Master
Contract
Number
T12-MST-642
for
Cisco Products
and
Services
between
The Department
of
Information Services
and
Cisco Systems, Inc.
Effective Date:
Table
of
Contents
1.
Definition
of
Tenns ............................................................................................................................. 1
Contract
Term
2.
Tenn .................................................................................................................................................... 5
3.
Survivorship ........................................................................................................................................ 5
Pricing, Invoice And Payment
4.
Pricing ................................................................................................................................................. 6
5.
Advance Payment Prohibited .............................................................................................................. 7
6.
Taxes ................................................................................................................................................... 7
7.
Invoice and Payment ........................................................................................................................... 7
8.
Overpayments
to
Contractor................................................................................................................ 9
Contractor's
Responsibilities
9.
In-State Presence and Statewide Coverage .......................................................................................... 9
10.
Central Contact Point .......................................................................................................................... 9
11.
Purchaser Eligibility ............................................................................................................................ 9
12.
Purchaser OwnershiplRights
in
Data ...............................................
Error!
Bookmark not defined.
13.
RFQQ Mandatory Requirements .......................................................................................................
10
14.
Title
to
Equipment .............................................................................................................................
11
15.
Shipping and Risk
of
Loss .................................................................................................................
11
16.
Delivery .............................................................................................................................................
11
17.
Security..............................................................................................................................................
11
18.
Limits
of
Master Contract
Use
and Authorization ..........................................................................
122
19.
Contractor Service Personnel ..........................................................................................................
122
20.
Equipment Compatibility, Specifications and Configurations ........................................................
133
21.
Demonstration Equipment .................................................................................................................
13
22.
Installation and Set-up .....................................................................................................................
133
23.
Equipment Warranty .........................................................................................................................
15
24.
SMARTNet Support ........................................................................................................................
156
25.
Equipment and Maintenance Documentation ....................................................................................
17
26.
Spare Parts for Equipment ...............................................................................................................
177
27.
Contractor Escalation Procedures ......................................................................................................
17
28.
Contractor Commitments, Warranties and Representations ............................................................
188
29.
Protection
of
Purchaser's Confidential Infonnation ........................................................................
188
Purchaser's Authority and Responsibilities
30.
Purchaser Use
of
Master Contract .....................................................................................................
19
31.
Export Restrictions ............................................................................................................................
19
Software License
32.
License Grant. ..................................................................................................................................
199
33.
Software Warranty ............................................................................................................................. 20
State
of
Washington
Cisco Products and Services
Department
of
Information Services
Master Contract
#
T 12-MST -642
Table
of
Contents, cont'd
34.
Virus Warrantly .................................................................................................................................
21
35.
Software Maintenance and Support Services ....................................................................................
21
36.
Software Documentation ...................................................................................................................
21
Contract Administration
37.
Legal Notices ...................................................................................................................................
222
38.
Contractor Account Manager ............................................................................................................
23
39.
Contractor Project Manager .............................................................................................................
233
40.
Section Headings, Incorporated Documents and Order
of
Precedence .............................................
23
41.
Entire Agreement. ..............................................................................................................................
24
42.
Authority
for
Modifications
and
Amendments ...............................................................................
244
43.
Additional Products
and
Services ....................................................................................................
244
44.
Independent Status
of
Contractor ......................................................................................................24
45.
Governing Law ..................................................................................................................................
24
46.
Rule
of
Construction
as
to
Ambiguities ............................................................................................
25
47.
Subcontractors ...................................................................................................................................
25
48.
Assignment ........................................................................................................................................
25
49.
Publicity............................................................................................................................................. 26
50.
Review of COfltractor's Records ...................................................................................................... 266
General Provisions
51.
Patent and Copyright Indemnification ...............................................................................................
27
52.
Save Harmless ...................................................................................................................................
28
53.
Insurance............................................................................................................................................ 28
54.
Licensing Standards .........................................................................................................................
299
55.
OSHAIWISHA ................................................................................................................................ 299
56.
Antitrust Violations ........................................................................................................................... 29
57.
Compliance with Civil Rights Laws ..................................................................................................
30
58.
Severability........................................................................................................................................
30
59.
Waiver ............................................................................................................................................... 30
60.
Treatment
of
Assets ...........................................................................................................................
30
61.
Contractor's Proprietary Information ................................................................................................
31
Disputes and Remedies
62.
Disputes ...........................................................................................................................................
321
63.
Attorneys' Fees and Costs ............................................................................................................... 332
64.
Non-Exclusive Remedies ................................................................................................................
333
65.
Failure
to
Perform............................................................................................................................
333
66.
Limitation
of
Liability .....................................................................................................................
333
Contract Termination
67.
Termination for Default. .................................................................................................................. 344
68.
Termination
for
Convenience ............................................................................................................
35
State
of
Washington
Cisco Products and Services
Department ofInfonnation Services
11
Master Contract
#
T 12-MST -642
Table
of
Contents, cont'd
69.
Tennination for Withdrawal
of
Authority .........................................................................................
35
70.
Tennination for Non-Allocation
of
Funds .......................................................................................
355
71.
Termination for Conflict
of
Interest ................................................................................................
355
72.
Termination Procedure ......................................................................................................................
35
73.
Covenant Against Contingent Fees ...................................................................................................
36
Activity Reporting and Administration Fee
74.
DIS Master Contract Administration Fee and Collection ................................................................
366
75.
Activity Reporting .............................................................................................................................
37
76.
Electronic Funds Transfer ...............................................................................................................
377
77.
Failure to Remit Reports/Fees ...........................................................................................................
37
Contract Execution
78.
Authority
to
Bind ...............................................................................................................................
38
79.
Counterparts ....................................................................................................................................
388
80.
Facsimile Execution ........................................................................................................................
399
Schedules
Schedule
A:
Price List
Schedule B:
WEBEX Terms
and
Conditions
Schedule
C:
Ironport Terms
and
Conditions
Exhibits
Exhibit
A:
DIS Requestfor Quotation
and
Qualifications T1I-RFQQ-023 for Cisco Products
and
Services
Exhibit
B:
Contractor's Response
Note:
Exhibits A and B are not attached but are available upon request/rom the DIS Contract
Administrator
State
of
Washington
Cisco Products and Services
Department
of
Information Services
iii
Master Contract # T 12-MST -642
MASTER
CONTRACT
NUMBER T12-MST -642
for
Cisco Products
and
Services
PARTIES
This Master Contract ("Contract") is entered into
by
and between the state
of
Washington acting through
the
Department
of
Information
Services, an agency
of
Washington State government (hereinafter
"DIS"), and Cisco Systems, Inc., licensed to conduct business in the state
of
Washington, (hereinafter
"Contractor") for the provisioning
to
the State
of
Cisco Products and Services.
RECITALS
The state
of
Washington, acting by and through DIS, issued a Request for Quotation and Qualifications
(RFQQ), T11-RFQQ-023, dated March 31, 2011 (Exhibit A) for the purpose
of
establishing a Master
Contract for Cisco Products and Services in accordance with its authority under chapter 43.105 RCW.
Cisco Systems, Inc. submitted a timely Response to DIS' RFQQ (Exhibit B).
DIS evaluated all properly submitted Responses
to
the above-referenced RFQQ and has identified Cisco
Systems, Inc. as the apparently successful Vendor.
DIS has determined that entering into a Master Contract with Cisco Systems, Inc. will meet the State's
needs and will be in the State's best interest.
NOW THEREFORE, DIS awards to Cisco Systems, Inc. this Master Contract, the terms and conditions
of
which shall govern Contractor's furnishing to Purchasers the Cisco Products and Services. This Master
Contract is not for personal use.
This Master Contract is an optional-use contract that neither financially binds the State nor otherwise
obJigates the State to purchase any Products or Services hereunder. Nor does the Master Contract prevent
the State from purchasing the same or similar Products or Services from other sources,
provided that,
all
legal acquisition requirements are satisfied.
IN CONSIDERATION
of
the mutual promises as hereinafter set forth, the parties agree
as
follows:
1.
Definition
of
Terms
The following terms as used throughout this Contract shall have the meanings set forth below.
"Acceptance
Date"
for
Equjment
shall mean the date
of
Delivery
of
the Equipment, which shall
be deemed to be tIle third
(3
) day after the date
of
shipment.
"Business Days
and
Hours"
shall mean Monday through Friday, 8:00 a.m.
to
5:00 p.m., Pacific
Time, except for holidays observed by the state
of
Washington.
State
of
Washington
Cisco Products and Services
Department ofInformation Services
Master Contract # T 12-MST -642
"Cisco Certified Design Associate (CCDA)" shall mean the Cisco Certified Design Associate,
or current equivalent which indicates a foundation or apprentice knowledge
of
network design
for the Cisco Internetwork Infrastructure. CCDA certified professionals can design routed and
switched network infrastructures involving LAN , WAN, and dial access services for businesses
and organizations. Certification can be obtained
by
passing exam 640-861 DESGN.
"Cisco Certified Design Professional
(CCDP)"
shall mean a professional certified by Cisco to
have advanced or journeyman level knowledge
of
network design. A CCDP can design routed
and switched networks involving LAN, WAN, and dial access services, applying modular design
practices and making sure the whole solution responds optimally to the business and technical
needs
of
the organization.
"Cisco Certified
Internetwork
Engineer
(CCIE)"
shall mean a professional certified by Cisco
as an Engineer with expert level knowledge
of
networking across various LAN and WAN
interfaces, and a variety
of
routers and switches.
"Cisco Certified
Internetwork
Professional
(CCIP)"
shall mean a professional certified by
Cisco
to
have detailed understanding
of
networking technologies in the service provider arena,
including
IP
routing,
IP
Quality
of
Service (QoS), BGP, and MPLS.
"Cisco Certified
Network
Associate
(CCNA)"
shall mean an apprentice certified by Cisco in
the knowledge
of
networking. CCNA certified professionals can install, configure, and operate
LAN, WAN, and dial access services for small networks
(l00
nodes orless), including use
of
these protocols: IP, IGRP, Serial, Frame Relay,
IP
RIP, VLANS, RIP, Ethernet, and Access
Lists.
"Cisco Certified
Network
Professional
(CCNP)"
shall mean a professional certified by Cisco
to have an advanced or journeyman level knowledge
of
networks. With a CCNP, a network
professional can install, configure, and troubleshoot local and wide area networks for enterprise
organizations with networks from 100 to more than 500 nodes. The content emphasizes topics
such
as
security, converged networks, quality
of
service (QoS), virtual private networks (VPNs)
and broadband technologies.
"Cisco Connection
On-Line
(CCO)"
shall mean the Cisco Systems' primary, real time support
channel. Maintenance customers can self-register on CCO to obtain additional information and
services.
"Cisco.com " shall mean the Cisco Systems' primary, real time support channel. Maintenance
customers can self-register at Cisco.com to obtain additional information and services.
"Confidential
Information"
shall mean information that may be exempt from disclosure to thc
public
or
other unauthorized persons under either chapter 42.17 RCW or other state
or
federal
statutes. Confidential Information includes, but
is
not limited to, names, addresses, Social
Security numbers, e-mail addresses, telephone numbers, financial profiles, credit card
information, driver's license numbers, medical data, law enforcement records, Purchaser source
code or object code, or Purchaser or State security information.
"Contractor"
shall mean Cisco Systems, Inc., its employees and agents and wholly owned
subsidiaries. Contractor also includes any firm, provider, organization, individual, or other entity
performing the business activities under this Contract.
It
shall also include any Subcontractor
retained by Contractor
as
permitted under the terms
of
this Contract.
"Contractor
Account
Manager"
shall mean a representative
of
Contractor who is assigned
as
the
primary contact person with whom the DIS Contract Administrator shall work throughout the
State
of
Washington
Cisco Products and Services
Department
of
Infonnation Services
2
Master Contract # Tl2-MST-642
duration
of
this Contract, unless replaced, with advance approval
ofthe
DIS Contract Administrator,
and as further defined in the section titled
Contractor
Account
Manager.
"Contractor
Project
Manager"
shall mean a representative
of
Contractor who
is
assigned to each
Purchaser installation project
as
the coordinator
of
activities and the primary point
of
contact, as
further defined
in
the section titled Contractor Project Manager.
"Delivery
Date"
shall mean the scheduled delivety date communicated by Contractor to
Purchaser
in
any order acknowledgement and/or on www.cisco.com.
"DIS"
shaH
mean the
Washington State Department
of
Information Services.
"DIS
Contract
Administrator"
shaH
mean the TSD Contract Administrator, designated by DIS
as
responsible for the maintenance and administration
of
this Master Contract, notices, reports
and any other pertinent documentation or information. The DIS Contract Administrator may also
conduct periodic performance or financial audits related to this Master Contract.
"Effective
Date"
shall mean the first date this Contract
is
in full force and effect which shall be
the date
of
the last signature
of
a party to this Contract.
"Equipment"
shall mean the Ciseo Produets as set forth in this Contract.
"Exhibit
A"
shan mean the RFQQ.
"Exhibit
B"
shall mean Contractor's Response.
"Fulfillment
Partner"
shaH
mean a Subcontractor who may provide Products and Services
under this Contract at the Prices established in this Contract and bill Purchasers directly for such
Products and Services.
"Help
Desk"
shall mean a service provided by Contractor for the support
of
Contractor's Products.
Purchaser shall report warranty or maintenance problems to Contractor's Help Desk for initial
trouble-shooting and possible resolution
of
the problems or for the initiation
of
repair or replacement
services.
"Installation
Document"
shall mean a mutually agreed to set
of
instructions describing the
applicable fees and the obligations
of
both parties for Contractor's installation services for
Products purchased under this Contract.
"Installation
Date"
shall mean the date by which all Equipment ordered hereunder shall be in
place, in good working order and ready for testing.
"Manufacturer,"
or
"Original
Equipment
Manufacturer
(OEM)"
shall mean Cisco Systems,
Inc.
"Master
Contract"
or
"Contract"
shall mean this document,
aH
schedules and exhibits, all
amendments hereto and all Orders hereunder.
"Order"
or
"Order
Document"
shall mean any official document and attachments thereto
specifying the Products and/or Services to be purchased from Contractor under this Contract.
The Order Document for Advanced Services will be a Statement
of
Work.
"Personal
Services" shall mean shall mean professional or technical expertise provided by
Contractor to accomplish a specific study, project, task
or
duties. Personal Services shall include
State
of
Washington
Cisco Products and Services
Department
of
Information Services
3
Master Contract # T 12-MST -642
but not be limited to those services specified in the State Administrative and Accounting Manual
(SAAM) in chapter
15
Personal Services
located at: http://www.ofm.wa.gov/policy/15.htm.
"Price"
shall mean charges, costs, rates, and/or fees charged for the Products and Services under
this Contract and shall be paid in United States dollars.
"Product(s)"
shall mean any Contractor-supplied Equipment, Software and documcntation
within the scope
ofthis
Contract.
"Proprietary Information"
shall mean information owned by Contractor to which Contractor
claims a protectable interest under law. Proprietary Information includes, but is not limited to,
information protected by copyright, patent, trademark, or trade secret laws, information regarding
Contractors hardware, software and service products, technical, financial and marketing data, and
information on cisco.com, to the extent that such information is exempt from disclosure pursuant
to RCW 42.56 or other federal or state statutes.
"Purchaser"
shall mean DIS and those government
or
nonprofit entities that have entered into an
Interlocal or Customer Service Agreement with DIS.
"RCW"
shall mean the Revised Code
of
Washington.
"RFQQ"
shall mean the Request for Quotation and Qualifications used as a solicitation
document to establish this Contract, including all its amendments and modifications, Exhibit A
hereto.
"Response"
shall mean Contractor's Response to the RFQQ for Cisco Products and Services,
Exhibit B hereto.
"Schedule
A:
WebEx Terms and Conditions"
shall mean the attachment to this Contract that
identifies additional terms and conditions related to the WebEx product.
"Schedule B: Iron port Terms and Conditions"
shall mean the attachment to this Contract that
identifies additional terms and conditions related to the Ironport product.
"Services~~
shall mean those services provided under this Contract and related to the Products
being acquired or provided as a stand alone service that are appropriate to the scope
of
this
Contract and are generally listed on Cisco's Global Price List in US Dollars and includes such
things as pre-sales consulting, user training, installation services, warranty and maintenance.
Personal Services are specifically excluded from this Contract.
"Software"
shall mean the object code version
of
computer programs licensed pursuant to this
Contract. Embedded code, firmware, internal code, microcode, and any other term referring to
Cisco software residing in the Equipment that is necessary for the proper operation
of
the
Equipment is included
in
this definition
of
Software. Software includes all prior, current, and
future versions
of
the Software and all maintenance updates and error corrections.
"Specifications"
shall mcan the technical and other specifications set forth in Contractor's
Product documentation, whether or not Contractor produces such documentation before or after
this Contract's Effective Date.
"State"
shall mean the state
of
Washington.
State
of
Washington
Cisco Products and Serviees
Department o
fIn
formati on Services
4
Master Contract
#
TI2-MST-642
"Subcontractor"
shall mean one not in the employment
of
Contractor, who is perfonning all or
part
of
the business activities under this Contract under a separate contract with Contractor. The
tetID
"Subcontractor" means Subcontractor(s)
of
any tier.
"TSD"
shall mean the Telecommunication Services Division
of
DIS
"Warranty Period"
shall mean the period
of
time
as
set forth in the section titled
Equipment
Warranty
Contract Term and Scope
2.
Term
2.1.
This Master Contract's initial term shall be three (3) years, commencing upon
the Effective Date.
2.2.
This Master Contract's tenn may be extended by three (3) additional one
(1)
year tenns, provided that the extensions shall be at DIS' option and shall be
effected by DIS giving written notiee
of
its intent to extend this Contraet to
Contractor not less than thirty (30) calendar days prior to the Contract
tenn's
expiration and Contractor accepting such extension prior to the Contract
tenn's
expiration. No change in tenns and conditions shall be pennitted during these
extensions unless specifically agreed to in writing.
2.3.
