PCard Contract .pdf

State Term Contract

No. 84121500-15-01 For

Purchasing Card Services

Between Florida Department of Management Services and Bank of America, N.A.

This Contract is between the State of Florida, Department of Management Services (Department), Division of State Purchasing (Division), an agency of the State of Florida with offices at 4050 Esplanade Way, Tallahassee, FL 32399-0950, and Bank of America, N.A. (Contractor).

The Contractor submitted a reply to the Department’s Invitation to Negotiate (ITN) 07-973-120-V for Purchasing Card Services. After evaluation of replies and concluding of negotiations, the Department has determined that the Contractor’s reply provides the best value to the State of Florida and has decided to enter into this Contract.

Accordingly, the Department and Contractor agree as follows:

I. Definitions

In this Contract, terms shall have the respective meanings stated in Exhibit A, Definitions. Defined terms in the singular shall include the plural and vice versa, and the masculine, feminine, or neuter gender shall include all genders.

As used in this document, the term “Contract” (whether or not capitalized) shall, unless the context requires otherwise, be considered to be references to this Contract, including the Statement of Work and other Contract exhibits listed in Section IV. Other capitalized terms used in this document and its referenced exhibits shall have the meanings given in Exhibit A, Definitions. Any other capitalized term(s) used elsewhere in the Contract but not defined in Exhibit A, Definitions, shall have the meaning given it in the exhibit in which it is used.

II. Initial Contract Term

The Initial Contract Term of this Contract for Purchasing Card Services will be for five (5) years.

The Initial Contract Term shall begin on the last date upon which this Contract is signed by all parties.

III. Renewal Term(s)

Upon mutual written agreement, the Department and the Contractor may renew this Contract, in whole or in part, for a Renewal Term not to exceed the Initial Contract Term of five (5) years, pursuant to the provision in Section 26 of Exhibit B, Form PUR 1000.

State Term Contract No. 84121500-15-01

IV. Contract

This document, together with the following attached documents (exhibits), sets forth the entire understanding of the parties and supersedes all prior agreements, whether written or oral, with respect to such subject matter.

All exhibits attached to this document are incorporated in their entirety into, and form part of, the Contract. The Contract has the following exhibits:

a) Exhibit A: Definitions

b) Exhibit B: General Contract Conditions, Form PUR 1000 (10/06)

c) Exhibit C: Special Contract Conditions

d) Exhibit D: Statement of Work

e) Exhibit E: Schedule of Deliverables

f) Exhibit F: Eligible User Agreement

g) Exhibit G: Schedule of Fees, Charges, and Rebates State Agencies

h) Exhibit H: Schedule of Fees, Charges, and Rebates State Agencies

In case of conflict, the terms of this document shall control. If a conflict exists among the exhibits, they shall have priority in the order listed:

a) Exhibit A: Definitions

b) Exhibit C: Special Contract Conditions

c) Exhibit B: General Contract Conditions, Form PUR 1000 (10/06)

d) Exhibit E: Schedule of Deliverables

e) Exhibit D: Statement of Work

f) Exhibit F: Eligible User Agreement

g) Exhibit G: Schedule of Fees, Charges, and Rebates State Agencies

h) Exhibit H: Schedule of Fees, Charges, and Rebates Other Eligible Users

V. Statement of Work

The Services and Solution to be timely rendered by the Contractor pursuant to this Contract are defined and described in detail in Exhibit D, Statement of Work and Exhibit E, Schedule of Deliverables.

State Term Contract No. 84121500-15-01

VI. Amendments

No oral modifications to this Contract are acceptable. All modifications to this Contract must be in writing and signed by both parties. Any future amendments to the Contract which alter the definition of the Services or Solution shall define the Services or Solution in the same format as

Exhibit D, Statement of Work, and Exhibit E, Schedule of Deliverables.

Notwithstanding the order listed in section IV, amendments issued after the Contract is executed may expressly change the provisions of the Contract. If they do so, then the most recent amendment will take precedence over anything else that is part of the Contract.

VII. Contract Administration

The Department employee responsible for maintaining the contract file for this Contract is:

Stephanie Wyland, Contract Manager FL Department of Management Services Division of State Purchasing 4050 Esplanade Way, Ste. 360 Tallahassee, FL 32399-0950 Telephone: 850-488-8367 E-mail: stephanie.wyland@dms.myflorida.com

The Department may unilaterally appoint a different Contract Manager to the Contract. Said action shall not constitute or require an amendment to the Contract. Any communication to the Department relating to the Contract shall be addressed to the Contract Manager.

The Contractor shall assign one individual to serve as the designated contact person for this Contract. All questions and Customer service issues concerning this Contract shall be directed to the Contractor’s designated contact person. It will be the designated contact person’s responsibility to coordinate with necessary Customer personnel as required to answer questions and resolve issues. The Contractor must provide written notice to the Department if a new employee is designated as the contact person for this Contract within 5 business days of the change.

