VA-191121-HP

Information Technology

Hardware and Maintenance with Lease- Rental Options Contract

between

The Virginia Information Technologies Agency on behalf of

The Commonwealth of Virginia

and

HP Inc.

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INFORMATION TECHNOLOGY HARDWARE AND MAINTENANCE WITH LEASE-RENTAL

OPTIONS CONTRACT TABLE OF CONTENTS

1. PURPOSE AND SCOPE 6

2. DEFINITIONS 6 A. Acceptance 6 B. Agent 6 C. Application 6 D. Authorized Users 6 E. Claim 6 F. Code 6 G. Commercial Off-The-Shelf (“COTS”) Software 7 H. Commonwealth 7 I. Commonwealth Indemnified Parties 7 J. Component 7 K. Computer Virus 7 L. Confidential Information 7 M. Consumables 7 N. Contract 7 O. Contractor 7 P. Deliverable 7 Q. Early Termination Fees 8 R. Effective Date 8 S. Federal Tax Information (“FTI”) 8 T. Industrial Funding Adjustment (“IFA”) 8 U. Lease Agreement 8 V. Lease Term 8 W. Maintenance Coverage Period (“MCP”) 8 X. Maintenance Level 8 Y. Maintenance Services 9 Z. Managed Print Services (“MPS”) 9 AA. Multifunction Device (“MFD”) 9 BB. Operating Condition 9 CC. Party 9 DD. Performance Changes 9 EE. Preventative Maintenance 9 FF. Product 9 GG. Prompt Payment Act 9 HH. Realized Sales 9 II. Receipt 9 JJ. Rental Agreement 9 KK. Rental Services 10 LL. Rental Term 10 MM. Requirements 10 NN. Response Time 10 OO. Safety Changes 10 PP. Services 10 QQ. Software 10 RR. Software Publisher 10 SS. Solution 10 TT. Statement of Work (“SOW”) 11 UU. Subcontractor 11 VV. Supplier 11 WW. Supplier Personnel 11 XX. Supplier Reporting System (“SRS”) 11

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YY. SWaM 11 ZZ. System Software 11 AAA. Term 11 BBB. Update 11 CCC. VITA 11 DDD. Warranty Period 11 EEE. Intellectual Property Rights 11

3. TERM AND TERMINATION 12 A. Contract Term 12 B. Termination for Convenience 12 C. Termination for Breach 12 D. Termination for Non-Appropriation of Funds 13 E. Effect of Termination 13 Termination by Supplier 13 F. Transition of Services 13 G. Contract Kick-Off Meeting 13 H. Contract Closeout 13

4. PERSONNEL 13 A. Selection and Management of Supplier Personnel 13 B. Subcontractors 14

5. NEW TECHNOLOGY 14 A. Access to New Technology 14 B. New Service Offerings Not Available from Supplier 14

6. GENERAL WARRANTY 14 A. Ownership 15 B. Coverage Period 15 C. Performance Warranty 15 D. Documentation and Deliverables 15 E. Malicious Code 15 F. Open Source 16 G. Supplier’s Viability 16 H. Supplier’s Past Experience 16

7. SCOPE OF USE 16

8. SYSTEM SOFTWARE LICENSE 16 A. License Grant 16 B. Authorized User Compliance 17 C. No Subsequent, Unilateral Modifications of Terms by Supplier (“Shrink-Wrap”) 17 D. Reservation of Rights 17

9. DELIVERY AND INSTALLATION 17 A. Delivery Procedure 17 B. Late Delivery 17 C. Product Trade-in and Upgrade 18 D. Product Installation 18

10. ACCEPTANCE 18 A. Product Acceptance 18 B. Cure Period 18

11. PERFORMANCE LEVELS FOR PURCHASED AND RENTED PRODUCTS 18 A. Purchased, Leased or Rented Product 18 A. Return of Product 19

12. SERVICES FOR PURCHASED AND RENTED PRODUCTS 19 A. Service Offerings 19 B. Performance of Maintenance Services or Rental Services 19 C. Defects or Malfunctions 20

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13. PRODUCT SUPPORT AND ADDITIONAL SERVICES 20 A. Authorized User or Third Party Support 20 B. Engineering Changes and Product Modification 20 C. Parts and Maintenance Support 20 D. Inventory Record 20 E. Product Service Record 21 F. Product Discontinuation 21 G. Additional Services 21

14. WARRANTY AND REMEDY OF PRODUCT 21 A. Compatibility 21 B. Product 21 C. Warranty Services 22

15. MAINTENANCE SERVICES 24 A. Ordering 24 B. Renewal 24 C. Offered Services 24 D. Services for MCP, Lease Term, or Rental Term 26

16. RENEWAL OF LEASE OR RENTAL PRODUCT 26

17. HARDWARE-SPECIFIC PROVISIONS 26 A. Trial (Demonstration) Period for MFD’s 26

18. FEES, ORDERING, AND PAYMENT PROCEDURE 27 A. Fees and Charges 27 B. Reproduction Rights for Supplier-Provided Software 27 C. Demonstration and/or Evaluation 27 D. Supplier Quote and Request for Quote 27 E. Competitive Request for Quotes 27 F. Ordering 27 G. Orders for Lease-Rental Products or MPS 28 H. Orders for Lease-Purchase Products 28 I. Orders that Include Trade-in Products 29 J. Statement of Work 29 K. Invoice Procedures 29 L. Purchase Payment Terms 30 M. Payment for Lease or Rental Products or MPS 30 N. Additional Leasing Terms for Wide Format, High Speed Printers 30 O. Reimbursement of Expenses 31 P. Disputed Charges 32

19. SUPPLIER SPONSORED PROMOTIONS 32 20. REPORTING 32

A. Amount of Realized Sales 32 B. Small Business Procurement and Subcontracting Spend 33

21. POLICIES AND PROCEDURES GUIDE 33

22. TRAINING AND DOCUMENTATION 33 A. Training 33 B. Documentation 33 C. Training for Non-MFDs 34

23. AUTHORIZED USER SELF-SUFFICIENCY 34

24. COMPETITIVE PRICING 34

25. CONFIDENTIALITY 34 A. Treatment and Protection 34 B. Exclusions 34 C. Return or Destruction 35 D. Confidentiality Statement 35

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E. Freedom of Information Act Acknowledgement 35

26. INDEMNIFICATION AND LIABILITY 35 A. Indemnification Generally 35 B. Defense of Claims 35 C. Duty to Replace or Reimburse 35 D. Supplier Dispute of Obligation to Indemnify 36

27. LIABILITY 36 A. Supplier Liability 36 B. Limitation of Liability 36

28. INSURANCE 36

29. SECURITY COMPLIANCE 36

30. IMPORT/EXPORT 37

31. BANKRUPTCY 37

32. GENERAL PROVISIONS 37 A. Relationship Between VITA and Authorized User and Supplier 37 B. Licensing Within the Commonwealth 38 C. Incorporated Contractual Provisions 38 D. Compliance with the Federal Lobbying Act 38 E. Ethics in Public Contracting 38 F. Governing Law 38 G. Dispute Resolution 39 H. Assignment 39 I. Severability 39 J. Survival 39 K. Force Majeure 39 L. No Waiver 40 M. Remedies 40 N. Right to Audit 40 O. Taxes 40 P. Currency 40 Q. Advertising and Use of Proprietary Marks 40 R. Notices 40 S. Offers of Employment 41 T. Contract Administration 41 U. Captions 41 V. Entire Contract 41 W. Order of Precedence 42 X. Counterparts and Electronic Signatures 42 Y. Opportunity to Review 42

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INFORMATION TECHNOLOGY HARDWARE AND MAINTENANCE WITH LEASE-RENTAL OPTIONS CONTRACT

THIS INFORMATION TECHNOLOGY Hardware and Maintenance with Lease-Rental Options CONTRACT (“Contract”) is entered into by and between the Virginia Information Technologies Agency (“VITA”), pursuant to § 2.2-2012 of the Code of Virginia (“Code”) and on behalf of the Commonwealth of Virginia (“Commonwealth”), and HP Inc. (“Supplier”), a Delaware corporation headquartered at 1501 Page Mill Road, Palo Alto, CA, 94304, to be effective as of Contract Award Date November 21, 2019 (“Effective Date”).

1. PURPOSE AND SCOPE VITA, on behalf of the Commonwealth, is seeking services that will provide purchase/rental/lease of print devices, related Software, accessories and supplies. This contract will also allow for Services and Maintenance for devices and Managed Print Services. This Contract sets forth the terms and conditions under which Supplier shall provide Print Devices and Managed Print Services to the Authorized Users.

2. DEFINITIONS

A. Acceptance Successful delivery of Products (transactional purchases) and performance of Services (including Managed Print Services as defined in Section 7 below) by the Supplier of its contractual commitments at the location(s) designated in the applicable Statement of Work (“SOW”) or order Should the Authorized User fail to provide Supplier written notice of the failure of a Product to perform according to the Requirements within 30 calendar days of delivery, the Product will be deemed Accepted. Testing of Products after delivery that results in non-performance will be subject to the Product warranty provisions whereby Supplier will provide conforming Products within a reasonable timeframe.

B. Agent Any third party independent agent of any Authorized User.

C. Application The software programs in object code and other related data, including intellectual data, proprietary information and Documentation contained and applicable to Licensed Services hosted and supported by Supplier under the Contract, as described in Exhibit A or as described in any SOW or order issued under the Contract, including any Updates, enhancements, and replacements to the Application.

D. Authorized Users All public bodies, including VITA, as defined by Code § 2.2-4301 and referenced by Code §§ 2.2- 4304 and 2.2-2012, authorized to participate in the procurement of information technology under this Contract. Authorized Users include private institutions of higher education that are listed at: http://www.cicv.org/Our-Colleges/Profiles.aspx.

E. Claim Any and all losses, damages, claims, demands, proceedings, suits and actions, including any related liabilities, obligations, losses, damages, assessments, fines, penalties (whether criminal or civil), judgments, settlements, expenses (including attorneys’ and accountants’ fees and disbursements), and costs. Collectively, “Claims”.

F. Code The Code of Virginia, as amended, and all laws in the titles, chapters, articles and sections contained therein.

http://www.cicv.org/Our-Colleges/Profiles.aspx

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G. Commercial Off-The-Shelf (“COTS”) Software Software that is general in nature, not broad enterprise applications, which can be purchased and used immediately “as is,” without modification, in the same form in which it was sold in the commercial marketplace. Standard options are not considered modifications.

H. Commonwealth The Commonwealth of Virginia.

I. Commonwealth Indemnified Parties Means, collectively and individually, the Commonwealth, VITA, any Authorized User, their officers, directors, agents, and employees.

J. Component Any part or service of the Solution, Software, or Deliverable delivered by Supplier under this Contract, including under all orders or SOWs.

K. Computer Virus Any malicious code, program, or other internal component (e.g., computer virus, computer worm, computer time bomb, or similar component), which could damage, destroy, alter or disrupt any computer program, firmware, or hardware or which could, in any manner, reveal, damage, destroy, alter or disrupt any data or other information accessed through or processed by such software in any manner.

L. Confidential Information Any confidential or proprietary information of a Party that is disclosed in any manner, including oral or written, graphic, machine readable or other tangible form, to any other Party in connection with or as a result of discussions related to this Contract or any order or SOW issued hereunder, and which at the time of disclosure either:

(i) is marked as being “Confidential” or “Proprietary”;

(ii) is otherwise reasonably identifiable as the confidential or proprietary information of the disclosing Party; or

(iii) under the circumstances of disclosure should reasonably be considered as confidential or proprietary information of the disclosing Party; or

(iv) is identifiable or should be reasonably considered as protected health information;

(v) any personally identifiable information, including information about VITA’s employees, contractors, and customers, that is protected by statute or other applicable law.

M. Consumables Toner, drums, fuser agent, developer, ink cartridges, maintenance kits, feeder rollers, transfer kits, waste toner boxes and cleaning kits, and other products which may be needed for the operation of the devices provided by the Supplier on behalf of the Authorized User in order to fulfill the services.

N. Contract This agreement, including all exhibits, schedules, and attachments, including any modifications or amendments thereto, entered into by VITA and Supplier.

O. Contractor The use of the term “Contractor” in any of the following terms, conditions, links, or IRS Publication 1075 means the same as the term “Supplier” as defined and used in this Contract.

P. Deliverable Tangible work product resulting from the performance of Services (excluding Products and Software) that includes, without limitation, reports, presentations, project organization collateral, communication and escalation plan/management process, training plans/materials, schedules, etc. The embodiment of the work performed by Supplier or any combination of Services,

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Maintenance Services, Licensed Services, Application, Solution, Solution Component, Product, Supplier Product, and Updates, including any and all components, provided or delivered by the Supplier in fulfilling its obligations under the Contract or as identified in the applicable SOW or order. Documentation

Those materials (including user manuals, training materials, guides, product descriptions, technical manuals, product specifications, supporting materials and Updates) detailing the information and instructions needed in order to allow any Authorized User and its agents to make productive use of the Application, Software, Solution, Product, Service, Licensed Services or Deliverable, including any and all components, and to implement and develop self-sufficiency with regard to the Application, Software, Solution, Product, Service, Licensed Services or Deliverable, including any and all components, provided by Supplier in fulfilling its obligations under the Contract or as may be specified in any SOW or order issued pursuant to this Contract.

Q. Early Termination Fees Wherever there is an early termination of a term (sow term, device term, or software product term) (i) by customer for convenience (including non-appropriations) or (ii) by HP for an uncured material breach of a SOW by Authorized User for non-payment, HP will invoice and customer may have to pay the early termination fees in Appendix A – services and pricing statement of work (SOW).

R. Effective Date The date this Contract goes into full force and effect as set forth in the preamble of this Contract above.

S. Federal Tax Information (“FTI”) FTI consists of federal tax returns and return information (and information derived from it) that is in the possession or control of any Authorized User, which is covered by the confidentiality protections of the Internal Revenue Code (“IRC”) and subject to the IRC § 6103(p)(4) safeguarding requirements including IRS oversight. FTI is categorized as “Sensitive” but “Unclassified” information and may contain personally identifiable information.

T. Industrial Funding Adjustment (“IFA”) The fee paid by Supplier to VITA to compensate VITA for the cost of procuring and managing the Contract.

U. Lease Agreement The signed agreement between an Authorized User and the Supplier for the lease of Product(s), pursuant to the terms and conditions of this Contract.

V. Lease Term The fixed, non-cancelable period of time that Supplier leases a Product to an Authorized User., Each Lease Term will include the initial, agreed-to period of time plus all periods (i) covered by bargain renewal options; (ii) for which failure to renew the lease would impose a penalty sufficient to make the renewal reasonably assured; (iii) covered by ordinary renewal options during which the Supplier guarantees the Authorized User's debt with respect to the leased property; (iv) covered by ordinary renewal portions up to the date a bargain purchase option becomes exercisable; and (v) renewals or extensions of the lease, which are at the Authorized User's option.

W. Maintenance Coverage Period (“MCP”) The period of time during which Supplier is obligated to provide Maintenance Services for a unit of Software or Product.

