HomeMy WebLinkAboutDell Desktop ComputersWESTERN STATES CONTRACTING ALLIANCE
MASTER PRICE AGREEMENT
for
COMPUTER EQUIPMENT, SOFTWARE, PERIPHERALS AND RELATED SERVICES
DELL MARKETING L.P.
Number A63307
This Agreement is made and entered into by Dell Marketing L.P., One Dell Way, Round Rock, TX 78682,
("Contractor") and the Department of Administration ("State") on behalf of the State of Minnesota, participating members
of the National Association of State Procurement officials (NASPO), members of the Western States Contracting Alliance
(WSCA) and other authorized Participating States and Participating Entities.
RECITALS
WHEREAS, the State has the need to purchase and the Contractor desire to sell; and,
WHEREAS, the State has the authority to offer contracts to CPV members of the State of Minnesota and to other states.
NOW, THEREFORE, in consideration of the mutual promises contained herein, the parties agree as follows:
INTENT AND PURPOSE
The intent and purpose of this Agreement is to establish a contractual relationship with equipment manufacturers to
provide, warrant, and offer maintenance services on ALL products proposed in their response to the RFP issued by the
State of Minnesota. The Contractor may use subcontractors to provide the warranty and/or maintenance services;
however the Contractor will be responsible for working with the equipment manufacturer on behalf of the Purchasing
Entity and for the timeliness and quality of all services provided. No type of Lease transactions are allowed through this
Agreement.
The Agreement is NOT for the purchase of major, large hardware or hardware and software offerings. In general,
individual units/configurations should not exceed $50,000 each. It is the expressed intent of some of the Participating
States to set this level at not to exceed $25,000 each. This IS NOT a restriction on how many units/configurations can be
purchased, but on the value of each individual unit/configuration. Individual Participating States and Participating Entities
may set specific limits in a participating addendum, with the prior approval of the WSCA Directors.
Contractors may offer, but participating states and entities do not have to accept, limited professional services related
ONLY to the equipment and configuration of the equipment purchased through the Agreement.
1. Definitions
"Announced Promotional Price" are prices offered nationally to specific categories of customers (Consumer,
Business or government) for defined time periods under predefined terms and conditions.
"Contract" means an agreement for the procurement of items of tangible personal property or services.
"Contract Administrator" means an individual appointed by the State to administer this Agreement on behalf of
the State of Minnesota, the participating NASPO and WSCA members, and other authorized purchasers.
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"Contractor" shall mean successful Responder who enters into a binding Master Price Agreement. The
Contractor is responsible for all sales, support, warranty, and maintenance services for the products included in
this Agreement. The Contractor must manufacture or take direct, non -assignable, legal responsibility for the
manufacture of the equipment and warranty thereof.
"Consumables" that are required for the operation of Equipment offered or supplied are included -- printer
cartridges, batteries, projector bulbs, etc. Consumables such as magnetic media, Gager and generally available
office supalies are excluded.
"CPV Member" is any governmental unit having independent policy making and appropriating authority, that is a
member of Minnesota's Cooperative Purchasing Venture (CPV) program.
"CPV Program" The Cooperative Purchasing Venture (CPV) program, as established by Minn. Stat. § 16C.03,
subd. 10, authorizes the Commissioner of Administration to "enter into a cooperative purchasing agreement for
the provision of goods, services, and utilities with [governmental entities] ..., as described in section 471.59,
subdivision 1." Based on this authority, the commissioner of Administration, through the Materials Management
Division (MMD), enters into a joint powers agreement that designates MMD as the authorized purchasing agent
for the governmental entity. It is not legal for governmental entities that are not members of the CPV program to
purchase from a State contract. Vendors are free to respond to other solicitations with the same prices they offer
under a contract, but that is not considered use of the "State contract price."
"Cumulative Volume Discount" means a contractual, cumulative, permanent volume discount based on dollars
resulting from the cumulative purchases by all governmental purchasers for the duration of their Master Price
Agreement.
"Documentation" refers to manuals, handbooks, and other publications listed in the PSS, or supplied with
products listed in the PSS, or supplied in connection with services. Documentation may be provided on magnetic
media or may be downloaded from the Contractor's web site.
"E-Rate" is a program sponsored by the Federal Communications Commission whereby educational and other
qualifying institutions may purchase authorized technology at reduced prices.
"Educational Discount Price" means the price offered in a nationally announced promotion, which is limited to
educational customers only, as defined by the Contractor.
"Energy StarW' is a voluntary energy efficiency program sponsored by the U.S. Environmental Protection
Agency. The Energy Star program makes identification of energy efficient computers easy by labeling products
that deliver the same or better performance as comparable models while using less energy and saving money.
Energy Star qualified computers and monitors automatically power down to 15 watts or less when not in use and
may actually last longer than conventional products because they spend a large portion of time in a low -power
sleep mode. For additional information on the Energy Star program, including product specifications and a list of
qualifying products, visit the Energy Star website at htto://www.energvstar.izov.
"Equipment" means workstations, desktop, laptop (includes Tablet PC's), and handheld (PDA) devices, servers,
computing hardware, including upgrade components such as memory, storage drives, and spare parts.
"FCC" means the Federal Communications Commission or successor federal agency. in the event of
deregulation, this term applies to one or more state regulatory agencies or other governing bodies charged to
perform the same, or similar, role.
"General Price Reduction Price" means the reduction in the Dell Retail Price offered to consumer, business or
governmental purchaser. General price reduction prices will be reflected in the PSS as soon as practical.
"ISO 14001" is the conformance standard within the family of ISO 14000 documents developed by the
International Organization for Standardization (ISO) in Geneva, Switzerland. Similar in structure to the ISO 9000
quality management system standard, ISO 14001 outlines key requirements companies should comply with in
order to operate in an environmentally responsible manner. Utilizing ISO 14001, companies can merge
environmental programs into one coherent system to efficiently manage all environmental activities. In short, ISO
14001 provides organizations with a way to demonstrate to their customers that their environmental processes
and impact are effectively managed, continually improving, and part of the corporate management system. For
more information, please refer to wwwdso.ora .
"Lead State" means the State conducting this cooperative solicitation and centrally administering any resulting
Master Price Agreement(s). For this solicitation, the Lead State is Minnesota.
"Mandatory" The terms "must" and "shall" identify a mandatory item or factor.
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"Manufacturer" means the company that designs, assembles, and markets computer equipment including
workstations, desktop computers, laptop (includes Tablet PC's) computers, handheld (PDA) devices, servers,
printers, and storage solutions/auxiliary storage devices. The manufacturer's name(s) shall appear on the
computer equipment. The Contractor shall provide warranty service and maintenance for equipment covered by
this Agreement as well as a Takeback Program.
"Master Price Agreement" means the contract that MMD will approve that contains the foundation terms and
conditions for the acquisition of Contractor's products and/or services by Purchasing Entities. The "master price
agreement" is a permissive price agreement. In order for a Purchasing Entity to participate in a Master Price
Agreement, the appropriate state procurement official or other designated procurement official must be a
Participating State or Participating Entity.
"Materials Management Division" or "MMD" means the procurement official for the State of Minnesota or a
designated representative.
"NASPO" means the National Association of State Procurement Officials
"Participating Addendum" means a bilateral agreement executed by the Contractor and a Participating State or
political subdivision of a State that clarifies the operation of the price agreement for the State or political
subdivision concerned, e.g. ordering procedures specific to a State or political subdivision and other specific
language or other requirements. Terms and conditions contained in a Participating Addendum shall take
precedence over the corresponding terms in the master price agreement. Additional terms and conditions may be
added via the Participating Addendum. However, a Participating Addendum may not alter the scope of this
Agreement or any other Participating Addendum. Unless otherwise specited, the Participating Addendum
shall renew consecutively with the Master Price Agreement. One physically or digitally signed copy of each
Participating Addendum shall be filed by the Contractor with the Contract Administrator within five (5) days after
execution.
"Participating State" or "Participating Entity" means a member of NASPO (Participating State) or a political
subdivision of a NASPO member (Participating Entity) who has indicated its intent to participate by signing an
Intent to Participate, or who subsequently signs a Participating Addendum where required, or another state or
political subdivision of another state authorized by the WSCA Directors to be a party to the resulting Master Price
Agreement through the execution of a participating addendum.
"PDA" means a Personal Digital Assistant. Refers to a wide variety of handheld and palm -size PCs, and
electronic organizers. PDA's usually can store phone numbers, appointments, and to-do lists. PDA's can have a
small keyboard, and/or have only a special pen that is used for input and output. The PDA can also have a
wireless fax modem. Files can be created on a PDA which are later entered into a larger computer. NOTE: For
this Agreement, all Tablet PC's are NOT considered PDA's.
"Peripherals" include but are not limited to storage, printers (including multifunction network print/fax/scanner
devises), scanners (used in conjunction with computing equipment), monitors, keyboards, uninterruptible power
supplies and accessories. Adaptive/Assistive technology devices are included as well as configurations for
education. A third party may manufacture Peripherals. The Contractor shall provide the warranty service and
maintenance for equipment on a Master Price Agreement as well as a Takeback Program.
"Per Transaction Multiple Unit Discount" means a contractual volume discount based on dollars in a single
purchase order or combination of purchase orders submitted at one time by a Purchasing Entity or multiple
entities conducting a cooperative purchase.
"Political Subdivision" means local pubic governmental subdivisions of a state, as defined by that state's
statutes, including instrumentalities and institutions thereof. Political subdivisions include cities, counties, courts,
public schools and institutions of higher education.
"Price Agreement" means an indefinite quantity contract that requires the Contractor to furnish products or
services to a Purchasing Entity that issues a valid Purchase Order.
"Procurement Manager" means the person or designee authorized by MMD to manage the relationships with
WSCA, NASPO, and Participating States/Participating Entities.
"Product(s)" means personal computer equipment, peripherals, LAN hardware Software, and Network Storage
devices, but not unrelated services.
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"Products and Services Schedule Prices" mean the maximum prices offered to Participating Entities exclusive
of Announced Promotional Prices, Education Discount Prices, General Price Reductions, or Large Order
Negotiated Prices. All such products and services shall be listed on the Contractor's web site accessible via a
URL.
"Purchase Order" means an electronic or paper document issued by the Purchasing Entity that directs the
Contractor to deliver Products or Services pursuant to a Price Agreement.
"Purchasing Entity" means a Participating State or another legal entity, such as a political subdivision, properly
authorized by a Participating State to enter into a Agreement for the purchase of goods described in this
solicitation. Unless otherwise limited by statute, in this solicitation or in a Participating Addendum, political
subdivisions of Participating States are Purchasing Entities and authorized to purchase the goods and/or services
described in this solicitation.
"Services" are broadly classed as installation/de-installation, maintenance, support, training, migration, and
optimization of products offered or supplied under the Master Price Agreement. These types of services may
include, but are not limited to: warranty services, maintenance, installation, de -installation, factory integration
(software or equipment components), asset management, recycling/disposal, training and certification, pre -
implementation design, disaster recovery planning and support, service desk/help desk, and any other directly
related technical support service required for the effective operation of a product offered or supplied. General
consu/tina and all forms of application develooment and oroarammino services are excluded.
"Servicing Subcontractor" or "Reseller Agent" or "Subcontractor" means a Contractor authorized and state -
approved subcontractor who may provide local marketing support or other authorized services on behalf of the
Contractor in accordance with the terms and conditions of the Contractor's Master Price Agreement. A wholly
owned subsidiary or other company providing warranty or other technical support services qualifies as a Servicing
Subcontractor. Local business partners may qualify as Servicing Subcontractors. Servicing Subcontractors may
not directly accept Purchase Orders or payments for Products or Services from Purchasing Entities, unless
otherwise provided in a Participating Agreement. Servicing Subcontractors shall be named individually or by
class in the Participating Addendum. The Contractor actually holdina the Master Price Aareement shall be
responsible for Servicina Subcontractor's orovidina warranty service and maintenance for equipment on
a Master Price Aareement as well as the Take back Program.
"Standard Configurations" mean deeply discounted standard configurations that are available to Purchasing
Entities using the Master Price Agreement only. This specification includes a commitment to maintain and
upgrade (keep pace with the advance of technology) the standard configurations for a stated period of time or
intervals.
"State Procurement Official" means the director of the central purchasing authority of a state.
"Storage Solution/Auxiliary Storage" means the technology and equipment used for storage of large amounts
of data or information. This includes technologies such as: Network Attached Storage (NAS); Storage Area
Networks (SAN); Content Addressed Storage (CAS); and/or Clustered Network Storage (CNS).
"Takeback Program" means the Contractor's process for accepting the return of the equipment or other
products at the end of life.
"Trade In" refers to the exchange of used Equipment for new Equipment at a price reduced by the value of the
used Equipment.
"Travel" means expenses incurred by authorized personnel directly related to the performance of a Service. All
such expenses shall be documented in a firm quotation for the Purchasing Entity prior to the issuance and
acceptance of a Purchase Order. Travel expenses will be reimbursed in accordance with the purchasing entities
allowances, if any, as outlined in the PA.
"Universal Resource Locator" or "URL" means a standardized addressing scheme for accessing hypertext
documents and other services using the WWW browser.
"WSCA" means the Western States Contracting Alliance, a cooperative group contracting consortium for state
procurement officials, representing departments, institutions, agencies, and political subdivisions (i.e., colleges,
school districts, counties, cities, etc.) for the states of Alaska, Arizona, California, Colorado, Hawaii, Idaho,
Minnesota, Montana, Nevada, New Mexico, Oregon, South Dakota, Utah, Washington, and Wyoming.
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2. Scope of Work
The Contractor, or its approved subcontractor, shall accept purchase orders from and deliver computing system
Products and services to Purchasing Entities in accordance with the terms of this Agreement. This Agreement is
a "Master Price Agreement". Accordingly, the Contractor shall provide Products or Services only upon the
issuance and acceptance by the Contractor of valid "Purchase Orders". Purchase Orders may be issued to
purchase the license for software or to purchase products listed on the Contractor's PSS. A Purchasing Entity
may purchase any quantity of Product or Service listed in the Contractor's PSS at the prices in accordance the
Paragraph 13, Price Guarantees. Subcontractor participation is governed by the individual Participating State
procurement official. The Contractor is required to provide warranty and maintenance services on equipment that
is purchased. The Contractor shall offer a Takeback Program for all products covered by this Agreement.
3. Title Passage
The Contractor must pass unencumbered title to any and all products purchased under this Agreement upon
receipt of the product by the Purchasing Entity. This obligation on the part of the Contractor to transfer all
ownership rights does not apply to proprietary materials owned or licensed by the Contractor or its subsidiaries,
subcontractors or licensor, or to unmodified commercial software that is available to the State on the open market.
Ownership rights to such materials shall not be affected in any manner by this Agreement.
4. Permissive Price Agreement and Quantity Guarantee
This Agreement is not an exclusive agreement. Purchasing Entities may obtain computing system Products and
services from other sources during the agreement term. The State of Minnesota, NASPO and WSCA make no
.express or implied warranties whatsoever that any particular number of Purchase Orders will be issued or that
any particular quantity or dollar amount of Products or Services will be procured.
5. Order of Precedence
Each Purchase Order that is accepted by the Contractor shall become a part of the Agreement as to the Products
and Services listed on the Purchase Order only; no additional terms or conditions conflicting with this Agreement
or the Participating Addendum will be added to this Agreement as the result of acceptance of a Purchase Order.
The Contractor agrees to accept all valid Purchase Orders. In the event of any conflict among these documents,
the following order of precedence shall apply:
A. Executed Participating Addendum(s);
B. Terms and conditions of this Agreement;
C. Exhibits and amendments to this Agreement;
D. The list of products and services contained in the purchase order;
E. The request for proposals document P-1331 and Addenda thereto; and
F. Contractor's proposal including any written clarifications and/or best and final offer.
6. Payment Provisions
All payments under this Agreement are subject to the following provisions:
A. Acceptance
A Purchasing Entity shall determine whether all Products and Services delivered meet the Contractor's
published specifications. No payment shall be made for any Products or Services until the Purchasing
Entity has accepted the Products or Services. Unless otherwise agreed upon between the Purchasing
Entity and the Contractor, the Purchasing Entity shall within fifteen (15) calendar days from the date of the
Contractor's invoice, issue a written notice of partial acceptance or rejection of the Products or Services;
otherwise, the Product or Services shall be deemed accepted.
B. Payment of Invoice
1. Payments shall be submitted to the Contractor at the address shown on the invoice, as long as
the Contractor has exercised due diligence in notifying the State of Minnesota and/or the
Purchasing Entity of any changes to that address. Payments shall be made in accordance with
the applicable laws of the Purchasing Entity.
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2. For Minnesota, per Minn. Stat. § 16A.124, payment shall be made to the Contractor within thirty
(30) days following receipt of an undisputed invoice, merchandise or service whichever is later.
After the thirtieth day, interest may be paid on the unpaid balance due to the Contractor at the
rate of one and one-half percent per month. The Purchasing Entity shall make a good -faith effort
to pay within thirty (30) days on all undisputed invoices. Payments may be made via a
Purchasing Entity's "Purchasing Card".