The Contractor employee responsible for maintaining the contract file for this Contract is:

Jeri Winkleblack, Vice President Bank of America 315 S. Calhoun Street, 2nd Floor, FL8-260-02-51 Tallahassee, FL 32312 Telephone: 850-561-5921 E-mail: jeri.winkleblack@baml.com mailto:stephanie.wyland@dms.myflorida.com mailto:jeri.winkleblack@baml.com

Exhibit A: Definitions

No. 84121500-15-01

1 Definitions

This document contains the definitions for the State Term Contract numbered 84121500-15-01 for Purchasing Card Services.

2 Highlighted Existing Definitions

The definitions found in §287.012, Florida Statutes, Rule 60A-1, Florida Administrative Code, General Contract Conditions, Form PUR 1000, and General Instructions to Respondents, Form PUR 1001 are incorporated by reference.

2.1 Florida Statute Definitions

The following Definitions from §287.012, Florida Statutes, are highlighted for clarity and the convenience of the Contractor.

a) Agency - Any of the various state officers, departments, boards, commissions, divisions, bureaus, and councils and any other unit of organization, however designated, of the executive branch of state government. “Agency” does not include the university and college boards of trustees or the state universities and colleges. §287.012(1), Florida

Statutes

b) Commodity - Any of the various supplies, materials, goods, merchandise, food, equipment, information technology, and other personal property purchased, leased, or otherwise contracted for by the state and its agencies.

§287.012(5), Florida Statutes

e) Contractual Service - The rendering by a contractor of its time and effort rather than the furnishing of specific Commodities. The term applies only to those services rendered by individuals and firms who are independent contractors, and such services may include, but are not limited to, evaluations, consultations, maintenance, accounting, security, management systems, management consulting, educational training programs research and development studies or reports on the findings of consultants engaged thereunder and professional, technical, and social services. §287.012(8), Florida Statutes

f) Department - The Department of Management Services. §287.012(9), Florida Statutes

g) Eligible User - Any person or entity authorized by the Department pursuant to rule to purchase from State Term Contracts or to use the online procurement system.

§287.012(11), Florida Statutes

2.2 Florida Administrative Code Definitions

The following Definition is highlighted from Rule 60A-1.005, Florida Administrative Code, for clarity and the convenience of the Contractor.

a) Eligible User - The following entities are Eligible Users:

(1) All governmental agencies, as defined in §163.3164, Florida Statutes, which have a physical presence within the State of Florida;

(2) Any independent, nonprofit college or university that is located within the State of Florida and is accredited by the Southern Association of Colleges and Schools.

2.3 Form PUR 1000 Definitions

The following Definitions from Form PUR 1000 are highlighted for clarity and the convenience of the Contractor

a) Customer - The State agency or other entity identified in a contract as the party to receive Commodities or Contractual Services pursuant to a contract or that orders

Commodities or Contractual Services via Purchase Order or other contractual instrument from the Contractor under the Contract. The “Customer” may also be the “Buyer” as defined in the PUR 1001 if it meets the definition of both terms.

b) Product - Any deliverable under the Contract, which may include commodities, services, technology or software.

3 Contract Specific Definitions

The following Definitions are specific to this Contract. If any of the following Contract Specific

Definitions modify or replace the Highlighted Existing Definitions incorporated in Section 2, the

Contract Specific Definitions shall control.

a) Acceptance - A written notification that a Deliverable has been reviewed and is judged by the PMO to meet the Acceptance Criteria, as augmented by other Deliverables and amended from time to time, in writing, by the parties.

b) Acceptance Criteria - Performance requirements and essential conditions contained in

Exhibit E, Schedule of Deliverables, against which Deliverables are evaluated before they are given Acceptance or Rejection.

c) Accepted Deliverable - A Deliverable which has been granted Acceptance.

d) Accounting Data Element (Un-Validated) - A field, required for FLAIR processing, containing data entered by an Approver, that must be stored in a database and transmitted in the Payment Settlement file as part of an Accounting Entry.

e) Accounting Data Element (Validated) - A field, required for FLAIR processing, containing data entered by an Approver, and validated against Accounting Data

Elements provided in the FLAIR Data Validation File, that must be stored in a database and transmitted in the Payment Settlement File as part of an Accounting Entry.

f) Accounting Entry - A series of Accounting Data Elements, both validated and un-validated, transmitted to DFS in the Payment Settlement File, that is required by FLAIR to process payment against a Transaction.

g) Administrator - A Solution User that has electronic rights and permission to alter Card

Account and program settings in the Solution.

h) Applications - Proprietary Software and Materials accessed through the Contractor’s digital platforms or through any of the Contractor’s third party vendor sites; and any related services used to provide the Services, including (i) the Global Reporting

Management System ("GRAM") hosted by MasterCard, (ii) a pin platform run by the

Contractor, (iii) a payment center for US cardholders run by Total Systems, (iv) the

Works System, and (v) any other pre-approved third party vendor the Contractor may use from time to time. The Contractor will provide other parties a minimum of ninety

(90) days notice before scheduling the incorporation of a third party vendor.

i ) AML/Sanctions Laws - All applicable laws relating to client identification, the prevention of money-laundering, terrorism, the use of proceeds of crime, economic or political sanctions, including Sanctions, and any other similar matter.

j) Approver or Approver/Group - A Solution User, or grouping of users, that has electronic rights and permission to approve, attach scanned copies of documentation to, or add Accounting Entries to, Transactions in the Solution.

