HomeMy WebLinkAboutGeneral Contract ConditionsState of Florida
PUR 1000
General Contract Conditions
Contents
1. Definitions.
2. Purchase Orders.
3. Product Version.
4. Price Changes Applicable only to Term Contracts.
5. Additional Quantities.
6.Packaging.
7. Manufacturer's Name and Approved Equivalents.
8. Inspection at Contractor's Site.
9. Safety Standards.
10. Americans with Disabilities Act.
11. Literature.
12. Transportation and Delivery.
13. Installation.
14. Risk of Loss.
15. Transaction Fee.
16. Invoicing and Payment.
17. Taxes.
18. Governmental Restrictions.
19. Lobbying and Integrity.
20. Indemnification.
21. Limitation of Liability.
22. Suspension of Work.
23. Termination for Convenience.
24. Termination for Cause.
25, Force Majeure, Notice of Delay, and No Damages for Delay.
26. Scope Changes.
27. Renewal.
28. Advertising.
29. Assignment.
30. Dispute Resolution.
31. Employees, Subcontractors, and Agents.
32. Security and Confidentiality.
33. Independent Contractor Status of Contractor.
34. Insurance Requirements.
35. Warranty of Authority.
36. Warranty of Ability to Perform.
37. Notices,
38. Leases and Installment Purchases.
39. Prison Rehabilitative Industries and Diversified Enterprises, Inc. (PRIDE).
40. Products Available from the Blind or Other Handicapped.
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41. Modification of Terms.
42. Cooperative Purchasing.
43. Waiver.
44. Annual Appropriations.
45. Execution in Counterparts.
46. Severability.
1. Definitions. The definitions contained in s. 60A-11, F.A.C. shall apply to this agreement. The
following additional terms are also defined:
(a) "Contract" means the legally enforceable agreement that results from a successful solicitation. The
parties to the Contract will be the Customer and Contractor.
(b) "Customer" means the State agency or other entity that will order products directly from the
Contractor under the Contract.
(c) "Product" means any deliverable under the Contract, which may include commodities, services,
technology or software.
(d) "Purchase order" means the form or format a Customer uses to make a purchase under the Contract
(e.g., a formal written purchase order, electronic purchase order, procurement card, or other authorized
means).
2. Purchase Orders. A Contractor shall not deliver or furnish products until a Customer transmits a
purchase order. All purchase orders shall bear the Contract or solicitation number, shall be placed by
the Customer directly with the Contractor, and shall be deemed to incorporate by reference the
Contract and solicitation terms and conditions. Any discrepancy between the Contract terms and the
terms stated on the Contractor's order form, confirmation, or acknowledgement shall be resolved in
favor of terms most favorable to the Customer. A purchase order for services within the ambit of
section 287.058(1) of the Florida Statutes shall be deemed to incorporate by reference the requirements
of subparagraphs (a) through (f) thereof. Customers shall designate a contract manager and a contract
administrator as required by subsections 287.057(15) and (16) of the Florida Statutes.
3. Product Version. Purchase orders shall be deemed to reference a manufacturer's most recently
release model or version of the product at the time of the order, unless the Customer specifically
requests in writing an earlier model or version and the contractor is willing to provide such model or
version.
4. Price Changes Applicable only to Term Contracts. If this is a term contract for commodities or
services, the following provisions apply.
(a) Quantity Discounts. Contractors are urged to offer additional discounts for one time delivery of
large single orders. Customers should seek to negotiate additional price concessions on quantity
purchases of any products offered under the Contract. State Customers shall document their files
accordingly.
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(b) Best Pricing Offer. During the Contract term, if the Customer becomes aware of better pricing
offered by the Contractor for substantially the same or a smaller quantity of a product outside the
Contract, but upon the same or similar terms of the Contract, then at the discretion of the Customer the
price under the Contract shall be immediately reduced to the lower price.
(c) Sales Promotions. In addition to decreasing prices for the balance of the Contract term due to a
change in market conditions, a Contractor may conduct sales promotions involving price reductions for
a specified lesser period. A Contractor shall submit to the Contract Specialist documentation
identifying the proposed (1) starting and ending dates of the promotion, (2) products involved, and (3)
promotional prices compared to then -authorized prices. Promotional prices shall be available to all
Customers. Upon approval, the Contractor shall provide conspicuous notice of the promotion.
