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12-196Resolution No. 12 -196 RESOLUTION AUTHORIZING PURCHASE OF DISASTER RECOVERY SITE SERVER, STORAGE HARDWARE AND RELATED EQUIPMENT FROM DELL MARKETING, LP PURSUANT TO A MASTER PRICE AGREEMENT WITH MIDWESTERN HIGHER EDUCATION COMMISSION BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN, ILLINOIS, that the purchase of disaster recovery site server and storage hardware and related equipment in the amount of $ 126,556 from Dell Marketing, LP pursuant to aquotation from Dell Marketing, LP dated November 30, 2012, and pursuant to the terms of aMaster Price Agreement with Midwestern Higher Education Commission be and is hereby authorized, copies of such quote and master price agreement being attached hereto and made a part hereof by reference. BE IT FURTHER RESOLVED that Sean R. Stegall, City Manager, is hereby authorized and directed to execute necessary documents in conjunction with the purchase authorized herein. s/ David J. Kaptain David J. Kaptain, Mayor Presented: December 14, 2012 Adopted: December 14, 2012 Vote: Yeas: 7 Nays: 0 Attest: s/ Kimberly Dewis Kimberly Dewis, City Clerk Quote #: 638501574 Customer #: 003514419 Contract #: 45ABZ CustomerAgreement #: 090701.02 Quote Date: 11/3012012 Date: 1113 0/2 01 2 Customer Name: ELGIN POLICE DEPT Thanks for choosing Dell! Your quote is detailed below, please review the quote for product and informational accuracy. If you find errors or desire certain changes please contact your sales professional as soon as possi SALES REP: Mark byrd PHONE: 1800 - 5713355 Email Address: Mark Bvrd(.Dell.COm Phone Ext: 80000 Dell EqualLogic PS6110E, 10Gb, High Capacity, 7.2K NL SAS Drives Base Unit (225 -2857) PS6110E, 72TB capacity, 7.2K NIL SAS, 24x 3TB (342 -4519) Dual Controllers, 10Gb, HA with failover (331 -6722) EqualLogic array may not be returned (468 -8817) 1 Synchronous and Point -in -Time Replication (468 -7110) 1 Snaps /Clones with integration for MS SQL, Exchange, Hyper V and VMware (468 -7155) 1 SAN HQ multi group monitoring software (468 -7156) 1 RackRails, RapidRails for Dell Rack (330 -6048) 1 MISSION CRITICAL PACKAGE: Enhanced Services, 3 Year (936 -3957) 1 ProSuppon for your Enterprise: 7x24 HW / SW Tech Support and Assistance, 3 Year (937 -9113) 1 Mission Critical Package: 4 -Hour 7x24 On -Site Service with Emergency Dispatch, Initial Year (968 -3575) 1 Dell Hardware Limited Warranty Initial Year (968 -3591) 1 Dell Hardware Limited Warranty Extended Year (968 -3595) 1 Mission Critical Package: 4 -Hour 7x24 On -Site Service with Emergency Dispatch, 2 Year Extended (968 -3615) 1 Dell ProSupport. For tech support, visit http: / /support.dell.comtProSupport or call 1 -800- 945 -3355 (989 -3439) 1 EqualLogic Advanced Software Warranty and Service,7x24 Access,3 Year (995 -4008) 1 Installation and Implementation of Dell EqualLogic 3 -2 -1 Bundle for vSphere (934 -5219) 1 Proactive Maintenance Service Declined (926 -2979) 1 EqualLogic Reference Architecture, PC81 xx,PS6110 /PS6510,up to 3 arrays (968 -1788) 1 Power Cord, C13 to C14, PDU Style, 12 Amps, 2 meter, Qty 1 (330 -3151) 1 Power Cord, C13 to 014, PDU Style, 12 Amps, 2 meter, Qty 1 (330 -3151) 1 PowerEdge KVM 2162DS - 16 Port Keyboard/Video /Mouse Digital Switch Base Unit (225 -1858) 1 Dell Hardware Warranty, Initial Year (925 -2717) 1 Mission Critical Package: 4 -Hour 7x24 On -Site Service with Emergency Dispatch, 2 Year Extended (929 -8432) 1 ProSupport : 7x24 HW / SW Tech Support and Assistance, 3 Year (929- 8602) 1 Dell Hardware Limited Warranty Extended Year(s) (931 -7258) 1 MISSION CRITICAL PACKAGE: Enhanced Services, 3 Year (931 -7298) 1 Mission Critical Package: 4 -Hour 7x24 On -Site Service with Emergency Dispatch, Initial Year (935 -4420) 1 Dell ProSupport. For tech support, visit http: / /support.dell.com /ProSupport or call 1 -800- 945 -3355 (989 -3439) 1 On -Site Installation Declined (900 -9997) 1 USB Server Interface Pod, includes CAT 5 cables, TAA (430 -4339) 8 Dell 4220 42U Rack with Doors and Side Panels, Ground Ship NOT for Base Unit AK / HI (224 -4934) 1 U KMM Console with Touchpad Keyboard and 17 LCD, Rapid Rails (310 -9961) Basic: Business Hours (5X10) Next Business Day Parts Delivery 2Year Extended (992 -1802) Basic: Business Hours (5X10) Next Business Day Parts Delivery Initial Year (992 -5080) Dell Hardware Limited Warranty Extended Year (993 -4108) Dell Hardware Limited Warranty Initial Year (993 -4117) Installation of a Dell PowerEdge Rack (980 -7677) Base Unit PowerEdge R720 (225 -2133) 1 Mission Critical Package: 4 -Hour 7x24 On -Site Service with Emergency Dispatch, 2 Year Extended (936 -4573) 1 ProSupport: 7x24 HW / SW Tech Support and Assistance, 3 Year (936- 4613) 1 Dell Hardware Limited Warranty Plus On Site Service Extended Year (939 -2678) 1 Dell Hardware Limited Warranty Plus On Site Service Initial Year (939- 2768) 1 Mission Critical Package: 4 -Hour 7x24 On -Site Service with Emergency Dispatch, Initial Year (988 -9221) 1 Dell ProSupport. For tech support, visit http: / /support.dell.com /ProSupport or call 1- 800 - 945 - 3355(989 -3439) 1 MISSION CRITICAL PACKAGE: Enhanced Services, 3 Year (996 -8019) 1 On -Site Installation Declined (900 -9997) 1 PowerEdge R720 Shipping (331 -4437) 1 Risers with up to 6, x8 PCIe Slots + 1, x16 PCIe Slot (331 -4440) 1 SFP +, Short Range, Optical Tranceiver, LC Connector, 10Gb and 1Gb compatible (330 -8723) 2 SFP +, Short Range, Optical Tranceiver, LC Connector, 1OGb and 1Gb compatible (330 -8723) 2 Broadcom 57810 Dual Port 10Gb Direct Attach /SFP+ Network Adapter (430 -4421) 2 VFlash, 8GS SD Card for iDRAC Enterprise (342 -1413) 1 iDRAC7 Enterprise (421 -5339) 1 Broadcom 5720 QP 1 Gb Network Daughter Card (430 -4418) 1 2.5' Chassis with up to 8 Hard Drives (317 -8472) 1 Bezel (318 -1375) 1 Performance BIOS Setting (330 -3492) 1 RAID 1 for H710P/H710/H310 (2 HDDs) (331 -4381) PERC H710 Integrated RAID Controller, 512MB NV Cache (342 -3529) Intel Xeon E5 -2640 2.50GHz, 15M Cache, 7.2GT /s QPI, Turbo, 6C, 95W, Max Mem 1333MHz (317 -9595) 1 Heat Sink for PowerEdge R720 and R720xd (331 -4508) 1 DIMM Blanks for Systems with 2 Processors (317 -8688) 1 Intel Xeon E5 -2640 2.50GHz, 15M Cache, 7.2GT /s QPI, Turbo, 6C, 95W (317 -9609) 1 Heat Sink for PowerEdge R720 and R720xd (331 -4508) 1 16GB RDIMM, 1333 MT /s, Low Volt, Dual Rank, x4 Data Width (317- 1 9639) 8 1333 MHz RDIMMs (331 -4422) 1 Performance Optimized (331 -4428) 1 30OGB 15K RPM SAS 6Gbps 2.5in Hot -plug Hard Drive (342 -2240) 2 Electronic System Documentation and OpenManage DVD Kit for R720 and R720xd (331 -5914) 1 DVD + / -RW, SATA, INTERNAL (313 -9090) 1 ReadyRaiis Sliding Rails With Cable Management Arm (331 -4433) 1 Dual, Hot -plug, Redundant Power Supply (1 +1), 750W (331 -4605) 1 Power Cord, C13 to C14, PDU Style, 12 Amps, 2 meter, Qty 1 (330 -3151) 2 No Operating System (420 -6320) 1 No Media Required (421 -5736) 1 Dell Management Plug -in for VMware vCenter 3 Server Ltd, 3Yr Subscription (421 -8314) 1 Base Unit PowerEdge R720 (225 -2133) 1 Mission Critical Package: 4 -Hour 7x24 On -Site Service with Emergency Dispatch, 2 Year Extended (936 -4573) 1 ProSupport: 7x24 HW / SW Tech Support and Assistance, 3 Year (936- 4613) 1 Dell Hardware Limited Warranty Plus On Site Service Extended Year (939 -2678) 1 Dell Hardware Limited Warranty Plus On Site Service Initial Year (939- 2768) 1 Mission Critical Package: 4 -Hour 7x24 On -Site Service with Emergency Dispatch, Initial Year (988 -9221) 1 Dell ProSupport. For tech support, visit http : / /support.dell.com /ProSupport or call 1- 800 - 945 - 3355(989 -3439) 1 MISSION CRITICAL PACKAGE: Enhanced Services, 3 Year (996 -8019) 1 On -Site Installation Declined (900 -9997) 1 PowerEdge R720 Shipping (331 -4437) 1 Risers with up to 6, x8 PCIe Slots + 1, x16 PCIe Slot (331 -4440) 1 SFP +, Short Range, Optical Tranceiver, LC Connector, 10Gb and 1Gb compatible (330 -8723) 2 SFP +, Short Range, Optical Tranceiver, LC Connector, 10Gb and 1Gb compatible (330 -8723) 2 Broadcom 57810 Dual Port 10Gb Direct Attach /SFP+ Network Adapter (430 -4421) 2 VFlash, 8GB SD Card for DRAG Enterprise (342 -1413) 1 iDRAC7 Enterprise (421 -5339) 1 Broadcom 5720 QP 1 G Network Daughter Card (430 -4418) 1 2.5" Chassis with up to 8 Hard Drives (317 -8472) 1 Bezel (318 -1375) 1 Performance BIOS Setting (330 -3492) 1 RAID 1 for H710P/H710/H310 (2 HDDs) (331 -4381) 1 PERC H710 Integrated RAID Controller, 512MB NV Cache (342 -3529) 1 Intel Xeon E5 -2640 2.50GHz, 15M Cache, 7.2GT /s QPI, Turbo, 6C, 95W, $248.79 Max Main 1333MHz (317 -9595) 1 Heat Sink for PowerEdge R720 and R720xd (331 -4508) 1 DIMM Blanks for Systems with 2 Processors (317 -8688) 1 Intel Xeon E5 -2640 2.50GHz, 15M Cache, 7.2GT /s QPI, Turbo, 6C, 95W 6 (317 -9609) 1 Heat Sink for PowerEdge R720 and R720xd (331 -4508) 1 16GB RDIMM, 1333 MT /s, Low Volt, Dual Rank, x4 Data Width (317- 1 9639) 8 1333 MHz RDIMMs (331 -4422) 1 Performance Optimized (331 -4428) 1 300GB 15K RPM SAS 6Gbps 2.5in Hot -plug Hard Drive (342 -2240) 2 Electronic System Documentation and OpenManage OVD Kit for R720 and R720xd (331 -5914) 1 