HomeMy WebLinkAbout2015-10-13 - Xerox - General Agreements / General Service AgreementsLease Agreement
Customer: EAST WENATCHEE, CITY OF
BillTo: CITY OF EAST Install: CITY OF EAST
WENATCHEE WENATCHEE
271 9TH ST NE 271 9TH ST NE
EAST WENATCHEE, WA 98802-4438 EAST WENATCHEE, WA 98802-4438
State or Local Government Negotiated Contract: 072712700
xerox
C')
1. XC70 (XC C70 PRINTER)
C60/70 Interface Mod
Lease Term:
60 months
Ricoh Aficio Mp 6500 10/5/2015
C60/70 Std Finisher
Purchase Option:
FMV
Return to Vendor (CRP)
Post Script Int Svr
2. C700FCSRV (INTEGRATED COLOR SRV)
Customer Ed
Lease Term:
60 months
None 10/5/2015
Analyst Services
Purchase Option:
FMV
Item Lease
1. XC70 $301.74
Print Charges
1: Color All Prints
$0.0496
Maintenance Plan Features
Consumable Supplies Included for all prints
2: Black All Prints
$0.0087
Pricing Fixed for Term
2. C700FCSRV $94.52
N/A N/A
NIA
Full Service Maintenance Included
Pricing Fixed for Term
Total $396.26
Minimum Payments (Excluding Applicable Taxes)
Authorized Signature
Customer acknowledges receipt of the terms of this agreement Thank You for your business!
which consists of 2 pag cluding this face page. This Agreement is proudly presented by Xerox and TO I
Signer: Mayor Steve C acy Phone: (509)884-9515 Sarah J. Frazier A
(509)888-2087 A BAN
nSFA
� 3 S For information on your Xerox Account, go to
Signature: Date: www.xerox.com/AccountManagement
NS G40641 0913/201519:12:03 Confidential - Copyrightm 2008 XEROX CORPORATION. All rights reserved. Page 1 of 2
0 3 6 7 2 0 4 0 1 0 0 1 0 0 2 0
Terms and Condklon$
INTRODUCTION:
1. NEGOTIATED CONTRACT. The Products are subject solely to the terms in the
Negotiated Contract identified on the face of this Agreement, and, for any option you
have selected that is not addressed in the Negotiated Contract, the then -current
standard Xerox terms for such option.
GOVERNMENT TERMS:
2. REPRESENTATIONS & WARRANTIES. This provision is applicable to
governmental entities only. You represent and warrant, as of the date of this
Agreement, that (1) you are a State or a fully constituted political subdivision or agency
of the State in which you are located and are authorized to enter into, and carry out,
your obligations under this Agreement and any other documents required to be
delivered in connection with this Agreement (collectively, the "Documents'); (2) the
Documents have been duly authorized, executed and delivered by you in accordance
with all applicable laws, rules, ordinances and regulations (including all applicable laws
governing open meetings, public bidding and appropriations required in connection with
this Agreement and the acquisition of the Products) and are valid, legal, binding
agreements, enforceable in accordance with their terms; (3) the person(s) signing the
Documents have the authority to do so, are acting with the full authorization of your
governing body and hold the offices indicated below their signatures, each of which are
genuine; (4) the Products are essential to the immediate performance of a
governmental or proprietary function by you within the scope of your authority and will
be used during the Term only by you and only to perform such function; and (5) your
payment obligations under this Agreement constitute a current expense and not a debt
under applicable state law and no provision of this Agreement constitutes a pledge of
your tax or general revenues, and any provision that is so construed by a court of
competentjudsdicdon is void from the inception of this Agreement.
3. FUNDING. This provision is applicable to governmental entities only. You represent
and warrant that all payments due and to become due during your current fiscal year
are within the fiscal budget of such year and are included within an unrestricted and
unencumbered appropriation currently available for the purchase/maintenance of the
Products, and it is your intent to use the Products for the entire term and to make all
payments required under this Agreement. If (1) through no action initiated by you, your
legislative body does not appropriate funds for the continuation of this Agreement for
any fiscal year after the first fiscal year and has no funds to do so from other sources,
and (2) you have made a reasonable but unsuccessful effort to find a creditworthy
assignee acceptable to Xerox in its sole discretion within your general organization who
can continue this Agreement, this Agreement may be terminated. To effect this
termination, you must, at least 30 days prior to the beginning of the fiscal year for which
your legislative body does not appropriate funds, notify Xerox in writing that your
legislative body failed to appropriate funds and that you have made the required effort
to find an assignee. Your notice must be accompanied by payment of all sums then
xerox
owed through the current year under this Agreement and must certify that the canceled
Equipment is not being replaced by equipment performing similar functions during the
ensuing fiscal year. You will return the Equipment, at your expense, to a location
designated by Xerox and, when returned, the Equipment will be in good condition and
free of all liens and encumbrances. You will then be released from any further payment
obligations beyond those payments due for the current fiscal year (with Xerox retaining
all sums paid to date).
SOLUTIONISERVICES:
4. COMPETITIVE REPLACEMENT PRODUCTS. You are acquiring the Products to
replace the product(s) identified as "CRP" ("CRP Equipment"). You agree to return the
CRP Equipment to your lessor no later than 60 days following installation of the
Products that are replacing the CRP Equipment. Upon request, you will provide Xerox
with documentation of such return.
PRICING PLAN/OFFERING SELECTED:
5. FIXED PRICING. If "Pricing Fixed for Term" is identified in Maintenance Plan
Features, the maintenance component of the Minimum Payment and Print Charges will
not increase during the initial Term of this Agreement.
GENERAL TERMS & CONDITIONS:
6. REMOTE SERVICES. Certain models of Equipment are supported and serviced
using data that is automatically collected by Xerox or transmitted to or from Xerox by
the Equipment connected to Customer's network ("Remote Data") via electronic
transmission to a secure off -site location ("Remote Data Access"). Remote Data
Access also enables Xerox to transmit to Customer Releases for Software and to
remotely diagnose and modify Equipment to repair and correct malfunctions. Examples
of Remote Data include product registration, meter read, supply level, Equipment
configuration and settings, software version, and problem/fault code data. Remote Data
may be used by Xerox for billing, report generation, supplies replenishment, support
services, recommending additional products and services, and product
improvement/development purposes. Remote Data will be transmitted to and from
Customer in a secure manner specified by Xerox. Remote Data Access will not allow
Xerox to read, view or download the content of any Customer documents or other
information residing on or passing through the Equipment or Customer's information
management systems. Customer grants the right to Xerox, without charge, to conduct
Remote Data Access for the purposes described above. Upon Xerox's request,
Customer will provide contact information for Equipment such as name and address of
Customer contact and IP and physical addresses/locations of Equipment. Customer
will enable Remote Data Access via a method prescribed by Xerox, and Customer will
provide reasonable assistance to allow Xerox to provide Remote Data Access. Unless
Xerox deems Equipment incapable of Remote Data Access, Customer will ensure that
Remote Data Access is maintained at all times Maintenance Services are being
performed.
PARTICIPATING ADDENDUM
NASPO ValuePoint COOPERATIVE PURCHASING ORGANIZATION
Formerly WSCA-NASPO
MULTIFUNCTION COPIERS AND RELATED SOFTWARE
Lead by the State of Nevada (hereinafter "Lead State")
PARTICIPATING ADDENDUM 05214
between
Xerox Corporation
Nevada Contract Number 3091
(hereinafter "Contractor")
and
State of Washington, Department of Enterprise Services
(hereinafter "Participating State")
1. Scuue
This addendum covers the Copiers, Printers & Related Devices 3091 lead by the State of
Nevada for use by state agencies and other entities located in the State of Washington
authorized by that state's statutes to utilize Washington's contracts with the prior approval of
the state's chief procurement official.
Contractor has been awarded devices and services in the following category:
Group A— Convenience Copiers
Group B — Production Products
Group D - Printers
2. Participation
Use of specific NASPO ValuePoint cooperative contracts by agencies, political subdivisions
and other entities (including cooperatives) authorized by an individual state's statutes to use
Washington contracts are subject to the prior approval of the respective State Chief
Procurement Official. Issues of interpretation and eligibility for participation are solely within
the authority of the State Chief Procurement Official.
3. Leases
Equipment acquisitions are requested by agency managers and are part of their individual
agency budget. The Office of the State Treasurer (TRE), Debt Management section reviews each
agency request for financing to ensure that the equipment is essential to the function of the
particular agency and that the finance term does not exceed the useful life of the equipment.
(The useful life table, Chapter 30.50 of the State Administrative & Accounting Manual, is
available at the Office of Financial Management web site:
http:l/w ww.ofm.wa.govlpolicyL,aO.50.htm.) The Debt Management section pools state agency
requests for equipment several times during the year. Office of Financial Management (OFM),
has determined that the useful life of a multifunction device, copier, scanners is 5 years (60
WASHINGTON PARTICIPATING ADDENDUM 05214
NASPO ValuePoint MULTIFUNCTION COPIERS AND RELATED SOFTWARE 3091
months), and the useful life of a laser printer is 6 years. Any leases enter into under this contract
will be considered a capital/financing lease at 75% of the equipment's useful life and require
approval from TRE's Debt Management section.
For example, if equipment is leased for 60 months, 45 months is 75% of the equipment's useful
life. Leases must not exceed the useful life of the equipment. A lease that is greater than 75% of
the equipment's useful life is considered a financing lease with ownership of the equipment
transferring to the purchaser at the end of the lease term. These leases must be approved by
OFM, Debt Management Section. An operating lease returns the equipment at the end of the
lease to the manufacturer/dealer. An operating lease is no more than 44 months.
There are three (3) leasing options available on this contract:
1) Operational Lease- Operational lease is used to acquire devices on a relatively short term basis with no
benefit of ownership to the lessee; no buy-out will be considered.
2) Capital/Finance Lease -A capital lease is classified by the Customer as a purchase and must meet one or
more of the following criteria:
• The lease term is greater than 75% of the property's estimated economic life.
• The lease contains an option to purchase the property for less than fair market value.
• Ownership of the property is transferred to the Customer at the end of the lease term.
• The present value of the lease payment exceeds 90% of the fair market value of the property.
• Such leases shall be subject to monthly payment reduction by the Awarded Vendor upon renewal, based upon the
depreciated value. The depreciated value must be disclosed to the Customer at the time of the renewal; and the
renewal rate is subject to the same terms and conditions under the contract with the Awarded Vendor.