k) Audit Period – As defined in Section 6, Exhibit C, Special Contract Conditions.

l) Automated Clearing House (ACH) File - An electronic file, produced by FLAIR and transmitted to the State’s treasury provider by DFS, which contains payment information and is used to settle account balances with the Contractor.

m) Billing Statement - The official invoice provided to the OEU or Cardholder by the

Contractor which identifies each Transaction posted during the billing cycle, the date of each Transaction and the applicable fees and charges, payment amount due and payment due date.

n) Business Day - Monday through Friday, 8am to 5pm, inclusive, not including paid federal holidays and state holidays described listed in §110.117(1), Florida Statutes.

o) Card - Each plastic charge card the Contractor issues for the Eligible User’s Card

Account using a Service.

p) Card Account - Each account which the Contractor issues to an Eligible User or to a

Cardholder with respect to a Service, including a Cardless Account and which allows charges to be incurred for the purchase of commodities and contractual services.

q) Cardless Account - A Card Account for which the Contractor issues only an account number, but no Card is issued.

r) Cardholder - An employee of the Eligible User and any person the OEU designates in writing who the Contractor approves to receive a Card. If the Eligible User or a

Cardholder makes a Card Account number, or a number associated with a Cardless

Account available to another party, that person will also be considered a Cardholder. If the OEU or a Cardholder makes a Card Account number, OEU Convenience Check, or a number associated with a Cardless Account available to another party, that person will also be considered a Cardholder. A Cardholder is designated and authorized by the Eligible User to make purchases within preset limits, set by the

Purchasing Card Administrator in the Solution, on behalf of the Eligible User.

s) Cash Advance - Use of a Card Account to obtain cash from a participating financial institution, Merchant or Automated Teller Machine, to write a Convenience Check or to obtain items readily convertible into cash, such as money orders, traveler’s checks, and foreign currency.

t) Charge - A purchase, credit, accounting correction, or other activity associated with any

Eligible User Card Account which creates a liability against an Eligible User’s Corporate

Account.

u) Charge Data File - An electronic file containing line item level detail of all Agency transactions. The Charge Data File includes payment card industry standard Level 3 data, when available.

v) Confidential Information - Information in the possession or under the control of the

State or the Contractor that is exempt from public disclosure, or made confidential, pursuant to Article I, Section 24, Florida Constitution, Chapter 119, Florida Statutes; or any other provision of State or federal law.

w) Contract - The agreement resulting from ITN 07-973-120-V between the Department and the Contractor.

x) Contractor - The business entity awarded the Contract resulting from ITN 07-973-120-

C by the Department.

y) Corporate Account - A master account, established with the Contractor by the Eligible

User, to which Transactions made by Card Accounts held by Cardholders can be posted for payment.

z) Correction Period - The amount of time, specified in a Notice of Deficiency, which the

Contractor has to correct the identified failure in a Deliverable in order to meet the

Acceptance Criteria.

aa) Corrective Action Plan (CAP) - A document detailing actions to be taken by the

Contractor to ensure that future Deliverables meet the requirements outlined in Exhibit

E, Schedule of Deliverables, pursuant to Section 5.5, Exhibit C, Special Contract

Conditions.

bb) Date of Delivery - The date specified in Exhibit E, Schedule of Deliverables, on or before which the Contractor shall submit a Deliverable for Delivery.

cc) Deliverable - A tangible object, Commodity, or Contractual Service, produced for, or provided to, an Eligible User pursuant to this Contract.

dd) Delivery - The submission of a Deliverable to the PMO for review and Acceptance or

Rejection.

ee) Department of Financial Services (or DFS) - The Florida Department of Financial

Services.

ff) The Department (or DMS) - The Florida Department of Management Services.

gg) Developed Material - Software and other materials produced by the Contractor or its

Subcontractors in the performance of projects associated with the Department’s systems and processes, including software program code, in both object code and source code forms, and all related materials, including designs, data models, database models, object models, program listings, flow charts, application manuals, technical manuals, training manuals, user manuals, and operating procedures. The term

“Developed Materials” does not include any pre-existing software, upgrades, or modifications thereto, but does include all modifications, enhancements and interfaces to either pre-existing software or other pre-existing materials that are created in the performance of the projects.

hh) Error Resolution - The set of informal and formal procedures established by the PMO and Contractor to resolve issues regarding Electronic Files.

ii) Extended Workforce - Any of the Contractor’s subcontractors or vendors with access to Personal Data.

jj) Final Acceptance - A written notification that an Electronic File or Service Deliverable has been reviewed and has been operating in production with all functionality and without any material deficiency for thirty (30) calendar days of full production.

kk) FLAIR Data Validation File - An electronic file, transmitted to the Contractor by DFS, containing all information necessary for the Solution to validate required Accounting

Data Elements.

ll) Florida Accounting and Information Resource (FLAIR) - The State of Florida’s accounting system used by all Agencies.

mm) Information Processing System(s) - The individual and collective electronic, mechanical, and software components of the Contractor and its Extended Workforce's operations that store, access, process or protect data related to the Services or

Solution.

nn) Information Security Event - Any situation where there is an actual or strong likelihood of the unauthorized acquisition or unauthorized use or disclosure of Personal

