HomeMy WebLinkAboutC2022-090 - Titan Power Inc1
Contract No. 2022-090
COOPERATIVE PURCHASING AGREEMENT
BETWEEN
THE TOWN OF FOUNTAIN HILLS
AND
TITAN POWER, INC.
THIS COOPERATIVE PURCHASING AGREEMENT (this “Agreement”) is entered into
as of May 16, 2022, between the Town of Fountain Hills, an Arizona municipal corporation (the
“Town”), and Titan Power, Inc., a(n) Arizona corporation (the “Contractor”).
RECITALS
A. After a competitive procurement process, the State of Arizona (“State”) entered into
Contract No. CTR032107-4, dated July 16, 2017, as amended (collectively, the “State Contract”)
for the Contractor to provide Uninterruptible Power Supply: New Equipment, Service, and
Maintenance. A copy of the State Contract is incorporated herein by reference, to the extent not
inconsistent with this Agreement.
B. The Town is permitted, pursuant to Section 3-3-27 of the Town Code, to make
purchases under the State Contract, at its discretion and with the agreement of the awarded
Contractor, and the State Contract permits its cooperative use by other public entities, including
the Town.
C. The Town and the Contractor desire to enter into this Agreement for the purpose of
(i) acknowledging their cooperative contractual relationship under the State Contract and this
Agreement, (ii) establishing the terms and conditions by which the Contractor may provide
Uninterruptible Power Supply: New Equipment, Service, and Maintenance. (the “Materials and
Services”), and (iii) setting the maximum aggregate amount to be expended pursuant to this
Agreement related to the Materials and Services.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing introduction and recitals, which
are incorporated herein by reference, the following mutual covenants and conditions, and other
good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged,
the Town and the Contractor hereby agree as follows:
1. Term of Agreement. This Agreement shall be effective as of the date first set forth
above and shall remain in full force and effect until July 17, 2022 (the “Initial Term”), unless
terminated as otherwise provided in this Agreement or the State Contract. After the expiration of
the Initial Term, this Agreement may be renewed for up to four successive one-year terms (the
“Renewal Term”) if: (i) it is deemed in the best interests of the Town, subject to availability and
appropriation of funds for renewal in each subsequent year, (ii) the term of the State Contract has
not expired or has been extended, (iii) at least 30 days prior to the end of the then-current term of
this Agreement, the Contractor requests, in writing, to extend this Agreement for an additional
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one-year term and (iv) the Town approves the additional one-year term in writing (including any
price adjustments approved as part of the State Contract), as evidenced by the Town Manager’s
signature thereon, which approval may be withheld by the Town for any reason. The Contractor’s
failure to seek a renewal of this Agreement shall cause this Agreement to terminate at the end of
the then-current term of this Agreement; provided, however, that the Town may, at its discretion
and with the agreement of the Contractor, elect to waive this requirement and renew this
Agreement. The Initial Term and any Renewal Term(s) are collectively referred to herein as the
“Term.” Upon renewal, the terms and conditions of this Agreement shall remain in full force and
effect.
2. Scope of Work. This is an indefinite quantity and indefinite delivery Agreement for
Materials and Services under the terms and conditions of the State Contract. The Town does not
guarantee that any minimum or maximum number of purchases will be made pursuant to this
Agreement. Purchases will only be made when the Town identifies a need and proper authorization
and documentation have been approved. For purchase(s) determined by the Town to be appropriate
for this Agreement, the Contractor shall provide the Materials and Services to the Town in such
quantities and configurations agreed upon between the parties, in a written invoice, quote, work
order or other form of written agreement describing the work to be completed (each, a “Work
Order”). Each Work Order approved and accepted by the parties pursuant to this Agreement shall
(i) contain a reference to this Agreement and the State Contract and (ii) be attached hereto as
Exhibit A and incorporated herein by reference. Work Orders submitted without referencing this
Agreement and the State Contract will be subject to rejection.
2.1 Inspection; Acceptance. All Materials and Services are subject to final
inspection and acceptance by the Town. Materials failing to conform to the requirements of this
Agreement and/or the State Contract will be held at Contractor’s risk and may be returned to the
Contractor. If so returned, all costs are the responsibility of the Contractor. Upon discovery of a
non-conforming Materials or Services, the Town may elect to do any or all of the following by
written notice to the Contractor: (i) waive the non-conformance; (ii) stop the work immediately; or
(iii) bring the Materials or Services into compliance and withhold the cost of same from any
payments due to the Contractor.