Orders that are placed that required an ongoing subscription commitment must
complete the
tetID
stated in the specific Order obligation (as an "Initial
Tenn"
and/or "Renewal Tenn(s)", which are further defined in particular Order), Any
Orders placed for Services that extend beyond the Contract
Tenn
shall continue
to be governed by this Contract. However, multi-year Services that extend
more than twelve (12) months beyond the Tenn
of
the Contraet shall be
available only to those Purchasers not precluded from making advance
payments for services in excess
of
one year. Unused or cancelled portions
of
multi-year tenns are not refundable.
3.
Survivorship
All purchase transactions executed pursuant to the authority
of
this Master Contract shall be bound by
all
of
the tenns, conditions, Prices and Price discounts set forth herein, notwithstanding the expiration
of
the initial tenn
of
this Contract or any extension thereof. Further, the tenns, conditions and
warranties contained in this Contract that by their sense and context are intended
to
survive the
completion
of
the perfonnance, cancellation or termination
of
this Contract shall so survive. In addition,
the tenns
of
the sections titled
Overpayments
to
Contractor; Ownership/Rights in Data;
Contractor Commitments, Warranties and Representations; Protection
of
Purchaser's
Confidential Information; License Grant; Software Ownership; Virus Warranty; Export
Compliance; Section Headings, Incorporated Documents and Order
of Precedence;
Publicity;
Review
of
Contractor's Records; Patent and Copyright Indemnification; Contractor's
Proprietary Information; Disputes;
and
Limitation
of
Liability,
shall survive the termination
of
this
Master Contract.
State
of
Washington
Cisco Products and Services
Department
of
Information Services
5
Master Contract
#
T 12-MST -642
Pricing, Invoice and Payment
4.
Pricing
4.1.
Except as otherwise stated
in
this Section 4.1, Contractor agrees to provide a discount
rate
of
thirty-five percent (35%)
off
of
Cisco's then-cunent
Global Price List (US.)
for
the Products listed on such Price List.
Contractor agrees to provide a discount rate
of
ten percent (10%)
off
of
Cisco's then
current
Global Price List (U.s.)
for SMARTnet and SMARTnet On-Site Services.
For a two (2) year pre-paid term Contractor agrees to provide a discount rate
of
fourteen
(14%)
off
of
Cisco's then-cunent
Global Price List
(US.)
for SMARTnet and
SMARTnet On-Site Services.
For a three (3) year pre-paid
tenn
Contractor agrees to provide a discount rate
of
seventeen (17%)
off
of
Cisco's then-cunent
Global Price List
(US.)
for SMARTnet and
SMARTnet On-Site Services.
For a four (4) year pre-paid
tenn
Contractor agrees to provide a discount rate
of
eighteen
(18%)
off
of
Cisco's then-cunent
Global Price List (U.S.)
for SMARTnet and
SMARTnet On-Site Services.
For a five (5) year pre-paid tenn Contractor agrees to provide a discount rate
of
twenty
(20%)
off
of
Cisco's then-cunent
Global Price List (U.s.)
for SMARTnet and
SMARTnet On-Site Services.
Multi-year SMARTnet and SMARTnet On-Site Services shall be available only to those
Purchasers not precluded from making advance payments for serviccs in excess
of
one
year. Unused or cancelled portions
of
multi-year tenns are not refundable.
Contractor agrees to provide a discount rate
of
five percent (5%)
off
ofClsco's
then
cunent
Price List (U.S.)
for Web
Ex
Products listed on such Price List.
Contractor agrees to provide a discount rate
often
percent (10%)
off
of
Cisco's then
cunent
Price List (U.S.)
for IronPort Products listed on such Price List.
Contractor agrees to provide a discount rate
of
thirty-five percent (35%)
off
of
Cisco's
then-cunent
Price List (U.S.)
for Tandberg Products listed on such Price List.
4.2.
Discount levels may not be decreased during the
tenn
of
the Contract.
Contractor may lower pricing or give additional discounts to Purchasers (such
as a volume discounts) at any time during the life
of
the Master Contract.
Nothing in this contract shall prohibit Customer from seeking additional
discounts from Fulfillment Partners.
4.3.
If
Contractor increases its discount or reduces its Prices for any
of
the Products
or Services during the term
of
this Contract, Purchaser shall have the immediate
benefit
of
such higher discount or lower Prices for new purchases propectively.
4.4.
Contractor shall
not
be reimbursed for any expenses related
to
travel, i.e., per diem,
meals, lodging, etc.
State
of
Washington
Cisco Products and Services
Department
of
Information Services
6
Master Contract # Tl2-MST-642
4.5.
Throughout the term
of
this Contract, Contractor shall ensure that ccrtain Cisco
Global Price Lists are available to DIS directly from Cisco Systems, Inc. on a
monthly basis. Where applicable, Contractor shall provide DIS with logon ids,
passwords, and any other information or tools necessary to ensure access.
4.6.
Contractor agrees to participate in the Federal Communication Commission's
E-rate discount progmm established pursuant
to
the Telecommunications Act
of
1996, in accordance with the Schools and Libraries Division (SLD)
of
the
Universal Service Administration Corporation (USAC) requirements,_only to
the extent that such requirements apply to Contractor as a supplier
of
eligible
services under the Telecommunications Act
of
1996.
4.7.
Purchaser's prepayment for subscription services are made on good faith
of
Contractor's successful performance
of
deliverables.
If
Contmctor does not
successfully provide the service(s) as agreed to by the parties in writing,
Purchaser shall notify Contractor in writing and Contractor shall have a 30
days to cure and successfully provide the service(s).
If
the service(s) are not
successfully provided by Contractor within the 3D-day cure period, then
Purchaser may initiate a dispute claim pursuant to Section 62
of
this Contract
to request a pro-rata credit associated with such non-performed service(s).
5.
Advance Payment Prohibited
No advance payment shall be made for the Products and Services furnished by Contractor
pursuant to this Contract, with the exception
of
maintenance and subscription-based services.
If
mutually agreed with Purchaser, Contractor may invoice the Purchaser in advance for up to, but
not more than a one-year period for maintenance services unless Purchaser
is
not prohibited from
doing so statute, administrative regulation, policy or otherwise.
6.
Taxes
6.1.
Purchaser will pay sales and use taxes,
if
any, imposed on the Products and
Services acquired hereunder. Contractor must pay all other taxes including, but
not limited to, Washington Business and Occupation Tax, other taxes based on
Contractor's income or gross receipts, or personal property taxes levied or
assessed on Contractor's personal property. Purchaser,
as
an agency
of
Washington State government, is exempt from property tax.
6.2.
Contractor shall complete registration with thc Washington State Department
of
Revenue and be responsible for payment
of
all taxes due on payments made
under this Contract.
6.3.
All payments accrued on account
of
payroll taxes, unemployment
contributions, any other taxes, insurance,
or
other expenses for Contractor or
Contractor's statT shall be Contractor's sole responsibility.
7.
Invoice and Payment
7.1.
Contractor will submit properly itemized invoices to the person identified by
Purchaser at the address provided by Purchaser. Contractor or its reseUers will
provide duplicate invoices within thirty (30) days upon shipment
of
an order.
If
there are partial shipments
of
an order, Cisco (or any
of
its reseUers) may
1)
State
of
Washington
Cisco Products and Services
Department
of
Information Services
7
Master Contract # Tl2-MST-642
invoice the purchaser separately within 30 days after each partial shipment or
2) invoice the purchaser within 30 days for the entire order after all the items
have been delivered. Invoices shall provide and itemize, as applicable:
a) Master Contract number T 12-MST -642;
b) Purchaser's name, address and Purchase Order
or
Field Order Number; purchase
delivery location,
if
difference
c) Contractor name, address, phone number,
and
Federal Tax Identification Number;
and
remittance address,
if
difference;
d) Deseription
of
EquipmentJProducts, including quantity ordered, model and serial
numbers;
e) Description
of
Services provided;
f)
Date( s)
of
delivery
of
EquipmentlProducts
or
Services and! or date( s)
of
Product
installation
and
set up;
g) Manufacturer's List Price for each item;
h) Applicable Master Contract discounts;
i) Any Maintenance or other related Service charges;
j)
Upon request
of
a Purchaser, Contractor shall include agency specific identifiers, (e.g.
Network Control Center (NCC) ticket number);
k) Net invoice price for each item;
1)
Total invoice price for each item;
m)Total invoice price, excluding sales tax;
n) Sales
or
other applicable taxes;
0)
DIS Master Contract Administration
Fee
(0.5% or 0.005
of
the total purchase price);
p) Other applicable charges;
q) Total invoice amount;
r) Payment terms including any available prompt payment discounts;
s) Expedited shipping charges, when requested by Customer;
t) Expected or actual shipping charges, when requested
by
Customer.
7.2.
Payments shall
be
due
and
payable within thirty (30) calendar days after receipt
and Acceptance Date
of
Products
or
Services.
7.3.
Incorrect
or
incomplete invoices will be returned
by
Purchaser to Contractor
for correction
and
reissue.
7.4.
The
DIS Contract nwnber
Tl2-MST-642
must appear on all bills
oflading,
packages,
and
correspondencc relating to this Contract.
7.5.
Purchaser shall not honor drafts, nor accept goods on a sight draft basis.
7.6.
If
Purchaser fails to make timely payment, Contractor
may
invoice Purchaser
one percent
(1
%) per month on the amount overdue
or
a minimum
of
one
dollar ($1). Payment will not
be
considered late
if
payment is deposited
electronically in Contractor's
bank
account or
if
a check or warrant is
postmarked within thirty (30) calendar days
of
Acceptance Date
of
the
Equipment.
State
of
Washington
Cisco Products and Services
Department
of
Information Services
8
Master Contract
#
T 12-MST-642
8.
Overpayments
to
Contractor
Contractor shall rcfund to Purchaser the full amount
of
any erroneous paymcnt
or
overpayment
under this Contract within sixty (60) days' written notice.
If
Contractor fails to make timely
refund, Purchaser may charge Contractor one percent
(I
%)
per month on the amount due, until
paid in
fulL
Contractor's Responsibilities
9.
In-State Presence and Statewide Coverage
Contractor shall have a place
of
business staffed by Contractor-employees within Washington
State and shall maintain such place
of
business for the duration
of
the Master Contract. A
Subcontractor cannot fulfill this requirement for the Contractor. All Purchaser Orders and
communications and all sales and Services provided to Purchasers will be through this in-state
location. Contractor's Products and Services shall be available under this Master Contract to
Purchasers located throughout the state
of
Washington.
10.
Central Contact Point
The Contractor shall provide a designated central point
of
contact for the Purchaser to order
equipment, request Maintenance Services
(if
applicable), contact service personnel, request
problem status updates, and receive problem resolutions. This contact will be available by a
to11
free telephone number. This telephone number shall be staffed during normal business hours;
Monday through Friday, 8 a.m. until 5 p.m. (excluding State holidays). The Contractor shall also
provide point
of
contact availability for emergency service requests during non-regular hours.
11.
Pnrchaser Eligibility
In order to be eligible to purchase under this Master Contract, Purchasers shall have a Customer
Service Agrcement (Interlocal Agreement) with DIS. Contractor shall be responsible for verifying
Purchaser eligibility. Contractor may use the search feature on the DIS website:
hup:lltcchmall.dis.wa.govicsalcsaindcx.aspx or may contact the Office
of
Legal Services within
DIS at 360-902-3551
to
ascertain Purchaser eligibility.
12.
Purchaser Ownership/Rights in Data
12.1.
Under this Contract, Contractor may be required to provide/deliver
to
Purchaser certain documents, e.g., design documents, architecture documents,
network documentation, etc., prepared by Contractor in response
to
requests
made by Purchaser and as provided for under the Services terms. In all cases,
"Reports" are text/image documents. Reports do not include, and Contractor
does not develop, custom software or code under this Contract.
12.2.
Purchaser shall own Reports, and except for any Contractor pre-existing
Proprietary Information and Retained Rights, as defined below, Purchaser shall
own the copyright in the Reports and is entitled to make copies
of
the Reports
for Washington state and local government purposes. Purchaser does not have
the right to make such Reports generally available to the public, except
in
response to requests for public disclosure
of
the Reports or Deliverables under
State
of
Washington
Cisco Products and Services
Department
of
Information Services
9
Master Contract
#
Tl2·MST
·642
chapter 42.17 RCW. Purchaser may copy and distribute to a Washington state
or local government entity or a third party vendor each item
of
the Reports as
reasonably necessary for Washington state or local government purposes or in
connection with the implementation
of
any recommendations, conclusions, or
information contained in the Reports provided hereunder. Purchaser shall
ensure that any third party vendor receiving a copy
of
any Reports shall use
Contractor's Retained Rights or any Contractor's pre-existing Proprietary
Information in accordance with the terms
of
the license granted in this section
12.
Purchaser shall require any such third party vendor to execute a
nondisclosure agreement prior to receiving a copy
of
any Reports.
12.3.
Notwithstanding anything to the eontrary contained
in
this provision, any
deliverables hereunder, e.g., Reports, will not include and Contractor will retain
ownership
of
all rights, titles and interests in its pre-existing (or independently
developed outside
of
this Contract) methodologies, templates, tool kits, software
and tools, training materials, proprietary data and programs (and changes,
additions, modifications, developments, adaptations, translations, and
enhancements thereto, including any derivative works thereof, generated, created,
or documented during performance
of
Services and preparation
of
Reports, or
otherwise) and all
of
the intellectual property rights therein (including without
limitation copyright, trade secrets and patent rights), any new intellectual
propeliy developed by Contractor during the course
of
performing Services under
this Contract, and Contractor's Proprietary Information (the "Retained Rights").
Retained Rights does not include any pre-existing Purchaser information or
Purchaser intellectual property rights.
12.4.
Purchaser's right to use Contractor's Retained Rights or to use any Contractor
pre-existing Proprietary Information contained in the Reports will be subject to a
perpetual, non-exclusive, royalty-free, non-transferable, fully paid-up license,
hereby granted to Purchaser to use such Contractor's Retained Rights or use such
Contractor pre-existing Proprietary Information for Washington state and local
government purposes and not for the benefit
of
third parties except to the extent
permitted under Subsection 12.2.
12.5.
Without limiting the terms
of
this Section_2
Purchaser OwnershiplRights in
Data,
or Section 29 Protection
of
Purchaser's
Confidential Information,
or
Section
61
Contractor's Proprietary Information,
the ideas, methods,
concepts, know-how, structures, techniques, inventions, developments,
processes, discoveries, improvements and other information in the Reports that
were developed pursuant to this Contract by Contractor andlor Purchaser
personnel and retained in the unaided memory
of
such personnel in non
tangible form, (with non-tangible not to include electronic or digital copies
of
works), may be used by either party without an obligation to account, in any
way that it deems appropriate, including by or for its clients or Purchascrs,
provided however, that the foregoing shall be not construed as granting a
license to either party under the other party's patent or the other party's
intellectual property rights. Contractor is in the business
of
providing services
for a wide variety
of
clients, and Purchaser understands that Contractor will
continue these activities.
13.
RFQQ Mandatory Requirements
State
of
Washington
Cisco Products and Services
Department ofInformation Services
10
Master Contract
#
T12-MST-642
The RFQQ mandatory requirements are essential substantive terms
of
this Master Contract.
Products and Services provided under this Master Contract shall meet or exceed all the mandatory
requirements
of
the RFQQ.
14.
Title to Equipment
Upon Acceptance Date and receipt
of
payment, Contractor shall convey to Purchaser good title to
the Equipment, free and clear
of
all liens, pledges, mortgages, encumbrances,
or
other security
interests.
If
Purchaser subsequently transfers title to the Equipment
to
another entity, Purchaser
shall have the right
to
transfer the license
to
use the internal code with the transfer
of
Equipment
title. A subsequent transfer
of
this software license shall be at no additional cost or charge to
either Purchaser or Purchaser's transferee
if
1)
the transferee
is
an authorized purchaser under this
Agreement and 2) maintenance support for the Equipment has not lapsed. Software license
terms are contained in the End User License Agreement for the applicable product.
15.
Shipping and Risk
of
Loss
15.1
Contractor shall ship all Products purchased pursuant
to
this Contract, freight prepaid, FOB
Purchaser's destination. The method
of
shipment shall be consistent with the nature
of
the
Products and hazards
of
transportation. Regardless
of
FOB point, Contractor agrees to bear
all risks
ofloss,
damage, or destruction
of
the Products ordered hereunder that occurs prior
to Acceptance Date, except loss
or
damage attributable to Purchaser's fault or negligence;
and such loss, damage,
or
destruction shall not release Contractor from any obligation
hereunder. After Acceptance Date, the risk
ofloss
or damage shall be borne by Purchaser,
except loss or damage attributable to Contractor's fault
or
negligence.
15.2
In
the event any Products are lost during shipment, Contractor (or its Subcontractor
as
applicable) will book a replacement Order the same as the original Order, credit the
original invoice and issue a new invoice when the replacement Order ships.
16.
Delivery
16.1.
Upon acceptance
of
an Order, Contractor will set the Delivery Date within
thirty (30) days
of
acceptance
of
the Order, or as close as practicable to
Purchaser's requested Delivery Date. In the event Contractor cannot meet the
thirty (30) days or Purchaser's requested Delivery Date, Contractor shall
inform Purchaser in writing
of
such delay and the anticipated Delivery Date.
16.2.
All packages must be accompanied by a packing slip that identifies all items
included with the shipment and the Purchaser's Order Document number.
Contractor's dclivery receipt must be signed by a representative
of
Purchaser
for all deliveries made hereunder.
17.
Security
17.1. Facility Access.
Contractor understands that Purchaser's building entrances may be controlled for access.
Contractor agrees to become familiar with Purchaser's building and security policies, and
fUlther agrees to observe and comply with all Purchaser's building and security policies
or procedures.