Data such that (i) there is a reasonable likelihood of material harm to a Cardholder or

(ii) there is a reasonable likelihood of identity theft or fraud against an individual as determined by the Contractor, using financial services industry best practices assessment criteria.

oo) Information Warehouse - A central repository of data which is created by integrating transaction data from FLAIR and the Contractor, maintained by DFS.

pp) Interim Acceptance – Acceptance, subject to Operational Acceptance and Final

Acceptance, of an Electronic File or Service Deliverable’s design and operational specifications as detailed in an Accepted Deliverable.

qq) Late Delivery – As defined in Section 5.1.2 Exhibit C, Special Contract Conditions

rr) Materials - The Software, user identification codes, passwords, codes, keys, test keys, security devices, embedded algorithms, digital signatures and certificates, other similar devices and information, User Documentation and related documentation the

Contractor provides to the Eligible User in connection with the Services or Solution. For purposes of this Contract, “information” described in the definition of Materials shall be limited to material that would enable the Information Processing Systems to be produced, created, or compiled and to data processing software as defined in

§119.011(6), Florida Statutes, together with specifications as defined in the Glossary of

Key Information Security Terms, National Institute of Standards and Technology (NIST)

IR 7298; and computer software documentation as defined in Title 48 CFR Pt. 2.101

ss) Merchant - A vendor which accepts a Purchasing Card as payment for Commodities or

Contractual Services.

tt) Merchant Category Code (MCC) - A payment card industry standard code or classification assigned to a Merchant by a card platform that is used to classify the

Merchant by the type of Commodities or Contractual Services it provides.

uu) Merchant Category Code Group (MCCG) - An electronic grouping of Merchant

Category Codes, created by Eligible Users in the Solution, which may be applied as a restriction or permission to a Card Account.

vv) Non-Conformance Damage(s) - The liquidated damages specified for each

Deliverable that the Contractor is liable for pursuant to Section 11.3, Exhibit C, Special

Contract Conditions.

ww) Notice of Deficiency - The State’s written statement to the Contractor which formally rejects a Deliverable and identifies items given in Section 5.3.1, Exhibit C, Special

Contract Conditions.

xx) Operational Acceptance – Acceptance, subject to Final Acceptance, of an Electronic

File or Service Deliverable’s meeting the design and operational specifications as detailed in an Accepted Deliverable.

yy) Other Eligible User (OEU) - An Eligible User that is not an Agency.

zz) Payment Settlement File - An electronic file, transmitted to DFS by the Contractor, containing State of Florida accounting information for all participating Agency

Transactions processed in the Solution. The Payment Settlement File allows for verification of accounting controls in FLAIR before payment is made to the Contractor.

aaa) Payment Settlement Error File - An electronic file, transmitted to the Contractor by

DFS, containing Agency Transactions in the Payment Settlement File that were rejected by FLAIR.

bbb) Performance Measure – The required minimum acceptable level of service to be performed and the criteria for evaluating the successful completion of each Deliverable.

ccc) Personal Data - Means (i) any “non-public personal information” as such term is defined under Title V of the U.S. Gramm-Leach-Bliley Act, 15 U.S.C. §6801 et seq.

and the rules and regulations issued thereunder; (ii) any "personal data" as defined in

EU Directive 95/46/EC or any equivalent or similar concept of personal data or personal information under any applicable law; or (iii) any other information that can specifically identify an individual, such as name, address and social security number (“SSN”), together, in each case, with any other information that relates to an individual who has been so identified. It also includes personal data as defined in Florida law, including but not limited to §501.171 and §817.568, Florida Statutes ddd) Program - The State of Florida Purchasing Card Program.

eee) Project Management Office (PMO) - A collective entity composed of personnel from

DFS and the Department. The PMO is the primary governance body for all changes to the Solution and Services provided under the Contract.

fff) Purchasing Card (PCard) - A restricted use, non-revolving credit card that is issued to a Cardholder by the Contractor, is controlled by the Card Account created by the

Purchasing Card Administrator in the Solution, and which creates a liability against an

Eligible User’s Corporate Account.

ggg) Purchasing Card Administrator (OEU) - The designated representative from the

Other Eligible User assigned the administration and management of the Other Eligible

User’s program and the primary point of contact for the Contractor and the Other

Eligible User.

hhh) Purchasing Card Administrator (Agency) - The designated representative of an

Agency who works directly with the Statewide Purchasing Card Administrator and the

Contractor on issues that relate to the Agency’s program.

iii) Rejected Deliverable - A Deliverable determined by the PMO at any time during the

Contract to have failed to meet Acceptance Criteria, as modified or augmented by other

Accepted Deliverables.

jjj) Rejection – A determination by the PMO that a deliverable failed to meet Acceptance

Criteria, as modified or augmented by other Accepted Deliverables.

kkk) Review Cycle - A period of time, specified in Exhibit E, Schedule of Deliverables, associated with a Deliverable, during which the PMO is examining the Deliverable and determining if it meets the Acceptance Criteria.

lll) Sanctions - Any sanctions administered or enforced by the United States Government

(including the U.S. Department of the Treasury’s Office of Foreign Assets Control), the