3. In the event an order is shipped incomplete (partial), the Purchasing Entity shall pay for each
shipment as invoiced by the Contractor unless the Purchasing Entity has clearly specified "No
Partial Shipments" on each Purchase Order.
C. Payment of Taxes
Payment of taxes for any money received under this agreement shall be the Contractor's sole
responsibility and shall be reported under the Contractor's federal and state tax identification numbers. If
a Purchasing Entity is not exempt from sales, gross receipts, or local option taxes for the transaction, the
Contractor shall be reimbursed by the Purchasing Entity to the extent of any tax liability assessed.
The State of Minnesota State agencies are subject to paying Minnesota sales and use taxes. Taxes for
State agencies will be paid directly to the Department of Revenue using Direct Pay Permit #1114.
D. Invoices
Invoices shall be submitted to the Purchasing Entity at the address shown on the Purchase Order.
Contractor shall provide a commercial invoice. The Contractor shall also provide a packing slip/list for
each system to identify the components included within the configuration. Invoices shall match the total
amount on the Purchase Order. However, line item detail shall be available upon request.
7. Agreement Term
Pursuant to Minnesota law, the term of this Agreement shall be effective upon the date of final execution by the
State of Minnesota or on September 1, 2004, whichever is later, through August 31, 2007 (3 years). The
Agreement may be mutually renewed for two (2) additional one-year terms unless terminated pursuant to the
terms of this Agreement.
8. Termination
The following provisions are applicable in the event that the agreement is terminated.
A. Termination for Convenience
At any time, the State may terminate this agreement, in whole or in part, by giving the Contractor (30)
days, written notice; provided, however, neither the State nor a Purchasing Entity has the right to
terminate a specific purchase order for convenience after it has been issued if the product is ultimately
accepted. At any time, the Contractor may terminate this Agreement, in whole or in part, by giving the
Contract Administrator sixty (60) days written notice. Such termination shall not relieve the Contractor of
warranty or other Service obligations incurred under the terms of this Agreement. In the event of a
cancellation, the Contractor shall be entitled to payment, determined on a pro rata basis, for work or
services satisfactorily performed and accepted.
B. Termination for Cause
Either party may terminate this Agreement for cause based upon material breach of this Agreement by
the other party, provided that the non -breaching party shall give the breaching party written notice
specifying the breach and shall afford the breaching party a reasonable opportunity to correct the breach.
If within thirty (30) days after receipt of a written notice the breaching party has not corrected the breach
or, in the case of a breach that cannot be corrected in thirty (30) days, begun and proceeded in good faith
to correct the breach, the non -breaching party may declare the breaching party in default and terminate
the Agreement effective immediately. The non -breaching party shall retain any and all other remedies
available to it under the law.
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C. A Purchasing Entity's Rights
In the event this Agreement expires or is terminated for any reason, a Purchasing Entity shall retain its
rights in all Products and services in transit or delivered prior to the effective termination date.
D. The Contractor's Rights
In the event this Agreement expires or is terminated for any reason, a Purchasing Entity shall pay the
Contractor all amounts due for Products and services ordered and accepted prior to the effective
termination date or ordered before the effective termination date and ultimately accepted.
9. Non -Appropriation
The terms of this Agreement and any purchase order issued for multiple years under this Agreement is contingent
upon sufficient appropriations being made by the Legislature or other appropriate governing entity.
Notwithstanding any language to the contrary in this Agreement or in any purchase order or other document, a
Purchasing Entity may terminate its obligations under this Agreement, if sufficient appropriations are not made by
the governing entity at a level sufficient to allow for payment of the goods or services due for multiple year
agreements, or if operations of the paying entity are being discontinued. The Purchasing Entity's decision as to
whether sufficient appropriations are available shall be accepted by the Contractor and shall be final and binding.
A Purchasing Entity shall provide sixty (60) days notice, if possible, of its intent to terminate for reason cited
above. Such termination shall relieve the Purchasing Entity, its officers and employees from any responsibility or
liability for the payment of any further amounts under the relevant Purchase Order.
10. Shipment and Risk of Loss
A. All deliveries shall be F.O.B. destination, prepaid and allowed, with all transportation and handling
charges included in the price of the product and paid by the Contractor. Responsibility and liability for
loss or damage shall remain with the Contractor, as long as the Contractor designates the carrier, until
delivery to the identified ship to address when responsibility and liability for loss shall pass to the
Purchasing Entity except as to latent defects, fraud and Contractor's warranty obligations.
B. Whenever a Purchasing Entity does not accept Products due to missing, damaged, defective, incorrect
order and returns them to the Contractor, all related documentation furnished by the Contractor shall be
returned also. Unless otherwise agreed upon by the Purchasing Entity, the Contractor is responsible for
the return shipping cost of returned Products. The Contractor shall bear all risk of loss or damage with
respect to returned Products due to missing, damaged, defective and incorrect order.
C. Unless otherwise arranged between the Purchasing Entity and Contractor, all shipments of Products
should be shipped within three -to -five days by a reliable and insured shipping company.
11. Warranties
A. The Contractor agrees to warrant and assume responsibility for each Product that it licenses or sells to
the Purchasing Entity under this Agreement in accordance with the Contractor's standard warranties. The
Contractor acknowledges that the Uniform Commercial Code applies to this Agreement. In general, the
Contractor warrants that:
1. The Product will conform with the technical information published in the Contractor's product
manuals or data sheets.
2. The Product will be suitable for the ordinary purposes for which such Product is intended,
3. The Product will meet any mandatory specifications provided to the Contractor and agreed to in
writing by the Contractor prior to reliance by the Participating Entity on the Contractor's skill or
judgment when the Contractor advised the Purchasing Entity about the Product's ability to meet
those mandatory specifications.
4. The Product has been properly designed and manufactured for its intended use, and
5. The Product is free of significant defects in material and workmanship, or unusual problems about
which the Purchasing Entity has not been warned.
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6. Exhibit A contains additional warranties in effect as of the date of this Agreement. Warranties
may be deemed voice in certain situations, including but not limited to the follows: (1) will not
apply to use of a Product other than as anticipated and intended by the Contractor, (ii) a problem
arising after changes or modifications to the Products or operating system by any party other than
the Contractor (unless expressly authorized in writing by the Contractor), or (iii) to use of a
Product in conjunction or combination with other products or software not authorized by the
Contractor. The following is a list of the warranties attached as Exhibit A:
a) Limited Warranties and Return Policy
B. Contractor may modify the warranties described in Exhibit A from time to time with 30 days prior written
approval of the Contract Administrator.
C. Warranty documents for Products manufactured by a third party shall be delivered to the Purchasing
Entity with the Products, as provided by the Manufacturer.
12. Patent, Copyright, Trademark and Trade Secret Indemnification
A. The Contractor shall defend, at its own expense, the State of Minnesota, Participating States,
Participating Entities, Purchasing Entities against any claim that any Dell Branded Product or Service
provided under this Agreement infringes any patent, copyright or trademark in the United States or Puerto
Rico, and shall pay all costs, damages and attomeys' fees that a court finally awards as a result of any
such claim. In addition, if any third party obtains a judgment against a Purchasing Entity based upon the
Contractor's trade secret infringement relating to any Dell Branded Products or Services provided under
this Agreement, the Contractor agrees to reimburse the Purchasing Entity for all costs, attorneys' fees
and the amount of the judgment. To qualify for such defense and/or payment, the Lead State or
Participating or Purchasing Entity shall:
1. Give the Contractor prompt written notice of any claim;
2. Allow the Contractor to control the defense or settlement of the claim; and
3. Cooperate with the Contractor in a reasonable way to facilitate the defense or settlement of the
claim.
B. If any Products or Service becomes, or in the Contractor's opinion is likely to become the subject of a
claim of infringement, the Contractor shall at its, option and expense:
1. Provide a Purchasing Entity the right to continue using the Products or Services;
2. Replace or modify the Products or Services so that it becomes non -infringing; or
3. Accept the return of the Products or Service and refund an amount equal to the depreciated value
of the returned Products or Service, less the unpaid portion of the purchase price and any other
amounts, which are due to the Contractor. The Contractor's obligation will be void as to any
Products or Services modified by the Purchasing Entity to the extent such modification is the
cause of the claim.
C. Non -Dell Branded offerings: With respect to any claim that Non Dell -Branded product(s) infringes upon
another person's or entity's patent, copyright, trade secret or other intellectual property rights in the
United States, Dell agrees to pass through to the appropriate Purchasing Entity any rights to
indemnification protection for which Dell currently or subsequently has an agreement in place with the
potentially infringing equipment manufacturer/entity.
D. The Contractor has no obligation for any claim of infringement arising from:
1. The Contractor's compliance with the Purchasing Entity's or by a third party on the Purchasing
Entity's behalf designs, specifications, or instructions;
2. The Contractor's use of technical information or technology provided by the Purchasing Entity;
3. Product modifications by the Purchasing Entity or a third party;
4. Product use prohibited by Specifications or related application notes; or
5. Product use with products that are not the Contractor branded.
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13. Price Guarantees
The Purchasing Entities shall pay the lower of the prices contained in the PSS or an Announced Promotion Price,
Educational Discount Price, General Price Reduction price, Trade-in price, Per Transaction Multiple Unit Discount
Price, or Standard Configuration Price. Only the General Price Reduction price decreases will apply to all
subsequent Purchase Orders accepted by Contractor after the date of the issuance of the General Price
Reduction prices.
The initial Cumulative, Per Transaction Multiple Unit, and Standard Configurations Discounts shall be submitted to
the Contract Administrator in a format agreeable to both parties prior to signing the Agreement. Once a
cumulative volume has been reached, the increased price discount will apply to all future orders, until the next
level of cumulative volume is reached.
14. Product and Service Schedule
The Contractor agrees to maintain the PSS in accordance with the following provisions:
A. The PSS prices for Products and services will conform to the guaranteed price discount levels on file with
the Contract Administrator for the following Products:
Band 1: File/Print Servers, Mid -Range Servers
Band 2: Desktops, Laptops, Tablet PCs,
Band 3: Printers, High speed; Medium speed; Desktop; Laptop
Band 4: Storage Solutions
Band 5: PDA's
LAN equipment and related software.
General Purpose Software
B. The Contractor may change the price of any Product or Service at any time, based upon documented
baseline price changes, but the guaranteed price discount levels shall remain unchanged during the
agreed period unless or until prior approval is obtained from the Contract Administrator. The Contractor
agrees that the PSS on the State's administration website shall contain a single, uniform WSCA price for
configurations and items. Failure to comply with these requirements will be grounds for further action to
be taken against the Contractor.
C. The Contractor may make model changes; add new Products, and Product upgrades or Services to the
PSS in accordance with Item 15, Product Substitutions, below. The pricing for these changes shall
incorporate, to the extent possible, comparable price discount levels approved by the Contract
Administrator for similar Products or Services.
D. The Contractor agrees to delete obsolete and discontinued Products from the PSS on a timely basis.
E. The Contractor shall maintain the PSS on a Contractor supplied Internet web site.
15. Product Substitutions
A. Substitution of units/configurations
MMD and the WSCA Directors acknowledge that individual units and configurations may stop being
produced during the life of the resulting Agreements. Substitution of different units and configurations will
be permitted with the prior written approval of the Contract Administrator. This substitution is at the sole
discretion of the Contract Administrator, subject only to review and approval of the Contract Administrator.
B. Addition of units/configurations
MMD and the WSCA Directors acknowledge that with the evolution of technology, new, emerging units
and configurations will develop. Addition of these new, emerging units to the PSS may be permitted, with
the prior approval of the Contract Administrator and the WSCA Directors. The addition of new, emerging
units and configurations is at the sole discretion of the Contract Administrator, subject only to review and
approval of the WSCA Directors.
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16. Technical Support
The Contractor agrees to maintain a toll -free technical support telephone line. The line shall be accessible to
Purchasing Entity personnel who wish to obtain competent technical assistance regarding the hardware and
software installation or operation of Contractor -supplied Products during the product warranty period or during a
support agreement.
17. Take back/Environment/Energy Efficiency Programs
The Contractor agrees to maintain for the term of this Agreement, and all renewals/extensions thereof, programs
as described in their response to the RFP, including but not limited to:
A. Take back/Recycling of CPUs, servers, monitors, flat panel displays, notebook computers, and printers.
Costs are listed on the web site.
B. Environment: Compliance with the European Unions' Directives, or other international directives;
reduction/minimization/avoidance of the use of toxic and hazardous constituents; certification by
independent third party eco-labeling programs (TCO, Blue Angel, and Nordic Swan); ISO 14001
certification; and the use of recyclable, nontoxic packaging.
C. Energy Efficiency: Products meet the Energy Star or other recognized programs for energy efficiency.
D. Product labeling of compliance with Items B & C above, as well as identification of such information on
the web site.
The Contractor will notify the Contract Administrator, in writing, of any additions/changes/deletions to the above
programs.
18. Product Delivery
Contractor agrees to deliver Products to Purchasing Entities within and estimated 14 - 30 days after receipt of a
valid Purchase Order, or in accordance with a schedule agreed to between the Purchasing Entity and the
Contractor.
19. Force Majeure
Neither party hereto shall be considered in default in the performance of its obligations hereunder to the extent
that performance of any such obligations is prevented or delayed by acts of God, war, strike, riot, industry -wide
constraints, or other catastrophes beyond the reasonable control of the party unless the act or occurrence could
have been reasonably foreseen and reasonable action could have been taken to prevent the delay or failure to
perform. A party defaulting under this provision must provide the other party reasonable written notice of the
default and take all necessary steps to bring about performance as soon as practicable.
20. Records and Audit
Per Minn. Stat. § 16C.05, Subd. 5, the books, records, documents, and accounting procedures and practices of
the Contractor and its employees, agents, or subcontractors relevant to the Minnesota transactions must be made
available and subject to examination by the contracting agency or its agents, the Legislative Auditor and/or the
State Auditor for a minimum of six years after the end of the Contract or transaction.
Unless otherwise required by other than Minnesota Purchasing Entity governing law, such records relevant to
other Purchasing Entity transactions shall be subject to examination by appropriate government authorities for a
period of three years from the date of acceptance of the Purchase Order.
21. Independent Contractor
The Contractor and its agents and employees are independent contractors and are not employees of the State of
Minnesota or of any participating entity. The Contractor has no authorization, express or implied to bind the Lead
State, NASPO, WSCA or any Participating Entity to any agreements, settlements, liability or understanding with
other third parties whatsoever, and agrees not to perform any acts as agent for the Lead State, NASPO, WSCA,
or Participating Entity, except as expressly set forth herein. The Contractor and its agents and employees shall
not accrue leave, retirement, insurance, bonding, use of state vehicles, or any other benefits afforded to
employees of the Lead State or Participating Entity as a result of this Agreement.
Page 10
22. Use of Servicing Subcontractors
The Contractor may subcontract services and purchase order fulfillment and/or support in accordance with the
following paragraphs. However, the Contractor shall remain solely responsible for the performance of this
Agreement.
A. Reseller/Agent, Service Provider or Servicing Subcontractors shall be identified individually or by class in
the applicable Participating Addendum, or as noted in the Participating Addendum on the Purchasing
Entities extranet site. The ordering and payment process for Products or Services shall be defined in the
Participating Addendum.
23. Payments to Subcontractors
In the event the Contractor hires subcontractors to perform all or some of the duties of this Agreement, the
Contractor understands that Minn. Stat. § 16A.1245 requires that any such subcontractor be paid within ten (10)
days of the Contractor's receipt of payment from the State for undisputed services provided by the subcontractor.
The Contractor agrees to take all steps necessary to comply with said statute. A consultant is a subcontractor
under this Agreement. In the event the Contractor fails to make timely payments to a subcontractor, the State
may, at its sole option and discretion, pay a subcontractor any amounts due from the Contractor for work
performed under this Agreement and deduct said payment from any remaining amounts due the Contractor.
Before any such payment is made to a subcontractor, the State shall provide the Contractor written notice that
payment will be made directly to a subcontractor. The Contractor shall ensure that the subcontractor transfers all
intellectual or industrial property rights, including but not limited to any copyright it may have in the work
performed under this Agreement, consistent with the intellectual property rights and ownership sections of this
Agreement. In the event the Contractor does not obtain the intellectual property rights of the subcontractor
consistent with the transfer of rights under this Agreement, the State may acquire such rights directly from the
subcontractor. Any and all costs associated with such a direct transfer may be deducted from any amount due
the Contractor.
24. Indemnification
A. The Contractor shall hold the Lead State, Participating Entities and its agencies and employees harmless
and shall indemnify the Lead State, Participating Entities and its agencies and employees against any
and all claims, suits, actions, liabilities and costs of any kind, including attorney's fees for personal injury
or damage to real property or tangible personal property arising from the negligent or willful acts or
omissions of the contractor, its agents, officers, employees or subcontractors. This indemnification shall
in no event exceed an amount of twice the fees paid to Contractor under the specific order giving rise to
the claim, suite, action, or liability.
