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HomeMy WebLinkAboutspecial condSPECIAL CONDITIONS PURPOSE The purpose of this bid is to establish a 36 month contract for the purchase of IBM Enterprise SOFTWARE Products by all State of Florida agencies and other eligible users in accordance with Eligible Users paragraph, General Conditions. It is anticipated that the contract will be effective from 12/10/1998 through 12/09/2001. OPTIONAL CONTRACT USAGE In addition to the eligible users referenced above and with the consent of the successful bidder(s) purchases may be made under the terms and conditions of this Invitation to Bid/Request for Proposal, by governmental entities located outside the State of Florida. Appropriate governmental entities' purchasing laws, rules and regulations shall apply to purchases made under this contract. ESTIMATED QUANTITIES It is anticipated that the State of Florida agencies, and other eligible users, will expend approximately $ l ,000,000 annually under any contract resulting from this negotiation. These estimated figures are given only as a guideline and should not be construed as representing actual figures under the contract. SPECIAL ACCOMMODATION Any person requiring a special accommodation at State Purchasing because of a disability should call State Purchasing at (850) 488-8440 at least five (5) workdays prior to any meeting. If you are hearing or speech impaired, please contact Purchasing by using the Florida Relay Service which can be reached at 1 (800) 955-8771 (TDD). SPECIAL SALES OFFERS All purchases made from State contracts by State agencies, institutions and political subdivisions must be in strict adherence to all terms, conditions and prices contained therein; therefore, all contract suppliers and their representatives are required to present any "special" price proposals directly to State Purchasing. SALES PROMOTIONS It is understood that sales promotions may occur during the term of the contract that will lower the prices of some products for the period of the sales promotion. Any such reduction shall appear on the using agency invoices. Sale pricing shall be made available to all users of the contract. Sales promotions shall be documented in writing by the contractor to State Purchasing. Contractor shall specify start and ending dates of the sales promotion. State Purchasing will not accept sales promotions specifying limited quantities or closeouts. DELIVERY REQUIREMENTS All prices bid shall include delivery to purchaser within 30 days. 3 NOTICE TO CONTRACTOR The employment of unauthorized aliens by any contractor is considered a violation of section 247A(e) of the Immigration and Nationalization Act. If the contractor knowingly employs unauthorized aliens, such violation shall be cause for unilateral cancellation of the contract. PUBLIC ENTITY CRIMES A person or affiliate who has been placed on the convicted vendor list following a conviction for a public entity crime may not submit a bid on a contract to provide any goods or services to a public entity, may not submit a bid on a contract with a public entity for the construction or repair of a public building or public work, may not submit bids on leases of real property to a public entity, may not be awarded or perform work as a contractor, supplier, subcontractor, or consultant under a contract with any public entity, and may not transact business with any public entity in excess of the threshold amount provided in f.s. 287.017 for CATEGORY TWO for a period of 36 months from the date of being placed on the convicted vendor list. SURCHARGE USER FEE AND SUMMARY OF TOTAL SALES State Purchasing hereby imposes a surcharge user fee of .5% on contractors' sales under any contract resulting from this bid. The fee will be paid by the contractor and must be included in prices bid and cannot be added as a separate item. Use of this contract will be optional by State Agencies. If a State Agency elects to purchase from a source other than the resulting State contract, such purchases shall be in accordance with Chapter 287, F.S., and 60A Florida Administrative Code. After receipt of payment from the contract purchases, all surcharge fees shall be payable to the State of Florida no later than 15 days after the end of each quarter. Vendor user fee should be noted on the check and remitted to: State of Florida Department of Management Services P.O. Box 5438 Tallahassee, FL 32314-5438 Contract supplier shall furnish State Purchasing a detailed summary of sales at the end of each quarter. By submission of these Sales Summary reports and corresponding surcharge deposits, the contractor(s) is certifying their correctness. All such reports and fee deposits shall be subject to audit by the State of Florida. Summary information shall be provided each quarter and shall include the following: A. State Contract Number B. Identity of purchaser C. Type of software sold D. Total sales of software/new license sales per quarter and year-to-date E. Total sales of upgrade advantage (maintenance)/interim releases and upgrades purchased per quarter and year-to-date F. Total sales per quarter and year-to-date Failure to comply with these requirements will result in the contract supplier being found in default, in which case any and all reprocurement costs may be charged against the defaulting contractor and may result in immediate, unilateral cancellation of your contract by State Purchasing. 