(d) Trade -In. Customers may trade-in equipment when making purchases from the Contract. A trade-
in shall be negotiated between the Customer and the Contractor. Customers are obligated to actively
seek current fair market value when trading equipment, and to keep accurate records of the process.
For State agencies, it may be necessary to provide documentation to the Department of Financial
Services and to the agency property custodian pursuant to Chapter 273, F.S.
(e) Equitable Adjustment. The Customer may, in its sole discretion, make an equitable adjustment in
the Contract terms or pricing if pricing or availability of supply is affected by extreme and unforeseen
volatility in the marketplace, that is, by circumstances that satisfy all the following criteria: (1) the
volatility is due to causes wholly beyond the Contractor's control, (2) the volatility affects the
marketplace or industry, not just the particular Contract source of supply, (3) the effect on pricing or
availability of supply is substantial, and (4) the volatility so affects the Contractor that continued
performance of the Contract would result in a substantial loss.
5. Additional Quantities. For a period not exceeding ninety (90) days from the date of solicitation
award, the Customer reserves the right to acquire additional quantities up to the amount shown on the
solicitation but not to exceed the threshold for Category Two at the prices submitted in the response to
the solicitation.
6. Packaging. Tangible product shall be securely and properly packed for shipment, storage, and
stocking in appropriate, clearly labeled, shipping containers and according to accepted commercial
practice, without extra charge for packing materials, cases, or other types of containers. All containers
and packaging shall become and remain Customer's property.
7. Manufacturer's Name and Approved Equivalents. Unless otherwise specified, any
manufacturers' names, trade names, brand names, information or catalog numbers listed in a
specification are descriptive, not restrictive. With the Customer's prior approval, the Contractor may
provide any product that meets or exceeds the applicable specifications. The Contractor shall
demonstrate comparability, including appropriate catalog materials, literature, specifications, test data,
etc. The Customer shall determine in its sole discretion whether a product is acceptable as an
equivalent.
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8. Inspection at Contractor's Site. The Customer reserves the right to inspect, at any reasonable time
with prior notice, the equipment or product or plant or other facilities of a Contractor to assess
conformity with Contract requirements and to determine whether they are adequate and suitable for
proper and effective Contract performance.
9. Safety Standards. All manufactured items and fabricated assemblies subject to operation under
pressure, operation by connection to an electric source, or operation involving connection to a
manufactured, natural, or LP gas source shall be constructed and approved in a manner acceptable to
the appropriate State inspector. Acceptability customarily requires, at a minimum, identification
marking of the appropriate safety standard organization, where such approvals of listings have been
established for the type of device offered and furnished, for example: the American Society of
Mechanical Engineers for pressure vessels; the Underwriters Laboratories and/or National Electrical
Manufacturers' Association for electrically operated assemblies; and the American Gas Association for
gas -operated assemblies. In addition, all items furnished shall meet all applicable requirements of the
Occupational Safety and Health Act and state and federal requirements relating to clean air and water
pollution.
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.
11. Literature. Upon request, the Contractor shall furnish literature reasonably related to the product
offered, for example, user manuals, price schedules, catalogs, descriptive brochures, etc.
12. Transportation and Delivery. Prices shall include all charges for packing, handling, freight,
distribution, and inside delivery. Transportation of goods shall be FOB Destination to any point within
thirty (30) days after the Customer places an Order. A Contractor, within five (5) days after receiving
a purchase order, shall notify the Customer of any potential delivery delays. Evidence of inability or
intentional delays shall be cause for Contract cancellation and Contractor suspension.
13. 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.