United Nations Security Council (“UNSC”), the European Union (“EU”), Her Majesty’s

Treasury (“HMT”), or any other relevant sanctions authority.

mmm) Scanned Images File - An electronic file containing all images electronically attached or associated to Agency Transactions processed through the Solution.

nnn) Services - Any deliverable or work, which may include Commodities or Contractual

Services, performed by the Contractor under the Contract.

ooo) Shared Data - Any transaction data or information concerning the State or the

Department that either is created or generated by Contractor personnel in the performance of the Contractor’s obligations under the Contract, including third party service and product contracts.

ppp) Solicitation – ITN #07-973-120-C qqq) Solution - The Contractor’s internet based and accessible software application, hosted and maintained by the Contractor, and used by Eligible Users to administer their participation in the Program.

rrr) State - The State of Florida.

sss) State Data - Any data or information concerning the State that is provided to or obtained by the Contractor or Contractor personnel in connection with the negotiation and execution of the Contract or the performance of the Contractor’s obligations under the Contract, including any such data and information that either:

i. is created, generated, collected or processed by Contractor personnel in the performance of the Contractor’s obligations under the Contract, including data processing input and output, performance measurements, asset information, reports, third party contracts for Product, and the Contractor’s charges to the Department, or

ii. resides in or is accessed through the Department’s operating environment or the Contractor’s Service delivery infrastructure; as well as any data and information derived from the foregoing.

ttt) State Term Contract or Term Contract – This Contract numbered 84121500-15-01 uuu) Statewide Purchasing Card Administrator - The designated representative from

DFS assigned the administration and management of the Program and the primary point of contact for the Contractor and all Agency Eligible Users.

vvv) Subcontractor - A company or individual to which the Contractor delegates performance of any portion of the Services.

www) Supporting Documentation - Any documentation, such as: receipts, invoices, Purchase Orders, or other documentation that serves as a written record or account justifying a Transaction.

xxx) Transaction - A purchase, reservation, charge, or credit associated with any Eligible

User Card Account.

yyy) Unauthorized Use - Use of a Card Account, Card or Convenience Check by a person

(i) who is not the Eligible User's Cardholder, employee or agent, (ii) who does not have actual, implied or apparent authority to use the Card Account, Convenience

Check or Card and (iii) whose use does not benefit the Eligible User directly or indirectly. Any use of a Card Account, Convenience Check or Card after the

Agreement has been terminated for any reason shall also be considered Unauthorized

Use.

zzz) User - Any Eligible User employee who has electronic access to the Solution.

aaaa) User Documentation - Any written information the Contractor provides the Eligible

User, including information in electronic format, as amended from time to time, which contains detailed instructions regarding the use of a Service.

bbbb) Workforce - The Contractor’s employees with access to Personal Data.

State of Florida

PUR 1000

General Contract Conditions

Contents

1. Definitions.

2. Purchase Orders.

3. Product Version.

4. Price Changes Applicable only to Term Contracts.

5. Additional Quantities.

6. Packaging.

7. Inspection at Contractor’s Site.

8. Safety Standards.

9. Americans with Disabilities Act.

10. Literature.

11. Transportation and Delivery.

12. Installation.

13. Risk of Loss.

14. Transaction Fee.

15. Invoicing and Payment.

16. Taxes.

17. Governmental Restrictions.

18. Lobbying and Integrity.

19. Indemnification.

20. Limitation of Liability.

21. Suspension of Work.

22. Termination for Convenience.

23. Termination for Cause.

24. Force Majeure, Notice of Delay, and No Damages for Delay.

25. Changes.

26. Renewal.

27. Purchase Order Duration.

28. Advertising.

29. Assignment.

30. Antitrust Assignment

31. Dispute Resolution.

32. Employees, Subcontractors, and Agents.

33. Security and Confidentiality.

34. Contractor Employees, Subcontractors, and Other Agents.

35. Insurance Requirements.

36. Warranty of Authority.

37. Warranty of Ability to Perform.

38. Notices.

39. Leases and Installment Purchases.

40. Prison Rehabilitative Industries and Diversified Enterprises, Inc. (PRIDE).

PUR 1000 (10/06)

60A-1.002, F.A.C.

EXHIBIT B

41. Products Available from the Blind or Other Handicapped.

42. Modification of Terms.

43. Cooperative Purchasing.

44. Waiver.

45. Annual Appropriations.

46. Execution in Counterparts.

47. Severability.

1. Definitions. The definitions contained in s. 60A-1.001, F.A.C. shall apply to this agreement. The following additional terms are also defined:

(a) “Contract” means the legally enforceable agreement that results from a successful solicitation. The parties to the Contract will be the Customer and Contractor.

(b) “Customer” means the State agency or other entity identified in a contract as the party to receive commodities or contractual services pursuant to a contract or that orders commodities or contractual services via purchase order or other contractual instrument from the Contractor under the Contract. The “Customer” may also be the “Buyer” as defined in the PUR 1001 if it meets the definition of both terms.

(c) “Product” means any deliverable under the Contract, which may include commodities, services, technology or software.

(d) “Purchase order” means the form or format a Customer uses to make a purchase under the Contract (e.g., a formal written purchase order, electronic purchase order, procurement card, contract or other authorized means).