3) Fair Market Value Lease - The customer may purchase the device at the end of the term at the
then Fair Market Value. All fair market value leases shall have an end of term buyout to own value that
is determined by the then current market price. Such leases shall be subject to monthly payment
reduction by the Awarded Vendor upon renewal, based upon the depreciated value. The depreciated
value must be disclosed to the Customer at the time of the renewal; and the renewal rate is subject to the
same terms and conditions under the contract with the Awarded Vendor.
Any lease terms that conflict with this PA will not be accepted. See sample Xerox Lease
Agreement attached at the end of this agreement.
NOTE: State agencies must agree to abide by the Department of Revenue's requirements when
purchasing used equipment. This shall not be construed to impose any obligation on Contractor
to enforce the Department ofRevenue's requirements or to limit the activities ofpolitical
subdivisions.
End of term removal: At the end of term, Lessee shall have the option to: (i) renew the
schedule, not exceeding the maximum term allowed of sixty (60) months (ii) purchase the
Equipment, if a state agency has approval from the Department of Revenue or (iii) return
the equipment. If Lessee desires to exercise a renewal or purchase of the equipment, it
shall give Xerox Corporation written notice at least thirty (30) days before the expiration of
such Schedule Term.
Page 2 of 38
WASHINGTON PARTICIPATING ADDENDUM 05214
NASPO ValuePoint MULTIFUNCTION COPIERS AND RELATED SOFTWARE 3091
The primary contact individuals for this participating addendum are as follows (or their
named successors):
Contractor
Name
Xerox Corporation, Annie Van Gilder
Address
6120 E. Roland Street, Mesa, AZ 85215
Telephone
480-588-8313
E-mail
Annie.Vangilder@xerox.com
Participating -En
lily
Name
State of Washington, Neva Peckham, Contracts Specialist
Address
1500 SE Jefferson St/PO Box 41411 Olympia, WA 98504
Telephone
(360) 407-9411
Fax
(360) 586-2426
E-mail
neva. ep ckham@des.wa.gov
S. Purchase Order Instructions
All orders should contain the following (1) Mandatory Language "PO is subject to NASPO
ValuePoint Contract 3091 and Washington PA 05214 (2) Your Name, Address, Contact, &
Phone -Number (3) Purchase order amount. Please channel your PO through one of our
authorized resellers so they can arrange for proper ordering and installation of your unit.
6. Price Agreement Number
All purchase orders issued by purchasing entities within the jurisdiction of this
participating addendum shall include the Participating State contract number 05214
and the Lead State price agreement number 3091.
T. Individual Customer
Each State agency and political subdivision, as a Participating Entity, that purchases
products/services will be treated as if they were Individual Customers. Except to the extent
modified by a Participating Addendum, each agency and political subdivision will be
responsible to follow the terms and conditions of the Master Agreement; and they will have the
same rights and responsibilities for their purchases as the Lead State has in the Master
Agreement. Each agency and political subdivision will be responsible for their own charges,
fees, and liabilities. Each agency and political subdivision will have the same rights to any
indemnity or to recover any costs allowed in the contract for their purchases. The Contractor
will apply the charges to each Participating Entity individually.
This Participating Addendum and the Master Agreement number 3091 (administered
by the State of Nevada) together with its exhibits, set forth the entire agreement
between the parties with respect to the subject matter of all previous communications,
representations or agreements, whether oral or written, with respect to the subject
matter hereof. Terms and conditions inconsistent with, contrary or in addition to the
terms and conditions of this Addendum and the Master Agreement, together with its
Page 3 of 38
WASHINGTON PARTICIPATING ADDENDUM 05214
NASPO ValuePoint MULTIFUNCTION COPIERS AND RELATED SOFTWARE 3091
exhibits, shall not be added to or incorporated into this Addendum or the Master
Agreement and its exhibits, by any subsequent 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 Master Agreement and its exhibits
shall prevail and govern in the case of any such inconsistent or additional terms within
the Participating State.
8. Subcontractors:
All Xerox Corporation dealers and resellers authorized in the State of Washington, as
shown on the dedicated Xerox Corporation (cooperative contract) website, are approved
to provide sales and service support to participants in the NASPO ValuePoint Master Price
Agreement. The Xerox Corporation dealer's participation will be in accordance with the
terms and conditions set forth in the aforementioned Master Agreement.
9. Minorite and Women's Business Enterprises (MWBE)
In accordance with the legislative findings and policies set forth in RCW 39.19, the State of
Washington encourages participation in all of its contracts by minority and woman -owned
businesses firms certified by the Office of Minority and Women's Business Enterprises
(OMWBE). While the state does not give preferential treatment, it does seek equitable
representation from the minority and women's business community. In addition, the state
welcomes participation by self -identified minority and woman owned firms and strongly
encourages such firms to become certified by OMWBE.
Participation may be either on a direct basis in response to this solicitation or as a
subcontractor to a Xerox Corporation. However, unless required by federal statutes,
regulations, grants, or contract terms referenced in the original solicitation, no preference will
be included in the evaluation of bids, no minimum level of MWBE participation is required as
condition for receiving an award, and bids will not be evaluated, rejected or considered non-
responsive on that basis.
Any affirmative action requirements set forth in federal regulations or statutes included or
referenced in the original solicitation will apply. Bidders are encouraged to contact OMWBE
for information on becoming a certified firm as set forth in Washington Administrative Code
(WAC) Chapters 326-02 and 326-20; or for information on other certified firms for potential
sub -contracting arrangements. Nothing in this section is intended to prevent or discourage
bidders from inviting participation from non-MWBE firms as well as MWBE firms. Prior to
performance, an awarded bidder that is a MWBE or intends to use MWBE subcontractor USAs
is encouraged to identify the participating firm(s) to DES.
10. Public records and exempt information
All documents submitted by bidders to DES as part of this procurement will become public
records. They are subject to disclosure unless specifically exempt under Revised Code of
Washington (RCW) 42.56 (The Public Records Act).
Confidential documents: DES strongly discourages submittal of confidential material. DES
considers confidential material to be any portion of your submittal clearly marked all or in
part "Confidential," "Proprietary" or "Trade Secret" (or the equivalent).
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WASHINGTON PARTICIPATING ADDENDUM 05214
NASPO ValuePoint MULTIFUNCTION COPIERS AND RELATED SOFTWARE 3091
• DES reserves the right to return, reject or disqualify any submittal that includes
confidential material.
Public records requests: If a public records request seeks to view or obtain a copy of your
RFP submittal, and if your submittal includes content clearly marked "Confidential,"
"Proprietary" or "Trade Secret" (or the equivalent), DES will:
• Notify you of the date DES will disclose the requested records;
• Give you an opportunity to seek a court order that stops DES from disclosing the
records.
DES will not:
• Evaluate or defend your claim of confidentiality. It is your responsibility to support your
claim and take appropriate legal action to do so;
• Withhold or redact your documents without a court order.
Questions about the confidentiality of your submittal can be directed to the Procurement
Coordinator or the DES Public Records Officer at (360) 407-8768 or
publicrecords@des, wa. gov.
11. In -state preference/Reciprocity
Pursuant to RCW 39.26, DES has established a schedule of price adjustments applicable
against any bidders submitting responses from states which grant a preference to their own
in -state businesses as identified in the Preference Table. The reciprocity adjustment is
applied as follows.
- These adjustments will be applied in formal sealed bid solicitations only.
- The business address from which the response was submitted will determine if an
adjustment is to be applied.
- The appropriate percentage will be added to each response bearing the address
from a state with in -state preferences rather than subtracting a like amount from
Washington state bidders.
- This action will be used only for evaluation. In no instance shall the increase be paid
to a supplier whose response is accepted.
12. Legal notices
Any notice or demand or other communication required or permitted to be given under the
contract or applicable law (except notice of malfunctioning Equipment) will be effective
only if it is in writing and signed by the applicable party, properly addressed, and either
delivered in person, or by a recognized courier service, or deposited with the United States
Postal Service as first-class mail, postage prepaid, certified mail, return receipt requested,
via facsimile or by electronic mail, to the parties at the addresses and fax numbers, e-mail
addresses provided in Section 4 Primary Contacts above. For purposes of complying with
any provision in the contract or applicable law that requires a "writing," such
communication, when digitally signed with a Washington State Licensed Certificate, shall be
considered to be "in writing" or "written" to an extent no less than if it were in paper form.
Notices will be effective upon receipt or four business days after mailing, whichever is
earlier. The notice address as provided herein may be changed by written notice given as
provided above.
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WASHINGTON PARTICIPATING ADDENDUM 05214
NASPO ValuePoint MULTIFUNCTION COPIERS AND RELATED SOFTWARE 3091
In the event that a subpoena or other legal process commenced by a third party in any way
concerning the Equipment or Services provided pursuant to the contract is served upon
Xerox Corporation or DES, such party agrees to notify the other party in the most
expeditious fashion possible following receipt of such subpoena or other legal process. The
Xerox Corporation and DES further agree to cooperate with the other party in any lawful
effort by the other party to contest the legal validity of such subpoena or other legal process
commenced by a third party.
13. Liens, claims and encumbrances
All materials, equipment, supplies and/or services shall be free of all liens, claims, or
encumbrances of any kind, and if DES or the purchaser requests, a formal release of same
shall be delivered to the respective requestor.
14. Xerox Corporation supervision and coordination
Xerox Corporation shall:
a. Competently and efficiently supervise and coordinate the implementation and
completion of all contract requirements specified herein.
b. Identify the Xerox Corporation's Authorized Representative, who will be the
principal point of contact for DES concerning Xerox Corporation's performance
under this contract.
c. Immediately notify the Contract Administrator in writing of any change of the
designated Authorized Representative assigned to this contract.
d. Be bound by all written communications given to or received from the Xerox
Corporation's Authorized Representative.
Violation of any provision of this section may be considered a material breach establishing
grounds for contract termination.
15. Term contract management
Upon award of a term contract, the Xerox Corporation shall:
a. Review the impact of the award and take the necessary steps needed to ensure that
contractual obligations will be fulfilled.
b. Promote and market the use of this contract to all authorized contract purchasers.
c. Ensure that those who endeavor to utilize this contract are authorized purchasers
under this contract.
d. At no additional charge, assist purchasers in making the most cost effective, value
based purchases which may include, but is not limited to:
- Having representatives available to provide information regarding products
and services, including visiting the purchaser site if needed, and providing
purchaser with materials/supplies/equipment recommendations.
- Providing purchasers with a detailed list of contract items including current
contract pricing and part numbers.