2.2 Cancellation. The Town reserves the right to cancel Work Orders within a
reasonable period of time after issuance. Should a Work Order be canceled, the Town agrees to
reimburse the Contractor, but only for actual and documentable costs incurred by the Contractor
due to and after issuance of the Work Order. The Town will not reimburse the Contractor for any
costs incurred after receipt of Town notice of cancellation, or for lost profits, shipment of product
prior to issuance of Work Order or for anything not expressly permitted pursuant to this Agreement.
3. Compensation. The Town shall pay Contractor for the Term amount not to exceed
$20,000 for the Materials and Services at the rates that shall be agreed upon by the parties. The
aggregate amount per renewal term shall not exceed $50,000 in any case unless the Agreement is
affirmed and ratified via an executed amendment. All remaining terms and conditions of the
Agreement shall remain in full force and effect.
4. Payments. The Town shall pay the Contractor monthly (and the Contractor shall
invoice monthly), based upon acceptance and delivery of Materials and/or Services performed and
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completed to date, and upon submission and approval of invoices. Each invoice shall (i) contain a
reference to this Agreement and the State Contract and (ii) document and itemize all work
completed to date. The invoice statement shall include a record of materials delivered, time
expended, and work performed in sufficient detail to justify payment. Additionally, invoices
submitted without referencing this Agreement and the State Contract will be subject to rejection
and may be returned.
5. Records and Audit Rights. To ensure that the Contractor and its subcontractors are
complying with the warranty under Section 6 below, Contractor’s and its subcontractors’ books,
records, correspondence, accounting procedures and practices, and any other supporting evidence
relating to this Agreement, including the papers of any Contractor and its subcontractors’
employees who perform any work or services pursuant to this Agreement (all of the foregoing
hereinafter referred to as “Records”), shall be open to inspection and subject to audit and/or
reproduction during normal working hours by the Town, to the extent necessary to adequately
permit evaluation of the Contractor’s and its subcontractors’ compliance with the Arizona
employer sanctions laws referenced in Section 6 below. To the extent necessary for the Town to
audit Records as set forth in this Section, Contractor and its subcontractors hereby waive any rights
to keep such Records confidential. For the purpose of evaluating or verifying such actual or
claimed costs or units expended, the Town shall have access to said Records, even if located at its
subcontractors’ facilities, from the effective date of this Agreement for the duration of the work
and until three years after the date of final payment by the Town to Contractor pursuant to this
Agreement. Contractor and its subcontractors shall provide the Town with adequate and
appropriate workspace so that the Town can conduct audits in compliance with the provisions of
this Section. The Town shall give Contractor or its subcontractors reasonable advance notice of
intended audits. Contractor shall require its subcontractors to comply with the provisions of this
Section by insertion of the requirements hereof in any subcontract pursuant to this Agreement.
6. E-verify Requirements. To the extent applicable under ARIZ. REV. STAT. § 41-
4401, the Contractor and its subcontractors warrant compliance with all federal immigration laws
and regulations that relate to their employees and their compliance with the E-verify requirements
under ARIZ. REV. STAT. § 23-214(A). Contractor’s or its subcontractors’ failure to comply with
such warranty shall be deemed a material breach of this Agreement and may result in the
termination of this Agreement by the Town.
7. Israel. Contractor certifies that it is not currently engaged in and agrees for the
duration of this Agreement that it will not engage in a “boycott,” as that term is defined in ARIZ.
REV. STAT. § 35-393, of Israel.
8. Conflict of Interest. This Agreement may be canceled by the Town pursuant to
ARIZ. REV. STAT. § 38-511.
9. Applicable Law; Venue. This Agreement shall be governed by the laws of the State
of Arizona and a suit pertaining to this Agreement may be brought only in courts in Maricopa
County, Arizona.
10. Agreement Subject to Appropriation. The Town is obligated only to pay its
obligations set forth in this Agreement as may lawfully be made from funds appropriated and
budgeted for that purpose during the Town’s then current fiscal year. The Town’s obligations
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under this Agreement are current expenses subject to the “budget law” and the unfettered
legislative discretion of the Town concerning budgeted purposes and appropriation of funds.
Should the Town elect not to appropriate and budget funds to pay its Agreement obligations, this
Agreement shall be deemed terminated at the end of the then-current fiscal year term for which
such funds were appropriated and budgeted for such purpose and the Town shall be relieved of
any subsequent obligation under this Agreement. The parties agree that the Town has no obligation
or duty of good faith to budget or appropriate the payment of the Town’s obligations set forth in
this Agreement in any budget in any fiscal year other than the fiscal year in which this Agreement
is executed and delivered. The Town shall be the sole judge and authority in determining the
availability of funds for its obligations under this Agreement. The Town shall keep Contractor
informed as to the availability of funds for this Agreement. The obligation of the Town to make
any payment pursuant to this Agreement is not a general obligation or indebtedness of the Town.