4 PRICE LISTS On any contract where pricing is based on a Manufacturer's or Dealer's published price list (net or discounted), the price list must be provided by the BIDDER as part of the bid package in hard copy, and on a 3.5 inch diskette as a Word For Windows file. Any subsequent revisions shall be submitted in the same format to State Purchasing CONTRACT ADMINISTRATOR, for review and approval prior to implementation. Diskette must be formatted as: • "Word for Windows" • Font: Times New Roman 12 • Preset tabs only • Margins: .5 Left and .5 Right, .5 Top and 1.0 Bottom • Portrait only -no landscape • No Tables • No Headers or Footers • No Excel Files State Purchasing, at its discretion, may allow the CONTRACT HOLDER to configure its own PRICE LIST of eligible offerings and to post the prices on the CONTRACT HOLDERS Internet Home Page. However, all initial pricing and any subsequent price changes must be reviewed and approved by State Purchasing Contract Administrator before they can be posted to the CONTRACT HOLDER Internet Home Page. Failure to submit the information required in this section will be grounds for disqualification of your bid andlor removal from any resulting contract. INTERNET HOME PAGE The Contract resulting from this negotiation will become a public document. The State of Florida, State Purchasing is using the Government Services Direct on the Internet World Wide Web (WWW) to distribute State Term Contracts and product information to eligible users and other interested entities who may subscribe to this service and pay the appropriate access fee. While not required at this time, each CONTRACT VENDOR is encouraged to develop and maintain a HOME PAGE on the Internet WWW. The Horne Page must be compatible with the most recent version of browser software being used by State Purchasing. As of the writing of this solicitation, Netscape Navigator 3.0 is the DOP browser standard. The DOP intends to upgrade to new browser versions as they become available and fully tested, at its discretion. The Universal Resource Locator (URL) for the INTERNET HOME PAGE must be listed in the space provided on the Ordering Instructions page of the negotiation. 5 YEAR 2000 COMPLIANCE WARRANTY The contractor warrants that each item of hardware, software, and/or firmware delivered, developed or modified under this contract shall be able to accurately process date data (including, but not limited to, calculating, comparing, and sequencing) from, into, and between the twentieth and twenty-first centuries, including leap year calculations, when used in accordance with the item documentation provided by the contractor, provided that all items (e.g. hardware, software, firmware) used in combination with other designated items properly exchange date data with it. The duration of this warranty and the remedies available to the State for breach of this warranty shall be as defined in, and subject to, the terms and limitations of any general warranty provisions of this contract, provided that notwithstanding any provision to the contrary in such warranty provision(s), or in the absence of any such warranty provision(s), the remedies available to the State under this warranty shall include repair or replacement of any item whose non-compliance is discovered and made known to the contractor in writing within ninety (90) days after acceptance. Nothing in this warranty shall be construed to limit nay rights or remedies the State may otherwise have under this contract with respect to defects other than Year 2000 performance. YEAR 2000 REMEDY CLAUSE In the event of any decrease in hardware or software program functionality related to time and date related codes and internal subroutines that impede the hardware or software programs from operating beyond the Millennium Date Change, Licensors and Vendors of Licensors products, agree to immediately make required corrections to restore hardware and software programs to the same level of functionality as warranted herein at no charge to the licensee, and without interruption to the ongoing business of licensee, time being of the essence. LATEST VERSION OF SOFTWARE PACKAGE In accordance with the Special Condition "Addition /Deletion/ Change", contractors may replace software packages with newer versions. In the event of price escalation by the manufacturer for newer versions of software packages, the State may allow contract vendors to pass on only the amount of cost increase from manufacturer to dealer. The amount of cost increase must be documented by a manufacturer's published price list or product announcement from the contractor's source of supply. LIMITATION OF REMEDIES Contractor's entire liability and the State's exclusive remedy shall be as follows: In all situations involving performance or non-performance of machines or programming (other than licensed programs) furnished under this Agreement, the State's remedy is (a) the adjustment or repair of the machine or replacement of its parts by Contractor, or at Contractor's option, replacement of the machine or correction of programming errors, or (b) if, after repeated efforts, Contractor is unable to install the machine or a replacement machine, model upgrade or feature in good working order, or to restore it to good working order, or to make programming operate, all as warranted, the State shall be entitled to recover actual damages to the limits set forth in this Special Condition. For any other claim concerning performance or non-performance by Contractor pursuant to, or in any other way related to the subject matter of, this Agreement or any order under this Agreement, the State shall be entitled to recover actual damages to the limits set forth in this Special Condition. 