X. Maintenance Level The defined parameters of Maintenance Services, including the times during which, and time- frames in which, Supplier shall respond to a request for Maintenance Services. The available Maintenance Levels are defined in Exhibit B to this Contract or as defined in any Statement of Work or order issued pursuant to this Contract. The actual Maintenance Level for a unit of

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Software or Product will be set forth in the signed order or Statement of Work for Maintenance Services of that Software or Product referencing this Contract.

Y. Maintenance Services Those services, preventive and remedial, provided or performed by Supplier under the Contract or for an Authorized User in order to ensure continued operation of the Product, Hardware, or Software, including Software Updates. Maintenance Services include support services.

Z. Managed Print Services (“MPS”) “Managed Print Services” or “MPS” means the imaging and printing services as identified in the Statement of Work (SOW). It represents the management, Service, and support of the Authorized User’s entire enterprise and output infrastructure or printed materials, with the objective of creating a solution that improves the print process and reduces the expense of printed material, which is memorialized in an MPS SOW. Installation, set-up of equipment, and maintenance et. Al. are included in the services.

AA. Multifunction Device (“MFD”) [[optional, delete if not applicable]] A device which includes various capabilities, including by not limited to, copying, printing, faxing and scanning as determined by the applicable original equipment manufacturers specifications.

BB. Operating Condition The condition that allows the Software or Product to function in a normal, acceptable working manner, as designed by the Software or Product manufacturer in accordance with the Software or Product published specifications, and, if applicable, in compliance with any service levels established in the Contract or any SOW or order issued under the Contract.

CC. Party Any combination of Supplier, VITA, or the Commonwealth. In an SOW, any Authorized User is also a “Party”. Collectively, “Parties”.

DD. Performance Changes Any engineering changes that affect the ability of the Product(s) provided by Supplier pursuant to this Contract to meet the published specifications.

EE. Preventative Maintenance Maintenance that can be performed in advance of an actual problem or malfunction through the monitoring of internal diagnostic reports generated automatically by print output devices.

FF. Product Hardware, peripherals, and any other equipment, including the System Software, all upgrades, all applicable user documentation, and related accessories as set forth on Exhibit B or as specified in any Statement of Work or order provided pursuant to the Contract.

GG. Prompt Payment Act The Virginia Prompt Payment Act, Code §§ 2.2-4347 et seq., as amended.

HH. Realized Sales Sales under this Contract for which Supplier has received full and complete payment from an Authorized User.

II. Receipt An Authorized User has physically received or has unfettered access to any Deliverable at the correct “ship-to” location.

JJ. Rental Agreement The signed agreement between an Authorized User and the Supplier for the rental of a MFD, Product, or Software, as well as any related accessories, pursuant to the terms and conditions of this Contract.

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KK. Rental Services Those Services, preventive and remedial, including support services, performed by Supplier at an Authorized User’s request in order to ensure continued operation of the rented Product. Unless otherwise specified in the Contract, Rental Services include, but are not limited to: telephone support, next business day on-site repair and other maintenance and repair services as required. In the case of printers, Rental Services include the provision of toner.

LL. Rental Term The period of time during which Supplier rents a unit of Product to an Authorized User. The Rental Term will begin at Acceptance and last for the period of months agreed to in the applicable order or SOW, plus and any extension(s) or renewal(s) allowable pursuant to this Contract, unless canceled or terminated in accordance with this Contract.

MM. Requirements The functional, performance, operational, testing, and other parameters and characteristics of the Product, Software, Solution, Service(s), Application and Licensed Services and Deliverables, which meet Supplier’s published Specifications, including any and all components, as authorized by any combination of the Contract, as set forth in Exhibit A or the applicable SOW or order, and such other parameters, characteristics, or performance standards that may be agreed upon in writing by the Parties.

NN. Response Time The time between Supplier’s receipt of Authorized User’s request for Maintenance and the time Supplier has notified Authorized User that it has commenced repair and resolution of the reported problem.

OO. Safety Changes Any engineering changes that affect the safety of the Product(s) provided pursuant to this Contract.

PP. Services Any work performed or service provided by Supplier – including the design and development of software and modifications, software updates, solution, products, implementation, installation, maintenance, support, testing, training, or other provision – in fulfilling its obligations under the Contract or, as applicable, any Statement of Work or order authorized by the scope of the Contract. “Services” includes all functions, responsibilities, activities, and tasks of the Supplier that are required by the Contract or any order or Statement of Work. This definition does not include Licensed Services.

QQ. Software The programs and code provided by Supplier under the Contract or any order or SOW issued hereunder as a component(s) of any Deliverable or component of any Solution, and any subsequent modification of such programs and code, excluding Work Product. For COTS Software, “Software” means the programs and code, and any subsequent releases, provided by Supplier under this Contract as set forth in Exhibit B or as described on Supplier's US and International price lists in effect at time of Authorized User's placement of order or Statement of Work. If this Contract is for Software Maintenance, “Software” also includes the programs and code provided by Supplier under the Contact or any order or SOW issued pursuant to the Contract in the form of Software Updates.

RR. Software Publisher The third-party licensor of the Software, other than the Supplier, provided by Supplier under this Contract.

SS. Solution The Supplier’s contractually committed technical approach for solving an information technology business objective and associated Requirements as defined and authorized by the scope of the Contract or any order or Statement of Work issued under the Contract. Solution means all Supplier and Supplier’s third-party providers’ components making up the Solution, including but

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not limited to Software, Product, configuration design, implementation, Supplier-developed interfaces, Services.

TT. Statement of Work (“SOW”) Any document in substantially the form of Exhibit C (describing the deliverables, due dates, assignment duration, Acceptance criteria, and payment obligations for a specific project, engagement, or assignment that Supplier commits to provide to an Authorized User, which, upon signing by both Parties, is made a part of the Contract.

UU. Subcontractor Any group or person that furnishes supplies or services to the Commonwealth, VITA, or any Authorized User on behalf of Supplier or another Subcontractor in performance of this Contract.

VV. Supplier The entity set forth in the preamble of this Contract and any entity that controls, is controlled by, or is under common control with Supplier.

WW. Supplier Personnel Any and all of Supplier’s employees, agents, contractors, or subcontractors performing under this Contract.

XX. Supplier Reporting System (“SRS”) The VITA system used by Supplier to fulfill reporting obligations under this Contract. The SRS can be accessed at the following URL(s): http://vita2.virginia.gov/procurement/srs/, or any successor URL(s).

YY. SWaM Any entity certified by the Commonwealth’s Department of Small Business and Supplier Diversity as a small, women-owned, minority-owned, or service disabled veteran-owned business, as defined in Code §§ 2.2-2000.1 and 2.2-4310, or a certified micro business as defined in Executive Order Number 20 (2014).

ZZ. System Software The operating system code, including software, firmware and microcode, (object code version) for each Product, including any subsequent revisions, as well as any applicable documentation.

AAA. Term The period of time beginning with the Effective Date and lasting for the length of time, including any extension periods, set forth in the “Contract Term” section below during which this Contract will be in full force and effect.

BBB. Update Any update, modification or new release of the Software, System Software, Application, Documentation, or Supplier Product that Supplier makes generally available to its customers at no additional cost. Software Updates include patches, fixes, upgrades, enhancements, improvements, or access mode, including without limitation additional capabilities to or otherwise improve the functionality, increase the speed, efficiency, or base operation of the Software.

CCC. VITA The Virginia Information Technologies Agency, an agency of the Commonwealth of Virginia pursuant to Chapter 20.1 (§§ 2.2-2005 et seq.) of the Code, or any successor agency.

DDD. Warranty Period The period of time during which Supplier is obligated to provide maintenance for a unit of Software or Product.

EEE. Intellectual Property Rights ,

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No transfer of ownership of any intellectual property will occur under this Contract. Authorized User grants Supplier a non-exclusive, worldwide, royalty-free right and license to any intellectual property that is necessary for Supplier and its designees to perform the ordered services. If Deliverables are created by Supplier specifically for Authorized User and identified as such in the Documentation, Supplier hereby grants Authorized User a worldwide, non-exclusive, fully paid, royalty-free license to reproduce and use copies of the Deliverables internally.

EEE. Specifications Technical information about Products published in Supplier Product manuals, user documentation, and technical data sheets in effect on the date Supplier delivers Products to Authorized Users.

FFF. Managed Print Services (“MPS”). The management, Service, and support of the Authorized User’s entire enterprise and output infrastructure of printed materials, with the objective of creating a solution that improves the print process and reduces the expense of printed material, which is memorialized in an MPS Statement of Work.

3. TERM AND TERMINATION

A. Contract Term This Contract is effective and legally binding as of the Effective Date and, unless terminated as provided for in this section, will be effective and legally binding for a period of three (3) years (“Term”). VITA, in its sole discretion, may extend this Contract for up to three (3) additional one (1) year periods after the expiration of the initial Term. VITA will issue a written notification to the Supplier stating VITA’s intention to exercise the extension period no less than 30 calendar days prior to the expiration of any current term. In addition, performance of an order or SOW issued during the Term of this Contract may survive the expiration of the Term of this Contract, in which case all contractual terms and conditions required for the operation of such order or SOW will remain in full force and effect until all of Supplier's obligations pursuant to such order or SOW have met the final Acceptance criteria of the applicable Authorized User.

B. Termination for Convenience VITA may terminate this Contract, in whole or in part, or any SOW issued hereunder, in whole or part. Except for orders or SOWs placed in conjunction with a lease Agreement or Rental Agreement, an Authorized User may terminate an order or SOW, in whole or in part, at any time and for any reason upon not less than 30 calendar days prior written notice to Supplier. Any termination under this provision will not affect the rights and obligations attending any order or SOW outstanding at the termination date.

C. Termination for Breach :In the event of breach by the Supplier, VITA will have the right to terminate this Contract, in whole or in part, and an Authorized User may terminate an order or SOW issued hereunder, in whole or in part. Supplier will be deemed in breach in the event that Supplier fails to meet any material obligation set forth in this Contract or in any order or SOW issued hereunder. Any termination under the provisions of this section will be deemed a “Termination for Breach”.If VITA deems the Supplier to be in breach, VITA shall provide Supplier with notice of breach and allow Supplier 15 business days to cure the breach. If Supplier fails to cure the breach as noted, VITA may immediately terminate this Contract or any order or SOW issued pursuant to this Contract, in whole or in part. If an Authorized User deems the Supplier to be in breach of an order or SOW, that Authorized User shall provide Supplier with notice of breach and allow Supplier 15 business days to cure the breach. If Supplier fails to cure the breach as noted, the Authorized User may immediately terminate its order or SOW, in whole or in part. In addition, if Supplier is found by a court of competent jurisdiction to be in violation of or to have violated 31 U.S.C. § 1352, or if Supplier becomes a party excluded from Federal Procurement and Nonprocurement Programs, VITA may immediately terminate this Contract, in whole or in part, for breach, and VITA shall provide written notice to Supplier of such termination. Supplier shall provide prompt written notice to VITA if Supplier is charged with violation of 31 U.S.C. § 1352, or if federal debarment proceedings are instituted against Supplier.

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D. Termination for Non-Appropriation of Funds All payment obligations from public bodies under this Contract are subject to the availability of legislative appropriations at the federal, state, or local level for this purpose. In the event of non- appropriation of funds, irrespective of the source of funds, for the items under this Contract, VITA may terminate this Contract, in whole or in part, or any order or SOW, in whole or in part, or an Authorized User may terminate an order or SOW, in whole or in part, for those goods or services for which funds have not been appropriated. Written notice will be provided to the Supplier as soon as possible after legislative action is completed. Supplier will be paid for Products shipped, Services performed, and Deliverables accepted through the date of termination.

E. Effect of Termination With the exception of early termination fees as described in the Statement of Work, upon termination, neither the Commonwealth, nor VITA, nor any Authorized User will have any future liability except for Deliverables accepted by an Authorized User or Services (including any applicable Licensed Services and Maintenance Services) rendered by Supplier and accepted by the Authorized User prior to the termination date.

IN THE EVENT OF A TERMINATION FOR BREACH, SUPPLIER SHALL ACCEPT RETURN OF ANY PRODUCT THAT WAS NOT ACCEPTED BY THE AUTHORIZED USER, AND SUPPLIER SHALL REFUND ANY MONIES PAOD BY ANY AUTHORIZD USER FOR THE UNACCEPTED PRODCUT DELIVERABLES.

Termination by Supplier Failure by an Authorized User to make timely payments owed to Supplier for its performance under this Contract will constitute a breach by that Authorized User. Should this occur, Supplier may suspend or cancel performance of open orders or Services if Authorized User fails to make payments when due. Supplier’s remedy for a breach also includes the remedies set forth in Code § 2.2-4363 and the “Remedies” section of this Contract below.

F. Transition of Services Transition Services are only available for MPS Statements of Work. Upon request, the price will be quoted and the terms mutually negotiated.

G. Contract Kick-Off Meeting Within 30 calendar days of the Effective Date, Supplier may be required to attend a contract orientation meeting, along with the VITA contract manager/administrator, Authorized User project manager(s) or authorized representative(s), and any other significant stakeholders who have a part in the successful performance of this Contract. The purpose of this meeting will be to review all contractual obligations for both parties, all administrative and reporting requirements, and to discuss any other relationship, responsibility, communication and performance criteria set forth in the Contract.

H. Contract Closeout Prior to the Contract’s expiration date, Supplier may be provided contract closeout documentation by VITA. If contract closeout documentation is provided, then Supplier shall complete, sign, and return to VITA Supply Chain Management any required documentation within 30 calendar days of receipt to ensure completion of closeout administration and to maintain a positive performance reputation with the Commonwealth. Any required closeout documentation not received within 30 calendar days of Supplier’s receipt of the Commonwealth's request will be documented in the contract file as Supplier non-compliance. Supplier’s non-compliance may affect any pending payments due to the Supplier, including final payment, until the documentation is returned to VITA.

4. PERSONNEL

A. Selection and Management of Supplier Personnel Supplier shall ensure that all Supplier Personnel performing under this Contract are competent and knowledgeable of the contractual arrangements and the applicable order or SOW between Authorized User and Supplier. Supplier acknowledges that Supplier is the employer of all Supplier employees and shall have the sole responsibility to supervise, counsel, discipline, review,

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evaluate, set the pay rates of, provide (to the extent required by law) health care and other benefits for, and terminate the employment of Supplier employees. Supplier shall be solely responsible for the supervision and conduct of Supplier Personnel, including all acts, omissions, gross negligence, and willful misconduct of Supplier Personnel. Additionally, Supplier shall ensure that Supplier Personnel comply with the appropriate Authorized User’s site security, information security and personnel conduct rules, which shall be provided by Authorized Users in writing, as well as applicable federal, state and local laws, including export regulations. Authorized User reserves the right to require the immediate removal from such Authorized User’s premises of any Supplier Personnel whom such Authorized User determines based on good cause their conduct has resulted in a security or safety breach.

Key Personnel

An order or SOW may designate certain of Supplier’s personnel as “Key Personnel” or “Project Managers”. Supplier’s obligations with respect to Key Personnel and Project Managers will be described in the applicable order or SOW. Any changes to Key Personnel must be mutually agreed to in writing by Supplier and Authorized User. Failure of Supplier to perform in accordance with such obligations may be deemed a breach of this Contract or of the applicable order or SOW.

