HomeMy WebLinkAboutgeneral conditions3.0 General Conditions
Contents
3.01 Definitions
3.02 Eligible Customers
3.03 Requests for Quotes
3.04 Posting and Revision of Authorized Product and Price List
3.05 Product Version
3.06 Quantity Discounts
3.07 Best Pricing Offer
3.08 Sales Promotions
3.09 Trade -In
3.10 Americans With Disabilities Act
3.11 Energy Star Compliant
3.12 Reserved
3.13 Purchase Orders
3.14 Packaging
3.15 Manufacturer's Name and Approved Equivalents
3.16 Inspection.at Contractor's Site
3.17 Safety Standards
3.18 Literature
3.19 Transportation and Delivery
3.20 Installation
3.21 Inspection and Acceptance
3.22 Title to Deliverables
3.23 Software License Grant
3.24 Invoicing and Payment
3.25 Taxes
3.26 Customer's Default
3.27 Annual Appropriations
3.28 Surcharge Fee and Summary of Total Sales
3.29 Governmental Restrictions
3.30 Compliance with Laws
3.31 Lobbying and Integrity
3.32 Indemnification
3.33 Performance Bond
3.34 Suspension of Work
3.35 Termination for Convenience
3.36 Termination for Cause
3.37 Force Majeure, Notice of Delay, and No Damages for Delay
3.38 Equitable Adjustment
3.39 Scope Changes
3.40 Renewal
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3.41 Advertising
3.42 Assignment
3.43 Dispute Resolution
3.44 Employees, Subcontractors, and Agents
3.45 Security and Confidentiality
3.46 Independent Contractor Status of Contractor
3.47 Insurance Requirements
3.48 Service
3.49 Warranty
3.50 Warranty of Authority
3.51 Warranty of Ability to Perform
3.52 Year 2000 Compliance Warranty
3.53 Warranty of No Hardstop/Passive License Monitoring
3.54 Notice
3.55 Leases and Installment Purchases
3.56 Prison Rehabilitative Industries and Diversified Enterprises, Inc. (PRIDE)
3.57 Products Available from the Blind or Other Handicapped
3.58 Modification of Terms
3.59 Waiver
3.60 Execution in Counterparts
3.61 Severability
3.01 Definitions:
The term "bid" means the offer extended to the Department in response to this solicitation. The
forms to accompany the bid are included in section 4,0 of these solicitation documents.
"Contract" means the legally enforceable agreement, if any, which results from this solicitation.
The parties to the Contract will be the Department and Contractors. The Contract shall be
reduced to writing substantially in the form included in section 4.0 of these solicitation
documents,
"Contract Specialist" means the State Purchasing employee who is primarily responsible for
administration of the Contract. The Contract Specialist is identified in the Instructions to
Bidders, and the Department shall conspicuously post contact information on its Internet web
page associated with the Contract. The Department may appoint a different Contract Specialist,
which shall not constitute an amendment to the Contract, by updating the posted contact
information and sending notice to Contractor. Any communication to the Department by
Contractors, by State Customer contract managers or contract administrators, or by other
Customer purchasing officials, shall be addressed to the Contract Specialist.
"Contractor" means a successful bidder, which, along with the Department, will enter into the
Contract. The Department anticipates making a multiple award, but for sake of convenience the
solicitation documents use the singular form of this term. If a Contractor is a manufacturer, its
certified dealers and reseIlers may also furnish products under the Contract; in choosing to do so,
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the dealers and resellers agree to honor the Contract and the term "Contractor" shall be deemed
to refer to them. Unless awarded the Contract as a direct bidder, however, dealers and resellers
are not parties to the Contract, and the Contractor that certifies them shall be responsible for their
actions and omissions.
"Customer" means the State agencies and other eligible users that will order products directly
from the Contractor under the Contract. By ordering products under the Contract, the Customer
agrees to its terms. Customers are not, however, parties to the Contract.
"Department" means the Florida Department of Management Services. The Department will be
a party to the . Contract. "State Purchasing," a division within the Department's Support
Program, is responsible for administration of this solicitation and will be responsible for day-to-
day administration of the Contract. State Purchasing may be reached at 4050 Esplanade Way,
Suite 360, Tallahassee, FL 32399-0950, (850) 487-4634, or via links posted at
http://www.myflorida.comlmvflorida/business/index.html. The Department reserves the right to
contract with a third -party service provider to assume responsibility for administration of the
Contract.
"Product" means any deliverable under the Contract, which may include commodities, services,
technology or software.
"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, or
other authorized means).
"State" means the State of Florida and its agencies.
3.02 Eligible Customers: Section 287.056 of the Florida Statutes governs agencies' use of the
Contract. Customers participating in the Contract do so according to the following terms: (1)
non -State Customers assume and bear complete responsibility with regard to performance of any
contractual obligation or term; (2) breach of a Contract term by any particular Customer shall not
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 Contractor's obligations to non -breaching
Customers or the Department; (3) the State shall not be liable for any breach by a non -State
Customer; (4) each non -State Customer and the Contractor guarantee to save the State and its
officers, agents, and employees harmless from Liability that may be or is imposed by their failure
to perform in accordance with their obligations under the Contract.
3.03 Requests for Quotes: Unlike most products, technology products historically decrease in
price over time. Therefore, it is in the Customer's best interest not to set the price for any
particular technology product until the date the product is purchased. For all purchases of $2,500
or greater, CUSTOMERS ARE RESPONSIBLE FOR COMPETITIVELY SETTING THE
PRICE FOR EACH PARTICULAR ORDER, AND THEY SHALL DO SO BY
INITIATING A REQUEST FOR QUOTES ("RFQ"), which is an oral or written request for
written pricing or service information from a Contractor for products available under the
Contract from that Contractor. Customers shall create and maintain written records of oral and
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written requests, as well as records of quotes received. Quotes shall be in writing but otherwise
informal, and need not be received or posted publicly or at a particular time or place. A
Customer shall initiate a sufficient number of requests to obtain a minimum of three quotes,
should look for a Contractor willing to beat its own (or a competitor's) currently authorized
Contract price, and shall place its purchase order with the Contractor quoting the lowest price,
unless the Customer documents in writing that the lowest price quote would not result in best
value (for example, lowest price is for refurbished or remanufactured product).
