1639511399_92087063_7-21-99-41-01_FMP+Executed.pdf

2. The term of this Agreement is:

State of California Department of General Services Cooperative Agreement 7-21-99-41-01

EXHIBIT A: SCOPE OF WORK

1. AGREEMENT OVERVIEW

This Scope of Work reflects the products and supplies to be provided by Elliott Auto Supply Co., Inc. dba Factory Motor Parts hereinafter referred to as the “Contractor,” for the State of California hereinafter referred to as the “Lead State” and all other Participating States and Entities, for the Automotive Parts Master Agreement (“Agreement” or “Master Agreement”).

Contractor shall permit State of California agencies, California local governmental agencies and NASPO ValuePoint Participating States and Entities to participate under this Master Agreement. Subject to the approval of the Contractor, any Canadian provincial government or provincially funded entity in Ontario, Quebec, Nova Scotia, New Brunswick, Manitoba, British Columbia, Prince Edward Island, Saskatchewan, Alberta, Northwest Territories, Nunavut, Yukon, and Newfoundland and Labrador, including municipalities, universities, community colleges, school boards, health authorities, housing authorities, agencies, boards, commissions, and crown corporations, may be eligible to use Contractor's Master Agreement.

Contractor will provide the entire portfolio of quality Automotive Parts to the Lead State, Participating States and Entities and local governmental agencies in a timely and efficient manner. Contractor will be the primary point of contact for data collection, reporting, and distribution of Automotive Parts to the Lead State and all other Participating States and Entities.

2. AGREEMENT TERM

The term of this Agreement is for a three (3) year period from the date of Master Agreement execution with the option to extend one (1) additional two (2) year period at the discretion of the Lead State. Extensions will be made by amendment to the Agreement at the same contracted discounts, terms and conditions.

3. RESPONSIBILITIES

A. Contractor shall meet all requirements identified in this Agreement.

B. Contractor will provide a Contract Manager in accordance with Exhibit A, Section

6.I.3 that will work with the Lead State Contract Administrator to fully implement and manage the Agreement.

C. Contractor will work closely with subcontractors (if applicable) to fully implement and manage this Agreement in accordance with Exhibit A, Section 6.I.1.

D. Contractor shall make available to the Lead State, technically competent personnel to accomplish the tasks and deliverables for the implementation and management of the Agreement.

E. Contractor shall promptly notify the Lead State Contract Administrator in writing of any unresolved issues or problems related to the Agreement that have been outstanding for more than five (5) business days.

4. REQUIREMENTS

A. Available Product Categories

Contractor shall provide products for Automotive Parts categories at the discount provided in Exhibit B, Category Discounts. Products outside the scope of categories listed in Exhibit B may not be purchased from the Master Agreement.

B. Electronic Catalog

Item Description

1. Automotive Parts Electronic Catalog

Contractor shall develop and maintain an electronic catalog for use by Purchasing Entities. Contractor’s electronic catalog must be separate from the Contractor’s commercially available (i.e., public) online catalog and shall contain only category items and pricing as specified in the awarded Master Agreement. No other items or pricing may be shown in the electronic catalog without written approval from the Lead State Contract Administrator.

2. Electronic Catalog/Contract Website Contents The Lead State Contract Administrator will review and determine acceptability of the electronic catalog format and data. The Electronic Catalog shall contain the following data elements at minimum:

• Item descriptions

• Contractor’s stock keeping number (SKU)

• Unit of measure (UOM)

• Quantity in the UOM

• List Price/MSRP

• Master Agreement price

• Quote generation (if applicable)

• Publicly available OEM price lists (current and archives)

Within 30 calendar days of notice of award, Contractor will be required to provide the Electronic Catalog for Lead State Contract Administrator approval.

3. Availability The Electronic Catalog shall be available twenty-four (24) hours per day, seven (7) days per week, except for regularly scheduled maintenance

Item Description times. Contractor shall not have any catalog viewing access restrictions for Participating States or Entities.

C. Pricing

Item Description

1. Category Discounts

Master Agreement employs a discount-off Manufacturer Suggested Retail Price (MSRP) structure. Category discounts outlined in Exhibit B, Category Discounts, will remain firm for the entire term of the agreement, including extension periods. However, Contractors may offer lower pricing on a per order basis to Purchasing Entities.

In the event a product falls into two or more categories the highest category discount will be applied.

2. Promotions Contractor may offer promotional discounts, including but not limited to statewide promotional discounts, customer location specific discounts, bulk discounts, or spot discounts.

During special pricing promotions, the Contractor shall offer Participating Entities the promotional pricing or the category discount percentage off MSRP, whichever is lower.

Promotional pricing shall not be cause for a permanent change in pricing.

Promotional items shall come with all benefits of the Master Agreement terms and conditions and shall include all provisions such as warranty and delivery.

D. Retail Sales Establishments

Item Description

1. Retail Sales Establishments

Retail Sales Establishments are defined as any facilities that the Contractor uses on a regular basis to warehouse and/or sell merchandise, and at which the Contractor conducts regular business transactions at either the retail or wholesale level. Contractor facility should provide:

• Walk-in and will-call order system during regular work hours.

• Customer service associate to support walk-in and will-call order system.

• Itemized sales receipts for all walk-in and will-call transactions.

• Availability of delivery.