Contractor hereby waives any and all rights to bring any claim against the Town from or relating
in any way to the Town’s termination of this Agreement pursuant to this section.
11. Conflicting Terms. In the event of any inconsistency, conflict or ambiguity among
the terms of this Agreement, any Town -approved work orders, the State Contract, and invoices,
the documents shall govern in the order listed herein. Notwithstanding the foregoing, and in
conformity with Section 2 above, unauthorized exceptions, conditions, limitations or provisions in
conflict with the terms of this Agreement or the State Contract (collectively, the “Unauthorized
Conditions”), other than the Town’s project-specific requirements, are expressly declared void and
shall be of no force and effect. Acceptance by the Town of any work order or invoice containing
any such Unauthorized Conditions or failure to demand full compliance with the terms and
conditions set forth in this Agreement or under the State Contract shall not alter such terms and
conditions or relieve Contractor from, nor be construed or deemed a waiver of, its requirements
and obligations in the performance of this Agreement.
12. Rights and Privileges. To the extent provided under the State Contract, the Town
shall be afforded all of the rights and privileges afforded to State and shall be “State” (as defined
in the State Contract) for the purposes of the portions of the State Contract that are incorporated
herein by reference.
13. Indemnification; Insurance. In addition to and in no way limiting the provisions set
forth in Section 12 above, the Town shall be afforded all of the insurance coverage and
indemnifications afforded to State to the extent provided under the State Contract, and such
insurance coverage and indemnifications shall inure and apply with equal effect to the Town under
this Agreement including, but not limited to, the Contractor’s obligation to provide the
indemnification and insurance. In any event, the Contractor shall indemnify, defend and hold
harmless the Town and each council member, officer, employee or agent thereof (the Town and
any such person being herein called an “Indemnified Party”), for, from and against any and all
losses, claims, damages, liabilities, costs and expenses (including, but not limited to, reasonable
attorneys’ fees, court costs and the costs of appellate proceedings) to which any such Indemnified
Party may become subject, under any theory of liability whatsoever (“Claims”), insofar as such
Claims (or actions in respect thereof) relate to, arise out of, or are caused by or based upon the
negligent acts, intentional misconduct, errors, mistakes or omissions, in connection with the work
or services of the Contractor, its officers, employees, agents, or any tier of subcontractor in the
performance of this Agreement.
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14. Laws and Regulations. Consultant shall keep fully informed and shall at all times
during the performance of its duties under this Agreement ensure that it and any person for whom
the Consultant is responsible abides by, and remains in compliance with, all rules, regulations,
ordinances, statutes or laws affecting the Services, including, but not limited to, the following: (A)
existing and future Town and County ordinances and regulations; (B) existing and future State and
Federal laws; and (C) existing and future Occupational Safety and Health Administration
standards.
15. Notices and Requests. Any notice or other communication required or permitted to
be given under this Agreement shall be in writing and shall be deemed to have been duly given if
(i) delivered to the party at the address set forth below, (ii) deposited in the U.S. Mail, registered
or certified, return receipt requested, to the address set forth below or (iii) given to a recognized
and reputable overnight delivery service, to the address set forth below:
If to the Town: Town of Fountain Hills
16705 East Avenue of the Fountains
Fountain Hills, Arizona 85268
Attn: Grady E. Miller, Town Manager
With copy to: Town of Fountain Hills
16705 East Avenue of the Fountains
Fountain Hills, Arizona 85268
Attn: Aaron D. Arnson, Town Attorney
If to Contractor: Titan Power, Inc.
7031 W. Oakland St.
Chandler, Arizona 85226
Attn: Jack McKenzie
or at such other address, and to the attention of such other person or officer, as any party may
designate in writing by notice duly given pursuant to this subsection. Notices shall be deemed
received: (i) when delivered to the party, (ii) three business days after being placed in the U.S.
Mail, properly addressed, with sufficient postage or (iii) the following business day after being
given to a recognized overnight delivery service, with the person giving the notice paying all
required charges and instructing the delivery service to deliver on the following business day. If a
copy of a notice is also given to a party’s counsel or other recipient, the provisions above governing
the date on which a notice is deemed to have been received by a party shall mean and refer to the
date on which the party, and not its counsel or other recipient to which a copy of the notice may
be sent, is deemed to have received the notice.
[SIGNATURES APPEAR ON FOLLOWING PAGES]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date
and year first set forth above.