State
of
Washington
Cisco Products and Services
Department oflnformation Services
11
Master Contract
#
T 12-MST -642
Contractor understands that in order to obtain access to Purchaser's premises, Contractor
may be required to be issued a security badge by Purchaser. Contractor shall provide
certain personal information, including valid government issued photo identification,
prior to obtaining a security badge. Contractor further understands that Purchaser will
collect and retain such personal information for so long as the Contract is in efIect and
such individual(s) has access to the premises. Purchaser reserves the right to deny an
application for a security badge. Failure
of
Contractor to comply with Purchaser's
security and safety policies and procedures is sufficient grounds for revoking, modifying,
suspending or terminating access to Purchaser's facilities.
Upon the earlier
of
termination
of
the Contract, or suspension
or
termination
of
access
to
Purchaser's facilities, Contractor shall return all security badges.
17.2. Remote Access to Network.
Contractor understands that in order to obtain remote access to Purchaser's Local Area
Network (LAN), email, or supported computing environments through a remote access
connection ("Remote Access"), Contractor must comply with Purchaser's Remote Access
policy and any other applicable policies
or
procedures. Contractor shall, prior to access,
complete and sign any applicable agreements or forms. Remote Access is conditioned
upon final approval by Purchaser. Contractor will not be liable for not providing, or
required to provide Services,
if
Contractor is unable
to
comply with Purchaser's Remote
Access policy or otherwise denied access to Purchaser's network.
17.3. Safety.
Contractor shall observe and comply with OSHA regUlations, all applicable safety and
environmental laws and regulations, and all Purchaser's rules, guidelines, policies and
procedures relating to safety, workplace conditions, health and the environment,
including physical, fire, evacuation, accidents, hazardous materials or situations, or other
safety regulations and policies.
18.
Limits
of
Master
Contract
Use
and Authorization
Contractor shall obtain authorization from DIS when a Purchaser order exceeds $250,000 or
includes any purchase in the Optical Network Category. For video conferencing purchases,
Contractor will use commercially reasonable efforts
to
assure the Purchaser has followed the
requirements set forth in the Information Services Board (lSB) Policy located at
www.isb.wa.gov/policics/dcfault.aspx (ISB policy referencing video telecommunications
is
201
S3shown
as
20 I-S
1).
19.
Contractor Service Personnel
During the entire term
of
the Mastcr Contract the Contractor shall have employees or
Subcontractors who hold the following Cisco certifications:
a) A minimum
offour
(4) personnel certified as
CCDAlCCNA;
b) A minimum
of
two (2) personnel certified
as
CCIP;
c) A minimum
of
one (1) person certified as CCIE; and
d) A minimum
of
eight (8) personnel eertified as CCNP/CCDP.
State
of
Washington
Cisco Products and Services
Department ofInformation Services
12
Master Contract
#
Tl2-MST-642
20.
Equipment Compatibility, Specifications and Configurations
20.1.
Conractor shall use commercially reasonable efforts
to
make available
Purchaser information regarding the existance
of
any compatibility issues
between Contractor's Equipment and Purchaser's already existing or planned
for hardware, software, cabling, codecs, CSU/DSUs, inverse multiplexers,
terminal adapters, etc. Purchaser will provide Contractor access in a timely
fashion
to
necessary areas and Equipment sites and shall provide Contractor
with a list
of
any existing or planned for hardware, software and cabling, as
necessary. While Contractor agrees to make such information available
to
Purchaser, Purchaser expressly acknowledges and agrees that it is solely
responsible for determination and implementation
of
its network design and
Contractor is not liable for Purchaser's compatibility issues.
20.2.
Each item
of
Equipment delivered hereunder will be supplied with a limited
warranty as set forth in Section 23.
20.3.
If
requested by Purchaser, Contractor will use commercially reasonable efforts
to
identity, on all items
of
Equipment supplied under this Master Contract, all
appropriate test points for connecting commercially available equipment
monitors designed
to
measure system capacity, performance, or activity.
21.
Demonstration Equipment
Contractor agrees to provide demonstration Equipment to Purchaser, to the extent such Equipment
is
available for demonstration, pursuant
to
a separate equipment loan agreement.
22.
Installation and Set-up
If
within the scope
of
the RFQQ and Master Contract and
if
available on the
Global Price List
as
stand-alone items or as Advanced Services the following section shall apply to Installation and
Set-up:
22.1.
When requested in an Order Document by Purchaser and agreed to
by
the
parties in a statement
of
work where applicable, Contractor shall provide
installation serviees for products purchased under this Contract according
to
the provisions
of
this Section.
22.2.
Contractor shall separately itemize all installation and physical requirements
for Equipment
as
listed below:
a) Air eonditioning
b) Electrieal requirement
c) Special grounding
d)
Cabling requirement
e) Weight (floor loading)
f)
Space requirements
g)
Humidity and temperature limits
h) Noise level
State
of
Washington
Cisco Products and Services
Department
of
Information Services
13
Master Contract # T 12-MST -642
22.3.
When installing Equipment, Contractor will provide,
a) A written installation support plan and schedule addressing staffing, site preparation
requirements, resource allocation, testing procedures;
b)
Site surveys;
c) Station reviews to identify user requirements;
d) An on-site Manufacturer certified technician during and after the cutover until the
Equipment operates properly;
e) On-site user training for the Products;
f)
System administration and Product training; and
22.4.
Contractor personnel shall be Manufacturer certified
in
accordance with
Manufacturer requirements. Upon request Contractor will furnish a copy
of
such certification to Purchaser or DIS.
22.5.
Purchaser shall have access to the work site at all times during installation.
22.6.
Purchaser shall prepare the environment to house the Equipment based upon
written requirements provided by Contractor in its installation plan,
as
modified in writing and agreed to by the parties. Contractor's specialists shall
be available to provide required consultation related to environment
preparation at no extra cost to Purchaser apart from the costs presented
in
Contractor's Response. Any requirements for the environment not disclosed in
Contractor's installation plan will be completed by Contractor at no additional
cost to Purchaser. Purchaser will provide standard commercial power.
Contractor shall install an external, Manufacturer recommended surge protector
between the power source and each major system.
22.7.
Contractor will acquire any permits, ifrequired, at no additional cost
to
Purchaser. Contractor shall replace, restore andlor return all floors, ceilings,
walls, grounds, pavement, etc., damaged by Contractor personnel to their original
condition at no additional cost to Purchaser.
22.8.
Contractor is hereby notified that fiber optic, communications, control systems,
and other types
of
cable (collectively called "cabling") may be located within
or on Purchaser's grounds and facilities.
22.9.
Before beginning work on or about Purchaser's premises, Contractor shall
contact Purchaser's communications network control center to determine
if
Purchaser's cabling systems will be impacted and to make necessary
arrangements. Prior to the commencement
of
any work that may impact
underground utilities not owned by Purchaser, Contractor agrees to notify
affected owners under the requirements
of
chapter 19.122 RCW, Underground
Utilities.
22.10. Purchaser hereby permits Contractor to interface with such cabling and design
engineering systems in support
of
the delivery
of
the Products and Services
ordered under this Master Contract.
22.11. Contractor shall install the Products, with all features, options, parts and wiring
ordered by Purchaser, on or before the Installation Dale(s) specified in the
Order Document/statement
of
work. Failure to meet the Installation Date(s)
may subj ect Contractor to tennination
of
an Order
or
of
this Contract and
State
of
Washington
Cisco Products and Services
Department
of
Information Services
14
Master Contract
#
Tl2-MST
-642
damages available under law, unless such failure
is
caused by acts or omissions
of
Purchaser.
22.12. Testing
of
installed Equipment and the acceptance terms
of
any installation services
will be set forth in the Intallation Documement.
23.
Equipment Warranty
23.1.
Contractor warrants that from the Acceptance Date and continuing for a period
of
the longer
of
a) ninety (90) days or b) the period set forth in the Warranty
Card accompanying the product, the Warranty Period, the Hardware will be
free from defects in material and workmanship under normal use. This limited
warranty extends only to the original user
of
the Product.
23.2.
Purchaser's sole and exclusive remedy and the entire liability
of
Contractor
under this limited warranty will be, at Contractor's option, shipment
of
a
replacement within the period and according to the replacement process
described in the Warranty Card, or a refund
of
the purchase price,
if
the
Hardware
is
returned to the party supplying
it
to Purchaser,
if
different from
Contractor, freight and insurance prepaid. Contractor replacement parts, used
in Hardware repair, may be new
or
equivalent to new. Contractor's obligations
hereunder are conditioned upon the returned
of
affected Products, in
accordance with Contractor's then-current Return Material Authorization
(RMA) procedures.
23.3.
Contractor agrees that all warranty service provided hereunder shall be
performed by Manufacturer-trained, certified, and authorized technicians.
Contractor further agrees to act as the sole point
of
contact for warranty
service. Contractor warrants that it has or will obtain and pass through to
Purchaser any and all warranties obtained or available from the Original
Equipment Manufacturer (OEM), including any replacement, upgraded, or
additional Equipment warranties.
23.4.
Contractor shall provide Help Desk Services for reporting warranty issues and to
assist with the RMA procedures.
23.5.
For Products under purchased maintenance contracts, Contractor shall provide
escalation procedures to ensure that the proper level
of
attention and resourees
are directed towards resolution
of
Products and Services problems in a timely
manner. The escalation procedures shall indicate the steps to be taken in
response to a problem report, the contact information and title
of
Contractor's
employee(s) responding at each level and the elapsed time before the next level
of
response is invoked. Contractor's severity and escalation procedures are
located at: .
http://www.cisco.com/web/about/doing business/lcgal/service dcscriptions/in
dex.html.
23.6.
Restrictions. This warranty does not apply
if
the Product (a) has been altered,
except by Cisco, (b) has not been installed, operated, repaired, or maintained in
accordance with instructions supplied by Cisco, (c) has been subjected to
abnormal physical or electrical stress, misuse, negligence, or accident; or (d)
is
sold or, in the case
of
Software, licensed, for beta, evaluation, testing
or
State
of
Washington
Cisco Products and Services
Department
of
Information Services
15
Master Contract # T 12-MST -642
demonstration purposes for which Cisco does not receive a payment
of
purchase
price or license fee.
23.7.
DISCLAIMER
OF
WARRANTY.
EXCEPT
AS SPECIFIED IN THIS
SECTION 2, ALL EXPRESS
OR
IMPLIED CONDITIONS,
REPRESENTATIONS,
AND
WARRANTIES INCLUDING,
WITHOUT
LIMIT A TION, ANY IMPLIED
WARRANTY
OR
CONDITION
OF
MERCHANTABILITY, FITNESS
FOR
A
PARTICULAR
PURPOSE,
NONINFRINGEMENT,' SATISFACTORY
QUALITY
OR
ARISING
FROM
A
COURSE
OF
DEALING, LAW, USAGE,
OR
TRADE
PRACTICE, ARE
HEREBY
EXCLUDED
TO
THE
EXTENT
ALLOWED
BY
APPLICABLE
LAW.
TO
THE
EXTENT AN IMPLIED
WARRANTY
CANNOT
BE
EXCLUDED, SUCH
WARRANTY
IS LIMITED IN
DURATION
TO
THE
WARRANTY
PERIOD. THIS
DISCLAIMER
AND
EXCLUSION SHALL
APPLY EVEN IF
THE
EXPRESS
WARRANTY
SET
FORTH
HEREIN
FAILS
OF
ITS ESSENTIAL PURPOSE.
PURCHASER
MUST
NOTIFY
CISCO
PROMPTLY
OF
ANY
CLAIMED
BREACH
OF
WARRANTY.
24.
SMARTNet Support
24.1.
Contractor shall offer Purchaser technical support and maintenance through
it's
SMARTnet Service pursuant to the provisions
of
this Section and as further
described at
http://www.cisco.comlwcb/about/doing busincss/lcgaJfscrvicc..JJ&scriptions/indc
x.html.
24.2.
So long as Equipment remains continuously under SMARTnet Support,
Contractor shall be able to certify that existing equipment shall be eligible for
Cisco SMARTnet coverage. Any equipment that experiences a lapse
of
coverage
or
is damagedmust
be
inspected
and
certified by Contractor at
Contractor's then current fees for such services. For Services ordered at the
time
of
Equipment purchase, the term
of
any SMARTNet coverage commences
on
the Acceptance Date, unless otherwise agreed to
by
Cisco.
24.3.
Contractor may offer Purchasers a
one
(1),
two (2), three (3), four (4)
or
five
(5)
year
support agreement, however, Contractor may bill Purchaser no more
than one year in advance.
24.4.
SMARTNet Support shall include the following:
I)
software support
on
the licensed operating system software, such as Cisco lOS
Software
or
Catalyst OS, for covered Cisco products, including maintenance,
minor, and major releases as defined
in
the SMARTNet Service Description
at:
http://www.cisco.com/web/about/doing busincss/legal/servicc dcscriptions/in
dcx.html;
2) Twenty-four (24) hour access to Cisco Technical Assistance Center (TAC);
3) Registered access to Cisco.com, which provides easy access to online
technical information
and
service request management;
State
of
Washington
Cisco Products and Services
Department
of
Information Services
16
Master Contract
#
T 12-MST -642
4) Advance replacement
of
hardware parts depending on the need and coverage
selected.
25.
Equipment and Maintenance Documentation
Contractor shall provide two (2) complete sets
of
documentation for each Equipment Order,
including technical, electrical, maintenance, and installation information and will provide updated
doeumentation for the term
of
this Contract. There shall be no additional charge for this
documentation or the updates, in whatever form provided. Contractor's Equipment
documentation shall be comprehensive, well-structured, and indexed for easy reference.
If
Contractor maintains its technical, electrical, maintenance and installation documentation on a
web site, Contractor may fulfill the obligations set forth in this seetion by providing Purehaser
access to its web-based documentation infOlmation. Contractor may also provide such
intormation on CD-ROM. Purchaser may make a reasonable number
of
copies
of
the
documentation; provided however, that Purchaser shall not remove, overprint
or
change any
notice, including as to ownership or confidentiality from any originals
or
copies
of
the
documentation. Purchaser has no right, and specifically agrees not to modify or adapt the
documentation or create derivative works based
on
the documentation, or permit third parties
to
do the same. Contractor grants Purchaser the right to update, modify, copy
or
otherwise
reproduce the documentation pursuant to this section at no additional charge.
26.
Spare Parts for Equipment
26.1.
Contractor shall make available
to
Purchaser a depot repair center.
If
Purchaser requires on-site spares, and at Purchaser's request, Contractor will
assist Purchaser in detennining the appropriate inventory
of
spares. Purchaser
will order equipment spares in the same manner in which Purchaser orders all
other Equipment.
26.2.
Contractor will provide the following support with regard to a Product's end-of-sale. The
general policy guidelines are:
a)
As a general rule, Contractor will provide 6 months' notice
of
the affected Product's
end-of-sale date and/or the last day when the affected Product can
be
ordered. This
notice will appear on cisco.com site
(http://www.Contractor.com/enIUS/products/prod
~
end _ oClife.html)
b) Access to Contractor's Technical Assistance Center (TAC) will be available 24 hours
a day, seven days a week for a period
offive
(5) years from the end-of-sale date for
hardware and operating system software issues and for a period
of
three (3) years from
the end-of-sale date for application software issues.
c)
Spares
or
replacement parts for hardware will be available for a period
of
five (5) years
from the end-of-sale date. Contractor will provide spares and replacement parts in
accordance with our Return Materials Authorization (RMA) process.
d) Where available, Contractor will provide bug fixes, maintenance releases,
workarounds, or patches for critical bugs reported via the TAC
or
cisco.com Web site
for a period
of
five (5) years from the end-of-sale date for operating system software
and for a period
of
three (3) years from the end-of-sale date for application software.
Bcar in mind that it may be necessary to use a software upgrade release to correct a
reported problem.
State
of
Washington
Cisco Products and Services
Department
of
Information Services
17
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27.
Contractor Escalation Procedures
Contractor shall provide escalation procedures to ensure that the proper level
of
attention and
resourees are directed towards resolution
of
Products and Services problems
in
a timely manner.
The escalation procedures shall indicate the steps to be taken in response to a problem report, the
contact information and title
of
Contractor's employee(s) responding at each level and the elapsed
time before the next level
of
response is invoked.
28.
Contractor Commitments, Warranties and Representations
Any written commitment by Contractor within the scope
of
this Contract shall be binding upon
Contractor. Failure
of
Contractor to fulfill such a commitment may constitute breach and shall
render Contractor liable for damages under the terms
of
this Contract. For purposes
of
this section,
a commitment by Contractor includes:
(i)
Prices, discounts, and options committed to remain
in
force over a specified period
of
time; and (ii) any warranty
or
representation made by Contractor in
its Response.
29.
Protection
of
Purchaser's Confidential Information
29.1.
Contractor acknowledges that some
of
the material and information that may
come into its possession or knowledge in connection with this Contract or its
performance may consist
of
Confidential Information. Contractor agrees to
hold Confidential Information in strictest confidence and not to make use
of
Confidential Information for any purpose other than the performance
of
this
Contract, to release it only to authorized employees or Subcontractors requiring
such information for the purposes
of
carrying out this Contract, and not to
release, divulge, publish, transfer, sell, disclose, or otherwise make the
information known to any other party without Purchaser's express written
consent or as provided
by
law. Contractor agrees to release such information
or
material only to employees or Subcontractors
(i)
on a "need to know" basis,
and (ii) who have signed a nondisclosure agreementthat contractually obligates
such employees and Subcontractors to maintain, the confidentiality
of
the
Confidential Information which have been previously approved
by
Purchaser.
Contractor agrees to implement physical, electronic, and managerial safeguards
to prevent unauthorized access to Confidential Information.
29.2.
Immediately upon expiration
or
termination
of
this Contract, Contractor shall, at
Purchaser's option, and upon written notice:
(i)
eertify to Purchaser that
Contractor has destroyed all Confidential Information;
or
(ii) return all
Confidential Information to Purchaser; or (iii) take whatever other steps
Purchaser requires
of
Contractor to protect Purchaser's Confidential
Information.
29.3.
Violation
ofthis
section by Contractor or its Subcontractors may result in
termination
of
this Contract and demand for return
of
all Confidential
Information, monetary damages, or penalties available
by
law.