B. Contractor shall not be liable for damages that are the result of negligence by the Lead State,
Participating Entity, or its employees. To the maximum extent permitted by applicable state law,
Purchasing Entities agree to be responsible for their own acts, errors, or omissions pertaining to this
indemnification provision.
C. Additional representations
For acquisition of Services, the following additional terms shall apply. To the extent permitted by law, a
Participating Entity accepts responsibility for and represents and warrants that: (a) the Participating Entity
has obtained the appropriate license, intellectual property rights, or any other permissions required to
support any Service Description, SOW, or Technical Specification Form signed by the Parties, or
Contractor's performance of the Services, including the right to make any copies or Reproductions of any
Participating Entity -provided software, (b) the Participating Entity's representations regarding the
existence of an export license or the eligibility for export of software without a license are accurate, or (c)
that Contractor shall not be held liable for the effect (if any) on the Participating Entity's third -party product
warranties caused by having Contractor perform services on such third -party Products.
Page 11
25. Amendments
Agreement amendments shall be negotiated by the State with the Contractor whenever necessary to address
changes in the terms and conditions, costs, timetable, or increased or decreased scope of work. This Agreement
shall be amended only by written instrument executed by the parties. An approved Agreement amendment
means one approved by the authorized signatories of the Contractor and the State as required by law.
26. Scope of Agreement
This Agreement incorporates all of the agreements of the parties concerning the subject matter of this Agreement.
No prior agreements, verbal or otherwise, of the parties or their agents shall be valid or enforceable unless
embodied in this Agreement.
27. Severability
If any provision of this Agreement, including items incorporated by reference, is found to be illegal, unenforceable,
or void, by a court of competent jurisdiction then both the State and the Contractor shall be relieved of all
obligations arising under such provision. If the remainder of this Agreement is legally valid, it shall not be affected
by such declaration or finding and shall be fully performed.
28. Enforcement of Agreement/Waivers
A. No covenant, condition, duty, obligation, or undertaking contained in or made a part of this Agreement
shall be waived except by the written consent of the parties. Forbearance or indulgence in any form or
manner by either party in any regard whatsoever shall not constitute a waiver of the covenant, condition,
duty, obligation, or undertaking to be kept, performed, or discharged by the other party. Until complete
performance or satisfaction of all such covenants, conditions, duties, obligations, and undertakings, the
forbearing/indulging party shall have the right to invoke any remedy available under law or equity,
notwithstanding any such forbearance or indulgence.
B. Waiver of any breach of any provision of this Agreement shall not be deemed a waiver of any prior or
subsequent breach. No term or condition of this Agreement shall be held to be waived, modified, or
deleted except by an instrument, in writing, signed by the parties hereto.
C. Neither party's failure to exercise any of its rights under this Agreement will constitute or be deemed a
waiver or forfeiture of those rights.
29. Web Site Maintenance
A. The Contractor agrees to maintain and support an Internet website linked to the State's administration
website for access to the PSS, service selection assistance, problem resolution assistance, billing
concerns, configuration assistance, Product descriptions, Product specifications and other aids in
accordance with reasonable instructions provided by the Contract Administrator. The Contractor agrees
that the PSS on the State's administration website shall contain a single, uniform WSCA price for
configurations and items. Failure to comply with this requirements will be grounds for further action to be
taken against the Contractor.
B. The Contractor agrees to maintain and support Participating State and Entity Internet website for access
to the specific Participating Entity PSS, as well as all other items listed in Item 29.A. listed above. The
website shall have the ability to hold quotes for 45 days, as well as the ability to change the quote.
C. The Contractor may provide electronic commerce assistance for the electronic submission of Purchase
Orders, purchase order tracking and reporting.
Page 12
30. Equal Opportunity Compliance
The Contractor agrees to abide by federal laws and the laws, regulations, and executive orders of the state in
which it's primary place of business is located pertaining to equal employment opportunity. In accordance with
such laws, regulations, and executive orders, the Contractor agrees that no person in the United States shall, on
the grounds of race, color, religion, national origin, sex, age, veteran status or handicap, be excluded from
employment with or participation in, be denied the benefits of, or be otherwise subjected to discrimination under
any program or activity performed by the contractor under this Agreement. If the Contractor is found to be not in
compliance with these requirements during the life of this Agreement, the Contractor agrees to take appropriate
steps to correct these deficiencies.
The Contractor certifies that it will remain in compliance with Minn. Stat. § 363.073 during the life of the
Agreement.
31. Limitation of Liability
The Contractor's liability to a Purchasing Entity for any cause whatsoever shall be limited to the purchase price
paid to the Contractor for the products and services that are the subject of the Purchasing Entity's claim. The
foregoing limitation does not apply to Paragraphs 12 and 24 of this Agreement or to damages resulting from
personal injury caused by the Contractor's negligence. In no event shall the Contractor be liable for any indirect,
special, punitive, or consequential damages arising out of this Agreement or the use of the Products or Services
purchased by the Purchasing Entity hereunder.
32. Governing Law
This Agreement shall be governed and construed in accordance with the laws of the Lead State. The construction
and effect of any Participating Addendum or order against this Agreement shall be governed by and construed in
accordance with the laws of the Purchasing Entity's state. Venue for any claim, dispute or action concerning the
construction and effect of the Agreement shall be in the Lead State. Venue for any claim, dispute or action
concerning an order placed against this Agreement or the effect of a Participating Addendum or shall be in the
Purchasing Entity's state.
33. Change in Contractor Representatives
Contractor shall appoint a primary representative to work with the Contract Administrator to maintain, support and
market this Agreement. The Contractor shall notify the Contract Administrator of changes in any Contractor key
personnel, in writing, and in advance, if possible. The State reserves the right to require a change in Contractor's
then -current primary representative if the assigned representative is not, in the opinion of the State, adequately
serving the needs of the Lead State and the Participating Entities.
34. Release
The Contractor, upon final payment of the amount due under this Agreement, releases the Lead State and
Participating Entities, its officers and employees, from all contractual liabilities, claims and obligations whatsoever
arising from or under this Agreement, except as expressly provided in Paragraph 41, Survival, below. The
Contractor agrees not to purport to bind the Lead State or any Participating Entity to any obligation, unless the
Contractor has express written authority to do so, and then only within the strict limits of the authority.
35. Data Practices
A. With respect to the agreement, the Contractor agrees to comply with the Minnesota Government Data
Practices Act, Minn. Stat. Ch. 13, as it applies to all data provided by the State to the Contractor and all
data provided to the State by the Contractor. In addition, the Minnesota Government Data Practices Act
applies to all data created, collected, received, stored, used, maintained, or disseminated by the
Contractor in accordance with this Agreement that is private, nonpublic, protected nonpublic, or
confidential as defined by the Minnesota Government Data Practices Act, Ch. 13.
Page 13
B. The Contractor agrees to indemnify, savq, and hold the State, its agents and employees, harmless from
all claims arising out of, resulting from, or in any manner attributable to any violation of any provision of
the Minnesota Government Data Practices Act, including legal fees and disbursements paid or incurred to
enforce this provision of the Agreement. In the event that the Contractor subcontracts any or all of the
work to be performed under the Agreement, the Contractor shall retain responsibility under the terms of
this paragraph for such work.
C. The Contractor agrees to be bound by the data practices requirements as outlined in the Participating
Addendum of a Participating State or Participating Entity.
36. Organizational, Conflicts of Interest
A. The Contractor warrants that, to the best of its knowledge and belief, and except as otherwise disclosed,
there are no relevant facts or circumstances which could give rise to organizational conflicts of interest.
An organizational conflict of interest exists when, because of existing or planned activities or because of
relationships with other persons:
• a Contractor is unable or potentially unable to render impartial assistance or advice to the State;
• the Contractor's objectivity in performing the work is or might be otherwise impaired; or
• the Contractor has an unfair competitive advantage.
B. The Contractor agrees that if an organizational conflict of interest is discovered after award, an immediate
and full disclosure in writing shall be made to the Assistant Director of the Department of Administration's
Materials Management Division that shall include a description of the action the Contractor has taken or
proposes to take to avoid or mitigate such conflicts. If an organizational conflict of interest is determined
to exist, the State may, at its discretion, cancel the Agreement. In the event the Contractor was aware of
an organizational conflict of interest prior to the award of the Agreement and did not disclose the conflict
to the Contract Administrator, the State may terminate the Agreement for default. The provisions of this
clause shall be included in all subcontracts for work to be performed, and the terms "Agreement,"
"Contractor," and "Contract Administrator" modified appropriately to preserve the State's rights.
37. Replacement Parts
Unless otherwise restricted in a Participating Addendum or maintenance service agreement, replacement parts
may be refurbished.
38. FCC Certification
The Contractor agrees that Equipment supplied by the Contractor meets all applicable FCC Certifications.
Improper, falsely claimed or expired FCC certifications are grounds for termination of this Agreement for cause.
39. Site Preparation
A Purchasing Entity shall prepare and maintain its site in accordance with written instructions furnished by the
Contractor prior to the scheduled delivery date of any Products and Services and shall bear the costs associated
with the site preparation.
40. Assignment
The Contractor shall not sell, transfer, assign, or otherwise dispose of this Agreement or any portion hereof or of
any right, title, or interest herein without the prior written consent of the State's authorized agent. This Agreement
is a manufactured -direct solicitation and Agreement. Assignment to an entity that is not a manufacturer, as
defined in this Agreement, is NOT within the Scope of this Agreement. Such consent shall not be unreasonably
withheld. The Contractor shall give written notice to the State's authorized agent of such a possibility at least 30
days prior to the sale, transfer, assignment, or other disposition of this Agreement. Failure to do so may result in
the Contractor being held in default. This consent requirement includes reassignment of this Agreement due to a
change in ownership, merger, or acquisition of the Contractor or its subsidiary or affiliated corporations. This
section shall not be construed as prohibiting the Contractor's right to assign this Agreement to corporations to
provide some of the services hereunder. Notwithstanding the foregoing acknowledgment, the Contractor shall
Page 14
remain solely liable for all performance required and provided under the terms and conditions of this Agreement.
The Contractor may assign payments in accordance with specific provisions stated in a Participating Addendum.
41. Survival
Certain paragraphs of this agreement including but not limited to Patent, Copyright, Trademark, and Trade Secret
Indemnification; Indemnification; Limitation of Liability; Governing Law; Audits; and Publicity shall survive the
expiration of this agreement. Software licenses, warranty and service agreements that were entered into under
the terms and conditions of this Agreement shall survive this Agreement.
42. Succession
This Agreement shall be entered into and be binding upon the successors and assigns of the parties.
43. Notification
A. If one party is required to give notice to the other under the Agreement, such notice shall be in writing and
shall be effective upon receipt. Delivery through the US Postal service shall be deemed as delivered
three business days after being mailed. Delivery may be by certified United States mail, or by hand, in
which case a signed receipt shall be obtained. A facsimile transmission shall constitute sufficient notice,
provided the receipt of the transmission is confirmed by the receiving party. All notices shall be
addressed as follows:
To MMD:
Department of Administration
Materials Management Division
Bernadette Kopischke, CPPB
Acquisition Management Specialist
50 Sherburne Avenue
112 State Administration Building
St. Paul, MN 55155
Fax: 651.297.3996
Email: bernie.kopischke@state.mn.us
To Contractor:
Dell Marketing L.P.
Attn: NASPO/WSCA Program Manager (Public Sector Contracts)
One Dell Way, Box 8707
Round Rock, TX 78682
B. Either party may change its representative or address above by written notice to the other in accordance
with the terms of this Paragraph 44. The carrier for mail delivery and notices shall be the agent of the
sender.
44. Reporting and Fees
A. Administration Reporting and Fees
1. The Contractor agrees to provide periodic utilization reports to the Contract Administrator in
accordance with the following schedule:
Period End
June 30
September 30
December 31
March 31
Report Due
July 31
October 30
January 31
April 30
Page 15
2. The periodic report shall include, but not be limited to the net (gross sales minus returns, credits,
and deductions) sales for the period subtotaled by Purchasing Entity name, within the Purchasing
Entity's state name. A standard format of data elements shall be developed for the report. The
Contractor shall submit a check payable to Western States Contracting Alliance for an amount
equal to one -twentieth of one percent (0.0005) of the net sales for the period.
3. The Contractor agrees to include all Reseller Agent sales in the periodic utilization reports
described above. In addition, the Contractor agrees to include in the utilization report a Reseller
Agent utilization report of the net sales for the period subtotaled by Purchasing Entity name,
within Purchasing Entity state name by Reseller Agent Name.
4. The Contractor agrees to provide with the quarterly utilization report a supplemental report of the
credits associated with the units taken back in a format to be mutually agreed to.
5. The utilization reports shall be submitted to the Contract Administrator via electronic mail in a
Microsoft Excel spreadsheet format, or other methods such as direct access to Internet or other
databases.
6. If requested by the Contract Administrator, the Contractor agrees to provide supporting Purchase
Order detail records on a mutually agreed magnetic media in a mutually agreed format. Such
requests shall not exceed twelve per year.
7. The failure to file the utilization reports and fees on a timely basis shall constitute grounds for the
removal of the Contractor's primary representative, suspension of this Agreement or termination
of this Agreement for cause.
8. The Contract Administrator shall be allowed access to all reports from all Purchasing Entities.
B. Participating Entity Reports and Fees
1. Participating Entities may require an additional fee be paid directly to the State on purchases
made by Purchasing Entities within that State. For all such requests, the fee level, payment
method and schedule for such reports and payments shall be incorporated in a Participating
Addendum that is made a part of this Agreement. The Contractor may adjust PSS pricing
accordingly for purchases made by Purchasing Entities within the jurisdiction of that State. All
such agreements shall have no effect whatsoever on the WSCA fee or the prices paid by the
Purchasing Entities outside the jurisdiction of the State requesting the additional fee.
2. The Contractor agrees to provide additional reports to Purchasing Entities upon agreement by
both parties as to the content and delivery method of the report. Methods of delivery may include
direct access to Internet or other databases.
3. Each State Purchasing Entity shall be allowed access to reports from all entities within that State.
45. Default and Remedies
A. Any of the following shall constitute cause to declare this Agreement or any order under this Agreement in
default:
1. Consistent nonperformance of contractual requirements; or
2. A material breach of any term or condition of this Agreement.
B. A written notice of default, and an opportunity to cure within 30-days notification of the written notice, shall
be issued by the party claiming default, whether the Lead State (in the case of breach of the entire
Agreement), a Participating Entity (in the case of a breach of the participating addendum), the Purchasing
Entity (with respect to any order), or the Contractor. Time allowed for cure shall not diminish or eliminate
any liability for liquidated or other damages.
Page 16
C. If the default remains after the opportunity for cure, the non -defaulting party may:
1. Exercise any remedy provided by law or equity;
2. Terminate the Agreement, a Participating Addendum, or any portion thereof, including any
Purchase Orders issued against the Agreement;
3. Impose liquidated damages as mutually agreed by the parties, as specified in an Amendment to a
Participating Addendum;
4. In the case of default by the Contractor, and to the extent permitted by the law of the Participating
State or Purchasing Entity, suspend Contractor from receiving future solicitations from within the
Participating Entity's jurisdiction.
46. Audits
A. The Contractor agrees to assist the Contract Administrator or designee with web site Product and pricing
audits based on mutually acceptable procedures.
1. The product audit will closely monitor the products and services listed on the website to insure
they comply with the approved products and services. The addition of products or services not
approved by the Contract Administrator will not be tolerated and may be considered a material
breach of this Agreement.
B. Upon request, the Contractor agrees to assist Participating Entities with invoice audits to ensure that the
Contractor is complying with this Agreement in accordance with mutually agreed procedures set forth in
the Participating Addendum.
47. Extensions
If specifically authorized by provision in a Participating Addendum, the Contractor may, at the sole discretion of
the Contractor and in compliance with the laws of the Participating State, offer Products and services to non-profit
organizations, private schools, Native American governmental entities, government employees and students
within the governmental jurisdiction of the entity completing the Participating Addendum with the understanding
that the State has no liability whatsoever concerning payment for products or services.
48. Sovereign Immunity
The State does not waive its sovereign immunity by entering into this Agreement and fully retains all immunities
and defenses provided by law with regard to any action based on this Agreement.
49. Ownership
A. Ownership of Documents/Copyright. Any reports, studies, photographs, negatives, databases,
computer programs, or other documents, whether in tangible or electronic forms, prepared by the
Contractor in the performance of its obligations under the Agreement and paid for by the State shall be
the exclusive property of the State and all such material shall be remitted to the State by the Contractor
upon completion, termination or cancellation of the Agreement. The Contractor shall not use, willingly
allow or cause to allow such material to be used for any purpose other than performance of the
Contractor's obligations under the Agreement without the prior written consent of the State.