B. Subcontractors Except for Supplier’s authorized service providers (ASP), Supplier shall not use other Subcontractors to perform its contractual obligations or any order or SOW issued pursuant to the Contract unless specifically authorized in writing to do so by the Authorized User. If an order or SOW issued pursuant to this Contract is supported in whole or in part with federal funds, Supplier may not subcontract to any Subcontractor that is a party excluded from Federal Procurement and Nonprocurement Programs. In no event may Supplier subcontract to any Subcontractor that is debarred by the Commonwealth or that owes back taxes to the Commonwealth and has not made arrangements with the Commonwealth for payment of such back taxes.

If Supplier subcontracts the provision of any performance obligation under this Contract to any other party, Supplier shall (i) act as prime contractor and will be the sole point of contact with regard to all obligations under this Contract; and (ii) represent and warrant that any authorized Subcontractors shall perform in accordance with the warranties set forth in this Contract.

5. NEW TECHNOLOGY

A. Access to New Technology Supplier will bring to VITA’s attention any new products or services within the scope of the Contract that Supplier believes will be of interest to VITA and will work to develop proposals for the provision of any such products or services as VITA requests.

B. New Service Offerings Not Available from Supplier As applicable and if included as part of the MPS Program, if new or replacement product or service offerings become available and cannot be competitively provided by the Supplier under the scope of this Contract, VITA will have the right to purchase the new or replacement products or services from a third party. If VITA elects to use such new or replacement product or service offerings, Supplier will reasonably assist VITA to migrate to such products or services.

If VITA elects to acquire new products or services as described in the paragraph above and such services replace existing Supplier-provided services, discount tiers and any commitments (as applicable per the Contract) will be reduced to reflect reductions in purchases of the replaced products or services.

6. GENERAL WARRANTY THE OBLIGATIONS OF SUPPLIER UNDER THIS GENERAL WARRANTY SECTION ARE MATERIAL. SUPPLIER MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY CONCERNING MERCHANTABILITY OR FITNESS FOR ANY OTHER PARTICULAR PURPOSE.

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Supplier warrants and represents to VITA that Supplier will fulfill its contractual obligations and meet all needed Requirements as described in Exhibit A. Supplier warrants and represents to VITA that:

A. Ownership Supplier has the right to perform and provide all contractual obligations and provide all needed services or products without violating or infringing any law, rule, regulation, copyright, patent, trade secret, or other proprietary right of any third party. Supplier is the owner of the Product or otherwise has, to the best of its knowledge, the right to grant to the Commonwealth or any Authorized User title or the right to use the Product provided pursuant to this Contract. Upon Supplier’s receipt of payment, the Commonwealth or ordering Authorized User, as applicable, will obtain good and clear title to the hardware Product purchased, excluding the System Software and Products provided under MPS Statements of Work, free and clear of all liens, claims, security interests, and encumbrances.

B. Coverage Period During the manufacturer’s Warranty Period or as specified in the applicable order or SOW, Supplier warrants that any Deliverables provided by Supplier under this Contract will meet or exceed the Requirements. Supplier shall correct, at no additional cost to any Authorized User, all errors identified during the warranty period that result in supplier’s failure to meet the Requirement, or its contractual obligations.

C. Performance Warranty With respect to Supplier’s performance under this Contract:

i. Supplier shall perform all contractual obligations with the care, skill and diligence, consistent with or above applicable professional standards currently recognized in Supplier's profession, and Supplier shall be responsible for the professional quality, technical accuracy, completeness, and coordination of all plans, information, specifications, Deliverables, and Services furnished under this Contract; and

ii. Supplier shall ensure that any contractually-obligated Services or Deliverables, or both, meet or exceed the Requirements and that any Product will function in conformance with the Requirements.

D. Documentation and Deliverables i. Any required Documentation Supplier is obligated to provide under this Contract will be sufficient in detail and content to allow an appropriately trained user/programmer to understand and fully utilize, as applicable, the Products, Software, or Deliverables without reference to any other materials or information.

ii. All Products, Software, or Deliverables provided or delivered pursuant to this Contract are at the current release level unless an Authorized User specifies an older version in its order or SOW.

iii. No Update, engineering change, or revision made to any Supplier-provided Products, Software, or Deliverables will (a) degrade the performance of any Products or Software or its components to a level below that defined in the Requirements or the Product manufacturer's or Software Publisher's published specifications, as applicable; (b) cause any other warranty to be breached; or (c) require an Authorized User to acquire additional hardware equipment or software.

E. Malicious Code Supplier has used commercially reasonable efforts through quality assurance procedures to verify that there are no Computer Viruses or undocumented features in any of the Deliverables, as obligated and provided by Supplier under the order or SOW, at the time of delivery to the Authorized User. Supplier has used the best available means to scan any media provided to the Authorized User. Supplier warrants that the Deliverables, as obligated and provided by Supplier under the order or SOW, do not contain any embedded device or code (e.g., time bomb) that is intended to obstruct or prevent any Authorized User’s use of the Deliverables.

Notwithstanding any rights granted under this Contract or at law, Supplier waives, under any and all circumstances, any right it has or may have in the future to exercise its license termination

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rights by electronic means. Supplier agrees that an Authorized User may pursue all remedies provided under law in the event of a breach or threatened breach of this section, including injunctive or other equitable relief.

F. Open Source Supplier will notify all Authorized Users if any Products or Software, as obligated and provided by Supplier, contain any Open Source code and identify the specific Open Source License that applies to any embedded code dependent on Open Source code, provided by Supplier under this Contract.

G. Supplier’s Viability Supplier has the financial capacity to perform and continue to perform its obligations under this Contract. Supplier has no constructive or actual knowledge of a potential legal proceeding being brought against Supplier that could materially adversely affect performance of this Contract. Further, Supplier is not prohibited by any contract, or order by any court of competent jurisdiction from entering into this Contract.

H. Supplier’s Past Experience Supplier has met similar contractual obligations and fulfilled the Requirements as set forth in Exhibit A and in this Contract, in similar or greater complexity, to other customers without significant problems due to Supplier’s performance and without causing a contractual breach or default claim by any customer.

I. ELIGIBILITY Supplier’s service, support and warranty commitments do not cover claims resulting from:

(a) improper use, site preparation, or site or environmental conditions or other non-compliance with applicable Documentation or SOWs;

(b) modifications or improper system Maintenance or calibration not performed by Supplier or authorized by Supplier;

(c) failure or functional limitations of any non-Supplier Software or Product impacting systems receiving Supplier Maintenance or Service;

(d) malware (e.g. virus, worm, etc.) not introduced by Supplier; or

(e) Authorized User will bear all risks of loss or damage (including any repair or replacement cost (s)) caused by Customer to HP-provided Devices, Customer may not relocate HP-provided Devices without HP consent.

7. SCOPE OF USE Any Authorized User may use the Product, and any Software licensed in connection with the Product, on a worldwide basis for the benefit of itself and its agents. Supplier further authorizes use of the Product by third parties who are under contract with an Authorized User to provide outsourcing services. If the Commonwealth or an Authorized User takes title under the terms of this Contract to any Products with System Software that is integral to the Products, there will be no restrictions on subsequent resale or distribution of the Products and System Software by the Commonwealth or the Authorized User.

8. SYSTEM SOFTWARE LICENSE Any and all license rights granted pursuant to this Contract will be held pursuant to the terms of the “Licensing within the Commonwealth” section of this Contract below.

A. License Grant Supplier grants to the Commonwealth and all Authorized Users a fully paid, perpetual, worldwide, nonexclusive, transferable, irrevocable license to use, and to permit any agent of the Commonwealth or Authorized User to use System Software for each Product. Each license granted under this Contract authorizes the Commonwealth or any Authorized User, and any of their agents, to use Supplier-licensed programs in machine readable form on any system without limitation. It is expressly understood that “perpetual” license rights commence upon delivery of the

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System Software to the Authorized User and exist in perpetuity unless otherwise terminated in accordance with the applicable provisions of the Contract. The System Software is the property of Supplier, and no title or ownership of the System Software or any of its parts, including Documentation, is transferred to the Commonwealth or the Authorized User by this license grant.

B. Authorized User Compliance Compliance with the terms and conditions of any license granted pursuant to this Contract is solely the responsibility of the Authorized User that purchased the license. VITA will have no responsibility for compliance with the terms and conditions of the purchased license, unless VITA purchased the license on its own behalf.

C. No Subsequent, Unilateral Modifications of Terms by Supplier (“Shrink-Wrap”) The terms and conditions set forth in this section supersede and govern the licensing and delivery of all Products and Services in this Contract. The terms and conditions of this Contract supersede any other provision or other unilateral license terms that may be issued by Supplier after the Effective Date, regardless of when those provisions were proposed, or the fact that another agreement may be affixed to, or accompany, System Software upon delivery.

D. Reservation of Rights Nothing contained in this section will be construed to restrict or limit the rights of the Commonwealth or any Authorized User to use any technical data that the Commonwealth or Authorized User may already possess or acquire under proper authorization from other sources.

9. DELIVERY AND INSTALLATION

A. Delivery Procedure Supplier shall deliver all Products F.O.B. destination, with the destination being the "ship to" address specified in the applicable order or SOW. If the order or SOW stipulates that the Supplier will provide installation of the Product, Supplier will bear all risk of loss of or damage to the Product until delivery by the Authorized User. If the order or SOW stipulates that the Supplier will not provide installation of the Product, Supplier will bear all risk of loss or damage to the Product until Receipt. In all cases, Supplier shall arrange and pay for all non-expedited transportation and insurance sufficient to fully protect the Product while in transit. Each shipment must include a packing slip indicating this Contract number, the Authorized User's order number, the SOW number, if applicable, the part number, a description of the Product shipped and the quantity shipped. Each package in any shipment must (i) be numbered; (ii) have a description stenciled on the outside indicating the quantity of Product contained by part number and description; and (iii) must conspicuously display the number of the package in that shipment which contains the packing slip. If required by the Authorized User, Supplier shall bar code all packages shipped. If any loss to, or damage of, the Product occurs prior to delivery to the Authorized User, Supplier shall use reasonable efforts to provide a replacement item. Title to Products purchased, excluding Software and System Software, will pass upon delivery.

Supplier will make available all appropriate and required Documentation at the time of delivery of the first unit of each different Product type. Product delivered without the appropriate and required Documentation will be considered "shipped short" until the applicable documentation has been received.

B. Late Delivery Supplier acknowledges and agrees that after reasonable efforts to deliver Product within thirty (30) calendar days or in accordance with the delivery schedule to which Authorized User and Supplier agreed; failure to deliver the Product ordered will constitute a material breach of this Contract resulting in termination of the order, if the delivery delay was caused by Supplier.

In addition, in the event the Supplier fails to use reasonable efforts to deliver the Product within 30 calendar days of the agreed upon delivery date set forth in the order or the delivery schedule agreed in an SOW, or if no date was specified, following the date the order or SOW was received by Supplier, then the ordering Authorized User, at its own discretion, may give Supplier written notice of cancellation regarding the non-delivered Product in the subject order, SOW, or MPS SOW, if the delivery delay was caused by Supplier, though termination of the MPS SOW or

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Products thereunder, is subject to section 6 (Expiration, Termination and Renewal). Once notice by the Authorized User is sent or given, the Authorized User may immediately procure the undelivered items, or substantially similar items, from another source. In no event will any Authorized User be held to pay Supplier any costs incurred by Supplier, except the invoiced price for Products received and Services performed . Further, the Authorized User reserves any and all other remedies available at law or in equity.

C. Product Trade-in and Upgrade [[To be determined prior to contract execution. Supplier to provide trade-in/upgrade parameters]]

D. Product Installation For Products purchased, unless otherwise requested by the Authorized User, Supplier shall provide the initial installation of all Product at an additional charge. Installation may include: unpacking, removal of all shipping/packing materials, positioning, connecting to internal utility services, and testing For Managed Print Services, Product initial installation and testing is included in the Exhibit B pricing.

All Product installations shall comply with building and facilities standards established by the ordering Authorized User as provided to Supplier in writing. If Authorized User installs the Product, Supplier shall provide all reasonably necessary telephone assistance at no charge for ninety (90) days from date of purchase.

10. ACCEPTANCE

A. Product Acceptance Product will be deemed accepted when the ordering Authorized User determines that the Product successfully operates in accordance with the Requirements. Testing after Delivery that results in non-performance will be subject to the Product warranty provisions whereby Supplier will provide conforming Products within a reasonable time period. Should Authorized User fail to provide Supplier written notice of successful or unsuccessful Acceptance testing within thirty (30) calendar days of delivery, the Product(s) will be deemed Accepted.

Throughout the testing period, Supplier shall provide to the Authorized User any assistance and advice as the Authorized User may reasonably require, to ensure Supplier meets its contractual obligations.

B. Cure Period Supplier shall correct any non-conformities identified during testing and re-submit the corrected Product or replacement Product within a reasonable time period of Supplier’s receipt of a written notice of non-conformance, or as otherwise agreed between the Authorized User and Supplier in the applicable order or SOW. If Supplier fails to cure the non-conformity or deliver Product that meets the Requirements, the Authorized User will follow the Product warranty process, which may include rejecting the Product in its entirety and recover amounts previously paid to Supplier. Failure of a Product to meet, in all material respects, the Requirements after the opportunity to cure may constitute a breach by Supplier. In the event of such breach, the Authorized User may, at its sole discretion, terminate the non-conforming Products in its order or SOW, in whole or in part, for the Product and any Services to be provided by Supplier, though termination of the MPS SOW or Products thereunder, is subject to section 6 (Expiration, Termination and Renewal).

11. PERFORMANCE LEVELS FOR PURCHASED AND RENTED PRODUCTS

A. Purchased, Leased or Rented Product Any hardware Product(s) purchased, leased, rented or under MPS by an Authorized User and covered continuously by Maintenance Services, as applicable, are required to operate satisfactorily and produce acceptable printed quality, subject to Supplier’s repetitive failure process..

“Repetitive Failure” is defined as three (3) functional failures of the Supplier-branded Product in any 90-day period during the first year of Authorized User’s ownership of the Product. Initially, Supplier will address Repetitive Failures through its formal escalation process that provides the

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appropriate level of management focus and resources to resolve persistent, difficult, or high business impact customer issues. Once a hardware Product has encountered Repetitive Failures for the same function, Supplier will engage its Engineering Team to determine whether the problem can be resolved or if the hardware Product should be replaced.

In the unlikely event that the hardware Product has Repetitive Failures, Supplier, at its sole discretion, may elect to: (a) provide Authorized User with a replacement unit of Supplier’s choosing that is the same or equivalent to Authorized User’s hardware Product in performance, or (b) issue Authorized User a refund of its purchase price instead of a replacement.

B. HP-provided Devises. Subject to the SOW services limitation, if a HP-Branded, HP-Provided Device is experiencing a failure rate of six (6) logged Technical Support tickets or more within sixty (60) consecutive calendar days for the same defect, HP will replace such Device within a functionally comparable Device, at no additional charge to Customer and priced with the same Fees as the replaced Device. All replaced Devices shall be returned to HP. This service is not available on HP P57750 Devices.

