Open Market Cloud Appendix B18.pdf

APPENDIX B

GENERAL SPECIFICATIONS

Appendix B

Appendix B

TABLE OF CONTENTS

GENERAL

1. ETHICS COMPLIANCE ______________________ 3

2. DEFINITIONS ______________________________ 3

BID SUBMISSION

3. INTERNATIONAL BIDDING ___________________ 5

4. RESERVED _______________________________ 5

5. RESERVED _______________________________ 5

6. RESERVED _______________________________ 5

7. BID CONTENTS ____________________________ 5

8. EXTRANEOUS TERMS ______________________ 5

9. CONFIDENTIAL/TRADE SECRET MATERIALS ___ 6

10. PREVAILING WAGE RATES - PUBLIC WORKS AND

BUILDING SERVICES CONTRACTS _________________ 6

11. TAXES ___________________________________ 7

12. EXPENSES PRIOR TO CONTRACT EXECUTION _ 7

13. CONTRACT PUBLICITY _____________________ 7

14. PRODUCT REFERENCES ___________________ 8

15. RESERVED _______________________________ 8

16. PRODUCTS MANUFACTURED IN PUBLIC

INSTITUTIONS ___________________________________ 8

17. PRICING __________________________________ 8

18. DRAWINGS _______________________________ 9

19. SITE INSPECTION __________________________ 9

20. PURCHASING CARD ________________________ 9

21. RESERVED _______________________________ 9

BID EVALUATION

22. BID EVALUATION __________________________ 9

23. TIE BIDS __________________________________ 9

24. RESERVED _______________________________ 9

25. RESERVED _______________________________ 9

TERMS & CONDITIONS

26. CONTRACT CREATION / EXECUTION _________ 9

26A. OFFICIAL USE ONLY/NO PERSONAL USE _____ 10

27. PARTICIPATION IN CENTRALIZED CONTRACTS 10

28. MODIFICATION OF CONTRACT TERMS /

ADDITIONAL OR ALTERNATIVE TERMS AND

CONDITIONS IN AN AUTHORIZED USER AGREEMENT 10

29. RESERVED ______________________________ 11

30. ESTIMATED / SPECIFIC QUANTITY

CONTRACTS ___________________________________ 11

31. EMERGENCY CONTRACTS _________________ 11

32. PURCHASE ORDERS ______________________ 11

33. PRODUCT DELIVERY ______________________ 12

34. WEEKEND AND HOLIDAY DELIVERIES _______ 12

35. SHIPPING/RECEIPT OF PHYSICAL PRODUCT _ 12

TERMS & CONDITIONS (CONT.)

36. RESERVED _______________________________ 13

37. RESERVED _______________________________ 13

38. RESERVED _______________________________ 13

39. REJECTED PRODUCT _____________________ 13

40. INSTALLATION ____________________________ 13

41. REPAIRED OR REPLACED PARTS /

COMPONENTS __________________________________ 13

42. EMPLOYEES, SUBCONTRACTORS & AGENTS _ 13

43. ASSIGNMENT _____________________________ 13

44. SUBCONTRACTORS AND SUPPLIERS ________ 14

45. PERFORMANCE / BID BOND ________________ 14

46. SUSPENSION OF WORK ___________________ 14

47. TERMINATION ____________________________ 14

48. SAVINGS/FORCE MAJEURE ________________ 15

49. CONTRACT INVOICING ____________________ 16

50. DEFAULT – AUTHORIZED USER _____________ 16

51. PROMPT PAYMENTS ______________________ 17

52. REMEDIES FOR BREACH ___________________ 17

53. ASSIGNMENT OF CLAIM ___________________ 18

54. TOXIC SUBSTANCES ______________________ 18

55. INDEPENDENT CONTRACTOR ______________ 18

56. SECURITY _______________________________ 18

57. COOPERATION WITH THIRD PARTIES ________ 18

58. CONTRACT TERM – EXTENSION ____________ 18

59. WARRANTIES ____________________________ 18

60. LEGAL COMPLIANCE ______________________ 20

61. INDEMNIFICATION ________________________ 20

62. INDEMNIFICATION RELATING TO

INFRINGEMENT _________________________________ 20

63. LIMITATION OF LIABILITY FOR LOT 1 -

SOFTWARE and LOT 2 - HARDWARE _______________ 21

63A. LIMITATION OF LIABILITY FOR LOT 4 -

IMPLEMENTATION ______________________________ 21

63B. LIMITATION OF LIABILITY FOR LOT 3 - CLOUD _ 22

64. DISPUTES _______________________________ 22

65. SOFTWARE LICENSE GRANT _______________ 25

66. PRODUCT ACCEPTANCE ___________________ 26

67. AUDIT OF LICENSED PRODUCT USAGE ______ 27

68. OWNERSHIP/TITLE TO PROJECT

DELIVERABLES _________________________________ 27

69. PROOF OF LICENSE _______________________ 29

70. PRODUCT VERSION _______________________ 29

71. CHANGES TO PRODUCT OR SERVICE

OFFERINGS ____________________________________ 29

72. NO HARDSTOP/PASSIVE LICENSE

MONITORING ___________________________________ 29

73. RESERVED _______________________________ 30

Appendix B

GENERAL

1. ETHICS COMPLIANCE. All Bidders/Contractors and their employees must comply with the requirements of Sections 73 and 74 of the Public Officers Law, other State codes, rules, regulations and executive orders establishing ethical standards for the conduct of business with New York State. In signing the Bid, Bidder certifies full compliance with those provisions for any present or future dealings, transactions, sales, contracts, services, offers, relationships, etc., involving New York State and/or its employees. Failure to comply with those provisions may result in disqualification from the Bidding process, termination of contract, and/or other civil or criminal proceedings as required by law.