DVD + / -RW, SATA, INTERNAL (313 -9090) 1 ReadyRails Sliding Rails With Cable Management Arm (331 -4433) 1 Dual, Hot -plug, Redundant Power Supply (1 +1), 750W (331 -4605) 1 Power Cord, C13 to C14, PDU Style, 12 Amps, 2 meter, Qty 1 (330 -3151) 2 No Operating System (420 -6320) 1 No Media Required (421 -5736) 1 Product APC Smart-UPS 6000 VA 208 V Rack Tower UPS System (At 753042) American Power Conversion AP7541 Zero U Basic Rack Power Distribution Unit (At 200108) Deli Education Services - No EqualLOgic Training Requested - visit www.Learndeil.com (994 -3849) vSphere 5.x Enterprise for 1 socket (A5334256) Production Support/Subscription for VMware vSphere 5 Enterprise for 1 processor for 3 years (A5334513) VMware vCenter Server 5 Standard for vSphere 5 Per Instance (A5334460) Production Support/Subscription for vCenter Server 5 Standard for vSphere 5 for 3 years (A5334490) Product Subtotal: Tax: Shipping & Handling: State Environmental Fee: Shipping Method: $126,555.53 $0.00 $0.00 $0.00 LTL 5 DAY OR LESS Quantity Unit Price Total 2 $3,364.46 $6,728.92 2 $248.79 $497.58 1 $0.00 $0.00 6 $2,497.99 $14,987.94 6 $1,855.40 $11,132.40 1 $4,339.99 $4,339.99 1 $3,223.08 $3,223.08 (` Amount denoted in $) Statement of Conditions The information in this document is believed to be accurate. However, Dell assumes no responsibility for inaccuracies, errors, or omissions, and shall not be liable for direct, indirect, special, incidental, or consequential damages resulting from any such error or omission. Dell is not responsible for pricing or other errors, and reserves the right to cancel orders arising from such errors. Deli may make changes to this proposal including changes or updates to the products and services described, including pricing, without notice or obligation. This proposal is not intended to create a contractual relationship. Unless expressly agreed otherwise in a writing signed by the parties, all orders by ELGIN POLICE DEPT for Dell products and services shall be subject to Dell's Terms and Conditions of Sale- Direct, which can be found atwww.dell.com /terms, and which incorporate Deli's U.S. Return Policy, at www.dell.com /return olicv# total . Please read those terms carefully and in their entirety, and note in particular that Dell EqualLogic and EquaiLogic- branded products, DeIIJEMC and EMC - branded products, PowerVault ML6000 tape libraries, non - Deli- branded enterprise products, enterprise software, and customized hardware or software products may not be returned at any time. Orders also shall be subject to the terms of any applicable service contract(s), which can be found at wwww.dell com /servicecontracts. All information supplied to ELGIN POLICE DEPT for the purpose of this proposal is to be considered confidential information belonging to Dell. About Dell Dell Inc. (NASDAQ: DELL) listens to customers and delivers innovative technology and services they trust and value. Uniquely enabled by its direct business model, Dell is a leading global systems and services company and No. 34 on the Fortune 500. For more information, visit www.dell.com. Privacy Policy Dell respects your privacy. Across our business, around the world, Deli will collect, store, and use customer information only to support and enhance our relationship with your organization, for example, to process your purchase, provide service and support, and share product, service, and company news and offerings with you. Dell does not sell your personal information. For a complete statement of our Global Privacy Policy, please visit dell_cgn rivac . Contract No.: MHEC- 090701:02 MHECIDell -- Master Price Agreement Effective August 1, 2009 through June 30, 2012 Dell Marketing L.P., (Dell) located at One Dell Way, Round Rock TX, 78682, USA, and the Midwestern Higher Education Commission (MHEG ) ,located at 1300 South Second Street, Suite 130, Minneapolis, Minnesota, 55454 on behalf of the Eligible Organizations located in the MHEC member states enter into this'MHECIDeti Master Price Agreement (Master Agreement), subject: to the terms and conditions herein, effective this ' +Ist day of August; 2009 (Effective Date). For purposes, of this Master Agreement, Dell and MHEG We tCl Cti.:GU iV uunr,Ucwciy na. ❑a4 raivaa ui. ttivaVauwaery as <raiiy. ._.. 1. Definitions Authorized Agents,�refers to marketing agents, agents or order fulfillers authorized by : Dell to provide Products and Services under this Master Agreement. Dell will list Authorized Agents on an internetsite accessible . to MHEG, its Member States and Eligible Organizations. Dell will provide to MHEC the general criteria used to authorize agents. At any time during the term ofithis Master Agreement should MHEG „protest the inclusion of a firm on.this list pursuant, to commercially Justifiable cause, Dell may require that firm to undergo re- approval, Dell- branded Pro€iuets: refers to anv)information technology products that are marked:` with the "Dell” brand, including all Standard Configurations thereof, but does not include any of the following items. (i) software, sound cards, speakers, external devices, accessories or parts added to the Dell- branded hardware products after they are shipped parts that are not products; or (v) n Dell's products li ivais relating to the rEquipment or Software. egration Services at ( ustomer°strequest; (in) acce in the Dell factory; (iv) Third Party Software and' keyboards and mice, to the extent that they are tic ne the any documentation made available by Dell to ting to any Equipment or Software purchased as v ring Eligible Organizations: This Master Agreement shall be made available to all Eligible: Organizations, Eligible Organization:; Shall include: • all not -for- profit private and public institutions and/or systems of higher education i (colleges, universities, - 'community - colleges, stechnical institutions and equivalent institutions) located in atMember State; • all K -12 schools and school districts located in a Member Stale; • all city, county, and other local, governments - located _in a Member State • all state governments and their departments of Member States °Faculty, Staff and' Students may have the right to purchase selected configurations o' Dell. Products at a discount. Such purchases will be governed by Dell's standard terms and conditions of sale for such individuals in effect at the time of purchase, and not this Master Agreement. Eligible Organizations located in a Member State that terminates its association with the Compact will no longer be eligible under this Master Agreement to purchase Contract No.: MHEC- 090701.02 pursuant to this Master Agreement. Termination by any Member State shall not prohibit or restrict Dell from negotiating or contracting with such Member State or entity within such Member State outside the Compact. MHEC shall promptly notify Deli in writing of the termination of any Member States' membership in the Compact. If any Member State so terminates its membership in the Compact, such termination`- shall not effect the validity or enforceability of or constitute a default under any purchase order then in effect with any Participant. Similarly'. MHEC shall promptly notify Dell if other states join the Compact after which such states shall he deemed to be Member States for purposes of this Master Agreement The above categories of organization for all states in each of the other regional education compacts (WICHE, SREB, and NEBHE) who choose to participate in this contract by Addendum as agreed to by the signatories of this contract, Equipment: refers to DeJI's full tine of new or refurbished equipment and components made available for sale by Dell to Eligible Organizations tinder this Master Agreements ` Large Order Negotiated Prices: refers to the price offered to specific Eliitible litions. Selection and pricing of nent +of the Eligible Organization, Organization, Master Agreement Promotional Prices: refers to special prices that are offered nationally or regionally under this Master Agreement to a specific category of customers intended to include Eligible Organizations for defined time periods under defined terms and conditions. Member State: refers to any state that is a member, or an affiliate member, of the Midwestern Higher Education Compact. The current Member States are Illinois, Indiana, Iowa, Kansas, Michigan, Minnesota, Missouri,' Nebraska, North Dakota, Ohre. South' Dakota and Wisconsin. MHEC shall promptly notify Del I:if any other states jam the Compact and thereby become a Member State for purposes of this Master Agreement. Order: refers to an Eligible Organization's purchase order or other ordering document its intent to procure Products or Servii of this Master Agreement. Products or Services to a Procuring Eligible Organizatic document. purchase tinder this Master Products: refers to the full makes available under this require:, Dell to furnish we i vsdlrl rimier -gamization which desir Order Promotional Prices: refers to prices -that are offered nationally or regionally to a specific category of customers intended to include Eligible Organizations