• Acceptance of Purchasing Card.

These facilities shall be operated in accordance with state law and comply with all zoning requirements as implemented by local, county or state governments. Examples of unacceptable retail sales establishments include houses, garages, or storage rental facilities.

Contractor shall provide a list of authorized retail sales establishment locations to be used on this Master Agreement to the Lead State within 15 calendar days of notice of award.

If Contractor is offering Retail Sales Establishments, Contractor shall ensure state agencies, local government agencies and other Participating Entities will receive Master Agreement pricing when purchasing items through Retail Sales Establishments.

E. Ordering

Item Description

1. Ordering Methods

Contractor shall accept orders through the following methods:

• Electronic (email) – An email address to be used by Purchasing Entities for placing orders must be in place before the commencement of this Master Agreement.

• Facsimile – A toll-free facsimile number to be used by Purchasing Entities for placing orders must be in place before the commencement of this Master Agreement. Facsimile orders must be accepted between the hours of 8:00 AM and 5:00 PM, Monday through Friday in the time zone the order is placed.

• U.S. Mail – Contractor must have the capability to receive orders by mail in place before the commencement of this Master Agreement.

• Over-the-counter/Walk-In – Contractor shall provide over-the-counter order and delivery at all commercial locations. See Exhibit A, Section 6.D (Retail Sales Establishments).

• Online (internet) – Contractor’s Electronic Catalog website to be used by Purchasing Entities for placing orders must be in place before the commencement of this Master Agreement. See Exhibit A, Section 6.B (Electronic Catalog).

Prior to contract award, Contractor shall provide the ordering information within five (5) business days of the Lead State’s request.

2. Purchase Execution

California state agencies must submit orders on a Purchasing Authority Purchase Order (Std. 65) or using the FI$Cal Purchase Order process in accordance with posted User Instructions.

Local government agencies and other Purchasing Entities may use their own approved Purchase Order document process as addressed in their Participating Addendum.

Contractor shall not accept purchase documents from Purchasing Entities that are incomplete or contain items outside the scope of the Master Agreement.

3. Minimum Order (M) There is no minimum order.

4. Order Acknowledgement The Contractor must provide Purchasing Entities with an order receipt acknowledgment via e-mail/facsimile within one (1) business day after receipt of an order. The acknowledgement will include:

• Purchasing Entity Name

• Purchase Order Number

• Description of Goods / SKUs

• Total Cost

• Anticipated Delivery Date

• Identification of any Out of Stock/Discontinued Items

5. Out-of-Stock Remedy Upon receipt of order acknowledgment identifying out of stock items, the Purchasing Entity shall have the following options:

• Request back order

• Cancel the item from the order

Upon request, Contractor shall provide updates on back ordered items to the Purchasing Entity. Contractor is not permitted to make substitutions or cancellations without authorization from the Purchasing Entity.

6. Core Exchange/Charges All parts supplied which require core exchange shall be monitored by the Contractor to ensure proper cores are returned. Core credit is to be issued the same day as received. Any core that is not usable or not returned shall be billed at the core price listed in the manufacturer’s price sheet for that particular part.

7. Remanufactured Parts Contractor may provide remanufactured parts when new parts are not available with authorization from the Purchasing Entity. Used, previously installed or shop-worn parts shall not be accepted.

F. Delivery

Item Description

1. Delivery Locations

Deliveries are to be made to the Purchasing Entities’ location specified on the individual order, which may include, but not be limited to inside buildings, high-rise office buildings, and receiving docks.

2. Delivery Schedule

Delivery of ordered product shall be completed within two (2) business days after receipt of an order, unless otherwise agreed to by the Purchasing Entity.

Since receiving hours for each Purchasing Entity will vary by facility, it will be the Contractor’s responsibility to check with each facility for their specific receiving hours before delivery occurs.

Contractor must notify the Purchasing Entity within 12 hours of scheduled delivery time, if delivery cannot be made within the time frame specified on the order.

3. Delivery from Retail Sales Establishments

Delivery of standard in-stock items to locations within five (5) miles from company’s retail business establishment shall be accomplished within 45 minutes. Delivery outside the five (5) mile range will be accomplished by a scheduled delivery.

4. Security Requirements for Institutions

Deliveries may be made to locations inside secure institutional grounds (such as state prisons) that require prior clearances to be made for delivery drivers.

Contractor will be responsible for contacting the secure location for security clearance procedures, hours of operation for deliveries and service, dress code, and other rules of delivery. These security clearance procedures may vary from facility to facility.

Deliveries that are delayed due to drivers not being cleared to enter institutional grounds may cause the contractor to be declared in default of contract requirements.

5. Free on Board (F.O.B.) Destination (Shipping Terms)

All prices offered shall be F.O.B. destination, freight prepaid by the Contractor, to the Purchasing Entity’s final receiving point. Responsibility and liability for loss or damage for all orders shall remain with the Contractor until final inspection and acceptance, when all responsibility shall pass to the ordering organization, except the responsibility for latent defects, fraud, and the warranty obligations.

All emergency or rush deliveries that require special shipping and handling should be at the ordering entities expense, with prior approval from the Purchasing Entity. Emergency or rush shipping charges shall be added to an invoice as a separate line item. In the event an emergency or rush delivery is required as the result of a Contractor’s error; all shipping cost shall be paid by the Contractor.