B. Rights, Title and Interest. All rights, title, and interest in all of the intellectual property rights, including
copyrights, patents, trade secrets, trade marks, and service marks in the said documents that the
Contractor conceives or originates, either individually or jointly with others, which arise out of the
performance of the Agreement and are ordered as a work product, will be the property of the State and
are, by the Agreement, assigned to the State along with ownership of any and all copyrights in the
copyrightable material. The Contractor also agrees, upon the request of the State, to execute all papers
and perform all other acts necessary to assist the State to obtain and register copyrights on such
materials. Where applicable, works of authorship created by the Contractor for the State in performance
of the Agreement shall be considered "works for hire" as defined in the U.S. Copyright Act. Nothing in
this Agreement shall be construed as transferring any right, title, or interest in any of the Contractor's or
their third parry's confidential information, trademarks, copyrights, intellectual property or other proprietary
interest.
Page 17
50. Prohibition Against Gratuities
A. The State may, by written notice to the Contractor, terminate the right of the Contractor to proceed under
this Agreement if it is found by the State that gratuities in the form of entertainment, gifts, or otherwise
were offered or given by the Contractor or any employee, agent, or representative of the Contractor to
any officer or employee of the State with a view toward securing this Agreement, or securing favorable
treatment with respect to the award or amendment of this Agreement, or the making of any
determinations with respect to the performance of this Agreement.
B. The Contractor certifies that no elected or appointed official or employee of the State has benefited or will
benefit financially or materially from this Agreement. This Agreement may be terminated by the State if it
is determined that gratuities of any kind were either offered to or received by any of the aforementioned
individuals from the Contractor, its agent, or its employees.
51. Antitrust
By entering into a Contract, the Contractor agrees to consider, in the Contractor's discretion, all causes of action it
may now have or hereafter acquire under the antitrust laws of the United States and the State, relating to the
particular goods or services purchased or acquired by the State under said Contract. For any cause of action
taken herein by Contractor, the State, at the State's discretion, may participate in any such action. In the event
that Contractor desires to participate in such action, the Contractor shall not oppose the State's request to join
such action so long as the interests/positions of the State are not adverse to the interests/positions of the
Contractor.
52. Right to Publish
A. Any publicity given to the program, publications or services provided resulting from the Agreement,
including but not limited to notices, informational pamphlets, press releases, research, reports, signs, and
similar public notices prepared by or for the Contractor, or its employees individually or jointly with others,
or any subcontractors or resellers shall identify the State as the sponsoring agency and shall not be
released, unless such release is a specific part of an approved work plan included in the Agreement prior
to its approval by the Contract Administrator.
B. The Contractor shall not make any representations of the State's opinion or position as to the quality or
effectiveness of the products and/or services that are the subject of this Agreement without the prior
written consent of the Agreement Administrator. Representations include any publicity, including but not
limited to advertisements, notices, press releases, reports, signs, and similar public notices.
53. Performance While Dispute is Pending
Notwithstanding the existence of a dispute, the parties shall continue without delay to carry out all of their
responsibilities under this Agreement that are not affected by the dispute. If a party fails to continue without delay
to perform its responsibilities under this Agreement, in the accomplishment of all undisputed work, any additional
cost incurred by the other parties as a result of such failure to proceed shall be bome by the responsible party.
54. Hazardous Substances
To the extent that the goods to be supplied to the Purchasing Entity by the Contractor contain or may create
hazardous substances, harmful physical agents or infectious agents as set forth in applicable State and federal
laws and regulations, the Contractor must provide the Purchasing Entity, upon request, with Material Safety Data
Sheets regarding those substances (including mercury).
55. Customer Satisfaction/Complaint Resolution
A. The Contractor's process for resolving complaints concerning products, support, and billing problems is
attached as Exhibit B.
B. The Contractor will submit a format for a survey for approval by the Contract Administrator. The
Contractor will survey its customers in each Participating State two (2) months prior to the annual meeting
with the Contract Administrator.
Page 18
56. Value Added Services
The Contractor is expected to provide such services as installation, training, and software imaging upon request
of the Purchasing Entity. Additional Value Added Services offered by the Contractor are attached as Exhibit C,
including relative costs associated with those services.
57. E-Rate Program
The Contractor's E-Rate identification number is SPIN#143004340.
E-Rate eligibility depends upon who uses the equipment, how it is used and where it is located. In general terms,
equipment located on school property and that is necessary for e-mail and Internet access in classrooms is
eligible for E-Rate support.
File server components generally are eligible for discount when used for one or more of the following functions:
Domain Name Server, E-mail Server, Communications Server, Terminal Server, Web Server, or DHCP Server.
File server components are not eligible for discount when used for one or more of the following functions:
Application or DB Server, Archive or Data Warehouse, Caching Server, Print Server, or Proxy Server.
Generally, network electronics, such as switches and related items are eligible if they are part of a network that
delivers information to classrooms. Caching devices are not eligible.
The Contractor shall make every effort to continue its involvement in this program and to add products as
applicable.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date of execution by the State of
Minnesota, Commissioner of Administration, below.
1. DELL MARKETING L.P.
The Contractor certifies that the appropriate person(s)
have executed this Agreement on behalf of the Contractor
as required by applicable articles, bylaws, resolutions, or
ordinances.
By:
Title: National Contract Manaaer
Date: Auaust 26.2004
2. MATERIALS MANAGEMENT DIVISION
In accordance with Minn. Stat. § 16C.03, Subd. 3.
J
By:
Title: Acauisition Manaaement SDecialist
Date:
3.
By:
aA40co
TION
Page 19
EXHIBIT A - ADDITIONAL WARRANTIES
Limited Warranties and Return Policy
Dell -branded hardware products purchased in the U.S. or Canada come with either a 90-day, 1-year, 2-year, 3-year or 4-
year limited warranty, depending on the product purchased. To determine which warranty came with your hardware
product(s), see your packing slip or invoice. The following sections describe the limited warranties and return policy for the
U.S.
What is covered by this limited warrantv?
This limited warranty covers defects in materials and workmanship in your — our end -user customer's — Dell -branded
hardware products, including Dell -branded peripheral products.
What is not covered by this limited warrantv?
This limited warranty does not cover:
• Software, including the operating system and software added to the Dell -branded hardware products through our
factory -integration system, third -party software, or the reloading of software.
■ Non -Dell branded and Solution Provider Direct products and accessories
■ Problems that result from:
• External causes such as accident, abuse, misuse, or problems with electrical power
• Servicing not authorized by Dell
• Usage that is not in accordance with product instructions
• Failure to follow the product instructions or failure to perform preventive maintenance
• Problems caused by using accessories, parts, or components not supplied by Dell
■ Products with missing or altered Service Tags or serial numbers
■ Products for which Dell has not received payment
THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH
VARY FROM STATE TO STATE (OR JURISDICTION TO JURISDICTION). DELL'S RESPONSIBILITY FOR
MALFUNCTIONS AND DEFECTS IN HARDWARE IS LIMITED TO REPAIR AND REPLACEMENT AS SET FORTH IN
THIS WARRANTY STATEMENT. ALL EXPRESS AND IMPLIED WARRANTIES FOR THE PRODUCT, INCLUDING BUT
NOT LIMITED TO ANY IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE, ARE LIMITED IN TIME TO THE TERM OF THE LIMITED WARRANTY PERIOD REFLECTED
ON YOUR PACKING SLIP OR INVOICE. NO WARRANTIES, WHETHER EXPRESS OR IMPLIED, WILL APPLY AFTER
THE LIMITED WARRANTY PERIOD HAS EXPIRED. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG
AN IMPLIED WARRANTY LASTS, SO THIS LIMITATION MAY NOT APPLY TO YOU.
WE DO NOT ACCEPT LIABILITY BEYOND THE REMEDIES PROVIDED FOR IN THIS LIMITED WARRANTY OR FOR
CONSEQUENTIAL OR INCIDENTAL DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY LIABILITY FOR THIRD -
PARTY CLAIMS AGAINST YOU FOR DAMAGES, FOR PRODUCTS NOT BEING AVAILABLE FOR USE, OR FOR
LOST DATA OR LOST SOFTWARE. OUR LIABILITY WILL BE NO MORE THAN THE AMOUNT YOU PAID FOR THE
PRODUCT THAT IS THE SUBJECT OF A CLAIM. THIS IS THE MAXIMUM AMOUNT FOR WHICH WE ARE
RESPONSIBLE.
SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL
DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
How Iona does this limited warrantv last?
This limited warranty lasts for the time period indicated on your packing slip or invoice, except for the following Dell -
branded hardware:
• Portable computer batteries carry a 1-year limited warranty.
■ Projector lamps carry a 90-day limited warranty.
• Memory carries a lifetime limited warranty.
Page 20
Monitors carry the longer of either a 3-year limited warranty or the remainder of the warranty for the Dell computer
to which the monitor will be connected.
PDAs, MP3 players, earphones, remote inline controls, and AC adapters carry a 1-year limited warranty.
Other add -on hardware carries the longer of either a 1-year limited warranty for new parts and a 90-day limited
warranty for reconditioned parts or, for both new and reconditioned parts, the remainder of the warranty for the
Dell computer on which such parts are installed.
The limited warranty on all Dell -branded products begins on the date of the packing slip or invoice. The warranty period is
not extended if we repair or replace a warranted product or any parts. Dell may change the availability of limited
warranties, at its discretion, but any changes will not be retroactive.
What do I do if I need warrantv service?
Before the warranty expires, please call us at the relevant number listed in the following table. Please also have your Dell
Service Tag or order number available.
Web Support: hftp://www.support.dell.com/ContactUs/ContactUsHome.aspx?c=us&1=en&s=gen
Government and Education Customers: 1-800-234-1490
Dell -branded Memory: 1-888-363-5150
What will Dell do?
During the 90 days of the 90-day limited warranty and the first year of all other limited warranties: During the 90 days of
the 90-day limited warranty and the first year of all other limited warranties, we will repair any Dell -branded hardware
products returned to us that prove to be defective in materials or workmanship. If we are not able to repair the product, we
will replace it with a comparable product that is new or refurbished.
When you contact us, we will issue a Return Material Authorization Number for you to include with your return. You must
return the products to us in their original or equivalent packaging, prepay shipping charges, and insure the shipment or
accept the risk if the product is lost or damaged in shipment. We will return the repaired or replacement products to you.
We will pay to ship the repaired or replaced products to you if you use an address in the United States (excluding Puerto
Rico and U.S. possessions and territories). Otherwise, we will ship the product to you freight collect.
If we determine that the problem is not covered under this warranty, we will notify you and inform you of service
alternatives that are available to you on a fee basis.
NOTE: Before you ship the product(s) to us, make sure to back up the data on the hard drive(s) and any other
storage device(s) in the product(s). Remove any confidential, proprietary, or personal information and removable
media such as floppy disks, CDs, or PC Cards. We are not responsible for any of your confidential, proprietary,
or personal information; lost or corrupted data; or damaged or lost removable media.
During the remaining years: For the remaining period of the limited warranty, we will replace any defective part with new
or refurbished parts, if we agree that it needs to be replaced. When you contact us, we will require a valid credit card
number at the time you request a replacement part, but we will not charge you for the replacement part as long as you
return the original part to us within 30 days after we ship the replacement part to you. If we do not receive the original part
within 30 days, we will charge to your credit card the then -current standard price for that part.
We will pay to ship the part to you if you use an address in the United States, (excluding Puerto Rico and U.S.
possessions and territories). Otherwise, we will ship the part freight collect. We will also include a prepaid shipping
container with each replacement part for your use in returning the replaced part to us.
NOTE: Before you replace parts, make sure to back up the data on the hard drive(s) and any other storage
device(s) in the product(s). We are not responsible for lost or corrupted data.
Page 21
What if I Durchased a service contract?
If your service contract is with Dell, service will be provided to you under the terms of the service agreement. Please refer
to that contract for details on how to obtain service.
If you purchased through us a service contract with one of our third -party service providers, please refer to that contract
for details on how to obtain service.
How will you fix my Droduct?
We use new and refurbished parts made by various manufacturers in performing warranty repairs and in building
replacement parts and systems. Refurbished parts and systems are parts or systems that have been returned to Dell,
some of which were never used by a customer. All parts and systems are inspected and tested for quality. Replacement
parts and systems are covered for the remaining period of the limited warranty for the product you bought. Dell owns all
parts removed from repaired products.
Mav 1 transfer the limited warrantv?
Limited warranties on systems may be transferred if the current owner transfers ownership of the system and records the
transfer with us. The limited warranty on Dell -branded memory may not be transferred. You may record your transfer by
going to Dell's Web site:
If you are an Individual Home Consumer, go to www.dell.com/us/en/dhs/topics/sbtot)ic 015 ccare.htm
If you are a Home Office, Small, Medium, Large, or Global Commercial Customer, go to
www.dell.com/us/en/biZ/tODics/sbtoDic ccare nav 015 ccare.htm,
If you are a Government, Education, or Healthcare Customer, or an Individual Home Consumer who purchased
through an Employee Purchase Program, go to www.dell.com/us/en/pub/topics/sbtoDic 015 ccare.htm,
If you do not have Internet access, call your customer care representative or call 1-800-624-9897.
Total Satisfaction Return Policv (U.S. Onlv)
We value our relationship with you and want to make sure that you're satisfied with your purchases. That's why we offer a
Total Satisfaction return policy for most products that you, the end -user customer, purchase directly from Dell. Under this
policy, you may return to Dell products that you purchased directly from Dell for a credit or a refund of the purchase price
paid, less shipping and handling and applicable return fees as follows:
New Hardware Products and Accessories: Unless you have a separate agreement with Dell, all hardware,
accessories, peripherals, parts and unopened software still in its sealed package, excluding the products listed
below, may be returned within twenty-one (21) dars from the date on the packing slip or invoice. New
PowerEdgeT"" , PowerConnecJm and PowerVault M products may be returned within thirty (30) days from the
date on the packing slip or invoice except that new PowerEdge`rM SC servers and n series products purchased
from the Small and Medium Business Sales Division may only be returned within fourteen (14) days from the date
on the packing slip or invoice. To return applications software or an operating system that has been installed by
Dell, you must return the entire computer. A different return policy applies to nondefective products purchased
through Dell's Software and Peripherals division by customers of our Small and Medium Business divisions.
Those products may be returned within twenty-one (21) days from the date on the packing slip or invoice, but a
fifteen percent (15%) return fee will be deducted from any refund or credit. The Total Satisfaction Return Policy
and Software and Peripherals division return policy are not available for Dell/EMC storage products, EMC-
branded products, Unisys -branded products, PowerVaultTm 160T tape libraries, enterprise software, non -Dell
branded enterprise products, software and/or software licenses purchased under any type of volume purchase
agreement or any non -Dell customized hardware and/or software product(s).
Reconditioned or Refurbished Deli -Branded Hardware Products and Parts: All reconditioned or refurbished
PowerEdgeT"" , PowerConnecJm and PowerVaulJm products may be returned within thirty (30) days from the date
on the packing slip or invoice. All other reconditioned or refurbished Dell -branded hardware products and parts
may be returned within fourteen (14) days of the date on the packing slip or invoice.
Page 22
How to Return: To return products, e-mail or call Dell customer service to receive a Credit Return Authorization Number
within the return policy period applicable to the product you want to return. You must obtain a Credit Return Authorization
Number in order to return the product. See "Contacting Dell" or "Getting Help" in your customer documentation (or
www.dell.com/us/en/aen/contact.htm) to find the appropriate contact information for obtaining customer assistance.
You must ship the products to Dell within five (5) days of the date that Dell issues the Credit Return Authorization Number.
You must also return the products to Dell in their original packaging, in as -new condition along with any media,
documentation, and all other items that were included in the original shipment, prepay shipping charges, and insure the
shipment or accept the risk of loss or damage during shipment.
Note: Before you ship the product(s) to us, make sure to back up the data on the hard drive(s) and any other
storage device(s) in the product(s). Remove any confidential, proprietary or personal information, removable
media, such as floppy disks, CDs, or PC Cards. We are not responsible for any of your confidential, proprietary
or personal information; lost or corrupted data; or damaged or lost removable media.
Limited Warrantv for Dell -Branded Ink and Toner Cartridoes (U.S. and Canada Only)
Dell Inc. warrants to the original purchaser of genuine Dell -branded toner cartridges that they will be free from defects in
material and workmanship for the life of the cartridge and that for genuine Dell -branded ink cartridges they will be free
from defects in material and workmanship for two years beginning on the date of invoice. If this product proves defective
in either material or workmanship, it will be replaced without charge during the limited warranty period if returned to Dell.
You must first call our toll -free number to get your return authorization. In the U.S., call 1-800-822-8965; in Canada, call 1-
800-387-5757. If we are not able to replace the product because it has been discontinued or is not available, we will either
replace it with a comparable product or reimburse you for the cartridge purchase cost, at Dell's sole option. This limited
warranty does not apply to ink or toner cartridges that have been refilled, improperly stored, or due to problems resulting
from misuse, abuse, accident, neglect, mishandling, incorrect environments, or wear from ordinary use.
THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH
VARY FROM STATE TO STATE (OR JURISDICTION TO JURISDICTION). DELL'S RESPONSIBILITY FOR
MALFUNCTIONS AND DEFECTS IN HARDWARE IS LIMITED TO REPLACEMENT AS SET FORTH IN THIS
WARRANTY STATEMENT. FOR CANADIAN CUSTOMERS, EXCEPT FOR THE EXPRESS WARRANTIES
CONTAINED IN THIS WARRANTY STATEMENT, DELL DISCLAIMS ALL OTHER WARRANTIES AND CONDITIONS,
EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, FOR THE PRODUCT. FOR U.S. CUSTOMERS, ALL
EXPRESS AND IMPLIED WARRANTIES FOR THE PRODUCT, INCLUDING BUT NOT LIMITED TO ANY IMPLIED
WARRANTIES AND CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE
LIMITED IN TIME TO THE TERM OF THIS LIMITED WARRANTY. NO WARRANTIES, WHETHER EXPRESS OR
IMPLIED, WILL APPLY AFTER THE LIMITED WARRANTY PERIOD HAS EXPIRED. SOME STATES OR
JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN IMPLIED WARRANTIES OR CONDITIONS, OR
LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY OR CONDITION LASTS, SO THIS LIMITATION MAY NOT
APPLY TO YOU. THIS WARRANTY COVERAGE TERMINATES IF YOU SELL OR OTHERWISE TRANSFER THIS
PRODUCT TO ANOTHER PARTY.
DELL DOES NOT ACCEPT LIABILITY BEYOND THE REMEDIES PROVIDED FOR IN THIS LIMITED WARRANTY OR
FOR SPECIAL, INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES, INCLUDING, WITHOUT LIMITATION,
ANY LIABILITY FOR THIRD -PARTY CLAIMS AGAINST YOU FOR DAMAGES, FOR PRODUCTS NOT BEING
AVAILABLE FOR USE, OR FOR LOST DATA OR LOST SOFTWARE. DELL'S LIABILITY WILL BE NO MORE THAN
THE AMOUNT YOU PAID FOR THE PRODUCT THAT IS THE SUBJECT OF A CLAIM. THIS IS THE MAXIMUM
AMOUNT FOR WHICH DELL IS RESPONSIBLE.
SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF SPECIAL, INDIRECT,
INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO
YOU.
Page 23
Limited Warrantv for Dell -Branded Taoe Media (U.S. and Canada Onlvl
Dell warrants to you, the end -user customer, that this product will be free from defects in material and workmanship for
one year from the invoice date, if properly used and maintained. If this product proves defective in either material or
workmanship, it will be replaced without charge if returned to Dell. You must first call our toll -free number to get your
return authorization. In the U.S., call 1-800-822-8965. In Canada, call 1-800-387-5757. If we are not able to replace the
product because it has been discontinued or is not available, we will replace it with a comparable product. This warranty
does not apply to failure of the product resulting from misuse, abuse, accident, neglect or mishandling, improperly
adjusted or maintained drives, incorrect environments or wear from ordinary use.
THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH
VARY FROM STATE TO STATE (OR JURISDICTION TO JURISDICTION). DELL'S RESPONSIBILITY FOR
MALFUNCTIONS AND DEFECTS IN HARDWARE IS LIMITED TO REPLACEMENT AS SET FORTH IN THIS
WARRANTY STATEMENT. FOR CANADIAN CUSTOMERS, EXCEPT FOR THE EXPRESS WARRANTIES
CONTAINED IN THIS WARRANTY STATEMENT, DELL DISCLAIMS ALL OTHER WARRANTIES AND CONDITIONS,
EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, FOR THE PRODUCT. FOR U.S. CUSTOMERS, ALL
EXPRESS AND IMPLIED WARRANTIES FOR THE PRODUCT, INCLUDING BUT NOT LIMITED TO ANY IMPLIED
WARRANTIES AND CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ARE
LIMITED IN TIME TO THE TERM OF THIS LIMITED WARRANTY. NO WARRANTIES, WHETHER EXPRESS OR
IMPLIED, WILL APPLY AFTER THE LIMITED WARRANTY PERIOD HAS EXPIRED. SOME STATES OR
JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN IMPLIED WARRANTIES OR CONDITIONS, OR
LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY OR CONDITION LASTS, SO THIS LIMITATION MAY NOT
APPLY TO YOU. THIS WARRANTY COVERAGE TERMINATES IF YOU SELL OR OTHERWISE TRANSFER THIS
PRODUCT TO ANOTHER PARTY.
DELL DOES NOT ACCEPT LIABILITY BEYOND THE REMEDIES PROVIDED FOR IN THIS LIMITED WARRANTY OR
FOR SPECIAL, INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES, INCLUDING, WITHOUT LIMITATION,
ANY LIABILITY FOR THIRD -PARTY CLAIMS AGAINST YOU FOR DAMAGES, FOR PRODUCTS NOT BEING
AVAILABLE FOR USE, OR FOR LOST DATA OR LOST SOFTWARE. DELL'S LIABILITY WILL BE NO MORE THAN
THE AMOUNT YOU PAID FOR THE PRODUCT THAT IS THE SUBJECT OF A CLAIM. THIS IS THE MAXIMUM
AMOUNT FOR WHICH DELL IS RESPONSIBLE.
SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF SPECIAL, INDIRECT,
INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO
YOU.
Page 24
EXHIBIT B - COMPLAINT RESOLUTION
Dell relies on direct feedback from customers through face-to-face, telephone, email and facsimile communication with
our dedicated account management team. Voice of the Customer is a key initiative at Dell that allows us to maintain the
high quality of customer service that has garnered nationwide recognition. This initiative causes us to promptly review and
address every service, sales, equipment or contractual issue.
All levels of management work with our customers to ensure that we resolve issues in a timely and complete manner. An
email sent to Michael Dell is visible to every level of our company's senior management and is responded to with utmost
urgency. While the issue resolution procedures described in this section remain our preferred way of resolving customer
issues, the option of contacting Michael Dell ensures a consistent focus on the Voice of the Customer at all levels of the
company.
Dell also offers Advanced Escalation and Problem Resolution Services that exceed the standard approaches described
here (as described in Exhibit C - Value Added Services).
A. Customer Service
Dell's account team provides an escalation path for customer satisfaction issues, from the sales representative to the
director of the customer's region.
The Dell Sales Representative (SR), currently assigned to the customer's account, is the primary point of contact for
daily business. Any issues related to configuration, pricing, quotes, or purchase orders should be communicated
initially to the SR or the Account Executive (AE) for resolution and followed up in writing via email with a copy to the
Inside Sales Manager (ISM).
Should the SR be temporarily unavailable, a backup representative will assist the customer. In the rare event that both
the SR and the designated backup are unavailable, the ISM is available to handle the issue. Path of escalation for
sales issues is as follows:
1. Sales Representative
2. Account Executive
3. Inside Sales Manager
4. Regional Sales Manager
5. Sales Director or Vice President.
If a resolution cannot be reached, the escalation process is then directed to the Public Sector General Manager, Brian
Wood.
When necessary, Dell assigns a Project Manager (PM) as a single point of contact for customized deployment and
installation. To facilitate timely response to problems during critical periods, the Dell PM will monitor the progress of
the rollout and/or installation in conjunction with the Dell Service Field PM.
All operational issues should be communicated to the PM as soon as possible. Initial communication may be email or
telephone based on priority of the issue. All telephone communications should be followed by email documentation.
The PM will record the issue and coordinate involvement of appropriate resources to assess the issue and define an
action plan for resolution. The action plan will be communicated to the project team. The weekly progress report will
include status of issues and related action plans.
B. Equipment
Dell's reputation for industry -leading service and support starts with the high quality of our equipment. When support is
necessary, the direct model enables us to quickly respond based on specific information provided by our customers.
Page 25
This information, combined with our knowledge of equipment (as original manufacturer), ensures our premier status.
The technical support process is as follows:
1. Technical support calls are routed within Dell by use of specific 800 numbers, or service and support options from
a customized 800 number.
2. Technical issues are handled in the main Technical Support queues. Calls are routed to the next available
technician. This technician gathers the required information from the caller, including the system ID (Service Tag)
number and a description of the problem. This Level One (1-1) representative uses several tools and knowledge
based aids to diagnose and resolve the issue.
3. If the problem requires a more advanced level of support, the Level One representative consults with a Level Two
(1-2) technician. The Level Two Technician uses additional tools in conjunction with their expertise to resolve
many of the issues. If the issue is not resolved by consulting with the Level Two Technician, the Level Two
Technician takes ownership of the issue for further research.
4. Once the Level Two Technician has exhausted the resources and has still not resolved the issue, the issue is
escalated to the International Product Support (IPS) for resolution. The IPS engineer is now responsible for
resolving the issue. The IPS engineer will work with vendors, manufacturers and engineers to resolve the issue.
5. The customer can utilize the Dell 800 number to receive the latest status on the service call for that specific unit.
6. Customer calls are placed to the Dell Technical Support group through an 800 number. When an on -site service
call is required, Dell ships the part required. A technician is dispatched to pick up the part, go to the customer's
site, replace the defective part and ship it to Dell. Escalation procedures are built into the process to insure
response times are met.
7. Dell developed Dell's Product Support (DPS) for tracking all service requests and dispatching on -site engineers.
DPS is Dell's service history database. The Dell Customer Service Delivery (CSD) technician can instantly see
the end -user's model number and configuration in DPS by simply asking for the 5-character service tag located
on the back of each Dell system. Armed with this information, the technician may begin any necessary
troubleshooting procedures with the end user.
8. DPS shows the CSD technician the complete service history of that particular PC. The CSD technician must log
entries into DPS each time there is communication with a customer, including nature of the problem and
troubleshooting steps taken. So, each call into Technical Support is documented. The CSD technician uses the
service history to determine whether a problem needs escalation or needs to be researched further.
9. Dell's service provider is linked into DPS, so if a problem in the field requires on -site attention, the dispatch is
seamless.
10. Finally, DPS is the primary tool for diagnosing and attacking early life failures of new products and measuring a
product's reliability.
C. Billing Issues
Dell emphasizes quick response to billing issues with an immediate and concise approach:
1. Each account with payment terms is assigned an Accounts Receivable Specialist. Billing issues can be directed
to that person
2. If no resolution, issues are escalated to the Accounts Receivable Team Lead
3. If no resolution, issues are then escalated to the Accounts Receivable Supervisor.
4. The next level of escalation for billing issues is the segment Controller, the most senior finance representative
associated with billing and collections.
Page 26
ti
D. Contractual Issues
In addition to the standard mechanisms for resolving service, equipment or billing issues, Dell Public Sector maintains
a highly experienced contract management team. This team is staffed with experts who understand the unique
requirements of SLG, K-12 and HIED customers. Working as a part of the operations organization, this team provides
both first -response and point -of -escalation support.
First -Response
A tenet of the direct model encourages a single point of accountability. This means that while Dell
provides a documented method for responding to customer issues, every person at Dell is encouraged to take
ownership of their resolution. As an example, while the contracts team primarily exists to assure contract
compliance, it often serves as a first -response point with customers. The contract manager listens to customers
and connects them with our streamlined customer service, equipment and billing processes. The process will
resolve the issue to the satisfaction of the customer without further engagement of the contracts team. The
contracts team often follows up to ensure the problem was solved to the customer's satisfaction.
Contract mangers are also charged with pro -active monitoring of Dell behaviors to assure contract
compliance. This ensures that the entire delivery and support organization understands Dell's obligations from
day one of a new contract.
Examples of the first -response function under the current WSCA contract include
a. Answering end -customer questions about the overall WSCA program and how Dell's offering meets their
needs under this program.
b. Escalating service complaints to the appropriate technical or customer service organization.
C. Routing equipment support questions as appropriate.
d. Ensuring that repeat support issues are escalated inside the product and support organizations.
e. Connecting customers with the appropriate billing representative and managing tools that ensure billing is
in accordance with contractual requirements.
E. Point of Escalation
Some complaints are harder to resolve than others. If a customer has engaged the appropriate customer service,
equipment and billing resolution process and is dissatisfied with the results, the contract management team can act as
a level of escalation by:
1. Supporting a customer's unique requirements for a special project.
2. Escalating customer questions and complaints to the NASPO I WSCA Administrator.
3. Working with customers and Dell internal resources to ensure expectations are set and met.
4. Ensuring the decisions of the NASPO I WSCA Administrator are implemented on future orders.
Contract management can be considered an administrative function. Dell's ability to staff an industry -leading contract
management team is enhanced by the focus of this team on issues that improve overall customer experience. Active
engagement in resolving customer concerns is integral to this role. The contract management team ensures that these
concerns get to the right people inside Dell, then follows up to ensure they do not become contractual issues.
Page 27
EXHIBIT C - VALUE ADDED SERVICES
Contact the Contractor for more details on these services and their related costs.
A. Deployment Services
Dell delivers a comprehensive, end -to -end solution for deployment needs, providing improved resource utilization, a
single point of accountability and exceptional execution. Dell deployment services allow customers to focus on more
strategic projects, helping save both time and effort while reducing Total Cost of Ownership (TCO). Dell provides the
following services:
1. Custom Factory Integration
Dell's Custom Factory Integration (CFI) service provides a range of custom built, factory -installed
solutions to help eliminate installation hassles. After determining the customer's exact needs, Dell performs the
custom configuration during the initial system build. Its a one -touch, high quality, custom integration; which
means that systems are not twice built and twice shipped. This ensures that Dell products are custom configured
to the customer's specification and delivered from Dell's ISO 9001-certified factory. Dell currently offers the
following CFI services:
a. Software Integration — Custom configuration and installation of software.
b. Image Management Services — A complete image deployment solution.
C. Hardware Integration — Installation of industry -standard hardware components.
d. X-Image — A client software service designed to develop, deploy and manage a hardware independent
custom image that will run across all Dell clients' systems (Optiplex, Latitude and Precision). This means
that Dell can help reduce significantly the time and cost associated with custom image management.
e. Asset Management Services
Asset Security Service
Asset Tag Service
Asset Tracking Service
f. CFI Client Support Services
Parts Replacement Program
Image Recovery Products
B. Delivery Options
All Dell systems are built to customer specifications and shipped directly to the end user. The following shipping
options are available:
1. 3- to 5-Day Ground Shipping — Most cost-effective shipping option.
2. 2-Day Shipping — Timely shipping at a reasonable price.
3. Next -Day Shipping — When delivery is critical to customer deadlines.
Dell also offers customer -selected third -parry carrier shipping options at the customer's discretion and expense.
C. Custom Delivery Services
Once the systems are built, Dell can arrange a number of custom delivery services to best meet customer work
environment and staffing constraints. Delivery services are described below; each service assumes the use of a Dell -
selected carrier.
1. Inside Delivery
a. Single Destination Delivery
b. Inner Office Distribution
C. Unpacking of Boxes
d. Destination Bundle
e. Package Removal Bundle
Page 28
2. Scheduled Delivery Services
With scheduled delivery services, customers benefit from a predictable and/or precise delivery cycle to specific
locations. Projects may include recurring deliveries that typically involve a repetitive schedule or clearly defined
deliveries with start and end dates. Choices available include:
a. Date -Specific Delivery
b. Time -Specific Delivery
C. Weekday -Specific Delivery
d. After -Hours Delivery
e. Weekend Deliveries
3. Pre -Delivery Services
Pre -delivery services are performed to prepare shipments for delivery, based on the specific receiving
environment.
a. Palletization
b. Standard Pallet
a. Custom Pallet
b. Order Consolidation
C. Specific Truck Size
d. Lift-Gate/Tail-Gate Service
e. Advance Delivery Notice
4. Destination Services
a. De-Palletization
D. Custom Installation Services
Dell has streamlined standard installation services to enable customers to easily choose the right package to meet
deployment needs, while keeping internal customer resources focused on strategic initiatives. Our installation
packages provide customers with a choice of service offerings ranging from system set up and test to comprehensive
install/de-install with user data transfer. Dell's flexibility as a result of the direct model allows custom installation
services to be designed around unique customer requirements. Whether standard or custom, Dell manages the
installation scheduling process and is the single point of accountability.
1. PC Install
2. PC Install with data transfer
3. Server and Storage Installation Service
4. Pre -Install Site Configuration
5. Server and Storage Installation (with Factory -Installed NOS)
6. Server and Storage and NOS Installation
7. Basic Server Set -Up (with Factory -Installed NOS)
8. Novell ICS Basic Server Set -Up (with Factory -Installed NOS)
9. Windows NT or Novell NetWare Operating System Installation
10. Server Rack Mounting
E. Standard Custom Support Services
1. Response Time
a. 7x24 Telephone Support
b. 30-Day Getting Started Help line
C. Next Business Day, Onsite Services
F. Expanded Customer Support Services
1. Same -Day, On -site Services
a. 4-Hour Response Service
b. 8-Hour Response Service
C. 2-Hour Response Service
d. 2-Hour Response Service, 6-Hour Repair
Page 29
2. Client Gold Technical Support
Dell's Gold Technical Support provides advanced level of technical support expertise for Dell desktops, notebooks
and workstations. Gold Technical Support combines rapid response and resolution with advanced technical
assistance and account management to give customers a single point of contact for personal system support. Key
features are:
a. Access to Dell's Gold Queue
b. Technical Account Manager (TAM) Services
C. Seamless Escalation Support
d. Quarterly Service Performance Report
3. Premier Enterprise Support
a. Platinum Enterprise
b. Gold Enterprise
C. Silver -Same Day Basic
d. Bronze Next -Business -Day (NBD) Basic
e. Software Support for Servers and Storage
f. OpenManage M Subscription Service
G. Software Support
Dell's software support services provide toll -free priority -access operating system support from experienced
technicians for Microsoft and Novell operating systems. We also offer extensive application support for over 100
different types of client applications.