A. Return of Product At the expiration or termination of a Lease Agreement or Rental Agreement or for the return or removal of any Product to Supplier, the Authorized User will cooperate with Supplier in arranging pickup of the Product. If the leased or rented Product contains a hard drive, the Authorized User and Supplier will ensure compliance with Commonwealth Data Removal standard before the equipment is removed from the Authorized User’s location. The requirements for compliance are located at the following URL: (http://www.vita.virginia.gov/uploadedFiles/Library/PSGs/Data_Removal_Standard_514_03%201 0_07_2008_r3.pdf). If the Supplier performs the cleaning of the hard drive, the Supplier will provide written certification to the Authorized User that the hard drive has been cleaned in full compliance with the Commonwealth Data Removal standard.

12. SERVICES FOR PURCHASED AND RENTED PRODUCTS

A. Service Offerings Supplier shall offer for rent and purchase all Product types identified in Exhibit B and shall offer Maintenance Services for all Product(s) purchased pursuant to this Contract. No Authorized User is obligated to continue Maintenance Services on Product that has been removed from service, provided the Product is under a maintenance agreement and Supplier has been notified in writing 30 days’ in advance of the removal.

During the , MCP or Rental Term, Supplier shall provide all Services required to maintain the Product in operating condition and to ensure Authorized User has sufficient supplies available at all times. Services will include, but are not limited to, performing Maintenance Services, providing replacement parts, maintaining sufficient inventory of spare parts to support the Authorized User’s installed base, and correcting any malfunctions or defects in any unit of Product.

B. Performance of Maintenance Services or Rental Services

Supplier shall perform Preventive Maintenance during regular business hours unless Preventive Maintenance affects the Hardware processing; in these instances, Preventive Maintenance will be performed as mutually agreed and at no additional cost to an Authorized User.

Supplier shall respond to calls for Maintenance Services or Rental Services Monday through Friday, 7 am through 6 pm local time, excluding Commonwealth holidays. Supplier shall respond to problems with the Product identified by an Authorized User in no more than four (4) hours after notification. Repairs shall be made within twelve (12) working hours of the first notification by the Authorized User.

Calls dispatched outside the times specified in this section may be subject to additional charges. If Maintenance Services or Rental Services are requested for a unit of Product within the 48-hour period immediately following remedial maintenance performed on the same unit of Product for the same problem, Supplier shall provide the Maintenance Services or Rental Services at no charge.

http://www.vita.virginia.gov/uploadedFiles/Library/PSGs/Data_Removal_Standard_514_03%2010_07_2008_r3.pdf http://www.vita.virginia.gov/uploadedFiles/Library/PSGs/Data_Removal_Standard_514_03%2010_07_2008_r3.pdf

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Supplier’s response may be on-site or remote, as required to resolve the problem. Supplier shall utilize the most expeditious methods of restoring the Hardware to its original operating condition, which may include part or whole unit replacement. Supplier shall ship replacement Hardware or any components within 24 hours of receipt of failed Hardware or component. Supplier shall provide any labor, parts, firmware upgrades and software upgrades and return shipping required to perform advanced replacement services at any time during the MCP or Rental Term. Any replacement parts Supplier provides in fulfilling its obligations under this section must be new parts.

C. Defects or Malfunctions

The following applies only if detailed in the maintenance services agreement or SOW:

Supplier shall promptly notify all Authorized Users of any defects or malfunctions in the Product or Documentation that Supplier learns from any source. Supplier shall correct any defects or malfunctions, or provide a workaround until corrected, within five (5) business days of knowledge of any defect or malfunction. Supplier shall also provide all Authorized Users with corrections of the defects or malfunctions at no additional cost. Supplier shall provide all parts, components and services required to correct the design defect and restore the item or replace it, so that it functions as warranted.

For purchased Product, any replacement Hardware will become the sole property of the Authorized User and any defective Hardware will become the sole property of Supplier. In all instances, Supplier shall be solely responsible for all shipping costs.

13. PRODUCT SUPPORT AND ADDITIONAL SERVICES

A. Authorized User or Third Party Support 1. Documentation and Support Availability

In the event that VITA terminates this Contract, Supplier shall provide all the necessary documents and manuals for Authorized User to maintain and repair the Product itself at https://support.hp.com/us-en, or the Authorized User can obtain support and Maintenance Services from a third-party, that is a Supplier-authorized service provider. Supplier may offer training information necessary to allow any Authorized User that qualifies under Supplier’s guidelines to be a self-maintainer . In addition, Supplier agrees to provide for purchase, spare parts and components at the cost set forth in Exhibit B, including those solely sourced by Supplier, as long as such spare parts and components are available, so as to enable any Authorized User or its designated third-party maintenance provider to provide full maintenance and repair of the Product.

B. Engineering Changes and Product Modification

C. Parts and Maintenance Support Supplier shall provide new or certifiable as new spare parts and the Maintenance Services identified in the “Maintenance Services” section of this Contract and Exhibit B attached to this Contract for each Product type ordered by an Authorized User. Supplier’s obligation under this section will last for five (5) years from the expiration of the initial Warranty Period of the last unit of any given Product type provided by Supplier to the Authorized User. After this 5-year period, Supplier shall advise the Authorized User, if the Authorized User has a maintenance agreement with Supplier, of its intent to discontinue either certain parts or Maintenance Services for any Product type ordered by the Authorized User.

Supplier shall provide reasonable notice to the Authorized User with a maintenance agreement of any such discontinuance, and shall provide to the Authorized User the opportunity to purchase spare parts if available from Supplier.

D. Inventory Record Supplier shall maintain the Inventory Record at no additional cost or reduction in the Warranty Period. Product quantities and types may vary as Product is added or deleted from coverage. Authorized User shall notify Supplier in writing of any Product relocated, added, or removed from

https://support.hp.com/us-en

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service. Upon receipt of this notification, Supplier will amend the Inventory Record to reflect the relocation, addition, or deletion of the Product. Supplier shall provide, at no additional cost, a copy of the most current Inventory Record to any Authorized User upon request.

E. Product Service Record For purchased Products, Supplier shall make available as requested by an Authorized User, at no additional cost, a link to a Product repair history for that Authorized User’s Product covered under warranty or maintenance tied to the Product’s serial number.

For Managed Print Services, Supplier’s Client Manager provides reports with this data to Authorized Users upon request, and is also included as part of Supplier’s Business Reviews with Authorized Users.

F. Product Discontinuation During the Term of this Contract, if any Product listed on Exhibit B is discontinued, Supplier may offer a transition Product acceptable to the Authorized User. Additionally, Supplier shall make maintenance parts for the discontinued Product available to the Authorized User for as long as the parts are available . In every event, Supplier will provide any Authorized User with notice of its intent to discontinue the Product.

G. Additional Services Upon request of an Authorized User by means of an order or SOW issued in accordance with the ordering provisions of this Contract, Supplier will provide additional on-site services which may include: (i) relocation of previously installed hardware; (ii) assistance to Authorized User’s communications department in mutually acceptable duties related to the warranty or Maintenance Services provided under this Contract; and (iii) cabling, if applicable. The Authorized User shall compensate Supplier for such additional on-site services in accordance with the prices identified in Exhibit B. These additional on-site services will be in addition to any existing on-site Warranty Services or Maintenance Services obligations of Supplier

Upon request of an Authorized User by means of an order or SOW issued in accordance with the ordering provisions of this Contract, Supplier will also provide the following services beyond those identified as Warranty Services or Maintenance Services offerings: (i) service on equipment not covered by this Contract; (ii) repair of damage or replacement of parts of Hardware resulting from changes in the hardware environment, extraordinary use of the hardware, or interconnected devices; or (iii) service outside the applicable hours of service specified in an executed order or SOW referencing this Contract.

Supplier and Authorized User will mutually agree to the charge for such services specified in Exhibit B and will be inclusive of all expenses. Warranty Services or Maintenance Services included in an SOW that are requested for a unit of hardware within the 48-hour period immediately following Remedial Maintenance (as set forth below) performed on the same unit of hardware for the same problem, will not be considered an additional service and will be provided at no charge.

14. WARRANTY AND REMEDY OF PRODUCT

A. Compatibility Supplier warrants that each Product provided pursuant to this Contract is, and will continue to be, data, program, and upward compatible with any other Product available or to be made available from Supplier within the same family of Products. Supplier warrants that, as a result of this compatibility, each Product can be utilized without adaptation of the other Products, and so that programs written for the Product shall operate on the next generation of Products, and not result in the need for alteration, emulation, or other loss of efficiency for a period of not less than five (5) years.

B. Product Supplier warrants the following with respect to the Product:

i. The Product will be free of defects in material, design, and workmanship;

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ii. Upon delivery, the Product will be new and in Operating Condition and will have all engineering changes released to date already installed;

iii. Supplier shall not disable any Authorized User’s use of System Software through remote access or otherwise. If the System Software contains authorization codes allowing access to a data base or other software, Supplier warrants that such codes will be perpetual and non- expiring.

C. Warranty Services During the manufacturer’s warranty period, supplier warrants that the Product will meet the Manufacturer’s warranty . Supplier shall provide Warranty Services (including unlimited telephonic support and all necessary travel and labor) during the warranty period at the prices set forth in Exhibit B of this Contract. Supplier shall correct, at no additional cost to any Authorized User, all errors identified during the Warranty Period that result in a failure of the Product to meet the Manufacturer’s warranty .

Exhibit B provides detailed descriptions of the Supplier’s warranty and maintenance offerings and responsibilities as well as remedies available to the Authorized User in the event Supplier fails to perform its warranty and maintenance obligations. Exhibit B defines coverage periods, response times, and restore times.

If multiple warranty levels are available, an Authorized User may elect, at any time, an alternative warranty level offered by Supplier at an additional cost based upon Exhibit B pricing.

1. Product Covered

Exhibit B lists all Product types covered under warranty.

2. Preventive Maintenance

Supplier’s Preventive Maintenance offerings and responsibilities, and the Authorized User’s associated remedies, are described in Exhibit B.

3. Remedial Maintenance

Supplier’s Remedial Maintenance offerings and responsibilities, and the Authorized User’s associated remedies, are described in Exhibit B.

4. Replacement Parts

Supplier’s offerings and responsibilities related to Replacement Parts, and the Authorized User’s associated remedies, are described in Exhibit B.

5. Spares

Supplier’s offerings and responsibilities related to Spares, and the Authorized User’s associated remedies, are described in Exhibit B.

6. Notification and Correction of Defects

Supplier’s offerings and responsibilities related to notification and correction of defects, and the Authorized User’s associated remedies, are described in Exhibit B.

7. One-year Depot Warranty

Supplier’s depot warranty offerings and responsibilities are described in Exhibit B.

8. On-site Warranty

Supplier’s on-site warranty offerings and responsibilities are described in Exhibit B.

9. System Software Warranty

As part of the standard warranty offering, for a period of not less than twelve (12) months beginning on the date of Delivery , Supplier shall provide the following warranty services (including unlimited telephonic support and all necessary travel and labor) without additional

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charge to any Authorized User to maintain the System Software in accordance with the Requirements:

a) New Releases

Supplier’s responsibilities related to new releases of System Software and Documentation are described in Exhibit B.

b) Coverage

Supplier’s offerings and responsibilities related to coverage for telephonic and written consultation in connection with use, problems, and operation of the System Software are described in Exhibit B.

c) Response and Restore Times

Supplier’s response and restore times related to use, problems, and operation of the System Software, and Authorized User’s associated remedies, are described in Exhibit B.

d) Software Evolution

Should Supplier or Software Publisher merge or splinter the System Software previously provided to any Authorized User, such action on the part of Supplier or Software Publisher shall not in any way result in any Authorized User being charged additional license or support fees in order to receive enhancements, releases, upgrades or support for the System Software.

If Supplier or Software Publisher reduces or replaces functionality contained in a licensed System Software product and provides the same or substantially similar functionality as or within a separate or renamed System Software product, then the Commonwealth or the Authorized User will be entitled to license such System Software product at no additional license or maintenance fee, and subject to the terms and conditions herein, subject to Supplier or Software Publisher’s approval.

If Supplier or Software Publisher releases an option, future System Software product or other release that has substantially the same functionality as the Software products provided under this Contract, and Software Publisher and/or Supplier ceases to provide maintenance for the older System Software product, then Supplier shall offer the Commonwealth or the Authorized User the option to exchange licenses for such replacement System Software product or function at no additional charge, subject to Supplier or Software Publisher’s approval.

10. Escalation Procedures

[[TBD based on Supplier proposal.]]

11. Remedies

In addition to any remedies described in Exhibit B, if Supplier is unable to make the Product, including System Software, conform, in all material respects to the Requirements, within thirty (30) calendar days following written notification by an Authorized User, Supplier shall at its option, at such Authorized User’s request, either (i) replace the non-conforming Product or (ii) accept return of the non-conforming Product and return all monies paid by such Authorized User for the returned Product.

Notwithstanding anything to the contrary in this Contract or in any exhibit hereto, VITA and any Authorized User retain all rights and remedies available at law or in equity.

THE OBLIGATIONS OF SUPPLIER UNDER THIS WARRANTY AND REMEDY SECTION ARE MATERIAL. SUPPLIER MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY CONCERNING MERCHANTABILITY OR FITNESS FOR ANY OTHER PARTICULAR PURPOSE. THIS CONTRACT STATES ALL REMEDIES FOR WARRANTY CLAIMS.

12. Exclusions.

a) HP Security Manager: Authorized Users will need to purchase support and Maintenance at the contracted rates, as warranty is not included. A purchased Support agreement will entitle Authorized Users to unlimited remote service. If onsite support or installation is required, it will be quoted upon request.

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b) HP WebJetAdmin: For this free tool, Authorized Users are entitled to purchase premium support at the contracted rates, as warranty is not included. If onsite consulting or installation is required, it will be quoted upon request.

15. MAINTENANCE SERVICES

Supplier shall provide Maintenance Services (including unlimited telephonic support and all necessary travel and labor) during the MCP at the prices identified in Exhibit B without additional charge to maintain the Product in accordance with the Requirements in the Statement of Work or Purchase Order.

Exhibit B attached to this Contract provides detailed descriptions of the Supplier’s warranty and maintenance offerings and responsibilities, as well as remedies available to the Authorized User in the event Supplier fails to perform its warranty and maintenance obligations. Any remedies will be paid to the Authorized User on a quarterly basis. Exhibit B also defines coverage periods, response times, and restore times.

Authorized User’s designated control organization will have the exclusive authority to request maintenance services. Supplier shall not respond to calls for service from any other source without prior written approval of Authorized User’s agreement administrator designated on the relevant order or SOW.

A. Ordering See the “Fees, Ordering, and Payment Procedure” section of this Contract below.

B. Renewal At least 60 calendar days prior to the expiration of the MCP for each unit of Product, Supplier shall notify the Authorized User in writing of such expiration. Authorized User may, at its sole discretion, issue an order or SOW to Supplier to renew the Maintenance Services, including System Software Maintenance Services, for an additional one (1) year period. Any increase in the annual fee for Maintenance Services may not exceed the lesser of (i) three percent (3%), or (ii) the annual change in CPI, as defined in the “Fees, Ordering and Payment Procedures” section of this Contract below, in effect at the time of renewal. Termination of this Contract or cancellation of Maintenance Services, including System Software Maintenance Services if provided as a separate offering from Supplier, by an Authorized User will not affect this Contract or the grant of any license pursuant to the Contract.