The Xerox Corporation shall designate a customer service representative who will be
responsible for addressing purchaser issues including, but not limited to:
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WASHINGTON PARTICIPATING ADDENDUM 05214
NASPO ValuePoint MULTIFUNCTION COPIERS AND RELATED SOFTWARE 3091
• Logging requests for service, ensuring repairs are completed in a timely manner,
dispatching service technicians and processing warranty claim documentation.
• Providing purchasers with regular and timely status updates in the event of a delay in
repair or order fulfillment.
Acting as the lead and liaison between the manufacturer and purchaser in resolving
warranty claims for contract items purchased.
16. Statewide Payee Desk
Xerox Corporations must register with the Statewide Payee Desk, maintained by DES, in
order to be paid for contract sales. Washington state agencies cannot make payments to a
Xerox Corporation until it is registered. Registration materials are available here: Receiving
Payment from the State.
17. Management fee
Xerox Corporation will pay a management fee of 0.74 percent to DES on all state contract
sales/purchase price for work orders. The management fee must be rolled into the Xerox
Corporation's current pricing, and not shown as a separate line item on an invoice. The
purchase price is defined as total invoice price less sales tax. No taxes will be assessed
against the management fee.
How to determine the fee: Total sales (not including sales tax) x .0074 = management fee.
DES may increase, reduce or eliminate the management fee, and reserves the right to
negotiate contract pricing with the Xerox Corporation when adjustment of the management
fee might justify an increase in pricing. Written notifications of the management fee by DES
become effective for new purchases or new change orders to existing purchases 30
calendar days after notification unless DES grants additional time.
The state reserves the right to audit, or have a designated third party audit, applicable
records to ensure that the state has been properly invoiced and all management fees have
been paid. Failure to accurately report total net sales, to submit a timely usage report, or
remit timely payment of the management fee, may be cause for contract termination, the
charging of interest or penalties, or the exercise of other remedies provided by law.
The management fee does not include or supersede fee terms owed to other entities such as
the National Association of State Procurement Officials (NASPO) or governmental entities
other than the state of Washington.
DES will invoice the Xerox Corporation every quarter based on sales reported by Xerox
Corporation.
Xerox Corporation will not to remit payment for management fee until they receive an
invoice from DES.
Management fee payment must reference the contract number, work request number (if
applicable), the year and quarter for which the management fee is being remitted, and the
Xerox Corporation's name as it is known to DES, if not already included on the face of the
check.
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WASHINGTON PARTICIPATING ADDENDUM 05214
NASPO ValuePoint MULTIFUNCTION COPIERS AND RELATED SOFTWARE 3091
18. Contract sales report
The management fee will be based on total contract sales, which must be reported quarterly
by the Xerox Corporation in the Contract Sales Reporting System. DES will provide a login
password and a vendor number.
For each report, Xerox Corporation must identify every purchaser who has made purchases
during the reporting period. The "Miscellaneous" option may be used only with prior
approval by DES, and use of this option without prior approval by DES may be cause for
contract termination. Refer sales reporting questions to the Contract Administrator.
Due date: Reports must be submitted electronically within 30 days after the end of the
calendar quarter: no later than April 30, July 31, October 31 and January 31.
Failure to provide reports in accordance with the schedule above may be cause for contract
termination.
19. Other- required term contract reverts
DES or Purchaser may require the Xerox Corporation to provide a detailed annual contract
sales history report. This report, if requested, will include at a minimum, but is not limited to:
product description, part number or other product identifier, per unit quantities sold, and
contract price. This report must be provided to DES in an electronic format that can be read
by MS Excel. Unless the solicitation specifies otherwise, all other required reports will be
designed and approved by the parties by mutual agreement.
20. Common vendor -registration and bid-n_9tWca ian sy-st¢m
Xerox Corporation shall be registered in Washington's Electronic Business Solution (WEBS),
the state's common vendor registration and bid notification system (y=,ga.wa.gov/webs).
If Xerox Corporation has already registered it need not re -register. It is the sole
responsibility of Xerox Corporation to properly register and maintain an accurate vendor
profile.
21. Xerox Corporation qualifications and requirements
DES reserves the right to require receipt of proof of compliance with any of the
requirements in this section within 10 calendar days from the date of request, and to
terminate this contract as a material breach for noncompliance with any requirement of this
paragraph. Xerox Corporation shall maintain compliance with these requirements
throughout the life of this contract.
a. Qualified and established business
DES may, at its sole discretion, require Xerox Corporation to provide proof of their
status as an established business with all required licenses, fees, bonding, facilities,
equipment, and trained personnel necessary to meet all requirements and perform
the work as specified in the solicitation.
b. Authorized Service provider and Product Reseller certifications
Upon request, Xerox Corporation must provide evidence of its status as an
authorized service provider or product reseller. Xerox Corporation shall maintain its
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WASHINGTON PARTICIPATING ADDENDUM 05214
NASPO ValuePoint MULTIFUNCTION COPIERS AND RELATED SOFTWARE 3091
authorized service provider or product reseller status for the initial term and any
extensions of the resulting contract. If this status is discontinued, this contract may be
terminated.
c. Dealer authorization
Xerox Corporation shall maintain dealer authorization from the manufacturer
consistent with the requirements outlined in the original solicitation.
d. Assignment
Xerox Corporation shall not assign or otherwise transfer its obligations or any claim
arising under this contract without the prior written consent of DES. Such consent will
not be unreasonably withheld. Xerox Corporation shall provide a minimum of 30
calendar days advance notification of intent to assign or otherwise transfer its
obligations under this contract. Violation of this provision may be considered a
material breach and be grounds for contract termination. Assignment or transfer of
contract shall not relieve the Xerox Corporation from its responsibilities and
obligations under the contract. Notwithstanding the above, Xerox Corporation
reserves the right to assign this Agreement to a parent, subsidiary, or third party for
the purpose of securitizing or monetization the transaction. Xerox Corporation will
remain 100% responsible for all aspects of the contract after assignment. Any such
assignment however, does not excuse Xerox Corporation from bearing any
obligation, terms and conditions as outlined under the either the NASPO ValuePoint
Master Agreement 3091 or Washington Participating Addendum 05214.
e. Xerox Corporation authority and infringement
Under this contract, Xerox Corporation is authorized to sell only those materials,
supplies, services and/or equipment as stated herein and allowed for by the contract
provisions. Xerox Corporation shall not misrepresent to purchasers that they have
the contract authority to sell any other materials, supplies, services and/or
equipment. Further, Xerox Corporation may not intentionally infringe on other
established state contracts.
f. Hours of labor
In compliance with RCW 49.28, Xerox Corporation agrees that no worker, laborer, or
mechanic in the employ of the Xerox Corporation or subcontractor shall be
permitted or required to work more than eight (8) hours in any one calendar day, or
forty (40) hours in any one calendar week. However, in cases of extraordinary
emergency such as danger to life or property, the hours of work may be extended
but in such cases the rate of pay for time employed in excess of the above shall be at
the prevailing overtime rate of pay. Except, contracts will not require the payment of
overtime rates for the first two hours worked in excess of eight (8) hours per day
when the employer has obtained the employee's agreement (as defined in WAC 296-
127-022 to work a four -day, ten-hour work week.
g. Materials and workmanship
Xerox Corporation is required to furnish all materials, supplies, equipment and/or
services necessary to perform contractual requirements. Materials, supplies,
equipment and/or services used in the performance of this contract shall conform to
all applicable federal, state, and local codes, regulations and requirements for such
equipment, specifications contained herein, and the normal uses for which intended.
Materials, supplies, and equipment shall be manufactured in accordance with the
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best commercial practices and standards for this type of materials, supplies, and
equipment.
h. Mercury content and preference
Xerox Corporation shall provide mercury -free products when available. Should
mercury -free products not exist, Xerox Corporations shall provide products with the
lowest mercury content available in meeting performance requirements.
Xerox Corporation shall disclose products that contain added mercury and provide
an explanation that includes the amount or concentration of mercury, and justification
as to why added mercury is necessary for the function or performance of the product.
The Xerox Corporation is to provide any existing technical data pertaining to the
addition of mercury or a mercury compound intentionally added to the product.
Xerox Corporation shall maintain compliance with these requirements throughout
the life of this contract. DES reserves the right to require receipt of proof of
compliance with within 10 calendar days from the date of request, and to terminate
this contract as a material breach for noncompliance.
22. Delivery requirement
a. Delivery:
Xerox Corporation must ensure that delivery of goods will be made as required in
the contract terms, the Purchase Order, or as otherwise mutually agreed in writing
between the purchaser and Xerox Corporation. The following apply to all deliveries:
- The Xerox Corporation must deliver the goods during purchaser's normal
work hours and within contract time frames or as otherwise mutually agreed
in writing between the purchaser and Xerox Corporation at the time of order
placement.
- The Xerox Corporation must verify specific working hours of individual
purchasers and instruct carrier(s) to deliver accordingly.
- The purchaser may refuse shipment when delivered after normal working
hours.
- Failure to comply with agreed upon delivery times may subject Xerox
Corporation to penalties. At the Customer's option, failure to comply with
agreed upon delivery times may result in a penalty of $5.00 per work day
beyond the agreed delivery date.
- The acceptance of late delivery does not constitute a waiver of the
requirements for the timely performance of any obligation remaining to be
performed by Xerox Corporation.
- The Xerox Corporation must make all deliveries to the applicable delivery
location as indicated in the contract or Purchase Order.
- The Xerox Corporation is responsible for verifying delivery
conditions/requirements with the purchaser prior to the delivery.
- When applicable, the Xerox Corporation must take all necessary actions to
safeguard items during inclement weather.
- All packing lists, packages, instruction manuals, correspondence, shipping
notices, shipping containers, and other written materials associated with this
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contract shall be identified by the contract identifier and the applicable
purchaser's order number. Packing lists shall be enclosed with each shipment
and clearly identify all contents and any backorders.
- The Xerox Corporation must not initiate performance prior to receipt of
written or verbal authorization from authorized purchasers. Expenses
incurred otherwise will be borne solely by the Xerox Corporation.
b. Receipt of goods:
Inspection and rejection: The purchaser's inspection of all materials, supplies and
equipment upon delivery is for the purpose of forming a judgment as to whether such
delivered items are what was ordered, were properly delivered, and are ready for
Acceptance. If applicable, the state reserves the right to independently test, at Xerox
Corporation's expense, any product of questionable freshness, quality, or origin
delivered against this contract. Such inspection shall not be construed as final
acceptance, or as acceptance of the materials, supplies or equipment, if the
materials, supplies or equipment does not conform to contractual requirements.