for defined time periods under defined terms and conditions. Retail Price Dist: refers to the Dell's retail price list and is a complete list of Products and Services with the corresponding retail prices for those Products and Services made available for,purchase by Eligible Organizations under this Master Agreement. The Retail Price List contains an item number, item description and the retail price for each Product. Contract No.: MHEC- 090701.02 Retail Price List is set forth online at hMafftunm. -g and may be modified at any time. Services: Services are broadly classified as installation/de-installation, maintenance, support, training, migration, and optimization of products offered or Supplied. These types of services include but are not limited to, warranty services, maintenance, support,iservices desk/help desk, and any other directly related technical support servi required for the effective operation of :a product offered or supplied, Software: refers to Dell's fall offerings of software and firmware (including third -par this Master Agreement, Software shall include updates, upgrades, maintenance releases, revisions and enhancements. to the licensed software, Supplier: refers to Dell or an Authorized Agent, Third Party Products: refers to any hardware or software other than parts that are Dell branded or originally listed a4 components of Dell- branded Products, Third Party Services: refers' to any Services performed by someone other than Dell or its subcontractors, 2. Scope of Work Procuring Eligible Organizations shall purchase from Supplier, and_Suppher shall distribute to Procuring Eligible Organizations Products and Services in accordance with the terms of this Master- Agreement, All Eligible Organizations are qualified to purchase under this Master Agreement, including those Eligible Organizations currently under a separate agreement with Supplier, This Master Agreement is a Price Agreement. . Accordingly, Supplier shall provide Products or Services only upon the issuance and acceptance by Supplier of a valid Order. Orders may be issued to purchase any Products or any Services listed on the Retail ;Price List. A- Procuring >Eligible Organization may purchase any quantity of Products or Services listed in DeIFs Retail Price List at the prices stated herein. For Large Order Negotiated Prices, Supplier and Eligible for a given purchase Promotional Price Lh offer under this ,Master Agreement: those listed in the Product and Services Price List„ Dell is solely responsible for fulfillment of the responsibilities Linder,, the terms and conditions of this Master Agreement; MHEC shall not be liable for tiny Eligible Organization that executes an Order Linder this Master Agreement. An Eligible Organization shall not be responsible for any other Eligible Organization that executes its own Order under this Master Agreement. 3. Purchasing finder Master Agreement A. Products: Procuring Eligible Organization shall purchase from Supplier the Products listed on the Retail Price List under the terms and conditions of this Master Agreement by delivering to Supplier an Order. The Order should include: (i) Procuring Eligible Organization byname and address; (ii) the quantity, and 3 Contract No.: MHEC- 090701.02 description of the Product that Procuring Eligible Organization desires to purchase or license; (iii) the price ofthe Product in accordance with this Master Agreement; (iv) the "bill -to" address; (v) the "ship -to" address, (vi) the requested delivery dates and shipping instructions; (vii) a contact name and telephone number; and (viii) reference to this Master Agreement. Supplier must notify Procuring Eligible Organization if it intends to substitute any <'item(s) that has been ordered by the Procuring Eligible the option to caneel the order if such substitute item is not acceptable. The substitute item must be at an equivalent or better technology level than the original product ordered, and at the same :price_ Failure to comply may result in return of merchandise at Supplier's expense. B. Services: Procuring Eligible Organization shall purchase Services from Supplier under the terms and conditions of this Master Agreement by delivering to Supplier an Order. The Order should include: (i) Procuring Eligible Organization by name and address; (ii) the description of the Service (,$) that Procuring Eligible Organization desires Supplier to perform; (iii) the price of tnc Service in accordance with this Master Agreement; (rv)'the "bill -to" address; (v) the repuested performance dates; (vi) a contact name and telephone number; and (vii) reference to this Master Agreement. C. Each Order that is accepted by Supplier will become a part of the Agreement as to the Products and/or Services listed on the Order only; no additional terms or conditions will be added to this Agreement as result of the acc e.ptance of the Order, nor will : such terms affect any purchase. An Order from an Eligible Organization accepted by Supplier it binding_ D. All Products furnished will be subject to acceptance pursuant to the terms and conditions of Section 7:A ("Acceptance") by Procuring Eligible Organization after delivery. No substitutions or cancellations are permitted without notification to the Procuring Eligible Organization. Nothing in this Section precludes any agreements for the use of electronic purchase orders. E. Procuring Eligible Organization may request in writing changes to an Order ( "Change F G. 4 manufacturing the Products or performing the Services;. In response to a Change_ Request, Supplier will provide written quotations. to Procuring Eligible Organizati, A Change Request is a separate Order to the terms and conditions of this Master Agreement and Dell's change order process; Supplier will accept a purchasing card for ruder placement in addition to accepting a purchase order: When equipment purchased on this contract requires installation, the Supplier must provide the cost of installation as a separate line item on their quotation. The installation cost must include all packing, freight, insurance, set -up, instruction, and operation manual charges. Equipment must be set in place in an area designated by Procuring Eligible Organization personnel, demonstrated to be in operating condition, and approved by Procuring Eligible Organization personnel. Upon request,: Dell will provide a Services quote with a Statement of Work to remove any and all debris from the Procuring Eligible Organization's site. Upon installation, all operating Contract No.: MHEC - 090701,02 instructions will be provided either physically or electronically to Procuring Eligible Organization's personnel identified on the purchase order. 4. Quantity Guarantee This Master Agreement is not a, purchase order, not does it guarantee any purchases to be made by any Eligible Organization. This Master Agreement is not an exclusive agreement. MHEC and Eligible Organizations may obtain information technology products and services from other sources during the term of the Master Agreement. 5. Master Agreement Term This Master Agreement will be formed upon execution by the Parties, and dsha ] remain in effect, unless otherwise terminated pursuant to the terms of the Master Agreement, for a period if three (3) years from the Effective Date. The Master Agreement may be mutually renewed for four (4) additional one -year terms, :upon written agreement of the Parties, unless terminated pursuant to the terms of this Agreement. 6. Order of Precedence Where the terms and conditions of this Master Agreement are in conflict with an Eligible Organization's state and/or institutional laws or regulations, the Eligible Organization and Dell may enter into an addendum: to amend the terms and conditions of the Master Agreement to conform to the Eligible Organization's state and/or institutional: laws or regulations. Li addendum to s The terms and n stria r ren may enter =into an specific Products or Services. applicable between the Eligible Organization that entered into the addendum and Dell. In tire event of any conflict among these documents, the following order of precedence shall apply; A. Mutually agreed upon Statement of Work ( "SOW „) I3. Executed addendum, not to include Purchase Orders, between Eligible Organization and Dell C. The terms and conditions cif this Master Agreement or any MHEC -Dell addenda to this Master Agreement., D, Exhibits to this Master Agreement E. The list of Products and Services contained in the Order 7. Payment Provisions A Acceptance. A Procuring Eligible Organization shall determine whether all Products and Services delivered meet the Dell's published specifications. No payment shall be made for any products or services until the Eligible Organization has accepted the Products or Services, Unless otherwise agreed upon between the Eligible Organization and Dell, the Eligible Organization shall within fifteen (15) calendar days from the bate of Dell's invoice, issue a written notice of partial acceptance or rejection of the Products -or Services; otherwise the Products or Services shall be deemed