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of
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Department
of
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Purchaser's
Authority and
Responsibilities
30.
Purchaser
Use
of Master Contract
30.1.
This Master Contract may be used only
by
Purchasers who have a Customer
Service Agreement with DIS and is not for personal use. Reference
of
this
Master Contract Number and/or Purchaser's signature on the order document
signifies agreement to comply with these requirements and all the terms
of
this
Master Contract. Failure to abide
by
these requirements and the terms
of
the
Master Contract may result in the Purchaser forfeiting the right to make future
purchases under this or other Master Contracts.
30.2.
Purchaser shall comply with the terms and conditions
of
this Master Contract,
including but not limited to,
Export
Restrictions, all Software license terms,
and the notice requirements set forth in the provision titled
Contractor's
Proprietary
Information.
Reference
of
this Master Contract Number and/or
Purchaser's signature on the order document signifies agreement to comply
with the terms and conditions
ofthis
Master Contract including Contractor's
software license terms, export restrictions and protection
of
Contractor's
confidential or proprietary information.
31.
Export Restrictions
Purchaser shall not transport or transmit, directly or indireetly, the Software or any technical data
received from Contractor, nor the direct product derived there from, outside the United States or
Canada without Contractor's prior written consent and without complying with all export laws
and regulations
of
the United States.
Software License
32.
License
Grant
Note that this Section "Software License" does not apply to WebEx or lronport software.
Terms and Conditions for such software are contained in Schedule A and B, respectively.
License Grant
32.1.
Contractor grants to Purchaser a non-exclusive, non-transferable lieense to the
Software for which Purchaser has fully-paid fees to use the Software and
related documentation according to the telms and conditions
of
this Contract
and the applicable End User License Agreement located at:
http://www.eisco.comlenlUS/docs/generaVwarranty/EnglishlEUlKEN_.html.
32.2.
Purchaser will not decompile, reverse engineer or disassemble any Software
provided under this Contract or modify Software that bears a copyright notice
of
any third party without the prior written consent
of
Contractor or Software
owner.
32.3.
Purchaser will make and maintain no more than one archival copy
of
each item
of
Software, and each eopy will contain all legends and notices and will be
subject to the same conditions and restrictions as the originaL Purchaser may
State
of
Washington
Cisco Products and Services
Department ofInformation Services
19
Master Contract # T12-MST·642
also make copies
of
the Software in the course
of
routine backups
of
hard
drive(s) for the purpose
of
recovery
of
hard drive contents. Purchaser may use
backup or archival copies
of
thc Software, without reinstallation or interruption
of
production copy(ies), for disaster recovery exercises at its disaster recovery
site(s), without additional charge. Purchaser may make these backup or
archival copies available to the disaster recovery site employees who require
use
of
the Software
in
order to assist Purchaser with disaster recovery
exercises. Purchaser agrees that production use
of
the Software at the disaster
recovery site(s) shall
be
limited to times when Purchaser's facilities, or any
portion thereof, are inoperable due to emergency situations.
32.4.
Business or Support Termination Rights. In the event that Contractor shall, for
any reason, cease to conduct business, or cease to support the Software
licensed under this Contract, Purchaser's license will survive; unless Purchaser
fails to comply with the license.
32.5.
Freedom
of
Use. Contractor understands that Purchaser may provide
information processing services to other users that are governmental entities
and other tax supported entities. Contractor further understands that Purchaser
may provide services to the public through web-based applications. Software
delivered hereunder may be used in the delivery
of
these services. Contractor
acknowledges and agrees that such use
of
Software products is acceptable
under the licensing agreements contained herein; provided however, that
Purchaser remains liable for any breach
of
the Software license undcr such use.
32.6.
In the event
of
a conflict between the terms
of
End User License Agreement
and the terms
of
the Master Contract, the terms
of
the Master Contract will
prevail.
33.
Software Warranty
33.1.
Contractor warrants that from the Acceptance Date and continuing for a period
of
the longer
of
(
a)
ninety (90) days
or
(b) the period set forth in the Warranty Card
accompanying the Product: (i) the media on which the Software is furnished will
be free
of
defects in materials and workmanship, under normal use; and (ii) the
Software substantially conforms to its pubHshed specifications. Except for the
foregoing, the Software is provided AS IS.This limited warranty extends only to
the Purchaser who
is
the original licensee. Purchaser's sole and exclusive remedy
and the entire liability
of
Contractor and its suppliers under this limited warranty
will be, at Contractor or its service center's option, repair, rcplacement,
or
refund
of
the Software ifreported (or, upon request, returned) to the party supplying the
Software to Purchaser,
if
different than Contractor. In no event, does Contractor
warrant that the Software is error free
or
that Purchaser will
be
able to operate the
Software without problems or interruptions. In addition, due
to
the continual
development
of
new techniques for intruding upon and attacking networks,
Contractor does not warrant that the Software or any equipment, system or
network on which the Software is used will be free
of
vulnerability to intrusion or
attack.
33.2.
Restrictions. This warranty does not apply
if
the Product (a) has been altered,
except by Contractor, (b) has not been installed, operated, repaired, or maintained
in accordance with instructions supplied by Contractor, (c) has been subjected to
State
of
Washington
Cisco Products
Department ofInformation Services
20
Master Contract # T 12-MST -642
abnonnal physical or electrical stress, misuse, negligence,
or
accident; or (d) is
sold or, in the case
of
Software, licensed, for beta, evaluation, testing or
demonstration purposes for which Contraetor does not receive a payment
of
purchase price or license fee.
33.3.
DISCLAIMER OF WARRANTY. EXCEPT AS SPECIFIED IN THIS
SECTION,
ALL EXPRESS
OR
IMPLIED CONDITIONS,
REPRESENT A TIONS, AND WARRANTIES INCLUDING, WITHOUT
LIMITATION, ANY IMPLIED WARRANTY
OR
CONDITION OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,
NONINFRINGEMENT, SATISFACTORY QUALITY
OR
ARISING FROM
A COURSE OF DEALING, LAW, USAGE, OR TRADE PRACTICE, ARE
HEREBY EXCLUDED TO THE EXTENT ALLOWED BY APPLICABLE
LAW. TO THE EXTENT AN IMPLIED WARRANTY CANNOT BE
EXCLUDED, SUCH WARRANTY
IS
LIMITED IN DURATION TO THE
WARRANTY PERIOD. THIS DISCLAIMER AND EXCLUSION SHALL
APPL Y EVEN IF THE EXPRESS WARRANTY SET FORTH HEREIN
FAILS OF ITS ESSENTIAL PURPOSE. PURCHASER MUST NOTIFY
CONTRACTOR PROMPTLY OF ANY CLAIMED BREACH OF
WARRANTY.
34.
Virus Warranty
Virus Warranty. Cisco warrants that the Software, when shipped by Cisco or downloaded from
CCO, is free from Viruses. As used herein, the
tenn
"Viruses" means codes programs or
commands designed to (l)alter, damage or erase computer data or programs or (2) pennit
unauthorized access to Customer systems, any
of
which is intended to destroy or cause the
Customer's system to malfunction. Customer's sole and exclusive remedy and the entire liability
of
Cisco and its suppliers under this warranty will be, at Cisco or its service center's option,
repair, replacement, or refund
of
the price
ofthe
infected software
if
reported (or, upon request,
return) to the party supplying the software to Customer,
if
different than Cisco.
35.
Software Maintenance and Support Services
Contractor shall provide a replacement, or refund
of
the price
of
the infected software
if
reported
(or, upon request, return) to the party supplying the software to Purchaser,
if
different from
Contractor at no additional cost to Purchaser for any error, malfunction, or defect in Software
that, when used as delivered, fails to perfonn substantially in accordance with the Specifications
and that Purchaser shall bring to Contractor's attention.
36.
Software Documentation
Contractor shall provide two (2) complete sets
of
documentation for each Software Order,
including technical, maintenance, and installation infonnation. Contractor shall also provide two
(2) complete sets
of
documentation for each updated version
of
Software Contractor provides
pursuant to the
Software Upgrades and Enhancements
section. Contractor shall provide the
documentation on or before the date Contractor delivers its respective Software. There shall be no
additional charge for this documentation or the updates, in whatever form provided. Contractor's
Software documentation shall be comprehensive, well structured, and indexed for easy reference.
State
of
Washington
Cisco Products and Services
Department
of
Informati on Services
21
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If
Contractor maintains its technical, maintenance and installation documentation on a web site,
Contractor may fulfill the obligations set forth in this section by providing Purchaser access to its
web-based documentation information. Purchaser may make a reasonable number
of
copies
of
the
documentation; provided however, that Purchaser shall not remove, overprint or change any
notice, including as to ownership or confidentiality from any originals or copies
of
the
documentation. Purchaser has no right, and specifically agrees not to modify or adapt the
documentation or create derivative works based on the documentation, or permit third parties to
do the same. Contractor may also provide such information on CD-ROM.
Contract Administration
37.
Legal Notices
37.1.
Any notice or demand or other communication required or permitted
to
be
given under this Contract or applicable law (except for subpoena or notice
of
legal process and except notice
of
malfunctioning Equipment or Software)
shall be effective only
if
it
is in writing and signed by the applicable party,
properly addressed, and either delivered
in
person, or by a recognized courier
service, or via facsimile, to the parties at the addresses and fax numbers
provided in this section. For purposes
of
complying with any provision in this
Contract or applicable law that requires a "writing," such communication,
when digitally signed with a Washington State Licensed Certificate, shall be
considered to be "in writing" or "written" to an extent no less than
if
it were
in
paper form.
To Contractor
at:
To DIS
at:
Cisco Systems, Inc.
State
of
Washington
300 East Tasman Drive
Department
of
Information Services
San Jose, CA 95134
Attn:
Master Contract Administrator
Attn:
If
by
US Postal Service:
If
by
Overnight Courier:
VP, Legal Affairs
PO Box 42445
1500 Jefferson
st.
SE
Olympia, W A 98504
Olympia, W A 98502-2445
Phone: 408-853-4844
Phone: 360-902-3374
Fax:
408-526-8220
Fax:
360-586-1414
E-mail: mcadmin@dis.wa.gov
E-mail:
NA
or
to
Purchasers
at the address and fax number listed on their purchase order.
37.2.
Notices shan be effective upon receipt or four (4) Business Days after mailing,
whichever is earlier. The notice address as provided herein may be changed by
written notice given as provided above.
37.3.
In the event that a subpoena or other legal process commenced
by
a third party
in any way concerning the Products or Services provided pursuant
to
this
Contract is served upon Contractor or Purchaser, such party agrees to notify the
Cisco Products and Services
State
of
Washington
22
Master Contract
#
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Department
of
Information Services
other party
in
the most expeditious fashion possible following receipt
of
such
subpoena or other legal process.
38.
Contractor Account Manager
Contractor shall appoint
an
Account Manager for the State's account under this Contract who will
provide oversight
of
Contractor activities conducted hereunder. Contractor's Account Manager
will be the principal point
of
contact for DIS concerning Contractor's performance under this
Contract. Contractor shall notify the DIS Contract Administrator, in writing, when there is a new
Contractor Account Manager assigned to this Contract. The Contractor Account Manager
information is:
Contractor Account Manager: Jake Taylor
Address: 4160 6
th
Avenue SE, Suite 203, Lacey, W A 98503
Phone: 360-493-6420
Fax:
N/A
E-mail: jaktaylo@cisco.com
39.
Contractor Project Manager
Contractor shall assign a Contractor Project Manager for each Purchaser project. Purchaser shall
have approval rights over the Contractor Project Manager, or any replacements thereof. The
Contractor Project Manager shall be the principal point
of
contact for Purchaser and shall
coordinate Contractor's activities. The Contractor Project Manager shall produce and maintain a
complete plan for all Contractor-related activities concerning installation and training.
40.
Section Headings, Incorporated Documents and Order
of
Precedence
40.1.
The headings used herein are inserted for convenience only and shall not
control or affect the meaning or construction
of
any
of
the sections.
40.2.
Each
of
the documents listed below is,
by
this reference, incorporated into this
Contract as though fully set forth herein.
a) Schedules A, B;
b)
DIS' RFQQ (Exhibit A);
c) Contractor's Response to DIS' RFQQ (Exhibit B);
d) The tenns and conditions contained on Purchaser's Order Documents, ifused(excluding
any pre-printed terms and conditions); and
e) All Contractor or manufacturer publications, written materials and schedules, charts,
diagrams, tables, dcscriptions, other written representations and any other supporting
materials Contractor made available to Purchaser and used to effect the sale
of
Equipment to Purchaser.
40.3.
In
the event
of
any inconsistency in this Contract, the inconsistency shall be
resolved in the following order
of
precedence:
a) Sections
of
this Contract;
b) Schedules
A,
B;
c) DIS' RFQQ (Exhibit
A);
d)
Contractor's Response to DIS' RFQQ (Exhibit B);
State
of
Washington
Cisco Products and Services
Department ofInformation Services
23
Master Contract # T 12-MST -642
e) The terms and conditions contained on Purchaser's Order Documents,
if
used; provided
that the pre-printed terms and conditions have no force and effect· and
,
f)
All Contractor
or
manufacturer publications, written materials and schedules, charts,
diagrams, tables, descriptions, other written representations and any other supporting
materials Contractor made available to Purchaser and used to effect the sale
of
Equipment to Purchaser.
41.
Entire Agreement
This Contract sets forth the entire agreement between the parties with respect to the subject
matter hereof and except as provided in the section titled
Contractor Commitments,
Warranties and Representations,
understandings, agreements, representations,
or
warranties
not contained in this Contract or a written amendment hereto shall not be binding on either party.
Except as provided herein, no alteration
of
any
of
the terms, and conditions,
of
this Contract will
be effective without the written consent
of
both parties.
42.
Authority for Modifications and Amendments
No modification, amendment, alteration, addition, or waiver
of
any section
or
condition
of
this
Contract shall be effective or binding unless it is in writing and signed by DIS and Contractor.
43.
Additional Products and Services
Contractor may submit new Products and Services with associated discounts or prices to the DIS
Contract Administrator. New or changed Produets and Services submitted by Contractor shall
meet all mandatory requirements
of
the RFQQ. Additional Products or Services that are
determined by DIS to be appropriate to the scope
of
this Master Contract, may be added to this
Master Contract by an instrument
in
writing, signed by both Contractor and DIS. Such writing
shall include a specifie description
of
the additional Products and/or Services, pricing, and
additional terms and conditions as relevant.
44.
Independent Status
of
Contractor
In the performanee
of
this Contract, the parties will be acting in their individual, corporate or
governmental capacities and not as agents, employees, partners, joint venturers, or associates
of
one another. The parties intend that an independent contractor relationship will be created by this
Contract. The employees
or
agents
of
one party shall not be deemed or construed to be the
employees or agents
of
the other party for any purpose whatsoever. Contractor shall not make any
claim
of
right, privilege
or
benefit which would accrue to an employee under chapter 41.06 RCW
(State Civil Service Law) or Title
51
RCW (Industrial Insurance).
45.
Governing Law
This Contract shall be governed in all respects by the law and statutes
of
the state
of
Washington,
without reference to conflict
of
law principles. The jurisdiction for any action hereunder shall be
exclusively in the Superior Court for the state
of
Washington. The venue
of
any aetion hereunder
shall be in the Superior Court for Thurston County or the county in which Purchaser is located
within the state
of
Washington.
State
of
Washington
Cisco Products and Services
Department ofInformation Services
24
Master Contract # Tl2-MST-642
46.
Rule
of
Construction as to Ambiguities
Each party to this Master Contract acknowledges that such party has reviewed this Agreement
and participated in its drafting and agrees that no provision
of
this Master Contract shall be
construed against or interpreted to the disadvantage
of
a party by reason
of
such party having
or
being deemed
to
have drafted, structured or dictated such provision or provisions.
47.
Subcontractors
47.1.
Contractor may, with prior written permission from DIS Contracting Officer,
which consent shall not be unreasonably withheld, enter into subcontracts with
third parties for its performance
of
any part
of
Contractor's duties and
obligations.
In
no event shall the existence
of
a subcontract operate to release
or
reduce the liability
of
Contractor to Purchaser for any breach
in
the
performance
of
Contractor's duties. For purposes
of
this Contract, Contractor
shall be liable for any loss or damage to Purchaser, subject to the Limitation
of
Liability section
ofthe
agreement, including but not limited to personal injury,
physical loss, harassment
of
Purchaser employees, or violations
of
the
Patent
and Copyright Indemnification, Protection
of
Purchaser's
Confidential
Information,
and
Software Ownership
sections
of
this Contract occasioned
by
the acts or omissions
of
Contractor's Subcontractors, their agents or
employees. The
Patent and Copyright Indemnification, Protection
of
Purchaser's Confidential Information, Software Ownership, Publicity
and
Review
of
Contractor's Records
sections
of
this Contract shall apply to all
Subcontractors.
47.2.
Contractor may request new or additional Subcontractors be added to the
Contract at any time. Contractor shall submit the request
to
the TSD Contract
Administrator, identifying any Subcontractor limitations
in
the request.
Approval shall be documented through an amendment to the Contract.
48.
Assignment
48.l.
With the prior written consent
of
DIS Contracting Officer, which consent shall
not be unreasonably withheld, Contractor may assign this Contract including
the proceeds hereof, provided that such assignment shall not operate to relieve
Contractor
of
any
of
its duties and obligations hereunder prior
to
the date
of
assignment, nor shall such assignment affect any remedies available to
Purchaser that may arise from any breach
of
the sections
of
this Contract,
or
warranties made herein including but not limited to, rights
of
setoff prior to the
date
of
assigment.
48.2.
Upon advance written notice, DIS may assign this Contract to any public
agency, commission, board, or the like, within the political boundaries
of
the
state
of
Washington, provided that such assignment shall not operate to relieve
Purchaser
of
any
of
its duties and obligations hereunder.
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of
Washington
Cisco Products and Services
Department oflnfonnation Services
25
Master Contract
#
Tl2-MST-642
49.