“Town”
TOWN OF FOUNTAIN HILLS,
an Arizona municipal corporation
Grady E. Miller, Town Manager
ATTEST:
Elizabeth A. Klein, Town Clerk
APPROVED AS TO FORM:
Aaron D. Arnson, Town Attorney
[SIGNATURES CONTINUE ON FOLLOWING PAGES]
Aaron Arnson (May 23, 2022 10:34 PDT)
Elizabeth Klein (May 23, 2022 11:03 PDT)
“Contractor”
____________________________________,
By:
Name:
Title:
Titan Power, Inc., a(n) Arizona corporation
Stephen Berney (May 23, 2022 08:41 PDT)
Stephen Berney
Chief Operating Officer
Stephen Berney
EXHIBIT A
TO
COOPERATIVE SERVICES AGREEMENT
BETWEEN
THE TOWN OF FOUNTAIN HILLS
AND
TITAN POWER, INC.
[State Contract]
See following pages.
Douglas A. Ducey
Governor
Craig Brown
Director
ARIZONA DEPARTMENT OF ADMINISTRATION
STATE PROCUREMENT OFFICE
100 NORTH FIFTEENTH AVENUE • SUITE 201
PHOENIX, ARIZONA 85007
(602)542-5511 (main)(602)542-5508 (fax)
http://spo.az.gov
Sent via e-mail to: sberney@titanpower.com
June 28th, 2017
Re: Award of Contract No. ADSPO17-00007024 for Uninterruptible Power Supplies: New Equipment and
Service
Dear Mr. Berney,
Thank you for submitting a response to Invitation to Bid No. ADSPO17-00007024. I am pleased to inform
you that your company’s offer has been selected for award. The initial contract term shall begin on July
16th, 2017.
All offers received were evaluated in accordance with the evaluation criteria set forth in the solicitation
document. The procurement file for this solicitation, including evaluation documents and resultant
contracts, are now available for public viewing via the State’s e-Procurement system, ProcureAZ.
In accordance with Special Terms and Conditions, Section 15.0 of the contract and prior to beginning work
under the contract, your company is required to submit a Certificate of Insurance to the State Procurement
Office. The certificate of insurance shall indicate that your company is in compliance with insurance
requirements contained in the contract. Please submit your certificate of insurance to me no later than July
30th, 2017.
You are cautioned not to begin any work under the contract until the Procurement Officer assigned to your
contract has issued a written notice to proceed.
If you have any questions regarding your company’s contract, please contact me at
Blair,Koolick@Azdoa.gov or 602.364.1347. Thank you for your response and for your continued interest in
doing business with the State of Arizona.
Sincerely,
Blair Koolick
Statewide Procurement Manager
Contract Amendment Arizona Department of
Administration
State Procurement Office
100 N. 15th Avenue, Suite 402
Phoenix, AZ 85007
ADSPO18-176583 Amendment Five (5)
CTR032107 APP Amendment Three (3)
ACKNOWLEDGEMENT AND AUTHORIZATION
This amendment shall be fully executed upon the electronic approval in the State e-Procurement system by an
authorized representative of the Contractor and applied to the contract in the State e-Procurement system by the
Procurement Officer or delegate.
Available online at
app.az.gov
Page 1 of 1
CONTRACTOR: STATE AGENCY:
Titan Power Inc.
7031 W. Oakland St.
Chandler, AZ 85226
AZ Department of Administration (ADOA)
State Procurement Office
100 N. 15th Ave., Ste. 402
Phoenix, AZ 85007
CONTACT: Stephen Berney CONTACT: James Atkins
PHONE: (480) 968-3191 PHONE: (602) 542-8990
EMAIL: sberney@titanpower.com EMAIL: james.atkins@azdoa.gov
UNINTERRUPTIBLE POWER SUPPLY: NEW EQUIPMENT, SERVICE, AND
MAINTENANCE
Amendment Type (Extension)
1. In accordance with, Special Terms and Conditions, Paragraph 5.1 Contract Amendments and Paragraph 3.2
Contract Extensions, the contract is hereby extended for one (1) year, July 16, 2021 through July 15, 2022.
ALL OTHER REQUIREMENTS, SPECIFICATIONS, TERMS AND CONDITIONS REMAIN UNCHANGED
* Please ensure all required Certificate Of Insurance are updated and submitted to the State Procurement Office.
Request for Proposal
Solicitation No.
ADSPO17-00007024
Description:
Uninterruptible Power Supply: New Equipment Service and
Maintenance
Arizona Department of Administration
State Procurement Office
100 N 15th Ave., Suite 201
Phoenix, AZ 85007
PART 2 of the Solicitation Documents
Template version 2.0 (01-FEB-2017)
Table of Contents
Page 1 of 47 2
Available online at Procure.AZ.gov
Part 2: Scope, Pricing and Terms and Conditions
Table of Contents
SECTION 2-A: Scope of Work ........................................................................................................................ 2
1.0 ..... PURPOSE AND BACKGROUND .......................................................................................... 2
2.0 ..... SCOPE SUMMARY ....................................................... ....................................................2
3.0 ..... SCOPE OF SERVICES .................................................... ....................................................3
4.0 ..... MINIMUM REQUIREMENTS ........................................ ....................................................3
SECTION 2-B: Pricing Document ................................................................................................................... 9
SECTION 2-C: Special Terms and Conditions ............................................................................................... 13
SECTION 2-D: Uniform Terms and Conditions ........................................................................................... 40
Request for Proposal
Solicitation No.