3.04 Posting and Revision of Authorized Product and Price List: Every Contractor shall
maintain on the Internet a list of the products it is authorized to sell under the Contract. The list
shall clearly indicate the ceiling price for each product, expressed either as a single price or as a
percentage savings off the "benchmark" price. On the Ordering Instructions form submitted with
the bid, bidders shall note the proposed Universal Resource Locator (URL) for this list. Posting
of the list in a form easily accessible to the Department and Customers shall be a condition
precedent to Contractor's right to payment under the Contract. The Department, in its sole
discretion, may maintain Contractor's authorized list or provide electronic links to it.
Regardless of the number of links to the list, Contractor shall ensure that Customers are able to
access one, and only one, version of the authorized list. The authorized list shall include, either
directly or via electronic link, the following: Contract number; contact person; part or product
numbers and descriptions; ordering information; and pricing information.
Contractor's initial authorized list shall be substantially identical to the "benchmark" list submitted
with the bid and used in making the award, or that portion of it bid by Contractor. Contractor shall
not make the list generally available or accept any orders off of it until the Department approves the
list. Contractor may thereafter amend the list to reflect product line and price changes, subject to the
following restrictions.
• For price changes, a Contractor shall only decrease, and shall never increase, the prices
offered initially (stated differently, a Contractor may increase, but never decrease, its
percentage discount). Posted price reductions shall take effect immediately and be applied
to unshipped and subsequent orders. CONTRACTORS ARE FREE TO OFFER
GREATER DISCOUNTS FOR INDIVIDUAL TRANSACTIONS, AND
CUSTOMERS ARE REQUIRED TO SEEK THEM AND TO EXPLORE
WHETHER OTHER CONTRACTORS AUTHORIZED FOR THE PRODUCT
CATEGORY OFFER BETTER DISCOUNTS THROUGH THE RFQ PROCESS.
• At least two business days before making any changes to the posted authorized list —
whether to products, to prices, or otherwise — a Contractor shall notify the Contract
Specialist by e-mail of its intent to make a change and describe the proposed change. The
Department may, in its sole discretion, prohibit any requested change or direct a Contractor
to undo any change already made. In addition, the Department may direct rescission of any
purchase order entered into on the basis of an unauthorized product and price list.
• Changes to the authorized list or to related information (for example, ordering information)
shall not be deemed Contract amendments.
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• On a quarterly basis, or more frequently if directed in writing by the Contract Specialist,
Contractor shall submit written certification of changes made to its authorized list. The
certification shall be substantially in the form included in Section 4 of the solicitation
documents, "Certification of Changes to Authorized Product and Price List." Failure to
submit the form in a timely manner shall constitute grounds for terminating the Contract.
Falsification of any information on the form shall subject Contractor to civil liability and
criminal prosecution.
• The Department reserves the right to revise these restrictions in conjunction with
implementation of an on-line procurement system.
3.05 Product Version: Purchase orders shall be deemed to reference a manufacturer's most
recently released 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.
3.06 Quantity :Discounts: Contractors are urged to offer additional discounts for one time
delivery of large single orders of any assortment of items. 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,
3.07 Best Pricins Offer: During the Contract term, if the Contractor sells substantially the same
or a smaller quantity of a product outside the Contract, but upon the same or similar terms of the
Contract, at a lower price, then at the discretion of the Department the price under the Contract
shall be immediately reduced to the lower price.
3.08 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 or for a specific Customer group (e.g., K-12, Higher
Education, State Customers, etc.). A Contractor shall submit to the Contract Specialist
documentation identifying the proposed (1) starting and ending dates of the promotion or (2)
specific Customers to which the promotion is addressed and (3) products involved and (4)
promotional prices compared to then -authorized prices. Promotional prices shall be available to
all Customers. Upon approval, the Contractor shall conspicuously post notice of the promotion
with its authorized product list.
3.09 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 Office of the State Comptroller and to the agency property custodian.
3.10 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.
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3.11 Energy Star Compliant: The Federal Environmental Protection Agency encourages the
manufacture of energy efficient computer hardware, and the State supports this initiative. The
Department prefers that all products offered under the Contract be Energy Star compliant and bear
the EPA Energy Star Logo. Customers should seek to reduce the total cost of equipment ownership
and operation, and they should consider the purchase of Energy Star compliant equipment if it
meets their performance needs.
3.12 Reserved
3.13 Purchase Orders: A Contractor shall not deliver or furnish products until a Customer
transmits a purchase order. All purchase orders shall bear the Contract number, shall be placed
by the Customer directly with the Contractor, and shall be deemed to incorporate by reference
the Contract 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 (t) thereof. Even where not otherwise required,
CUSTOMERS ARE ENCOURAGED TO INCLUDE PROVISIONS THAT PROMOTE
GOOD CONTRACT MANAGEMENT PRACTICES AND ENABLE THE CUSTOMER
AND CONTRACTOR TO MONITOR AND ADJUST PERFORMANCE, for example,
provisions clearly defining the scope of the work, provisions dividing thg order into objectively
measured deliverables, provisions setting forth schedules for completion and (where appropriate)
liquidated damages for untimely completion, etc. State Customers shall designate a contract
manager and a contract administrator as required by subsections 287.057(14) and (15) of the
Florida Statutes. The Department reserves the right to revise this section in conjunction with
implementation of an on-line procurement system.
3.14 Packaging: Tangible 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 extra charge for packing materials, cases, or other types of
containers. All containers and packaging shall become and remain Customer's property.
3.15 Manufacturer's Name and Approved Equivalents: Unless otherwise specified, any
manufacturers' names, trade names, brand names, information and/or catalog numbers listed in a
specification are descriptive, not restrictive. With the Department's prior approval, the
Contractor may offer any product that meets or exceeds the applicable specifications. The
Contractor shall demonstrate comparability, including appropriate catalog materials, literature,
specifications, test data, etc. The Department shall determine in its sole discretion whether a
product is acceptable as an equivalent.