2. Purchase Orders. In contracts where commodities or services are ordered by the Customer via purchase order, Contractor shall not deliver or furnish products until a Customer transmits a purchase order. All purchase orders shall bear the Contract or solicitation number, shall be placed by the Customer directly with the Contractor, and shall be deemed to incorporate by reference the Contract and solicitation terms and conditions. Any discrepancy between the Contract terms and the terms stated on the Contractor’s order form, confirmation, or acknowledgement shall be resolved in favor of terms most favorable to the Customer. A purchase order for services within the ambit of section 287.058(1) of the Florida Statutes shall be deemed to incorporate by reference the requirements of subparagraphs (a) through (f) thereof. Customers shall designate a contract manager and a contract administrator as required by subsections 287.057(15) and

(16) of the Florida Statutes.

3. Product Version. Purchase orders shall be deemed to reference a manufacturer’s most recently release model or version of the product at the time of the order, unless the Customer specifically requests in writing an earlier model or version and the contractor is willing to provide such model or version.

PUR 1000 (10/06)

60A-1.002, F.A.C.

4. Price Changes Applicable only to Term Contracts. If this is a term contract for commodities or services, the following provisions apply.

(a) Quantity Discounts. Contractors are urged to offer additional discounts for one time delivery of large single orders. Customers should seek to negotiate additional price concessions on quantity purchases of any products offered under the Contract. State Customers shall document their files accordingly.

(b) Best Pricing Offer. During the Contract term, if the Customer becomes aware of better pricing offered by the Contractor for substantially the same or a smaller quantity of a product outside the Contract, but upon the same or similar terms of the Contract, then at the discretion of the Customer the price under the Contract shall be immediately reduced to the lower price.

(c) Sales Promotions. In addition to decreasing prices for the balance of the Contract term due to a change in market conditions, a Contractor may conduct sales promotions involving price reductions for a specified lesser period. A Contractor shall submit to the Contract Specialist documentation identifying the proposed (1) starting and ending dates of the promotion, (2) products involved, and (3) promotional prices compared to then-authorized prices. Promotional prices shall be available to all Customers. Upon approval, the Contractor shall provide conspicuous notice of the promotion.

(d) Trade-In. Customers may trade-in equipment when making purchases from the Contract. A trade-in shall be negotiated between the Customer and the Contractor.

Customers are obligated to actively seek current fair market value when trading equipment, and to keep accurate records of the process. For State agencies, it may be necessary to provide documentation to the Department of Financial Services and to the agency property custodian pursuant to Chapter 273, F.S.

(e) Equitable Adjustment. The Customer may, in its sole discretion, make an equitable adjustment in the Contract terms or pricing if pricing or availability of supply is affected by extreme and unforeseen volatility in the marketplace, that is, by circumstances that satisfy all the following criteria: (1) the volatility is due to causes wholly beyond the Contractor’s control, (2) the volatility affects the marketplace or industry, not just the particular Contract source of supply, (3) the effect on pricing or availability of supply is substantial, and (4) the volatility so affects the Contractor that continued performance of the Contract would result in a substantial loss.

5. Additional Quantities. For a period not exceeding ninety (90) days from the date of solicitation award, the Customer reserves the right to acquire additional quantities up to the amount shown on the solicitation but not to exceed the threshold for Category Two at the prices submitted in the response to the solicitation.

6. Packaging. Tangible product shall be securely and properly packed for shipment, storage, and stocking in appropriate, clearly labeled, shipping containers and according to

PUR 1000 (10/06)

60A-1.002, F.A.C.

accepted commercial practice, without extra charge for packing materials, cases, or other types of containers. All containers and packaging shall become and remain Customer’s property.

7. Inspection at Contractor’s Site. The Customer reserves the right to inspect, at any reasonable time with prior notice, the equipment or product or plant or other facilities of a Contractor to assess conformity with Contract requirements and to determine whether they are adequate and suitable for proper and effective Contract performance.

8. Safety Standards. All manufactured items and fabricated assemblies subject to operation under pressure, operation by connection to an electric source, or operation involving connection to a manufactured, natural, or LP gas source shall be constructed and approved in a manner acceptable to the appropriate State inspector. Acceptability customarily requires, at a minimum, identification marking of the appropriate safety standard organization, where such approvals of listings have been established for the type of device offered and furnished, for example: the American Society of Mechanical Engineers for pressure vessels; the Underwriters Laboratories and/or National Electrical Manufacturers’ Association for electrically operated assemblies; and the American Gas Association for gas-operated assemblies. In addition, all items furnished shall meet all applicable requirements of the Occupational Safety and Health Act and state and federal requirements relating to clean air and water pollution.

9. Americans with Disabilities Act. Contractors should identify any products that may be used or adapted for use by visually, hearing, or other physically impaired individuals.

10. Literature. Upon request, the Contractor shall furnish literature reasonably related to the product offered, for example, user manuals, price schedules, catalogs, descriptive brochures, etc.