6. Manufacturer Warranty

Contractor must honor all manufacturers’ warranties and guarantees on all products offered as part of the Master Agreement. If a product warranty extends beyond the term of the Master Agreement, the Contractor must agree to provide warranty services throughout the life of the warranty.

These parts must be warranted to be free of defective parts and workmanship, provided they are properly installed on the vehicle for which they were intended, for the time and mileage shown in the product literature or catalog.

Statement of warranty is to be provided by Contractor with items delivered under this Master Agreement.

For all items ordered, warranty begins on the date of delivery.

7. Return Policy

Items purchased under this Master Agreement may be returned at no cost for a full refund if item is unused, in its original packaging and within thirty (30) calendar days of delivery.

All returns shall be picked up within seven (7) business days of notification. Notification is defined as notice in writing, by facsimile or e-mail.

8. Credit Policy The Contractor shall offer a full credit/refund for the following items:

• Items shipped in error

• Defective or freight-damaged items

• Items returned within 30 calendar days of delivery

In all cases, the Purchasing Entity shall have the option of taking an exchange, receiving a credit, or receiving a refund.

The Contractor will be responsible for the credit/refund or replacement of all products, including those covered by manufacturer warranties as stated in Exhibit A, Section 6.F.6, Warranty. Contractor cannot require the Purchasing Entity to deal directly with the manufacturer.

9. Product Recall Procedures Contractor shall provide recall notification, regardless of level, in writing to the Lead State Contract Administrator and each applicable Purchasing Entity through the most expedient method possible. The notices, at a minimum, shall include a complete product description and/or identification, contract number, delivery order number and disposition instructions.

Contractor agrees to use commercially reasonable efforts in identifying the applicable manufacturer in order that the Lead State and any Participating Entities or Purchasing Entities may work with such manufacturer to handle any applicable recall issues.

G. Invoicing and Payment

Item Description

1. Invoices

Invoices shall be submitted to the Purchasing Entity within seven (7) calendar days from date of delivery. Invoices should include the following at a minimum:

• Agency Order Number (Purchase Order Number)

• Purchasing Entity Name

• Delivery address of the order

• Product(s) description

• Manufacturer’s product(s) number(s)

• Quantities of merchandise issued

• Price(s) per unit(s) and extended price

• Date ordered

• Date delivered

• Listing of returns or back ordered items

• Discounts (i.e. Cash Discounts, Prompt Payment

• Totals for each order. Each invoice shall have a total for all orders, a total for all credits, and amount due from each agency

• Any other mutually agreed upon requirements

2. Payment

California state agencies and local government agencies may pay by check, electronic funds transfer, or with the State of California purchase card (CAL-Card). Payments are to be made in accordance with paragraph 30 of the Lead State’s General Provisions (Exhibit C).

Purchasing Entities may pay by check, electronic funds transfer, or by a State Purchasing card (P-card). The Contractor will be solely responsible for the credit card user-handling fee associated with credit card purchases.

Participating States and Entities may have their own payment terms which will be identified within individual Participating Addendums.

3. State of California CAL-Card Invoicing

For orders paid through CAL-Card, invoices are to be processed separately from other payment methods and submitted to the CAL-Card account holder. For additional information, visit the CAL-Card Program website (https://www.dgs.ca.gov/cal-card).

The total invoice amount for each order paid by CAL-Card must reflect a zero balance due or credit, if applicable, and identified as “paid by CAL- Card”.

H. Reporting

Item Description

1. Usage Report (Lead State)

During the term of the Master Agreement, Contractor shall submit usage reports on a quarterly basis to the Lead State Contract Administrator for all California Purchasing Entity sales using the report template provided by the Lead State Contract Administrator.

Usage Report will contain the following data elements at a minimum:

• Ordering Agency Name

• Agency Type (State/Local)

• Purchase Order Number

• Order Date

• Category

• Manufacturer Part Number (OEM #)

• Item Description

• Unit of Measure

• Quantity

• List Price/MSRP

• Unit Price

• Extended Price Paid

• Catalog Version Date

The Lead State Contract Administrator reserves the right to modify the reporting template and require Contractor to provide additional order information during the course of this Agreement.

The report shall be an Excel spreadsheet transmitted electronically to PDCooperatives@dgs.ca.gov.

The report is due even when there is no activity. Any report that does not follow the required format or that excludes information will be deemed incomplete. Contractor will be responsible for submitting corrected https://www.dgs.ca.gov/cal-card https://www.dgs.ca.gov/cal-card mailto:PDCooperatives@dgs.ca.gov reports within five (5) business days of the date of written notification from the State.

Tax must not be included in the report, even if it is on the purchase order.

Reports are due by the 30th day following a calendar quarter. Failure to meet reporting requirements and submit the reports on a timely basis shall constitute grounds for suspension of the Master Agreement.

Amendment for term extensions may be approved only if all quarterly reports due have been submitted to the Lead State.

The Lead State Contract Administrator will provide the reporting template upon award.

2. Participating State/Entity Reporting

Contractor must provide usage reporting to Participating States and Entities as defined in the individual Participating Addendum.

3. NASPO ValuePoint Summary and Detail Usage Reports

Contractor shall submit specific summary and detailed usage reports directly to NASPO ValuePoint as set forth in Section V of the NASPO ValuePoint Master Agreement Terms (Exhibit D).