2. DEFINITIONS. Terms used herein shall have the following meanings:

a. AGENCY OR AGENCIES. The State of New York, acting by or through one or more departments, boards, commissions, offices or institutions of the State of New York.

b. AUTHORIZED USER(S). Authorized User shall have the meaning set forth in New York State Finance Law section 163(1)(k) and includes, but is not limited to, New York State agencies, political subdivisions, local governments, public authorities, public school and fire districts, public and nonprofit libraries, and certain other nonpublic/nonprofit organizations.

b1. SOLICITATION. Writings by the State setting forth the scope, terms, conditions and technical specifications for a procurement of Product. The procurement may be undertaken on a competitive or non-competitive basis. Such writings typically include, but are not limited to: Invitation for Bids (IFB), Request for Quotations (RFQ), Request for Proposals (RFP), addenda or amendments thereto, and terms and conditions that are incorporated by reference, including but not limited to, Appendix A (Standard Clauses for NYS Contracts), Appendix B, (General Specifications) and identified attachments. Where the procurement is undertaken on a non-competitive basis, the term “Solicitation” shall be deemed to refer to the all the terms and conditions identified by the State.

b2. BID SPECIFICATION. A written description drafted by the Authorized User setting forth the specific terms of the intended procurement, which may include: physical or functional characteristics, the nature of a commodity or construction item, any description of the work to be performed, Products to be provided, the necessary qualifications of the Bidder, the capacity and capability of the Bidder to successfully carry out the proposed Contract, or the process for achieving specific results and/or anticipated outcomes or any other requirement necessary to perform work. Where these General Specifications are incorporated in negotiated Contracts that have not been competitively Bid, the term “Bid Specifications” shall be deemed to refer to the terms and conditions set forth in the negotiated Contract and associated documentation.

c. COMMISSIONER. Commissioner of OGS, or in the case of Bid Specifications issued by an Authorized User, the head of such Authorized User or his or her authorized representative.

d. CONTRACT. The writing(s) which contain the agreement of the Commissioner and the bidder/Contractor setting forth the total legal obligation between the parties as determined by applicable rules of law, and which will include the following classification of public procurement:

Centralized Contracts Multiple award Contracts where the specifications for a Product or general scope of work are described and defined by the Office of General Services to meet the needs of Authorized Users. Once established, procurements will be made from the selected Contractor(s) with required competition through a Request for Quote.

e. CONTRACT AWARD NOTIFICATION. An announcement to Authorized Users that a Contract has been established.

f. CONTRACTOR. Any successful Bidder(s) to whom a Contract has been awarded by the Commissioner.

g. DOCUMENTATION. The complete set of manuals (e.g., user, installation, instruction or diagnostic manuals) in either hard or electronic copy, which are necessary to enable an Authorized User to properly test, install, operate and enjoy full use of the Product.

h. EMERGENCY. An urgent and unexpected requirement where health and public safety or the conservation of public resources is at risk.

Appendix B

i. ENTERPRISE. The total business operations in the United States of Authorized User(s) without regard to geographic location where such operations are performed or the entity actually performing such operations on behalf of Authorized User(s).

j. ENTERPRISE LICENSE. A license grant of unlimited rights to deploy, access, use and execute Product anywhere within the Enterprise up to the maximum capacity stated on the Purchase Order or in the Contract.

k. ERROR CORRECTIONS. Machine executable software code furnished by Contractor which corrects the Product so as to conform to the applicable warranties, performance standards and/or obligations of the Contractor.

l. GROUP. A classification of Product, services or technology which is designated by OGS.

m. RESERVED.

n. LICENSED SOFTWARE. Software transferred upon the terms and conditions set forth in the Contract. “Licensed Software” includes error corrections, upgrades, enhancements or new releases, and any deliverables due under a maintenance or service contract (e.g., patches, fixes, PTFs, programs, code or data conversion, or custom programming).

o. LICENSEE(S). One or more Authorized Users who acquire Product from Contractor by issuing a Purchase Order in accordance with the terms and conditions of the Contract; provided that, for purposes of compliance with an individual license, the term “Licensee(s)” shall be deemed to refer separately to the individual Authorized User(s) who took receipt of and who is executing the Product, and who shall be solely responsible for performance and liabilities incurred. In the case of acquisitions by State Agencies, the Licensee shall be the State of New York.

p. LICENSE EFFECTIVE DATE. The date Product is delivered to an Authorized User. Where a License involves Licensee’s right to copy a previously licensed and delivered Master Copy of a Program, the license effective date for additional copies shall be deemed to be the date on which the Purchase Order is executed.

q. LICENSOR. A Contractor who transfers rights in proprietary Product to Authorized Users in accordance with the rights and obligations specified in the Contract.

r. NEW PRODUCT RELEASES. (Product Revisions) Any commercially released revisions to the licensed version of a Product as may be generally offered and available to Authorized Users. New releases involve a substantial revision of functionality from a previously released version of the Product.