11. Transportation and Delivery. Prices shall include all charges for packing, handling, freight, distribution, and inside delivery. Transportation of goods shall be FOB Destination to any point within thirty (30) days after the Customer places an Order. A Contractor, within five (5) days after receiving a purchase order, shall notify the Customer of any potential delivery delays. Evidence of inability or intentional delays shall be cause for Contract cancellation and Contractor suspension.

12. Installation. Where installation is required, Contractor shall be responsible for placing and installing the product in the required locations at no additional charge, unless otherwise designated on the Contract or purchase order. Contractor’s authorized product and price list shall clearly and separately identify any additional installation charges. All materials used in the installation shall be of good quality and shall be free of defects that would diminish the appearance of the product or render it structurally or operationally unsound. Installation includes the furnishing of any equipment, rigging, and materials required to install or replace the product in the proper location. Contractor shall protect the site from damage and shall repair damages or injury caused during installation by

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Contractor or its employees or agents. If any alteration, dismantling, excavation, etc., is required to achieve installation, the Contractor shall promptly restore the structure or site to its original condition. Contractor shall perform installation work so as to cause the least inconvenience and interference with Customers and with proper consideration of others on site. Upon completion of the installation, the location and surrounding area of work shall be left clean and in a neat and unobstructed condition, with everything in satisfactory repair and order.

13. Risk of Loss. Matters of inspection and acceptance are addressed in s. 215.422, F.S.

Until acceptance, risk of loss or damage shall remain with the Contractor. The Contractor shall be responsible for filing, processing, and collecting all damage claims.

To assist the Contractor with damage claims, the Customer shall: record any evidence of visible damage on all copies of the delivering carrier’s Bill of Lading; report damages to the carrier and the Contractor; and provide the Contractor with a copy of the carrier’s Bill of Lading and damage inspection report. When a Customer rejects a product, Contractor shall remove it from the premises within ten days after notification or rejection. Upon rejection notification, the risk of loss of rejected or non-conforming product shall remain with the Contractor. Rejected product not removed by the Contractor within ten days shall be deemed abandoned by the Contractor, and the Customer shall have the right to dispose of it as its own property. Contractor shall reimburse the Customer for costs and expenses incurred in storing or effecting removal or disposition of rejected product.

14. Transaction Fee. The State of Florida has instituted MyFloridaMarketPlace, a statewide eProcurement System (“System”). Pursuant to section 287.057(23), Florida Statutes (2002), all payments shall be assessed a Transaction Fee of one percent (1.0%), which the Contractor shall pay to the State, unless exempt pursuant to 60A-1.032, F.A.C.

For payments within the State accounting system (FLAIR or its successor), the Transaction Fee shall, when possible, be automatically deducted from payments to the Contractor. If automatic deduction is not possible, the Contractor shall pay the Transaction Fee pursuant to Rule 60A-1.031(2), F.A.C. By submission of these reports and corresponding payments, Contractor certifies their correctness. All such reports and payments shall be subject to audit by the State or its designee.

Contractor shall receive a credit for any Transaction Fee paid by the Contractor for the purchase of any item(s) if such item(s) are returned to the Contractor through no fault, act, or omission of the Contractor. Notwithstanding the foregoing, a Transaction Fee is non-refundable when an item is rejected or returned, or declined, due to the Contractor’s failure to perform or comply with specifications or requirements of the agreement.

Failure to comply with these requirements shall constitute grounds for declaring the Contractor in default and recovering reprocurement costs from the Contractor in addition to all outstanding fees. CONTRACTORS DELINQUENT IN PAYING

TRANSACTION FEES MAY BE SUBJECT TO BEING REMOVED FROM THE

DEPARTMENT OF MANAGEMENT SERVICES’ VENDOR LIST AS

PROVIDED IN RULE 60A-1.006, F.A.C.

15. Invoicing and Payment. Invoices shall contain the Contract number, purchase order number if applicable, and the appropriate vendor identification number. The State may

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require any other information from the Contractor that the State deems necessary to verify any purchase order placed under the Contract.

At the State's option, Contractors may be required to invoice electronically pursuant to guidelines of the Department of Management Services. Current guidelines require that Contractor supply electronic invoices in lieu of paper-based invoices for those transactions processed through the system. Electronic invoices shall be submitted to the Customer through the Ariba Supplier Network (ASN) in one of the following mechanisms – EDI 810, cXML, or web-based invoice entry within the ASN.

Payment shall be made in accordance with sections 215.422 and 287.0585 of the Florida Statutes, which govern time limits for payment of invoices. Invoices that must be returned to a Contractor due to preparation errors will result in a delay in payment.

Contractors may call (850) 413-7269 Monday through Friday to inquire about the status of payments by State Agencies. The Customer is responsible for all payments under the Contract. A Customer’s failure to pay, or delay in payment, shall not constitute a breach of the Contract and shall not relieve the Contractor of its obligations to the Department or to other Customers.

16. Taxes. The State does not pay Federal excise or sales taxes on direct purchases of tangible personal property. The State will not pay for any personal property taxes levied on the Contractor or for any taxes levied on employees’ wages. Any exceptions to this paragraph shall be explicitly noted by the Customer in the special contract conditions section of the solicitation or in the Contract or purchase order.