6 If this contract is for purchase of machines, then the following shall apply. Contractor's entire liability for damages to the State for any cause whatsoever, and regardless of form of action, whether in contract or in tort including negligence, shall be limited to the greater of $100,000 or the appropriate price stated herein for the specific machines that caused the damages or that are the subject matter of or are directly related to the cause of action. The foregoing limitation of liability will not apply to (a) the payment of cost and damage awards referred to in the General Condition 14 entitled "Patents and Royalties", or to (b) claims for reprocurement costs or the cost of cover pursuant to State Purchasing Rule 60A-1.006(4) entitled "Default", or to (c) claims for personal injury or damage to real or tangible personal property caused by Contractor's negligence or tortious conduct. If this contract is for the purchase of hardware maintenance services, then the following shall apply: Contractor's entire liability and the State's exclusive remedy for damages to the State for any cause whatsoever, and regardless of the form of action, whether in contract or in tort including negligence, shall be limited to actual damages up to the greater of $100,000 or an amount equal to 12 months maintenance charges for the specific machines under this Agreement that caused the damages or that are the subject matter of, or are directly related to, the cause of action. Such maintenance charges will be those in effect for the specific machines when the cause of action arose. The foregoing limitation of liability will not apply to (a) the payment of cost and damage awards referred to in General Condition 14 entitled "Patents and Royalties" or to (b) claims for reprocurement costs or costs to cover pursuant to State Purchasing Rule 60A-1.006(4) entitled "Default", or to (c) claims by the State for personal injury or damage to real property or tangible personal property caused by the Contractor's negligence or tortuous conduct. If this contract is for purchase of software maintenance services, then the following shall apply: Contractor's entire liability and the State's exclusive remedy for damages to the State for any cause whatsoever, and regardless of the form of action, whether in contract or in tort including negligence, shall be limited to actual damages up to the greater of $100,000 or an amount equal to 12 months maintenance charges for the specific software product under this Agreement that caused the damages or that are the subject matter of, or are directly related to, the cause of action. Such maintenance charges will be those in effect for the specific software product when the cause of action arose. The foregoing limitation of liability will not apply to (a) the payment of cost and damage awards referred to in General Condition 14 entitled "Patents and Royalties", or to (b) claims for reprocurement costs or the cost of cover pursuant to State Purchasing Rule 60A-1.006(4) entitled "Default", or to (c) claims by the State for personal injury or damage to real property or tangible personal property caused by Contractor's negligence or tortuous conduct. If this contract is for services other than hardware or software maintenance, then the following shall apply: Contractor's entire liability and the state's exclusive remedy for damages to the state for any cause whatsoever, and regardless of the form of action, whether in contract or in tort including negligence, shall be limited to actual damages up to the greater of $100,00 or an amount equal to the charges invoiced for the services which are the subject matter of, or are directly related to, the cause of action. The foregoing limitation of liability will not apply to (a) the payment of cost and damage awards referred to in "Patents and Royalties" or to (b) claims for reprocurement costs or costs to cover pursuant to State Purchasing Rule 60A- 1.006(4) entitled "Default", or to (c) claims by the Department for personal injury or damage to real property or tangible personal property caused by the Contractor's negligence or tortuous conduct 7 If this contract is for the acquisition of licensed programs, including personal computer licensed programs, then the following shall apply: Contractor's entire liability and the State's exclusive remedy shall be as follows: In all situations involving performance or non-performance of licensed programs furnished under this Agreement, the State's remedy is (1) the correction by the Contractor of licensed program defects, or (2) if, after repeated efforts, the Contractor is unable to make the licensed program operate as warranted, the State shall be entitled to recover actual damages to the limits set forth in this section. For any other claim concerning performance or non-performance by the Contractor pursuant to, or in any way related to, the subject matter of this Agreement the State shall be entitled to recover actual damages to the limits set forth in this section. Contractor's liability for damages to the State for any cause whatsoever, and regardless of the form of action, whether in contract or in tort including negligence, shall be limited to the greater of $100,000 or the one time charges paid for, or any monthly license or initial license charges which would be due for 12 months use of the licensed program that caused the damages or that is the subject matter of, or is directly related to, the cause of action and shall include any initial or process charges paid to the Contractor. This limitation of liability will not apply to (a) the payment of cost and damage awards referred to in General Condition 14 entitled "Patents and Royalties" or to (b) claims for reprocurement costs or the cost of cover pursuant to State Purchasing Rule 