14. Risk of Loss. Matters of inspection and acceptance are addressed in s. 215.422, F.S. Until
acceptance, risk of loss or damage shall remain with the Contractor. The Contractor shall be
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responsible for filing, processing, and collecting all damage claims. To assist the Contractor with
damage claims, the Customer shall: record any evidence of visible damage on all copies of the
delivering carrier's Bill of Lading; report damages to the carrier and the Contractor; and provide the
Contractor with a copy of the carrier's Bill of Lading and damage inspection report. When a Customer
rejects a product, Contractor shall remove it from the premises within ten days after notification or
rejection. Upon rejection notification, the risk of loss of rejected or non -conforming product shall
remain with the Contractor. Rejected product not removed by the Contractor within ten days shall be
deemed abandoned by the Contractor, and the Customer shall have the right to dispose of it as its own
property. Contractor shall reimburse the Customer for costs and expenses incurred in storing or
effecting removal or disposition of rejected product.
15. Transaction Fee. The State of Florida has instituted MyFloridaMarketPlace, a statewide
eProcurement System ("System"). Pursuant to section 287.057(23), Florida Statutes (2002), all
payments shall be assessed a Transaction Fee of one percent (1.0%), which the Contractor shall pay to
the State, unless exempt pursuant to 60A-1.032, F.A.C.
For payments within the State accounting system (FLAIR or its successor), the Transaction Fee shall,
when possible, be automatically deducted from payments to the Contractor. If automatic deduction is
not possible, the Contractor shall pay the Transaction Fee pursuant to Rule 60A-1.031(2), F.A.C. By
submission of these reports and corresponding payments, Contractor certifies their correctness. All
such reports and payments shall be subject to audit by the State or its designee.
Contractor shall receive a credit for any Transaction Fee paid by the Contractor for the purchase of any
item(s) if such item(s) are returned to the Contractor through no fault, act, or omission of the
Contractor. Notwithstanding the foregoing, a Transaction Fee is non-refundable when an item is
rejected or returned, or declined, due to the Contractor's failure to perform or comply with
specifications or requirements of the agreement. Failure to comply with these requirements shall
constitute grounds for declaring the Contractor in default and recovering reprocurement costs from the
Contractor in addition to all outstanding fees.
CONTRACTORS DELINQUENT IN PAYING TRANSACTION FEES SHALL BE
EXCLUDED FROM CONDUCTING FUTURE BUSINESS WITH THE STATE.
16. Invoicing and Payment. Invoices shall contain the Contract number, purchase order number, and
the appropriate vendor identification 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 State's option, Contractors may be required to invoice electronically pursuant to guidelines of
the Department of Management Services. Current guidelines require that Contractor supply electronic
invoices in lieu of paper -based invoices for those transactions processed through the system. Electronic
invoices shall be submitted to the Customer through the Ariba Supplier Network (ASN) in one of the
following mechanisms — EDI 810, cXML, or web -based invoice entry within the ASN.
Payment shall be made in accordance with sections 215.422 and 287.0585 of the Florida Statutes,
which govern time limits for payment of invoices. Invoices that must be returned to a Contractor due to
preparation errors will result in a delay in payment. Contractors may call (850) 413-7269 Monday
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through Friday to inquire about the status of payments by State Agencies. The Customer is responsible
for all payments under the Contract. A Customer's failure to pay, or delay in payment, shall not
constitute a breach of the Contract and shall not relieve the Contractor of its obligations to the
Department or to other Customers.
17. Taxes. The State does not pay Federal excise or sales taxes on direct purchases of tangible personal
property. The State will not pay for any personal property taxes levied on the Contractor or for any
taxes levied on employees' wages. Any exceptions to this paragraph shall be explicitly noted by the
Customer on a purchase order or other special contract condition.
18. Governmental Restrictions. If the Contractor believes that any governmental restrictions have
been imposed that require alteration of the material, quality, workmanship or performance of the
products offered under the Contract, the Contractor shall immediately notify the Customer in writing,
indicating the specific restriction. The Customer reserves the right and the complete discretion to
accept any such alteration or to cancel the Contract at no further expense to the Customer.
