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HomeMy WebLinkAboutgeneral conditionsGeneral Conditions Contents 3.01 Definitions 3.02 Eligible Users 3.03 Quantity Discounts 3.04 Best Pricing Offer 3.05 Sales Promotion 3.06 Authorized Product Categories 3.07 Purchase Order 3.08 Inspection at Contractor's Site 3.09 Literature 3.10 Invoicing and Payment 3.11 Taxes 3.12 Eligible User's Default 3.13 Annual Appropriations 3.14 Surcharge Fee and Summary of Total Sales 3.15 Governmental Restrictions 3.16 Compliance with Laws 3.17 Lobbying and Integrity 3.18 Indemnification 3.19 Performance Bond 3.20 Suspension of Work 3.21 Termination for Convenience 3.22 Termination for Cause 3.23 Force Majeure, Notice of Delay, and No Damages for Delay 3.24 Equitable Adjustment 3.25 Scope Changes 3.26 Renewal 3.27 Advertising 3.28 Assignment 3.29 Dispute Resolution 3.30 Employees, Subcontractors, and Agents 3.31 Security and Confidentiality 3.32 Independent Contractor Status of Contractor 3.33 Insurance Requirements 3.34 Warranty 3.35 Warranty of Authority 3.36 Warranty of Ability to Perform 3.37 Notice 3.38 Prison Rehabilitative Industries and Diversified Enterprises, Inc., (PRIDE) 3.39 Modification of Terms 3.40 Waiver 3.41 Execution in Counterparts 3.42 Severability 3.01 Definitions: The term "proposal" means the offer extended to the Department in response to this solicitation. The forms to accompany the proposal are included in section 4.0 of these solicitation documents. "Contract" means the legally enforceable agreement, if any, that 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 Supervisor" means the State Purchasing employee to whom proposers shall address any questions regarding the solicitation or award process. The Contract Supervisor shall be arbitrator on any dispute concerning performance on the Contract as specified in Section 3.29 of the General Conditions. "Contract Specialist" means the State Purchasing employee who is primarily responsible for administration of the Contract. The Department may appoint a different Contract Specialist, which shall not constitute an amendment to the Contract, by 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 proposer, which, along with the Department, will enter into the Contract. The Department anticipates making a multiple award, but for the sake of convenience the solicitation documents use the singular form of this term. "Eligible User" 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 Eligible User agrees to its terms. Eligible Users are not, however, parties to the Contract. "Employee Benefits" means benefits provided or supplied to public employees including, but not limited to, health insurance benefits (PPO and HMO), supplemental insurance benefits (dental, hospitalization, long term care, etc.), retirement benefits (defined benefit, defined contribution, deferred compensation), etc. "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.com/myflorida/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 Users: Section 287.056 of the Florida Statutes governs agencies' use of the Contract. Others may seek Department approval under section 287,042(2)(a) as an eligible user of the Contract. Eligible Users participating in the Contract do so according to the following terms: (1) non -State Eligible Users assume and bear complete responsibility with regard to performance of any contractual obligation or term; (2) breach of a Contract term by any particular Eligible User 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 Eligible Users or the Department; (3) the State shall not be liable for any breach by a non -State Eligible User; (4) each non -State Eligible User 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 Quantity Discounts: Contractors are urged to offer additional discounts for one time delivery of large single orders. Eligible Users should seek to negotiate additional price concessions on quantity purchases of any products offered under the Contract. State Customers shall document their files accordingly. 3.04 Best Pricing Offer: During the Contract term, the Contractor sells substantially the same or a small 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. 3.05 Sales Promotions: In addition to decreasing prices for the balance of the Contract term due to a change in market conditions, a Contractor may conduct sales promotions involving price reductions for a specified lesser period. A Contractor shall submit to the Contract Specialist documentation identifying the proposed (1) starting and ending dates of the promotion, (2) products involved, and (3) promotional prices compared to then -authorized prices. Promotional prices shall be available to all Customers. Upon approval, the Contractor shall provide conspicuous notice of the promotion. 3.06 Authorized Product Categories: Upon Contractor's written request, the Department may authorize the Contractor to furnish a product under other categories or subcategories identified in the solicitation documents. In considering Contractor's request, the Department shall apply substantially the same terms and conditions governing the initial solicitation. The Department's decision on the request shall be final and not subject to appeal of any kind. 3.07 Purchase Order: A contractor shall not deliver or furnish products until a Eligible User transmits a purchase order. All purchase orders shall bear the Contract number, shall be placed by the Eligible User 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 Eligible User. A purchase order for services within the ambit of section 287.058(1) of the Florida Statutes shall be deemed to incorporate by reference the requirements of subparagraphs (a) through (f) thereof. Even where not otherwise required, ELIGIBLE USERS 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 the 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. 3.08 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 (proposer) to assess conformity with Contract requirements and to determine whether they are adequate and suitable for proper and effective Contract performance. 3.09 Literature: Upon request, the Contractor shall furnish Eligible Users literature reasonably related to the product offered, for example, user manuals, price schedules, catalogs, descriptive brochures, etc. 3.10 Invoiciniz 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 Eligible User is responsible for all payments under the Contract. A Eligible User'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 Eligible Users. 3.11 Taxes: The State does not pay Federal excise or sales taxes on direct purchase 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 Eligible Users 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. 3.12 Eligible User's Default: A Eligible User's breach of the terms of a particular order shall not be deemed a breach of the Contract. If a Eligible User 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 Eligible User's purchasing official, suspend additional shipments or provision of product to that specific Eligible User until such time as reasonable arrangements have been made and assurances given by the Eligible User for current and future Contract payments. Notwithstanding the foregoing, the Contractor shall, in writing and at least ten days before declaring a Eligible User in breach of the terms of a particular order, notify both the Department and Eligible User'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 Eligible User shall constitute a breach of the Contract by the Contractor and the Department or Eligible User may thereafter seek any remedy available at law or equity. 3.13 Annual Appropriations: The State's performance and obligation to pay under the Contract are contingent upon an annual appropriation by the Legislature. 3.14 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 (PUR 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. 3.15 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. 