s. OGS. The New York State Office of General Services.

t. PRODUCT. A deliverable under any Bid or Contract which may include commodities, services and/or technology. The term “Product” includes Licensed Software.

u. PROPRIETARY. Protected by secrecy, patent, copyright or trademark against commercial competition.

v. PURCHASE ORDER. The Authorized User’s fiscal form or format that is used when making a purchase (e.g., formal written Purchase Order, Procurement Card, electronic Purchase Order, or other authorized instrument).

w. RESERVED.

x. REQUEST FOR QUOTATION (RFQ). A type of Bid Document used by an Authorized User to conduct a competitive procurement among Contractors.

y. RESPONSIBLE BIDDER. A Bidder that is determined to have financial and organizational capacity, legal authority, satisfactory previous performance, skill, judgment and integrity, and that is found to be competent, reliable and experienced, as determined by the Commissioner. For purposes of being deemed responsible, a Bidder must also be determined to be in compliance with Sections 139-j and 139-k of the State Finance Law relative to restrictions on contacts during the procurement process and disclosure of contacts and prior findings of non-responsibility under these statutes.

Appendix B

z. RESPONSIVE BIDDER. A Bidder meeting the specifications or requirements prescribed in the Bid Document or solicitation, as determined by the OGS Commissioner.

aa. SINGLE SOURCE. A procurement where two or more Bidders can supply the required Product, and the Commissioner may award the contract to one Bidder over the other.

bb. SITE. The location (street address) where Product will be executed or services delivered.

cc. SOLE SOURCE. A procurement where only one Bidder is capable of supplying the required Product.

dd. SOURCE CODE. The programming statements or instructions written and expressed in any language understandable by a human being skilled in the art which are translated by a language compiler to produce executable machine Object Code.

ee. STATE. State of New York.

ff. SUBCONTRACTOR. Any individual or other legal entity (including but not limited to sole proprietor, partnership, limited liability company, firm or corporation) who has entered into a contract, express or implied, for the performance of a portion of a Contract with a Contractor.

gg. TERMS OF LICENSE. The terms and conditions set forth in the Contract that are in effect and applicable to a Purchase Order at the time of order placement.

hh. THIRD PARTY SOFTWARE. Any software which is developed independently of Contractor and may be governed by a separate license.

ii. VIRUS. Any computer code, whether or not written or conceived by Contractor, that disrupts, disables, harms, or otherwise impedes in any manner the operation of the Product, or any other associated software, firmware, hardware, or computer system (such as local area or wide-area networks), including aesthetic disruptions or distortions, but does not include security keys or other such devices installed by Product manufacturer. Virus shall also include any malware, adware, or other computer code, whether or not written or conceived by Contractor, which allows data or metrics to be copied, redirected or modified without the express consent of the Authorized User.

BID SUBMISSION

3. INTERNATIONAL BIDDING. All offers (tenders), and all information and Product required by the solicitation or provided as explanation thereof, shall be submitted in English. All prices shall be expressed, and all payments shall be made, in United States Dollars ($US). Any offers (tenders) submitted which do not meet the above criteria will be rejected.

4. RESERVED.

5. RESERVED.

6. RESERVED.

7. BID CONTENTS. Bids must be complete and legible. All Bids must be signed. All information required by the Bid Specifications must be supplied by the Bidder on the forms or in the format specified. No alteration, erasure or addition is to be made to the Solicitation. Changes may be ignored by the Commissioner or may be grounds for rejection of the Bid.

Changes, corrections and/or use of white-out in the Bid or Bidder’s response portion of the Bid Document must be initialed by an authorized representative of the Bidder. Bidders are cautioned to verify their Bids before submission, as amendments to Bids or requests for withdrawal of Bids received by the Commissioner after the time specified for the Bid opening may not be considered.

8. EXTRANEOUS TERMS. Bids must conform to the terms set forth in the Solicitation, as extraneous terms or material deviations (including additional, inconsistent, conflicting or alternative terms) may render the Bid non-responsive and may result in rejection of the Bid.

Appendix B

Extraneous term(s) submitted on standard, pre-printed forms (including but not limited to: product literature, order forms, license agreements, contracts or other documents) that are attached or referenced with submissions shall not be considered part of the Bid or resulting Contract, but shall be deemed included for informational or promotional purposes only.

Only those extraneous terms that meet all requirements of the Solicitation Section 4.6 and Attachment 6 may be considered as having been submitted for consideration by OGS.

No extraneous term(s), whether or not deemed “material,” shall be incorporated into the Contract unless submitted in accordance with the above and the Commissioner or her designee expressly accepts each such term(s) in writing.

Acceptance and/or processing of the Bid shall not constitute such written acceptance of Extraneous Term(s).

