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HomeMy WebLinkAboutAmendment OneAMENDMENT ONE to the AGREEMENT between STATE OF FLORIDA DEPARTMENT OF MANAGEMENT SERVICES and ORACLE CORPORATION This Amendment One hereby amends the Software License and Services Agreement (the "Agreement") between the State of Florida Department of Management Services ("Customer") and Oracle Corporation ("Oracle") with an Effective Date of April 1, 2000 and the attached General Conditions and Special Conditions as follows: 1. Section 2.3, Verification: The third sentence of the second paragraph is hereby revised to read " If an audit reveals that Customer has underpaid fees to Oracle, Customer shall be invoiced for the underpaid fees; such fees shall be based on the Price List." 2. Section 3.2, Consulting and Training Services: Add to the end of the paragraph "Customer in its reasonable discretion may request that Oracle remove a particular consultant or training instructor who is providing services under this Agreement if Customer reasonably believes that such consultant or training instructor is not providing services as warranted and Oracle, after notice, has been unable to resolve performance issues relative to such consultant or training instructor. Customer shall pay the costs of familiarizing the replacement consultant or training instructor with the project and Customer agrees that time deadlines and cost estimates, if any, may require adjustment as a result of replacing a consultant or training instructor." 3. Section 3.3, Incidental Expenses, is revised as following: "For any on -site services requested by Customer, Customer shall reimburse Oracle for reasonable travel and out-of-pocket expenses incurred, subject to the limitations of Florida Statute 112.061, Per Diem and Travel Expenses of Public Officers, Employees, and Authorized Persons." 4. Section 4.2, Termination by Customer, is revised to include the following as the last sentence of the clause: "Except that in the event of such termination by the State for Oracle's material breach, not corrected within 30 days following written notice specifying the breach, Oracle shall be paid for all delivered services and allowable related expenses incurred prior to the date of termination" 4. Sectidn 5.2, Warranties and Disclaimers is revised to include the following sentence: "This does not override any other warranties contained in this contract.' 5. Section 6.1, Invoicing and Payment: The second sentence is hereby deleted and replaced by "All payments shall be subject to the Florida Prompt Payment Act." A fourth sentence is hereby included: "Customer, on a departmental basis, shall have blanket purchase orders in place, or issue individual purchase orders as required, on or before the Effective Date of the applicable Order Form." Section 6.2, Taxes, is revised as follows: "The fees Listed in this Agreement do not include taxes. Oracle acknowledges that Customer is exempt from paying taxes. Customer's tax exemption certificate shall be furnished with the relevant Order Form." 16 7. Section 7.1, Nondisclosure, is revised to add the following sentence: "Notwithstanding any terms to the contrary, disclosure of any confidential information received by the customer will be governed by the provisions of the Public Records Act, Chapter ] 19 Fla Statutes." 8. Section 7.2, Governing Law, is revised as follows: "This Agreement, and all matters arising out of or relating to this Agreement, shall be governed by the laws of the State of Florida." 9, Section 7.3, Jurisdiction. Delete this provision in its entirety. 10. Section 7.7, Waiver. The second sentence is revised as follows: "No action, regardless of form, arising out of this Agreement may be brought by either party after the applicable Florida Statute of Limitations has expired." 11. The following clauses are hereby added to the Agreement: Indemnity Oracle shall defend and indemnify the State of Florida against any liability, damage, or expense which the State of Florida may sustain, incur, or be required to pay, arising out of or in connection with claims for personal, bodily injury or wrongful death or damage to real or tangible personal property resulting from any negligent act or omission of an Oracle employee acting within the scope ofhis/her employment in the performance of Services under this Agreement while on the State of Florida premises; provided that: (a) (c) Oracle is notified in writing of any claim promptly after the State of Florida becomes aware of it; Oracle has sole cortrol of the defense of such claim and of all negotiations for its settlement or compromise; and The State of Florida gives Oracle information reasonably available and assistance necessary to facilitate the settlement for defense of such claims and, to the extent permitted by law, the State of Florida makes any defenses available to it available to Oracle, Oracle's indemnity obligation under this clause shall be reduced to the extent by which the liability, damage, or expense results from the willful misconduct or the negligent act or omission of an employee(s), agent(s), or subcontractor(s) of the State of Florida, or a third party(ies), For the purpose of this clause, tangible personal property shall not include software, documentation, data, or data files nor shall the indemnity obligation stated in this clause apply to damages incurred by use of any software. Oracle's indemnity obligation, except that for personal bodily injury or wrongful death, shall be limited to the amount of the applicable Order. Oracle shall be entitled to all remedies available under Florida Law. In the event of conflict between this indemnity provision and Florida Law, Florida Law will govern. Force Maieure Neither party shall be in default or otherwise liable for any delay in or failure of its performance under this Agreement where such delay or failure arises by reason of any act of God, or any government or governmental -4y, acts of the common enemy, the elements, strikes or labor disputes, or other similar or dissimilar cause and the control of such party. 17 10. With respect to the "Surcharge User Fee/Summary of Total Sales" clause of the Special Conditions, Oracle agrees to provide its Sales Summary quarterly, based on contract quarters, and to remit any applicable Surcharge Fee vrithin fifteen (15) days of the close of such quarter. All other terms and conditions remain unchanged. The State of Florida Invitation to Negotiate ("ITN") (PUR7105 Rev.6198) and The State of Florida Special Conditions are hereby incorporated into this Agreement. In the event of conflict between the aforementioned documents and this SLSA, the order of precedence for control shall be as follows: I . The State of Florida ITN, 2. The State of Florida Special Conditions and 3. The terms and conditions of the SLSA as amended. JOAN M. GEORGE VICE PRESIDENT, LEG ORACLE CORPORATION 18