3.16 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 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. 3.17 Lobbvin2 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 or a know 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 or 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 longer 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://dlis.dos.state.11.us/barm/genschedules/gensched.htm). The Contractor agrees to reimburse the State for the reasonable costs of investigation incurred by the Inspector General or other authorized State official for investigations of the Contractor's compliance with the terms of this or any other agreement between the Contractor and the State which results in the suspension or debarment of the Contractor. Such costs shall include, but shall not be limited to: salaries of investigators, including overtime; travel and lodging, expenses; and expert witness and documentary fees. The Contractor shall not be responsible for any cost of investigations that do not result in the Contractor's suspension or debarment. 3.18 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 Eligible Users, 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 Eligible User. Further, the Contractor shall fully indemnify, defend, and hold harmless the State and Eligible Users 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 (1) written notice of any action or threatened action, (2) the opportunity to take over and settle or defend any such action at Contractor's sole expense, and (3) assistance in defending the action at Contractor's sole expense. The Contractor shall not be liable for any cost, expense, or compromise incurred or made by the State or Eligible User 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 Eligible User the right to continue using the product or to modify it to become non -infringing. If the Contractor is not reasonably able to modify or otherwise secure the Eligible User the right to continue using the product, the Contractor shall remove the product and refund the Eligible User the amounts paid in excess of a reasonable rental for past use. The Eligible User 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 Eligible User may, in addition to other remedies available to them at law or equity and upon notice to the Contractor, retain such monies from amounts due Contractor as may be necessary to satisfy any claim for damages, penalties, costs and the like asserted by or against them. The State may set off any liability or other obligation of the Contractor or its affiliates to the State against any payments due the Contractor under any contract with the State, 3.19 Performance Bond: Eligible Users 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. 3.20 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. 3.21 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 product 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. 3.22 Termination for Cause: The Department may terminate the Contract if the Contractor fails to (1) deliver the product within the time specified in the Contract or purchase order or any extension, (2) maintain adequate progress, thus endangering performance of the Contract or purchase order, (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 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 products 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 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. 3.23 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 cost 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. 3.24 Equitable Adjustment: The Department may, in its sole discretion, make an equitable adjustment in the Contract terms and/or pricing if pricing or availability or supply is affected by extreme and unforeseen volatility in the marketplace, that is, by circumstances that satisfy all the following criteria: (1) the volatility is due to causes wholly beyond the Contractor's control, (2) the volatility affects the marketplace or industry, not just the particular Contract source of supply, (3) the effect on pricing or availability of supply is substantial, and (4) the volatility so affects the Contractor that continued performance of the Contract would result in a substantial loss. 3.25 Scope Changes: 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. 3.26 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. 3.27 Advertising: The Contractor shall not publicly disseminate any information concerning the Contract without prior approval from the Department, including, but not limited to mentioning the Contract in a press release or other promotional material, identifying the Department of 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. 3.28 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. 3.29 Dispute Resolution: Any dispute concerning performance of the Contract shall be decided by the Contract Supervisor, who shall reduce the decision to writing and serve a copy on the Contractor and, if appropriate, the Eligible User. The decision of Contract Supervisor 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. 3.30 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 Eligible User. The State may conduct, and the Contractor shall cooperate in, a security background check or otherwise access 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 Eligible User'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. 3.31 Security and Confidentiality: The Contractor shall comply fully with all security procedures of the State and Eligible User 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 limited to, security procedures, business operations information, or commercial proprietary information in the possession of the State or Eligible User. 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 Eligible User'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. 3.32 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 mariner shall they be deemed employees of the State or Eligible User 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 Eligible Users with certification of such insurance upon request. The Contractor remains responsible for all applicable federal, state, and local taxes, and all FICA contributions. 3.33 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 reasonable 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, 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 or eligible to write policies in Florida. 3.34 Warranty: Contractor warrants that all products/services 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 two (2) years from date of acceptance. 3.35 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. 3.36 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 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. 3.37 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 Supervisor identified in the Instructions to Proposers, 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. 3.38 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. The provision is required by section 946.515(6) of the Florida Statutes; additional information about Pride and the products it offers is available at httpa/www,pridefl.com. 3.39 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 Eligible User 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 Eligible User, or the Contractor. No alteration or modification of the Contract terms, including substitution of product, shall be valid or binding against the Eligible User 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 Eligible User'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, 3.40 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, not shall any single or partial exercise of any such right preclude any other or further exercise thereof or the exercise of any other right. 3.41 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. 3.42 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.