9. CONFIDENTIAL/TRADE SECRET MATERIALS.

a. BIDDER/CONTRACTOR. Confidential, trade secret or proprietary materials as defined by the laws of the State of New York must be clearly marked and identified as such upon submission by the Bidder/Contractor. Marking the Bid as “confidential” or “proprietary” on its face or in the document header or footer shall not be considered by the Commissioner or Authorized User to be sufficient without specific justification as to why disclosure of particular information in the Bid would cause substantial injury to the competitive position of the Bidder/Contractor. Bidders/Contractors intending to seek an exemption from disclosure of these materials under the Freedom of Information Law must request the exemption in writing, setting forth the reasons for the claimed exemption. The Commissioner’s or Authorized User’s receipt/acceptance of the claimed materials does not constitute a determination on the exemption request, which determination will be made in accordance with statutory procedures. Properly identified information that has been designated confidential, trade secret, or proprietary by the Bidder/Contractor will not be disclosed except as may be required by the Freedom of Information Law or other applicable State and federal laws.

b. COMMISSIONER OR AUTHORIZED USER. Contractor warrants, covenants and represents that any confidential information obtained by Contractor, its agents, Subcontractors, officers, distributors, resellers or employees in the course of performing its obligations, including without limitation, security procedures, business operations information, or commercial proprietary information in the possession of the State or any Authorized User hereunder or received from another third party, will not be divulged to any third parties without the written consent of the Commissioner or Authorized User. Contractor shall not be required to keep confidential any such material that is publicly available through no fault of Contractor, independently developed by Contractor without reliance on confidential information of the Authorized User, or otherwise obtained under the Freedom of Information Law or other applicable New York State laws and regulations. This warranty shall survive termination of this Contract. Contractor further agrees to take commercially reasonable steps as to its agents, Subcontractors, officers, distributors, resellers or employees of the obligations arising under this clause to insure such confidentiality.

10. PREVAILING WAGE RATES - PUBLIC WORKS AND BUILDING SERVICES CONTRACTS. If any portion of work being solicited is subject to the prevailing wage rate provisions of the Labor Law, the following shall apply:

a. PREVAILING WAGE RATE APPLICABLE TO BIDS. A copy of the applicable prevailing wage rate schedule is incorporated into the Solicitation and may also be obtained by visiting www.labor.ny.gov and typing in the search box:

Prevailing Wage Schedule Request. Bidders must submit Bids which are based upon the prevailing hourly wages, and supplements in cash or equivalent benefits (e.g., fringe benefits and any cash or non-cash compensation which are not wages, as defined by law) that equal or exceed the applicable prevailing wage rates for the location where the work is to be performed. Bidders may not submit Bids based upon hourly wage rates and supplements below the applicable prevailing wage rates as established by the New York State Department of Labor. Bids that fail to comply with this requirement will be disqualified.

b. WAGE RATE PAYMENTS/CHANGES DURING CONTRACT TERM. The wages to be paid under any resulting Contract shall not be less than the prevailing rate of wages and supplements as set forth by law. It is required that the Contractor keep informed of all changes in the prevailing wage rates during the Contract term that apply to the classes of individuals supplied by the Contractor on any projects resulting from this Contract, subject to the provisions of the Labor Law. Contractor is solely liable for and must pay such required prevailing wage adjustments during the Contract term for its employees as required by law and is responsible for ensuring any subcontractors utilized on the Contract also comply with the prevailing wage provisions of the New York State Labor Law.

Appendix B

c. ARTICLE 8 CONSTRUCTION/PUBLIC WORKS CONTRACTS. In compliance with Article 8, Section 220 of the New York State Labor Law:

(i) Posting. The Contractor must publicly post on the work site, in a prominent and accessible place, a legible schedule of the prevailing wage rates and supplements.

(ii) Payroll Records. Contractors and Subcontractors must keep original payrolls or transcripts subscribed and affirmed as true under the penalties of perjury as required by law. For public works contracts over $25,000 where the Contractor maintains no regular place of business in New York State, such records must be kept at the work site. For building services contracts, such records must be kept at the work site while work is being performed.

(iii) Submission of Certified Payroll Transcripts for Public Works Contracts Only. Contractors and Subcontractors on public works Contracts must submit monthly payroll transcripts to the Authorized User issuing the Purchase Order for the work. This provision does not apply to Article 9 of the Labor Law building services contracts.

(iv) Day’s Labor. No laborers, workmen or mechanics in the employ of the Contractor, Subcontractor or other person doing or contracting to do all or part of the work contemplated by the Contract shall be permitted or required to work more than eight hours in any one calendar day or more than five calendar days in any one week except in cases of extraordinary emergency including fire, flood or danger to life or property. “Extraordinary emergency” shall be deemed to include situations in which sufficient laborers, workers and mechanics cannot be employed to carry on public work expeditiously as a result of such restrictions upon the number of hours and days of labor and the immediate commencement or prosecution or completion without undue delay of the public work is necessary in the judgment of the NYS Commissioner of Labor for the preservation of the Contract Site or for the protection of the life and limb of the persons using the Contract Site.

d. ARTICLE 9 BUILDING SERVICES CONTRACTS.

In compliance with Article 9, Section 230 of the New York State Labor Law:

(i) Payroll Records. Contractors and Subcontractors must keep original payrolls or transcripts subscribed and affirmed as true under the penalties of perjury as required by law. Where the Contractor or Subcontractor maintains no regular place of business in New York State, such records must be kept at the work site while work is being performed.

(ii) Overtime. Employees of Contractors and Subcontractors who work in excess of eight hours in a day or forty hours in a week shall be paid at the overtime rate identified by the New York State Department of Labor.