C. Offered Services

Maintenance Services will include:

1. Product Covered

Exhibit B lists all Product types for which Supplier offers Maintenance Services. No Authorized User is obligated to continue Maintenance Services on Product(s) that has been removed from service, provided Supplier has been notified in writing of such removal.

2. Preventive Maintenance

Supplier’s Preventive Maintenance offerings and responsibilities, and the Authorized User’s associated remedies, are described in Exhibit B.

3. Remedial Maintenance

Supplier’s Remedial Maintenance offerings and responsibilities, and the Authorized User’s associated remedies, are described in Exhibit B.

4. Replacement Parts

Supplier’s offerings and responsibilities related to Replacement Parts, and the Authorized User’s associated remedies, are described in Exhibit B.

5. Spares

Supplier’s offerings and responsibilities related to Spares, and the Authorized User’s associated

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remedies, are described in Exhibit B.

6. Notification and Correction of Defects

Supplier’s offerings and responsibilities related to notification and correction of defects, and the Authorized User’s associated remedies, are described in Exhibit B.

7. Advanced Replacement Services

Supplier’s advanced replacement service offerings and responsibilities are described in Exhibit B.

8. On-site Maintenance Services

Supplier’s on-site Maintenance Services offerings and responsibilities are described in Exhibit B.

9. System Software Maintenance

During the MCP and as part of the standard Maintenance Services offering, Supplier shall provide the following Maintenance Services (including unlimited telephonic support and all necessary travel and labor) without additional charge to any Authorized User to maintain the System Software in accordance with the Requirements:

a) New Releases

Supplier’s responsibilities related to new releases of System Software and Documentation are described in Exhibit B.

b) Coverage

Supplier’s offerings and responsibilities related to coverage for telephonic and written consultation in connection with use, problems, and operation of the System Software are described in Exhibit B.

c) Response and Restore Times

Supplier’s response and restore times related to use, problems, and operation of the System Software, and any associated remedies, are described in Exhibit B.

d) Software Evolution

If Supplier merges or splinters the System Software previously provided to any Authorized User, in no event will the merger or splinter on the part of Supplier result in any Authorized User being charged additional license or Maintenance fees in order to receive enhancements, releases, upgrades, or support for the System Software.

If Supplier or Software Publisher reduces or replaces functionality contained in a licensed System Software product and provides the same or substantially similar functionality as or within a separate or renamed System Software product, then the Commonwealth or the Authorized User will be entitled to license such System Software product at no additional license or maintenance fee, and subject to the terms and conditions herein, subject to Supplier or Software Publisher’s approval.

If Supplier or Software Publisher releases an option, future System Software product or other release that has substantially the same functionality as the Software products provided under this Contract, and the Software Publisher, the Supplier, or both, ceases to provide maintenance for the older System Software product, then Supplier shall offer the Commonwealth or the Authorized User the option to exchange licenses for such replacement System Software product or function at no additional charge, subject to Supplier or Software Publisher’s approval.

10. Escalation Procedures

[[TBD based on Supplier proposal.]]

11. Remedies

For purchased Products only, in addition to any remedies described in Exhibit B, if the Product, including the System Software, fails to conform, in all material respects, to the Requirements, Authorized User shall provide written notice to the Supplier of the failure. If within 30 calendar days of its receipt of Authorized User’s notice the Supplier is unable to make the Product, including the System Software, conform, in all material respects, to the Requirements, Supplier

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shall at its option, if Authorized User requests, either (i) provide a replacement Product at no additional cost to the Authorized User, or (ii) accept return of the Product and return all monies paid by such Authorized User (a) for Maintenance Services for the returned Product, including System Software, pro-rated on a monthly basis as of the date the Authorized User reported the non-conformity, and (b) for the Product, including System Software, pro-rated on a monthly basis as of the date the Authorized User reported the non-conformity and based on the average life of the Product.

In addition to the remedies set forth in this Contract and any exhibits, VITA and any Authorized User retain all rights and remedies available at law or in equity.

D. Services for MCP, Lease Term, or Rental Term During any MCP, Lease Term, or Rental Term, Supplier shall provide all Services required to maintain the Product in operating condition and to ensure Authorized User has sufficient supplies available at all times. Such Services include, but are not limited to, performing Preventive Maintenance and remedial maintenance, providing replacement parts, maintaining sufficient inventory of spare parts to support the Authorized User’s installed base, and correcting any malfunctions or defects in any unit of Product.

16. RENEWAL OF LEASE OR RENTAL PRODUCT At least 60 calendar days prior to the expiration of the Lease Term or Rental Term for each unit of Product, Supplier shall notify the Authorized User of the expiration. Authorized User, at its sole discretion, may issue an order to Supplier to extend the Lease Term or Rental Term in accordance with the provisions of this section.

An Authorized User may elect to renew a 12-month, 36-month, 48-month, or 60-month Lease Agreement or Rental Agreement for one (1) year beyond the initial Lease Term or Rental Term. In order to enter into a one-year renewal agreement for the existing unit of Product, the Supplier shall reduce the rental rate charged to the Authorized User not less than five percent (5%). Only one (1) renewal term is allowable pursuant to this Contract for a 12/36/48/60-month initial Lease Term Rental Term. Following the one renewal term, an Authorized User must enter into a new Lease Agreement or Rental Agreement using a current contract.

17. HARDWARE-SPECIFIC PROVISIONS Supplier shall offer all Product types identified in Exhibit B and shall offer Maintenance Services for all Product purchased hereunder. No Authorized User is obligated to continue Maintenance Services on Product that has been removed from service, provided Supplier has been notified in writing of such removal.

During any MCP, Supplier shall provide all Services required to maintain the Product in Operating Condition and to ensure Authorized User has sufficient supplies available at all times. Such Services include, but are not limited to, performing preventive and remedial maintenance, providing replacement parts, maintaining sufficient inventory of spare parts to support the Authorized User’s installed base, and correcting any malfunctions or defects in any unit of Product.

A. Trial (Demonstration) Period for MFD’s At an Authorized User’s request to assigned Supplier’s Sales Account Manager, Supplier shall provide Authorized User a unit of Product for a thirty (30) day trial period if available for demonstration. Authorized User shall return the Product at the end of the 30-day demonstration period.

Following the trial/demonstration period, Authorized User may, at its option, continue or discontinue use of Supplier’s Product. Should Authorized User elect to purchase Supplier’s Product, Authorized User shall issue an order for purchase of the Product, and Supplier invoice of the unit.

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18. FEES, ORDERING, AND PAYMENT PROCEDURE

A. Fees and Charges In consideration for the Supplier’s performance obligations under this Contract, an Authorized User shall pay Supplier the fee(s) owed pursuant to the schedule of fees and charges as set forth on Exhibit B attached to this Contract. Supplier will only be entitled to those fees owed for Supplier’s performance obligations and any additional Products and Services provided to an Authorized User in accordance with the scope of this Contract and the Requirements, as authorized by Exhibit A, and per the Authorized User’s order or SOW. The fees, and any associated discounts, will be applicable throughout the Term of this Contract unless modified pursuant to the terms and conditions below. In the event the fees or discounts apply for any period less than the entire Term, Supplier agrees that it will not increase the fees during the first twelve (12) month period following the Effective Date, and will not increase the fees more than once in any subsequent twelve (12) month period thereafter. No increase in fee amounts will exceed the lesser of three percent (3%) or the annual increase in the Consumer Price Index for All Urban Consumers (CPI-U), U.S. City Average, All Items, Not Seasonally Adjusted, as published by the Bureau of Labor Statistics of the Department of Labor (http://www.bls.gov/cpi/home.htm) for the period ending 60 to 90 days prior to the effective date of the increase compared with the same index one (1) year prior. Supplier must submit any change in price in writing to VITA and to the Authorized User if the change impacts any SOW or order and in accordance with the above and will not become effective for 60 calendar days thereafter. Supplier agrees to offer price reductions to ensure compliance with the “Competitive Pricing” section of this Contract below.

B. Reproduction Rights for Supplier-Provided Software Software Updates by Product, are available for download at: https://support.hp.com/us-en/drivers.

C. Demonstration and/or Evaluation

D. Supplier Quote and Request for Quote An Authorized User, may at its sole discretion, issue a Request for Quote (“RFQ”) for any combination of the Solution, Product, or Services provided under this Contract. Supplier shall respond to the RFQ by providing a written quote. Supplier’s quote must include (a) a detailed description of each product or service proposed; (b) the quantity of each line item; (c) the total contract price; ; (d) an extended price; (e) any optional or alternate pricing; and (f) any pricing assumptions.

E. Competitive Request for Quotes If an Authorized User determines that a competitive process is required to ensure it receives the best value for any combination of its needed Solution, Product, or Services under this Contract, then the Authorized User may, at its sole discretion, use a Competitive Request for Quote (“CRFQ”) process to obtain identical or similar Solutions, Products, or Services to those provided by Supplier pursuant to this Contract. The CRFQ will clearly outline the project timing and requirements. If the Authorized User is not able to identify the exact specifications required, then the CRFQ respondents will be given the opportunity to identify and propose their recommended specifications.

F. Ordering All Authorized Users have the right to license or purchase Supplier’s Products or Services under this Contract, but Authorized Users have no obligation to purchase or license from Supplier any of Supplier’s Products or Services. This Contract is optional use and non-exclusive, and all Authorized Users may, at their sole discretion, purchase, license or otherwise receive benefits from third party suppliers of products and services similar to, or in competition with, the Products and Services provided by Supplier. Supplier shall accept any order or placed by an Authorized User through the Commonwealth’s electronic procurement website portal, eVA (http://www.eva.virginia.gov/). Agencies, as defined by Code § 2.2-2006, and legislative, judicial, and independent agencies of the Commonwealth, must order through eVA. All other Authorized Users are encouraged to order through eVA, but may order through the following means:

i. Purchase Order (“PO”): An official PO form issued by an Authorized User.

http://www.bls.gov/cpi/home.htm http://www.eva.virginia.gov/

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ii. Any other order/payment charge or credit card process, such as AMEX, MASTERCARD, or VISA under contract for use by an Authorized User. This ordering authority is limited to issuing orders or SOWs for the contractual offerings and Requirements available under the scope of this Contract. No Authorized User have the authority to modify this Contract under any circumstances. An order or SOW from an Authorized User may contain additional terms and conditions. In the event that the terms and conditions of the Authorized User’s order or SOW are inconsistent with the terms and conditions of this Contract, the terms of this Contract will supersede, except if mutually agreed by Authorized User and Supplier.

If the Contract allows for the provision of hardware Product, an Authorized User may order Maintenance Services for any Product at any time during the Term of the Contract, irrespective of whether such Product is covered under warranty or maintenance at the time the order is issued to Supplier. Each order will identify:

iii. Product and, if applicable, serial number, for which Maintenance Services will be provided,

iv. Maintenance Level to be provided, and

v. MCP for the Product Maintenance. Any changes to the contracted Maintenance Level for Product Maintenance or under an MPS SOW, is subject to negotiation of content and price, and memorialized in an amendment signed by Authorized User and Supplier.

Supplier shall not accept any order or SOW from an Authorized User if the order or SOW is to be funded, in whole or in part, by federal funds and if, at the time the order or SOW is placed, Supplier is not eligible to be the recipient of federal funds as may be noted on any of the Lists of Parties Excluded from Federal Procurement and Nonprocurement Programs.

ALL CONTRACTUAL OBLIGATIONS UNDER THIS CONTRACT IN CONNECTION WITH AN ORDER OR SOW PLACED BY ANY AUTHORIZED USER ARE THE SOLE OBLIGATION OF SUCH AUTHORIZED USER AND NOT THE RESPONSIBILITY OF VITA UNLESS THE AUTHORIZED USER IS VITA.

G. Orders for Lease-Rental Products or MPS If an Authorized User places an order or SOW to lease or rent Product(s) provided by the Supplier, the Authorized User must comply with the Virginia Department of Accounts (“DOA”) CAPP Manual and the Treasury Board’s Master Equipment Leasing Program (“MELP”), as applicable. This requirement does not apply to Authorized Users who are private institutions of higher education. The Supplier shall provide relevant information and completion of related Documentation in a timely manner as required by the Authorized User to satisfy compliance. Title to any lease or rental Products will remain with Supplier during the Lease Term or Rental Term, including any renewals.

Commonwealth localities and private institutions of higher education are exempt from the DOA CAPP Manual and the Treasury Board’s MELP requirements referenced in this section. Commonwealth localities and private institutions of higher education may have specific requirements that must be included in their order or SOW to ensure Supplier compliance.

Supplier may not assign such purchase order(s) and Lease(s) to a third party.

Authorized Users may not sign any leasing or rental documents supplied by Supplier or any third party representing Supplier. For MPS agreements, the terms of this contract take precedence over any such MPS agreement.

H. Orders for Lease-Purchase Products If an Authorized User places an order or SOW to Lease-Purchase Product(s) provided by the Supplier, the Authorized User must comply with the DOACAPP Manual and the Treasury Board’s MELP, as applicable. This requirement does not apply to Authorized Users who are private institutions of higher education. The Supplier shall provide relevant information and completion of related documentation in a timely manner as required by the Authorized User to satisfy compliance.

Suppliers will be required to fill in their Fixed Spread Rate (in decimal format) in each category that they wish to offer leasing. The Fixed Spread Rate amount entered will be added to current US Treasury Interest Rate Swap rate when leasing arrangements are made.

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Lease pricing will be based on the Supplier’s Fixed Spread Rate as specified in the appropriate category in Exhibit B, “Pricing” attached to this Contract, and added to the appropriate last business day of the most recent quarter current Interest Rate Swap rate located at: http://www.interestrateswapstoday.com/swap-rates.html

In a Lease-Purchase transaction, the purchase price offered to the Authorized User shall be based on a fair market value for buyout as defined in and in accordance with the rules and regulations found at: http://www.doa.virginia.gov/Admin_Services/CAPP/CAPP_Topics/31205.pdf at the end of the Lease Term. Private institutions of higher education are not subject to these rules and regulations.

Further, if a financing arrangement is involved, the financing term for the Product(s) shall be determined by the Product(s)’ useful life, as defined in the CAPP link in the paragraph above.

Commonwealth localities and private institutions of higher education are exempt from DOA CAPP Manual and the Treasury Board’s MELP requirements referenced in this section; however, may have specific requirements that must be included in their order or SOW to ensure Supplier compliance.

I. Orders that Include Trade-in Products If an Authorized User is agency, as defined by Code § 2.2-2006 and legislative, judicial and independent agencies of the Commonwealth, and places an order to purchase Products, where a trade-in of old products is included, the terms of Supplier’s trade-in program shall apply as set forth in section 9.C. (Product Trade-in and Upgrade). The Authorized User must comply with the DOA CAPP Manual and must adhere to the rules and regulations in the Agency Procurement and Surplus Property Manual, published by the Division of Purchases and Supply (“DPS”), Department of General Services (“DGS”). The Supplier agrees to provide relevant information and completion of related documentation in a timely manner as required by the Authorized User to satisfy compliance. Commonwealth localities are exempt from the requirements of this provision but may have specific requirements that must be included in their order or SOW to ensure Supplier compliance.