accepted. B. Return Policy. Procuring Eligible Organization may return Dell branded products to Dell up to 30 days from the day they are delivered, This policy does not apply to Doll Contract No.: MHEC- 090701.02 /EMC storage products and/or EqualLogic products, To return products, a Credit Return Authorization Number must be requested from Dell. Products should be shipped back to Dell in their original packaging or equivalent in accordance with Dell's Return Policy. Software is returnable only if the sealed' package' containing the diskettes is unopened, -Returned products must be in as new condition, and all of the manuals, diskettes, power cords and other items included with a,product must be returned with it. For all hoe -Dell branded products, Dell agrees to accept the return within thirty (30) days of such Products if items are missing, damaged, defective, or as result of an incorrect order. Such returns should include all related documentation furnished by Dell and in the same or equivalent packaging, Return of DeIVEMC storage products or EqualLogic- products will beat Dell's sole. discretion. C. Payment. of Invoice. Payments shall be delivered to Dell at the address shown on the invoice. Payments shall .be. made within thirty (30) days from the date of invoice. In the event that Dell is required to pursue the collection of past due amounts not subject to a good faith dispute: between Dell and the Procuring Eligible Organization, Dell will be entitled to recover interest accrued at the lesser of 1.5% per month or in accordance with the applicable state laws of the Procuring Eligible Organization. D. Dispute Notice. Procuring Eligible Organization shall make a good faith effort to notify Supplier of any billing discrepancies or disputes about an invoice within fifteen (15) business days after receiving it, specifying with particularity the basis of any such dispute ( "Dispute Notice ") or in accordance with the applicable state laws of the Procuring Eligible Organization. Tender ofa Dispute Notice does not relieve Procuring Eligible Organization of its obligations to pay the undisputed portion of any invoice subject to a Dispute Notice. Any amounts that were the subject of a Dispute Notice and are subsequently resolved in favor of Supplier will be subject to interest charges accruing from the original due date. E. Partial Shipment. In the event an order is shipped incomplete (partial),. the Procuring Eligible Organization must pay for each shipment as invoiced by Supplier, unless the Procuring Eligible Organization has clearly specified "No Partial Shipment" on each purchase order. F. Payment of Taxes, The prices listed under this Master Agreement do not include, and Procuring Eligible Organization shall reimburse Supplier for, any and all taxes and/or duties assessed against or payable by` Supplier tin connection with the sale of Equipment, licensing of Software or Documentation, or Performance of Services except for taxes imposed upon Dell's net income. Unless the Procuring Eligible Organization provides a proof of tax exemption, taxes will be additive to the contracted price. 8. Shipping Dell shall ship the Products F.O.B. destination. Title to Products shall pass to _Procuring Eligible Organization upon delivery to Procuring Eligible Organization's destination point, Risk of loss or damage to the Products shall pass to Procuring Eligible Organization upon delivery to the Procuring Eligible Organization. Dell shall bear the risk of loss with respect to returned Products except for loss or damage directly attributable to the negligence of the Eligible Organization. Standard 3 -5 clay ground shipping will be included in the price of the equipment. All equipment must be shipped Contract No.: MHEC - 090701.02 fully configured with the required memory, components, and selected or specified operating system, unless as. otherwise noted. 9. Product Delivery A. Unless otherwise agreed to by Procuring( Eligible Organization and Supplier, Supplier after: receipt of a valid Order. If delivery cannot be made within thirty (30) calendar days, Supplier will notify Procuring Eligible Organization within five (5) business days following Order placement,, and Procuring Eligible Organization as its exclusive remedy„ can cancel the order by written, electronic, or facsimile notification Failure of the Supplier to adhere to delivery schedules as specified or tos promptly replace defective product shall render the Supplier liable for all costs in- excess of the contract price when alternate procurement is necessary. Suppliers acknowledge that all locations of any particular Eligible Organization may not be within the MHEC region. B. If deliveries prove to be unsatisfactory; or other problems arise, MHEC reserves the right to delete product or services from the Master Agreement and /or cancel Master Agreement for cause. Similarly, if deliveries prove to be unsatisfactory or other problems arise cinder the agreement for a Procuring Eligible Organization, the Procuring Eligible Organization retains all of its remedies for a.default. Failure of the Procuring Eligible Organization to exercise its rights of termination for cause or other remedies for default due to a Supplier's failure to perform as required in any instance shall not constitute a waiver of termination rights or other default remedies in any other instance. C. Suppliers may choose to deliver products electronically where practicable. This option must be under the independent control of each Procuring Eligible Organization. 10. Price Guarantees The Procuring Eligible Organization shall pay the lower of the prices contained in the Master Agreement, Announced Masten Agreement Promotional Price, Announced Promotional Price_ or Large Order Negotiated Price at the time of Order (provided that, with respect to the. applicability of Large Order Negotiated Prices, such Procuring; Eligible Organization is a party to the Large Order Negotiated Price negotiations and the purchase is part of the project for which the Large Order Negotiated Price was negotiated). Dell shall not sell:Products -or Services to Eligible Organizations at prices higher than those awarded via this Master Agreement and in instances where this Provision is applied, this Master Agreement shall be referenced in the Supplier's invoice. 11. Product Pricing Dell agrees to maintain Product Pricing in accordance with the following provisions: Contract No.: MHEC- 090701.02 A. Retail Price List for all Equipment, Software an4 Documentation will be set forth at if tt bcrx i4 ucl',cc?int l '_utailf , c sst. id. Changes to retail prices generally take effect immediately, and Dell reserves the right to change retail prices at any time. B. Discount Percentage Pricing: The prices for Products are the Retail Price List Iess applicable discount as specified in Exhibit A. Except Lis set forth in Section 10 "Price Guarantees" or Section 35 -Administrative Reporting and Fees," the discount percentages set forth in Exhibit A shall remain firm during the term of this Master Agreement, Dell shall add new Product(s) to Retail Price List as new Product(s) become available for sale. The pricing for all new Products shall be at the price discount levels provided herein, oir,as agreed to by the Parties; C. Dell may revise or discontinue Product offerings at any time without prior notice to MHEC. A change in a Product tray occur between the time that Procuring Eligible Organization orders a Product and the time that Dell ships the Product, As a result, Products shipped may display minor differences from the Products Procuring Eligible Organization ordered, but they will meet or exceed all material specifications of the Products Procuring Eligible Organization ordered. - D. Quarterly Reviews and Product Roadmaps: Dell agrees to meet with MHEC on at least a quarterly basis to discuss Product Roadmaps, which will consist of a six montl forecast of any Products, including the specific configuration bundles for which offer a ntininaum 60-90 day overlap between =a system that is due to become end-of- life and its successor. Dell agrees to provide: advance notice of introduction transition; and end -of -life information for Products, system platforms, peripherals, and software. In addition, at such Quarterly Reviews, Dell agrees to work with - MHEC to identify configurations, bundles, and /or promotional pricing that would provide the most value under this Master Agreement and/or to specific Procuring, Eligible Organization(s). Configurations, bundles, and/or promotional pricing will be offered and continuously available throughout the terra of this Master Agreement. E. Products purchased shall be new, current models manufactured with 100% new OEM parts, All Products should be offered > in current production as of the date of the award For purpose of this contract, "current production" shall mean that the equipment model is being manufactured as new equipment for the United States market. Dell.will delete: obsolete and discontinued Products from the Retail Price List on a timely basis. F. Prices will be F.O.B. destination (interior /ground floor or inside dock), and freight- pre paid and allowed, to any and all locations of the Procuring Eligible Organization. Prices must include all packing, freight,' insurance charges and installation /operation manuals. 