If there are any apparent defects in the materials, supplies, or equipment at the time
of delivery, the purchaser will promptly notify the Xerox Corporation. At the
purchaser's option and without limiting any other rights, the purchaser may require
the Xerox Corporation to:
- Repair or replace, at Xerox Corporation's expense, any or all of the damaged
goods.
- Accept the return of any or all of the damaged goods.
Alternatively and at the purchaser's option, any possible damage to the product may
be noted on the receiving report and the cost deducted from final payment.
Acceptance:
Unless an Order is preceded by a trial order, the equipment will be considered
accepted upon installation of the equipment by Xerox Corporation, after the
equipment successfully runs all required diagnostic routines, and the equipment is
turned over to the State for use. For equipment installed by Xerox Corporation Risk
of loss will pass to the State upon acceptance and for equipment designated as
"Customer Installable," the equipment delivery date. The term for a lease Order
shall commence upon acceptance of the Equipment; provided, however, for State's-
installable Equipment, the term for a lease Order shall commence upon delivery of
the Equipment.
c. Shipping and risk of loss:
Unless the contract specifies otherwise, Xerox Corporation shall ship all Goods
freight prepaid, FOB purchaser's destination. The method of shipment shall be
consistent with the nature of the Goods and hazards of transportation. Regardless of
FOB point, Xerox Corporation agrees to bear all risks of loss, damage, or destruction
of the Goods ordered hereunder that occurs prior to Delivery Date or Acceptance,
whichever is applicable, except loss or damage attributable to purchaser's fault or
negligence; and such loss, damage, or destruction shall not release Xerox
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Corporation from any obligation hereunder. After Delivery Date or Acceptance,
whichever is applicable, the risk of loss or damage shall be borne by purchaser.
d. Site security:
While on purchaser's premises, Xerox Corporation, its agents, employees, or
subcontractors shall conform in all respects with physical, fire, or other security
regulations.
e. Installation:
When applicable, installation shall be performed in a professional manner in
accordance with industry standard best practices. The premises shall be left in a
neat, clean, and undamaged condition. The state reserves the right to require Xerox
Corporation to repair any damage caused during installation or provide full
compensation as determined by the state.
f. Labeling:
Individual shipping cartons shall be labeled with the name of the purchaser, order
number, contract number, Xerox Corporation, state stock numbers. Where
applicable, date of manufacture, batch number, storage requirements, conditions,
and recommended shelf life shall also be included.
g. Hazardous materials:
Consistent with WAC 296-839, all manufacturers and distributors of hazardous
substances, including any of the items listed in this contract, must include a complete
material safety data sheet (MSDS) for each hazardous material. Additionally, each
container of hazardous materials must be appropriately labeled with:
- The identity of the hazardous material,
- Appropriate hazard warnings, and
- Name and address of the chemical manufacturer, importer, or other
responsible party
The Department of Labor and Industries may levy appropriate fines for noncompliance and
agencies may withhold payment -pending receipt of a legible copy of MSDS. It should be
noted that OSHA Form 20 is not acceptable in lieu of this requirement unless it is modified
to include appropriate information relative to "carcinogenic ingredients" and "routes of
entry" of the product(s) in question.
23. Payment
a. Advance payment prohibited:
No advance payment shall be made for the Products and Services furnished by Xerox
Corporation under this contract.
Notwithstanding the above, maintenance payments, if any, may be made on a
quarterly basis at the beginning of each quarter.
b. Payment:
Payment is the sole responsibility of, and will be made by, the purchaser.
Under Chapter 39.76 RCW , if purchaser fails to make timely payment(s), Xerox
Corporation may invoice for 1 % per month on the amount overdue or a minimum of
$1. Payment will not be considered late if a check or warrant is mailed within the time
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specified. If no terms are specified otherwise in the solicitation, net 30 days will
automatically apply.
Payment(s) made in accordance with contract terms shall fully compensate the Xerox
Corporation for all risk, loss, damages or expense of whatever nature and
acceptance of payment shall constitute a waiver of all claims submitted by Xerox
Corporation.
Payment for materials, supplies and/or equipment received and for services
rendered shall be made by purchaser and be redeemable in U.S. dollars. Unless
otherwise specified, the purchaser's sole responsibility shall be to issue this
payment. Any bank or transaction fees or similar costs associated with currency
exchange procedures or the use of purchasing/credit cards shall be fully assumed
by the Xerox Corporation.
Note: when the state has been overcharged or otherwise reimbursed, the purchaser
may elect to have either direct payments or written credit memos issued. If the Xerox
Corporation fails to make timely payment(s) or issuance of credit memos, the
purchaser may impose a 1 % per month on the amount overdue 30 days after notice to
the Xerox Corporation.
c. Invoicing and discounts
Xerox Corporation must provide a properly completed invoice to purchaser. All
invoices are to be delivered to the address indicated in the purchase order.
Each invoice must be identified by the associated contract number; the Xerox
Corporation's statewide vendor registration number assigned by the Washington
State Office of Financial Management (OFM), the applicable purchaser's order
number, and must be in U.S. dollars. Invoices must be prominently annotated by the
Xerox Corporation with all applicable volume discount(s) and shipping charges
unless otherwise specified in the solicitation.
Invoices for payment will accurately reflect all discounts due the purchaser. Invoices
will not be processed for payment until receipt of a properly completed invoice
denominated in U.S. dollars and until all invoiced items are received and satisfactory
performance of Xerox Corporation has been accepted by the purchaser.
24. Taxes, fees and licenses
a. Taxes
Where required by statute or regulation, the Xerox Corporation shall pay for and
maintain in current status all taxes that are necessary for contract performance.
Unless otherwise indicated, the purchaser agrees to pay State of Washington taxes on
all applicable materials, supplies, services and/or equipment purchased. No charge
by the Xerox Corporation shall be made for federal excise taxes and the purchaser
agrees to furnish Xerox Corporation with an exemption certificate where
appropriate.
b. Collection of retail sales and use taxes
In general, Xerox Corporations engaged in retail sales activities within the State of
Washington are required to collect and remit sales tax to Department of Revenue
(DOR). In general, out-of-state Xerox Corporations must collect and remit "use tax"
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to Department of Revenue if the activity carried on by the seller in the State of
Washington is significantly associated with Xerox Corporation's ability to establish or
maintain a market for its products in Washington. Examples of such activity include
where the Xerox Corporation either directly or by an agent or other representative:
- Maintains an in -state office, distribution house, sales house, warehouse,
service enterprise, or any other in -state place of business;
- Maintains an in -state inventory or stock of goods for sale;
Regularly solicits orders from purchasers located within the State of
Washington via sales representatives entering the State of Washington;
Sends other staff into the State of Washington (e.g. product safety engineers,
etc.) to interact with purchasers in an attempt to establish or maintain
market(s); or
- Other factors identified in WAC 458-20.
c. Department of Revenue registration for out-of-state Xerox Corporations
Out-of-state Xerox Corporations meeting any of the above criteria must register and
establish an account with the Department of Revenue. Refer to WAC 458-20-193, and
call the Department of Revenue at 800-647-7706 for additional information. When out-
of-state Xerox Corporations are not required to collect and remit "use tax,"
purchasers located in the State of Washington are responsible for paying this tax, if
applicable, directly to the Department of Revenue.
d. Fees/Licenses
After award of contract, and prior to commencing performance under the contract,
the Xerox Corporation shall pay for and maintain in a current status any licenses,
fees, assessments, permit charges, etc., which are necessary for contract
performance. It is the Xerox Corporation's sole responsibility to maintain licenses
and to monitor and determine any changes or the enactment of any subsequent
regulations for said fees, assessments, or charges and to immediately comply with
said changes or regulations during the entire term of this contract.
e. Taxes on invoice
Xerox Corporation shall calculate and enter the appropriate state and local sales tax
on all invoices. Tax is to be computed on new items after deduction of any trade-in in
accordance with WAC 458-20-247.
L Overpayments to Xerox Corporation
Xerox Corporation shall refund to purchaser the full amount of any erroneous
payment or overpayment under this contract within 30 days' written notice. If Xerox
Corporation fails to make timely refund, purchaser may charge Xerox Corporation 1
percent per month on the amount due, until paid in full.
g. Audits
The state reserves the right to audit, or have a designated third party audit,
applicable records to ensure that the state has been properly invoiced. Any
remedies and penalties allowed by law to recover monies determined owed will be
enforced. Repetitive instances of incorrect invoicing may be considered cause for
contract termination in the event the Xerox fails to meet the 30-day cure. Any existing
leases will not be affected if contract is terminated under this circumstance.
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25.Ouality assurance
a. Right of inspection
Xerox Corporation shall provide right of access to its facilities to DES, or any of DES'
officers, or to any other authorized agent or official of the State of Washington or the
federal government, at all reasonable times, in order to monitor and evaluate
performance, compliance, and/or quality assurance under this contract.
b. Xerox Corporation commitments, warranties and representations
Any written commitment by Xerox Corporation within the scope of this contract shall
be binding upon Xerox Corporation. Failure of Xerox Corporation to fulfill such a
commitment may constitute breach and shall render Xerox Corporation liable for
damages under the terms of this contract. For purposes of this section, a commitment
by Xerox Corporation includes: (i) Prices, discounts, and options committed to
remain in force over a specified period of time; and (ii) any warranty or
representation made by Xerox Corporation in its bid or contained in any Xerox
Corporation or manufacturer publications, written materials, schedules, charts,
diagrams, tables, descriptions, other written representations, and any other
communication medium accompanying or referred to in its bid or used to effect the
sale to purchaser.
c. Warranties
Xerox Corporation warrants for a period of a minimum of 90 days from the date of
Acceptance that: (a) the Product performs according to all specific claims that the
Xerox Corporation made in its response to the NASPO ValuePoint solicitation 3091,
(b) the Product is suitable for the ordinary purposes for which such Product is used,
(c) the Product is suitable for any special purposes identified in the solicitation or for
which the Purchasing Entity has relied on the Xerox skill or judgment, (d) the Product
is designed and manufactured in a commercially reasonable manner, and (e) the
Product is free of defects. Upon breach of the warranty, the Xerox Corporation will
repair or replace at no charge to the purchaser the Product whose nonconformance is
discovered and made known to the Xerox Corporation.
d. Cost of remedy
Cost of remedying defects: Xerox will be responsible for any costs associated
with removing or replacing defective equipment.