11. TAXES.

a. Unless otherwise specified in the Bid Specifications or Contract, the quoted Bid price includes all taxes applicable to the transaction.

b. Purchases made by the State of New York and certain non-State Authorized Users are exempt from New York State and local sales taxes and, with certain exceptions, federal excise taxes. To satisfy the requirements of the New York State Sales tax exemption, either the Purchase Order issued by a State Agency or the invoice forwarded to authorize payment for such purchases will be sufficient evidence that the sale by the Contractor was made to the State, an exempt organization under Section 1116 (a) (1) of the Tax Law. Non-State Authorized Users must offer their own proof of exemption upon request. No person, firm or corporation is, however, exempt from paying the State Truck Mileage and Unemployment Insurance or Federal Social Security taxes, which remain the sole responsibility of the Bidder/Contractor.

c. Purchases by Authorized Users other than the State of New York may be subject to certain taxes which were not included in the Bid price, and in those instances the tax should be computed based on the Contract price and added to the invoice submitted to such entity for payment.

12. EXPENSES PRIOR TO CONTRACT EXECUTION. The Commissioner and any Authorized User(s) are not liable for any costs incurred by a Vendor, Bidder or Contractor in the preparation and production of a Bid, Mini-Bid, cost proposal revision, or for any work performed prior to Contract execution.

13. CONTRACT PUBLICITY. Any Contractor press or media releases, advertisements, or promotional literature, regardless of the medium, referring to an awarded Contract must be reviewed and approved by the Commissioner prior to

Appendix B issuance. In addition, Contractor shall not use, for any purpose, the New York State of Opportunity registered trademark or the New York State coat of arms without prior written approval from the State.

14. PRODUCT REFERENCES.

a. “Or Equal.” In all Bid Specifications the words “or equal” are understood to apply where a copyrighted, brand name, trade name, catalog reference, or patented Product is referenced. References to such specific Product are intended as descriptive, not restrictive, unless otherwise stated. Comparable Product will be considered if proof of compatibility is provided, including appropriate catalog excerpts, descriptive literature, specifications and test data, etc. The Commissioner’s decision as to acceptance of the Product as equal shall be final.

b. Discrepancies in References. In the event of a discrepancy between the model number referenced in the Bid Specifications and the written description of the Products which cannot be reconciled, with respect to such discrepancy, then the written description shall prevail.

15. RESERVED.

16. PRODUCTS MANUFACTURED IN PUBLIC INSTITUTIONS. Bids offering Products that are provided, manufactured or produced in public institutions will be rejected.

17. PRICING.

a. Unit Pricing. If required by the Bid Specifications, the Bidder should insert the price per unit specified and the price extensions in decimals, not to exceed four places for each item unless otherwise specified, in the Bid. In the event of a discrepancy between the unit price and the extension, the unit price shall govern unless, in the sole judgment of the Commissioner, such unit pricing is obviously erroneous.

b. Net Pricing. Unless otherwise required by the Bid Specifications, prices shall be net, including transportation, customs, tariff, delivery and other charges fully prepaid by the Contractor to the destination(s) indicated in the Bid Specifications, subject to the cash discount.

c. “No Charge” Bid. When Bids are requested on a number of Products as a Group or Lot, a Bidder desiring to Bid “no charge” on a Product in the Group or Lot must clearly indicate such. Otherwise, such Bid may be considered incomplete and be rejected, in whole or in part, at the discretion of the Commissioner.

d. Educational Pricing. All Products to be supplied for educational purposes that are subject to educational discounts shall be identified in the Bid and such discounts shall be made available to qualifying institutions.

e. Third Party Financing. If Product acquisitions are financed through any third party financing, Contractor may be required as a condition of Contract Award to agree to the terms and conditions of a “Consent & Acknowledgment Agreement” in a form acceptable to the Commissioner.

f. RESERVED.

g. Specific Price Decreases, Special Offers and/or Promotions. Contractor may offer lower prices in response to any RFQ without having any obligation to apply said pricing on other transactions under the Contract. This includes but is not limited to when Contractor generally offers more advantageous special price promotions, special discount pricing and/or competitive pricing during the Contract Term and the maximum price or discount associated with such offer or promotion is better than the discount or Net Price otherwise available under this Contract. Contractor may offer better terms in response to any RFQ without having any obligation to apply said terms on other transactions under the Contract. See Section 28 Modification of Contract Terms / Additional or Alternative Terms and Conditions in an Authorized User Agreement.

h. Cost Proposal Revisions. A Contractor may be solicited prior to contract award to propose the best possible offer for the Product or service being bid on, in accordance with State Finance Law § 163(9)(c). A cost proposal revision must be a lower price than the initial price.

Appendix B

18. DRAWINGS.

a. Drawings Submitted With Bid. When the Bid Specifications require the Bidder to furnish drawings and/or plans, such drawings and/or plans shall conform to the mandates of the Solicitation and shall, when approved by the Commissioner, be considered a part of the Bid and of any resulting Contract. All symbols and other representations appearing on the drawings shall be considered a part of the drawing.

b. Drawings Submitted During the Contract Term. Where required to develop, maintain and deliver diagrams or other technical schematics regarding the scope of work, Contractor shall do so on an ongoing basis at no additional charge, and must, as a condition of payment, update drawings and plans during the Contract term to reflect additions, alterations, and deletions. Such drawings and diagrams shall be delivered to the Authorized User’s representative.

c. Accuracy of Drawings Submitted. All drawings shall be neat and professional in manner and shall be clearly labeled as to locations and type of Product, connections and components. Drawings and diagrams are to be in compliance with accepted drafting standards. Acceptance or approval of such plans shall not relieve the Contractor from responsibility for design or other errors of any sort in the drawings or plans, or from its responsibility for performing as required, furnishing Product, services or installation, or carrying out any other requirements of the intended scope of work.