12, Services Pricing Dell agrees to maintain the Service Pricing in accordance with the following provisions: A. For any standard Services, in which the Services and corresponding SKU are on Retail Price List, the pricing will be as described in the Products Section for Discount Percentage Pricing, and the applicable discount percentage as noted in Exhibit A wilt Contract No.: MHEC- 090701.02 apply. Except as set forth in Section 10, "Price Guarantees" or Section 35 "Administrative Reporting and Pees, " the discount percentage set forth in Exhibit A shall remain firm for the term of the Master Agreement. B. For any custom Services that are not included on the Retail Price the prices for such Services purchased under,this. Master Agreement will be as mutually agreed upon by both Tell and Procuring Eligible Organization and as set forth in a Dell quote or an applicable SOW. C. Specific geographic restrictions on the availability of Services must be conveyed to the Procuring Eligible Organization, D Dell may offer a director indirect leasiag program as a financial Service under a separate leasing agreement, E. Any purchase by Procuring Eligible Organizations of online services or software- enabled services is pursuant to the terms of the Deli Services Description accompanying: the Services and the Services Acceptable Use Policy, which is available for review atuu ci c+ i ,contlterirr tandtond;tir,n 13. License A. Subject to Procuring Eligible Organization's payment: of the applicable fees for such licensed Software and compliance with the other terms and conditions of this Master Agreement, Dell agrees to assist Procuring Eligible Organization in securing a nonexclusive, nontransferable license to use portions of the licensed Software. B. Procuring Eligible Orgariization.acknowledges and agrees that: (i) encoded within the Software may optional functionality, features and/or capacity; which may be accessed only through the purchase of the applicable license extensions from Deli at additional cost; and (it) Procuring Eligible Organization may need to, obtain a new or additional application key from Dull to use such Software. C This Master A; Zrecmentapolies to all updates, upnrades, maintenance releases, revisions and enhancements for the licensed Software which Deli may supply to Procuring Eligible Organization from time to time. D. Procuring Eligible Organization may make one copy of any licensed Software for backup and archival purposes if the copy contains all of the Dell or owner proprietary notices contained in the original licensed Software. Subject to applicable taw, all copies of all licensed Software are Dell or owner Confidential Information, All rights, title and interest in and to the licensed Software, including, all intellectual property rights; remain vested in Dell, its suppliers or licensors, and Procuring Eligible Organization is granted only a limited license to use the licensed Software in conjunction with the Equipment, as set out in this Section. E. Procuring Eligible Organization shall not directly or= indirectly ;(i) modify, copy, transmit, alter, merge, decompile, disassemble, reverse engineer or adapt any portion of the Software; (ii) encumber, time - share, rent or lease the rights granted herein; (iii) manufacture, adapt, create derivative works of, localize, port or otherwise modify any licensed Software; (iv) disclose or otherwise make available the licensed Software to any third party (other than employees or contractors of Procuring Eligible Organization); or (v) enable any Software features or capacity which Dell licenses as separate products, without Dell's prior written notice. Contract No.: MHEC -040701.02 F. If a separate license agreement exists between Procuring Eligible Organization and the manufacturer or the owner of the Software, that license agreement will control and will apply according to its terms and conditions. G. Both Parties acknowledge that a portion of the Software may include open source software and may be covered by such licenses as the GNU General Public License. In such cases, the use of such Software is under the terms and conditions of the specific license under which the open source software is distributed. 14. Warranties A. Equipment Dell warrants that any Dell branded products shall be free from defects in material and workmanship under normal use and that the Equipment shall remain in good working order for the applicable warranty period from the date of Invoice. The applicable warranty period will be determined by such factors as the type of Warranty or Product purchased. If any Equipment is not as warranted in this Section, then Dell shall repair or replace the Equipment in accordance with the applicable warranty. In repairing or replacing any Equipment or part of any Equipment under this warranty, Dell may use new, remanufactured, reconditioned, refurbished, or functionally equivalent Equipment or parts of Equipment, For any Equipment or parts thereof repaired, replaced or corrected tinder this Section, the warranty; period applicable to the Equipment will continue for the remainder of the original warranty period. If, Dell determines that it cannot, in a commercially reasonable manner repair or replace any Equipment, then Dell may, in its sole discretion, refund to Procuring Eligible Organization the price of the Equipment. B. Software: Dell warrants that the firmware and associated software drivers for Dell - branded Products, if any, will be free of defects and that such :software will substantially conform to the descriptions contained in the applicable user documentation with respect to the particular software purchased by Procuring Eligible Organization for the applicable warranty period. If such software is still commercially available; Dell shall repair or replace the defective media. If the software does not substantially conform to the description contained in the applicable user documentation, Deli, at its option, shall correct the defects in the Software or refund to Procuring Eligible Organization the purchase amount paid to Dell for the defective Software, less a reasonable adjustment for beneficial rise. In repairing or replacing any Software medium tinder this warranty, Dell may use news, remanufactured, reconditioned, refurbished, or functionally equivalent Software medium. The warranty period for the corrected Software via fixes and/or patches will be the remaining period of the original warranty period. The Software warranty shat) include free firmware and software updates for all Software purchased by Procuring Eligible Organization under this Master Agreement. C. Services: Dell represents and warrants that the Services provided under this Master Agreement will be performed in :a skillful, competent, timely, professional and workmanlike manner, and that the Dell employees, agents and contractors assigned to perform Services under this Master Agreement have the proper skill, training and background so as to be able to perform in a skillful, competent, timely, professional and workmanlike manner. Any warranty for Services will be decided on a case by case basis and be mutually agreed upon in a SOW. 10 Contract No.: MHEC - 090701.02 D. Third -Party Products and Services Warranties: Deli does not warrant Third -Party Products or Services. Any warranty provided on Third -Party Product(s) or Service(s) is provided by the publisher, original manufacturer, or service provider and may vary from product to product or service to service. Such warranties shall be provided to the Procuring Eligible Organization with the Third Party Products and Services. E. Dell warrants that Procuring Eligible Organization shall acquire good and clear title to Dell- branded Products being purchased under this Master Agreement, free and clear of all liens and encumbrances. For any non -Dell branded Products, Dell warrants that it has the right to provide such Products to the Procuring Eligible Organization. 