17. Governmental Restrictions. If the Contractor believes that any governmental restrictions have been imposed that require alteration of the material, quality, workmanship or performance of the products offered under the Contract, the Contractor shall immediately notify the Customer in writing, indicating the specific restriction. The Customer reserves the right and the complete discretion to accept any such alteration or to cancel the Contract at no further expense to the Customer.

18. Lobbying and Integrity. Customers shall ensure compliance with Section 11.062, FS and Section 216.347, FS.The Contractor shall not, in connection with this or any other agreement with the State, directly or indirectly (1) offer, confer, or agree to confer any pecuniary benefit on anyone as consideration for any State officer or employee’s decision, opinion, recommendation, vote, other exercise of discretion, or violation of a known legal duty, or (2) offer, give, or agree to give to anyone any gratuity for the benefit of, or at the direction or request of, any State officer or employee. For purposes of clause (2), “gratuity” means any payment of more than nominal monetary value in the form of cash, travel, entertainment, gifts, meals, lodging, loans, subscriptions, advances, deposits of money, services, employment, or contracts of any kind. Upon request of the Customer’s Inspector General, or other authorized State official, the Contractor shall provide any type of information the Inspector General deems relevant to the Contractor’s integrity or responsibility. Such information may include, but shall not be limited to, the Contractor’s business or financial records, documents, or files of any type or form that refer to or relate to the Contract. The Contractor shall retain such records for the longer of (1) three years after the expiration of the Contract or (2) the period required by the

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General Records Schedules maintained by the Florida Department of State (available at:

http://dlis.dos.state.fl.us/barm/genschedules/gensched.htm). The Contractor agrees to reimburse the State for the reasonable costs of investigation incurred by the Inspector General or other authorized State official for investigations of the Contractor’s compliance with the terms of this or any other agreement between the Contractor and the State which results in the suspension or debarment of the Contractor. Such costs shall include, but shall not be limited to: salaries of investigators, including overtime; travel and lodging expenses; and expert witness and documentary fees. The Contractor shall not be responsible for any costs of investigations that do not result in the Contractor’s suspension or debarment.

19. Indemnification. The Contractor shall be fully liable for the actions of its agents, employees, partners, or subcontractors and shall fully indemnify, defend, and hold harmless the State and Customers, and their officers, agents, and employees, from suits, actions, damages, and costs of every name and description, including attorneys’ fees, arising from or relating to personal injury and damage to real or personal tangible property alleged to be caused in whole or in part by Contractor, its agents, employees, partners, or subcontractors, provided, however, that the Contractor shall not indemnify for that portion of any loss or damages proximately caused by the negligent act or omission of the State or a Customer.

Further, the Contractor shall fully indemnify, defend, and hold harmless the State and Customers from any suits, actions, damages, and costs of every name and description, including attorneys’ fees, arising from or relating to violation or infringement of a trademark, copyright, patent, trade secret or intellectual property right, provided, however, that the foregoing obligation shall not apply to a Customer’s misuse or modification of Contractor’s products or a Customer’s operation or use of Contractor’s products in a manner not contemplated by the Contract or the purchase order. If any product is the subject of an infringement suit, or in the Contractor’s opinion is likely to become the subject of such a suit, the Contractor may at its sole expense procure for the Customer the right to continue using the product or to modify it to become non-infringing. If the Contractor is not reasonably able to modify or otherwise secure the Customer the right to continue using the product, the Contractor shall remove the product and refund the Customer the amounts paid in excess of a reasonable rental for past use.

The customer shall not be liable for any royalties.

The Contractor’s obligations under the preceding two paragraphs with respect to any legal action are contingent upon the State or Customer giving the Contractor (1) written notice of any action or threatened action, (2) the opportunity to take over and settle or defend any such action at Contractor’s sole expense, and (3) assistance in defending the action at Contractor’s sole expense. The Contractor shall not be liable for any cost, expense, or compromise incurred or made by the State or Customer in any legal action without the Contractor’s prior written consent, which shall not be unreasonably withheld.

20. Limitation of Liability. For all claims against the Contractor under any contract or purchase order, and regardless of the basis on which the claim is made, the Contractor’s liability under a contract or purchase order for direct damages shall be limited to the

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http://dlis.dos.state.fl.us/barm/genschedules/gensched.htm greater of $100,000, the dollar amount of the contract or purchase order, or two times the charges rendered by the Contractor under the purchase order. This limitation shall not apply to claims arising under the Indemnity paragraph contain in this agreement.

Unless otherwise specifically enumerated in the Contract or in the purchase order, no party shall be liable to another for special, indirect, punitive, or consequential damages, including lost data or records (unless the contract or purchase order requires the Contractor to back-up data or records), even if the party has been advised that such damages are possible. No party shall be liable for lost profits, lost revenue, or lost institutional operating savings. The State and Customer may, in addition to other remedies available to them at law or equity and upon notice to the Contractor, retain such monies from amounts due Contractor as may be necessary to satisfy any claim for damages, penalties, costs and the like asserted by or against them. The State may set off any liability or other obligation of the Contractor or its affiliates to the State against any payments due the Contractor under any contract with the State.

21. Suspension of Work. The Customer may in its sole discretion suspend any or all activities under the Contract or purchase order, at any time, when in the best…