Publicity
49.1.
The award
of
this Contract to Contractor is not
in
any
wayan
endorsement
of
Contractor or Contractor's products
by
DIS or Purchaser and shall not be so
construed by Contractor in any advertising or other pUblicity materials.
49.2.
Contractor agrees to submit to DIS, all advertising, sales promotion, and other
publicity materials relating to this Contract or any Product furnished by
Contractor wherein DIS' or Purchaser's name is mentioned, language is used, or
Internet links are provided from which the connection
of
DIS' or Purchaser's
name with Contractor's Products or Services may, in DIS' or Purchaser's
judgment, be inferred
or
implied. Contractor further agrees not to publish or use
such advertising, sales promotion materials, pUblicity or the like through print,
voice, the World Wide Web, and other communication media in existence or
hereinafter developed without the express written consent
of
DIS or Purchaser
prior
to such use.
50.
Review
of
Contractor's Records
50.1.
Contractor and its Subcontractors shall maintain books, records, documents
and other evidence relating to this Contract, including but not limited to
protection and use
of
Purchaser's Confidential Information, and accounting
procedures and practices whieh sufticiently and properly reflect all direct and
indirect costs
of
any nature invoiced in the performance
of
this Contract.
Contractor shall retain all such records for six (6) years after the expiration or
termination
of
this Contract. Records involving matters in litigation related to
this Contract shall be kept for either one
(1)
year following the termination
of
litigation, including all appeals, or six (6) years from the date
of
expiration or
termination
of
this Contract, whichever is later.
50.2.
All such records shall be subject at reasonable times and upon prior notice
to
examination, inspection, copying, or audit by personnel so authorized by the
DIS Contract Administrator and/or the Office
of
the State Auditor and federal
officials so authorized by law, rule, regulation or contract, when applicable, at
no additional cost to the State. During this Contract's term, Contractor
shaU
provide access to these items within Thurston County or the county where
Purchaser is located. Contractor shall be responsible for any audit exceptions or
disallowed costs incurred by Contractor or any
of
its Subcontractors.
50.3.
Contractor shall incorporate in its subcontracts this section's records retention
and review requirements.
50.4.
It
is agreed that books, records, documents, and other evidence
of
accounting
procedures and practices related to Contractor's cost structure, including
overhead, general and administrative expenses, and profit factors shall be
ex eluded from Purchaser'S review unless the cost or any other material issue
under this Contract is calculated or derived from these factors.
State
of
Washington
Cisco Products and Services
Department
of
Information Services
26
Master Contract # T 12-MST -642
General Provisions
51.
Patent and Copyright Indemnification
51.1
Cisco will have the obligation to defend any claim, suit or proceeding brought against
~IS
or Purchaser, so far as it
is
based on a claim that any Products infringe a copyright or
Issued patent or for a reasonable royalty on a published patent application enforceable
in
the United States (in all cases, such copyright or patent existing or issued no later than
five years following the termination or expiration
of
this Contract or a patent application
published as
of
the date oftennination or expiration
of
this contract) or misappropriates a
trade secret. Cisco shall pay all costs
of
such defense and settlement and any penalties,
costs, damages and attorneys' fees awarded by a court
of
competent jurisdiction or
reasonably incurred
by
DIS or Purchaser. Cisco's obligations specified in this paragraph
will be conditioned
on:
a.
DIS or Purchaser notifYing Cisco promptly
in
writing
of
the claim or threat thereof,
but DIS' or Purchaser's failure to provide timely notice shall only relieve Cisco from
its defense obligations
if
and to the extent such late notice prejudiced the defense or
resulted
in
increased expense or loss to Cisco;
b.
DIS or Purchaser agreeing
to
use its best efforts to encouragc the Office
of
the
Attorney General
of
Washington to give Cisco full and exclusive authority for the
defense and settlement thereof and any subsequent appeal. In the event that DIS or
Purchaser has used its best efforts
as
aforesaid and the Office
of
the Attorney General
of
Washington participates in the defense and settlement
of
the claim and any
subsequent appeal, DIS or Purchaser agrees:
(i)
that any participation shall
be
at the
cost and expense
of
DIS or Purchaser; and (ii) that the Office
of
the Attorney General
of
Washington shall not prevent Cisco from settling the claim provided that any such
settlement or compromise includes a release
of
the state
of
Washington and
Purchaser from all liability arising out
of
the claim; and
c.
DIS or Purchaser providing infonnation for and assistance with the defense and
settlement thereof and any subsequent appeal.
51.2
If
such claim has occurred, or in Cisco's opinion
is
likely
to
occur, DIS and Purchaser
agree to pennit Cisco,
at
its option and expense, either
to:
(a) procure for Purchaser the
right to continue using the Products; (b) replaee or
modifY
the same so that it becomes
non-infringing; or (c)
if
neither
of
the foregoing alternatives is reasonably available,
immediately terminate Cisco's obligations (and Purchaser's rights) under this Contract
with regard to such Products, and,
if
Purchaser returns such Products to Cisco, refund to
Purchaser the price originally paid by Purchaser to Cisco for such Products, less
reasonable amortization for use.
51.3 Notwithstanding the foregoing, Cisco has no liability for any claim
of
infringement based
upon: (a) the combination, operation, or use
of
any Products with equipment, devices, or
software not supplied
by
Cisco, (b) alteration or modification
of
any Products; or (c)
Cisco's compliance with Purchaser's designs, specifications, or instructions; unless the
claim arose against Cisco's Product
independently
of
any
of
these specified actions.
51.4 Cisco also shall have no liability for any claim based upon the amount or duration
of
use
that Purchaser makes
of
the Product or revenue from services provided by Purchaser to
external or internal customers that utilize the Products, except that this does not limit
Cisco's obligations under subsection
51.1
for claims alleging infringement
of
the
Products and Reports themselves.
State
of
Washington
Cisco Products and Services
Department
of
Information
Services
27
Master Contract #
Tl2-MST
-642
51.5
Notwithstanding any other provisions hereof, Cisco shall not be liable for any claim based
on Purchaser's use
of
the Products after Cisco has informed Purchaser
of
modifications
or changes in the Products required
to
avoid such claims and offered to implement those
modifications or changes,
if
such claim would have been avoided by implementation
of
Cisco's suggestions.
The foregoing states the entire obligation
of
Cisco and its suppliers and the exclusive remedy
of
Purchaser with respect
to
infringement or misappropriation
of
intellectual property rights. The
foregoing is given
to
DIS and Purchaser solely for their benefit and in lieu of, and Cisco
disclaims, all warranties
of
non-infringement with respect to the Products.
52.
Save Harmless
Contractor, DIS and Purchaser shall protect, indemnify, and save each other harmless,
to
the extent
permitted by law, from and against any claims, damages, losses, liabilities or expenses including
reasonable attorneys' fees resulting from any third-party claims, for any or all bodily injuries
to
persons or damage to tangible personal property excluding lost data) arising from intentional, willful
or negligent acts or omissions
ofthe
indemnifying party, its officers, employees, or agents, or
subcontractors. In the event
of
a third-party claim, the damages and expenses, including reasonable
attorneys' fees, shall be allocated between the parties in proportion
to
the relative fault
of
each party,
its officers, employees, agents, or subcontractors.
53.
Insurance
53.
1.
Contractor shall, during the Term
of
this Contract, maintain in full force and effect, the
insurance described in this section. Contractor shall acquire such insurance from an
insurance carrier or carriers licensed to conduct business in the State
of
Washington
53.l.a.
In
the event
of
cancellation, non-renewal, revocation or other termination
of
any
insurance coverage required by this Contract, Contractor shall provide written notice
of
such
to
DIS within thirty (30) business days
of
Contractor's reeeipt
of
such notice.
Failure to buy and maintain the required insurance may, at DIS' sole option, result in this
Contract's termination.
53.I.b. The minimum acceptable limits shall
be
as indicated below:
I.
Commercial General Liability covering the risks
of
bodily Injury (including
death), property damage and personal injury, including coverage for contractual
liability, with a limit
of
not less than
$1
million per occurrence/S2 million general
aggregate;
11.
Business Automobile Liability (owned, hired, or non-owned) covering the risks
of
bodily injury (including death) and property damage, including coverage for
contractual liability, with a limit
of
not less than
$1
million per accident;
iii.
Employers Liability insurance covering the risks
of
Contractor's employees'
bodily injury by accident or disease with limits
of
not less than
$1
million per
accident for bodily injury by accident and
$1
million per employee for bodily
injury by disease;
iv.
Umbrella policy providing excess limits over the primary policies in
an
amount
not less than $3 million;
State
of
Washington
Cisco Products and Services
Department
of
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28
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53.1:c Contractor shall pay premiums on all insurance policies. Such insurance policies
certlficate(s) shall name DIS as an additional insured on all general liability coverage, but
only
to
the extent
of
liabilities falling within Contractor's indemnification obligations
under the Contract. Such insurance certificates shall also reference this Contract number
Tl2-MST
-642.
53.l.d. All insurance provided by Contractor shall be primary as to any other insurance
or self-insurance programs afforded to
or
maintained by the State subject
to
the hold
harmless/ indemnification agreements under this Contract and shall include a severability
of
interests (cross-liability) provision.
53.I.e Contractor shall furnish separate certificates
of
insurance and endorsements for
each Subcontractor. Subcontractor(s) shall comply fully with all insurance requirements
stated herein. Failure
of
Subcontractor(s) to comply with insurance requirements does not
limit Contractor's liability
or
responsibility.
53.I.f. Contractor shall furnish to DIS copies
of
certificates
of
all required insurance
within thirty (30) calendar days
of
this Contract's Effective Date, and copies
of
renewal
certificates
of
all required insurance within thirty (30) days after the first business day in
the month
of
April for each successive year that this Contract is in full force and effect.
Failure to provide evidence
of
coverage may, at DIS' sole option, result in this Contract's
termination.
53.l.g
By requiring insurance herein, DIS does not represent that coverage and limits will
be adequate
to
protect Contractor. Such coverage and limits shall not limit Contractor's
liability undcr the indemnities and reimbursements granted to the State in this Contract.
54.
Licensing Standards
Contractor shall comply with all applicable local, state, and federal licensing, accreditation and
registration requirements and standards necessary in the performance
of
this Contract. (See, for
example, chapter 19.02 RCW for state licensing requirements and definitions.)
55.
OSHAJWISHA
Contractor represents and warrants that its Products, when shipped, are designed and
manufactured to meet then current federal and state safety and health regulations. Contractor
agrees to indemnifY and hold DIS and Purchaser harmless from all damages assessed against DIS
or
Purchaser as a result
of
the failure
of
the Products furnished under this Contract to so comply.
56.
Antitrust Violations
Contractor and Purchaser recognize that in actual economic practice overcharges resulting from
antitrust violations are usually borne by Purchaser. Therefore, Contractor hereby assigns to
Purchaser any and all claims for such overcharges
as
to goods and services purchased in
connection with this Contract, except as to overcharges not passed on
to
Purchaser resulting
fi-om
antitrust violations commencing after the date
of
the bid, quotation, or other event establishing the
Price under this Contract.
State
of
Washington
Cisco Products and Services
Department ofInformation Services
29
Master Contract # T 12-MST -642
57.
Compliance with Civil Rights Laws
During the perfonnance
of
this Contract, Contractor shall comply with
all
federal and applicable
state nondiscrimination laws, including but not limited
to:
Title VII
of
the Civil Rights Act, 42
U.S.C. §12101
et
seq.;
the Americans with Disabilities Act (ADA); and Title 49.60 RCW,
Washington Law Against Discrimination.
In
the event
of
Contractor's noncompliance or refusal
to comply with
a~y
nondiscrimination law, regulation or policy, this Contract may be rescinded,
canceled,
or
termmated
in
whole or in part under the
Termination
for Default sections, and
Contractor may be declared ineligible for further contracts with the State.
58.
Severability
If
any
tenn
or condition
of
this Contract or the application thereof is held invalid, such invalidity
shall not affect other tenns, conditions, or applications which can be given effect without the
invalid tenn, condition, or application; to this end the terms and conditions
ofthis
Contract are
declared severable.
59.
Waiver
Waiver
of
any breach
of
any tenn or condition
of
this Contract shall not
be
deemed a waiver
of
any prior or subsequent breach. No
tcnn
or
condition
of
this Contract shall be held to be waived,
modified, or deleted except by a written instrument signed by the parties.
60.
Treatment of Assets
60.1.
Title to all property furnished by Purchaser shall remain in Purchaser. Title
to
all
property furnished by Contractor, for which Contractor is entitled to reimbursement,
other than rental payments, under this Contract, shall pass to and vest in Purchaser
pursuant to the Title
to
Equipment
section. As used in this section
Treatment
of
Assets,
if
the "property" is Contractor's proprietary, copyrighted, patented, or
trademarked works, only the applicable license, not title, is passed to and vested in
Purchaser.
60.2.
Any Purchaser property furnished to Contractor shall, unless otherwise
provided herein or approved by Purchaser, be used only for the perfonnance
of
this Contract.
60.3.
Contractor shall be responsible for any loss
of
or
damage to tangible personal
property
of
Purchaser that results from Contractor's negligence or that results
from Contractor's failure to maintain and administer that property in
accordance with sound management practices.
60.4.
Upon loss
or
destruction of,
or
damage to any Purchaser tangible personal
property, Contractor shall notify Purchaser thereof and shall take all reasonable
steps to protect that property from further damage.
60.5.
Contractor shall surrender
to
Purchaser all Purchaser property prior to
completion, tennination, or cancellation
ofthis
Contract.
60.6.
All reference to Contractor under this section shall also include Contractor's
employees, agents, or Subcontractors.
State
of
Washington
Cisco Products and Services
Department
of
Information Services
30
Master Contract # Tl2-MST-642
61.
Contractor's Proprietary Information
63.1
Contractor acknowledges that DIS and Purchaser are subject
to
chapter 42.17 RCW and
that this Contract shall be a public record
as
defined in chapter 42.17 RCW. Any specific
information that is claimed by Contractor
to
be ProprietalY Information, must be clearly
identified
as
such by Contractor. To the extent consistent with chapter 42.17 RCW, DIS
and Purchaser shall maintain the confidentiality
of
all such information marked
Proprietary Information.
If
a public disclosure request is made
to
view Contractor's
Proprietary Information, DIS or Purchaser will notify Contractor
of
the request and
of
the
date that such records will be released
to
the requester unless Contractor obtains a court
order from a court
of
competent jurisdiction enjoining that disclosure.
If
Contractor fails
to
obtain the court order enjoining disclosure, DIS or Purchaser will release the requested
information on the date specified.
61.2.
Purchaser agrees to use Contractor's Proprietary Information only for the
performance
of
this Contract,
to
release it only to authorized employees
requiring such information for the purposes
of
carrying out this Contract, and
not
to
release, divulge, publish, transfer, sell, disclose, or otherwise make the
information known to any other party without Contractor's express written
consent or as provided by law. Purchaser agrees
to
implement physical,
electronic, and managerial safeguards
to
prevent unauthorized access
to
Proprietary Information.
61.3.
Purchaser shall havc no obligation with respect
to
information which:
a) was rightfully in possession
of
or known to Purchaser without any obligation
of
confidentiality prior
to
receiving it from Contractor;
b) is, or subsequently becomes, legally and publicly available without breach
of
this
Contract;
c)
is rightfully obtained by Purchaser from a source other than Contractor without any
obligation
of
confidentiality;
d) is developed by or for Purchaser without use
of
the Proprietary Information and such
independent development can be shown by documentary evidence;
e)
is disclosed by Purchaser pursuant
to
a valid order issued by a court or government
agency.
61.4.
Contractor shall retain all right, title and interest to its Proprietary Information.
By conveying Proprietary Information, Contractor does not grant any license
under any trademark, patent or copyright, or application for same, which is
now
or
thereafter may be obtained by such party.
61.5.
Purchaser shall not reverse-engineer, decompile, or disassemble any software
or
remove, overprint or deface any notice
of
copyright, trademark, logo,
legend, or other notices
of
ownership from any originals or copies
of
Proprietary Information disclosed to it.
61.6.
WITHOUT PREJUDICE TO THE EXPRESS WARRANTIES PROVIDED
ELSEWHERE IN THIS CONTRACT,
PROPRIETARY
INFORMATION
IS
PROVIDED "AS IS" WITH ALL FAULTS. IN NO
EVENT, SHALL CONTRACTOR BE LIABLE FOR THE ACCURACY
OR
COMPLETENESS OF THE PROPRIETARY INFORMATION.
State
of
Washington
Cisco Products and Services
Department
of
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31
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#
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61.7.
Notwithstanding termination
of
this Contract, the obligations
of
Contractor
with respect
to
Confidential Information received prior to termination shall
continue for three (3) years from the date the Propriet81Y Information was
received.
61.8.
Violation
of
this section by Contractor or its Subcontractors may result in
termination
of
this Contract and demand for return
of
all Confidential
Information, monetary damages, or penalties avalailable by law.
Disputes and Remedies
62.
Disputes
62.1.
In
the event a bona fide dispute concerning a question
of
fact arises between
Contractor and Purchaser and it cannot be resolved between the parties or
by
the DIS Contract Administrator, either party may initiate the dispute resolution
procedure provided herein. The parties agree that the dispute resolution process
set forth herein is non-binding.
62.2.
The initiating party shall reduce its description
ofthe
dispute
to
writing and
deliver
it
to the responding party. The responding party shall respond in writing
within three (3) Business Days. The initiating party shall have three (3)
Business Days
to
review the response.
If
after this review a resolution cannot
be reached, both parties shall have three (3) Business Days to negotiate in good
faith
to
resolve the dispute.
a)
If
the dispute cannot be resolved after three (3) Business Days, a Dispute Resolution
Panel may be requested in writing
by
either party who shall also identifY the first panel
member. Within three (3) Business Days
of
receipt
of
the request, the other party will
designate a panel member. Those two panel members will appoint a third individual to
the dispute resolution panel within the next three (3) Business Days.
b) The Dispute Resolution Panel will review the written descriptions
ofthe
dispute, gather
additional information
as
needed, and render a decision on the dispute in the shortest
practical time.
c) Each party shall bear the cost for its panel member and share equally the cost
of
the
third panel member.