1. Standard Software Support
2. Client Software Support
3. Advanced Software Support
H. Dell's Premier Access — Self -Maintainer Program, Tier I and Tier II
The Dell Premier Access Program is a service and support program designed specifically for Information Service
professionals who have technical expertise in diagnosing and servicing computer systems. With benefits like fast
access to service and service part dispatches and direct access to advanced level technical support, the Premier
Access Program helps provide the knowledge, tools and services necessary to efficiently maintain OptiPlex,
Dimension, Latitude, PowerEdge and Workstation systems.
Whether the customer supports their own Dell systems, uses a help desk to dispatch service, or contracts with others
for the maintenance of their Dell equipment, the Premier Access Program helps contain service and support costs and
provides direct access to the exact level of service and support required.
Keep Your Hard Drive Services
The Dell Keep Your Hard Drive services gives participants the option of retaining a failed hard drive (that is covered by
Dell warranty), while receiving a replacement hard drive. Replacement hard drives may be new or reconditioned and
supported as new. This service provides control over sensitive and confidential data contained on the hard drive and
allows customers to determine the method of disposal for the failed hard drive. Key benefits include:
1. Greater Security
2. Complete Control
3. Data Privacy
J. Training and Certification
1. Delivery Methods
a. E-learning
b. Instructor -led
2. IT Professional Training
3. Education Professional Training
4. Productivity at Work Courses
Page 30
4iin 84 2 re to
r Am
MATERIALS MANAGEMENT DIVISION
WSCA/NASPO Contract Administration
112 Administration Building
50 Sherburne Avenue
St. ,Paul, MN 55155
Fax: 651.297.3996
TTY: MN Relay Service 1.800.627.3529
httD://www.mmd.admin.state.mn.us
AMENDMENT NUMBER: ONE (1)
TO CONTRACT NUMBER: A63307
THIS AMENDMENT is by and between the State of Minnesota, acting through is commissioner of Administration,
for the WSCA/NASPO ("Lead State") and Dell Marketing L.P. (Contractor).
WHEREAS, the Lead State has a Contract with the Contractor identified as No. A63307, effective September 1,
2004, through August 31, 2007, to provide direct -from -manufacturer personal computer equipment and related
devices, software and services; and
WHEREAS, Minn. Stat. § 16C.03, subd. 5, affords the commissioner of Administration, or delegate pursuant to
Minn. Stat. § 16C.03, subd. 16, the authority to amend contracts; and
WHEREAS, the terms of the Contract specifically state that: "MMD and the WSCA Directors acknowledge that with
the evolution of technology, new, emerging units and configurations will develop. Addition of these new, emerging
units to the PSS may be permitted, with the prior approval of the Contract Administrator and the WSCA Directors.
The addition of new, emerging units and configurations is at the sole discretion of the Contract Administrator,
subject only to review and approval of the WSCA Directors."
NOW, THEREFORE, it is agree by the parties to amendment the Contract as follows:
The printer categories currently included in Band 3, Printers are: Medium Speed Laser and Desktop Laser.
The following printer categories are hereby added to Band 3, Printers:
- Multi -functional - Desktop Laser
- Multi -functional - Medium Speed Laser
- Multi -functional - High Speed Laser
This Amendment is effective beginning on May 1, 2005, or upon the date that the final required signatures are
obtained, whichever occurs later, and shall remain in effect until August 31, 2007, or until the Contract is canceled,
whichever occurs first.
Except as herein amended, the provisions of the original Contract between the parties hereto are expressly
reaffirmed and remain in full force and effect.
Intentionally Left Blank
April, 2005 Amendment Number: One (1) Page 1 of 2 Pages
to WSCA PC Contract MN A63307 with Dell Marketing L.P.
*4*4
4innosoto
MATERIALS MANAGEMENT DIVISION
WSCA/NASPO Contract Administration
112 Administration Building
50 Sherburne Avenue
St. Paul, MN 55155
Fax: 651.297.3996
TTY: MN Relay Service 1.800.627.3529
httD://www.mmd.admin.state.mn.us
IN WITNESS WHEREOF, the parties have caused this Amendment to be duly executed intending to be bound
thereby.
1. DELL MARKETING L.P. 2. LEAD STATE
The Contractor certifies that the appropriate person(s) have MATERIALS MANAGEMENT DIVISION
executed this document on behalf of the Contractor as required
by applicable articles, bylaws, resolutions, or ordinances. In accordance with Minn. Stat. § 16C.03, Subd. 3.
y o
Title: A,4 loAlljrrawv*<e ' /`(rl/
Date: Title: Acquisition Manaaement Specialist
zs-�Os''
Date:
By: 3. LEAD STATE
Title: COMMIS tR I RATION
Or delega d represe ive.
Date:
By:
Date: •��C��
April, 2005 Amendment Number: One (1) Page 2 of 2 Pages
to WSCA PC Contract MN A63307 with Dell Marketing L.P.
in 8�or)
MATERIALS MANAGEMENT DIVISION
WSCA/NASPO Contract Administration
112 Administration Building
50 Sherburne Avenue
St. Paul, MN 55155
Fax: 651.297.3996
TTY: MN Relay Service 1.800.627.3529
httD://www.mmd.admin.state.mn.us
AMENDMENT NUMBER: 2
TO CONTRACT NUMBER: A63307
THIS AMENDMENT is by and between the State of Minnesota, acting through is commissioner of Administration,
for the WSCA/NASPO ("Lead State") and Dell Marketing, L.P. (Contractor).
WHEREAS, the Lead State has a Contract with the Contractor identified as No. A63307, effective September 1,
2004, through August 31, 2007, to provide direct -from -manufacturer personal computer equipment and related
devices, software and services; and
WHEREAS, Minn. Stat. § 16C.03, subd. 5, affords the commissioner of Administration, or delegate pursuant to
Minn. Stat. § 16C.03, subd. 16, the authority to amend contracts; and
WHEREAS, the terms of the Contract specifically state that the agreement may be amended upon agreement of
both parties.
NOW, THEREFORE, it is agree by the parties to amendment the Contract as follows:
The unit/configuration limit has been increased for the following bands that were part of the original RFP/Contracts:
Band 1 - Servers, to include pricing configurations for mid -range servers between $50,000 and $100,000,
including file and print servers.
Band 2 - Desktop, to include high -end workstations between $50,000 and $100,000.
Band 4 - Auxiliary Storage, including NAS, SAN, CAS, and CNS, to include pricing configurations for mid-
range storage solutions between $50,000 and $100,000,
This Amendment is effective beginning on January 1, 2006, or upon the date that the final required signatures are
obtained, whichever occurs later, and shall remain in effect until August 30, 2007, or until the Contract is canceled,
whichever occurs first.
Except as herein amended, the provisions of the original Contract between the parties hereto are expressly
reaffirmed and remain in full force and effect.
Intentionally Left Blank
April, 2005 Amendment Number: 2 Page 1 of 2 Pages
to WSCA PC Contract MN A63307 with Dell Marketing L.P.
ra
MATERIALS MANAGEMENT DIVISION
WSCA/NASPO Contract Administration
112 Administration Building
50 Sherburne Avenue
St. Paul, MN 55155
Fax: 651.297.3996
TTY: MN Relay Service 1.800.627.3529
htti)://www.mmd.admin.state.mn.us
IN WITNESS WHEREOF, the parties have caused this Amendment to be duly executed intending to be bound
thereby.
1. DELL MARKETING L.P. 2. LEAD STATE
The Contractor certifies that the appropriate person(s) have MATERIALS MANAGEMENT DIVISION
executed this document on behalf of the Contractor as required
by applicable articles, bylaws, resolutions, or ordinances. In accordance with Minn. Stat. § 16C.03, Subd. 3.
By: eo' 00. By: 1i
Title:
Date:
la
Title:
Date:
Title: Acquisition Management SDecialist
Date: f yllgb
3. LEAD STATE
COMMISSIONER OF ADMINISTRATION
Or delegated representative.
Date: 1141106
April, 2005 Amendment Number: 2 Page 2 of 2 Pages
to WSCA PC Contract MN A63307 with Dell Marketing L.P.
inneseta
MATERIALS MANAGEMENT DIVISION
WSCA/NASPO Contract Administration
112 Administration Building
50 Sherburne Avenue
St. Paul, MN 55155
Fax: 651.297.3996
TTY: MN Relay Service 1.800.627.3529
httr)://www.mmd.admin.state.mn.us
AMENDMENT NUMBER: 3
TO CONTRACT NUMBER: A63307
THIS AMENDMENT is by and between the State of Minnesota, acting through is commissioner of Administration,
for the WSCA/NASPO ("Lead State") and Dell Marketing, L.P. (Contractor).
WHEREAS, the Lead State has a Contract with the Contractor identified as No. A63307, effective September 1,
2004, through August 31, 2007, to provide direct -from -manufacturer personal computer equipment and related
devices, software and services; and
WHEREAS, Minn. Stat. § 16C.03, subd. 5, affords the commissioner of Administration, or delegate pursuant to
Minn. Stat. § 16C.03, subd. 16, the authority to amend contracts; and
WHEREAS, the terms of the Contract specifically state that the agreement may be amended upon agreement of
both parties.
NOW, THEREFORE, it is agree by the parties to amendment the Contract as follows:
The following Band 6 Educational Classroom Packages have been added to the Master Price Agreement, per the
terms and conditions of the RFP that opened on October 13, 2005.
1. Configuration One - Workstation & Project Package
2. Configuration Two - Laptop, Projector, Whiteboard Package
3. Configuration Three - Travel Kit, including a laptop, portable projector, compact powered speakers,
extension power cord, power strip, and all necessary cables in a padded case.
This Amendment is effective beginning on April 7, 2006, or upon the date that the final required signatures are
obtained, whichever occurs later, and shall remain in effect until August 30, 2007, or until the Contract is canceled,
whichever occurs first.
Except as herein amended, the provisions of the original Contract between the parties hereto are expressly
reaffirmed and remain in full force and effect.
Intentionally Left Blank
April, 2005 Amendment Number: 3 Page 1 of 2 Pages
to WSCA PC Contract MN A63307 with Dell Marketing L.P.
innesota
MATERIALS MANAGEMENT DIVISION
WSCA/NASPO Contract Administration
112 Administration Building
50 Sherburne Avenue
St. Paul, MN 55155
Fax: 651.297.3996
TTY: MN Relay Service 1.800.627.3529
httr)://www.mmd.admin.state.mn.us
IN WITNESS WHEREOF, the parties have caused this Amendment to be duly executed intending to be bound
thereby.
1. DELL MARKETING L.P. 2. LEAD S
The Contractor certifies that the appropriate person(s) have M RIALS MANAG VISION
executed this document on behalf of the Contractor as required
by applicable articles, bylaws, resolutions, or ordinances.
I accordance with Minn. at. § 1 3, ubd. 3.
An
y
Title: C��V�C A Z "AC n— Title: uisiti a cialist
Date: '1I 0 1 6 0
By: ,.l��u rl� +✓-
Date:
Date: U , ?,0 44W ro
3. LEAD STATE
COMMISSIONER OF ADMINISTRATION
Or delegated representative.
By.
Date: L' ' Z v — c b
April, 2005 Amendment Number: 3 Page 2 of 2 Pages
to WSCA PC Contract MN A63307 with Dell Marketing L.P.
i
MATERIALS IV/ANAG,-MHNT D1VfS/0N
WSCA/NASPO Contract Administration
112 Administration Building
50 Sherburne Avenue
St. Paul, MN 55155
Fax: 651.297,3996
TTY: MN Relay Service 1.800.627.3529
httD://www.mmd.2dmin.state.mn.us
AMENDMENT NUMBER: 4
TO CONTRACT NUMBER: A63307
THIS AMENDMENT is by and between the State of Minnesota, acting through is commissioner of Administration,
for the WSCA/NASPO ("Lead State") and Dell Marketing, L.P. (Contractor).
WHEREAS, the Leas! State has a Contract with the Contractor identified as No. A63307, effective September 1,
2004, through August 31, 2007, to provide direct -from -manufacturer personal computer equipment and related
devices, software and services; and
WHEREAS, Minn. Stat. § 16C.03, subd. 5, affords the commissioner of Administration, or delegate, pursuant to
Minn. Stat. § 16C.03, subd. 16, the authority to amend contracts; and
WHEREAS, the terms of the Contract specifically state that the agreement may be amended upon agreement of
both parties.
NOW, THEREFORE, it is agree by the parties to amendment the Contract as follows:
Band 7 for Monitors is hereby added to the Master Price Agreement, per the terms and conditions of the RFP that
opened on September 18, 2006.
This Amendment is effective beginning on January 9, 2007, or upon the date that the final required signatures are
obtained, whichever occurs later, and shall remain in effect until August 30, 2007, or until the Contract is canceled,
whichever occurs first.
Except as herein amended, the provisions of the original Contract between the parties hereto are expressly
reaffirmed and remain in full force and effect.
Intentionally Left Blank
December, 2006 Amendment Number: 4 Page 1 of 2 Pages
to WSCA PC Contract MN A63307 with Dell Marketing L.P.
MATEi IALS MANAGEM,ENr DIVISION
WSCAINASPO Contract Administration
112 Administration Building
50 Sherburne Avenue
St. Paul, MN 55155
Fax: 651.297.3996
TTY: MN Relay Service 1.800.627.3529
htti2:/1www. m md. admin. state. mn.us
IN WITNESS WHEREOF, the parties have caused this Amendment to be duly executed intending to be bound
thereby.
1. DELL MARKETING L.P. 2. LEAD STATE
The Contractor certifies that the appropriate person(s) have MATERIALS MANAGEMENT DIVISION
executed this document on behalf of the Contractor as required In accordance with Minn. Stat. § 16C.03, Subd. 3.
by applicable articles, bylaws, resolutions, or ordinances.
Title: �1 Gt�# " .V-C'-qr
Date: 1 1
a
By:
Title: Mx€u 'Q&&
Date: (fZ'i / 0 1
By.
Title: Acquisitions Suioervisor
Date: " /&/0
%
3, STATE
COMMISSI
r delegated repr ente
INISTRATION
December, 2006 Amendment Number: 4 Page 2 of 2 Pages
to WSCA PC Contract MN A63307 with Dell Marketing L.P.
4i"M
sotam
MATERIALS MANAGEMENT DIVISION
WSCA/NASPO Contract Administration
112 Administration Building
50 Sherburne Avenue
St. Paul, MN 55155
Fax: 651.297.3996
TTY: MN Relay Service 1.800.627.3529
htto./Iwww.mmd.admin.state.mn.us
AMENDMENT NUMBER: 5
TO CONTRACT NUMBER: A63307
THUS AMENDMENT is by and between the State of Minnesota, acting through is commissioner of Administration,
for the WSCA/NASPO ("Lead State") and Dell Marketing, L.P. (Contractor).
WHEREAS, the Lead State has a Contract with the Contractor identified as No. A63307, effective September 1,
2004, through August 31, 2007, to provide direct -from -manufacturer personal computer equipment and related
devices, software and services; and
WHEREAS, Minn. Stat. § 16C.03, subd. 5, affords the commissioner of Administration, or delegate pursuant to
Minn. Stat. § 16C.03, subd. 16, the authority to amend contracts; and
WHEREAS, the terms,of•the Contract specifically state that the agreement may be amended upon agreement of
both parties.
NOW, THEREFORE, it is agree by the parties to amendment the Contract as follows:
1. That Contract A63307 is extended through August 31, 2009.
This Amendment is effective beginning on September 1, 2007, or upon the date that the final required signatures
are obtained, whichever occurs later, and shall remain in effect until August 31, 2009, or until the Contract is
canceled, whichever occurs first.
Except as herein amended, the provisions of the original Contract between the parties hereto are expressly
reaffirmed and remain in full force and effect.
Intentionally Leff Blank
June, 2007 Amendment Number: 5 Pagel of 2 Pages
to WSCA PC Contract MN A63307 with Dell Marketing L.P.
MATERIALS I AAFACaEMENT DIVISION
WSCA/NASPO Contract Administration
112 Administration Building
50 Sherburne Avenue
St. Paul, MN 55155
Fax: 651.297.3996
TTY: MN Relay Service 1.800.627.3529
http://www.mmd.admin.state.mn.us
IN WITNESS WHEREOF, the parties have caused this Amendment to be duly executed intending to be bound
thereby.
1. DELL MARKETING L.P. 2. LEAD STATE
The Contra ertifies that the appropriate person(s) have MATERIALS MANAGEMENT DIVISION
executed t s do ument on behalf of the Contractor as required in accordance with Minn. Stat. § 16C.03, Subd. 3.
by applica le a cles, bylaws, resol n , or ordinances.