26. Information and communications
a. Advertising
Xerox Corporation shall not publish or use any information concerning this contract
in any format or media for advertising or publicity without prior written consent from
DES.
b. Retention of records
The Xerox Corporation shall maintain all books, records, documents, data and other
evidence relating to this contract and the provision of materials, supplies, services
and/or equipment described herein, including, but not limited to, accounting
procedures and practices which sufficiently and properly reflect all direct and
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indirect costs of any nature expended in the performance of this contract. Xerox
Corporation shall retain such records for a period of six (6) years following the date
of final payment. At no additional cost, these records, including materials generated
under the contract, shall be subject at all reasonable times to inspection, review, or
audit by DES, personnel duly authorized by DES, the Washington State Auditor's
Office, and federal and state officials so authorized by law, regulation or agreement.
If any litigation, claim or audit is started before the expiration of the six (6) year
period, the records shall be retained until final resolution of all litigation, claims, or
audit findings involving the records.
c. Proprietary or confidential information
To the extent consistent with Chapter 42.56 RCW, the Public Disclosure Act, DES shall
maintain the confidentiality of Xerox Corporation's information marked confidential
or proprietary. If a request is made to view Xerox Corporation's proprietary
information, DES will notify Xerox Corporation of the request and of the date that the
records will be released to the requester unless Xerox Corporation obtains a court
order enjoining that disclosure. If Xerox Corporation fails to obtain the court order
enjoining disclosure, DES will release the requested information on the date
specified.
The state's sole responsibility shall be limited to maintaining the above data in a
secure area and to notify Xerox Corporation of any request(s) for disclosure for so
long as DES retains Xerox Corporation's information in DES records. Failure to so
label such materials or failure to timely respond after notice of request for public
disclosure has been given shall be deemed a waiver by Xerox Corporation of any
claim that such materials are exempt from disclosure.
d. Non -endorsement and publicity
Neither DES nor the purchasers are endorsing the Xerox Corporation's products or
Services, nor suggesting that they are the best or only solution to their needs. Xerox
Corporation agrees to make no reference to DES, any purchaser or the State of
Washington in any literature, promotional material, brochures, sales presentation or
the like, regardless of method of distribution, without the prior review and express
written consent of DES.
e. Ownership/rights in data
See NASPO Master Agreement 3091.
f. Protection of confidential and personal information
Xerox Corporation acknowledges that some of the material and information that may
come into its possession or knowledge in connection with this contract or its
performance may consist of information that is exempt from disclosure to the public
or other unauthorized persons under either Chapter 42.17 RC W or other state or
federal statutes ("confidential information"). Confidential information includes, but is
not limited to, names, addresses, Social Security numbers, e-mail addresses,
telephone numbers, financial profiles, credit card information, driver's license
numbers, medical data, law enforcement records, agency source code or object
code, agency security data, etc., or information identifiable to an individual that
relates to any of these types of information. Xerox Corporation agrees to hold
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confidential information in strictest confidence and not to make use of confidential
information for any purpose other than the performance of this contract, to release it
only to authorized employees or subcontractors requiring such information for the
purposes of carrying out this contract, and not to release,'divulge, publish, transfer,
sell, disclose, or otherwise make the information known to any other party without
purchaser's express written consent or as provided by law. Xerox Corporation
agrees to release such information or material only to employees or subcontractors
who have signed a non -disclosure agreement, the terms of which have been
previously approved by purchaser. Xerox Corporation agrees to implement
physical, electronic, and managerial safeguards to prevent unauthorized access to
Confidential Information.
"Personal information" including, but not limited to, "protected health information"
(PHI) under the Health Insurance Portability and Accountability Act (HIPAA),
individuals' names, addresses, phone numbers, birth dates, and social security
numbers collected, used, or acquired in connection with this contract shall be
protected against unauthorized use, disclosure, modification or loss.
HIPAA establishes national minimum standards for the use and disclosure of certain
health information. The Xerox Corporation must comply with all HIPAA requirements
and rules when determined applicable by the purchaser. If purchaser determines
that (1) purchaser is a "covered entity" under HIPAA, and that (2) Xerox Corporation
will perform "business associate" services and activities covered under HIPAA, then
at purchaser's request, Xerox Corporation agrees to execute purchaser's business
associate contract in compliance with HIPAA.
Xerox Corporation shall ensure its directors, officers, employees, subcontractors or
agents use personal information solely for the purposes of accomplishing the services
set forth herein. Xerox Corporation and its subcontractors agree not to release,
divulge, publish, transfer, sell or otherwise make known to unauthorized persons
personal information without the express written consent of the agency or as
otherwise required by law.
Any breach of this provision may result in termination of the contract and demand for
return of all personal information. The Xerox Corporation agrees to indemnify and
hold harmless the State of Washington and the purchaser for any damages related to
both: (1) the Xerox Corporation's unauthorized use of personal information and (2)
the unauthorized use of personal information by unauthorized persons as a result of
Xerox Corporation's failure to sufficiently protect against unauthorized use,
disclosure, modification, or loss.
Xerox Corporation shall maintain a log documenting the following: the confidential
information received in the performance of this contract; the purpose(s) for which the
confidential information was received; who received, maintained and used the
confidential information; and the final disposition of the confidential information.
Xerox Corporation's records shall be subject to inspection, review or audit in
accordance with records -retention law.
Purchaser reserves the right to monitor, audit, or investigate the use of confidential
information collected, used, or acquired by Xerox Corporation through this contract.
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The monitoring, auditing, or investigating may include, but is not limited to, salting
databases.
Violation of this section by Xerox Corporation or its subcontractors may result in
termination of this contract and demand for return of all confidential information,
monetary damages, or penalties.
Immediately upon expiration or termination of this contract, Xerox Corporation shall,
at purchaser's option: (i) certify to purchaser that Xerox Corporation has destroyed
all confidential information; or (ii) return all confidential information to purchaser; or
(iii) take whatever other steps purchaser requires of Xerox Corporation to protect
purchaser's confidential information.
27. General Provisions
a. Governing law and venue
This contract shall be construed and interpreted in accordance with the laws of the
State of Washington, and the venue of any action brought hereunder shall be in the
Superior Court for Thurston County.
b. Severability
Severability: If any provision of this contract or any provision of any document
incorporated by reference shall be held invalid, such invalidity shall not affect the
other provisions of this contract that can be given effect without the invalid provision,
and to this end the provisions of this contract are declared to be severable.
c. Survivorship
All transactions executed for products and Services provided pursuant to the
authority of this contract shall be bound by all of the terms, conditions, Prices and
Price discounts set forth herein, notwithstanding the expiration of the initial term of
this contract or any extension thereof. Further, the terms, conditions and warranties
contained in this contract that by their sense and context are intended to survive the
completion of the performance, cancellation or termination of this contract shall so
survive. In addition, the terms of the sections titled Overpayments to Xerox
Corporation; Ownership/Rights in Data; Xerox Corporation's Commitments,
Warranties and Representations; Protection of purchaser's Confidential Information;
Section Headings, Publicity; Retention of Records; Patent and Copyright
Indemnification; Xerox Corporation's Proprietary Information; Disputes; and
Limitation of Liability shall survive the termination of this contract.
d. Independent status of Xerox Corporation
In the performance of this contract, the parties will be acting in their individual,
corporate or governmental capacities and not as agents, employees, partners, joint
ventures, or associates of one another. The parties intend that an independent Xerox
Corporation relationship will be created by this contract. The employees or agents of
one party shall not be deemed or construed to be the employees or agents of the
other party for any purpose whatsoever. Xerox Corporation shall not make any claim
of right, privilege or benefit which would accrue to an employee under Chapter 41.06
RCW, or Title 51 RCW.
e. Gifts and gratuities
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Xerox Corporation shall comply with all state laws regarding gifts and gratuities,
including but not limited to: RCW 39.26 , RCW 42.52.150, RCW 42.52.160, and RCW
42.52.170 under which it is unlawful for any person to directly or indirectly offer, give
or accept gifts, gratuities, loans, trips, favors, special discounts, services, or anything
of economic value in conjunction with state business or contract activities.
Under RCW 39.26 and the Ethics in Public Service Law, Chapter 42.52 RCW, state
officers and employees are prohibited from receiving, accepting, taking or seeking
gifts (except as permitted by RCW 42,52, LM if the officer or employee participates
in contractual matters relating to the purchase of goods or services.
f. Immunity and hold harmless
To the fullest extent permitted by law, Xerox Corporation shall indemnify, defend and
hold harmless state, agencies of state and all officials, agents and employees of state
(the "Indemnified Parties"), from and against all claims for bodily injury, death or
damage to property. Xerox Corporation's obligation to indemnify, defend, and hold
harmless includes any claim by Xerox Corporation's agents, employees,
representatives, or any subcontractor or its employees.
Xerox Corporation expressly agrees to indemnify, defend, -and hold harmless the
Indemnified Parties for any claim arising out of or incident to Xerox Corporation's or
any subcontractor's performance or failure to perform the contract. Xerox
Corporation shall be required to indemnify, defend, and hold harmless the
Indemnified Parties only to the extent claim is caused in whole or in part by
negligent, reckless or willful acts or omissions of Xerox Corporation, its agents,
employees, representatives, or any subcontractor or its employees.
Xerox Corporation waives its immunity under Title 51 to the extent it is required to
indemnify, defend and hold harmless state and its agencies, officials, agents or
employees.
g. Personal liability
It is agreed by and between the parties hereto that in no event shall any official,
officer, employee or agent of the State of Washington when executing their official
duties in good faith, be in any way personally liable or responsible for any
agreement herein contained whether expressed or implied, nor for any statement or
representation made herein or in any connection with this agreement.
28.Insurance
The following are general insurance provisions for the State of Washington. Additional
requirements specific to a good/service may be detailed elsewhere in a solicitation or its
appendices.
a. General requirements
Xerox Corporation shall, at its own expense, obtain and keep in force insurance as
follows until completion of the contract. Upon request, Xerox Corporation shall
furnish evidence in the form of a certificate of insurance satisfactory to the State of
Washington that insurance, in the following kinds and minimum amounts, has been
secured. Failure to provide proof of insurance, as required, will result in contract
cancellation.
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Xerox Corporation shall include all subcontractors as insureds under all required
insurance policies, or shall furnish separate Certificates of Insurance and
endorsements for each subcontractor. Subcontractor (s) must comply fully with all
insurance requirements stated herein. Failure of subcontractor (s) to comply with
insurance requirements does not limit Xerox Corporation's liability or responsibility.