3.16 Inspection at Contractor's Site: The State reserves the right to inspect, at any reasonable
time with prior notice, the equipment or product or plant or other facilities of a Contractor or
prospective Contractor (bidder) to assess conformity with Contract requirements and to
determine whether they are adequate and suitable for proper and effective Contract performance.
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3.17 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
Iistings 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.
3.18 Literature: Upon request, the Contractor shall furnish Customers literature reasonably
related to the product offered, for example, user manuals, price schedules, catalogs, descriptive
brochures, etc.
3.19 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 to deliver or intentional delays shall be cause for Contract cancellation and
Contractor suspension.
3.20 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 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
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.
3.21 Inspection and Acceptance: Inspection and acceptance shall be at destination unless
otherwise provided. For Contractor -installed products, the date of acceptance is the date the
Customer accepts the product as installed and in good working order, as determined by any
appropriate acceptance testing, and the Customer shall certify in writing to the Contractor when
the product is accepted (if training or other post -installation services are included in the purchase
order, the acceptance shall be conditional). For Customer -installed products, the date of
acceptance shall be the delivery date. Until acceptance, risk of loss or damage shall remain with
the Contractor. The Contractor shall be responsible for filing, processing, and collecting all
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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 damage
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 of 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.
3.22 Title to Deliverables: For purposes of this section, a "product" is any deliverable furnished
under the Contract, including but not limited to (1) components of the hardware environment, (2)
printed materials, (3) third -party software, (4) programs and programming modifications,
customizations, tools, data, modules, and components, and (5) any tangible or intangible
properties embedded therein. A product is "existing" if it is a tangible or intangible licensed
product that exists before Contract work begins (the Contractor shall bear the burden of proving
that a product existed before work began). A product is "custom" if it is any product,
preliminary or final, that is created under the Contract for the Customer by the Contractor or its
employees, subcontractors, or agents.
For existing hardware products, tide to a hardware product shall pass to Customer upon
written acceptance. For existing software products, that are normally commercially distributed
on a license basis by the Contractor or other independent software proprietary owner (ISPO),
whether or not embedded in, delivered, or operating in conjunction with hardware or a custom
product, title shall remain with the Contractor or ISPO. Effective upon acceptance, such product
shall be licensed to the Customer in accordance with the Contractor or ISPO's standard licensed
agreement, provided, however, that the license agreement shall, at a minimum, (1) grant the
Customer a non-exclusive license to use, execute, reproduce, display, perform, adapt (unless the
Contractor demonstrates to the Customer before execution of a purchase order that adaptation
will violate existing agreements or law) and distribute the product to authorized users up to the
license capacity identified in the purchase order with all license rights necessary to effect the
Customer's stated purpose, and (2) recognize the State as the licensee, where the Customer is
part of the State. Where these rights are not otherwise covered by the ISPO's standard license
agreement, the Contractor shall obtain these rights at its sole expense. The Customer shall
reproduce all copyright notices and any other legend of ownership on any copies authorized
under this paragraph.
For custom products, effective upon creation the Contractor hereby conveys to the
Customer the sole and exclusive rights, title and interest in the product, including all trademark
and copyrights, and the Contractor shall take all necessary and appropriate steps to ensure that
the products are protected against unauthorized copying, reproduction, or marketing through the
Contractor or its employees, subcontractors, or agents; provided, that the Contractor may
otherwise use any related or underlying general knowledge, skills, ideas, concepts, techniques
and experience developed under the Contract. In the alternative to taking exclusive ownership
and title to such products, the Customer may elect, by providing written notice to the Contractor,
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to take a non-exclusive license to use, execute, reproduce, display, perform, and distribute the
product as described in the preceding paragraph.
3.23 Software License Grant: Where product is acquired on a licensed basis, the following
terms shall constitute the license grant,
Scope: Licensee is granted a non-exclusive license to use, execute, reproduce, display,
perform, or merge the product within its business enterprise in the United States up to the
maximum licensed capacity identified on the purchase order. The product may be accessed,
used, executed, reproduced, displayed, or performed up to the capacity measured by the
applicable licensing unit identified an the purchase order (Le., payroll size, number of
employees, CPU, MIPS, MSU, concurrent user, workstation, etc.). Licensee shall have the right
to use and distribute modifications and customizations of the product to and for use by any
Customers otherwise licensed to use the product, provided that any modifications, however
extensive, shall not diminish licensor's proprietary title or interest. This paragraph grants no
license, right, or interest in any trademark, trade name, or service mark.
Term: The license term shall begin the date the product is accepted. Where a license
involves licensee's right to copy a previously licensed and accepted master copy, the term shall
begin the date the purchase order is executed.
Documentation: Upon request, the Contractor shall deliver to the licensee at the
Contractor's expense (1) one master electronic copy and one hard copy of product
documentation or (2) one master electronic copy and hard copies of the product documentation
by type of license in the following amounts, unless otherwise agreed: for individual/named user,
one copy per licensee; for concurrent users, ten copies per site; for processing capacity, ten
copies per site. The master electronic copy shall be in either CD-ROM or diskette format and
usable without conversion (for example, if a unit has only a 31/2" disk drive, software shall be
provided on 31/2" diskettes). The Contractor hereby grants the Customer a perpetual license right
to make, reproduce (including downloading electronic copies), and distribute, either
electronically or otherwise, copies of product documentation as necessary to enjoy full use of the
product in accordance with the terms of the license.