By. ° By.
Title; , r� YJr y ��S n�55 e Title: Acquisitions Supervisor
Date: Lt � Lo � 0 Date: 61l310 7
By= A.
Title:
Date: b � "�
3. LEAD STATE
COMMISSIONER OF ADMINISTRATION
Or delegated representative.
By: 6()e4-,94 WAL&`4
Date: 1 ( I
Original signed
JUN T 3 2007
6y Brenda Willard
June, 2007 Amendment Number: 5 Page 2 of 2 Pages
to WSCA PC Contract MN A63307 with Dell Marketing L.P.
PARTICIPATING ADDENDUM
COMPUTER EQUIPMENT, SOFTWARE, PERIPHERALS AND RELATED SERVICES
MASTER PRICE AGREEMENT
Dell Marketing L.P.
A63307
Midwest Higher Education Compact t"MHEC"j
Scope
Midwestern Higher Education Compact ("MHEC') MHEC Eligible Participants are
defined to include public and private non-profit colleges, universities. community
colleges and technical colleges; the state and local governmental agencies; the school
districts: and the other non-profit organizations serving education and the public good
including hospitals, libraries, museums and foundations in the states of Illinois. Indiana,
Kansas, Michigan, Minnesota, Missouri. Nebraska, North Dakota, Ohio and Wisconsin.
Eligible Participants is any Procuring Agency within an MHEC state that has the
authority to purchase Products and Services under the terms of this Participating
Addendum and Master Price Agreement. The Procuring Agency will be responsible for
placing orders in accordance with the policies, procedures and statues of their State
This Participating Addendum is not a purchase order, nor does it guarantee any
purchases to be made be any Eligible Participant.
Changes:
Delete any reference to product limitations and unit configuration price limitations, thus
allowing Eligible Participants the ability to purchase all lines of products and services.
Indemnification (Section 24. page 11 )
Paragraph A, the last sentence shall be changed as follows:
"Except for liabilities and costs resulting from personal injury or damage to real
property or tangible or personal property, this indemnification shall in no event
exceed an amount of twice the fees paid to Contractor under the specific order
giving rise to the claim, suite, action or liability."
New Paragraph D shall be added to this Section
"This clause shall apply to Eligible Participants and its agencies and employees,
as well as the Lead State, Participating Entities and its agencies and employees.
Web Site Maintenance (Section 29. page 12)
Paragraph A, insert the following after the last sentence:
"If Eligible Participant so desires, Contractor shall create and maintain an
individual Premier Page (or similar individual Dell web page) that shall contain
MHEC pricing and products."
Limitation of Liability (Section 31. page 13)
The second sentence shall be changed as follows.
"The foregoing limitation does not apply to paragraphs 12 and 24 of this
Agreement or to damages resulting from personal injury or tangible property
damage caused by the Contractor's negligence."
Administration_ Reporting and Fees
Dell agrees to provide periodic price Agreement utilization reports for institutional
purchases to the MHEC Agreement Administrator in accordance with the
following schedule:
Period End
Report Due
June 30
July 31
September 30
October 31
December 31
January 31
March 31
April 30
The periodic report shall include the gross sales for the period subtotaled by the
Purchasing Entity name or identifying number within the Purchasing Entity's state
name. The report shall contain the following information: Segment type
education or state local: Sold to name, Ship to Name, Ship to State; Order
Number; Purchase Order Number; Order Type; Invoice Date; and Total Price.
The report shall be accompanied with a check payable to the Midwestern Higher
Education Compact for an amount equal to the sum of one -tenth of one -percent
of the gross sales for the period
Studentr'Faculty/Staff Alumni Purchase Plan
Dell shall provide a StudentlFaculty/Staffy'Alumni Purchase Plan for alumni,
students. faculty and staff of MHEC Eligible Participants as mutually agreed upon
by MHEC and Dell.
TOTAL SATISFACTION POLICY TERM. For the entire term of this Agreement between
MHEC and Dell, Dell agrees that its Total Satisfaction Policy term shall be thirty (30)
days From date of invoice or packing slip. This change in term modifies all references to
term found in the Total Satisfaction Return Policy (U.S. Only) of Exhibit A, of Master
Price Agreement Number A63307, and applies to all applicable products described in
the Total Satisfaction Return Policy.
MHEC Contractual Provisions
The MHEC Contractual Provisions are incorporated into this Participating
Addendum as Attachment A
3. Primary Contact:
The primary participating entity contact for this participating addendum is as follows:
Name: Rob Trembath
Participating Entity Name: Midwestern Higher Education Compact
Address: 1300 South Second Street, Suite 130, Minneapolis, MN 55454-1015
Telephone: 612-624-1812
Fax:612-626-8290
E-mail: RobT@mhec.org
The primary Contractor contact for this participating addendum is as follows:
Name: Kirr. E am.es
Contractor: Dell Marketing L,P,
Address: One Dell Way. Box 8707, Round Rock, TX 78682
Telephone: 512.723-32C3
Fax: ^"2 283.9092
E-mail: kim tames &doll corn
Orders and Payments:
All orders and payment wi;l be issued directly to Dell Marketing L P.
The Master Price Agreement Number MUST be shown on at[ Purchase Orders
issued against this Agreement.
This Addendum and the Price Agreement together with its exhibits, set forth the entire
agreement between the partoes with respect to the subject matter of all previous
cornmun;cations, representations or agreements. whether oral or written, with respect to
the subject matter hereof. Terms and conditions inconsistent with, contrary or in adcition
to the terms and conditions of this Addendum and the Price Agreement, together with its
exhibits, shall not be acded to or incorporated into this Addendum or the Price
Agreement and its exhibits, by a ty subsecuent purchase order or otherwise. and any
such attempts to add or incorporate such terms and conditions are hereby rejected The
terms and conditions of this Addendum and the Price Agreement and its exhibits shall
prevail and govern in the case of any such inconsistent or additional terms.
IN 1AITNESS 'AIHERE0F, the parties have execrated this Addendum as of the date of execution
by Contractor below
Signatures as required by State Statutes, Rules or Policies
Midwestern Higher Education Dell Marketing L.P,
Compact
Name: LR ,rf ,4_ZSGGI�
Title: �'"r s•�r �s f
Date: 7' !7 r/a `F
Name: Kay L. Schnuriger
Title: National Contract Manager
Date: I Gk _J ILI
Attachment A
NII ICC Contractual Provisions
l . )�IHEC is not liable to Contractor for the failure of an,, EIivihle Participant and'or anv
student. facullN, staffl or alumni of E11-ible Participant to make an-• payment or to
olllcrwise tulle perform pursuant to the terms and conditions of a purchase order
arid or this Participating :Addendum and its .attachments and Exhibits.
2. Contractor ,% ill assign a senior management representative to be responsible for
administering this Participating .addendum.
3, Any Contractor generated announcements and publicity resulting, frolll tills
Participating Addendum and its .Attachments and Exhibits must receIN e the prior
appro val of \1HFC. Contractor will not make any representations of MfiFC's opinion
or position as to the quality of eftectiV crless of the products and or services that are
the subject of this Participating :Addendum without the prior w rittcn consent of
A•IHEC.
4. Contractor w ill assist MHEC in dcV clopinand implementing appropriate marketing
strategies including seminars, printed materials and full service. on-line NIIIEC based
wch site to receive inf'Ormation on products, scrviccs and prices to place orders.
Contractor also agrees to allow M l i FC to work with Contractor, 'where practical, on
the design of Contractor's 'GtHFC" specific web site.
Contractor agrees not to sell, transfer, assign, or othenv ise dispose of this
Participating Addendurrn or any portion thereof or any right. title. or interest herein
without tlic prier «ritten consent of NTI IEC. This consent requirement includes
reassignment of this Participating Addendum clue to change in ownership, merger, or
acquisition of'Dell or its subsidiary or affiliated corporations. This section shall not
be construed as prohibiting Dell's right to assign this Participating Addendum to
subcontracts}rs to provide some of the scry ices hereunder. Notwithstanding the
foregoing acknow ledgernent. Dell remains solely liable for all performance required
and pro% lded under the terms and conditions of this Participating .Addendum.
Nothing in this Participating ,addendum and its attachments and exhibits is intended,
or shall be deemed. or construed to c(in stitute a partnership or a joint %,cnture between
%1HFC and Dcll.
?. Contractor and N I H E C agree from time to time to lrlutuallG' w ork towards the
exploration, development arid implementation of additional computing system
products and serviccs program offerings for EIIgihIe Participants under this
Participating Addendum.
Contract No.: MHEC-090701.02
MHEC/Dell
Master Price Agreement
Effective August 1, 2009 through June 30, 2012
Dell Marketing L.P., (Dell) located at One Dell Way, Round Rock TX, 78682, USA, and
the Midwestern Higher Education Commission (MHEC) located at 1300 South Second
Street, Suite 130, Minneapolis, Minnesota, 55454 on behalf of the Eligible Organizations
located in the MHEC member states enter into this MHEC/Dell Master Price Agreement
(Master Agreement), subject to the terms and conditions herein, effective this 1st day of
August, 2009 (Effective Date). For purposes of this Master Agreement, Dell and MHEC
are referred to collectively as the Parties or individually as Party.
1. Definitions
Authorized Agents: refers to marketing agents, agents or order fulfillers authorized by
Dell to provide Products and Services under this Master Agreement. Dell will list
Authorized Agents on an internet site accessible to MHEC, its Member States and
Eligible Organizations. Dell will provide to MHEC the general criteria used to authorize
agents. At any time during the term of this Master Agreement should MHEC protest the
inclusion of a firm on this list pursuant to commercially justifiable cause, Dell may
require that firm to undergo re -approval.
Dell -branded Products: refers to any information technology products that are marked
with the "Dell" brand, including all Standard Configurations thereof, but does not include
any of the following items: (i) software, sound cards, speakers, external devices,
accessories or parts added to the Dell -branded hardware products after they are shipped
from Dell; 00 accessories or parts added to the Dell -branded hardware products through
Dell's Custom Factory Integration Services at Customer's request; (iii) accessories or
parts that are not installed in the Dell factory; (iv) Third Party Software and Peripheral
products; or (v) monitors, keyboards and mice, to the extent that they are not included in
DelI's products listed online.
Documentation: refers to the any documentation made available by Dell to Procuring
EIigible Organization relating to any Equipment or Software purchased as well as any
manuals relating to the Equipment or Software.
Eligible Organizations: This Master Agreement shall be made available to all Eligible
Organizations. Eligible Organizations shall include:
• all not -for -profit private and public institutions and/or systems of higher education
(colleges, universities, community colleges, technical institutions and equivalent
institutions) located in a Member State;
• all K-12 schools and school districts located in a Member State;
• all city, county, and other local governments located in a Member State
• all state governments and their departments of Member States
• Faculty, Staff and Students may have the right to purchase selected configurations of
Dell Products at a discount. Such purchases will be governed by Dell's standard
terms and conditions of sale for such individuals in effect at the time of purchase, and
not this Master Agreement.
• Eligible Organizations located in a Member State that terminates its association with
the Compact will no longer be eligible under this Master Agreement to purchase
Contract No.: MHEC-090701.02
Retail Price List is set forth online at httv://ftobox.us.dell.conVsig/retail/vriclist_xls and
may be modified at any time.
Services. Services are broadly classified as installation/de-installation, maintenance,
support, training, migration, and optimization of products offered or supplied. These
types of services include but are not limited to, warranty services, maintenance,
installation, de -installation, factory integration, (software or equipment components),
asset management, recycling/disposal, training and certification, pre -implementation
design, online services, software -enabled services, disaster recovery planning and
support, services desk/help desk, and any other directly related technical support service
required for the effective operation of a product offered or supplied.
Software: refers to Dell's full offerings of software and firmware (including third -party
software and firmware) licenses made available to Procuring Eligible Organization under
this Master Agreement. Software shall include updates, upgrades, maintenance releases,
revisions and enhancements to the licensed software.
Supplier: refers to Dell or an Authorized Agent.
Third Party Products: refers to any hardware or software other than parts that are Dell
branded or originally listed as components of Dell -branded Products.
Third Party Services: refers to any Services performed by someone other than Dell or
its subcontractors.
2. Scope of Work
Procuring Eligible Organizations shall purchase from Supplier, and Supplier shall
distribute to Procuring Eligible Organizations Products and Services in accordance with
the terms of this Master Agreement. All Eligible Organizations are qualified to purchase
under this Master Agreement, including those Eligible Organizations currently under a
separate agreement with Supplier. This Master Agreement is a Price Agreement.
Accordingly, Supplier shall provide Products or Services only upon the issuance and
acceptance by Supplier of a valid Order. Orders may be issued to purchase any Products
or any Services listed on the Retail Price List. A Procuring Eligible Organization may
purchase any quantity of Products or Services listed in Dell's Retail Price List at the
prices stated herein. For Large Order Negotiated Prices, Supplier and Eligible
Organization may negotiate quantity discounts below the Products and Services Pricing
for a given purchase order. As it sees fit, Supplier may offer under this Master Agreement
Promotional Price discounts that result in prices below those listed in the Product and
Services Price List. Dell is solely responsible for fulfillment of the responsibilities under
the terms and conditions of this Master Agreement.
MHEC shall not be liable for any Eligible Organization that executes an Order under this
Master Agreement. An Eligible Organization shall not be responsible for any other
Eligible Organization that executes its own Order under this Master Agreement.
3. Purchasing Under Master Agreement
A. Products: Procuring Eligible Organization shall purchase from Supplier the Products
listed on the Retail Price List under the terms and conditions of this Master
Agreement by delivering to Supplier an Order. The Order should include: (i)
Procuring Eligible Organization by name and address; (ii) the quantity, and
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Contract No.: MHEC-090701.02
instructions will be provided either physically or electronically to Procuring Eligible
Organization's personnel identified on the purchase order.
4. Quantity Guarantee
This Master Agreement is not a purchase order, nor does it guarantee any purchases to be
made by any Eligible Organization. This Master Agreement is not an exclusive
agreement. MHEC and Eligible Organizations may obtain information technology
products and services from other sources during the term of the Master Agreement.
S. Master Agreement Term
This Master Agreement will be formed upon execution by the Parties, and shall remain in
effect, unless otherwise terminated pursuant to the terms of the Master Agreement, for a
period of three (3) years from the Effective Date. The Master Agreement may be
mutually renewed for four (4) additional one-year terms, upon written agreement of the
Parties, unless terminated pursuant to the terms of this Agreement.
b. Order of Precedence
Where the terms and conditions of this Master Agreement are in conflict with an Eligible
Organization's state and/or institutional laws or regulations, the Eligible Organization
and Dell may enter into an addendum to amend the terms and conditions of the Master
Agreement to conform to the Eligible Organization's state and/or institutional laws or
regulations. Likewise, a Procuring Eligible Organization and Dell may enter into an
addendum to supplement or modify this Agreement for specific Products or Services.
The terms and conditions of the addendum shall only be applicable between the Eligible
Organization that entered into the addendum and Dell.
In the event of any conflict among these documents, the following order of precedence
shall apply:
A. Mutually agreed upon Statement of Work ("SOW")
B. Executed addendum, not to include Purchase Orders, between Eligible
Organization and Dell
C. The terms and conditions of this Master Agreement or any MHEC -Dell
addenda to this Master Agreement
D. Exhibits to this Master Agreement
E. The list of Products and Services contained in the Order
7. Payment Provisions
A. Acceptance. A Procuring Eligible Organization shall determine whether all Products
and Services delivered meet the Dell's published specifications. No payment shall be
made for any products or services until the Eligible Organization has accepted the
Products or Services. Unless otherwise agreed upon between the Eligible
Organization and Dell, the Eligible Organization shall within fifteen (15) calendar
days from the date of Dell's invoice, issue a written notice of partial acceptance or
rejection of the Products or Services; otherwise the Products or Services shall be
deemed accepted.
B. Return Policy. Procuring Eligible Organization may return Dell branded products to
Dell up to 30 days from the day they are delivered. This policy does not apply to Dell
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Contract No.: MHEC-090701.02
fully configured with the required memory, components, and selected or specified
operating system, unless as otherwise noted.
9. Product Delivery
A. Unless otherwise agreed to by Procuring Eligible Organization and Supplier, Supplier
agrees to deliver Products to Procuring Eligible Organization within thirty (30) days
after receipt of a valid Order. If delivery cannot be made within thirty (30) calendar
days, Supplier will notify Procuring Eligible Organization within five (5) business
days following Order placement, and Procuring Eligible Organization as its exclusive
remedy, can cancel the order by written, electronic, or facsimile notification. Failure
of the Supplier to adhere to delivery schedules as specified or to promptly replace
defective product shall render the Supplier liable for all costs in excess of the contract
price when alternate procurement is necessary. Suppliers acknowledge that all
locations of any particular Eligible Organization may not be within the MHEC
region.