J. Statement of Work A SOW, in the format provided for in Exhibit C attached to this Contract, is required for any orders placed by an Authorized User for Managed Print Services pursuant to this Contract. Supplier shall perform any and all contractual obligations at the times and locations set forth in the applicable SOW and at the rates set forth in Exhibit B to this Contract.

All SOWs will be of a fixed price type unless VITA issues a written authorization for a time and materials type SOW. The fixed price SOWs may, with the written approval of VITA, contain a cost-reimbursable line item(s) for pre-approved travel expenses pursuant to the provisions of the “Reimbursement of Expenses” subsection below. If a time and materials type SOW is authorized, Supplier Personnel shall maintain daily time records of hours and tasks performed that must be submitted or made available for inspection by the Authorized User upon 48 hours advance written notice.

Any change to an SOW must be described in a written change request, in the format provided in Exhibit D. Either Party to an SOW may issue a change request that will be subject to written approval of the other Party before it becomes part of this Contract. In no event will any SOW or any modification require the Supplier to provide any Products or Services that are beyond the scope of this Contract as such scope is defined in Exhibit A, which is attached to this Contract and incorporated by reference.

K. Invoice Procedures

(1) Product Purchases and Support Services.

Supplier shall remit each invoice to the “bill-to” address provided on a valid purchase order once Products ships. Payment for any support services, as authorized in the Contract and the Authorized User’s applicable order or SOW, will be invoiced monthly or quarterly in arrears unless otherwise stated in this Contract, or in any order or SOW referencing this Contract. No invoice may include any costs other than those identified in the signed order or SOW, and those

http://www.interestrateswapstoday.com/swap-rates.html http://www.doa.virginia.gov/Admin_Services/CAPP/CAPP_Topics/31205.pdf

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costs must be in accordance with the schedule of fees listed on Exhibit B. Without limiting the foregoing, all expedited shipping costs are the Supplier’s responsibility except to the extent shipping charges are identified in Exhibit B and noted in any signed order or SOW referencing this Contract. Supplier shall issue invoices that identify, at a minimum:

a. Dates/periods that invoice covers, including any service or subscription periods, as applicable.

b. Line item description of the Products or maintenance services applicable to this Contract, including any components or service type, and, if applicable, the project milestone.

c. Quantity, charge and extended pricing for each line item

d. Applicable date of the order or SOW or both

e. This Contract number and the applicable order number or SOW number or both

f. Supplier’s Federal Employer Identification Number (“FEIN”)

Any terms included on Supplier’s invoice will have no force or effect and will in no way bind the Authorized User.

(2) MPS Statements of Work.

For MPS, invoices are issued monthly or quarterly, as specified in the executed MPS SOW. Payment shall be in accordance with the Virginia Prompt Payment Act.

L. Purchase Payment Terms Supplier is responsible for the accuracy of its billing information. Supplier may not issue invoices pursuant to this Contract until all of Supplier's performance obligations have been accepted and are in accordance with the milestone payment schedule in the applicable order or SOW, or until after services have been rendered. Charges for Deliverables, Components or Services accepted more than 90 calendar days prior to receipt of a valid invoice may not be paid. With the exception on non-reporting devices, in the event Supplier repeatedly over-bills an Authorized User, the Authorized User may assess a one percent (1%) charge for the amount over-billed for each month that such over-billing continues.

M. Payment for Lease or Rental Products or MPS The ordering Authorized User shall pay the applicable monthly or quarterly or annual payment for the Services and/or as specified in the executed Lease Agreement, Rental Agreement, Purchase Order, or MPS SOW agreement. Payment shall be made by the ordering Authorized User unless the MPS SOW and corresponding purchase order is terminated by the Authorized User pursuant to the Term and Termination provisions in Section 3 of this Contract.

N. Additional Leasing Terms for Wide Format, High Speed Printers 1. General

Pursuant to these Leasing Terms and Conditions (“Terms and Conditions”) the Supplier shall lease Product(s) covered by the Contract in Exhibit B. Authorized Users shall, in addition to the outright purchase of Product, have the option to lease and/or finance Product from the Supplier. The ordering Authorized User shall indicate its election to lease Product (each such lease transaction hereinafter called a “Lease”) on the applicable purchase order issued to the Supplier. Such Lease may also include financed Product that is financed (in either case “Financed Items”).

The Supplier may not assign such purchase order and Lease to a third party.

Authorized Users are not allowed to sign any leasing documents supplied by Supplier or any third party representing Supplier.

2. Lease Pricing Plans

Supplier agrees to provide the Product and Financed Items covered in Exhibit B of the Contract, as specified in Authorized User’s purchase order, through at least one of the pricing plans below. The leasing plan selected by the Authorized User is identified on the purchase order.

i. Thirty-six (36) month Lease with Fair Market Value Option

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ii. Forty-eight (48) month Lease with Fair Market Value Option

iii. Sixty (60) month Lease with Fair Market Value Option

iv. Seventy-two (72) month Lease with Fair Market Value Option

v. Eighty-Four (84) month Lease with Fair Market Value Option

3. Commencement of Lease Term

The term of each lease shall commence on the date the Product and/or Financed Items are accepted under the section “Acceptance and Cure Period.”

4. Title

Title in or to the Product shall not pass to the Authorized User but shall remain with the Supplier. The Product shall remain personal property and shall not become a fixture or affixed to real property. The Authorized User is not responsible for personal property tax on devices that are rented or leased. The Authorized User will keep the Product free and clear of all encumbrances except the Supplier’s security interest.

5. Risk of Loss Supplier shall assume and bear the risk of loss, damage, or theft to the Product and all component parts thereof while same is in the Authorized User’s possession, unless it could have been prevented by the Authorized User’s exercise of reasonable care or diligence in the use, protection, or care of the Product. No loss or damage to the Product shall impair any obligation of the Supplier or of the Authorized User, except as hereinafter expressly provided. Unless the damage could have been prevented by the Authorized User’s exercise of reasonable care or diligence in the use, protection, or care of the equipment, the Supplier shall repair or cause to be repaired all damages to the Product, if the Supplier determines the equipment can be economically repaired. In the event that the Product is stolen, destroyed or rendered irreparable, unusable, or damaged as determined by Supplier, the Lease shall terminate and the Authorized User’s obligation to pay for the Product shall be deemed to have ceased as of the date of the loss. 6. Purchase Option If the Authorized User is not in default, it shall have the right to buy the equipment “as is with no additional warranty” at the expiration of the Lease term by tendering the purchase option amount. For Lease with Fair Market Value option, the Fair Market Value of the equipment shall be as established by the Supplier which shall not exceed the then purchase price of the equipment as established. Upon the Authorized User’s exercise of this purchase option, all right, title and interest in the equipment shall pass to the Authorized User upon payment. 7. Extension If the Authorized User has not elected to purchase the equipment at the expiration of a lease term, and as long as the Authorized User is not in default under the Lease, the Lease (other than Leases that expire five years or greater from date of installation) may be extended for one additional year upon written notice from the Authorized User. The extension will be under the same terms and conditions then in effect.

O. Reimbursement of Expenses Authorized User shall pay, or reimburse Supplier, for all reasonable and actual travel-related expenses for greater than 30 miles from portal to portal incurred by Supplier during the relevant period. An Authorized User will only be liable to pay for Supplier’s travel-related expenses, including transportation, meals, lodging and incidental expenses, that have been authorized by the Authorized User in advance in the order or SOW. The travel-related expenses will be reimbursable at the then-current per diem amounts as published by the Virginia Department of Accounts (http://www.doa.virginia.gov/). Authorized Users who are not public bodies may have their own per diem amounts applicable to Supplier's pre-approved travel expenses.

All reimbursed expenses will be billed to the Authorized User on a pass-through basis without any markup by Supplier. At Authorized User’s request, Supplier shall provide copies of receipts for all travel expenses over US$30.00.

http://www.doa.virginia.gov/

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P. Disputed Charges If, before payment of an invoice, an Authorized User notifies the Supplier in writing of a disputed charge, Authorized User will have the right to withhold payment of the disputed amount until the dispute is settled or finally resolved. Supplier shall respond in writing to Authorized User’s notification of a disputed charge acknowledging Supplier’s receipt of the dispute within five (5) business days. Any charges disputed by Authorized User will be resolved (whether by credit or explanation of the charge to the Authorized User’s satisfaction) in the Authorized User’s required format within two (2) billing cycles (60 calendar days) following Authorized User’s written notification. In the absence of the Supplier’s written evidence identifying the merit of the disputed amounts, Authorized User will not be obligated to pay the disputed amounts and may consider the matter concerning the specific identified amounts closed. Authorized User will not pay any disputed amounts that remain unresolved after 120 calendar days. If a disputed charge is reversed, Supplier shall reverse all associated surcharges, regulatory charges and taxes.

19. SUPPLIER SPONSORED PROMOTIONS The Supplier, at its discretion, may sponsor Product and Service promotions during the Term or any extensions. In the event that Supplier chooses to sponsor such a promotion, Supplier shall provide in writing to VITA, at least five (5) days prior to the promotion, the following information: (i) the dates of the promotion or the duration of the promotion to include the commencement date and the ending date; (ii) the exact Products or Services covered in the promotion; and (iii) the pricing or percentage discount offered during the promotion. VITA will communicate to Supplier in writing its agreement to the promotion.

Supplier shall make all sponsored Product or Service promotions available to all Authorized Users. Should the Supplier request a promotion that would be limiting, either through product configuration or quantities of Products and Services, VITA, at its sole discretion, may not provide a written agreement. VITA and Supplier agree that promotions will not target any one Authorized User, or a few Authorized Users.

VITA and Authorized Users may, at their discretion, assist in advertising the promotion. This assistance may consist of advertising space on Authorized User web sites, or other assistance at an Authorized User’s discretion.

If Supplier fails to obtain the prior written agreement of VITA for the promotion, proposes prices different from those in the Contract without VITA’s consent, or otherwise does not adhere to the provisions of this section, Supplier will be deemed to be in breach of this Contract. VITA will have all remedies for this breach available under the Contract as well as in law and in equity.

20. REPORTING Supplier shall submit to VITA a monthly report containing data on:

i. Amount of Realized Sales; and

ii. Small Business Procurement and Subcontracting Spend

This report must be submitted in accordance with the instructions and further detailed requirements, and on the templates set forth on the “Supplier Reporting” webpage located at the following URL: https://www.vita.virginia.gov/supply-chain/supplier-reporting/, or any successor URL(s). Supplier is encouraged to review the site periodically for updates on Supplier reporting requirements and methods. Supplier’s failure to comply with all reporting, payment, and other requirements in this section may be deemed by VITA, in its sole discretion, to be a breach of the Contract.

A. Amount of Realized Sales Supplier shall submit to VITA a monthly report of all Realized Sales under this Contract.

In connection to the monthly report of Realized Sales, Supplier shall pay to VITA the following monthly fees in accordance with instructions described on the “Supplier Reporting” webpage located at: https://www.vita.virginia.gov/supply-chain/supplier-reporting/. The monthly report of Realized Sales must include these fees and percentages:

• IFA: 2% of monthly sales

• Administrative: 0% of monthly sales

https://www.vita.virginia.gov/supply-chain/supplier-reporting/ https://www.vita.virginia.gov/supply-chain/supplier-reporting/

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• Rebate: 0% of monthly sales

• Other (Name): 0% of monthly sales

B. Small Business Procurement and Subcontracting Spend Supplier shall provide to VITA a report of monthly subcontracting spend data. This data must include the spend with all Subcontractors who provide direct performance for obligations under this Contract. Supplier’s monthly subcontracting spend data must be submitted via the SRS webpage located at: http://vita2.virginia.gov/procurement/srs/.

In addition, every six (6) months following the Effective Date, Supplier shall submit to VITA a “SWaM Subcontracting Certification of Compliance” (“SSCC”) certifying that Supplier has fully complied with the Contract’s Supplier Procurement and Subcontracting Plan ("Plan"). A copy of Supplier’s Plan is attached to this Contract as Exhibit H, and is incorporated by reference. The SSCC must include a written explanation of any variances of greater than 20% between the Plan and the actual subcontractor spend by Supplier. Supplier’s SSCC will be maintained by VITA in the Supplier’s procurement file. Supplier must submit the SSCC to the following address: SCMInfo@vita.virginia.gov. In the event that Supplier fails to comply with its contractually obligated Plan spend or fails to report its contractually obligated Plan spend, VITA may, at its sole discretion, prohibit or delay any renewals or extensions of the Contract, withhold any final payments due, or both. Supplier’s failure to comply will be considered in the prospective award of any future contracts with Supplier.

21. POLICIES AND PROCEDURES GUIDE Within 30 calendar days of the Effective Date of the Contract, Supplier will work with VITA to develop a policy and procedures guide that describes how Authorized Users can purchase Products and Services the Supplier and VITA will work together and how performance, including Deliverables and Services, is to be measured. The guide will provide process diagram details, working activities, and interface points with VITA and Supplier deliverables. Updated versions of the guide will be provided by Supplier to VITA and all Authorized Users every six (6) months during the Term, including any extensions, of the Contract.

22. TRAINING AND DOCUMENTATION

This section 22 applies to Services only.

A. Training In addition to any online tutorial training Supplier may make available, Supplier’s fee, unless expressly excluded, includes all costs for any and all training as agreed upon for the training of one (1) Authorized User trainer per order or SOW. In order to allow Authorized User the full benefit of the applicable Deliverable, the training will cover the use and operation of the Deliverable provided to Authorized User including instruction in any necessary conversion, manipulation, or movement of such Authorized User's data. Supplier shall provide personnel sufficiently experienced and qualified to conduct such training at a time and location mutually agreeable to Supplier and Authorized User. Available additional and optional training, and applicable pricing and discounts, are described in Exhibit B.

B. Documentation Supplier shall deliver to Authorized User complete copies of any Documentation applicable to the Deliverable(s) provided to Authorized User, in a quantity and media format as agreed upon by the Parties under an order or SOW. Should Supplier revise or replace the Documentation, or should Documentation be modified to reflect Updates, Supplier shall deliver to the Authorized User copies of the updated or replacement Documentation, in the same quantity and media format as originally requested by the Authorized User, or as agreed upon between the Parties. Any Authorized User will have the right, as part of any license grant, to make as many additional copies of the Documentation, in whole or in part, for its own use as required. This Documentation must include, but is not limited to, overview descriptions of all major functions, detailed step-by- step installation and operating procedures for each screen and activity, and technical reference manuals. Such Documentation must be revised to reflect any modifications, fixes or updates made by Supplier. Any Authorized User, at its own discretion, will have the right, as part of the license granted by Supplier, to modify or completely customize all or part of the Documentation in

http://vita2.virginia.gov/procurement/srs/

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support of the authorized use of the licensed Application or Software. The Authorized User may also duplicate such Documentation and include it in such Authorized User's document or platform. All Authorized Users shall continue to include Supplier's copyright notice.

C. Training for Non-MFDs Only if Authorized User’s order or SOW includes Supplier’s training services, Supplier is not responsible for initial training. Pursuant to a mutually agreed upon schedule, Supplier shall provide sufficient personnel experienced and qualified to conduct such training. Available optional training, and applicable pricing and discounts, are described in Exhibit B of this Contract.