19. SITE INSPECTION. Where a site inspection is required by the Bid Specifications or Project Definition, Bidder shall be required to inspect the site, including environmental or other conditions for pre-existing deficiencies that may affect the installed Product, equipment, or environment or services to be provided and, which may affect Bidder’s ability to properly deliver, install or otherwise provide the required Product. All inquiries regarding such conditions shall be made in writing.

Bidder shall be deemed to have knowledge of any deficiencies or conditions which such inspection or inquiry might have disclosed. Bidder must provide a detailed explanation with its Bid if additional work is required under this clause in order to properly complete the delivery and installation of the required Product or provide the requested service.

20. PURCHASING CARD. The State’s Purchasing Card program is designed to be an efficient and cost effective way to expedite payment. Purchasing Cards are issued to selected employees who are authorized to make purchases for the Authorized User. Nothing herein shall be deemed to authorize a purchase from a Contractor without the issuance of an

RFQ.

21. RESERVED.

BID EVALUATION

22. BID EVALUATION. The Commissioner reserves the right to accept or reject any and all Bids, or separable portions of Bids, and waive technicalities, irregularities, and omissions if the Commissioner determines the best interests of the State will be served. The Commissioner, in his/her sole discretion, may accept or reject illegible, incomplete or vague Bids and his/her decision shall be final. A conditional or revocable Bid which clearly communicates the terms or limitations of acceptance may be considered, and Contract award may be made in compliance with the Bidder’s conditional or revocable terms in the Bid.

23. TIE BIDS. In the event two Bids are found to be substantially equivalent, price shall be the basis for determining the award recipient. While prompt payment discounts will not be considered in determining the low Bid, the Commissioner may consider any prompt payment discount in resolving Bids which are otherwise tied. If two or more Bidders submit substantially equivalent Bids as to pricing or other factors, the decision of the Commissioner to award a Contract to one or more of such Bidders shall be final.

24. RESERVED.

25. RESERVED.

TERMS & CONDITIONS

26. CONTRACT CREATION / EXECUTION. Except for contracts governed by Article 11-B of the State Finance Law, subject to and upon receipt of all required approvals as set forth in the Bid Specifications, a Contract shall be deemed executed and created with the successful Bidder(s) upon the Commissioner’s mailing or electronic communication to the address on the Bid/Contract of: (i) the final Contract Award Notice; (ii) a fully executed Contract; or (iii) a Purchase Order authorized by the Commissioner.

Appendix B

26A. OFFICIAL USE ONLY/NO PERSONAL USE. The Contract is only for official use by Authorized Users. Use of the Contract for personal or private purposes is strictly prohibited.

27. PARTICIPATION IN CENTRALIZED CONTRACTS.

a. Agencies. All State Agencies may utilize and purchase under any Centralized Contract let by the Commissioner, unless the Solicitation limit purchases to specific State Agencies.

b. Non-State Agency Authorized Users. Authorized Users other than State Agencies are permitted to make purchases through Centralized Contracts where permitted by law, the Contract or the Commissioner.

c. Voluntary Extension. Purchase Orders issued against a Centralized Contract by any Authorized User not provided for in the Bid Specifications shall be honored by the Contractor at its discretion and only with the approval of the OGS Commissioner and any other approvals required by law. Contractors are encouraged to voluntarily extend service Contracts to those additional entities authorized to utilize commodity Contracts under Section 163(3)(a)(iv) of the State Finance Law.

d. Responsibility for Performance. Participation in Centralized Contracts by Authorized Users is permitted upon the following conditions: (i) the responsibility with regard to performance of any contractual obligation, covenant, condition or term thereunder by any Authorized User other than State Agencies shall be borne and is expressly assumed by such Authorized User and not by the State; (ii) a breach of performance of any contractual obligation, covenant, condition or term thereunder by any particular Authorized User shall neither constitute nor be deemed a breach of the Contract as a whole which shall remain in full force and effect, and shall not affect the validity of the Contract nor the obligations of the Contractor thereunder respecting non-breaching Authorized Users, whether State or otherwise; (iii) for a breach of performance of any contractual obligation, covenant, condition or term thereunder by an Authorized User other than a State Agency, the State, its officers, agents and employees shall have no liability to the Contractor or any third party for any such breach; and (iv) the State, its officers, agents and employees shall have no liability to any non-State Agency Authorized User for Contractor’s failure to perform any contractual obligation, covenant, condition or term thereunder.

e. Contract Migration. Authorized Users holding an executed Purchase Order under an OGS Centralized Contract with a Contractor holding a Manufacturer Umbrella Contract for the same Product or service shall be permitted to migrate that Purchase Order to the Contractor’s Manufacturer Umbrella Contract, for the balance of the term of the Purchase Order provided that (i) the Purchase Order pricing is the same or lower than the Contractor’s Manufacturer Umbrella NYS Net Contract Price for the Product or service, and (ii) the migration is completed within 90 calendar days of the Contractor’s Manufacturer Umbrella Contract commencement date, or the effective date of a Contract Amendment adding this language to the Contractor’s Manufacturer Umbrella Contract, whichever is later. The Authorized User shall not be required to issue an RFQ to migrate such Products or services. Such migration shall not operate to diminish, alter or eliminate any right that the Authorized User otherwise had under the terms and conditions of the OGS Centralized Contract under which the Purchase Order was executed. In the event of a conflict between the OGS Centralized Contract and the Manufacturer Umbrella Contract, the terms and conditions more favorable to the Authorized User shall prevail. In no event shall Products or services outside the scope of the Manufacturer Umbrella Contract be migrated under this section.