19. Lobbying and Integrity. Customers shall ensure compliance with Section 11.062, FS and
Section 216.347, FS.The Contractor shall not, in connection with this or any other agreement with the
State, directly or indirectly (1) offer, confer, or agree to confer any pecuniary benefit on anyone as
consideration for any State officer or employee's decision, opinion, recommendation, vote, other
exercise of discretion, or violation of a known legal duty, or (2) offer, give, or agree to give to anyone
any gratuity for the benefit of, or at the direction or request of, any State officer or employee. For
purposes of clause (2), "gratuity" means any payment of more than nominal monetary value in the
form of cash, travel, entertainment, gifts, meals, lodging, loans, subscriptions, advances, deposits of
money, services, employment, or contracts of any kind. Upon request of the Customer's Inspector
General, or other authorized State official, the Contractor shall provide any type of information the
Inspector General deems relevant to the Contractor's integrity or responsibility. Such information may
include, but shall not be limited to, the Contractor's business or financial records, documents, or files
of any type or form that refer to or relate to the Contract. The Contractor shall retain such records for
the longer of (1) three years after the expiration of the Contract or (2) the period required by the
General Records Schedules maintained by the Florida Department of State (available at:
http://dlis.dos.state.fl.us/barmIg nschedules/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.
20. Indemnification. The Contractor shall be fully Iiable 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
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that portion of any loss or damages proximately caused by the negligent act or omission of the Stateor
a Customer.
Further, the Contractor shall fully indemnify, defend, and hold harmless the State and Customers from
any suits, actions, damages, and costs of every name and description, including attorneys' fees, arising
from or relating to violation or infringement of a trademark, copyright, patent, trade secret or
intellectual property right, provided, however, that the foregoing obligation shall not apply to a
Customer's misuse or modification of Contractor's products or a Customer's operation or use of
Contractor's products in a manner not contemplated by the Contract or the purchase order. If any
product is the subject of an infringement suit, or in the Contractor's opinion is likely to become the
subject of such a suit, the Contractor may at its sole expense procure for the Customer the right to
continue using the product or to modify it to become non -infringing. If the Contractor is not
reasonably able to modify or otherwise secure the Customer the right to continue using the product, the
Contractor shall remove the product and refund the Customer the amounts paid in excess of a
reasonable rental for past use. The customer shall not be liable for any royalties.
The Contractor's obligations under the preceding two paragraphs with respect to any legal action are
contingent upon the State or Customer giving the Contractor (1) written notice of any action or
threatened action, (2) the opportunity to take over and settle or defend any such action at Contractor's
sole expense, and (3) assistance in defending the action at Contractor's sole expense. The Contractor
shall not be liable for any cost, expense, or compromise incurred or made by the State or Customer in
any legal action without the Contractor's prior written consent, which shall not be unreasonably
withheld.
21. Limitation of Liability. For all 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 limited to 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. This limitation
shall not apply to claims arising under the Indemnity paragraph contain in this agreement.
Unless otherwise specifically enumerated in the Contract or in the purchase order, no party shall be
liable to another for special, indirect, punitive, or consequential damages, including lost data or records
(unless the purchase order requires the Contractor to back-up data or records), even if the party has
been advised that such damages are possible. No party shall be liable for lost profits, lost revenue, or
lost institutional operating savings. The State and Customer may, in addition to other remedies
available to them at law or equity and upon notice to the Contractor, retain such monies from amounts
due Contractor as may be necessary to satisfy any claim for damages, penalties, costs and the like
asserted by or against them. The State may set off any liability or other obligation of the Contractor or
its affiliates to the State against any payments due the Contractor under any contract with the State.
22. Suspension of Work. The Customer 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 Customer 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
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Contractor, the Customer 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.
23. Termination for Convenience. The Customer, by written notice to the Contractor, may terminate
the Contract in whole or in part when the Customer 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.
24. Termination for Cause. The Customer may terminate the Contract if the Contractor fails to (1)
deliver the product 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-16(3), F.A.C., 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 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 Customer. The rights and remedies of the Customer in this
clause are in addition to any other rights and remedies provided by law or under the Contract.
25. 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. The Contractor
shall not be entitled to an increase in the Contract price or payment of any kind from the Customer 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
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perform at no increased cost, unless the Customer 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 Customer
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, 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.
26. Scope Changes. The Customer 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 Customer 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 Customer may solicit separate bids to satisfy them.
27. Renewal. Upon mutual agreement, the Customer and the Contractor may renew the Contract, in
whole or in part, for a period that may not exceed 3 years or the term of the contract, whichever period
is Ionger. Any renewal shall specify the renewal price, as set forth in the solicitation response. The
renewal must be in writing and signed by both parties, and is contingent upon satisfactory performance
evaluations and subject to availability of funds.