60A-1.006(4) entitled "Default", or to (c) claims for personal injury or damage to real or tangible personal property caused by the Contractor's negligence or tortuous conduct. Contractor shall hold and save the State harmless for any and all suits and judgments against the State for personal injury or damage to real or tangible personal property caused by Contractor's tortuous conduct in the performance of this Agreement provided that, (a) the State promptly notifies Contractor in writing of any claim, and (b) Contractor shall be given the opportunity, at its option, to participate and associate with the State in the control, defense and trial of any claims and any related settlement negotiations and, provided further, that with respect to any claim, or portion thereof, for which Contractor agrees at the initiation of such claim that Contractor shall save and hold the State harmless, Contractor shall have the sole control of the defense, trial and any related settlement negotiations, and (c) the State fully cooperates with Contractor in the defense of any claim. In no event, however, will Contractor be liable for (a) any damages caused by the State's failure to perform the State's responsibilities, or for (b) any lost profits or other consequential damages, even if Contractor has been advised of the possibility of such damages, or for (c) any claim against the State by any other party, except as provided in the hold harmless provision of the preceding paragraph of this Special Condition and except as provided in the General Condition entitled "Patents and Royalties", or for (d) any damages caused by performance or non-performance of machines or programming located outside the United States or Puerto Rico. OUALITY ASSURANCE The contractor, during the contract term, upon mutual agreement, will provide reasonable travel and lodging accommodations for one (1) to three (3) government employees to perform an on site inspection of the manufacturing process(es) and review of the manufacturer's product quality controI(s) and total quality management programs(s). The contractor will reimburse the State for actual transportation cost, per diem and incidental expenses as provided in Section 112.061, Florida Statutes. It is the State's desire that the contractor provide demonstration of quality control for improvement rather than post production detection. QUANTITY DISCOUNTS Contractor is urged to offer additional discounts for one time delivery of large single orders of any assortment of items on the price sheet. 8 FORCE MAJEURE Neither party shall be liable for any delays or failures in performance due to circumstances beyond its control. INSURANCEWORKERS' COMPENSATION The contractor shall take out and maintain during the life of this agreement, Workers' Compensation Insurance for all of his employees connected with the work of this project and, in case any work is sublet, the contractor shall require the subcontractor similarly to provide Workers' Compensation Insurance for all of the latter's employees unless such employees are covered by the protection afforded by the contractor. Such insurance shall comply fully with the Florida Workers' Compensation law. In case any class of employees engaged in hazardous work under this contract at the site of the project is not protected under the Workmen's Compensation statute, the Contractor shall provide, and cause each sub -contractor to provide, adequate insurance, satisfactory to the Purchaser, for the protection of his employees not otherwise protected. ORDER OF PRECEDENCE If there is a conflict between the Tivioli Systems Inc End User Software License Agreement, or its Amendment, with the provisions of the General and Special Conditions then the General and Special Conditions shall take precedence and govern. Data Privacy The State and Eligible Users agree to allow IBM and its subsidiaries to store and use your contact information, including names, phone numbers, and e-mail addresses, anywhere they do business. Such information will be processed and used in connection with our business relationship, and may be provided to contractors, Business Partners, and assignees of IBM and its subsidiaries for uses consistent with their collective business activities, including communicating with you (for example, for processing orders, for promotions, and for market research). Katz Patent IBM and its subsidiaries shall not be liable to the State and Eligible Users or indemnify them for any claims of patent infringement, including contributory infringement or inducement to infringe, of any patents owned or licensable now or hereafter by Ronald A. Katz or Ronald A. Katz Technology Licensing, L.P. or by his or its successors or assigns ("Katz Patents"). The State and EIigible Users release IBM and its subsidiaries and its and their employees, officers, and directors from any and all liability for all claims, losses and damages (whether stated in contract or tort, including but not limited to all claims for patent and copyright infringement) arising from, in connection with, related to, or as a result of any claim of infringement, including contributory infringement or inducement to infringe, of any Katz Patents related to Products, Services andlor Materials -provided by IBM to the State or Eligible Users under this Agreement, alone or in combination with other devices, products, software, services andlor materials whether provided by the State, IBM or others. IBM shall not be responsible for determining whether the State or Eligible Users require a license to any Katz Patents, obtaining any such license on their behalf, or paying any fees relating to any such licenses. 9