15. Environmental Factors Many Eligible Participants are committed to promoting environmentally sound procurement, usage and disposal methods which are in compliance with State, County, and Municipal regulations. Dell agrees to maintain for the term of this Master Agreement, and all renewals /extensions thereof, programs as described in the following paragraphs. A. Takeback/Recycling of Equipment. Costs are as listed on the Retail Price List subject to applicable discounts. B. Environment: Compliance with the following standards: Blue Angel. EcoLogo, Energy Star, EPEAT (by level), Green Guard, Nordic Swan, and TCO. C. Product labeling of compliance with Items B above, as well as identification of such information on the web site. 16. "Termination A. At any tune MHEC may terminate this Master Agreement, in whole or in part, by giving Dell ninety (90) days written notice; provided however, neither, MHEC nor Eligible Organization has the right to terminate a specific Order for convenience after the Product has begun production or been shipped for such Products that don't require production. At any time, Dell may terminate this Master Agreement, in whole or in part, by giving MHEC "ninety (90) days written notice. Such termination shall not relieve Dell of any warranty or other service obligations incurred under the terms of this Master Agreement. B. Either Party may terminate this Master Agreement for cause based upon material breach of the Master Agreement by the other Party, provided that the non - breaching Party shall give the breaching Party written notice specifying the breach and shall afford the breaching Party a reasonable opportunity to correct the breach. It within thirty (30) days after receipt of a written notice the breaching Party has not corrected the breach or, in > the -case of breach, that cannot be corrected in thirty (30) days, begun and proceeded in good ,faith to correct the breach, the non - breaching Parity may declare the breaching Party in default and terminate the agreement effective iirunediately. The non - breaching party shall retain any and all remedies available to it under the law. C. In the event that either Party be adjudged insolvent or bankrupt by a court of competentjurisdiction, or upon the institution of any proceedings by or against it seeking relief, reorganization or arrangement under any laws relating to insolvency, Contract No.: MHEC- 090701.02 or upon any assignment for the benefit of creditors, or upon the appointment of a receiver or trustee of any its property of assets, or upon the liquidation, dissolution or winding up of its business, then and in any such event this Master Agreement may immediately be terminated or cancelled bathe other Party hereto D_ In the event this Master Agreement expires or is terminated for any reason, <a Procuring Eligible Organization shall retain its rights in all Product and Services accepted prior to the effective termination date or ordered before the effective termination date and ultimately accepted! 17.. Non - ,appropriation This provision applies only to publicly funded Eligible Organizations. The terms of this Master-Agreement and any Order issued for multiple years under this Master Agreement is contingent upon sufficient appropriations being made by the legislature or other appropriate governing entity. Notwithstanding any language to the contrary in this Masten Agreement or in any purchase order or other document, Procuring Eligible Organization may terminate its obligations under this Master Agreement if sufficient appropriations are not made by the governing entity to pay amounts due for multiple year agreements. The Procuring Eligible Organization's decision as to whether sufficient appropriations are available shall be accepted by Dell and shall be, final and binding. A Procuring Eligible Organization shall provide sixty (60) days notice, if possible, of its intent to terminate this contract for non - appropriation. The Procuring Eligible, Organization shall send to Dell a notice of its Governing Body's decision not to appropriate funds for the installment sale payments for the subsequent fiscal pear. The notice shall also include a statement that the Procuring Eligible Organization was unsuccessful in finding another assignee within its own organization to continue the installment sale payments and that the Product or Service will not be replaced by similar product during the ensuing fiscal year. Such termination shall relieve the Procuring Eligible Organization., its officers and employees from any responsibility or liability for the payment of any future Orders. however, all outstanding invoices from Dell will be paid by the Procuring Eligible Organization. 18. Records and Audit Dell agrees to maintain records directly related to the Invoices and Purchase Orders under this Master Agreement for a period of three (3) years or such term as required by applicable law from the date of receipt of .final payment after termination of the Master Agreement. These records shalt be subject to inspection, which may be initiated no more than twice annually, with reasonable advance notice, by Procuring Eligible Organization and appropriate governmental authorities within Procuring Eligible, Organization's state. The Procuring Eligible Organization shall have the right to request copies of invoices either before or after payment. Payment Linder this Master Agreement shall not foreclose the right of the Procuring Eligible Organization to recover excessive or illegal payments. 19. independent Contractor Dell, its agents, and employees are independent contractors and are not employees of MHEC or any Eligible Organization. Dell has no authorization, express or implied to bind MHEC or any Eligible Organization to any agreements, settlements, liability or 12 Contract No.: MHEC - 090701;02 understanding whatsoever, and agrees not to perform any acts as agent of MHEC or any Eligible Organization, except as expressly set forth herein. Nothing in this Master Agreement is intended, oishall be deemed, or construed to constitute a partnership or a joint venture between the Parties. 20. Patent, Copyright, Trademark and Trade Secret Indemnification Dell will indemnify, defend and hold MHEC and Eligible Organization harmless from any third party claim that any Dell- branded Product or Service provided to Eligible Organization pursuant to this Master Agreement infringes on another- person's or entity -''s patent, copyright, trade secret or any other proprietary right of a third party. Bell will have no obligation under this section with respect to any Claim of infringement resulting from (a) Services performed, or Product provided, pursuant to Eligible Organization's specification or design; (b) an Eligible Organization's unauthorized modification of a Product; or (c) any combination, operation, or use of the Product with systems other than those provided by Dell to the extent that such Claim is caused by such modification, combination, operation, or use of the Product_ Fotlowing notice of a Claim or a threat of actual suit, Dell will, at its own expense and option, (1) resolve the claim in a way that permits continued ownership and use of the affected Product or Service; (2) provide comparable replacement at no cost; or (1) in the case of a Product accept return of the Product, freight collect, and provide a reasonable depreciated refund and in the case of a Service,, provide a refund less a reasonable adjustment for beneficial use. With respect to any claim that Non -Dell branded Product(s) or Service(s) infringes upon another person's or entity's: patent, copyright; trade secretor other intellectual property rights in the United States, Dell agrees to pass through to the appropriate Eligible Organization any rights to indemnification protection for which Dell, currently or subsequently has in place with the manufacturer and publisher, 21. Indemnification Dell will indemnify, protect, save and hold harmless MHEC and Eligible Organizations, as well as the representatives, agents and employees of MHEC and Eligible _ Organizations, from any and all third party claims or causes of action related to a claim of personal injury or damage to, tangible property, including all reasonable attorneys' fees incurred by MHEC and/or Eligible Organizations, directly arising from the performance of the Master Agreement by Dell, Dell's agents, employees, or subcontractors, MHEC andlorEligible Organization shall give Dell written notice, by registered mail, promptly after it becomes aware of any claim to be indemnified hereunder, and, subject to any legally required approval, including approval of state's, attorney general, or consistent with applicable law permits Dell to control the defense of any such claim inaction at Dell's own expense. MHEC and /or Eligible Organization agree that Dell may employ attorneys of its own choice to appear and defend the claim or action and that MHEC and/or Eligible Organization shall do nothing to compromise the defense of such claim or action or any settlement thereof and shall provide Dell with all reasonable assistance that Dell may require. II Contract No.: MHEC- 090701.02 22. Limitation of Liability Dell shall not be liable to MHEC or any individual Eligible Organization for any direct damages in excess of $500,000 or the price of the Product(s) or Service(s) purchased per Order subject to such claim, whichever is greater. The foregoing limitation does not apply to any indemnification obligations under this Master Agreement or to damages , - resulting from personal: injury or tangible property damage ,caused by Dell's negligence or willful misconduct. NEITHER DELL, M14EC'NOR ANY ELIGIBLE ORGANIZATION SHALL BE LIABLE FOR ANY SPECIAL, INDIRECT, ' INCIDENTAL, CONSEQUENTIAL' OR PUNITIVE DAMAGES ARISING OUT OF OR RELATING TO THIS MASTER' AGREEMENT, WHETHER THE CLAIM ALLEGES TORTUOUS CONDUCT ('INCLUDING NEGLIGENCE) OR ANY OTHER LEGAL'THEORY. DELL IS NOT RESPONSIBLE FOR LOSS OF OR RECOVERY OF DATA, PROGRAMS. OR LOSS OF USE OF SYSTEM(S) OR NETWORK arising out of the Services or support or any act or omission by Dell or a third -party service provider. 