ADSPO17-00007024
Description:
Uninterruptible Power Supply: New Equipment Service and
Maintenance
Arizona Department of Administration
State Procurement Office
100 N 15th Ave., Suite 201
Phoenix, AZ 85007
PART 2 of the Solicitation Documents
Template version 2.0 (01-FEB-2017)
SECTION 2-A: Scope of Work
Page 2 of 47 2
Available online at Procure.AZ.gov
SECTION 2-A: Scope of Work
1.0 Purpose and Background
1.1 Purpose: The State of Arizona, it’s Agencies, Boards and Commissions (State) as well as
Participating Members of the State Purchasing Cooperative (Cooperative), have an ongoing
requirement for various Products and Services as described herein. The purpose of the
Solicitation is to conduct a competitive process, in accordance with Arizona Revised Statutes
(ARS) 41-2501 et seq., to create a Contract or Contract Set from which the State and its
Cooperative Members may acquire these Products and Services.
1.2 Background: The State of Arizona has an ongoing need for full service and preventative
maintenance to the uninterruptible power supply (UPS) systems used by various State agencies
and its Cooperative Members. Additionally there are periodic needs for new equipment as well
as replacement parts and engineering services. The UPS systems provide a source of backup in
the case of a power outage. They are a piece of electrical equipment with internal batteries
that offer a continuing source of power for a short period of time to any computer or electrical
appliance that is plugged in to it. The constant flow of power is a key essential to many
functions that State agencies and Cooperative Members operate with. Without power,
dangerous circumstances may present themselves, so it is critical that these UPS systems are
dependable and reliable.
2.0 Products and Services
2.1 The State desires to establish a Contract or Contract Set to cover both UPS equipment
purchases and maintenance on existing UPS systems already in use by the State. The State
acknowledges that the UPS industry and its suppliers are changing rapidly and as such desire to
establish manufacturer-based contracts allowing flexibility to accommodate open-standards-
based products and new technology.
2.2 The State intends to consider value-added-reseller, distributor, as well as manufacturer-direct
proposals and may award multiple manufacturer offerings to a successful value-added-reseller
and/or distributor. The State prefers to obtain vendors who represent multiple manufactures
as well as vendors who represent manufactures that produce specialized products.
Request for Proposal
Solicitation No.
ADSPO17-00007024
Description:
Uninterruptible Power Supply: New Equipment Service and
Maintenance
Arizona Department of Administration
State Procurement Office
100 N 15th Ave., Suite 201
Phoenix, AZ 85007
PART 2 of the Solicitation Documents
Template version 2.0 (01-FEB-2017)
SECTION 2-A: Scope of Work
Page 3 of 47 2
Available online at: Procure.AZ.gov
3.0 Scope of Products and Services
3.1 The Contractor shall provide UPS Products and Services under this contract which include:
3.2 Actual manufacturer’s products, services, labor, materials, transportation, equipment and
all other necessities for the installation, integration, and implementation, including engineering
analysis, design and configuration, of the manufacturer’s product or service.
3.3 Software and/or hardware maintenance of the manufacturer’s product or service. Provide a
detailed work plan/scope of work procedures for all major maintenance prior to commencing
work. Procedures shall include back-up and contingency plans.
3.4 Ancillary services in conjunction with the implementation, or extension of a manufacturer’s
product.
4.0 Pricing Requirements
4.1 Offerors shall make available a complete family or line of business of a manufacturer’s
products at a “percentage discount off list pricing”.
4.2 Offerors shall provide an hourly rate for hardware/software maintenance and an hourly “not to
exceed rate” for equipment maintenance within a complete family or line of business of a
manufacturer’s products. The Offeror may bid solely on new equipment and the services that
would correlate with new product purchases (including but not limited to design, installation,
training, etc.) or they may bid solely on maintenance and services that would correspond with
maintenance (including but not limited to maintenance, training etc.)
5.0 Contractor and Technician Requirements
5.1 The Contractor must be Data Center certified and licensed. An electrical license is preferred
but not required.