62.3.
Both parties agree to exercise good faith in dispute resolution and
to
settle
disputes prior
to
using a Dispute Resolution Panel whenever possible. Unless
irreparable harm will result, neither party shall commence litigation against the
other before the Dispute Resolution Panel has issued its decision on the matter
in dispute.
62.4.
Purchaser and Contractor agree that, the existence
of
a dispute notwithstanding,
they will continue without delay
to
carry out all their respective responsibilities
under this Contract that are not affected by the dispute.
62.5.
If
the subject
of
the dispute is the amount due and payable
by
Purchaser for
Services being provided by Contractor, Contractor shall continue providing
Services pending resolution
of
the dispute provided Purchaser pays Contractor
the amount Purchaser, in good faith, believes is due and payable, and places in
State
of
Washington
Cisco Products and Services
Department
of
Information Services
32
Master Contract # T 12-MST -642
escrow the difference between such amount and the amount Contractor in
good faith, believes is due and payable.
'
63.
Attorneys' Fees and Costs
63.1.
In
any suit or proceeding relating
to
this Agreement the prevailing party will
have the right to recover from the other its costs and reasonable fees and
expenses
of
attorneys, accountants, and other professionals incurred
in
connection with the suit
or
proceeding, including costs, fees and expenses upon
appeal, separately from and in addition
to
any other amount included in such
judgement. This provision is intended
to
be severable from the other provisions
of
this Agreement, and shall survive and not be merged into any such
judgement.
64.
Non-Exclusive Remedies
Unless it
is
stated
to
be exclusive, the remedies provided for in this Contract shall not be
exclusive but are in addition to all other remedies available under law.
65.
Failure to Perform
If
Contractor fails to perform any substantial obligation under this Contract, DIS or Purchaser
shall give Contractor written notice
of
such Failure to Perform.
If
after thirty (30) calendar days
from the date
of
the written notice Contractor still has not performed, then DIS or Purchaser may
withhold
all
monies due and payable to Contractor, without penalty to DIS or Purchaser, until
such Failure to Perform
is
cured or otherwise resolved.
66.
Limitation
of
Liability
66.1.
Notwithstanding anything else herein, all liability
of
Contactor and its
suppliers to any Purchaser for claims arising under this Contract shall be
limited to the money paid to Contractor for Products or for Services with
respect to such Purchaser during the twelve (12) month period preceding the
event or circumstances giving rise to such liability. This limitation ofliability
is cumulative and not per incident._The parties agree that Contractor, DIS and
Purchaser shall not be liable
to
each other, regardless
of
the form
of
action, for
consequential, incidental, indirect, or special damages or lost revenue, lost
profits, or lost or damaged data, except a claim related
to
bodily injury or death
caused by a party's negligence
or
wilful misconduct, and except a claim or
demand based on Purchasers's breach
of
its obligations under Section, License
Grant.
The damages specified in the sections titled OSHAIWISHA,
Termination
for Default, and Review
of
Contractor's
Records
are not
consequential, incidental, indirect, or special damages as that term is used
in
this section.
66.2.
Contractor, DIS and Purchaser shall not be liable for damages arising from
causes beyond the reasonable control and without the fault or negligence
of
either Contractor, DIS or Purehaser. Such causes may include, but are not
restricted to, acts
of
God or
of
the public enemy, acts
of
a governmental body
other than DIS or Purchaser acting in either its sovereign or contractual
capacity, war, explosions, fires, floods, earthquakes, epidemics, quarantine
State
of
Washington
Cisco Products and Services
Department
of
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33
Master Contract # T12-MST-642
restrictions, strikes, freight embargoes, and unusually severe weather; but in
every case the delays must be beyond the reasonable control and without fault
or negligence
of
Contractor, DIS, Purchaser, or their respective Subcontractors.
66.3.
If
delays are caused by a Subcontractor without its fault
or
negligence,
Contractor shall not be liable for damages for such delays, unless the Services
to
be performed were obtainable on comparable terms from other sources in
sufficient time to permit Contractor to meet its required performance schedule.
66.4.
Neither Contractor, DIS nor Purchaser shall be liable for personal injury to the
other party
or
damage to the other party's property except personal injury or
damage to property proximately caused by such party's respective fault or
negligence.
Contract Termination
67.
Termination for Default
67.1.
If
Contractor violates any material term or condition
of
this Contract or fails to
fulfill in a timely and proper manner its material obligations under this
Contract, then the DIS Contract Administrator or Purchaser shall give
Contractor written notice
of
such failure or violation, and the failure or
violation shall bc corrected by Contractor within thirty (30) calendar days or as
otherwise agreed.
If
such breach
is
not capable
of
cure within thiIiy (30) days,
Contractor must commence cure within such thirty (30) day period and
diligently pursue completion
of
such cure.
If
Contractor's failure or violation is
not so corrected, this Master Contract may be terminated immediately by
written notice from the DIS Contracting Officer to Contractor, or an Order may
be terminated by written notice to Contractor from Purchaser.
67.2.
In
the event
of
termination
of
an Order by Purchaser or this Master Contract by
DIS, Purchaser or DIS shall have the right to procure the Products and Services
that are the subject
of
this Contract on the open market.
67.3.
If
either DIS
or
Purchaser violates any material term or condition
ofthis
Master
Contract or fails to fulfill in a timely and proper manner its obligations under
this Master Contract, then Contractor shall give DIS or Purchaser, as
appropriatc, writtcn noticc
of
such failure, which shall bc corrccted by DIS or
Purchaser within thirty (30) calendar days, or as otherwise agreed.
If
such
failure to pcrform is not so corrected, Purchaser's Order may be terminated by
written notice from Contractor to Purchaser or,
if
appropriate, this Master
Contract may be terminated by written notice from Contractor to DIS.
67.4.
If
the Failure to Perform is without the defaulting party's control, fault, or
negligence, the termination shall be deemed to be a
Termination
for
Convenience.
67.5.
This section shall not apply to any failure(s) to perform that results from the
willful or negligent acts or omissions
of
the aggrieved party.
State
of
Washington
Cisco Products and Services
Department
of
Information Services
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68.
Termination for Convenience
When, at the sole discretion
of
DIS, it is
in
the best interest
of
the State, the DIS Contracting
Officer may terminate this Master Contract, in whole or in part, by fourteen (14) calendar days
written notice to Contractor.
69.
Termination for Withdrawal
of
Authority
In the event that DIS' or Purchaser's authority to perform any
of
its duties is withdrawn, reduced,
or limited
in
any way after the commencement
of
this Master Contract or any Order and prior to
normal completion, DIS may terminate this Master Contract, or a Purchaser may terminate its
Order(s), by seven (7) Business Days written notice to Contractor. No penalty shall accrue to DIS
and Purchasers
in
the event this section shall be exercised. This section shall not be construed to
permit DIS to terminate this Master Contract,
or
a Purchaser to terminate its Order(s) in order
to
acquire similar Products or Services from a third party.
70.
Termination for Non-Allocation
of
Funds
If
funds are not allocated to DIS or a Purchaser to continue this Master Contract or Order in any
future period, DIS may terminate this Master Contract, or Purchaser may terminate its Order(s)
by seven
(7)
Business Days written notice to Contractor or otherwise work with Contractor to
arrive at a mutually acceptable resolution
of
the situation. DIS or Purchasers will not be obligated
to pay any further charges for Products or Services including the net remainder
of
agreed to
consecutive periodic payments remaining unpaid beyond the end
of
the then-current period. DIS
or Purchaser agrees to notify Contractor in writing
of
such non-allocation at the earliest possible
time. No penalty shall accrue to DIS or Purchasers in the event this section shall be exercised.
This section shall not be construed to permit DIS to terminate this Master Contract, or a
Purchaser to terminate its Order(s) in order to acquire similar Products or Services from a third
party.
71.
Termination for Conflict
of
Interest
DIS may terminate this Master Contract, or Purchaser its Order(s), by written notice to Contractor
if
DIS or Purchaser determines, after due notice and examination, that any party has violated chapter
42.52 RCW, Ethics in Public Service, or any other laws regarding ethics
in
public acquisitions and
procurement and performance
of
contracts. In the event this Master Contract or any Order is so
terminated, DIS and Purchasers shall be entitled to pursue the same remedies against Contractor as
it could pursue in the event Contractor breaches this Master Contract
or
any Order.
72.
Termination Procedure
72.1.
Upon termination
of
this Master Contract
or
any Order, DIS and Purchaser, in
addition to any other rights provided in this Master Contract and applicable
Order, may require Contractor to deliver to Purchaser any property specifically
produced or acquired for the performance
of
such part
of
this Master Contract
or Order as has been terminated. The section titled
Treatment
of
Assets shall
apply in such property transfer.
72.2.
Unless otherwise provided herein, Purchaser shall pay to Contractor the
agreed-upon Price,
if
separately stated, for the Products and Services received
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by Purchaser, provided that in no event shall Purchaser pay to Contractor an
amount greater than Contractor would have been entitled
to
if
this Master
Contract or Order had not been terminated. Failure to agree with such
determination shall be a dispute within the meaning
of
the
Disputes
section
of
this Master Contract. Purchaser may withhold from any amounts due
Contractor such sum as Purchaser determines to be necessary to protect
Purchaser from potential loss
or
liability.
72.3.
Contractor shall pay amounts due Purchaser or DIS as the result
of
termination
within sixty (60) calendar days
of
notice
of
the amounts due.
If
Contractor fails
to make timely payment, Purehaser
or
DIS may charge interest on the amounts
due at one percent
(1
%) per month until paid in full.
73.
Covenant Against Contingent Fees
73.1.
Contractor warrants that no person or selling agency has been employed or
retained to solicit or secure this Contract upon any agreement or understanding
for a commission, percentage, brokerage, or contingent fee,
except
bona fide
employees or a bona fide established commercial
or
selling agency
of
Contractor.
73.2.
In the event Contractor breaches this section, Purchaser shall have the right
to
either annul this Contract without liability to Purchaser, or, in Purchaser's
discretion, deduct from payments due
to
Contractor, or otherwise recover from
Contractor, the full amount
of
such commission, percentage, brokerage, or
contingent fee.
Activity Reporting and Administration Fee
74.
DIS Master Contract Administration Fee and Collection
74.1.
All purchases made under this Master Contract are subject to a DIS Master
Contract Administration Fee, collected by Contractor and remitted to DIS.
74.2.
The Master Contract Administration Fee is one half
of
one percent (.5% or
.005)
of
the purchase price. The purchase price
is
defined as total invoice price
less sales tax.
74.3.
The Master Contract Administration Fee shall be invoiced by Contraetor
to
all
Purehasers
as
a separate detailed line item on Purchaser's invoice.
74.4.
Contractor shall hold the Master Contract Administration
fee
in trust for DIS until
the Fees are remitted
to
the DIS Contract Administrator, along with the Master
Contract Activity Report.
74.5.
Contractor shall be entitled to refund
of
any overpayment
of
the Administrative
Fee submitted under the previous Master Contract (T06-MST -001), and
if
applieable and such fee was eollected from a Purchaser, Cisco shall reimburse
Administrative Fee
to
the one or more Purchasers from whom eollected.
State
of
Washington
Cisco Products and Services
Department ofInformation Services
36
Master Contract # T 12-MST -642
75.
Activity Reporting
75.1.
Contractor shall submit to the DIS Contract Administrator a quarterly Activity
Report
of
all Products and Services purchased under this Master Contract. The
report shall identify:
a) This Master Contract number;
b) The month in which the purchase occurred;
c) Each Purchaser making purchases during the reporting period (identified and
grouped by state, local or educational entity);
d) The total purchases by each Purchaser;
e)
The total invoice price (excluding sales tax) for each Purchaser;
f)
The sum
of
all invoicc prices, excluding sales tax, for all Purchasers; and
g) The total amount
of
the DIS Master Contract Administration Fee.
75.2.
The Activity Report and the DIS Master Contract Administration Fee shall be
submitted on a quarterly basis in accordance with the following schedule:
For activity
in
the months:
Report
&
Fee Due:
January, February, March
May
31
s1
April, May, June
August
31
st
July, August, September
November 30
th
October, November, December
February 28
th
75.3.
Reports are required to be submitted electronically, in either Microsoft Word or
Excel format. Quarterly reports are required even
if
no activity occurred.
Reports arc
to
be sent electronically via E-mail to: mcadmin@dis.wa.gov
75.4.
This report may be corrected or modified
by
the DIS Contract Administrator
with subsequent written notice to Contractor.
75.5.
Monthly Activity Reports are required even
ifno
activity occurred.
75.6.
Upon request by DIS, Contractor shall provide, in the format requested, the
name
ofthe
Purchasing Entities and their respective 'bill-to' addresses, during
the term
of
the Master Contract.
76.
Electronic Funds Transfer
The DIS Administrative Fee shall
be
paid through Electronic Funds Transfer (EFT).
77.
Failure
to
Remit Reports/Fees
77 .1.
Failure
of
Contractor to remit the Master Contract Activity Report together
with the Master Contract Administration Fee may be considered a failure to
perform on the part
of
Contractor, which may result in DIS terminating this
Master Contract with Contractor.
77.2.
Failure
of
any Purchaser to pay the Master Contract Administration Fee may
result in a Purchaser forfeiting its right to purchase from this Master Contract.
State
of
Washington
Cisco Products and Services
Department
ofInformation
Services
37
Master Contract # T 12-MST -642
Contractor shalI notify the DIS Contract Administrator when any Purchaser
fails
to
pay the Master Contract Administration Fee.
77.3.
The DIS Contract Administrator will notify Contractor
of
any Purchaser who
has forfeited its right to purchase under this Master Contract. After such
notification, any sale by Contractor
to
a forfeiting Purchaser may be considered
failure to perform by Contractor.
77.4.
If
the performance issues are resolved, DIS, at its option, may reinstate a
Contractor's participation or a Purchaser's right to purchase.
Contract Execution
78.
Authority
to
Bind
The signatories to this Contract represent that they have the authority
to
bind their respective
organizations to this Contract.
79.
Counterparts
This Contract may be executed in counterparts or in duplicate originals. Each counterpart
or
each
duplicate shall be deemed an original copy
of
this Contract signed by each party, for
all
purposes.
State
of
Washington
Cisco Products and Services
Department
of
Information Services
38
Master Contract # T 12-MST -642
80.
Facsimile Execution
The parties agree that this Contract may be executed by facsimile signature, and shall be effective
as
of
the date
of
such facsimile signature.
If
executed by facsimile, the parties agree to provide
original signature pages within ten (10) business days
of
facsimile execution.
In Witness Whereof,
the parties hereto, having read this Contract in its entirety, including all attachments,
do agree in each and every particular and have thus set their hands hereunto.
Approved
Approved
State
of
Washington
Cisco Systems, Inc.
Department
of
Information Services
Signalure
8/11/2..0
II
Dana
Giam~etroni
August 9,2011
Print
or
1,;pe Name
Date
Print
or
Type
ame
Date
Director
of
Finance
Title
Title
Approved as to Form
I
Contractor Information
State
of
Washington
Contractor's UBI Number:
Office
of
the Attorney General
Minority or Woman Owned Business Enterprise
Signature
Yes
No
0
(Certification Number)
Title
Date
State
of
Washington
Cisco Products and Services
Department
of
Information Serviees
39
Master Contract
#
T 12-MST -642
Schedule A
SCHEDULE
A -
WEBEX
TERMS
AND
CONDITIONS
This Schedule A is incorporated into the Contract by this reference. "Subscriber" shall
mean
the same as "Purchaser," as
defined in the Contract, as and to the extent that the Purchaser is buying WebEx Services. All capitalized terms not
defined below have the meaning ascribed thereto in the Contract.
(A.) A new Section 83 will
be
added to the Agreement as follows:
These WebEx terms are contained in this
Schedule for ease
of
reference.
Section 83.
WebEx Services
83.1
Contractor shall provide WebEx Services pursuant to the provisions in Exhibit
X.
WebEx is a
Software as a Service offering. The parties agree that Exhibit X, together with the Master Contract,
represents the entire agreement with respect
to
the provisioning
of
Web
Ex Services.
83.2
Purchasers shall access
WebEx
only through WebEx and shall place
WebEx
orders separately
from other Cisco product and Service orders.
83.3
WebEx
Services include those Services defined in Exhibit
X.
83.4
WebEx Services are priced according to
WebEx
standard list price
("WebEx
Price List") a
copy
of
which is attached to this Amendment and is subject to change at
WebEx's
discretion upon
notification to DIS.
83.5
Cisco warranties are not applicable to WebEx Services.
83.6
Payment for WebEx Services is independent
of
payment to any Cisco
or
other third party. DIS
and Cisco agree that there will
be
no invoice set-offs. DIS shall
not
make deductions
of
any kind from
any monies it owes to WebEx, including but not limited to any payments due Cisco
or
any other third
party, unless DIS has received a credit memorandum directly from
WebEx
authorizing such deduction.
(B.)DIS and Cisco agree to exclude WebEx from the definition
of
"Contractor" for the following sections to
clarify the parties' intent that these sections are inapplicable to the Software as a Service business model:
Section
9.
Instate
Presence
and
Statewide
Coverage.
WebEx does not have a State
of
Washington
in~state
presence.
Section 12.
Purchaser
OwnershiplRights
in
Data.
WebEx does not transfer ownership
of
data,
proprietary information
or
other information provided to Purchaser andlor DIS, as an unaided memory
or
otherwise.
Section
14.
Title
to
Equipment.
Section
15.
Shipping
and
Risk
of
Loss.
Section
16.
Delivery.
Section
17.
Security.
Section
19.
Contractor
Service
Personnel.
v.4.0S
40
of
56
Section 20.
Equipment
Compatibility.
Section 21.
Demonstration
Equipment.
Section 22.