23. AUTHORIZED USER SELF-SUFFICIENCY At Authorized User's request, and pursuant to an order or SOW for Supplier's Services issued under this Contract, Supplier shall provide all assistance reasonably required by Authorized User to develop Authorized User's self-sufficiency in operating and managing any combination of the Solution, Software, Products, or Services that Supplier provided to Authorized User under the applicable order or SOW. During or after the Transition Period, Authorized User may, at its sole discretion, elect to order or continue Maintenance Services from Supplier, if authorized under the scope of the Contract, for any of the Software or hardware Product, Components, or Solution Components delivered to Authorized User by Supplier.

24. COMPETITIVE PRICING Supplier will provide competitive prices, charges, economic or product terms, or warranties, and asserts that these items under this Contract are fair and reasonable. Supplier shall notify VITA of any new services or products that become generally available to all government customers during the Term of this Contract. New products and services are subject to the commercial terms associated with those products and services and must be formally added to this Contract before they can be purchased. Supplier shall also offer VITA commercially available national government products and services promotions and rates available at the time of purchase under the terms of those promotions, for which it is eligible.

25. CONFIDENTIALITY

A. Treatment and Protection Each Party shall:

i. hold in strict confidence all Confidential Information of any other Party;

ii. use the Confidential Information solely to perform or to exercise its rights under this Contract; and

iii. not transfer, display, convey or otherwise disclose or make available all or any part of the other Party’s Confidential Information to any third-party.

An Authorized User may, however, disclose the Confidential Information as delivered by Supplier to subcontractors, contractors, or agents of the Authorized User that are bound by non-disclosure agreements with the Authorized User. Each Party shall take the same measures to protect against the disclosure or misuse of the Confidential Information as it takes to protect its own proprietary or confidential information, but in no event will such measures be less than reasonable care.

B. Exclusions The term “Confidential Information” does not include information that is:

i. in the public domain through no fault of the receiving Party or of any other person or entity that is similarly contractually or otherwise obligated;

ii. obtained independently from a third-party without an obligation of confidentiality to the disclosing Party and without breach of this Contract;

iii. developed independently by the receiving Party without reference to the Confidential Information of the other Party; or

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iv. required to be disclosed under The Virginia Freedom of Information Act (Code §§ 2.2-3700 et seq.) or similar laws or pursuant to a court order.

C. Return or Destruction Upon the termination or expiration of this Contract, or upon the earlier request of the disclosing Authorized User, Supplier shall, at its own expense,

i. promptly return all tangible Confidential Information (and all copies thereof except the record required by law) to the disclosing Authorized User; or

ii. upon written request from the disclosing Authorized User, destroy any Confidential Information in Supplier’s possession or control, and provide the disclosing Authorized User with written certification of the destruction.

Additionally, Supplier shall cease all further use of the Authorized User’s Confidential Information, whether in tangible or intangible form.

The Authorized User shall retain and dispose of Supplier’s Confidential Information in accordance with the Commonwealth’s records retention policies or, if Authorized User is not subject to the Commonwealth’s policies, in accordance with the Authorized User’s own records retention policies.

D. Confidentiality Statement Supplier Personnel performing Services pursuant to this Contract may be requested to sign a confidentiality statement or non-disclosure agreement. Any violation of the statement or agreement will be deemed a breach of this Contract and may result in termination of the Contract or any order or SOW issued hereunder.

E. Freedom of Information Act Acknowledgement All Supplier documents now or later comprising the Contract may be released in their entirety under the Virginia Freedom of Information Act, and Supplier agrees that any confidentiality or similar stamps or legends that are attached to any future documents or information may be ignored to the extent they claim confidentiality beyond that permitted by the Virginia Freedom of Information Act.

26. INDEMNIFICATION AND LIABILITY

A. Indemnification Generally Supplier shall defend, indemnify, and hold harmless all Commonwealth Indemnified Parties from and against any third-party Claims to the extent the Claims in any way relate to, arise out of, or result from: i. any negligent act, negligent omission, or intentional or willful conduct of Supplier or any Supplier Personnel;

ii. a breach of any representation, warranty, covenant, or obligation of Supplier contained in this Contract;

iii. any defect in the Supplier-provided products or services; or

iv. any actual or alleged infringement or misappropriation of any third party’s intellectual property rights by any of the Supplier-provided products or services.

B. Defense of Claims Supplier will be solely responsible for all costs and expenses associated with the defense of all third-party Claims against Commonwealth Indemnified Parties. Selection and approval of counsel, and approval of any settlement, shall be accomplished in accordance with all applicable laws, rules, and regulations. For state agencies, the applicable laws include §§ 2.2-510 and 2.2- 514 of the Code.

C. Duty to Replace or Reimburse In the event of a Claim pursuant to any actual or alleged infringement or misappropriation of any third party’s intellectual property rights by any of the Supplier-provided products or services, or Supplier’s performance, Supplier shall, at its expense and option, either (a) procure the right to continue use of such infringing products or services, or any components thereof; or (b) replace or

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modify the infringing products or services, or any components thereof, with non-infringing products or services satisfactory to VITA.

In the event that an Authorized User cannot use the affected Deliverable, Product, Licensed Services, or Services, including any Components, then Supplier shall reimburse such Authorized User for the reasonable costs incurred by such Authorized User in obtaining an alternative product or service.

D. Supplier Dispute of Obligation to Indemnify If a Claim is commenced against any Commonwealth Indemnified Parties by a third party alleging an infringement of the third party’s intellectual property rights and Supplier is of the opinion that the allegations in the third-party Claim, in whole or in part, are not covered by the indemnification provision in this Contract, then In the event that Supplier disputes any of its obligations to defend or indemnify any Commonwealth Indemnified Party, then Supplier shall immediately notify VITA and the affected Authorized User(s) in writing and shall, nonetheless, take all reasonable steps to protect the rights, remedies, and interests of the Commonwealth Indemnified Parties in the defense of the Claim, including to secure a continuance to permit VITA and the affected Authorized User(s) to appear and defend their interests in cooperation with Supplier as is appropriate, including any jurisdictional defenses VITA or the affected Authorized User(s) may have.

27. LIABILITY

A. Supplier Liability Except for liability arising from any combination of:

i. any intentional or willful misconduct, fraud, or recklessness of Supplier or any Supplier Personnel;

ii. any act or omission of Supplier or any Supplier Personnel that results in Claims for bodily injury, including death, and damage to real property or tangible property resulting from the negligence of a Supplier or any Supplier Personnel; or

iii. Supplier’s indemnification, confidentiality, security compliance, or data privacy and security obligations as specified in this Contract,

Supplier’s indemnification obligations and liability shall not exceed, in aggregate, twice the value of the Contract. This limitation will apply on a per-incident basis; it being understood that multiple losses stemming from the same root cause constitute a single incident.

B. Limitation of Liability Supplier will be liable for damages caused by its employees, agents, or subcontractors. Except for liability arising out of a Party’s negligence or willful misconduct, neither Party will be liable to the other Party for any indirect, incidental, consequential, or punitive damages, including (without limitation) loss of profit, income, or savings, even if advised of the possibility of these damages.

28. INSURANCE In addition to the insurance coverage required by law as referenced in the “Incorporated Contractual Provisions” section of this Contract below, Supplier shall carry:

Errors and omissions insurance coverage in the amount of $2,000,000 per occurrence.

29. SECURITY COMPLIANCE Supplier shall comply with all provisions of the then-current Commonwealth security procedures, published by VITA and which may be found at: https://www.vita.virginia.gov/it-governance/itrm- policies-standards/, or any successor URL(s), as are pertinent to Supplier's operation. Further, Supplier shall comply with all applicable provisions of the relevant Authorized User's then-current security procedures as are pertinent to Supplier's operation and that have been provided to Supplier by the Authorized User. Supplier shall also comply with all applicable federal, state, and local laws and regulations.

https://www.vita.virginia.gov/it-governance/itrm-policies-standards/ https://www.vita.virginia.gov/it-governance/itrm-policies-standards/

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Any unauthorized release of any Confidential Information, or Commonwealth proprietary or personal information, by the Supplier or Supplier Personnel constitutes a breach of Supplier’s obligations under the Contract. Supplier shall notify VITA and any affected Authorized User within 24 hours of discovery of, or when Supplier should have discovered, any breach of “unencrypted” and “unredacted” personal information, as those terms are defined in Code § 18.2-186.6, and other confidential or personal identifying information provided to the Supplier by VITA or an Authorized User. To the extent permitted by law, Supplier shall provide VITA and any affected Authorized User the opportunity to participate in the investigation of the breach and to exercise control over reporting the unauthorized disclosure.

Supplier shall ensure performance of an audit of Supplier’s environment at least annually to provide assurance of “Controls Relevant to Security, Availability, Processing Integrity, Confidentiality or Privacy” in accordance with the then-current standards set forth by the American Institute of CPAs.

30. IMPORT/EXPORT Supplier shall comply with all data export laws and regulations. In addition, VITA policy requires that any data deemed “restricted” or “sensitive” by either federal or state authorities, may only be collected, developed, analyzed, or otherwise used or obtained by persons or entities working within the boundaries of the United States. Products and Services provided under this Contract are for Authorized User’s internal use and not for further commercialization. If Authorized User exports, imports or otherwise transfers Products or Deliverables provided under this Contract, Authorized User will be responsible for complying with applicable laws and regulations and for obtaining any required export or import authorizations. Supplier may suspend its performance under this Contract to the extent required by laws applicable to either party.

31. BANKRUPTCY If Supplier becomes insolvent, takes any step leading to its cessation as a going concern, fails to pay its debts as they become due, or ceases business operations continuously for longer than 15 business days, then VITA may immediately terminate this Contract, and an Authorized User may terminate an order or SOW, on notice to Supplier unless Supplier immediately gives VITA or such Authorized User adequate assurance of the future performance of this Contract or the applicable order or SOW. If this Contract has not been otherwise terminated and bankruptcy proceedings are commenced with respect to Supplier, then VITA may suspend all further performance of this Contract until Supplier assumes this Contract and provides adequate assurance of its performance of Supplier’s contractual obligations or rejects this Contract pursuant to Section 365 of the Bankruptcy Code or any similar or successor provision, it being agreed by VITA and Supplier that this is an executory contract. Any suspension of further performance by VITA or Authorized User pending Supplier’s assumption or rejection will not be a breach of this Contract, and will not affect the rights of VITA or any Authorized User to pursue or enforce any of its rights under this Contract or otherwise.

32. GENERAL PROVISIONS

A. Relationship Between VITA and Authorized User and Supplier Supplier has no authority to contract for, bind or commit to any agreement of any kind, or to assume any liabilities of any nature in the name of or on behalf of VITA or any Authorized User. Under no circumstances will Supplier, or any Supplier Personnel, hold itself out as or be considered an agent or an employee of VITA or any Authorized User, and neither VITA nor any Authorized User will have any duty to provide or maintain any insurance or other employee benefits on behalf of Supplier or any Supplier Personnel. Supplier represents and warrants that it is an independent contractor for purposes of federal, state, and local employment taxes, and agrees that neither VITA nor any Authorized User is responsible to collect or withhold for Supplier any federal, state, or local employment taxes, including, but not limited to, income tax withholding and social security contributions. Supplier shall pay or withhold any and all taxes, interest or penalties (including, but not limited to, any federal, state, or local withholding or employment taxes, and any penalties related to health care or employee benefits laws) that are imposed, assessed, or levied as a result of this Contract or Services performed pursuant to this Contract. Supplier shall reimburse VITA or any Authorized User in the event that any taxes, interest or penalties are assessed against and paid by VITA or any Authorized User as a result of this Contract.

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B. Licensing Within the Commonwealth Any and all licenses granted or provided pursuant to this Contract, whether to Work Product, System Software, COTS Software, or any other Software will be held by:

i. the Commonwealth, if the Authorized User is an agency as defined by Code § 2.2-2006 or a legislative, judicial and independent agency of the Commonwealth, board, commission, or other quasi-political entity of the Commonwealth of Virginia or other body referenced in Title 2.2 of the Code;

ii. the applicable public body, if the Authorized User is a locality, municipality, school, school system, college, university, local board, local commission, or local quasi-political entity; or

iii. the applicable private institution of higher education, if the Authorized User is a private institution of higher education listed at: http://www.cicv.org/Our-Colleges/Profiles.aspx

C. Incorporated Contractual Provisions In addition to the terms, conditions, and obligations of this Contract, Supplier agrees to the VITA “Mandatory Contract Terms” which consist of the VITA:

• “Core Contractual Terms”;

• “Required eVA Terms and Conditions”; and

• “Mandatory Internal Revenue Service (IRS) Publication 1075 (required for FTI data only)”

Each of these Mandatory Contract Terms are set forth at the following URL and incorporated into this Contract by reference: https://www.vita.virginia.gov/supply-chain/scm-policies- forms/mandatory-contract-terms/.

Supplier agrees that non-compliance with the above-referenced Mandatory Contract Terms and IRS Publication 1075 may be deemed, solely by VITA, as a material breach of the applicable order or SOW or of the Contract. Supplier is responsible for verifying the correct and current version of this IRS publication and related safeguarding terms language and acknowledges that any Authorized User issuing the order or SOW will be held harmless.

The terms and conditions set forth in documents posted at the URL above, and any successor URL(s), are subject to change pursuant to action by the legislature of the Commonwealth, change in VITA policy, adoption of revised eVA business requirements, or change to IRS Publication 1075. If a change is made to any of the Mandatory Contract Terms documents, a new effective date will be noted in the applicable document title. Supplier is advised to check the URLs, or their successors, periodically.

D. Compliance with the Federal Lobbying Act Supplier’s signed certification of compliance with 31 U.S.C.§ 1352 (entitled "Limitation on use of appropriated funds to influence certain Federal Contracting and financial transactions") or by the regulations issued from time to time thereunder is incorporated as Exhibit G to this Contract.

E. Ethics in Public Contracting By signing this Contract, Supplier warrants that its assent to this Contract is made without collusion or fraud, and that Supplier has not offered or received any kickbacks or inducements from any other bidder, supplier, manufacturer or subcontractor in connection with their proposal or the terms of this Contract. Further, Supplier warrants that it has not conferred any payment, loan, subscription, advance, deposit of money, services, or anything of more than nominal value, present or promised, on any public employee having official responsibility for this procurement transaction, unless consideration of substantially equal or greater value was exchanged. In addition, Supplier warrants that it will notify VITA if it becomes aware of a potential conflict of interest in the future.

F. Governing Law This Contract is governed by and will be construed in accordance with the laws of the Commonwealth of Virginia without regard to that body of law controlling choice of law. Any and all litigation relating to this Contract must be brought in the circuit courts of the Commonwealth of Virginia. The English language version of this Contract prevails when interpreting this Contract. The United Nations Convention on Contracts for the International Sale of Goods and all other

http://www.cicv.org/Our-Colleges/Profiles.aspx https://www.vita.virginia.gov/supply-chain/scm-policies-forms/mandatory-contract-terms/ https://www.vita.virginia.gov/supply-chain/scm-policies-forms/mandatory-contract-terms/

VA-191121-HP Page 39 of 43

laws and international treaties or conventions relating to the sale of goods are expressly disclaimed. The Uniform Computer Information Transactions Act applies to this Contract only to the extent required by Code § 59.1-501.15.