5.2 Technicians under any resultant contract shall be trained on the manufacturer’s product line,
by the manufacturer or by any authorized trainer for that manufacturer of the product line
that they will be working on. For example, if an Offeror is servicing an XYZ UPS system, they are
Request for Proposal
Solicitation No.
ADSPO17-00007024
Description:
Uninterruptible Power Supply: New Equipment Service and
Maintenance
Arizona Department of Administration
State Procurement Office
100 N 15th Ave., Suite 201
Phoenix, AZ 85007
PART 2 of the Solicitation Documents
Template version 2.0 (01-FEB-2017)
SECTION 2-A: Scope of Work
Page 4 of 47 2
Available online at: Procure.AZ.gov
required to be certified on XYZ equipment. This is to ensure that the State is receiving the
highest utilization of their components.
6.0 Product Requirements
6.1 The following UPS products specifically included in this procurement are grouped into tiers as
follows:
6.2 Tier I
250VA – 1500 VA
PC & Workstation UPS – single phase
Power protection solution for desktop computers;
6.3 Tier II
1500VA – 20kVA
Network & Server UPS – larger single phase
Power protection solutions designed for networking equipment including entry-level to high
performance storage, switches and servers;
6.4 Tier III
10kVA – 100kVA
Small to Mid-Size Data Centers – small three phase
Power protection solutions designed for centralized protection of any data center and for
complete building systems;
6.5 Tier IV
101kVA and larger
Mid-size to large data center and facility UPS large three phase.
6.6 Design Services; Regular Hourly Rates Price Per hour
Request for Proposal
Solicitation No.
ADSPO17-00007024
Description:
Uninterruptible Power Supply: New Equipment Service and
Maintenance
Arizona Department of Administration
State Procurement Office
100 N 15th Ave., Suite 201
Phoenix, AZ 85007
PART 2 of the Solicitation Documents
Template version 2.0 (01-FEB-2017)
SECTION 2-A: Scope of Work
Page 5 of 47 2
Available online at: Procure.AZ.gov
7.0 Service Requirements
7.1 The services that may be offered in correlation with this solicitation are as follows:
7.2 Design;
7.3 Installation;
7.4 Training; and
7.5 Maintenance.
7.5.1 Preventative,
7.5.2 Emergency (by response time), and
7.5.3 Quick, and
7.5.4 Urgent.
7.6 Legacy.
In addition to maintenance on new product purchases, the Contractor shall also offer
maintenance on Legacy Products. Legacy Products are defined as any existing UPS equipment,
and its associated supplies, that have been purchased or rented prior to the RFP issuance and
resulting contract award.
8.0 Response Time to Requests for Service
8.1 Urgent Response
Zone A Site Centers
Phoenix – 100 N. 15th Ave., Phoenix, AZ 85007
Tucson – 255 W. Alameda St., Tucson, AZ 85701
Zone A requires initial response by phone within one hour of request for
service. Physical representation on site is required within three hours of
request for service by the State and/or Cooperative. This applies to sites
located within the 40 mile radius from the site center, as detailed above.
Contractor shall maintain a 24-hour call center to receive service calls
Request for Proposal
Solicitation No.
ADSPO17-00007024
Description:
Uninterruptible Power Supply: New Equipment Service and
Maintenance
Arizona Department of Administration
State Procurement Office
100 N 15th Ave., Suite 201
Phoenix, AZ 85007
PART 2 of the Solicitation Documents
Template version 2.0 (01-FEB-2017)
SECTION 2-A: Scope of Work
Page 6 of 47 2
Available online at: Procure.AZ.gov
and promptly dispatch maintenance technicians in response to callback
requests and emergency troubleshooting and/or repair..
For distances traveled outside of the 40 mile radius from the addresses
listed as the Zone Site Centers above, this solicitation allows one
additional hour of physical response time for each additional 40 miles
from the Zone Site Center to the service request. For example, an
urgent maintenance request was received from 120 W. 6th St. Benson,
AZ 85602, located 47.67 miles from the closest Zone A address (Tucson
255 W. Alameda, Tucson, AZ 85701), therefore it would require a four
hour response time for physical presence for an urgent response.
Zone A1 – Sites that require a one hour phone response and a three
hour physical presence onsite, but otherwise do not qualify as a Zone A
sites. These sites have substantial need for urgent response times and
Request for Proposal
Solicitation No.
ADSPO17-00007024
Description:
Uninterruptible Power Supply: New Equipment Service and
Maintenance
Arizona Department of Administration
State Procurement Office
100 N 15th Ave., Suite 201
Phoenix, AZ 85007
PART 2 of the Solicitation Documents
Template version 2.0 (01-FEB-2017)
SECTION 2-A: Scope of Work
Page 7 of 47 2
Available online at: Procure.AZ.gov
are located beyond the 40 mile radius from either Zone A Site Center
(see site center definitions above).