All insurance provided in compliance with this contract shall be primary as to any
other insurance or self-insurance programs afforded to or maintained by the state.
b. Specific requirements
Employer's Liability (Stop Gap): The Xerox Corporation will at all times comply with
all applicable workers' compensation, occupational disease, and occupational health
and safety laws, statutes, and regulations to the full extent applicable and will
maintain Employers Liability insurance with a limit of no less than $1,000,000.00. The
State of Washington will not be held responsible in any way for claims filed by the
Xerox Corporation or their employees for services performed under the terms of this
contract.
Commercial General Liability Insurance: The Xerox Corporation shall at all times
during the term of this contract, carry and maintain commercial general liability
insurance and if necessary, commercial umbrella insurance for bodily injury and
property damage arising out of services provided under this contract. This insurance
shall cover such claims as may be caused by any act, omission, or negligence of the
Xerox Corporation or its officers, agents, representatives, assigns, or servants.
The insurance shall also cover bodily injury, including disease, illness and death, and
property damage arising out of the Xerox Corporation's premises/operations,
independent Xerox Corporations, products/completed operations, personal injury
and advertising injury, and contractual liability (including the tort liability of another
assumed in a business contract), and contain separation of insured's (cross liability)
conditions.
Xerox Corporation waives all rights against the State of Washington for the recovery
of damages to the extent they are covered by general liability or umbrella insurance.
The limits of liability insurance shall not be less than as follows:
General aggregate limits (other than products -completed operations)
$2 million
Products -completed operations aggregate
$2 million
Personal and advertising injury aggregate
$1 million
Each occurrence (applies to all of the above)
$1 million
Fire damage limit (per occurrence)
$50,000
Medical expense limit (any one person)
$5,000
c. Business Auto Policy (BAP)
In the event that services delivered pursuant to this contract involve the use of
vehicles, or the transportation of clients, automobile liability insurance shall be
required. The coverage provided shall protect against claims for bodily injury,
including illness, disease, and death; and property damage caused by an occurrence
arising out of or in consequence of the performance of this service by the Xerox
Corporation, subcontractor, or anyone employed by either.
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Xerox Corporation shall maintain business auto liability and, if necessary,
commercial umbrella liability insurance with a combined single limit not less than
$1,000,000 per occurrence. The business auto liability shall include Hired and Non -
Owned coverage.
Xerox Corporation waives all rights against the State of Washington for the recovery
of damages to the extent they are covered by business auto liability or commercial
umbrella liability insurance.
d. Additional insurance provisions
All above insurance policies shall include, but not be limited to, the following
provisions:
Additional insured:
The State of Washington and all authorized purchasers shall be named as an
additional insured on all general liability, umbrella, excess, and property insurance
policies. All policies shall be primary over any other valid and collectable insurance.
Notice of policy cancellation/Non-renewal:
For insurers subject to Chapter 48.18 RCW (admitted and regulated by the
Washington State Insurance Commissioner) a written notice shall be given to the
director of purchasing or designee 45 calendar days prior to cancellation or any
material change to the policy as it relates to this contract. Written notice shall include
the affected contract reference number.
e. Insurance carrier rating
The insurance required above shall be issued by an insurance company authorized to
do business within the State of Washington. Insurance is to be placed with a carrier
that has a rating of A- Class VII or better in the most recently published edition of
Best's Reports. Any exception must be reviewed and approved by the Risk Manager
for the State of Washington, by submitting a copy of the contract and evidence of
insurance before contract commencement. If an insurer is not admitted, all insurance
policies and procedures for issuing the insurance policies must comply with Chapter
48.15 RCW and Chapter 284-15 WAC
f. Excess coverage
The limits of all insurance required to be provided by the Xerox Corporation shall be
no less than the minimum amounts specified. However, coverage in the amounts of
these minimum limits shall not be construed to relieve the Xerox Corporation from
liability in excess of such limits.
g. Limit adjustments
The state reserves the right to increase or decrease limits as appropriate.
29. Industrial Insurance Coverage
The Xerox Corporation shall comply with the provisions of Title 51 RCW Industrial
Insurance. If the Xerox Corporation fails to provide industrial insurance coverage or fails to
pay premiums or penalties on behalf of its employees as may be required by law, DES may
terminate this contract. This provision does not waive any of the Washington State
Department of Labor and Industries (L&I) rights to collect from the Xerox Corporation.
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30. Nondiscrimination
During the performance of this contract, the Xerox Corporation shall comply with all
applicable federal and state nondiscrimination laws, regulations and policies, including, but
not limited to, Title VII of the Civil Rights Act, 42 U.S.C. section 12101 et. seq.; the Americans
with Disabilities Act (ADA); and, Chapter 49.Q0 RCVSj, Discrimination —Human Rights
Commission.
31. OSHA and WISHA requirements
Xerox Corporation agrees to comply with conditions of the federal Occupational Safety and
Health Administration (OSHA) and, if manufactured or stored in the State of Washington, the
Washington Industrial Safety and Health Act (WISHA) and the standards and regulations
issued thereunder, and certifies that all items furnished and purchased will conform to and
comply with said laws, standards and regulations. Xerox Corporation further agrees to
indemnify and hold harmless DES and purchaser from all damages assessed against
purchaser as a result of Xerox Corporation's failure to comply with those laws, standards
and regulations, and for the failure of the items furnished under the contract to so comply.
32. Antitrust
The state maintains that, in actual practice, overcharges resulting from antitrust violations
are borne by the purchaser. Therefore, the Xerox Corporation hereby assigns to the State of
Washington any and all of the Xerox Corporation's claims for such price fixing or
overcharges which arise under federal or state antitrust laws, relating to the materials,
supplies, services and/or equipment purchased under this contract.
33. Waiver
Failure or delay of DES or purchaser to insist upon the strict performance of any term or
condition of the contract or to exercise any right or remedy provided in the contract or by
law; or DES' or purchaser's acceptance of or payment for materials, supplies, services
and/or equipment, shall not release the Xerox Corporation from any responsibilities or
obligations imposed by this contract or by law, and shall not be deemed a waiver of any
right of DES or purchaser to insist upon the strict performance of the entire agreement by
the Xerox Corporation. In the event of any claim for breach of contract against the Xerox
Corporation, no provision of this contract shall be construed, expressly or by implication, as
a waiver by DES or purchaser of any existing or future right and/or remedy available by
law.
34. Disvutes and remedi
a. Problem resolution and disputes
Problems arising out of the performance of this contract shall be resolved in a timely
manner at the lowest possible level with authority to resolve such problem. If a
problem persists and cannot be resolved, it may be escalated within each
organization.
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In the event a bona fide dispute concerning a question of fact arises between DES or
the purchaser and Xerox Corporation and it cannot be resolved between the parties
through the normal problem escalation processes, either party may initiate the
dispute resolution procedure provided herein. The dispute shall be handled by a
Dispute Resolution Panel in the following manner. Each party to this contract shall
appoint one member to the Panel. These two appointed members shall jointly
appoint an additional member. The Dispute Resolution Panel shall review the facts,
contract terms and applicable statutes and rules and make a determination of the
dispute as quickly as reasonably possible. The determination of the Dispute
Resolution Panel shall be final and binding on the parties hereto. DES and/or
purchaser and Xerox Corporation agree that, the existence of a dispute
notwithstanding, they will continue without delay to carry out all their respective
responsibilities under this contract that are not affected by the dispute.
In the event a bona fide dispute concerning a question of fact arises between DES or
the purchaser and Xerox Corporation and it cannot be resolved between the parties
through the normal escalation processes, either party may initiate the dispute
resolution procedure provided herein.
The initiating party shall reduce its description of the dispute to writing and deliver it
to the responding party. The responding party shall respond in writing within three
business days. The initiating party shall have three business days to review the
dispute. If after this review a resolution cannot be reached, both parties shall have
three business days to negotiate in good faith to resolve the dispute.
If the dispute cannot be resolved after three business days, a Dispute Resolution
Panel may be requested in writing by either party who shall also identify the first
panel member. Within three business days of receiving the request, the other party
will designate a panel member. Those two panel members will appoint a third
individual to the Dispute Resolution Panel within the next three business days.
The Dispute Resolution Panel will review the written descriptions of the dispute,
gather additional information as needed, and render a decision on the dispute in the
shortest practical time.
Each party shall bear the cost for its panel member and share equally the cost of the
third panel member.
Both parties agree to be bound by the determination of the Dispute Resolution Panel.
Both parties agree to exercise good faith in dispute resolution and to settle disputes
prior to using a Dispute Resolution Panel whenever possible.
DES, the purchaser and Xerox Corporation agree that, the existence of a dispute
notwithstanding, they will continue without delay to carry out all their respective
responsibilities under this contract that are not affected by the dispute.
If the subject of the dispute is the amount due and payable by purchaser for
materials, supplies, services and/or equipment being provided by Xerox
Corporation, Xerox Corporation shall continue providing materials, supplies,
services and/or equipment pending resolution of the dispute provided purchaser
pays Xerox Corporation the amount purchaser, in good faith, believes is due and
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payable, and places in escrow the difference between such amount and the amount
Xerox Corporation, in good faith, believes is due and payable.
b. Administrative suspension
When it in the best interest of the state, DES may at any time, and without cause,
suspend the contract or any portion thereof for a period of not more than 30 calendar
days per event by written notice from DES to the Xerox Corporation's Representative.
Xerox Corporation shall resume performance on the next business day following the
30th day of suspension unless an earlier resumption date is specified in the notice of
suspension. If no resumption date was specified in the notice of suspension, the Xerox
Corporation can be demanded and required to resume performance within the 30-
day suspension period by DES providing the Xerox Corporation's Representative
with written notice of such demand.
c. Force majeure
The term "force majeure" means an occurrence that is beyond the control of the
party affected and could not have been avoided by exercising reasonable diligence.
Force majeure shall include acts of war, riots, strikes, fire, floods, windstorms,
epidemics or other similar occurrences.
Exceptions: Except for payment of sums due, neither party shall be liable to the
other or deemed in breach under this contract if, and to the extent that, such party's
performance of this contract is prevented by reason of force majeure.
Notification: If either party is delayed by force majeure, said party shall provide
written notification within 48 hours. The notification shall provide evidence of the
force majeure to the satisfaction of the other party. Such delay shall cease as soon as
practicable and written notification of same shall likewise be provided. So far as
consistent with the Rights Reserved below, the time of completion shall be extended
by contract amendment for a period of time equal to the time that the results or effects
of such delay prevented the delayed party from performing in accordance with this
contract.