The Lead State Contract Administrator will provide the Detail Usage Report template upon award.

4. Ad Hoc Reporting

Contractor shall have the ability to provide ad hoc reports at no cost to the Lead State. Upon written request, Contractor shall permit and provide access to all data that pertains to any procurement action taken by a Purchasing Entity or Participating Entity as a whole. The Lead State or Purchasing Entity may make copies of procurement data in any form and the use of such data shall not be restricted.

Dependent on future reporting requirements, the Lead State may ask that certain reports become standard and delivered to the Lead State on a monthly or quarterly basis.

5. Lead State Administrative Fee

Contractor shall remit a quarterly Lead State administrative fee of 1.25 percent of all goods purchased by California Purchasing Entities for each reporting quarter. Prices submitted shall not reflect the California administrative fee. The Lead State administrative fee shall not be invoiced or charged to the ordering agency and is specific to California only.

This fee will be due to the Lead State on the 30th day following the ending of the quarterly reporting period. Payment of the Lead State administrative fee is due irrespective of payment status on orders or service contracts from a Purchasing Entity.

6. NASPO ValuePoint Administrative Fee

Contractor shall remit a NASPO ValuePoint administrative fee as specified in Section V of the NASPO ValuePoint Master Agreement Terms (Exhibit D).

7. Participating Entity Administrative Fee

If a Participating Entity requires an administrative fee, each fee will be negotiated and articulated in the individual state’s Participating Addendum.

I. Management and Customer Service

Item Description

1. Contractor Responsibility

Contractor shall be responsible for successful contract performance of the Master Agreement and successful performance of any and all of their subcontractors.

Contractor agrees to comply with requirements under the Master Agreement, even if requirements are delegated to subcontractors. All Lead State policies, guidelines, and requirements apply to subcontractors. The prime Contractor and subcontractor(s) shall not in any way represent themselves in the name of the Lead State without prior written approval.

Furthermore, the Lead State will consider the prime Contractor to be the sole point of contact with regard to contractual matters, payments, warranty issues, for the term of the Master Agreement and any extensions.

Use of subcontractors will be addressed within each state’s Participating Addendum.

2. Lead State Contract Administrator

The Lead State Contract Administrator will be the contact person for issues relating to the Master Agreement. Any modifications to the requirements contained in the Master Agreement may only be authorized by the State Contract Administrator or his/her designee through Master Agreement Amendment.

3. Contractor Contract Manager Contractor will assign a contact person for contract management purposes. The Contractor Contract Manager must be authorized to make decisions on behalf of the Contractor.

4. Changes in Contract Manager Contractor must notify the Lead State Contract Administrator of Contractor Contract Manager changes in writing within 10 calendar days of the change.

5. Contractor Name Change An amendment is required to change the Contractor’s name as listed on this agreement.

Contractor shall notify the Lead State of any name change. Upon receipt of legal documentation of the name change the Lead State will process the amendment. Payment of invoices presented with a new name cannot be paid prior to approval of said amendment.

6. Customer Service Unit Contractor will have a customer service unit that supports this Master Agreement. The customer service unit shall provide office and personnel resources for responding to inquiries, including telephone and email coverage weekdays during business hours.

The customer service unit shall be staffed with individuals that:

• Are trained in the requirements of this contract

• Have the authority to take administrative action to correct problems that may occur

• Are designated for training and general customer service follow-up

Contractor shall respond to customer inquiries within one (1) business day of initial contact.

Prior to Master Agreement award, Contractor shall provide customer service information to the Lead State within five (5) business days of written request.

J. Transition / End of Agreement

Item Description

1. Transition Plan at End of Contract

Contractor agrees that at the end of this Master Agreement, should the Lead State conduct another procurement and award a new Master Agreement, the Contractor will work with the Lead State Contract Administrator, if requested to ensure that an efficient and effective transition takes place.

Upon termination or expiration of the Master Agreement the following will occur:

• All on-line offering systems and Electronic Catalog functions supported and/or available as part of the Master Agreement will cease and be removed from public viewing access without redirecting to another website.

• Customer data/user accounts acquired during the term of the contract shall be destroyed or returned to the Lead State at the request of the Lead State Contract Administrator.

• No references to the Master Agreement shall be made after contract end on the Contractor’s commercial website without permission by the State Contract Administrator.

• All invoicing disputes and/or order tracking will be conducted through the Contractor’s Customer Service Unit via telephone or email.

K. Environmentally Preferable Purchasing

The following requirements are specific to the State of California and may be incorporated within Participating Addenda at the Participating Entity’s discretion.

Item Description

1. Environmentally Preferable Purchasing (EPP)

California Department of General Services is responsible for the implementation of EPP as mandated by the California Public Contract Code (PCC), Chapter 6, sections 12400-12404. Contractor certifies the products or services offered comply with the Federal Trade Commission’s Guidelines for the Use of Environmental Marketing Terms (PCC Section 12404).

2. Post-Consumer Recycled Content (PCRC) Certification California state agencies are required to report purchases made within eleven (11) product categories in the California Department of Resources Recycling and Recovery’s (CalRecycle), State Agency Buy Recycled

Campaign (SABRC) in accordance with Public Contract Code sections 12200-12217.In order to comply with those requirements, Contractor will be required to certify in writing the minimum percentage, if not the exact percentage, of post-consumer recycled content (PCRC) material in each of the products ordered, upon request.