ADC Central Office, Phoenix
ASPC– Douglas, Douglas, Az.*
ASPC – Eyman in Florence, AZ*
ASPC – Florence, Florence AZ*
ASPC – Lewis, Buckeye, AZ*
ASPC – Safford/Ft. Grant, AZ*
ASPC Winslow/Apache (St. Johns) AZ*
ASPC –YUMA, Yuma, AZ*
ASPC-Perryville. Goodyear, AZ
ASPC – Tucson, AZ
ASPC- Phoenix, AZ
ASPC-Globe. Globe, AZ*
*These sites allow four hours for the Contractor to have a physical
presence on site due to their distance.
8.2 Preventative Response
The Contractor shall perform work in accordance with the manufacturer’s recommendation to
ensure it is performing to all defined technical and environmental specification for the system.
The Contractor shall perform the minimum of two (2) to the maximum of four (4) inspections a
year. The Contractor shall also conduct initial preventative maintenance ensuring performance
begins at the optimal level. The Contractor, at the request of an Agency, may propose a
preventative maintenance plan that includes an Infrared Scan option once-a-year on all UPS
and PDU’s.
8.3 Flat Rate Maintenance
Due to the varied nature of UPS systems the Contractor, at the request of an Agency, may
propose a Flat Rate Maintenance Plan, which shall include all maintenance, services and
Request for Proposal
Solicitation No.
ADSPO17-00007024
Description:
Uninterruptible Power Supply: New Equipment Service and
Maintenance
Arizona Department of Administration
State Procurement Office
100 N 15th Ave., Suite 201
Phoenix, AZ 85007
PART 2 of the Solicitation Documents
Template version 2.0 (01-FEB-2017)
SECTION 2-A: Scope of Work
Page 8 of 47 2
Available online at: Procure.AZ.gov
equipment. Additional requirements may be specified by the Agency at the time of the Flat
Rate Maintenance request.
8.4 Emergency Response
8.4.1 Quick Response
Perform repairs within 24-hour period (excluding weekends and holidays) and charge
by flat hourly “not to exceed” rate (billable hours start when repair technician arrives
on site and terminates upon Contractor’s completion of work on site.).
8.4.2 Urgent Response
Requires immediate response and remedy. Minimum response time shall be one
hour phone response and within three hours for physical representation onsite.
Please see Response Time above.
9.0 Training
The Contractor shall offer training as necessary, at no additional cost to the
State, on any product and or software offered on the awarded contract.
Training shall be available throughout the state and ongoing
No Exhibits apply to the Scope of Work.
End of Section 2-A
Request for Proposal
Solicitation No.
ADSPO17-00007024
Description:
Uninterruptible Power Supply: New Equipment Service and
Maintenance
Arizona Department of Administration
State Procurement Office
100 N 15th Ave., Suite 201
Phoenix, AZ 85007
PART 2 of the Solicitation Documents
Template version 2.0 (01-FEB-2017)
SECTION 2-B: Pricing Document
Page 9 of 47 2
Available online at: Procure.AZ.gov
SECTION 2-B: Pricing Document
1.0 Compensation
1.1 COMPENSATION METHOD
Contractor will be compensated based on the pricing provided in attachment 4, pricing sheet. Pricing shall be
defined based on all numbers submitted in Attachment 4. The line items will also be set up in ProcureAZ to
enter in the hourly rates, and discounts by manufacturer.
2.0 Pricing
2.1 CONTRACTOR’S BEST PRICING. Supplier warrants that, for the term of the Contract, the prices and discounts set
out in Exhibit 1 to this Pricing Document, including any subsequent agreed amendment to it (the “Contract
Pricing”), will be equal to or better than the lowest prices and largest discounts, both separately and in
combination, at which Contractor sells equivalent items of equipment and materials.
2.1.1 That price-plus-discount equivalence (“Contractor’s Best Pricing”) is intended to be irrespective of
whether or not those other sales have special purchase terms, conditions, rebates or allowances.
2.1.2 If Contractor’s Best Pricing for equivalent items of equipment and materials is better than the Contract
Pricing, then Contractor agrees to adjust the Contract Pricing to match the Contractor’s Best Pricing for
all sales related to the Contractor made after the date when the Contractor’s Best Pricing was first
better than the Contract Pricing.
2.1.3 For clarification of intent, that date is intended to be the date when the difference first occurred,
which might have been before the difference was first identified. If it was before, then Supplier agrees
to charge at less than the Contract Pricing until the extended difference that would have been realized
(i.e., if the Contractor’s Best Pricing had been applied when it should have been) has been settled.