28. Advertising. Subject to Chapter 119, Florida Statutes, the Contractor shall not publicly
disseminate any information concerning the Contract without prior written approval from the
Customer, including, but not limited to mentioning the Contract in a press release or other promotional
material, identifying the Customer 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 or the 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.
29. 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 Customer; 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. In the event of
any assignment, the Contractor remains secondarily liable for performance of the contract, unless the
Customer expressly waives such secondary liability. The Customer may assign the Contract with prior
written notice to Contractor of its intent to do so.
30. Dispute Resolution. Any dispute concerning performance of the Contract shall be decided by the
Customer's designated contract manager, who shall reduce the decision to writing and serve a copy on
the Contractor. The decision shall be final and conclusive unless within ten (10) days from the date of
receipt, the Contractor files with the Customer a petition for administrative hearing. The Customer's
decision on the petition shall be final, subject to the Contractor's right to review pursuant to Chapter
120 of the Florida Statutes. Exhaustion of administrative remedies is an absolute condition precedent
to the Contractor's ability to pursue any other form of dispute resolution; provided, however, that the
parties may employ the alternative dispute resolution procedures outlined in Chapter 120.
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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 and the parties waive any right to jury trial.
31. 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.
32. 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
limited 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.
33. Contractor Employees, Subcontractors, and Other Agents. The Customer and the State shall
take all actions necessary to ensure that Contractor's employees, subcontractors and other agents are
not employees of the State of Florida. Such actions include, but are not limited to, ensuring that
Contractor's employees, subcontractors, and other agents receive benefits and necessary insurance
(health, workers' compensations, and unemployment) from an employer other than the State of Florida.
34. 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. Providing and maintaining adequate insurance coverage is a material obligation of the
Contractor. Upon request, the Contractor shall provide certificate of insurance. 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.
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.
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36. Warranty of Ability to Perform. 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 Customer in writing if its ability to perform is compromised in any manner during the term of the
Contract.
37. Notices. All notices required under the Contract shall be delivered by certified mail, return receipt
requested, by reputable air courier service, or by personal delivery to the agency designee identified in
the original solicitation, or as otherwise identified by the Customer. 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.
38. Leases and Installment Purchases. Prior approval of the Chief Financial Officer (as defined in
Section 171, F.S.) 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.
39. Prison Rehabilitative Industries and Diversified Enterprises, Inc. (PRIDE). Section
946.515(2), F.S. requires the following statement to be included in the solicitation: "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." Additional information about PRIDE and the products it offers is
available at http://www.pridefl.com.
40. Products Available from the Blind or Other Handicapped. Section 413.036(3), F.S. requires
the following statement to be included in the solicitation: "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 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." Additional
information about the designated nonprofit agency and the products it offers is available at
http://www.re spec tofflorida.org.
41. Modification of Terms. The Contract contains all the terms and conditions agreed upon by the
parties, which terms and conditions shall govern all transactions between the Customer and the
Contractor. The Contract may only be modified or amended upon mutual written agreement of the
Customer and the Contractor. No oral agreements or representations shall be valid or binding upon the
Customer or the Contractor. No alteration or modification of the Contract terms, including substitution
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of product, shall be valid or binding against the Customer. 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. The
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.
42. Cooperative Purchasing. Pursuant to their own governing laws, and subject to the agreement of
the Contractor, other entities may be permitted to make purchases at the terms and conditions
contained herein. Non -Customer purchases are independent of the agreement between Customer and
Contractor, and Customer shall not be a party to any transaction between the Contractor and any other
purchaser.
State agencies wishing to make purchases from this agreement are required to follow the provisions of
s. 287.042(16)(a), F.S. This statute requires the Department of Management Services to determine that
the requestor's use of the contract is cost-effective and in the best interest of the State.
43. Waiver. The delay or failure by the Customer to exercise or enforce any of its rights under this
Contract shall not constitute or be deemed a waiver of the Customer'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.
44. Annual Appropriations. The State's performance and obligation to pay under this contract are
contingent upon an annual appropriation by the Legislature.
45. 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.
46. 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.
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