Technical Support and Maintenance: Licensee may elect the technical support and
maintenance ("maintenance") set forth in the Contract by giving written notice to the Contractor
any time during the Contract term, Maintenance shall include, at a minimum, (I) providing error
corrections, patches, updates, revisions, fixes, upgrades, and new releases to licensee, and (2)
Help Desk assistance accessible via toll -free or local telephone call or on-line. The Contractor
shall maintain the products so as to provide Iicensee with the ability to use the products in
accordance with the product documentation, without significant functional downtime to ongoing
operations during the maintenance term, The Customer shall not be required to purchase
maintenance for use of the product, and the Customer's license shall not be invalidated for
refusal to purchase maintenance. The maintenance term(s) and any renewals are independent of
the Contract term. The Customer may discontinue maintenance at the end of any current
maintenance term upon notice to the Contractor; provided, the term shall not automatically
renew. If the Customer does not initially acquire, or discontinues, maintenance, the Customer
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may at any later time reinstate maintenance without any penalties or other charges, by paying the
Contractor the amount, if any, that would have been due under the Contract for the period that
maintenance had lapsed, or for twelve months, whichever is less.
Transfers: Licensee's operations may be altered, expanded, or diminished. Licenses may
be transferred or combined for use at an alternative or consolidated site not originally specified
in the license, including transfers between agencies. Contractor approval is not required for such
transfers, but licensee shall give prior written notice to the Contractor. There shall be no
additional license or other transfer fees due, provided that (1) the maximum capacity of the
consolidated machine is equal to the combined individual license capacity of all licenses running
at the consolidated or transferred site (e.g., named users, seats, or MIPS) or (2) if the maximum
capacity of the consolidated machine is greater than the individual license capacity being
transferred, a logical or physical partition or other means of restricting access will be maintained
within the computer system to restrict use and access to the product to that unit of licensed
capacity solely dedicated to beneficial use for licensee. If the maximum capacity of the
consolidated machine is greater than the combined individual license capacity of all licenses
running at the consolidated or transferred site, and a logical or physical partition or other means
of restricting use is not available, the fees due the Contractor shall not exceed the fees otherwise
payable for a single license for the upgrade capacity.
Restricted Use by Third Parties: Outsourcers, facilities management, service bureaus, or
other services retained by licensee shall have the right to use the product to maintain licensee's
operations, including data processing, provided that (1) licensee gives notice to the Contractor of
such third party, site of intended use of the product, and means of access, (2) the third party has
executed, or agrees to execute, the product manufacturer's standard nondisclosure or restricted
use agreement, which agreement shall be accepted by the Contractor, and (3) the third party shall
maintain a logical or physical partition within its computer system to restrict access to the
program to that portion solely dedicated to beneficial use for licensee. Licensee shall not be
liable for any third party's compliance or noncompliance with the terms of the nondisclosure
agreement, nor shall the nondisclosure agreement create or impose any liabilities on the State or
the licensee. Any third party with whom a licensee has a relationship for a State function or
business activity shall have the temporary right to use product (e.g., Java applets), provided that
such use shall be limited to the period during which the third party is using the product for the
function or activity.
Archival Backup: Licensee may use and copy the product and related documentation in
connection with reproducing a reasonable number of copies for archival backup and disaster
recovery procedures.
Source Code Escrow: If either the product manufacturer/developer or the Contractor
offers source code or source code escrow to any other commercial customer, or if either entity
seeks bankruptcy protection, then the Contractor shall either (1) provide licensee with source
code for the product, (2) place the source code in a third -party escrow arrangement with a
designated escrow agent, which shall be identified to the Department, and which shall be
directed to release the deposited source code in accordance with a standard escrow agreement
acceptable to the Department, or (3) certify to the Department that the product
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manufacturer/developer has named the State, acting by and through the Department, and the
licensee, as named beneficiaries of an established escrow arrangement with its designated escrow
agent, which shall be identified to the Department and licensee, and which shall be directed to
release the deposited source code in accordance with the terms of escrow. Source code, as well
as any corrections or enhancements, shall be updated for each new release of the product in the
same manner as provided above and such updated shall be certified in writing to the Department.
The Contractor shall identify the escrow agent upon commencement of the Contract term and
shall certify annually that the escrow remains in effect in compliance with the terms of this
paragraph. The State may release the source code to licensees under the Contract which have
licensed product or obtained services, and which may use the copy of the source code to
maintain the product.
Confidentiality: The product is a trade secret, copyrighted and propriety product.
Licensee and its employees shall not disclose or otherwise distribute or reproduce any product to
anyone other than as authorized. under the Contract. Licensee shall not remove or destroy any of
the Contractor's proprietary markings.
Restricted Use: Except as expressly authorized by the terms of license, licensee shall not:
copy the product; cause or permit reverse compilation or reverse assembly of the product or any
portion; or export the product in violation of any U.S. Department of Commerce export
administration regulations.
Proof of License: The Contractor shall provide to each licensee that places a purchase
order either (1) the product developer's certified license confirmation certificates in the name of
the licensee or (2) a written confirmation from the proprietary owner accepting the product
invoice as a proof of license. The Contractor shall submit a sample certificate, or alternative
confirmation, which shall be in a form acceptable to the licensee.
Audit of Licensed Usage: The Contractor may periodically audit, no more than annually
and at its expense, use of licensed product at any site where a copy resides provided that (1) the
Contractor gives licensee at least thirty days written advance notice, (2) the audit is conducted
during the licensee's normal business hours, (3) the audit is conducted by a State Inspector
General's office or, for non -State licensees, by an independent auditor chosen by mutual
agreement of the licensee and Contractor as follows: the Contractor shall recommend a minimum
of three auditing/accounting firms, from which the licensee shall select one; in no case shall the
Business Software Alliance, Software Publishers Association, or Federation Against Software
Theft be recommended by the Contractor or used, directly or indirectly, to conduct audits, (4) the
Contractor and licensee shall designate a representative who shall be entitled to participate, who
shall mutually agree on audit format, and who shall be entitled to copies of all reports, data, or
information obtained from the audit, and (5) if the audit shows that the licensee was not in
compliance, the licensee shall purchase additional licenses or capacities necessary to bring it into
compliance and shall pay for the unlicensed capacity at the Contract price then in effect or, if
none, then at the Contractor's U.S. commercial list price. Once such additional licenses and
capacities are purchased, licensee shall be deemed to have been in compliance retroactively, and
licensee shall have no further liability of any kind for the unauthorized use of the product.