28. MODIFICATION OF CONTRACT TERMS / ADDITIONAL OR ALTERNATIVE TERMS AND CONDITIONS IN AN

AUTHORIZED USER AGREEMENT.

a. The terms and conditions set forth in the Contract shall govern all transactions by Authorized Users under this Contract.

The Contract may be modified or amended only upon mutual written agreement of the Commissioner and Contractor.

b. Additional or Alternative Terms and Conditions in an Authorized User Agreement.

A Contractor can propose additional or alternative terms and conditions for a specific Authorized User transaction only in the Contractor’s response to an Authorized User RFQ. A Contractor cannot require an Authorized User to agree to additional or alternative terms and conditions as a condition to the Contractor submitting a response to an Authorized User RFQ.

Additional or alternative terms and conditions may, in the discretion of the Authorized User, be allowed as part of a Contractor’s response to an Authorized User RFQ and incorporated into the Authorized User Agreement provided that all of the following conditions are met:

Appendix B

(i) The Contractor identifies where such additional or alternative terms and conditions may be found in Contractor’s response to the Authorized User RFQ; and

(ii) The Authorized User determines that the inclusion of such additional or alternative terms and conditions results in a transaction which is, on an overall basis, more favorable to the Authorized User than if the transaction did not include such additional or alternative terms and conditions; and

(iii) The Authorized User accepts such additional or alternative terms and conditions.

c. Notwithstanding subparagraph b above, no additional or alternative term and condition shall be valid or binding on the Authorized User to the extent that such additional or alternative term and condition is less favorable to the Authorized User than, or conflicts with, any of the following provisions: All provisions of Appendix A (Standard Clauses for New York State Contracts); Appendix B sections 47 (Termination), 56 (Security), 61 (Indemnification), 62 (Indemnification Relating to Infringement), 63 (Limitation of Liability for Lot 1 - Software and Lot 2 - Hardware), 63A (Limitation of Liability for Lot 4 - Implementation) and 63B (Limitation of Liability for Lot 3 - Cloud); the sections of the Contract entitled Contractor’s Obligation for Reseller Participation, Performance of Services, Contractor Responsibility for Subcontractors, and Lot 3 – Cloud Specific Terms and Conditions; the Contract insurance requirements; and the NYS Net Pricing on the Contract.

d. No additional or alternative terms and conditions may be incorporated by the Contractor into an Authorized User Agreement by unilaterally affixing them to the Product upon delivery (including, but not limited to, attachment or inclusion of standard pre-printed order forms, product literature, “shrink wrap” terms accompanying software upon delivery, or other documents) or by incorporating such terms and conditions onto order forms, purchase orders or other documents forwarded by the Contractor for payment, notwithstanding Authorized User’s subsequent acceptance of Product, or that Authorized User has subsequently processed such document for approval or payment.

e. Nothing herein shall be deemed to prohibit a Contractor from offering an Authorized User better and more advantageous pricing and terms and conditions during the term of an Authorized User Agreement.

29. RESERVED.

30. ESTIMATED / SPECIFIC QUANTITY CONTRACTS. Estimated quantity contracts, also referred to as indefinite delivery / indefinite quantity contracts, are expressly agreed and understood to be made for only the quantities, if any, actually ordered during the Contract term. No guarantee of any quantity is implied or given.

With respect to any specific quantity stated in the contract, the Commissioner reserves the right after award to order up to 20% more or less (rounded to the next highest whole number) than the specific quantities called for in the Contract.

Notwithstanding the foregoing, the Commissioner may purchase greater or lesser percentages of Contract quantities should the Commissioner and Contractor so agree. Such agreement may include an equitable price adjustment.

31. EMERGENCY CONTRACTS. In the event that a disaster emergency is declared by Executive Order under Section 28 of Article 2-B of the Executive Law, or the Commissioner determines pursuant to his/her authority under Section 163(10)(b) of the State Finance Law that an emergency exists requiring the prompt and immediate delivery of Product, the Commissioner reserves the right to obtain such Product from any source, including but not limited to this Contract(s), as the Commissioner in his/her sole discretion determines will meet the needs of such emergency. Contractor shall not be entitled to any claim or lost profits for Product procured from other sources pursuant to this clause. The reasons underlying the finding that an emergency exists shall be included in the procurement record.

32. PURCHASE ORDERS. Unless otherwise authorized in writing by the Commissioner, no Product is to be delivered or furnished by Contractor until transmittal of an official Purchase Order from the Authorized User. Unless terminated or cancelled pursuant to the authority vested in the Commissioner, Purchase Orders shall be effective and binding upon the Contractor (i) in the case of formal written Purchase Orders, when placed in the mail prior to the termination of the Contract, and addressed to the Contractor at the address for receipt of orders set forth in the Contract or in the Contract Award Notification or (ii) in the case of electronic Purchase Orders or Purchasing Card purchases, when electronically transmitted to the Contractor prior to the termination of the Contract.