B. If deliveries prove to be unsatisfactory, or other problems arise, MHEC reserves the
right to delete product or services from the Master Agreement and/or cancel Master
Agreement for cause. Similarly, if deliveries prove to be unsatisfactory or other
problems arise under the agreement for a Procuring Eligible Organization, the
Procuring Eligible Organization retains all of its remedies for a default. Failure of the
Procuring Eligible Organization to exercise its rights of termination for cause or other
remedies for default due to a Supplier's failure to perform as required in any instance
shall not constitute a waiver of termination rights or other default remedies in any
other instance.
C. Suppliers may choose to deliver products electronically where practicable. This
option must be under the independent control of each Procuring Eligible
Organization.
10. Price Guarantees
The Procuring EIigible Organization shall pay the lower of the prices contained in the
Master Agreement, Announced Master Agreement Promotional Price, Announced
Promotional Price, or Large Order Negotiated Price at the time of Order (provided that,
with respect to the applicability of Large Order Negotiated Prices, such Procuring
Eligible Organization is a party to the Large Order Negotiated Price negotiations and the
purchase is part of the project for which the Large Order Negotiated Price was
negotiated).
Dell shall not sell Products or Services to Eligible Organizations at prices higher than
those awarded via this Master Agreement and in instances where this Provision is
applied, this Master Agreement shall be referenced in the Supplier's invoice.
11. Product Pricing
Dell agrees to maintain Product Pricing in accordance with the following provisions:
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Contract No.: MHEC-090701.02
apply. Except as set forth in Section 10, "Price Guarantees" or Section 35
"Administrative Reporting and Fees," the discount percentage set forth in Exhibit A
shall remain firm for the term of the Master Agreement.
B. For any custom Services that are not included on the Retail Price List, the prices for
such Services purchased under this Master Agreement will be as mutually agreed
upon by both Dell and Procuring Eligible Organization and as set forth in a Dell
quote or an applicable SOW.
C. Specific geographic restrictions on the availability of Services must be conveyed to
the Procuring Eligible Organization.
D. Dell may offer a direct or indirect leasing program as a financial Service under a
separate leasing agreement.
E. Any purchase by Procuring Eligible Organizations of online services or software -
enabled services is pursuant to the terms of the Dell Services Description
accompanying the Services and the Services Acceptable Use Policy, which is
available for review at www.delI.com/termsandconditions.
13. License
A. Subject to Procuring Eligible Organization's payment of the applicable fees for such
licensed Software and compliance with the other terms and conditions of this Master
Agreement, Dell agrees to assist Procuring Eligible Organization in securing a
nonexclusive, nontransferable license to use portions of the licensed Software.
B. Procuring Eligible Organization acknowledges and agrees that: (i) encoded within the
Software may be optional functionality, features and/or capacity, which may be
accessed only through the purchase of the applicable license extensions from Dell at
additional cost; and (ii) Procuring Eligible Organization may need to obtain a new or
additional application key from Dell to use such Software.
C. This Master Agreement applies to all updates, upgrades, maintenance releases,
revisions and enhancements for the licensed Software which Dell may supply to
Procuring Eligible Organization from time to time.
D. Procuring Eligible Organization may make one copy of any licensed Software for
backup and archival purposes if the copy contains all of the Dell or owner proprietary
notices contained in the original licensed Software. Subject to applicable law, all
copies of all licensed Software are Dell or owner Confidential Information. All
rights, title and interest in and to the licensed Software, including all intellectual
property rights, remain vested in Dell, its suppliers or licensors, and Procuring
Eligible Organization is granted only a limited license to use the licensed Software in
conjunction with the Equipment, as set out in this Section.
E. Procuring Eligible Organization shall not directly or indirectly (i) modify, copy,
transmit, alter, merge, decompile, disassemble, reverse engineer or adapt any portion
of the Software; (ii) encumber, time-share, rent or lease the rights granted herein; (iii)
manufacture, adapt, create derivative works of, localize, port or otherwise modify any
licensed Software; (iv) disclose or otherwise make available the licensed Software to
any third party (other than employees or contractors of Procuring Eligible
Organization); or (v) enable any Software features or capacity which Dell licenses as
separate products, without Dell's prior written notice.
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Contract No.: MHEC-090701.02
D. Third -Party Products and Services Warranties: Dell does not warrant Third -Party
Products or Services. Any warranty provided on Third -Party Product(s) or Service(s)
is provided by the publisher, original manufacturer, or service provider and may vary
from product to product or service to service. Such warranties shall be provided to the
Procuring Eligible Organization with the Third Party Products and Services.
E. Dell warrants that Procuring Eligible Organization shall acquire good and clear title
to Dell -branded Products being purchased under this Master Agreement, free and
clear of all liens and encumbrances. For any non -Dell branded Products, Dell
warrants that it has the right to provide such Products to the Procuring Eligible
Organization.
15. Environmental Factors
Many Eligible Participants are committed to promoting environmentally sound
procurement, usage and disposal methods which are in compliance with State, County,
and Municipal regulations. Dell agrees to maintain for the term of this Master
Agreement, and all renewals/extensions thereof, programs as described in the following
paragraphs.
A. Takeback/Recycling of Equipment. Costs are as listed on the Retail Price List subject
to applicable discounts.
B. Environment: Compliance with the following standards: Blue Angel, EcoLogo,
Energy Star, EPEAT (by level), Green Guard, Nordic Swan, and TCO.
C. Product labeling of compliance with Items B above, as well as identification of such
information on the web site.
16. Termination
A. At any time MHEC may terminate this Master Agreement, in whole or in part, by
giving Dell ninety (90) days written notice; provided however, neither MHEC nor
Eligible Organization has the right to terminate a specific Order for convenience after
the Product has begun production or been shipped for such Products that don't require
production. At any time, Dell may terminate this Master Agreement, in whole or in
part, by giving MHEC ninety (90) days written notice. Such termination shall not
relieve Dell of any warranty or other service obligations incurred under the terms of
this Master Agreement.
B. Either Party may terminate this Master Agreement for cause based upon material
breach of the Master Agreement by the other Party, provided that the non -breaching
Party shall give the breaching Party written notice specifying the breach and shall
afford the breaching Party a reasonable opportunity to correct the breach. If within
thirty (30) days after receipt of a written notice the breaching Party has not corrected
the breach or, in the case of a breach that cannot be corrected in thirty (30) days,
begun and proceeded in good faith to correct the breach, the non -breaching Party may
declare the breaching Party in default and terminate the agreement effective
immediately. The non -breaching party shall retain any and all remedies available to it
under the law.
C. In the event that either Party be adjudged insolvent or bankrupt by a court of
competent jurisdiction, or upon the institution of any proceedings by or against it
seeking relief, reorganization or arrangement under any laws relating to insolvency,
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Contract No.: MHEC-090701.02
understanding whatsoever, and agrees not to perform any acts as agent of MHEC or any
Eligible Organization, except as expressly set forth herein. Nothing in this Master
Agreement is intended, or shall be deemed, or construed to constitute a partnership or a
joint venture between the Parties.
20. Patent, Copyright, Trademark and Trade Secret Indemnification
Dell will indemnify, defend and hold MHEC and Eligible Organization harmless from
any third party claim that any Dell -branded Product or Service provided to Eligible
Organization pursuant to this Master Agreement infringes on another person's or entity's
patent, copyright, trade secret or any other proprietary right of a third party. Dell will
have no obligation under this section with respect to any Claim of infringement resulting
from (a) Services performed, or Product provided, pursuant to Eligible Organization's
specification or design; (b) an Eligible Organization's unauthorized modification of a
Product; or (c) any combination, operation, or use of the Product with systems other than
those provided by Dell to the extent that such a Claim is caused by such modification,
combination, operation, or use of the Product. Following notice of a Claim or a threat of
actual suit, Dell will, at its own expense and option, (1) resolve the claim in a way that
permits continued ownership and use of the affected Product or Service; (2) provide a
comparable replacement at no cost; or (3) in the case of a Product accept return of the
Product, freight collect, and provide a reasonable depreciated refund and in the case of a
Service, provide a refund less a reasonable adjustment for beneficial use.
With respect to any claim that Non -Dell branded Product(s) or Service(s) infringes upon
another person's or entity's patent, copyright, trade secret or other intellectual property
rights in the United States, Dell agrees to pass through to the appropriate Eligible
Organization any rights to indemnification protection for which Dell currently or
subsequently has in place with the manufacturer and publisher.
21. Indemnification
Dell will indemnify, protect, save and hold harmless MHEC and Eligible Organizations,
as well as the representatives, agents and employees of MHEC and Eligible
Organizations, from any and all third party claims or causes of action related to a claim of
personal injury or damage to tangible property, including all reasonable attorneys' fees
incurred by MHEC and/or Eligible Organizations, directly arising from the performance
of the Master Agreement by Dell, Dell's agents, employees, or subcontractors. MHEC
and/or Eligible Organization shall give Dell written notice, by registered mail, promptly
after it becomes aware of any claim to be indemnified hereunder, and, subject to any
legally required approval, including approval of state's attorney general, or consistent
with applicable law permits Dell to control the defense of any such claim or action at
Dell's own expense. MHEC and/or Eligible Organization agree that Dell may employ
attorneys of its own choice to appear and defend the claim or action and that MHEC
and/or Eligible Organization shall do nothing to compromise the defense of such claim or
action or any settlement thereof and shall provide Dell with all reasonable assistance that
Dell may require.
Contract No.: MHEC-090701.02
the property of and be returned to the Disclosure (along with all copies or other
embodiments thereof) within fifteen (15) days of (a) the termination or completion of
the Order under this Master Agreement, or (b) the earlier receipt by the Recipient
from the Discloser of a written demand following a breach by Eligible Organization
or Dell of this Master Agreement or an Order under this Master Agreement directing
that Confidential Information described generally or specifically in such demand be
returned to the Discloser .
C. In such cases where Confidential Information is required to be disclosed to a third
party for purposes of providing Services, all disclosure of Confidential Information
will be in accordance with the separate non -disclosure agreement between Dell and
the third party.
D. If a separate, written nondisclosure agreement exists between Eligible Organization
and Dell, that agreement will control and will apply according to its terms and
conditions to all Confidential Information the parties exchange with each other.
E. Notwithstanding anything to the contrary in this Agreement or amendment to this
Master Agreement, both Eligible Organization and Dell agree to comply with the data
practices or similar type laws of the State in which Eligible Participant is located or
founded.
24. FERPA (and Other Privacy Laws)
Where applicable, Dell agrees to comply with the Family Education Rights and Privacy
Act (FERPA), the Health Insurance Portability and Accountability Act (HIPAA), the
Gramm -Leach Bliley Act (GLBA) and all other state and federal privacy laws; and
agrees to implement and maintain safeguards to protect the security, confidentiality, and
integrity of information it receives from Eligible Organization. To the extent an Eligible
Organization discloses any information to Dell subject to aforementioned privacy laws,
Eligible Organization agrees to advise Dell of the disclosure of such information; and
Eligible Organization represents and warrants to Dell that it has obtained any required
consents to disclose such information. In addition, to the extent that Dell is or becomes a
Business Associate as defined in HIPAA, both Parties acknowledge that a separate
mutually agreeable Business Associate Agreement may be required and will govern
according to its terms.
25. Amendments
Except as provided for in Section 6 "Order of Preference"; Section 11 "Product Pricing";
and Section 12 "Service Pricing"; this Master Agreement shall only be amended by
written instrument executed by the Parties.
26. Scope of Agreement
This Master Agreement incorporates all of the agreements of the Parties concerning the
subject matter of this Agreement, and all prior agreements have been merged into this
Master Agreement. No prior agreements, verbal or otherwise, of the Parties or their
agents shall be valid or enforceable unless embodied in this Master Agreement.
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Contract No.: MHEC-090701.02
C. As between Eligible Organization, MHEC, and Dell this Master Agreement will be
construed in accordance with and its performance governed by the laws of the state in
which the Eligible Organization resides. Venue for all legal proceedings arising out of
this Master Agreement, or breach thereof, shall be in a state or federal court with
competent jurisdiction located in the state in which the Eligible Organization resides.
33. Conflict of Interest
Dell warrants to the best of its knowledge and belief that it presently has no interest direct
or indirect, which would give rise to organizational conflicts of interest.
34. Assignment
Neither Party shall sell, transfer, assign or otherwise dispose of the Master Agreement or
any portion thereof or of any right, title, or interest herein without the prior written
consent of the other Party. This consent requirement includes reassignment of this Master
Agreement due to change in ownership, merger, or acquisition of a Party or its subsidiary
or affiliated corporations. Nothing in this Section shall preclude Dell from employing a
subcontractor in carrying out its obligations under this Master Agreement. Dell's use of
such subcontractors will not release Dell from its obligations under this Master
Agreement.
35. Survival
Certain paragraphs of this Master Agreement including but not limited to
Indemnification; and Limitation of Liability shall survive the expiration of this Master
Agreement. Software licenses, warranty and service agreements, and non -disclosure
agreements that were entered into under terms and conditions of this Master Agreement
shall survive this Master Agreement.
36. Notification
A. Between the Parties: Whenever under the terms of this Master Agreement any notice
is required or permitted to be given by one Party to the other, such notice shall be
given in writing and shall be deemed to have been sufficiently given for all purposes
hereof if given by facsimile or mail, postage prepaid, to the Parties at the addresses
set forth below, or at such other address as the Parties may direct in writing from time
to time:
To MHEC:
MHEC
1300 South Second Street
Suite 130
Minneapolis, Minnesota 55454-1079
Attn: Grant Crawford
Facsimile: 612-626-8290
To Dell:
Dell Marketing LP
One Dell Way
RR 8-07
Round Rock, Texas 78682
Attn: Contract Manager
Fax: 512-283-9092
Changes in the above information will be given to the other Party in a timely fashion.
B. To Eligible Organization: Notices shall be sent to Eligible Organization's business
address. The term "business address" shall mean the "Bill to" address set forth in an
invoice submitted to Eligible Organization.
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Contract No.: MHEC-090701.02
by a circumstance beyond its reasonable control, which circumstances include, but are
not limited to, the following: act of God (e.g., flood, earthquake, wind); fire; war; act of a
public enemy or terrorist; act of sabotage; epidemic; strike or other labor dispute; riot;
piracy or other misadventure of the sea; embargo; inability to secure materials and / or
transportation; or, a restriction imposed by legislation, an order or a rule or regulation of
a governmental entity. If such a circumstance occurs, the Party unable to perform shall
undertake reasonable action to notify the other Parties of the same.
43. Sovereign Immunity.
Notwithstanding anything to the contrary in this Master Agreement or Order under this
Master Agreement, this Master Agreement shall not be construed to deprive a Eligible
Organization of its sovereign immunity, or of any legal requirements, prohibitions,
protections, exclusions or limitations of liability applying to this Master Agreement or
afforded by Eligible Organization's State to the Eligible Organization.
44. Export.
Procuring Eligible Organization and Dell acknowledge that the Product(s) and Service(s)
sold under this Agreement, which may include technology and software, are subject to
the customs and export control laws and regulations of the United States ("U.S.") and
may also be subject to the customs and export laws and regulations of the country in
which the Products are used or Services are rendered and/or received. Both Procuring
Eligible Organization and Dell agree to abide by those laws and regulations.
45. Miscellaneous.
All Parties to this Master Agreement may retain a reproduction (e.g., electronic image,
photocopy, facsimile) of this Master Agreement that shall be considered an original and
shall be admissible in any action to enforce this Master Agreement. Dell may accept this
Master Agreement either by its authorized signature or a signed Order. Except as
provided for in this Master Agreement, all changes to this Master Agreement must be
made in writing signed by both Parties; accordingly any additional terms on the
Procuring Eligible Organization's ordering documents shall be of no force or effect.
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Contract No.: MHEC-090701.02
Exhibit A -- Discount Category Pricing
Dell Pricing Level Discount Matrix ("Matrix"):
PowerEdge Departmental Servers, PowerVault
`8` Storage Products, Fixed Workstations, Mobile 12.0%
Workstations, Selected OptiPlex Desktops,
Selected Latitude Notebooks, Customer Kits
F Toner 0.0To
H Value Latitude, OptiPlex, Workstations; Future 4.0%
Products to be Determined
M S&P - Mainstream (3rd party products) 6.0% y
c
Selected service on PowerEdge departmental
(} servers; Directline Service; 4-Hr On -Site Critical 13.25%
Care Plus; Business Care Plus On -Site Service (all
years)
Selected Promotional offers; Inspiron; Selected
S Latitude; Selected PowerEdge; SC PowerEdge; 3.0%
Power Connect; EqualLogic; DeIUEMC; Imaging;
Vostro Notebooks; XPS Notebooks
X S&P Specific No discount 0.0%
Z(ZS Non -discounted Service; ProSupport; Electronics, 0.0%
Vostro Desktops; Selected XPS Desktops
The product classifications identified above are in place as of May 15, 2009. These classifications affect
Dell Public Sector- customer and Dell may change product availability or classification categoryfor all
customers without notice. Any product category not listed herein shall be deemed a non -discountable
product or service offering and receive zero percent contractual discount.
21