3. Green Product Marking and Labeling Contractor shall identify products that possess third party environmental certifications on the Electronic Catalog.

4. Wheel Weights California law prohibits the manufacture, sale, or installation of wheel weights containing more than 0.1% lead. California Health and Safety Code Section 25215.6-25215.7 (https://codes.findlaw.com/ca/health-and-safety-code/hsc-sect-25215-6.html).

5. Mercury Containing Products A person cannot sell or distribute for promotional purposes, in California, certain types of new or refurbished products and devices that contain mercury. This law can be found in Health and Safety Code, Division 20, Chapter 6.5; Mercury-Added Thermostats, Relays, Switches, and Measuring Devices (Sections 25214.8.1-25214.8.6).

(https://codes.findlaw.com/ca/health-and-safety-code/hsc-sect-25214-8- 4.html).

6. Consumer Products Contractor may not sell, supply, offer for sale, or manufacture for sale in California consumer products that do not comply with the Consumer Products Regulatory Program, whose aim is to reduce the amount of volatile organic compounds (VOCs), toxic air contaminants (TACs), and greenhouse gases (GHGs) that are emitted from using chemically formulated consumer products. Background information including enforcement of the program can be found at: https://ww2.arb.ca.gov/our-work/programs/consumer-products-program/about.

Regulations for the program can be found in Article 2: Regulation for Reducing Emissions from Consumer Products, commonly referred to as the General Consumer Products Regulation.

7. Brake Friction Material All motor vehicle brake friction materials sold in California must meet the requirements as identified in California Health and Safety Code Section

25250.51 (Source: https://dtsc.ca.gov/wp-content/uploads/sites/31/2018/07/Final_regulation_language_10032016.p df).

https://codes.findlaw.com/ca/health-and-safety-code/hsc-sect-25215-6.html https://codes.findlaw.com/ca/health-and-safety-code/hsc-sect-25215-6.html https://codes.findlaw.com/ca/health-and-safety-code/hsc-sect-25214-8-4.html https://codes.findlaw.com/ca/health-and-safety-code/hsc-sect-25214-8-4.html https://ww2.arb.ca.gov/our-work/programs/consumer-products-program/about https://ww2.arb.ca.gov/our-work/programs/consumer-products-program/about https://dtsc.ca.gov/wp-content/uploads/sites/31/2018/07/Final_regulation_language_10032016.pdf https://dtsc.ca.gov/wp-content/uploads/sites/31/2018/07/Final_regulation_language_10032016.pdf https://dtsc.ca.gov/wp-content/uploads/sites/31/2018/07/Final_regulation_language_10032016.pdf

EXHIBIT B: CATEGORY DISCOUNTS

Category Description Percent

Discount Off

MSRP

1 Air Conditioning 62% 2 Alternators and Starters 64% 3 Batteries 64% 4 Bearings, Ball and Roller 67% 5 Belts and Hoses 60% 6 Brakes 68% 7 Electrical and Ignition 62% 8 Emission, Sensors and Exhaust 62% 9 Engine and Drive Train 62% 10 Filters, Oil, Gas, Air and Transmission 71% 11 Gaskets and Seals 65% 12 Heating and Cooling (Engine) 62% 13 Lamps, Lighting and Mirrors 62% 14 Oils, Chemicals, Fluids and Lubricants 62% 15 Pumps, Fuel and Water 65% 16 Suspension, Shocks, Struts and Steering 65% 17 Wipers/Washers 77% 18 Winter Accessories 60% 19 General Automotive Parts (Aftermarket Automotive

Parts not included in Categories 1-18.)

62%

20 Automotive Repair Shop Supplies and Equipment/Tools (e.g., cleaning supplies, wrenches, etc.)

30%

EXHIBIT C: LEAD STATE GENERAL PROVISIONS

Non-IT General Provisions (6/8/2010) is hereby incorporated by reference and made part of this agreement as if attached hereto. This document can be viewed at:

https://www.dgs.ca.gov/PD/Resources/Page-Content/Procurement-Division-Resources- List-Folder/Model-Contract-Language

These terms are applicable for State of California purchases only.

https://www.dgs.ca.gov/-/media/Divisions/PD/PTCS/OPPL/Model-Language/Non-IT/NonITGeneralProvisions060810.pdf?la=en&hash=CF696601E851E0DC0CFCB1FEA2BBDA0A9DCBD794 https://www.dgs.ca.gov/PD/Resources/Page-Content/Procurement-Division-Resources-List-Folder/Model-Contract-Language https://www.dgs.ca.gov/PD/Resources/Page-Content/Procurement-Division-Resources-List-Folder/Model-Contract-Language

EXHIBIT D: NASPO VALUEPOINT MASTER AGREEMENT TERMS

I. Definitions

1.1 Acceptance means acceptance of goods and services as set forth in

Section IX of this Master Agreement.

1.2 Contractor means a party to this Master Agreement, whether a person or entity, that delivers goods or performs services under the terms set forth in this Master Agreement.

1.3 Embedded Software means one or more software applications which permanently reside on a computing device.

1.4 Intellectual Property means any and all patents, copyrights, service marks, trademarks, trade secrets, trade names, patentable inventions, or other similar proprietary rights, in tangible or intangible form, and all rights, title, and interest therein.