Rights reserved: DES reserves the right to authorize an amendment to this contract,
terminate the contract, and/or purchase materials, supplies, equipment and/or
services from the best available source during the time of force majeure, and Xerox
Corporation shall have no recourse against the state.
d. Alternative dispute resolution fees and costs
In the event that the parties engage in arbitration, mediation or any other alternative
dispute resolution forum to resolve a dispute in lieu of litigation, both parties shall
share equally in the cost of the alternative dispute resolution method, including cost
of mediator or arbitrator. In addition, each party shall be responsible for its own
attorneys' fees incurred as a result of the alternative dispute resolution method.
e. Non-exclusive remedies
The remedies provided for in this contract shall not be exclusive but are in addition to
all other remedies available under law.
35. Liquidated damages
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a. Liquidated damages - General
DES and or the purchasers and the Xerox Corporation agree that the liquidated
damages provisions in the contract are a reasonable forecast of the actual damages
that would be suffered by the purchaser in the event of Xerox Corporation's
nonperformance, that such liquidated damages are not a penalty but represent the
reasonable compensation due purchaser in the event of a breach, and that such
liquidated damages will be assessed as set forth herein.
Any delay by Xerox Corporation in meeting the Delivery Date, Installation Date,
maintenance or repair date, or other applicable date set forth in this contract will
interfere with the proper implementation of purchaser's programs and will result in
loss and damage to purchaser.
As it would be impracticable to fix the actual damage sustained in the event of any
such failure(s) to perform, purchaser and Xerox Corporation agree that in the event
of any such failure(s) to perform, the amount of damage which will be sustained will
be the amount set forth in the following subsections and the parties agree that Xerox
Corporation shall pay such amounts as liquidated damages and not as a penalty.
Liquidated damages provided under the terms of this contract are subject to the same
limitations as provided in the section titled Limitation of Liability.
b. Limitation of liability
The parties agree that neither Xerox Corporation, DES nor purchaser shall be liable
to each other, regardless of the form of action, for consequential, incidental, indirect,
or special damages except a claim related to bodily injury or death, or a claim or
demand based on patent, copyright, or other intellectual property right infringement,
in which case liability shall be as set forth elsewhere in this contract. This section
does not modify any sections regarding liquidated damages or any other conditions
as are elsewhere agreed to herein between the parries. The damages specified in the
sections titled Termination for Default and Retention of Records are not
consequential, incidental, indirect, or special damages as that term is used in this
section.
Xerox Corporation, DES and purchaser are not liable for damages arising from
causes beyond their reasonable control and without their fault or negligence. Such
causes may include, but are not restricted to, acts of the public enemy, acts of a
governmental body other than DES or the purchaser acting in either its sovereign or
contractual capacity, war, explosions, fires, floods, earthquakes, epidemics,
quarantine restrictions, strikes, freight embargoes, and unusually severe weather,
but in every case the delays must be beyond the reasonable control and without fault
or negligence of the Xerox Corporation, DES or the purchaser, or their respective
subcontractors.
If delays are caused by a subcontractor without its fault or negligence, Xerox
Corporation shall not be liable for damages for such delays, unless the services to be
performed were obtainable on comparable terms from other sources in sufficient
time to permit Xerox Corporation to meet its required performance schedule.
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Neither party shall be liable for personal injury to the other party or damage to the
other party's property except personal injury or damage to property proximately
caused by such party's respective fault or negligence.
c. Federal funding (if applicable)
In the event that a federally funded acquisition results from this procurement, the
Xerox Corporation may be required to provide additional information (free of
charge) at the request of DES or purchaser. Further, the Xerox Corporation may be
subject to those federal requirements specific to the commodity.
d. Federal restrictions on lobbying
Xerox Corporation certifies that under the requirements of Lobbying Disclosure Act,
2 U.S.C., Section 1601 et seq., no federal appropriated funds have been paid or will
be paid, by or on behalf of the Xerox Corporation, to any person for influencing or
attempting to influence an officer or employee of any agency, a member of Congress,
an officer or employee of Congress, or an employee of a member of Congress in
connection with the awarding of any federal contract, the making of any federal
grant, the making of any federal loan, the entering into of any cooperative
agreement, and the extension, continuation, renewal, amendment, or modification of
any federal contract, grant, loan, or cooperative agreement.
36. Debarment and suspension
Respondent certifies, by submitting this bid or proposal, that neither it nor its
affiliates presently are debarred, suspended, proposed for debarment, declared
ineligible or voluntarily excluded from participation in this procurement/contract by
any government agency. Respondent also agrees to notify DES if its debarment status
changes during the bid process or after receiving notice of contract award, if any. If
respondent cannot certify this statement, attach a written explanation to the bid
response for review.
37. Contract termination
a. Material breach
Xerox Corporation may be terminated for cause by DES, at the sole discretion of
DES, for failing to perform a contractual requirement or for a material breach of any
term or condition. Material breach of a term or condition of the contract may include
but is not limited to:
• Xerox Corporation failure to perform services or deliver materials, supplies,
or equipment by the date required or by an alternate date as mutually agreed
in a written amendment to the contract;
• Xerox Corporation failure to carry out any warranty or fails to perform or
comply with any mandatory provision of the contract;
• Xerox Corporation becomes insolvent or in an unsound financial condition so
as to endanger performance hereunder;
• Xerox Corporation becomes the subject of any proceeding under any law
relating to bankruptcy, insolvency or reorganization, or relief from creditors
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and/or debtors that endangers the Xerox Corporation's proper performance
hereunder;
• Appointment of any receiver, trustee, or similar official for Xerox Corporation
or any of the Xerox Corporation's property and such appointment endangers
the Xerox Corporation's proper performance hereunder;
• A determination that the Xerox Corporation is in violation of federal, state, or
local laws or regulations and that such determination renders the Xerox
Corporation unable to perform any aspect of the contract.
b. Opportunity to cure
In the event that Xerox Corporation fails to perform a contractual requirement or
materially breaches any term or condition, DES will issue a written cure notice. The
Xerox Corporation will have a period of 30 days or time mutually agreed between the
parties in which to cure. Xerox Corporation's opportunity to cure extends to
equipment defects. In the event equipment is damaged or defective, Xerox
Corporation will have up 30 days after receipt of written notice, to replace damaged
or defective equipment. Time allowed for cure shall not diminish or eliminate Xerox
Corporation's liability for damages, or otherwise affect any other remedies available
against Xerox Corporation under the contract or by law.
If the breach remains after Xerox Corporation has been provided the opportunity to
cure, DES may do any one or more of the following:
- Exercise any remedy provided by law;
- Terminate this contract and any related contracts or portions thereof,
- Procure replacements and impose damages as set forth elsewhere in this
contract;
- Impose actual or liquidated damages;
- Suspend or bar Xerox Corporation from receiving future solicitations or other
opportunities;
- Require Xerox Corporation to reimburse the state for any loss or additional
expense incurred as a result of default or failure to satisfactorily perform the
terms of the contract.
c. Termination for cause
In the event DES, in its sole discretion, determines that the Xerox Corporation has
failed to comply with the conditions of this contract in a timely manner or is in
material breach, DES has the right to suspend or terminate this contract, in part or in
whole. DES shall notify the Xerox Corporation in writing of the need to take
corrective action. If corrective action is not taken within 30 calendar days or as
otherwise specified by DES, or if such corrective action is deemed by DES to be
insufficient, the contract may be terminated. DES reserves the right to suspend all or
part of the contract, withhold further payments, or prohibit the Xerox Corporation
from incurring additional obligations of funds during investigation of the alleged
breach and pending corrective action by the Xerox Corporation or a decision by DES
to terminate the contract.
In the event of termination, DES shall have the right to procure for all purchasers any
replacement materials, supplies, services and/or equipment that are the subject of
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this contract on the open market. In addition, the Xerox Corporation shall be liable
for damages as authorized by law including, but not limited to, any price difference
between the original contract and the replacement or cover contract and all
administrative costs directly related to the replacement contract, e.g., cost of the
competitive bidding, mailing, advertising and staff time.
If it is determined that: (1) the Xerox Corporation was not in material breach; or (2)
failure to perform was outside of Xerox Corporation's or its subcontractor's control,
fault or negligence, the termination shall be deemed to be a "termination for
convenience." The rights and remedies of DES and/or the purchaser provided in this
contract are not exclusive and are in addition to any other rights and remedies
provided by law.
d. Termination for convenience
Leases may be bought out and returned to Lessor, although operational, non -
cancelable rentals and capital leases will be subject to a termination charge. The
termination charge for equipment may not exceed the sum of remaining lease
payments. For service/maintenance the termination charge will not exceed four (4)
months of service and supply base charges or 25% of the remaining term's service
and supply charges, whichever is less.
e. Termination for withdrawal of authority
In the event that DES and/or purchaser's authority to perform any of its duties is
withdrawn, reduced, or limited in any way after the commencement of this contract
and prior to normal completion, DES may terminate this contract, in whole or in part,
by seven calendar days written notice, or other appropriate time period, to Xerox
Corporation.
f. Termination for non -allocation of funds
If funds are not allocated to purchaser(s) to continue this contract in any future
period, DES may terminate this contract with seven calendar days written notice, or
other appropriate time period, to Xerox Corporation, or work with Xerox Corporation
to arrive at a mutually acceptable resolution of the situation. Purchaser will not be
obligated to pay any further charges for materials, supplies, services and/or
equipment including the net remainder of agreed -to consecutive periodic payments
remaining unpaid beyond the end of the then -current period. DES and/or purchaser
agree to notify Xerox Corporation in writing of such non -allocation at the earliest
possible time.
No penalty shall accrue to the purchaser in the event this section shall be exercised.
This section shall not be construed to permit DES to terminate this contract in order to
acquire similar materials, supplies, services and/or equipment from a third party.
g. Termination for conflict of interest
DES may terminate this contract by written notice to Xerox Corporation if it is
determined, after due notice and examination, that any party to this contract has
violated Chapter 42.52 RCW,, Ethics in Public Service, or any other laws regarding
ethics in public acquisitions and procurement and performance of contracts. In the
event this contract is so terminated, DES and/or purchaser shall be entitled to pursue
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the same remedies against Xerox Corporation as it could pursue in the event that the
Xerox Corporation breaches this contract.
h. Termination by mutual agreement
DES and the Xerox Corporation may terminate this contract in whole or in part, at any
time, by mutual agreement. Such termination will not apply to in -place equipment.
i. Termination procedure
In addition to the procedures set forth below, if DES terminates this contract, Xerox
Corporation shall follow any procedures DES specifies in the termination notice.