G. Dispute Resolution In accordance with Code § 2.2-4363, contractual claims, whether for money or other relief, must be submitted in writing to the public body from whom the relief is sought no later than 60 calendar days after final payment; however, written notice of the Supplier's intention to file such claim must be given to such public body at the time of the occurrence or beginning of the work upon which the claim is based. Pendency of claims will not delay payment of amounts agreed due in the final payment. The relevant public body shall render a final decision in writing within 30 calendar days after its receipt of the Supplier's written claim.

The Supplier may not invoke any available administrative procedure under the Code nor institute legal action prior to receipt of the decision of the relevant public body on the claim, unless that public body fails to render its decision within 30 calendar days. The decision of the relevant public body will be final and conclusive unless the Supplier, within six (6) months of the date of the final decision on the claim, invokes appropriate action under Code § 2.2-4364 or the administrative procedure authorized by Code § 2.2-4365.

Upon request from the public body from whom the relief is sought, Supplier shall submit any and all contractual disputes arising from this Contract to the public body’s alternative dispute resolution (“ADR”) procedures, if any. Supplier may invoke such public body’s ADR procedures, if any, at any time and concurrently with any other statutory remedies prescribed by the Code.

In the event of any failure to pay breach by a Commonwealth agency, Supplier’s remedies will be limited to claims for damages and interest allowable under the Prompt Payment Act and, if available and warranted, equitable relief. All such claims to be processed pursuant to this Section. In no event will Supplier’s remedies include the right to terminate any license or support services hereunder.

H. Assignment This Contract is binding upon and will inure to the benefit of the permitted successors and assigns of VITA and Supplier. Supplier may not assign, subcontract, delegate or otherwise convey this Contract or any of its rights and obligations under this Contract, to any entity without the prior written consent of VITA, and any attempted assignment or subcontracting without consent will be void. VITA may assign this Contract to any entity, so long as the assignee agrees in writing to be bound by the all the terms and conditions of this Contract.

If any law limits the right of VITA or Supplier to prohibit assignment or nonconsensual assignments, the effective date of the assignment will be 30 calendar days after the Supplier gives VITA prompt written notice of the assignment, signed by authorized representatives of both the Supplier and the assignee. Any payments made prior to receipt of such notification will not be covered by this assignment.

I. Severability Invalidity of any term of this Contract, in whole or in part, will not affect the validity of any other term. VITA and Supplier further agree that in the event such provision is an essential part of this Contract, they shall immediately begin negotiations for a suitable replacement provision.

J. Survival Any provisions of this Contract regarding Software License, Rights To Work Product, Warranty, Escrow, Confidentiality, Content Privacy and Security, Liability, Indemnification, Transition of Services, the right to purchase Maintenance Services, and the General Provisions will survive the expiration or termination of this Contract.

K. Force Majeure No Party will be responsible for the delay or failure to meet its obligations under this Contract if the delay or failure arises from causes beyond the reasonable control and without the fault or negligence of the obligated Party. If any performance date under this Contract is postponed or extended pursuant to this Section for longer than 30 calendar days, VITA, by written notice given

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during the postponement or extension, may terminate Supplier’s right to render further performance after the effective date of termination without liability for that termination, and in addition an Authorized User may terminate any order or SOW affected by such postponement or delay.

L. No Waiver Any failure to enforce any terms of this Contract will not constitute a waiver.

M. Remedies The remedies set forth in this Contract are intended to be cumulative. In addition to any specific remedy, Supplier, VITA and all Authorized Users reserve any and all other remedies that may be available at law or in equity.

N. Right to Audit VITA reserves the right to audit those Supplier records that relate to the Contract or any SOWs or orders issued there under, which is limited to any Authorized Users orders and payment records for the purposes of determining the accuracy of such charges. VITA's right to audit is limited as follows:

i. three (3) years from end date of the Contract;

ii. at VITA’s expense;

iii. no more than once per every twelve (12) months;

iv. performed at Supplier's premises, during normal business hours at mutually agreed upon times;

v. access to Supplier product or labor cost information, personnel-related information, or proprietary data relating to Supplier’s products, services, or customers is excluded;

vi. VITA or its auditor shall promptly provide Supplier with a copy of the results of the audit; and

vii. If VITA wishes to select a third-party auditor to perform such audit, such auditor shall sign a confidentiality agreement reasonably agreeable to Supplier prior to commencement of the audit, and the result of the audit shall be subject to such confidentiality agreement.

In no event will Supplier have the right to audit, or require to have audited, VITA or any Authorized User.

O. Taxes The Commonwealth is exempt from Federal excise and all State and Local taxes and any such taxes may not be included in Contract prices. Tax certificates of exemption, Form ST-12 can be obtained from Authorized Users upon request. Deliveries against this Contract shall be free of Federal excise and transportation taxes. The Commonwealth’s excise tax exemption registration number is 54-73-0076K.

P. Currency All prices, costs, or fees in this Contract and all exhibits, schedules, orders, or SOWs will be in United States dollars.

Q. Advertising and Use of Proprietary Marks No Party may use the name of the other Party or refer to the other Party, directly or indirectly, in any press release or formal advertisement without receiving prior written consent of the other Party. In no event may any Party use a proprietary mark of the other Party without receiving the prior written consent of the other Party.

R. Notices Any notice required or permitted to be given under this Contract must be in writing and will be deemed to have been sufficiently given if delivered in person, or if deposited in the U.S. mails, postage prepaid, for mailing by registered, certified mail, or overnight courier service addressed:

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i. To VITA and to Supplier, if Supplier is incorporated or formed pursuant to the laws of the Commonwealth, to the addresses shown on the signature page.

ii. To Supplier, if Supplier is incorporated or formed outside the Commonwealth, to the address shown on the signature page and to the Registered Agent registered with the Virginia State Corporation Commission.

Pursuant to Title13.1 of the Code, VITA or Supplier may change its address for notice purposes by giving the other Party notice of such change in accordance with this Section.

Administrative contract renewals, modifications or non-claim related notices are excluded from the above requirement. Such written, or signed, or both, contract administration actions may be processed by the assigned VITA and Supplier points of contact for this Contract and may be given in person, via U.S. mail, courier service or electronically.

S. Offers of Employment During the first twelve (12) months of the Contract, Supplier and Authorized User agree not to solicit or make offers of employment to any employee of the other party who has substantially worked on any project covered by this Contract without prior written consent. Both parties shall not be prevented from hiring any such employee who responds to a general hiring program conducted in the ordinary course of business and not specifically directed to such employees of either party.

T. Contract Administration Supplier agrees that at all times during the term of this Contract an account executive, at Supplier's senior management level, will be assigned and available to VITA. Supplier reserves the right to change such account executive upon reasonable advance written notice to VITA.

U. Captions The captions of sections and subsections of this Contract are for convenience and in no way define, limit, or enlarge the scope of this Contract or any of its sections.

V. Entire Contract The following exhibits, including all subparts thereof, are attached to this Contract and are made a part of this Contract for all purposes: Exhibit A – Requirements & SLAs Exhibit B – Pricing Exhibit C – C-1, Statement of Work (SOW) Template; and C-2, Managed Print Services Statement of Work Template Exhibit D – Change Order Template Exhibit E – Awarded Categories Exhibit F – End User Licensing Agreement Exhibit G – Certification Regarding Lobbying Exhibit H – Supplier Procurement and Subcontracting Plan This Contract, its exhibits, and any prior non-disclosure agreement constitute the entire agreement between VITA and Supplier and supersede any and all previous representations, understandings, discussions or agreements between VITA and Supplier as to the subject matter of this Contract. Any and all terms and conditions contained in, incorporated into or referenced by the Supplier’s proposal are deemed invalid. The provisions of the Virginia Department of General Services, Division of Purchases and Supply Vendor’s Manual will not apply to this Contract or any order issued pursuant to the Contract. This Contract may only be amended by an instrument in writing signed by VITA and Supplier. An Authorized User and Supplier may enter into an ordering agreement pursuant to this Contract. To the extent that an ordering agreement, or any order or SOW issued pursuant to this Contract, includes any terms and conditions inconsistent with the terms and conditions of this Contract, the terms and conditions of the order or SOW will be of no force and effect.

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W. Order of Precedence In the event of a conflict, the following order of precedence shall apply: this Contract document, Exhibit A, any individual SOW or Purchase Order, Exhibit B, Exhibit F, Exhibit G, Exhibit H, and then any project specific order. In the event of a conflict or inconsistency between the negotiated terms of this Contract and any provision incorporated by reference into the Contract (e.g., a section of a License Agreement), the negotiated terms of this Contract will take precedence. For purposes of this section, a “conflict” exists with respect to a subject that has been comprehensively addressed in the Contract when supplementary terms contained in a provision incorporated by reference would alter the rights and obligations of the Parties set forth in the Contract.

X. Counterparts and Electronic Signatures This Contract may be executed in multiple counterparts, each of which, when assembled to include an original signature for each of Supplier and VITA, will constitute a complete and fully executed original. All fully executed original counterparts will collectively constitute a single agreement. Signatures transmitted by fax or electronic mail (in portable data format (“PDF”)) are also permitted as binding signatures to this Contract.

Y. Opportunity to Review VITA and Supplier each acknowledge that it has had the opportunity to review this Contract and to obtain appropriate legal review if it so chose.

[SIGNATURE PAGE(S) TO FOLLOW]

1. PURPOSE AND SCOPE 2. DEFINITIONS A. Acceptance B. Agent C. Application D. Authorized Users E. Claim F. Code G. Commercial Off-The-Shelf (“COTS”) Software H. Commonwealth I. Commonwealth Indemnified Parties J. Component K. Computer Virus L. Confidential Information M. Consumables N. Contract O. Contractor P. Deliverable Q. Early Termination Fees R. Effective Date S. Federal Tax Information (“FTI”) T. Industrial Funding Adjustment (“IFA”) U. Lease Agreement V. Lease Term W. Maintenance Coverage Period (“MCP”) X. Maintenance Level Y. Maintenance Services Z. Managed Print Services (“MPS”) AA. Multifunction Device (“MFD”) BB. Operating Condition CC. Party DD. Performance Changes EE. Preventative Maintenance FF. Product GG. Prompt Payment Act HH. Realized Sales II. Receipt JJ. Rental Agreement KK. Rental Services LL. Rental Term MM. Requirements NN. Response Time OO. Safety Changes PP. Services QQ. Software RR. Software Publisher SS. Solution TT. Statement of Work (“SOW”) UU. Subcontractor VV. Supplier WW. Supplier Personnel XX. Supplier Reporting System (“SRS”) YY. SWaM ZZ. System Software AAA. Term BBB. Update CCC. VITA DDD. Warranty Period EEE. Intellectual Property Rights

3. TERM AND TERMINATION A. Contract Term B. Termination for Convenience C. Termination for Breach D. Termination for Non-Appropriation of Funds E. Effect of Termination Termination by Supplier F. Transition of Services G. Contract Kick-Off Meeting H. Contract Closeout

4. PERSONNEL A. Selection and Management of Supplier Personnel B. Subcontractors

5. NEW TECHNOLOGY A. Access to New Technology B. New Service Offerings Not Available from Supplier

6. GENERAL WARRANTY A. Ownership B. Coverage Period C. Performance Warranty D. Documentation and Deliverables E. Malicious Code F. Open Source G. Supplier’s Viability H. Supplier’s Past Experience

7. SCOPE OF USE 8. SYSTEM SOFTWARE LICENSE A. License Grant B. Authorized User Compliance C. No Subsequent, Unilateral Modifications of Terms by Supplier (“Shrink-Wrap”) D. Reservation of Rights

9. DELIVERY AND INSTALLATION A. Delivery Procedure B. Late Delivery C. Product Trade-in and Upgrade D. Product Installation

10. ACCEPTANCE A. Product Acceptance B. Cure Period

11. PERFORMANCE LEVELS FOR PURCHASED AND RENTED PRODUCTS A. Purchased, Leased or Rented Product A. Return of Product

12. SERVICES FOR PURCHASED AND RENTED PRODUCTS A. Service Offerings B. Performance of Maintenance Services or Rental Services C. Defects or Malfunctions

13. PRODUCT SUPPORT AND ADDITIONAL SERVICES A. Authorized User or Third Party Support B. Engineering Changes and Product Modification C. Parts and Maintenance Support D. Inventory Record E. Product Service Record F. Product Discontinuation G. Additional Services

14. WARRANTY AND REMEDY OF PRODUCT A. Compatibility B. Product C. Warranty Services

15. MAINTENANCE SERVICES A. Ordering B. Renewal C. Offered Services D. Services for MCP, Lease Term, or Rental Term

16. RENEWAL OF LEASE OR RENTAL PRODUCT 17. HARDWARE-SPECIFIC PROVISIONS A. Trial (Demonstration) Period for MFD’s

18. FEES, ORDERING, AND PAYMENT PROCEDURE A. Fees and Charges B. Reproduction Rights for Supplier-Provided Software C. Demonstration and/or Evaluation D. Supplier Quote and Request for Quote E. Competitive Request for Quotes F. Ordering G. Orders for Lease-Rental Products or MPS H. Orders for Lease-Purchase Products I. Orders that Include Trade-in Products J. Statement of Work K. Invoice Procedures L. Purchase Payment Terms M. Payment for Lease or Rental Products or MPS N. Additional Leasing Terms for Wide Format, High Speed Printers O. Reimbursement of Expenses P. Disputed Charges

19. SUPPLIER SPONSORED PROMOTIONS 20. REPORTING A. Amount of Realized Sales B. Small Business Procurement and Subcontracting Spend

21. POLICIES AND PROCEDURES GUIDE 22. TRAINING AND DOCUMENTATION A. Training B. Documentation C. Training for Non-MFDs

23. AUTHORIZED USER SELF-SUFFICIENCY 24. COMPETITIVE PRICING 25. CONFIDENTIALITY A. Treatment and Protection B. Exclusions C. Return or Destruction D. Confidentiality Statement E. Freedom of Information Act Acknowledgement

26. INDEMNIFICATION AND LIABILITY A. Indemnification Generally B. Defense of Claims C. Duty to Replace or Reimburse D. Supplier Dispute of Obligation to Indemnify

27. LIABILITY A. Supplier Liability B. Limitation of Liability

28. INSURANCE 29. SECURITY COMPLIANCE 30. IMPORT/EXPORT 31. BANKRUPTCY 32. GENERAL PROVISIONS A. Relationship Between VITA and Authorized User and Supplier B. Licensing Within the Commonwealth C. Incorporated Contractual Provisions D. Compliance with the Federal Lobbying Act E. Ethics in Public Contracting F. Governing Law G. Dispute Resolution H. Assignment I. Severability J. Survival K. Force Majeure L. No Waiver M. Remedies N. Right to Audit O. Taxes P. Currency Q. Advertising and Use of Proprietary Marks R. Notices S. Offers of Employment T. Contract Administration U. Captions V. Entire Contract W. Order of Precedence X. Counterparts and Electronic Signatures Y. Opportunity to Review