1.5 Lead State means the State centrally administering any resulting Master Agreement(s) who is a party to this Master Agreement.

1.6 Master Agreement means the underlying agreement executed by and between the Lead State, acting in cooperation with NASPO ValuePoint, and the Contractor, as now or hereafter amended.

1.7 NASPO ValuePoint is a division of the National Association of State Procurement Officials (“NASPO”), a 501(c)(3) limited liability company.

NASPO ValuePoint facilitates administration of the NASPO cooperative group contracting consortium of state chief procurement officials for the benefit of state departments, institutions, agencies, and political subdivisions and other eligible entities (i.e., colleges, school districts, counties, cities, some nonprofit organizations, etc.) for all states, the District of Columbia, and territories of the United States. NASPO ValuePoint is identified in the Master Agreement as the recipient of reports and may perform contract administration functions relating to collecting and receiving reports, as well as other contract administration functions as assigned by the Lead State.

1.8 Order or Purchase Order means any purchase order, sales order, contract or other document used by a Purchasing Entity to order the Products.

1.9 Participating Addendum means a bilateral agreement executed by a Contractor and a Participating Entity incorporating this Master Agreement and any additional Participating Entity-specific language or other requirements (e.g., ordering procedures specific to the Participating Entity, entity-specific terms and conditions, etc.).

1.10 Participating Entity means a state (as well as the District of Columbia and US territories), city, county, district, other political subdivision of a State, or a nonprofit organization under the laws of some states properly authorized to enter into a Participating Addendum, that has executed a Participating Addendum.

1.11 Participating State means a state that has executed a Participating Addendum or has indicated an intent to execute a Participating Addendum.

1.12 Product or Products and Services means any equipment, software (including embedded software), documentation, service, or other deliverable supplied or created by the Contractor pursuant to this Master Agreement. The term Product includes goods and services.

1.13 Purchasing Entity means a state (as well as the District of Columbia and US territories), city, county, district, other political subdivision of a State, or a nonprofit organization under the laws of some states if authorized by a Participating Addendum, that issues a Purchase Order against the Master Agreement and becomes financially committed to the purchase.

II. Term of Master Agreement

2.1 Initial Term. The initial term and extension options for this Master

Agreement is listed in Section 2 of Exhibit A, Scope of Work.

2.2 Amendment Limitations. The terms of this Master Agreement will not be waived, altered, modified, supplemented, or amended in any manner whatsoever without prior written agreement of the Lead State and Contractor.

2.3 Amendment Term. The term of the Master Agreement may be amended past the initial term and stated renewal periods for a reasonable period if in the judgment of the Lead State a follow-on competitive procurement will be unavoidably delayed (despite good faith efforts) beyond the planned date of execution of the follow-on master agreement. This subsection will not be deemed to limit the authority of a Lead State under its state law to otherwise negotiate contract extensions.

III. Order of Precedence

3.1 Order. The following order of precedence shall apply for Orders executed by Purchasing Entities:

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

3.1.2 NASPO ValuePoint Master Agreement, including all attachments thereto;

3.1.3 A Purchase Order issued against the Master Agreement;

3.1.4 The Solicitation or, if separately executed after award, the Lead

State’s bilateral agreement that integrates applicable provisions;

3.1.5 Contractor’s response to the Solicitation, as revised (if permitted) and accepted by the Lead State.

3.2 Conflict. These documents will be read to be consistent and complementary. Any conflict among these documents will be resolved by giving priority to these documents in the order listed above. Contractor 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 this Master Agreement as an Exhibit or Attachment.

3.3 Participating Addenda. Participating Addenda will not be construed to dimmish, modify, or otherwise derogate any provisions in this Master Agreement between the Lead State and Contractor. Participating Addenda will not include a term of agreement that exceeds the term of the Master Agreement.

IV. Participants and Scope

4.1 Requirement for a Participating Addendum. Contractor may not deliver

Products under this Master Agreement until a Participating Addendum acceptable to the Participating Entity and Contractor is executed.

4.2 Applicability of Master Agreement. NASPO ValuePoint Master Agreement Terms and Conditions are applicable to any Order by a Participating Entity (and other Purchasing Entities covered by their Participating Addendum), except to the extent altered, modified, supplemented or amended by a Participating Addendum, subject to Section III. For the purposes of illustration and not limitation, this authority may apply to unique delivery and invoicing requirements, confidentiality requirements, defaults on Orders, governing law and venue relating to Orders by a Participating Entity, indemnification, and insurance requirements. Statutory or constitutional requirements relating to availability of funds may require specific language in some Participating Addenda in order to comply with applicable law. The expectation is that these alterations, modifications, supplements, or amendments will be addressed in the Participating Addendum or, with the consent of the Purchasing Entity and Contractor, may be included in the ordering document (e.g., purchase order or contract) used by the Purchasing Entity to place the Order.

4.3 Authorized Use. Use of specific NASPO ValuePoint Master Agreements by state agencies, political subdivisions and other Participating Entities is subject to applicable state law and the approval of the respective State Chief Procurement Official. Issues of interpretation and eligibility for participation are solely within the authority of the respective State Chief Procurement Official.