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Bankruptcy: The Contract is subject to the terms of section 365(n) of the United States
Bankruptcy Code ("Code") if the licensor files a bankruptcy petition. Licensor's failure to
perform its continuing obligations shall constitute a material breach of the Contract excusing
performance by the licensee. Royalty payments for use of intellectual property shall be separate
from and independent of payments for performance of all other obligations under the Contract
(e.g., continuing development obligations, maintenance and support obligations, obligations to
provide updates, indemnity obligations, etc.). Upon request, the licensor shall furnish licensee
any intellectual property, as defined in the Code, and any embodiment of that intellectual
property held by the licensor. If licensee must hire third parties to perform support, maintenance,
or development tasks previously performed by licensor, the Iicensee may provide intellectual
property to such third parties without violating non -disclosure or exclusivity provisions.
3.24 Invoicing and Payment: Invoices shall contain the Contract number, purchase order
number, and the Contractor's SPURS vendor number. The State may require any other
information from the Contractor that the State deems necessary to verify any purchase order
placed under the Contract. At the Department's option, Contractors may be required to invoice
electronically pursuant to Department guidelines. 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. Time limits do not begin until the Contractor submits a properly completed invoice.
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 pl1 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.
3.25 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. Purchases by non -State Customers may
be subject to taxes, which shall be computed based on the purchase price and added to the
invoice submitted to such entity for payment.
3.26 Customer's Default: A Customer's breach of the terms of a particular order shall not be
deemed a breach of the Contract. If a Customer fails to make a payment to the Contractor for
products delivered or provided, accepted, and properly invoiced, within sixty days after approval
for payment, then the Contractor may, upon ten days advance written notice to both the
Department and Customer's purchasing official, suspend additional shipments of product or
provision of services to that specific Customer until such time as reasonable arrangements have
been made and assurances given by the Customer for current and future Contract payments.
Notwithstanding the foregoing, the Contractor shall, in writing and at least ten days before
declaring a Customer in breach of the terms of a particular order, notify both the Department and
Customer's purchasing official of the specific facts, circumstances and grounds upon which the
Contractor intends to declare a breach. If the Contractor's basis for declaring a breach is
determined, then or later, to be insufficient, then the Contractor's declaration of breach and
failure to service the Customer shall constitute a breach of the Contract by the Contractor and the
Department or Customer may thereafter seek any remedy available at law or equity.
45
3.27 Annual Appropriations: The State's performance and obligation to pay under the Contract
are contingent upon an annual appropriation by the Legislature.
3.28 Surcharge Fee and Summary of Total Sales: Pursuant to section 287.1345 of the Florida
Statutes, a surcharge fee of one percent (1.0%) is imposed on Contractor's sales under the
Contract. The fee shall be paid by the Contractor and must be included in prices bid and cannot
be added as a separate item. After receipt of payment from the Contract purchases, all
Contractor surcharge fees shall be payable to the Department no later than 15 days after the end
of each quarter. The Contractor shall note "surcharge fee" and the contract number on a check
and remit it to:
Florida Department of Management Services
P.O. Box 5438
Tallahassee, FL 32314-5438
At the end of each calendar quarter, the Contractor shall complete and submit to State Purchasing
the Vendor User Fee Report form (FUR 7073C) included in section 4.0 of these solicitation
documents. By. submission of these reports and corresponding Contractor surcharge deposits,
Contractor is certifying their correctness. All such reports and fee deposits shall be subject to
audit by the State. Contractors shall be responsible for reporting sales and paying user fees
resulting from sales made by authorized resellers. The Department reserves. the right to revise
collection and reporting requirements in conjunction with implementation of an on-line
procurement system.
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
surcharge fees. CONTRACTORS DELINQUENT IN PAYING USER FEES MAY BE
EXCLUDED FROM BIDDING ON DEPARTMENT CONTRACTS.
3.29 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
Department in writing, indicating the specific restriction. The Department reserves the right and
the complete discretion to accept any such alteration or to cancel the Contract at no further
expense to the Department.
3.30 Compliance with Laws: The Contractor shall comply with all laws, rules, codes,
ordinances, and licensing requirements that are applicable to the conduct of its business,
including those of federal, State, and local agencies having jurisdiction and authority. By way of
non -exhaustive example, Chapter 287 of the Florida Statutes and Chapter 60A-1 of the Florida
Administrative Code govern the Contract. By way of further non -exhaustive example, the
Contractor shall comply with section 247A(e) of the Immigration and Nationalization Act, the
Americans with Disabilities Act, and all prohibitions against discrimination on the basis of race,
religion, sex, creed, national origin, handicap, marital status, or veteran's status. Violation of
such laws shall be grounds for Contract termination.
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3.31 Lobbying and Integrity: Pursuant to section 216.347 of the Florida Statutes, the Contractor
may not expend any State funds for the purpose of lobbying the Legislature, the judicial branch,
or a state agency. In addition, 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 Department'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 Ionger of (1)
three years after the expiration of the Contract or (2) the period required by the General Records
Schedules maintained by the Florida Department of State (available at:
http:I/dlis.dos.state.f7.us/barmlgenschedules/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.
3.32 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 that the State or Customer shall give the Contractor (I) 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 an infringement action without the Contractor's prior written
consent, which shall not be unreasonably withheld. 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
47
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. Except as specified in the
foregoing portions of this section, for all other claims against the Contractor under any individual
purchase order, and regardless of the basis on which the claim is made, the Contractor's liability
under a purchase order for direct damages shall be the greater of $100,000, the dollar amount of
the purchase order, or two times the charges rendered by the Contractor under the purchase
order. Unless otherwise specifically enumerated in the Contract or in the purchase order, no
party shall be liable to another for special, indirect, or consequential damages, including lost data
or records (unless the 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 Iike 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.
3.33 Performance Bond: Customers may require the Contractor to furnish without additional
cost a performance bond or negotiable irrevocable letter of credit or other form of security for the
faithful performance of work under the Contract. Such requirement shall be set forth in the
purchase order.
3,34 Suspension of Work: The Department may in its sole discretion suspend any or all
activities under the Contract, at any time, when in the best interests of the State to do so. The
Department shall provide the Contractor written notice outlining the particulars of suspension.
