State that the Contractor’s responses to the Questionnaire were intentionally false or intentionally incomplete, on such finding, the Commissioner may terminate the Contract.

Upon written notice to the Contractor, and a reasonable opportunity to be heard with appropriate OGS officials or staff, the Contract may be terminated by the Commissioner of OGS or her designee at the Contractor’s expense where the Contractor is determined by the Commissioner of OGS or her designee to be non-responsible. In such event, the Commissioner of OGS or her designee may complete the contractual requirements in any manner he or she may deem advisable and pursue available legal or equitable remedies for breach.

In no case shall such termination of the Contract by the State be deemed a breach thereof, nor shall the State be liable for any damages for lost profits or otherwise, which may be sustained by the Contractor as a result of such termination.

6. CONTRACT TERM

This Contract will be for an initial term not to exceed five years. The Contract term shall commence upon full execution by Procurement Services and the Contractor, and the initial term shall end on the day immediately preceding the fifth anniversary of the Contract commencement date. Upon mutual agreement of a Contractor and Procurement Services, a Contract resulting from this RFP may be extended for one additional five year term, for a total contract term not to exceed ten years.

7. SHORT TERM EXTENSION

This section shall apply in addition to any rights set forth in the Contract Term section above and in Appendix B, Contract Term – Renewal. In the event a replacement Contract has not been issued, this Contract may be extended unilaterally by the State for an additional period of up to 30 calendar days upon notice to the Contractor with the same terms and conditions as the original Contract and any approved modifications. With the concurrence of the Contractor, the extension may be for a period of up to 90 calendar days in lieu of 30 calendar days. However, this extension automatically terminates should a replacement Contract be issued in the interim.

8. CONTRACT MODIFICATION PROCEDURES

A. OGS, an Authorized User, or the Contractor may suggest modifications to the Centralized Contract or its Appendices. Except as specifically provided herein, modifications to the terms and conditions set forth herein may only be made with mutual written agreement of the Parties. Modifications may take the form of an update or an amendment. “Updates” are changes that do not require a change to the established Centralized Contract terms and conditions. A request to offer higher discounts or change a contractor’s address are examples of updates. “Amendments” are any changes that are not specifically covered by the terms and conditions of the Centralized Contract, but inclusion is found to be in the best interest of the State. A request to change a contractual term and condition is an example of an amendment.

B. Updates to the Centralized Contract, Attachments and the Appendices may be made in accordance with the contractual terms and conditions to make price level revisions, update the Prohibited List, or to make such other updates to the established Centralized Contract terms and conditions, not resulting in a change to such terms and conditions, which are deemed to be in the best interest of the State.

C. OGS reserves the right to consider modifications which are not specifically covered by the terms of the Centralized Contract, but are judged to be in the best interest of the State. Such modifications are deemed amendments to the Centralized Contract and may require negotiations between Contractor and OGS before execution.

D. All modifications proposed by Contractor, shall be processed in accordance with Appendix C, Contract Modification Procedure. The Contractor shall submit all requests in the form and format contained in Appendix

Information Technology Umbrella Contract Distributor Based (Statewide) Page 6 of 25

C, Contract Modification Procedure. The form contained within Appendix C is subject to change at the sole discretion of OGS.

E. Modifications proposed by OGS or an Authorized User, including updates and amendments, shall be processed in accordance with the terms of the Centralized Contract and Appendix B, §28.

9. PERIODIC RECRUITMENT

During the term of the Contract, the State reserves the right to conduct Periodic Recruitments. The purpose of Periodic Recruitments will be to receive Proposals to:

• Add new Lots for additional and/or emerging technologies

• Add new Contractors to existing and new Lots

• Add additional Lots to existing Contracts

OGS will formally announce when a Periodic Recruitment Solicitation is issued. Periodic Recruitments will be issued at the discretion of the OGS. A Contractor shall be required to submit such Submission documentation as required by OGS, which may include additional applicable statutory requirements in effect at the time of the Periodic Recruitment. Should a Contractor Submission for a Lot be deemed non-responsive under any Periodic Recruitment, a Contractor cannot reapply for that Contract Lot until the next Periodic Recruitment is opened.

10. ESTIMATED QUANTITIES

This Contract is an Indefinite Delivery, Indefinite Quantity (IDIQ) Contract. Numerous factors could cause the actual volume of Product purchased under the Contract to vary substantially from any estimates in Solicitation 22876 or any subsequent Periodic Recruitment. Such factors include, but are not limited to, the following:

• All Contracts will be nonexclusive Contracts;

• There is no guarantee of volume to be purchased; and

• There is no guarantee that demand will continue in any manner consistent with previous purchases.

11. DEFINITIONS

In addition to the terms defined in Appendix B, Section 2, Definitions, the following definitions shall apply in this Solicitation.