Installation
and
Set-up.
Section 23.
Equipment
Warranty.
Section 24.
SMARTnet
Support.
Section 25.
Equipment
Maintenance
Documentation.
Section 26
Spare
Parts
for
Equipment,
including any related provisions and notification
requirements.
Section 27.
Contractor
Escalation Procedures.
WebEx offers service level availability
independent
of
Cisco Products and is attached to Exhibit
X.
Downtime calculations are not aggregated
amongst either WebEx Services and/or Cisco Software and relatcd services.
Section 33.
Software
Warranty.
Section 35.
Software
Maintenance
and
Support
Services.
Section 36.
Software Documentation.
Section 40.2(a)
and
40.3 (c).
Section Headings,
Incorporated
Documents,
and
Order
of
Precedence. Applicable only
to
Schedules A and B.
Section 50.
Review
of
Contractor's
Records. The parties agree that WebEx does not generate
infonnation regarding either direct or indirect costs and will be unable provide that infonnation.
Section 66
Limitation
of
Liability is revised as follows:
The parties' agree that for purposes
of
Section
66.1
"Limitation
of
Liability"
WebEx, a wholly owned
subsidiary
of
Cisco, will have a separate limitation
of
liability for causes
of
aetion arising out
of
or
related to the services WebEx perfonns under Exhibit
X.
WebEx will be separately liable for up to the
greater
of
one million dollars
($1,000,000)
or the money paid to Contractor under this Contract during
the twelve
(12)
month period preceding the event or circumstances giving rise to such liability. This
limitation
of
liability is cumulative and not per ineident, but will not apply to costs related to the
indemnification obligations
of
Contractor pursuant to Section
51
(Patent
and
Copyright
Indemnification) or
to
claims for personal injury or death proximately caused by Contractor's
negligence. Nothing herein amends the language
of
Section
66
with respect to its applicability to Cisco,
or services provided
by
Cisco under the Contract. The parties intend this section to be applicable only to
WebEx services provisioned under Exhibit
X.
(C.) The following tenns and conditions are applicable to any purchases
of
Web
Ex:
WebEx Terms and Conditions
1.
WebEx Services. These WebEx Tenns and Conditions govern the use
by
the Subscriber
of
any services allowed under Contract TI2-MST·642("the
Services") ordered by Subscriber from WebEx and set-forth
in
one or more "Order Forms," a copy
of
which
is
attached hereto and constitutes Subscriber's initial
order.
vA.08
41
of
56
2.
Order
Forms.
An
"Order Form"
is
a fonn signed by Subscriber that identifies the type and quantity
of
Services being ordered and the associated
fees.
The Order Form includes a link
to
the Service Description(s).
An
Order Form
is
effe(;tive only when signed by Subscriber and either signed or provisioned by
WebEx.
3.
Subscriber Site Set Up. blitially. WebEx will set up a web site that does not include the Subscriber's corporate logos, page headers or colors ("General
Site").
WebEx will then set-up a site
for
use by Subscriber that incorporates Subscriber'S corporate logos, page headers and colors (the "Subscriber Site"). The
General Site will be available until Subscriber and WebEx have completed their obligations
to
create the Subscriber Site. Subscriber will supply the links and
branding information and materials necessary for WebEx
to
create the Subscriber Site. WebEx expe(;ts that the Subscriber Site will be available by the Anticipated
Start Date set forth on the Order Form, provided Subscriber has provided materials in a timely fashion. WebEx will make minor changes
to
the Subscriber Site, such
as fixing and changing links, at
no
additional cost. A fee, set forth
in
the Order Form, will be charged for more extensive changes.
4.
IDbEx
Training and Support. Training and Support provided by WebEx is specified
in
the Service Descriptions.
5.
Term
of
Orders. The "Initial Term"
of
an Order will be
for
the number
of
months set forth on the Order Form, commencing on the date tbe Service
is
available for use by Subscriber. Each "Renewal Term" will automatically begin
at
the end
of
the pre(;eding (Initial or Renewal) Term and continue for the number
of
months set forth on the Order Form.
6.
Use
of
Subscriber Name.
a.
Subscriber's Name
and
Logo. Subscriber agrees that WebEx may use Subscriber's name and logo
on
the Subscriber Site, in order
to
satisfY
WebEx's responsibilities under Section 3
of
this Agreement.
b.
Promotional Use. Subscriber agrees that WebEx may use Subscriber's name and logo
to
identifY Subscriber as a customer
of
WebEx
on
WebEx's website, and as a part
of
a general list
of
WebEx customers for use and reference in WebEx corporate, promotional and marketing materials.
Subscriber agrees that WebEx may issue a press release identifYing Subscriber as a WebEx customer and describing Subscriber's intended utilization, and
the benefits that Subscriber expects
to
receive. from use
of
the Services. The content
of
any press release identifYing Subscriber as a customer
of
WebEx
will be subject
to
Subscriber's prior approval, which will not be unreasonably withheld.
7.
Subscriber Responsibilities.
a.
Account Number/Password. Subscriber
is
responsible for all uses
of
the General and Subscriber Site. Subscriber is responsible for
maintaining
the
confidentiality
of
Subscriber's account number and passwords. Subscriber agrees
to
immediately
notifY
WebEx
of
any unauthorized use
of
Subscriber's account
of
which Subscriber be(;omes aware.
b.
Content
of
Communications on
Subscriber's
Account. Subscriber agrees that Subscriber is solely responsible for the content
of
all visual,
\\>Titten
or audible communications using Subscriber's account. Subscriber agrees that Subscriber
\\oil!
not use the Services to send unsolicited email
outside Subscriber's company or organization in violation
of
applicable
law.
Subscriber further agrees not to use the Services
to
communicate any
message or material that
is
barassing, libelous, threatening, obscene, would violate the intelle(;tual property rights
of
any party or
is
otherwise unlawful,
that would give rise
to
civil liability, or that constitutes or encourages conduct that could constitute a criminal offense, under any applicable law or
regulation. Although WebEx
is
not responsible
for
any such communications, WebEx may suspend any such communications
of
which WebEx is made
aware of, at any time upon prompt notice
to
Subscriber. Subscriber agrees
10
indemnifY. defend and hold harmless WebEx from any and all third party
claims, liability, damages andlor costs (including, but nOllimited to, attorneys' fees) arising from Subscriber's violation
of
this Section
10.
8.
Privacy. WebEx's privacy statement may be found on WebEx's website: http://wvlfw.webex.com/privacy. Please consult it
to
learn WebEx's current
practices with respect
to
Subscriber's information.
9.
Limited
Warranty.
WEBEX WARRANTS THAT THE SERVICES WILL PERFORM SUBSTANTIALLY
IN
ACCORDANCE WITH THE
APPLICABLE SERVICE DESCRIPTION.
IN
THE EVENT OF A BREACH
OF
THE FOREGOING WARRANTY, WEBEX'S SOLE AND EXCLUSIVE
OBLIGATION
A.t-.TI
LIABILITY AND SUBSCRIBER'S SOLE AND EXCLUSIVE
RE~EDY
WILL
BE
FOR WEBEX
TO
MAKE COMMERCIALLY
REASONABLE EFFORTS TO CORRECT ANY NON-CONFORMANCE OR,
IF
WEBEX
IS
UNABLE
TO
DO SO WITHIN A REASONABLE TIME, TO
PROVIDE SUBSCRIBER A REFUND FOR ANY FEES PAID FOR SERVICES FROM WHICH SUBSCRIBER DID NOT RECElVE BENEFICIAL USE
BECAUSE THE SERVICES FAILED TO COMPLY WITH THIS WARRANTY. EXCEPT SUBSCRIBER UNDERSTANDS AND AGREES THAT THE
SERVICES, AND ANY ASSOCIATED SOFTWARE, ARE PROVIDED "AS
IS~
AND "AS AVAILABLE."
WEB
EX EXPRESSLY DISCLAIMS ALL
WARRANTIES OF
ANY
KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY,
FITJI.'ESS
FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. WEBEX MAKES NO WARRANTY OR REPRESENTATION REGARDING THE SERVICES,
ANY INFOR.\1ATION,
~ATERIALS,
GOODS OR SERVICES OBTAINED THROUGH THE SERVICES, THE GENERAL SITE OR SUBSCRIBER SITE, OR
THAT THE SERVICES WILL MEET ANY SUBSCRIBER REQUIREMENTS, OR BE l.JNINTERRUPTED, TIMELY, SECURE OR ERROR FREE. USE OF
THE SERVICES
AND
WEBSITE ARE AT SUBSCRIBER'S SOLE RISK. SUBSCRIBER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO
SUBSCRIBER RESULTING FROM THE USE OF SUCH SERVICES OR WEBSITE. Because some states and jurisdictions
do
not allow limitations
on
implied
\.VlllTllJlties,
the above limitation may not apply
to
Subscriber.
In
that event, such warranties are limited
to
the minimum warranty scope and period allowed by applicable
law.
10.
General.
a.
Use of the Services. Subscriber may use the Services only for sessions or meetings
in
which Subscriber
is
an
active participant. and
as
permitted under the terms and conditions
of
this Agreement or other written agreements between Subscriber and WebEx. Subscriber will not modify,
make derivative works of, disassemble, decompile or reverse engineer the Subscriber Site, Services or any component thereof.
b.
Legal Compliance. Subscriber agrees that Subscriber
\\>ill
comply with all applicable laws and regulations in connection with Subscriber's
use
of
the Services, including but not limited to: (a) with respect
to
personally identifiable information sent or received
by
Subscriber, all applicable
privacy laws and regulations. including, when applicable, the standard clauses contained in the Annexes
to
the European Commission De(;ision dated 27
vA.08
42
of
56
Order
Form
For example purposes only.
WebEx
Communications,
Inc.
Meeting
Center
Pro
(Minutes)
Order
Form
[ ] New Service
[x]
Replacement/Modification
to
URL:
wadis.webex.com
Requested
Description
of
Modification:
URL:wadis.webex.co
m
Term
"Initial Term" shall be
12
months.
Subsequent "Renewal Term(s)" shall
be
0 months.
Prepayment Term
DCheck
to
Enable
12 Months
(as
outlined
in
the Prepayment term section)
Order will automatically renew unless written notice
of
termination is sent
30
days prior to the commencement of the next renewal term
in
accordance
with
the
WebEx
Terms
and
Conditions
or WebEx Services Agreement
Anticipated
Availability
date
for
new
or
changed
Services:
I
Billing
Currency:
US
Dollar
within
7
Days
from
WebEx's
acceptance
of
a valid Order.
Branding Fee
(Invoiced
on
the first day that the General Site or service modification is available for use)
Set-up
Type
One-Time
Fee
$No
Charge
• U
Branding
Fee
(Uncheck
for
Generic
Branded site).
!
(Subscription Includes
Secure
Socket
Layer
(SSL)
Encryption with
maintenance
and
1
GB
of
storage).
I
!
i
i
Service Fees (monthly)
·
(Unless prepaid, invoiced monthly in advance. Usage
in
excess
of
commitment invoiced monthly
in
arrears. Committed Minutes that are not utilized by
I
Subscriber during the month for which
thID'
were committed may not be carried forward into the next month.)
I,
Services
Committed
I
Cost
Per
Committed
Minutes
Minute
per
Connection
Monthly
Subscription
Fee
Cost
per
Minute
per
Connection
in
Excess
of
Commitment
Meeting
Center
Pro
Monthly Committed Telephony Minutes
I
(Unless prepaid, invoiced monthly in advance. Usage
in
excess of commitment invoiced monthly
in
arrears. Committed Minutes that are not utilized
!
by Subscriber during the month for which they
were
committed may not
be
carried forward into the next month.)
I
(Rates associated with a tele hony commitment supersede the per use fees for
the
corresponding tele Jhony service.)
I
Select
ONE
I
I
Committed
Minutes
Cost Per
Committed Minute
per Connection
Monthly
Subscription
Fee
Cost per Minute per
Connection in Excess
of
Commitment
US+Canada TolI·free CaUln AND
US+Canada Call back
X
US+Canada ToII·free Call
in
US+Canada Toll Call
in
Integrated VolP
v.4.08
43
of
56
~
Telephony -
Per Use Fees
(Invoiced n:onthlr
in
arrears for actual usage, Per
Use
Fees
are
subject to change,
~.
Subscnber
Will
be
charged the
rate
in
effect
at
the time the service
is
used.)
Reservationless Teleconferencing
(Integrated with the WebEx Service)
US+Canada Toll-free Call in
Per Minute/Per Connection
$0.20
US+Canada Toll Call In
Per Minute/Per Connection
$0.05
US+Canada Call back
Per Minute/Per Connection
$0.20
Global Toll and Toll-free Call in
Per Minute/Per Connection
Then
Current
Rate
i
Integrated VolP
Per Minute/Per Connection
$0.02
I
Call back Int'l
Per Minute/Per Connection
Then
Current
Rate
Operator Assisted Teleconferencing
Available
in
con
"unction
with
a WebEx meetin
Basic Service US+Canada Toll-free Call In
Per Minute/Per Connection
Basic Service US+Canada Toll Call in
Per
Minute/Per Connection
. Full Service US+Canada Toll-free Call
in
Per Minute/Per Connection
Full Service US+Canada Toll Call in
Per Minute/Per Connection
Full Service US+Canada Call back
Per Minute/Per Connection
Full Service Global Toll and Toll-free Call
in
Per Minute/Per Connection
Then Current
Rate
'
i
I
NBR Service and Fees
(Committed fees are invoiced
monthly
in
advance
throughout
the
term
of
this order.) Standard
uncommitted
domestic
and international
callback telephony rates will apply
to
third-party teleconferences recorded using NBR.
(MC, TC,
EC
$C
Min
Requirement
WBS
25
Platform,
SC
Min ReQuirement
WBS26
Platform)
t8l
Check
to
Enable
NBR
Subscriber
is
entitled
to
1GB
of
storage
at
no
cost.
Additional storage used
by
subscriber
(in excess
of
the
1
GB)
will
be
billed monthly in arrears
for
actual usage
at
$16.00
per
GB
per
month.
Type
of
Fee
Committed Monthly
Fee
per GB
(Only available
in
increments of
5;
additional
storage
used
by
Subscriber
in
excess of
the
Committed
Storage will
be
invoiced
at
the
below Committed Monthly
Fee
perGB)
Committed Storage
(Select One)
Total Committed
Monthly
Fee
Committed NBR Storage
$12.00
o
5GB
0100
GB
$
o
10GB
[J
200
GB
D20GB
[J
500
GB
o
50GB
Additional Order Items
Service and Support Information
Information on Support Services
for
WebEx
Subscribers
may
be
found at: http://support.webex.com/supportlsupport-services.html
A description
of
WebEx
Services
may
be
found
at:http://contractdocuments.webex.com/webexsycdesc-t
18
http://contractdocuments.webex.comMlBS.html
Payment Terms
Payment terms are
govemed
by the
Master
Contract
Number
T06-MST-001,
as
amended.
v.9.0S
Page
44
of
56
------
I
' - ,
-
---
---
------------------------------------------------------,-~---
Subscriber Information
WebEx's creation
of
a website for Subscriber to access the WebEx Services shall constitute WebEx's acceptance of Subscriber's duly
authorized offer to purchase WebEx Services
in
accordance with the following Terms and Conditions,
The Master
Contract
Number
TOG·MST
..001,
as amended,
will
govern
Subscriber's
purchase
of
Services
under
this
Order
Form.
Subscriber
Organization Name:
State
of
Washington -
Department
of
Information Services
Parent
Company
(if
different
than above named subscriber):
Signature:
Name:
Title:
Date:
Address:
i
Phone:
Email:
Billing
Information:
Billing Contact Name:
Billing Contact Title:
P.O.lP.R.# (If Required):
Billing Address:
Billing Phone:
Billing Email:
WebEx
Communications, Inc.
3979 Freedom Circle, Santa Clara, CA 95054
Remittance
Address:
WebEx
Billing
Contact
Number
WebEx Communications, Inc.
FederallD
#
77-0548319
(866) 399·3239
PO Box 49216
San Jose CA, 95161-49216
v,9,08
Page 45 of 56
---
----------------------
Premium Support Addendum
To the
(applicable Order Form)
Between
WebEx Communications, Inc.
And
This Premium Support Addendum ("Addendum") shall serve to amend the (applicable Order Form) ("Order Form"),
dated
and entered into
by
and between WebEx Communications, Inc. ("WebEx") and
______
("Subscriber")
and
is governed
by
the terms
of
The Master Contract T06-MST -001, as amended.
In accordance with the Order Form and the applicable terms and conditions
of
use, the parties wish to amend the Order
Form in order to incorporate the following provisions:
1.
Premium Support Services.
Web Ex will provide those Premium Support Services as set forth in the
"Premium Support Services Exhibit," attached hereto and incorporated herein by reference.
2.
Designated Email Alias.
Subject to Section 3( c)
of
the Premium Support Services Exhibit, Subscriber agrees
that
Cd:
.com
(i.e.: wcbcx@cusotmcrnamc.com) shall be and remain its
designated email address until further written notice to WebEx.
3.
Remaining Terms and Conditions.
All other terms and conditions
of
the Order Form, including the WebEx
Terms
and
Conditions shall remain in
full
force and effect.
IN
WITNESS WHEREOF, the parties have caused this Addendum to be executed in duplicate by the respective
authorized representatives on the dates specified herein.
WebEx Communications, Inc.
Subscriber:
-----~-------~--~-
By:
By:
Name:
______________
~
__
Name:
Title:
Title:
------------~--
Date:
v.9.DB
Page 46
of
56
"Premium Support Services Exhibit"
This document provides definitions for Issue Severities used within WebEx when providing support.
It
also
provides a description
of
the types
of
problems which tier I support engineers will be expected to resolve, and the
escalation process for opening a trouble ticket with WebEx.
1.