23. Confidentiality A. While Deli is providing' Services hereunder, E'ligible'Organization or Dell may disclose to the other certain business information identified as confidential ( "Confidential' Information "). All such information shall be sparked or otherwise designated as "Confidential" or "Proprietary". In order for such information to be considered Confidential Information pursuant to this Section 23 of the Master Agreement, it must conform to the data practices laws or similar 'type laws of the State in which the Eligible Organization is located or was founded. Information of 'a proprietary nature which is disclosed orally to the other party shrill not be treated as Confidential Information unless it is stated at the time of such oral disclosure that such information is Confidential Information' and such information is reduced to writing and confirmed as Confidential Information to the recipient Within ten (10). days after oral disclosure, Both Eligible Organization and Dell agree that, with respect to Confidential Information it receives (as "Recipient ") from the other (as :a "Discloser") in connection with this Master Agreement or an Order pursuant to this Master Agreement,` that it (i) will use such Confidential Information solely for the purposes contemplated by the Master Agreement or an Order placed under this Master Agreement, (ii) shall not use any such Confidential Information for any other purpose and in particular shalt not,so use such Confidential information in any inatmer either to the detriment of the Discloser or for the benefit of the Recipient or any third party, and (iii) shall receive and hold such Confidential Information in trust and confidence for the benefit of the Discloser B Each Party will make reasonable efforts not to disclose the other Party's Confidential Information to any third party, except as miry be requited by law, unless such Confidential Information: (i) was in the public domain ,prior to, at the time of, or subsequent to the date cif disclosure through no fault of the non - disclosing' party; (d) was rightfully in the non- disclosing panty's possession or the possession of any third party free of any obligation of confidentiality; or (iii) was developed by the non- disclosing party's employees or agents independently of and without reference to any of the other party's Confidential Information. Confidential Information shall remain 14 Contract No.: MHEC- 090701.02 the property of and be returned to the Disclosure (along with all copies or other embodiments thereof) within fifteen (15) days of (a) the termination or completion of the Order under this Master Agreement, or (b) the earlier receipt by the Recipient from the Discloser of awritten demand following a breach by Eligible Organization or Deli of this Master Agreement or an Order under this Master Agreement directing that Confidential .Information described generally or specifically; in such demand be returned to the Discloser . C. In such cases where Confidential Information is required to be disclosed to a third party for purposes of providing Services, all disclosure of Confidential Information will be in accordance with the separate non - disclosure agreement between Dell and the third party: D. If it .separate, written nondisclosure agreement exists between Eligible Organization and Dell, that agreement will control and will apply according to its terms and conditions to all Confidential Information the parties exchange with each other. E Notwithstanding anything to the contrary in this Agreement or amendment to this Master Agreement. both: Eligible Organization and Dell agree to comply with the dx t i practices or similar type laws of the State in which Eligible Participant is located or founded: 24. FLA RPA (and tither Privacy Laws) Where applicable, Dell agrees to comply with the Family; Education Rights and Privacy Act (FERPA), the Health insurance Portability and Accountability Act (HiPAA), the Gramm -Leach Bliley Act (GLBA) and all other state and federal prix acy laws; and agrees to implement and maintain safeguards to protect the security, confidentiality, and integrity of information it receives from Eligible Organization. To the extent an Eligible Eligible Organization agrees to advise Sell of the disclosure of such information; and Eligible Organization represents and warrants to Dell that it has obtained any required consents to disclose such information. In addition, to the extent that Dell is or becomes a Business Associate as defined in HIPAA, both Parties acknowledge , that a separate mutually agreeable Business Associate Agreement may be required and will govern according to its terms. 25. Amendments Except as provided for in Section 6 "Order of Preference "; Section I I "Product Pricing ", and Section 12 "Service Pricing "; this Master Agreement shall only be amended by written instrument executed by the Parties. 25. Scone of Agreement This Master Agreement incorporates all of the agreements of the Parties concerning the subject matter of this Agreement, and all prior agreements have been merged into this Master Agreement. No prior agreements, verbal or otherwise, of the Parties or their agents shall be valid or enforceable unless embodied in this Master Agreement, 15 Contract No.: MHEC- 090701:02 27. Invalid Term or Condition If any term or condition of this Master Agreement shall be held invalid or unenforceable, the remainder of this Master Agreement shall not be affected and shall be valid and enforceable. 28. Enforcement: of Agreement ' A Party's failure to require strict, performance of:anyprovision of this Master Agreement shall not waive or diminish that Party's right thereafter to demand strict compliance with that or any other provision. No waivcr by n Party of any of its rights under this Master Agreement shall be effective unless express and in writing, and no effective waiver by Party of any of its rights shall be effective to waive any other rights. 29. Web Site Maintenance Dell acm-ces to maintain and support Internet website(s) for access to the Retail Price List, provide electronic commerce assistance for the electronic submission of purchase orders, purchase order tracking and reporting, Dell shall notify MHEC when there are additions and/or deletions made to the list of AuthorizedResellers; 30. Equal Opportunity Compliance Dell agrees to abide by all applicable Federal and state laws, regulations, and executive orders ,pertaining to equal employment opportunity. In accordance with inch laws, regulations, and executive orders, Dell agrees that it does not discriminate, on the grounds of race, color, religion, national origin, sex, age, veteran status or handicap. If Dell is found to be not in compliance with applicable Federal or state requirements during the life of this Master Agreement, Dell agrees to take appropriate steps to correct these deficiencies. 31. Compliance with Law Dell shall comply with all applicable laws and governmental regulations, which by their terms, apply to Dell's performance under an Order pursuant to this Mastei Agreement. Eligible Organization agrees to comply with all applicable laws and governmental regulations in connection with this Master Agreement_ M§1EC agrees to comply with all applicable laws and governmental regulations in connection with this Master agreement, 32. Applicable Law A. As between Eligible Organization: and Dell, this Master Agreement will be construed to accordance with, and its performance governed by the laws of the state in which the Eligible Organization resides. Venue for all legal proceedings arising out of this Master Agreement, or breach thereof, shall be it) a state or federal court with competent .jurisdiction located in the state in which the Eligible Organization resides. & As between MHEC and Dell this Master Agreement will be construed in accordance and its performance governed by the laws of the state of Minnesota. Venue for all legal proceedings arising out of this Master Agreement, or breach thereof, shall be in a state or federal court with competent jurisdiction located in the State of Minnesota. 16 Contract No.: MHEC- 090701.02 C. As between Eligible Organization, MHEC, and Dell, this Master Agreement will be construed in accordance with and its performance governed by the laws of the state in which the Eligible. Organization resides. Venue for all legal proceedings arising out of this Master Agreement, or breach thereof, shall be in a state or federal court with competent jurisdiction located in the state in which the Eligible Organization resides. 33. Conflict of Interest Dell warrants to the best of its knowledge and belief that it presently has no interest direct or indirect., which would give rise to organizational conflicts of interest. 