Appendix B

All Purchase Orders issued pursuant to Contracts let by the Commissioner must be identified with the appropriate Contract number and, if necessary, required State approvals. As deemed necessary, the Authorized User may confirm pricing and other Product information with the Contractor prior to placement of the Purchase Order. The State reserves the right to require any other information from the Contractor which the State deems necessary in order to complete any Purchase Order placed under the Contract. Unless otherwise specified, all Purchase Orders against Centralized Contracts will be placed by Authorized Users directly with the Contractor and any discrepancy between the terms stated on the Contractor’s order form, confirmation or acknowledgment, and the Contract terms shall be resolved in favor of the terms most favorable to the Authorized User. Should an Authorized User add written terms and conditions to the Purchase Order that conflict with the terms and conditions of the Contract, the Contractor has the option of rejecting the Purchase Order within five business days of its receipt but shall first attempt to negotiate the additional written terms and conditions in good faith with the Authorized User, or fulfill the Purchase Order. Notwithstanding the above, the Authorized User reserves the right to dispute any discrepancies arising from the presentation of additional terms and conditions with the Contractor.

33. PRODUCT DELIVERY. Delivery must be made as ordered to the address specified on the Purchase Order and in accordance with the terms of the Contract. Delivery shall be made within thirty calendar days after receipt of a Purchase Order by the Contractor, unless otherwise agreed to by the Authorized User and the Contractor. The decision of the Commissioner as to compliance with delivery terms shall be final. The burden of proof for delay in receipt of a Purchase Order shall rest with the Contractor. In all instances of a potential or actual delay in delivery, the Contractor shall immediately notify the Commissioner and the Authorized User, and confirm in writing the explanation of the delay, and take appropriate action to avoid any subsequent late deliveries. Any extension of time for delivery must be requested in writing by the Contractor and approved in writing by the Authorized User. If the Purchase Order provides that compliance with the delivery time schedule is a material term, failure to meet such delivery time schedule may be grounds for cancellation of the order or, in the Commissioner’s discretion, the Contract.

For the purposes of Lot 1 - Software, Contractor shall make available to the Authorized User either delivery of a physical copy(s) of the Software and Documentation or electronic download of the Software and Documentation from the Contractor’s electronic delivery web site. Authorized User can access and electronically download the Licensed Software and related Documentation for each Product offered under the Contract. The Authorized User acknowledges that Contractor's delivery obligation for electronic delivery under this Contract is met by the provision of the electronic delivery web site URL. Unless otherwise specified in the Authorized User Agreement, the Authorized User shall be responsible for installation of the Licensed Software.

Unless otherwise agreed in the Authorized User Agreement, for the purposes of Lot 3 - Cloud, delivery shall be deemed to have occurred when the Authorized User is granted access to the required features and functionality of the Cloud Product.

34. WEEKEND AND HOLIDAY DELIVERIES. Unless otherwise specified in the Bid Specifications or by an Authorized User, deliveries will be scheduled for ordinary business hours, Monday through Friday (excluding legal holidays observed by the State of New York). Deliveries may be scheduled by mutual agreement for Saturdays, Sundays or legal holidays observed by the State of New York where the Product is for daily consumption, an emergency exists, the delivery is a replacement, delivery is late, or other reasonable circumstance in which event the convenience of the Authorized User shall govern.

35. SHIPPING/RECEIPT OF PHYSICAL PRODUCT.

a. Packaging. Product shall be securely and properly packed for shipment, storage and stocking in appropriate, clearly labeled shipping containers and according to accepted commercial practice, without any extra charges for packing materials, cases or other types of containers. The container shall become and remain the property of the Authorized User unless otherwise specified in the Contract documents.

b. Shipping Charges. Unless otherwise stated in the Bid Specifications, all deliveries shall be deemed to be freight on board (F.O.B.) destination tailgate delivery at the dock of the Authorized User. Unless otherwise agreed, items purchased at a price F.O.B. Shipping point plus transportation charges shall not relieve the Contractor from responsibility for safe and proper delivery notwithstanding the Authorized User’s payment of transportation charges. Contractor shall be responsible for ensuring that the Bill of Lading states “charges prepaid” for all shipments.

c. Receipt of Product. The Contractor shall be solely responsible for assuring that deliveries are made to locations and/or personnel specified by the Authorized User in the Purchase Order. Any losses or delays resulting from the Contractor’s failure to deliver Product to the specified locations or personnel shall be borne exclusively by the Contractor.

Appendix B

36. RESERVED.

37. RESERVED.

38. RESERVED.

39. REJECTED PRODUCT. When Product is rejected, it must be removed by the Contractor from the premises of the Authorized User within ten calendar days of notification of rejection by the Authorized User. Upon notification of rejection, risk of loss of rejected or non-conforming Product shall remain with Contractor. Rejected items not removed by the Contractor within ten calendar days of notification shall be regarded as abandoned by the Contractor, and the Authorized User shall have the right to dispose of Product as its own property. The Contractor shall promptly reimburse the Authorized User for any and all costs and expenses incurred in storage or effecting removal or disposition after the ten-calendar-day period.

40. INSTALLATION. Where installation is required, Contractor shall be responsible for placing and installing the Product in the required locations. All materials used in the installation shall be of good quality and shall be free from any and all defects that would mar the Product or render it unsound. Installation includes the furnishing of any equipment, rigging and materials required to install or place the Product in the proper location.