Examples of the reason for suspension include, but are not limited to, budgetary constraints,
declaration of emergency, or other such circumstances. After receiving a suspension notice, the
Contractor shall comply with the notice and shall not accept any purchase orders. Within ninety
days, or any longer period agreed to by the Contractor, the Department shall either (1) issue a
notice authorizing resumption of work, at which time activity shall resume, or (2) terminate the
Contract. Suspension of work shall not entitle the Contractor to any additional compensation.
3.35 Termination for Convenience: The Department, by written notice to the Contractor, may
terminate the Contract in whole or in part when the Department determines in its sole discretion
that it is in the State's interest to do so. The Contractor shall not furnish any goods or perform
any services after it receives the notice of termination, except as necessary to complete the
continued portion of the Contract, if any. The Contractor shall not be entitled to recover any
cancellation charges or lost profits.
3.36 Termination for Cause: The Department may terminate the Contract if the Contractor
fails to (1) deliver the supplies or perform the services within the time specified in the Contract
or any extension, (2) maintain adequate progress, thus endangering performance of the Contract,
(3) honor any term of the Contract, or (4) abide by any statutory, regulatory, or licensing
requirement. Rule 60A-1.006(3), Florida Administrative Code, governs the procedure and
48
consequences of default. The Contractor shall continue work on any work not terminated.
Except for defaults of subcontractors at any tier, the Contractor shall not be liable for any excess
costs if the failure to perform the Contract arises from events completely beyond the control, and
without the fault or negligence, of the Contractor. If the failure to perform is caused by the
default of a subcontractor at any tier, and if the cause of the default is completely beyond the
control of both the Contractor and the subcontractor, and without the fault or negligence of
either, the Contractor shall not be liable for any excess costs for failure to perform, unless the
subcontracted services or supplies were obtainable from other sources in sufficient time for the
Contractor to meet the required delivery schedule. If, after termination, it is determined that the
Contractor was not in default, or that the default was excusable, the rights and obligations of the
parties shall be the same as if the termination had been issued for the convenience of the
Department. The rights and remedies of the Department in this clause are in addition to any
other rights and remedies provided by law or under the Contract.
3.37 Force Majeure, Notice of Delay, and No Damages for Delay: The Contractor shall not
be responsible for delay resulting from its failure to perform if neither the fault nor the
negligence of the Contractor or its employees or agents contributed to the delay and the delay is
due directly to acts of God, wars, acts of public enemies, strikes, fires, floods, or other similar
cause wholly beyond the Contractor's control, or for any of the : foregoing that' affect
subcontractors or suppliers if no alternate source of supply is available to the Contractor. In case
of any delay the Contractor believes is excusable, the Contractor shall notify the Customer in
writing of the delay or potential delay and describe the cause of the delay either (1) within ten
(10) days after the cause that creates or will create the delay first arose, if the Contractor could
reasonably foresee that a delay could occur as a result, or (2) if delay is not reasonably
foreseeable, within five (5) days after the date the Contractor first had reason to believe that a
delay could result. . THE FOREGOING SHALL CONSTITUTE THE CONTRACTOR'S
SOLE REMEDY OR EXCUSE WITH RESPECT TO DELAY. Providing notice in strict
accordance with this paragraph is a condition precedent to such remedy. No claim for damages,
other than for an extension of time, shall be asserted against the Customer or the Department,
The Contractor shall not be entitled to an increase in the Contract price or payment of any kind
from the Customer or Department for direct, indirect, consequential, impact or other costs,
expenses or damages, including but not limited to costs of acceleration or inefficiency, arising
because of delay, disruption, interference, or hindrance from any cause whatsoever. If
performance is suspended or delayed, in whole or in part, due to any of the causes described in
this paragraph, after the causes have ceased to exist the Contractor shall perform at no increased
cost, unless the Department determines, in its sole discretion, that the delay will significantly
impair the value of the Contract to the State or to Customers, in which case the Department may
(1) accept allocated performance or deliveries from the Contractor, provided that the Contractor
grants preferential treatment to Customers with respect to products subjected to allocation,
and/or (2) purchase from other sources (without recourse to and by the Contractor for the related
costs and expenses) to replace all or part of the products that are the subject of the delay, which
purchases may be deducted from the Contract quantity, or (3) terminate the Contract in whole or
in part.
3.38 Equitable Adjustment: The Department may, in its sole discretion, make an equitable
adjustment in the Contract terms and/or pricing if pricing or availability of supply is affected by
49
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.
3.39 Scope Chances: The Department may unilaterally require, by written order, changes
altering, adding to, or deducting from the Contract specifications, provided that such changes are
within the general scope of the Contract. The Department may make an equitable adjustment in
the Contract price or delivery date if the change affects the cost or time of performance. Such
equitable adjustments require the written consent of the Contractor, which shall not be
unreasonably withheld. If unusual quantity requirements arise, the Department may solicit
separate bids to satisfy them.
3.40 Renewal: Subject to Chapter 287 of the Florida Statutes, and upon mutual agreement, the
Department and the Contractor may renew the Contract, in whole or in part. Any renewal shall
be in writing and signed by both parties.
3.41 Advertising: The Contractor shall not publicly disseminate any information concerning the
Contract without prior written approval from the Department, .including, but not limited to
mentioning the Contract in a press release or other promotional material, identifying the
Department or the State as a reference, or otherwise linking the Contractor's name and either a
description of the Contract or the name of the State, the Department, or any Customer in any
material published, either in print or electronically, to any entity that is not a party to Contract,
except potential or actual authorized distributors, dealers, resellers, or service representative.
3.42 Assignment: The Contractor shall not sell, assign or transfer any of its rights, duties or
obligations under the Contract, or under any purchase order issued pursuant to the Contract,
without the prior written consent of the Department; provided, the Contractor assigns to the State
any and all claims it has with respect to the Contract under the antitrust laws of the United States
and the State. The Department may assign the Contract with prior written notice to Contractor of
its intent to do so.