4.4 Obligated Entities. Obligations under this Master Agreement are limited to those Participating Entities who have signed a Participating Addendum and Purchasing Entities within the scope of those Participating Addenda.

States or other entities permitted to participate may use an informal competitive process to determine which Master Agreements to participate in through execution of a Participating Addendum. Participating Entities incur no financial obligations on behalf of other Purchasing Entities.

4.5 Notice of Participating Addendum. Contractor shall email a fully executed PDF copy of each Participating Addendum to pa@naspovaluepoint.org to support documentation of participation and posting in appropriate databases.

mailto:pa@naspovaluepoint.org

4.6 Eligibility for a Participating Addendum. Eligible entities who are not states may under some circumstances sign their own Participating Addendum, subject to the consent of the Chief Procurement Official of the state where the entity is located. Entities should coordinate requests for such participation through NASPO ValuePoint. Any permission to participate through execution of a Participating Addendum is not a determination that procurement authority exists; the entity must ensure that they have the requisite procurement authority to execute a Participating Addendum.

4.7 Prohibition on Resale. Subject to any specific conditions included in the solicitation or Contractor’s proposal as accepted by the Lead State, or as explicitly permitted in a Participating Addendum, Purchasing Entities may not resell Products purchased under this Master Agreement. Absent any such condition or explicit permission, this limitation does not prohibit:

payments by employees of a Purchasing Entity for Products; sales of Products to the general public as surplus property; and fees associated with inventory transactions with other governmental or nonprofit entities and consistent with a Purchasing Entity’s laws and regulations. Any sale or transfer permitted by this subsection must be consistent with license rights granted for use of intellectual property.

4.8 Individual Customers. Except as may otherwise be agreed to by the Purchasing Entity and Contractor, each Purchasing Entity shall follow the terms and conditions of the Master Agreement and applicable Participating Addendum and will have the same rights and responsibilities for their purchases as the Lead State has in the Master Agreement and as the Participating Entity has in the Participating Addendum, including but not limited to any indemnity or right to recover any costs as such right is defined in the Master Agreement and applicable Participating Addendum for their purchases. Each Purchasing Entity will be responsible for its own charges, fees, and liabilities. The Contractor will apply the charges and invoice each Purchasing Entity individually.

4.9 Release of Information. Throughout the duration of this Master Agreement, Contractor must secure from the Lead State prior approval for the release of information that pertains to the potential work or activities covered by the Master Agreement. This limitation does not preclude publication about the award of the Master Agreement or marketing activities consistent with any proposed and accepted marketing plan.

4.10 No Representations. The Contractor shall not make any representations of NASPO ValuePoint, the Lead State, any Participating Entity, or any Purchasing Entity’s opinion or position as to the quality or effectiveness of the services that are the subject of this Master Agreement without prior written consent.

V. NASPO ValuePoint Provisions

5.1 Applicability. NASPO ValuePoint is not a party to the Master Agreement.

The terms set forth in Section V are for the benefit of NASPO ValuePoint as a third-party beneficiary of this Master Agreement.

5.2 Administrative Fees

5.2.1 NASPO ValuePoint Fee. Contractor shall pay to NASPO

ValuePoint, or its assignee, a NASPO ValuePoint Administrative Fee of one-quarter of one percent (0.25% or 0.0025) no later than sixty (60) days following the end of each calendar quarter. The NASPO ValuePoint Administrative Fee must be submitted quarterly and is based on all sales of products and services under the Master Agreement (less any charges for taxes or shipping). The NASPO ValuePoint Administrative Fee is not negotiable. This fee is to be included as part of the pricing submitted with a vendor’s response to the Lead State’s solicitation.

5.2.2 State Imposed Fees. Some states may require an additional fee be paid directly to the state on purchases made by Purchasing Entities within that state. For all such requests, the fee rate or amount, payment method and schedule for such reports and payments will be incorporated into the applicable Participating Addendum. Unless agreed to in writing by the state, Contractor may not adjust the Master Agreement pricing to include the state fee for purchases made by Purchasing Entities within the jurisdiction of the state. No such agreement will affect the NASPO ValuePoint Administrative Fee percentage or the prices paid by Purchasing Entities outside the jurisdiction of the state requesting the additional fee.

5.3 NASPO ValuePoint Summary and Detailed Usage Reports

5.3.1 Summary Sales Data. The Contractor shall submit quarterly sales reports directly to NASPO ValuePoint using the NASPO ValuePoint Quarterly Sales/Administrative Fee Reporting Tool found at http://calculator.naspovaluepoint.org. All sales made under this Master Agreement must be reported as cumulative totals by state.

Contractor must submit a report for each quarter, including quarters during which a Contractor has no sales, in which case this will be indicated in the Reporting Tool. Reports must be submitted no later than thirty (30) days following the end of the calendar quarter (as specified in the reporting tool).

5.3.2 Detailed Sales Data. Contractor shall also report detailed sales data by: (1) state; (2) entity/customer type, e.g. local government, higher education, K12, non-profit; (3) Purchasing Entity name; (4) Purchasing Entity bill-to and ship-to locations; (4) Purchasing Entity and Contractor Purchase Order identifier/number(s); (5) Purchase Order Type (e.g. sales order, credit, return, upgrade, determined by industry practices); (6) Purchase Order date; (7) Ship Date; (8) and http://calculator.naspovaluepoint.org/ line item description, including product number if used. The report must be submitted in any form required by the solicitation. Reports are due on a quarterly basis and must be received by the Lead State and NASPO ValuePoint Cooperative Development Team no later than thirty (30) days following the end of the calendar quarter.