34. Assignment Neither Party shall sell, transfer, assign or otherwise dispose of the Master Agreement or any portion thereof or of any right, title, or interest herein without the prior written consent of the other Party, This consent requirement includes reassignment of this Master Agreement due to change in ownership, merger, or acquisition of a:Party or its subsidiary or affiliated corporations, Nothing in this Section shall preclude Deal from employing a , subcontractor in carrying out its obligations under this Master Agreement. Dell's use of such subcontractors will not release Dell from its obligations under this Master Agreement. 35. Survival Certain . paragraphs of this Master Agreement including but not limited to indemnification; and Limitation of Liability shall survive the expiration of this Master Agreement. Software licenses, warranty and service agreements, and non - disclosure agreements that were entered into under terms and conditions of this Master Agreement shall survive this Master Agreement, 36. Notification A. Between the Parties: Whenever under the terms of this Master Agreement any notice is required of spermitted eo be given by one Party to the other, such notice :shall be given in writing and shall be deemed to have been sufficiently given for all purposes hereof if given by facsimile or mail, postage prepaid, to the Parties at the addressee; set forth below, or,at such other address as the Parties may direct in writing from time to time: ToMHEC: ( To Dell: MHEC Dell Marketing LP �- RR Attn: information fashion. B. To Fligible Organization: Notices shall be sent to Eligible Organization's business address. The term "business address" shall mean the "Silt to" address set forth in an invoice submitted to Eligible Organization. 17 Contract No.: MHEC- 090701.02 37. Administrative Reporting and Fees On a calendar - quarterly basis (where quarter one is January 1 — March 31 and the quarter one report is due: by April 30). Dell will, in atimely manner, make available to MHEC utilization reports and information generated by this Master Agreement, reflecting net Product and Service sales to Eligible Organizations. The information and reports shall be accompanied with a check; payable to the Midwestern Higher Education Commission for an amount equal to one tenth percent (0.1%) of the net Product and -Service sales for that quarter period (the "Pee"). MHEC, from time to time may provide a' written request to ` Dell to change the percentage of the Fee it will receive as 'a result of this Master' Agreement. Any change in the Fee may also require a change in the Product of Service _ pricing. 38. MHEC Not, Liable For Eligible Organizations MHEC is not liable to Dell for the failure of any Eligible Organization to make any payment or to otherwise fully perform pursuant to the terms and conditions of an Order` and/or the Master Agreement, Dell, in its sole discretion. may discontinue selling' Products or Services to any Eligible Organization who fails to make payments or otherwise fully perform pursuant to the terms and conditions of the Master Agreement, 39. Announcements and Publicity Any announcements and publicity given to MHEC (or an Eligible Organization) resulting from this Master Agreement must receive the prior approval of MHEC (or Eligible Organization). Such approval shall not be unreasonably withheld. Dell will not make any representations ofMHEC's'(or an Eligible Organization's) opinion or position as to the quality of effectiveness of the Products, Supplies and/or Services, that are the subject of this Master Agreement without the prior written consent of MHEC (or Eligible Organization), which shall not be unreasonably withheld. 40. Marketing Dell will assist MHEC in developing and implementing appropriate marketing strategies including seminars, printed materials and a full service, on-line MHEC-specific web site to receive information on products, supplies, services and prices and to place Orders, 41. Oversight Committee An Oversight Committee comprised of representatives of Eligible Organizations shall be appointed by MHEC to assist and support MHEC; and Dell in developing and refining the implementation of this Master Agreement. This shall include, but not be limited to, assistance with marketing strategies, representing the interests of Eligible Organizations in assuring quality and timely products and services, web rncsencc and to advise Dell on the effectiveness of its implementation progression. At the very least there will be an annual meeting between Dell and MHEC (and perhaps members of the Oversight Committee) to perform a contract health check; including items such as those above. 42. force Majeure. Neither Dell nor MHEC nor Procuring Eligible Organization shall be liable to each other during any period in which its performance is delayed or prevented, in whole or in part, 18 Contract No.: MHEC- 040701.02 by a circumstance beyond its, reasonable control, which circumstances include, but are not limited to, the, following: act of God (e.g., flood, earthquake, wind); fire; war; act of a public enemy or terrorist; act of sabotage; epidemic; strike or other labor dispute; riot piracy or other inisadventure -of the sea; embargo; inability to secure materials and / or transportation'. or, a restriction imposed by legislation, an order or a rule or regulation of a governmental entity. If such a circumstance occurs, the Pasta unable to perform shall undertake reasonable action to notify the other Parties of the same. 43. Sovereign Immunity. Notwithstanding anything to the contrary in this Master Agreement or Order under this Master Agreement,, this Master Agreement shall not be construed to deprive a Eligible Organization of its sovereign immunity, or of any legal requirements, prohibitions, protections, exclusions or limitations of liability applying to this Master Agreement or afforded; by Eli'o bie Organi'zation's State to the Eligible Organization. 44. Export.' Procuring Eligible Organization and Dell acknowledge that the Product(s) and Service(s) sold under this Agreement, which may include technology and software, are subject to the customs and export control laws and regulations of the United States ("U.S.") and may also be subject to the customs and export laws and regulations of the country in which the Products are used or Services are rendered and/or received. Both Procuring Eligible Organization and Dell agree to abide by those laws and regulations. 45. Miscellaneous, All Parties to this Master Agreement may retain a reproduction (e.g., electronic image, photocopy, facsimile) of this Master Agreement that shall be considered an original and shall he admissible in any action to enforce this Master Agreement. Deli may accept this Master Agreement either by its authorized signature or a signed Order. Except as provided for in this Master Agreement, all changes to this Master Agreement must be made in writing signed by both Parties; accordingly any additional terms on the Procuring Eligible Organization's ordering documents shall be of no force or effect. 19 Contract No.: MHEC- 090701.02 The Parties, by their representatives, signing below, agree with the terms of this Master Agreement and further certify that their respective signatories are duly authorized to execute this Agreement, 20 Midwestern -Hi her Education Dell ; Marketing I,P o mission Signature: Name: Larry Is ak 4 Title: President ., Midwest Higher Education Dell Marketing LP Address: 2300 South second Street, Suite Otte 'Dell Way RR 8.07 Mryinnea�p{olis, Minnesota, 55454 Round Rock, Texas 786182 Datc� 20 Contract No,: MI-IEC- 090701.02 Exhibit A — Discount Category Pricing .' e g'D H I Perm I.vO } €?i ?u it MalA � itrjx): The product classifications identified above are in place as of May 15, 2009. These classifications affect Dell Public Sector customer and Dell may change product availabiliq or cla.ssifcunon category for all ctmiomers without notice An product category not listed herein shall be deemed a no - discoan otbie product o'service offering and receive zero percent contractual discount. 21 This Addendum ( "Addendum ") amends the Master Price Agreement between The Midwestern Higher Education Commission ( "MHEC ") and Dell Marketing, L.P., contract number MHEC- 090701.02, which was effective August 1, 2009 ( "Master Agreement'). The parties agree to amend the Master Agreement as follows: Section 5 Master Agreement Term shall be deleted in its entirety and replaced with the following: This Master Agreement will be formed upon execution of the Parties, and shall remain in effect, unless otherwise terminated pursuant to the terms of the Master Agreement, until June 30, 2011 The Master Agreement may be mutually renewed for three (3) additional one -year terms, upon written agreement of the Parties, unless terminated pursuant to the terms of this Agreement. Except as set forth above, the Master Price Agreement shall remain as stated. In the event of a conflict between the terms found elsewhere in the Master Agreement and this Addendum #1, this Addendum #1 shall control. r 4atne and Title Date/ ' -- — r� Signature Ashleigh Lane Contract Manager Name and Title May 15, 2012 Date