3.43 Dispute Resolution: Any dispute concerning performance of the Contract shall be decided
by the Contract Specialist, who shall reduce the decision to writing and serve a copy on the
Contractor and, if appropriate, the Customer. The decision of Contract Specialist shall be final
and conclusive unless within ten (10) days from the date of receipt, the Contractor files with the
Department a petition for administrative hearing. The Department's decision on the petition
shall be final, subject to the Contractor's right to review pursuant to Chapter 120 of the Florida
Statutes. Without limiting the foregoing, the exclusive venue of any legal or equitable action
that arises out of or relates to the Contract shall be the appropriate state court in Leon County,
Florida; in any such action, Florida law shall apply, the Contractor waives any right to jury trial
that it may have, and the prevailing party shall be awarded reasonable costs incurred, including
attorneys' fees and costs on appeal.
50
3.44 Employees, Subcontractors, and Agents: All Contractor employees, subcontractors, or
agents performing work under the Contract shall be properly trained technicians who meet or
exceed any specified training qualifications. Upon request, Contractor shall furnish a copy of
technical certification or other proof of qualification. All employees, subcontractors, or agents
performing work under the Contract must comply with all security and administrative
requirements of the Customer. The State may conduct, and the Contractor shall cooperate in, a
security background check or otherwise assess any employee, subcontractor, or agent furnished
by the Contractor. The State may refuse access to, or require replacement of, any personnel for
cause, including, but not limited to, technical or training qualifications, quality of work, change
in security status, or non-compliance with a Customer's security or other requirements. Such
approval shall not relieve the Contractor of its obligation to perform all work in compliance with
the Contract. The State may reject and bar from any facility for cause any of the Contractor's
employees, subcontractors, or agents.
3.45 Security and Confidentiality: The Contractor shall comply fully with all security
procedures of the State and Customer in performance of the Contract. The Contractor shall not
divulge to third parties any confidential information obtained by the Contractor or its agents,
distributors, resellers, subcontractors, officers or employees in the course of performing Contract
work, including, but not Iimited to, security procedures, business operations information, or
commercial proprietary information in the possession of the State or Customer. The Contractor
shall not be required to keep confidential information or material that is publicly available
through no fault of the Contractor, material that the Contractor developed_ independently without
relying on the State's or Customer's confidential information, or material that is otherwise
obtainable under State law as a public record. To insure confidentiality, the Contractor shall take
appropriate steps as to its personnel, agents, and subcontractors. The warranties of this
paragraph shall survive the Contract.
3.46 Independent Contractor Status of Contractor: The Contractor, together with its agents,
distributors, resellers, subcontractors, officers and employees, shall have and always retain under
the Contract the legal status of an independent contractor, and in no manner shall they be deemed
employees of the State or Customer or deemed to be entitled to any benefits associated with such
employment. During the term of the Contract, Contractor shall maintain at its sole expense those
benefits to which its employees would otherwise be entitled to by law, including health benefits,
and all necessary insurance for its employees, including workers' compensation, disability, and
unemployment insurance, and provide Customers with certification of such insurance upon
request. The Contractor remains responsible for all applicable federal, state, and local taxes, and
all FICA contributions.
3.47 Insurance Requirements: During the Contract term, the Contractor at its sole expense shall
provide commercial insurance of such a type and with such terms and limits as may be reasonably
associated with the Contract, which, as a minimum, shall be: workers' compensation and
employer's liability insurance per Florida statutory limits (currently $100,000 per accident,
$100,000 per person, and $500,000 policy aggregate) covering all employees engaged in any
Contract work; commercial general liability coverage on an occurrence basis in the minimum
amount of $500,000 (defense cost shall be in excess of the limit of liability), naming the State as an
additional insured; and automobile liability insurance covering all vehicles, owned or otherwise,
51
used in the Contract work, with minimum combined limits of $500,000, including hired and non -
owned liability, and $5,000 medical payment. Providing and maintaining adequate insurance
coverage is a material obligation of the Contractor and is of the essence of the Contract. Upon
request, the Contractor shall provide certificate of insurance. The Contract shall not limit the types
of insurance Contractor may desire to obtain or be required to obtain by law. The limits of coverage
under each policy maintained by the Contractor shall not be interpreted as limiting the Contractor's
liability and obligations under the Contract. All insurance policies shall be through insurers
authorized to write policies in Florida.
3.48 Service: If a Customer is unable to obtain service/warranty within the time specified, or if
difficulties are encountered in; obtaining service from the Contractor's designated service
location, the Customer shall notify the individual designated on the Contractor's ordering
instruction sheet, who shall then arrange and coordinate service by an alternate service dealer at
no additional cost to the Customer.
3.49 Warranty: Contractor warrants that all product furnished under the Contract shall be free
of defective material and workmanship, and shall otherwise perform in accordance with required
performance criteria, for a period of not less than one (1) year from date of acceptance.
Warranty repairs shall be completed within the time specified in any support level requirements.
If it is likely that the time for repairs will exceed the specified time, the Contractor shall provide
equivalent loaner equipment upon request by the Customer. Loaner equipment shall be provided
at no cost, including shipment to the Customer's location and return of loaner equipment to the
Contractor,
3.50 Warranty of Authority: Each person signing the Contract warrants that he or she is duly
authorized to do so and to bind the respective party to the Contract.
3.51 Warranty of Ability to Perform: The Contractor shall provide the Department, no later
than the time the Contractor returns a signed copy of the Contract, with proof of a Certificate of
Status from the Secretary of State, Division of Corporations, demonstrating that the Contractor is
in good standing and legally authorized to transact business in Florida. Failure to submit this
documentation shall be sufficient grounds for withholding payment under the Contract and cause
for termination. The Contractor warrants that, to the best of its knowledge, there is no pending
or threatened action, proceeding, or investigation, or any other legal or financial condition, that
would in any way prohibit, restrain, or diminish the Contractor's ability to satisfy its Contract
obligations. The Contractor warrants that neither it nor any affiliate is currently on the convicted
vendor list maintained pursuant to section 287.133 of the Florida Statutes, or on any similar list
maintained by any other state or the federal government. The Contractor shall immediately
notify the Department in writing if its ability to perform is compromised in any manner during
the term of the Contract.