Upon termination of this contract and in addition to any other rights provided in this
contract, DES may require the Xerox Corporation to deliver to the purchaser any
property specifically produced or acquired for the performance of such part of this
contract as has been terminated. The provisions of the "Treatment of Assets" clause
shall apply in such property transfer.
The purchaser shall pay to the Xerox Corporation the agreed upon price, if
separately stated, for completed work and service(s) Accepted by the purchaser, and
the amount agreed upon by the Xerox Corporation and the purchaser for (i)
completed materials, supplies, services rendered and/or equipment for which no
separate price is stated, (ii) partially completed materials, supplies, services
rendered and/or equipment, (iii) other materials, supplies, services rendered and/or
equipment which are Accepted by the purchaser, and (iv) the protection and
preservation of property, unless the termination is for cause, in which case DES and
the purchaser shall determine the extent of the liability of the purchaser. Failure to
agree with such determination shall be a dispute within the meaning of the "Disputes"
clause of this contract. The purchaser may withhold from any amounts due the Xerox
Corporation such sum as DES and purchaser determine to be necessary to protect the
purchaser against potential loss or liability.
The rights and remedies of DES and/or the purchaser provided in this section shall
not be exclusive and are in addition to any other rights and remedies provided by
law or under this contract.
After receipt of a termination notice, and except as otherwise expressly directed in
writing by DES, the Xerox Corporation shall:
• Stop all work, order fulfillment, shipments, and deliveries under the contract
on the date, and to the extent specified, in the notice;
• Place no further orders or subcontracts for materials, services, supplies,
equipment and/or facilities in relation to the contract except as is necessary to
complete or fulfill such portion of the contract that is not terminated;
• Complete or fulfill such portion of the contract that is not terminated in
compliance with all contractual requirements;
• Assign to the purchaser, in the manner, at the times, and to the extent directed
by DES on behalf of the purchaser, all of the rights, title, and interest of the
Xerox Corporation under the orders and subcontracts so terminated, in which
case the purchaser has the right, at its discretion, to settle or pay any or all
claims arising out of the termination of such orders and subcontracts.
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Settle all outstanding liabilities and all claims arising out of such termination of
orders and subcontracts, with the approval or ratification of DES and/or the
purchaser to the extent DES and/or the purchaser may require, which
approval or ratification shall be final for all the purposes of this clause;
Transfer title to the purchaser and deliver in the manner, at the times, and to
the extent directed by DES on behalf of the purchaser any property which, if
the contract had been completed, would have been required to be furnished
to the purchaser;
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Take such action as may be necessary, or as DES and/or the purchaser may direct, for the
protection and preservation of the property related to this contract which is in the
possession of Xerox Corporation and in which DES and/or the purchaser has or may
acquire an interest.
IN WITNESS WHEREOF, the parties have executed this Addendum as of the date of execution by
both parties below.
Participating State:
Washington
Contractor:
Xerox Corporation, INC
By:
By:
Name: Neva Peckham
Name: David Farrell
Title: Contracts Specialist
Title: Finance Direct r
Date: C 2! —'
Date: < <
Name: Scott Smith
Title: State Procurement Manager - IT
Date:
-
Name: Christine Warnock
��---'
Title: Washington NASPO ValuePoint Director
Date:
z�
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Attachment O
MODEL SI?,RVICE LEVEL AGREEMENT (SLA)
The purpose of (his model Service Level Agreement (SLA) is to provide the Pailicipating Entities and Awarded
Vendors with an example cif a guarantee of service levels with penalties for failure to perform. This model SLA
utilizes a scorecard method for the Cuslomer level SLA and flat rate penalties for the Participating Entity.
Awarded Vendors are to negotiate their own SLA with each Participating Entity at time of initiating the
Participating Addendum. All parties are cautioned to utilize measurement~ that are reportable and measurable,
1. Customer Level SLA
1.1 Purpose
The purpose of this addendum is to define service levels; penalties for the performance of the
service levels -,as well its provide the Customer with a defined replacement process l'or
equipment performing below expectations.
1.2 Customer Service Level Agreement
Vendor agrees to maintain the following service levels defined below as targets:
Performance Criteria
Target Level
Average Uptime
96�0 or Better
Average On -Site Response Time
4 Hours or Less
First Time Fix
80%a of all service calls or better
These service levels will be measured on a quarterly basis between Vendor and the State.
1.3 Calculation of Service Level Points
Once per quarter, Vendor will produce reporting to be measured against the Service Level
Agreement and points will be assigned according to the following chart. These points will be
added to produce a total Service Level score. This score will be used to determine the
subsequent penalty according to the following schedule where the penalty can be up to 4% of
the previous quarter's service and supplies billing (expressed as a negative %).
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Below
Below
Below
Below
Target Level
Target 1
Target 2
Target 3
Target 4
97.9% -
95.9% -
94.9% -
93.9% or
Average Uptime
98% or Higher
96%
94%
94%
lower
Possible Points
4
3
2
2
0
Below
Below
Below
Below
Target Level
Target 1
Target 2
Target 3
Target 4
Average On -Site Response Time
7.1 or
(in Hours) .
4 or Less
4.1 — 5
5.1 - 6
6.1 - 7
more
Possible Points
4
3
2
2
0
Below
Below
Below
Below
Target Level
Target 1
Target 2
Target 3
Target 4
79.9% -
69.9%-
59.9% -
Less than
First Time Fix
80% or Higher
70%
60%
50%
50%
Possible Points
14 1
3
2 1
2 1
0
1.4 Penalty Level
Below
Below
Below
Below
Target Level
Target 1
Target 2
Target 3
Target 4
Total Score
12 — 10
9-7
6-4
3-1
0
Penalty/Award as a percentage of
quarterly service and supplies
0%
-2.5%
-3.0%
=3.5%
-4.0%
billings
Vendor agrees that the penalty shall be awarded to the Customer as a credit provided, however,
that the credit shall be applied solely against meter/impression charges reflected on subsequent
invoices until the credit has been completely applied. If the Order associated with the SLA has
expired or has been terminated, any remaining credit will be forfeited.
1.5 Equipment Performance
Vendor guarantees each machine specified within any maintenance agreement will perform to
either a) the monthly copies between service calls as measured by machine on a quarterly basis
by group and segment listed below and/or b) the monthly uptime as measured by machine on a
quarterly basis by segment listed below.
Group
Devices
Segments
Quarterly Uptime
A
Copiers Black & White
All
95%
B
Copiers Color
All
95%
C
Wide Format Devices
All
95%
D
Printers (Color and Black &White)
All
95%
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C
Digital Duplicators
All
95%
F
Scanners
All
95%
If any unit fails to maintain this level of performance between calls and or the monthly uptime,
excluding service calls caused by operator error that system will be subject to replacement at the
Customers discretion on a like -for -like basis with then current technology. Prior to installing a
substitute product, supplier will be allowed 90 days to remedy any quality or reliability issues.
A designated factory authorized technician must certify each unit's ability to produce acceptable
impressions with acceptable copies between calls or uptime. The guarantee will remain in
effect for the term of the contract or up to five (5) years from the date of purchase/lease,
provided the equipment has not been subjected to abuse or neglect and has been continuously
maintained by Xerox under a Xerox maintenance agreement. This replacement policy will
remain in effect for the term of the contract and is subject to the Customer remaining current
with supplier's payment requirements.
1.6 Additional Vendor Guarantees
1.6.1 Training — On -going training as requested by the Customer to be performed within two
(2) weeks of requested date for on -site training and two (2) hours for phone/technical
support. A penalty of $50 per incident that does not meet the turnaround time specified
above to be credited on the next service bill.
1.6.2 Loaner Unit/Backup Production — Vendor agrees to provide a loaner or to measure
uptime on an individual unit basis, with the following accepted exclusive remedy:
i. Vendor agrees the vast majority of on -site equipment repairs will be completed
within 12 business hours. However, in the unlikely event that the repair time
exceeds 24 consecutive working hours, Xerox agrees as Customer's exclusive
remedy, to provide a loaner if available; or
ii. At the Customer's option, to issue a service credit, equal to 1/30" of the
equipment's monthly maintenance component for each day the equipment is
inoperable and is not available for Customer's use, beginning with the day of the
Customer's initial service call. Such credit may be applied against future meter
charges only. Under no circumstance will any credits reduce the Monthly
Minimum Charge. If an order associated with the SLA has expired or has been
terminated, any remaining credit will be forfeited.
1.6.3 Invoicing — Vendor shall maintain timely, accurate invoicing, less service run
impressions, as defined below. Failure on the vendor's part to maintain these levels as
defined shall result in a $50.00 per instance credit on the following invoice.
Measurable
Service Level
Timely Invoicing
Invoices will be submitted no later than the 25'h of the month
immediately following the close of a billing period.
Accurate Invoicing
Invoices do not require any credits for miss -billing
Service Impressions
Vendor will credit all service run impressions within the same
billing cycle
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WASHINGTON PARTICIPATING ADDENDUM 06614
NASPO ValuePoint MULTIFUNCTION COPIERS AND RELATED SOFTWARE 3091
2. Reporting and Billing
2.1 Timely Reporting — Vendor shall produce reporting for the State within 30 days of the closing
of the reporting period. Failure to do so will result in a penalty of $5.00 per work day beyond
the 30 day period.
2.2 Timely Payment of Administrative Fees — Vendor shall produce payment for any State
Specific Administrative Fee within 30 days of the closing of the reporting period. Failure to do
so will result in a penalty of $5.00 per work day beyond the 30 day period.
2.3 Accuracy of Reporting — The State may request at any point proof of the reporting accuracy
through the data set supporting the reporting. If the State has reason to believe that multiple and
systemic reporting errors exist, that cannot be corrected to the State's satisfaction; the State may
require an audit by a third party. If errors are found, the Successful vendor must reimburse the
State for the cost of the auditor as well as correcting any administrative fee errors.
2.4 Accuracy of Billing —The State may request at any point proof of the billing accuracy through
the data set supporting the billing. If the State has reason to believe that multiple and systemic
billing errors exist, that cannot be corrected to the State's satisfaction; the State may require an
audit by a third party. If errors are found, the Successful vendor must reimburse the State for
the cost of the auditor as well as correcting any billing errors.
2.5 Penalties — All penalties under this, section two (2) of the Service Level Agreement, shall be
payable to the State.
Page 35 of 38