Issue Severity LewIs
Issue Severity
is
determined by objective examination
of
the incident. The following outlines
WebEx criteria for each category:
~ity
Description
Definition
Examples
1
Routine
All
WebEx
production
How-to questions, help
Questions
systems
and
networks are
understanding
the
OUI,
help
or Minimal
working correctly. Problems
getting into meetings, help with
Impact
being encountered are
on
the
meeting functionality, customer
Problems
customers'
end
or
are user
network connectivity issues,
I
education related.
Internet
BOP
routing,
problem
with the customers ISP, etc.
2
High Level
Applies to any number
of
Subscriber unable to share a
Problems
customers using a.
Basic
specific application, severe
meeting functions
and
network latency that is sporadic in
telephony are working
nature, intermittent meeting
correctly,
but
small
product
disconnects
on
a specific computer
features are broken
or
not
or
portion
ofthe
network.
One
working
as expected. These
major service
or
feature is
not
problems
may
affect one
or
available.
more customers,
but
the
problem
does
not
prevent
meetings being held.
3
Business
Business Critical problems
Subscriber site is confirmed
down
Critical
that affect any combination
and
unreachable,
or
telephony
Problems
of
a problems causing a
unavailable. Multiple
WebEx
problem
which
clusters/systems
down
or telephony
either prevents multiple
unavailable for multiple
customers from accessing
clusters/systems.
their site
2.
Response/Resolution Time
Below indicates the response/resolution times for each Severity Issue:
(All times indicated are worst cases)
Severity
Response
or
Action
plan
Higher
Level Escalation
ifno
ETR
after
I
1
2 hr
NA
2
Ihr
4 hours
I
3
20
min
1 hour
J
i
I
I
a.
Response time
is
the elapsed time for WebEx to acknowledge a problem
of
a given
severity. In the instance where the problem cannot be resolved in the response time
interval, WebEx will provide a status and an action plan for resolution.
b.
Escalations are to
be
utilized
in
the event that acceptable status and/or resolution have not
been accomplished by the WebEx Customer Support Team
in
the time frames indicated.
Page 47
of
56
c.
Subscriber agrees to work with WebEx and will make available qualified persons to aid
in
reproducing and/or isolating problems should there be an incompatibility between
WebEx and the Subscriber's environment. In the event that such individual cannot
be
made available, these resolution times may be extended.
3.
Notifications
a.
WebEx performs standard customer maintenance activities during regular minor and
major change windows. These windows are currently conducted between 9pm and 12am
PST weekdays, and 7pm and 12am PST Saturdays.
b.
WebEx will notify
of
any unscheduled maintenance activities 7 days
in
advance
of
the
change. In the event that there is an unscheduled urgent change required which must be
accomplished inside that window, WebEx will make reasonable commercial efforts
to
provide
as
much notice
as
possible to the Subscriber.
c.
All notifications are made to a designated customer-maintained email-alias that the
Subscriber agrees to provide to WebEx.
Summary of change notifications:
T~e
of chanee
' Notification Interval
Minor update
Based on customer impact. 7 day notification via email
if
change affects service
features or repairs key service issues
Major update
14
days notification via email
Scheduled maintenance
2
days, notification via email
, Unscheduled mamtenance
Vanes,
as
much nollce as
sSlble, via emaIl.
Definitions:
i).
A Minor update (service patch) is a change to the service, which addresses specific issues
that may impact some, but not all customers. Cosmetic changes, or minimal updates
to
the user
interface, or updates which aid in the overall operation
of
the service but which are not visible
to
the customer experience are included in this change
leveL
ii).
A Major update
is
a significant change to the service, and will impact the user
experience. This may result in changes to the user interface or service features which differ from
the current service release. This category
of
change may also require a new client to be
downloaded.
iii).
Scheduled maintenance refers
to
changes made to the WebEx service infrastructure.
Subscriber
is
notified
if
the changes will impact the availability
if
the service.
iv).
Unscheduled maintenance refers to emergency service procedures required
to
maintain
the availability
of
the service, and require service interruption to the customer to complete.
4.
Support
a.
WebEx provides 24 x 7 x
365
technical
SUppOit
in English to a
US
toll free number.
Some Toll Free numbers are accessible outside
of
the US. All numbers will be made
available to the subscriber upon execution
of
a signed SLA, and will be updated as new
local numbers are added. These numbers will be accessible
to
the customer so long
as
Page 48
of 56
this SLA is in
effect
Subscriber agrees to enroll members
of
its help desk staff in
WebEx Support Training
if
they provide Tier 1 support.
b.
85%
of
calls to WebEx support will be answered within 90 seconds.
c.
The WebEx response to help desk cases submitted online will be 24 hours or less.
d.
An option will be made available for customers to submit on-line trouble tickets to
WebEx via a web interface.
5.
Escalation Contacts
Should the need arise the following Technical and Business Escalation Contacts can be utilized:
a.
Technical Escalations.
Please contact the Technical Support Leadership Team for escalation information.
b.
Business Escalations
i
Contact
Name
Phone Number
Email
I
Client Services
, Manager
I
Client Services
I
Supervisor
\ Manager, Client
Services Group
I
VP, Customer
i
I
Care
6.
Updates
to
Support Services Exhibit
This Support Services Exhibit will be periodically reviewed, and updates accepted, subject to the mutual
agreement
of
Web Ex and Subscriber management.
Page 49
of
56
WebEx
Communications,
Inc.
Service
Level
Addendum
This Service Level Addendum will modify the existing
~:::-:-----,....,.._---,-.----,_Order
Form or agreement,
as
applicable, dated .
,
and
associated with URL:
Availability Level.
WebEx will maintain 99.5% availability of its Web Based Application Services
(including telephony services) to the Internet (excluding scheduled maintenance intervals) ("Availability
Level").
Down Time Credit.
For any cumulative time periods in excess
of
the Availability Level that the Services
are unexpectedly unavailable to the Internet ("Down Time"), WebEx will credit Subscriber the amount of
Subscription Service Fees owed by Subscriber to WebEx
in
an
amount equal to that portion of the month
attributable to the Down Time; provided that (i) the Subscriber's use of the Services is impacted,
(ii)
the
Down Time is reported to WebEx within twenty four (24) hours of each occurrence, and
(iii)
Subscriber
requests credits not more than thirty (30) days after each occurrence. The terms and conditions of this
section shall be Subscriber's sole and exclusive remedy and WebEx's sole obligation for any Down Time.
The Subscriber identified below must purchase WebEx Services and have executed the Order Form.
This Service Level Addendum will be governed by the terms and conditions the Master Contract number T06
MST -001, as amended.
Subscriber
Organization Name:
Parent Company (if different than above named subscriber):
Signature:
Billing Information:
Name:
Billing Contact Name:
Title:
Billing Contact Title:
. Date:
P.O.lP.R.# (If Required):
Address:
Billing Address:
Phone:
Billing Phone:
Email:
Billing Email:
State
of
Washington
Cisco Products
&
Services
Department ofInformation Services
Schedule A
Master Contract
#
T 12-MST
-642
Schedule B
SCHEDULE
B
IRONPORT
TERl'\1S AND
CONDITIONS
The following Terms and Conditions
of
Use (this "Agreement") set forth the terms and conditions
of
your purchase and use
of
the !ronPort hardware and software delivered with this Agreement
(the
"Products").
Please read this Agreement carefully
before using the Products.
If
you
do
not agree with this Agreement, you may not use the Products. As used herein, "lronPort"
refers to IronPort Systems, Inc., a Delaware corporation, and "Customer" refers to the company you represent.
In
the
event
that
Customer
and
IronPort
have
each
signed a
written
agreement
with
respect
to
the
Products
(other
than
a
"click-through"
agreement
related
to
third
party
software
included
with
the
Products),
the
terms
and
conditions
of
such
executed
agreement
shall exclusively govern
Customer's
purchase
and
use
of
the
Products
and
the
following
Agreement
shall
be
null
and
void
and
of
no
force
or
effect.
In the event
of
a conflict with respect to Governing Law and/or Venue between the terms
of
Terms and Conditions
of
Use and the
terms
of
the Master Contract, the terms
of
the Master Contract will prevail.
1.
Embedded
Software. Subject to the terms and conditions
of
this Agreement, IronPort grants Customer a non-exclusive, non
transferable, non-sublicensable license to use the software contained on the Products (the "Software") in object code format
solely for the internal business purposes
of
Customer. Customer will not
0)
transfer, assign, copy, modify or distribute the
Software
or
(ii)
attempt to, or authorize any third party to, decompile, reverse engineer or otherwise attempt to gain access to the
Software source code
or
unbundle any software embedded within
or
contained on the Products. Customer will not copy the
Software or remove any copyright
or
trademark notices
on
the Software. Customer will not sell
or
transfer the Products
containing Software to any third patty unless Customer erases
or
removes the Software prior to such sale or transfer, except
where IronPort has otherwise agreed
in
writing. Customer acknowledges that except for the license granted in this Section
I,
IronPort retains all right, title and interest
in
and to the Software. Notwithstanding anything herein to the contrary, all references
in this Agreement to the "purchase"
or
"sale"
of
Software will mean, with respect to all parts
of
such Software, the acquiring
or
granting, respectively,
of
a license to use such parts, and to exercise any other rights pertaining to such parts which are expressly
set forth herein.
2. Intellectual
Property
Rights. Title to and ownership
of
the Software and any Product documentation, and any improvements
or
modifications thereof and all copyright, patent, trade secret, trademark and other intellectual property rights embodied in the
Products, will at all times remain the property ofIronPort.
3. Disclaimer. IRONPORT MAKES NO WARRANTIES, EXPRESS, IMPLIED
OR
STATUTORY, WITH RESPECT TO
THE PRODUCTS, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY,
FITNESS
FOR
A PARTICULAR PURPOSE, NON INFRINGEMENT, OR ARISING FROM COURSE
OF
PERFORMANCE,
DEALING, USAGE
OR
TRADE.
4.
Limitation
of
Liability. IN NO EVENT WILL lRONPORT OR ITS SUPPLIERS BE LIABLE TO CUSTOMER
OR
ANY
THIRD PARTY FOR COSTS
OF
PROCUREMENT OF SUBSTITUTE PRODUCTS
OR
SERVICES, LOST PROFITS, DATA
OR BUSINESS,
OR
FOR
ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY
OR
CONSEQUENTIAL DAMAGES
OF
ANY KIND ARISING
OUT
OF
OR IN CONNECTION WITH THIS AGREEMENT, HOWEVER CAUSED AND
ON
ANY THEORY
OF
LIABILITY (WHETHER IN CONTRACT,
TORT
(INCLUDING NEGLIGENCE), STRICT LIABILITY
OR OTHERWISE). IRONPORT'S TOTAL AND CUMULATIVE LIABILITY ARISING OUT OF
OR
IN CONNECTION
WITH ANY PRODUCTS PURCHASED
BY
CUSTOMER HEREUNDER WILL IN NO
EVENT
EXCEED THE PURCHASE
PRICE PAID
BY
CUSTOMER FOR SUCH PRODUCTS. THE LIMITATIONS SET FORTH IN THIS SECTION 4 WILL
APPLY EVEN IF IRONPORT
OR
ITS SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY
OF
SUCH DAMAGES,
AND NOTWITIISTANDING ANY FAILURE
OF
ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
5.
Confidentiality. Customer agrees to refrain from using IronPort's Confidential Information except as contemplated herein
and to preserve the confidentiality
of
IronPort's Confidential infOImation. "Confidential Information" means all non-pUblic
infoffi1ation that is either designated as proprietary andlor confidential, or
by
the nature
of
the circumstances surrounding
disclosure, should reasonably
be
understood to
be
confidential.
6.
Termination.
If
either party breaches a material provision
of
this Agreement and fails to cure such breach within thirty (30)
days after receiving written notice
of
the breach, the non-breaching party will have the right to terminate this Agreement at any
time. Customer's breach
of
a payment obligation constitutes a default the date the payment is due and lronPort will have the
right to terminate this Agreement immediately. The provisions
of
Section 2,
3,4,5,6,7,8,9
and 10 shall survive the termination
of
this Agreement
State
of
Washington
Cisco Products
&
Services
Department ofInformation Services
Schedule B
Master Contract # T12-MST-642
7.
Severability.
If
any portion
of
this Agreement
is
held invalid, the parties agree that such invalidity will not affect the validity
of
the remaining portions
of
this Agreement.
8.
Export Control.
Customer acknowledges and agrees that the products purchased, and software licensed, under this
Agreement may
be
subject to restrictions and controls imposed by the United States Export Administration Act and the
regulations thereunder.
Customer will not export or re-export any products purchased, or software licensed, under this
Agreement into any country in violation
of
such controls or any other laws, rules or regulations
of
any country, state or
jurisdiction.
9.
AssignmentlEntire Agreement. Customer will not assign or transfer this Agreement or any rights or obligations under this
Agreement, whether voluntary or
by
operation
of
law, without the prior written consent
of
IronPort. IronPort may assign or
transfer all
of
part
of
this Agreement in its discretion. Any assignment or transfer
of
this Agreement made
in
contravention
of
the
terms hereof will
be
null and void. Subject to the foregoing, this Agreement will be binding on and inure to the benefit
of
the
parties' respective successors and permitted assigns. This Agreement supersedes all prior communications, transactions, and
understandings, whetber oral or written, and constitutes tbe sole and entire agreement between the parties pertaining to the
Products.
No
modification, addition or deletion, or waiver
of
any
of
the terms and conditions
of
this Agreement will
be
binding
on either party unless made
in
a non-preprinted agreement clearly understood
by
both parties
to
be a modification or waiver, and
signed
by
a duly authorized representative
of
each party.
10.
Governing Law
and
Venue. THIS AGREEMENT WILL BE GOVERNED BY THE LAWS OF THE STATE OF
CALIFORNIA, U.S.A., WITHOUT REGARD TO PROVISIONS
ON
THE CONFLICTS OF LAWS.
THE PARTIES
CONSENT TO THE EXCLUSIVE JURISDICTION OF, AND VENUE IN, THE STATE AND FEDERAL COURTS WITHIN
SAN
MATEO COUNTY,
CALIFORNIA, U.S.A.
Cisco Products and Services
State
of
Washington
Department
of
Information Services
2
Master Contract # T 12-MST -642
Amendment Number 12-01
to
Contract Number T12-MST -642
for
Cisco Products and Services
In accordance
with
Provision
42
(Authority/or Modifications
and
Amendments)
of
Contract
#T12
MST-642,
this
amendment
12-01 is entered into
between
the
State
of
Washington,
Department
of
Information
Services
(DIS)
and
Cisco Systems, Inc. (Cisco).
DIS and
Cisco
agree to
amend
the contract as follows:
1.
Section
47
Subcontractors
is
deleted
in
its entirety
and
replaced with
the
following
new
Section
47
:
47.
Subcontractors
and
Fulfillment
Partners
47.1
Contractor
may,
with
prior
written
permission
from
the
DIS
Contract
Administrator,
which
consent
shall
not
be unreasonably
withheld
,
enter
into
subcontracts
with third
parties
for its
performance
of
any
part
of
Contractor
's
duties
and
obligations.
In
no
event
shall the
existence
of
a
subcontract
operate to release
or
reduce
the liability
of
Contractor
to
Purchaser
for
any
breach
in
the
performance
of
Contractor
's duties.
for
purposes
of
this Contract,
Contractor
shall be liable for any loss
or
damage
to
Purchaser, subject to the
Limitation
of
Liability section
of
the ab'TeCment, including
but
not
limited to
personal
injury,
physical
loss,
harassment
of
Purchaser
employees,
or
violations
of
the
Patent
and
Copyright
Indenmification,
Protection
of
Purchaser's
Confidential Information,
and
Software
Ownership
sections
of
this
Contract
occasioned
by
the
acts
or
omissions
of
Contractor's
Subcontractors,
their agents
or
employees.
The
Patent
and
Copyright
Indemnification
,
Protection
of
Purchaser's
Confidential Information,
Software
Ownership
, Publicity
and
Review
of
Contractor
's
Records
sections
of
this
Contract
shall apply to all Subcontractors.
47.2
Contractor
may
request
new
or
additional
Subcontractors
be
added
to
the
Contract
at
any
time.
Contractor
shall
submit
the
request
to the
Master
Contract
Administrator,
identifying any
Subcontractor
limitations in
the
request.
The
name
,
address
and
other
contact
information for each
Fulfillment
Partner
Or
Subcontractor
shall be separately
set
forth
on
the
DIS
TechMall
htt :
k~hmuII.Jis
.
\\n.
'0\
' )
during
the
term
of
this
contract
and
any
extensions
.
2.
Section
14
Title
to
Equipment
is deleted
in
its entirety
and
replaced
with
the following:
14.
Title to
Eqoipment
Upon Acceptance Date Contractor shall convey
to
Purchaser good title to the Equipment, free and
clear
of
all
liens, pledges, mortgages, encumbrances,
or
other security interests.
If
Purchaser
subsequently transfers title to the Equipment to another entity, Purchaser shall havc the right
to
State
of
Washington
Contract No.
TI2-MST-642
Department
of
Information Services
Page
1
of2
Amendment
12-0·]
transfer
the
license
to
use the internal
code
with the transfer
of
Equipment
title.
A
subsequent
transfer
of
this
software
license shall be at no additional
cost
or
charge
to
either
Purchaser
or
Purchaser's
transferee
if
1) the transferee
is
an
authorized
purchaser
under
this
Agreement
and
2)
maintenance
support
for
the
Equipment
has not lapsed.
Software
license
terms
are
contained
in the
End
User
License
Agreement
for the
applicable
product.
All other provisions ofContraet TI2-MST-642 shall remain
in
full force and effect. This
amendment
is
effective
as
of
the date
of
signature
by DIS.
Approved
Approved
State
of
Washington,
Cisco
Syslems,
Inc.
Department
of
Information
Services
. naJure
(
....,.
Signature
Brian
Fukuhara
Vice
PresldEnl
Finance
r>
....,
~~------------~----~-------
.~
Title
Dale
Title
APPROVED
BY
LEGAL
State
of
Washington
Contract No.
n
2-MST-642
Department
of
Information
Services
Page 2
of2
Amendment
J
2-01