3.52 Year 2000 Compliance Warranty: All products furnished under the Contract shall be
Year 2000 compliant, that is, able to accurately process date data from, into, and between the
twentieth and twenty-first centuries, including leap year calculations. Resellers may provide a
"pass through warranty" from the manufacturer/software developer, which meets all the warranty
52
requirements specified by the State, and which shall include all other warranties provided by the
manufacturer or software developer. Reseller shall be responsible for warranty assurance,
assistance, enforcement and any other actions or remediation, required to satisfy warranty
requirements.
3.53 Warranty of No Hardstop/Passive License Monitoring: Unless a Customer is
specifically and conspicuously advised to the contrary in writing at the time of order and before
product acceptance, the Contractor hereby warrants and represents that the product and upgrades
do not and will not contain any computer code that would disable the product or upgrades or
impair in any way operation based on the elapsing of time, exceeding an authorized number of
copies, advancement to a particular date or other numeral, or other similar self-destruct
mechanisms (sometimes called "time bombs," "time locks," or "drop dead" devices) or that
would permit the Contractor to access the product to cause such disablement or impairment
(sometimes called a "trap door" device). The Contractor agrees that upon an alleged breach of
this provision, the Customer shall not have an adequate remedy at law, including monetary
damages, and that the Customer shall be entitled to seek a temporary restraining order,
injunction, or other form of equitable relief against the continuance of such breach, in addition to
any other remedies to which the Customer shall be entitled.
3.54 Notice: All notices required under the Contract shall be delivered by certified mail, return
receipt requested, by reputable air courier service, or by personal delivery. Notices to the
Department shall be delivered to the Contract Specialist identified in the Instructions to Bidders.
Notices to the Contractor shall be delivered to the person who signs' the Contract. Either
designated recipient may notify the other, in writing, if someone else is designated to receive
notice.
3.55 Leases and Installment Purchases: The State Comptroller's prior approval is required for
State agencies to enter into or to extend any lease or installment -purchase agreement in excess of
the Category Two amount established by section 287.017 of the Florida Statutes.
3.56 Prison Rehabilitative Industries and Diversified Enterprises, Inc. (PRIDE): To the
extent that a product is certified by or is available from PRIDE, and has been approved in
accordance with section 946.515(2) of the Florida Statutes, it is expressly understood and agreed
that any articles which are the subject of, or required to carry out, the Contract shall be purchased
from the corporation identified under Chapter 946 of the Florida Statutes (PRIDE) in the same
manner and under the same procedures set forth in section 946.515(2) and (4) of the Florida
Statutes; and for purposes of the Contract the person, firm, or other business entity carrying out
the provisions of the Contract shall be deemed to be substituted for the agency insofar as
dealings with such corporation are concerned. This provision is required by section 946.515(6)
of the Florida Statutes; additional information about PRIDE and the products it offers is available
at http://www.pridefl.com.
3.57 Products Available from the Blind or Other Handicapped: To the extent that a product
is included on the procurement list created and distributed pursuant to section 413.035(2),
Florida Statutes, it is expressly understood and agreed that any articles that are the subject of, or
required to carry out, this contract shall be purchased from a nonprofit agency for the Blind or
53
for the Severely Handicapped that is qualified pursuant to Chapter 413, Florida Statutes, in the
same manner and under the same procedures set forth in section 413.036(1) and (2), Florida
Statutes; and for purposes of this contract the person, firm, or other business entity carrying out
the provisions of this contract shall be deemed to be substituted for the State agency insofar as
dealings with such qualified nonprofit agency are concerned. This provision is required by
section 413.036(3) of the Florida Statutes; additional information about the designated nonprofit
agency and the products it offers is available at http://www.respectofflorida.org.
3.58 Modification of Terms: The Contract contains all the terms and conditions agreed upon by
the parties, which terms and conditions shall govern all transactions by Customer under the
Contract. The Contract may only be modified or amended upon mutual written agreement of the
Department and the Contractor. No oral agreements or representations shall be valid or binding
upon the Department, a Customer, or the Contractor. For individual purchase orders, however,
the Contractor may offer the Customer more advantageous pricing, payment, or other terms and
conditions than those set forth in the Contract. In such event, upon request the Contractor shall
furnish to the Department a copy of the better offer. The Department shall determine, in its sole
discretion, whether the offer, on- the whole, is in fact more advantageous. Any offer that is not
more advantageous, even if this determination is not made until after acceptance, shall be
voidable at the Customer's option, in which case the Contract terms and conditions shall govern.
Other than where terms are more advantageous for the Customer than those set forth in the
Contract, no alteration or modification of the Contract terms, including substitution of product,
shall be valid or binding against•the Customer unless authorized by the Department or specified
in the notice of award. The Contractor may not unilaterally modify the terms of the Contract by
affixing additional terms to product upon delivery (e.g., attachment or inclusion of standard
preprinted forms, product literature, "shrink wrap" terms accompanying or affixed to a product,
whether written or electronic) or by incorporating such terms onto the Contractor's order or
fiscal forms or other documents forwarded by the Contractor for payment. A Customer's
acceptance of product or processing of documentation on forms furnished by the Contractor for
approval or payment shall not constitute acceptance of the proposed modification to terms and
conditions.
3.59 Waiver: The delay or failure by the Department to exercise or enforce any of its rights
under this Contract shall not constitute or be deemed a waiver of the Department's right
thereafter to enforce those rights, nor shall any single or partial exercise of any such right
preclude any other or further exercise thereof or the exercise of any other right.
3.60 Execution in Counterparts: The Contract may be executed in counterparts, each of which
shall be an original and all of which shall constitute but one and the same instrument.
3.61 Severability: If a court deems any provision of the Contract void or unenforceable, that
provision shall be enforced only to the extent that it is not in violation of law or is not otherwise
unenforceable, and all other provisions shall remain in full force and effect.
54