Term Definition Appliance

An Appliance is a device with integrated Software (firmware), designed to provide a specific computing resource. The Hardware and Software are pre-integrated and pre-configured before delivery to customer, to provide a "turn-key" solution to a particular problem. Unlike general purpose computers, Appliances are generally not designed to allow the customers to change the Software (including the underlying operating system), or to flexibly reconfigure the Hardware. To be considered an Appliance, the (Hardware) device needs to be integrated with Software, and both are supplied as a package.

Authorized User Agreement

Authorized User Agreement shall mean the Purchase Order and/or such other documents memorializing the Contractor’s obligations with respect to a given transaction resulting from an RFQ issued by an Authorized User.

Best Value The basis for awarding all service and technology Contracts to the Bidder that optimizes quality, cost and efficiency, among responsive and responsible Bidders. (State Finance Law §163 (1) (j)).

Business Day Monday through Friday from 8:00 AM – 5:00 PM ET, excluding New York State or Federal holidays.

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Business Entity Any individual, business, partnership, joint venture, corporation, S-corporation, limited liability company, sole proprietorship, joint stock company, consortium, or other private legal entity recognized by statute.

Cloud Cloud shall mean any Product, Bundles or Service sold as an “as a service” offering or in which Authorized User Data is transmitted, acted upon, or stored on non-Authorized User equipment. This may include, but is not limited to, hosted applications, managed services, and off-site Data storage.

Cloud includes IaaS, PaaS, SaaS, and XaaS.

Compliance Conformity in fulfilling requirements.

Configuration An arrangement of elements in a particular form, figure, or combination which includes minor physical or Software setting changes that can be implemented without custom physical modifications or changes to the base code.

Contract Term The initial term of the Contract and any renewals and/or extensions.

Cost-Minus Percentage Percentage subtracted from cost Contractor pays a Manufacturer for

Products, Maintenance, and Related Services. Percentages bid become Contract pricing and will not decrease over the life of the Contract.

Cost-Plus Percentage Percentage added to cost Contractor pays a Manufacturer for Products, Maintenance, and Related Services. Percentages bid become Contract pricing and will not increase over the life of the Contract.

Deliverable Products, Software, Information Technology, telecommunications technology, Hardware, and other items (e.g. reports) to be delivered pursuant to this Contract, including any such items furnished within the provision of services.

Discount An allowance, reduction or deduction from a selling price or list price extended by a seller to a buyer in order for the net price to become more competitive. More common forms of discounts include trade discounts, quantity discounts, seasonal discounts and cash discounts.

Distributor A company or individual (merchant) that purchases a large volume of IT Hardware and Software Products from multiple manufacturers or other Distributors/resellers with the intention of selling them rather than consuming or using them. Also known as large account value added reseller (VAR), channel partner or dealer.

Distributor Published Price List

A price list published in some form by the Distributor and available to and recognized by the trade.

Equipment An all-inclusive term which refers either to individual Machines or to a complete Data Processing System or Subsystem, including its Hardware and Operating Software (if any). See also “device, “appliance,” “equipment” and “Hardware,” “machine.”

General Services Administration (GSA)

The department within the U.S. government that is responsible for procurement of goods and services.

Hardware Refers to IT Equipment and is contrasted with Software. See also Equipment.

Hosted Catalog A catalog hosted by the State on a website.

Information Technology Services (ITS)

New York State Office of Information Technology Services (http://www.its.ny.gov/). It is the responsibility of ITS to provide centralized IT services to the State and its governmental entities with the awareness that our citizens are reliant on those services.

http://www.its.ny.gov/

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Implementation Refers to post sales process of guiding a client from purchase to use of the Product that was purchased. This may include but is not limited to post sales requirements analysis, scope analysis, limited customizations, systems integrations, data conversion/migration, business process analysis/improvement, user policy, customized user training, knowledge transfer, project management and system documentation.

Installation The act or process of making Products ready to be used.

Maintenance The upkeep of Product that neither adds to its permanent value nor prolongs its intended life appreciably, but instead keeps it in an efficient operating condition. Maintenance shall not include Cloud offerings or remote monitoring of any type.

Mandatory Refers to items or information that the State has deemed that a Bidder must submit as compulsory, required and obligatory. These items or information are noted as such, or the requirements may be phrased in terms of “must” or “shall”. Mandatory requirements must be met by the Bidder for Bidder’s Submission to be considered responsive.

Manufacturer A person or business entity that creates, makes, processes, or fabricates a Product or something of value, which changes a raw material or commodity from one form to another or creates a new Product or commodity.

Manufacturer Authorization Letter

A document signed by an officer of a Manufacturer company who is authorized to sign on behalf of the company. The Manufacturer Authorization Letter provides proof that the Contractor has a relationship with the Manufacturer and is authorized to sell the Manufacturer’s products.

Manufacturer List Price The price for a Product contained in the Manufacturer Price List Manufacturer Price List A price list published in some form by the Manufacturer and available to and recognized by the trade.