Reports must be delivered to the Lead State and to the NASPO ValuePoint Cooperative Development Team electronically through a designated portal or other method as determined by the Lead State and NASPO ValuePoint. Detailed sales data reports must include sales information for all sales under Participating Addenda executed under this Master Agreement.

5.3.3 Reporting on Personal Use. Reportable sales for the summary sales data report and detailed sales data report includes sales to employees for personal use where authorized by the solicitation and the Participating Addendum. Report data for employees should be limited to ONLY the state and entity ((state and agency, city, county, school district, etc.) under whose authority the employee is purchasing Product for personal use and the amount of sales. No personal identification numbers (e.g., names, addresses, social security numbers or any other numerical identifier) may be submitted with any report.

5.3.4 Executive Summary. Contractor shall provide the NASPO

ValuePoint Cooperative Development Coordinator with an executive summary each quarter that includes, at a minimum, a list of states with an active Participating Addendum, states that Contractor is in negotiations with and any Participating Addendum roll out or implementation activities and issues. NASPO ValuePoint Cooperative Development Coordinator and Contractor will determine the format and content of the executive summary. The executive summary is due thirty (30) days after the conclusion of each calendar quarter.

5.3.5 Use of Data. Timely submission of these reports is a material requirement of the Master Agreement. The recipient of the reports will have exclusive ownership of the media containing the reports. The Lead State and NASPO ValuePoint shall have a perpetual, irrevocable, non-exclusive, royalty free, transferable right to display, modify, copy, and otherwise use reports, data and information provided under this section.

5.4 NASPO ValuePoint Cooperative Program Marketing, Training, and Performance Review

5.4.1 Staff Education. Contractor shall work cooperatively with NASPO

ValuePoint personnel. Contractor shall present plans to NASPO ValuePoint for the education of Contractor’s contract administrator(s) and sales/marketing workforce regarding the Master Agreement contract, including the competitive nature of

NASPO ValuePoint procurements, the master agreement and participating addendum process, and the manner in which eligible entities can participate in the Master Agreement.

5.4.2 Onboarding Plan. Upon request by NASPO ValuePoint, Contractor shall, as Participating Addendums are executed, provide plans to launch the program for the Participating Entity. Plans will include time frames to launch the agreement and confirmation that the Contractor’s website has been updated to properly reflect the scope and terms of the Master Agreement as available to the Participating Entity and eligible Purchasing Entities.

5.4.3 Annual Contract Performance Review. Contractor shall

participate in an annual contract performance review with the Lead State and NASPO ValuePoint, which may at the discretion of the Lead State be held in person and which may include a discussion of marketing action plans, target strategies, marketing materials, Contractor reporting, and timeliness of payment of administration fees.

5.4.4 Use of NASPO ValuePoint Logo. The NASPO ValuePoint logos may not be used by Contractor in sales and marketing until a separate logo use agreement is executed with NASPO ValuePoint.

5.4.5 Most Favored Customer. Contractor shall, within thirty (30) days of their effective date, notify the Lead State and NASPO ValuePoint of any contractual most-favored-customer provisions provided to another competing cooperative. Upon request of the Lead State or NASPO ValuePoint, Contractor shall provide a copy of any such provisions.

5.5 Cancellation. In consultation with NASPO ValuePoint, the Lead State may, in its discretion, cancel the Master Agreement or not exercise an option to renew, when utilization of Contractor’s Master Agreement does not warrant further administration of the Master Agreement. The Lead State may also exercise its right to not renew the Master Agreement if vendor fails to record or report revenue for three consecutive quarters, upon 60-calendar day written notice to the Contractor. Cancellation based on nonuse or under-utilization will not occur sooner than two (2) years after execution of the Master Agreement. This subsection does not limit the discretionary right of either the Lead State to cancel the Master Agreement or terminate for default subject to the terms herein. This subsection also does not limit any right of the Lead State to cancel the Master Agreement under applicable laws.

5.6 Canadian Participation. Subject to the approval of Contractor, any Canadian provincial government or provincially funded entity in Alberta, British Columbia, Manitoba, New Brunswick, Newfoundland and Labrador, Nova Scotia, Ontario, Prince Edward Island, Quebec, or Saskatchewan, and territorial government or territorial government funded entity in the Northwest Territories, Nunavut, or Yukon, including municipalities, universities, community colleges, school boards, health authorities, housing authorities, agencies, boards, commissions, and crown corporations, may be eligible to use Contractor's Master Agreement.

5.7 Additional Agreement with NASPO. Upon request by NASPO

ValuePoint, awarded Contractor shall enter into a direct contractual relationship with NASPO ValuePoint related to Contractor’s obligations to NASPO ValuePoint under the terms of the Master Agreement, the terms of which shall be the same or similar (and not less favorable) than the terms set forth in the Master Agreement.

VI. Pricing, Payment & Leasing

6.1 Pricing. The discounts contained in this Master Agreement represent the minimum discount to any Purchasing Entity.

6.1.1 All discounts must be guaranteed for the entire term of the Master

Agreement, including extension years.

6.2…