May Denotes the permissive in a contract clause or specification. Refers to items or information that the State has deemed are worthy of obtaining, but not required or obligatory. Also see “Should.” “Will.”

Minority and/or Woman- Owned Business (MWBE)

A business certified with Empire State Development (ESD) as a Minority and/or Woman-Owned Business.

Model Number An identification number assigned to describe a style or class of item, such as a particular design, composition or function, by the Manufacturer or Contractor of that item.

Must Denotes the imperative in a Contract clause or specification. Means required - being determinative/mandatory, as well as imperative. Also see “Shall” and “Will.”

New York State Small Business Enterprise (NYS

SBE)

A “New York State Small Business” is defined as a company that is a resident to New York State, independently owned and operated, with 100 or fewer employees, and not dominant in its field. See State Finance Law §160(8).

Non-State Agencies Political subdivisions and other entities authorized by law to make purchases from OGS Centralized Contracts other than those entities that qualify as State Agencies. This includes all entities permitted to participate in centralized contracts per Appendix B, §27(b), Non-State Agency Authorized Users and §27(c), Voluntary Extension and State Finance Law Section 163(1)(k).

Office of the State Comptroller (OSC)

The New York State Office of the State Comptroller.

http://www.osc.state.ny.us/ http://www.osc.state.ny.us/

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Product Shall mean Hardware, Software, Maintenance, and Related Services.

Product does not include Cloud.

Punch-out Catalog A catalog that allows an Authorized User to buy from a Contractor's website from within the Authorized User's own procurement application. The Authorized User leaves ("punches out") the procurement application and enters the Contractor's Web-based catalog which launches the Contractor's website within the Authorized User's browser frame.

Related Services Related services are limited to the following items if listed in the Manufacturer’s pricelist: Installation; Implementation; Configuration; Pre-packaged Training; and Volume License Agreement management. Related Services cannot exceed 20% of total purchase of Product and Maintenance.

Related Software Software which is bundled with Hardware and is required for installation, configuration and is integral to the operation of the Hardware.

Service The performance of a task or tasks and may include a material good or a quantity of material goods, and which is the subject of any purchase or other exchange. For the purposes of this Contract, technology shall be deemed a service.

Shall Denotes the imperative in a Contract clause or specification. Means required - being determinative/mandatory, as well as imperative. Also see “Must” and “Will”.

Should Denotes the permissive in a Contract clause or specification. Refers to items or information that the State has deemed are worthy of obtaining, but not required or obligatory. Also see “May.”

Software 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 program Products.

Storage Specific to technology, a computer memory that retains data for some period of time. Storage can be categorized in many ways such as: primary or secondary; read-only, random access and magnetic storage.

System The complete collection of Hardware, Software and services as described in the resulting Authorized User Agreements, integrated and functioning together, and performing in accordance with this Contract.

Training Training that is designed to meet the special requirements of an Authorized User.

Vendor An enterprise that sells goods or services.

Volume Software License Agreement

A Volume Software License Agreement can occur when there is a large quantity of Software purchased from a particular Software Manufacturer, for a specified time period, which results in additional discounting beyond the Contract discounts.

Will Denotes the permissive in a contract clause or specification. Also see “May,” “Shall.”

Written / Written Communication

Written Communication makes use of the written word. Examples of written communications include e-mail, Internet websites, letters, proposals, and contracts.

12. APPENDIX A

Appendix A, Standard Clauses For New York State Contracts, dated January 2014, attached hereto, is here by incorporated in, and expressly made a part of this Contract.

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13. APPENDIX B

Appendix B, Office of General Services General Specifications – Manufacturer Based, attached hereto, is hereby incorporated in, and expressly made a part of this Contract.

a) Appendix B Amendments. Appendix B Sections 63A and 63B shall not apply to this Contract.

14. APPENDIX C

Appendix C, Contract Modification Procedures, attached hereto, is hereby incorporated in, and expressly made a part of this Contract.

15. APPENDIX D

Appendix D, Contractor Information, attached hereto, is hereby incorporated in, and expressly made a part of this Contract.

16. APPENDIX E

Appendix E, Insurance Requirements, attached hereto, is hereby incorporated in, and expressly made a part of this Contract.

17. APPENDIX F

Appendix F, How to Use the Distributor Umbrella Contract, attached hereto, is hereby incorporated in, and expressly made a part of this Contract.

• Attachment 1 – Request for Quote

18. APPENDIX G

Appendix G, Report of Contract Sales, attached hereto, is hereby incorporated in, and expressly made a part of this Contract.

19. APPENDIX H

Appendix H, Contract Rates, attached hereto, is hereby incorporated in, and expressly made a part of this Contract.

20. CONTRACT INTEGRATION, MERGER AND ORDER OF PRECEDENCE

This Centralized Contract is composed of the documents set forth below. In the case of any conflict among these documents, conflicts shall be resolved in the order of precedence indicated below.

1. Appendix A – Standard Clauses for New York State Contracts;

2. This Document

3. Appendix B – General…