2.2 PRICING-ALL-INCLUSIVE:
2.2.1 Pricing is all-inclusive, including any ancillary fees and costs required to accomplish the Scope of Work
and all aspects of Contractor’s offer as accepted by State. Details of service not explicitly stated in the
Scope of Work or in Contractor’s Offer, but necessarily a part of, are deemed to be understood by
Contractor and included herein. All administrative, reporting, or other requirements, all overhead costs
and profit and any other costs toward the accomplishment of the requirements in the Contract are
included in the pricing provided.
2.3 PRICE INCREASES:
2.3.1 The SPO may review a fully documented request for a price increase. The requested increase shall be in
writing and be based upon a cost increase to the contractor that was clearly unpredictable at the time
of the offer and is directly correlated to the price of the product concerned. Contractor must provide
conclusive evidence of a need for any price increases such as being substantiated by the Producer Price
Index, Consumer Price Index, or similar pricing guide.
(a) Initial Contract prices will be honored for one year after award of Contract.
(b)All written requests for price adjustments made by the contractor shall be initiated thirty (30)
days in advance of any desired price increase to allow State sufficient time to make a fair and
equitable determination to any such requests. This may be waived upon proper documentation
demonstrating the urgency of the request.
Request for Proposal
Solicitation No.
ADSPO17-00007024
Description:
Uninterruptible Power Supply: New Equipment Service and
Maintenance
Arizona Department of Administration
State Procurement Office
100 N 15th Ave., Suite 201
Phoenix, AZ 85007
PART 2 of the Solicitation Documents
Template version 2.0 (01-FEB-2017)
SECTION 2-B: Pricing Document
Page 10 of 47 2
Available online at: Procure.AZ.gov
(c) All price adjustments will be implemented by a formal contract change order. State shall
determine whether the requested price increase or an alternate option is in the best interest of
State.
2.4 PRICE REDUCTIONS:
2.4.1 Price reductions shall by immediately passed along to State and may be submitted in writing to State
for consideration at any time during the Contract period. The contractor shall offer State a price
reduction on the Contract product(s) concurrent with a published price reduction made to other
customers. State at its own discretion may accept a price reduction. The price reduction request shall
be in writing and include documentation showing the actual reduction of cost. Sales promotions
requests shall include difference in pricing, begin, and end date of promotion along with the products
covered.
2.5 ADDITIONAL CHARGES:
2.5.1 Any charges or fees not delineated in the Contract may not be added, billed, or invoiced under the
Contract. All additional work shall be approved by Arizona State Parks in advance and be in accordance
with the contract rate.
2.6 TRAVEL.
2.6.1 Contractor shall get written approval prior to any travel under the Contract in which reimbursement of
expenses will be requested. Contractor will be reimbursed for actual expenses incurred in accordance
with the current rates specified in State’s Travel Policy. Contractor shall itemize all per diem and
lodging charges. State Travel Policy, including State rates, may be located at https://gao.az.gov/travel.
The Eligible Agency shall reject any claim for travel reimbursement without prior written approval.
3.0 Funding
No particular funding considerations apart from paragraph 4.3 of the Uniform Terms and Conditions [Availability of
Funds] have been identified as of the Solicitation date.
4.0 Invoicing
4.1 INVOICES GO TO BUYING ENTITY. Contractor shall submit all billing notices or invoices to the ordering Eligible
Agency or Co-Op Buyer at the address indicated on the applicable Order document.
4.2 MINIMUM INVOICE REQUIREMENTS. Every invoice must include the following information:
Item Required
Bill-to name and address
Contractor name and contact information
Remit-to address
State contract number
Order number (typically the ProcureAZ PO #)
Invoice number and date
Date the items shipped or services performed
Applicable payment terms
Request for Proposal
Solicitation No.
ADSPO17-00007024
Description:
Uninterruptible Power Supply: New Equipment Service and
Maintenance
Arizona Department of Administration
State Procurement Office
100 N 15th Ave., Suite 201
Phoenix, AZ 85007
PART 2 of the Solicitation Documents
Template version 2.0 (01-FEB-2017)
SECTION 2-B: Pricing Document
Page 11 of 47 2
Available online at: Procure.AZ.gov
Contract line item number
Contract line item description
Quantity delivered or performed
Line item unit of measure
Item price
Extended pricing
Discount off list or catalog
Taxes (as a separate invoice line item)
Upcharge shipping/freight, etc. (as a separate invoice line item) Materials only
Total invoice amount due
4.3 NO INVOICE WITHOUT AUTHORIZATION. Contractor shall not seek payment for any:
1. Materials or Services that have not been authorized on an acknowledged Order;
2. expediting, overtime, premiums, or upcharges absent State’s express prior approval; or
3. Materials or Services that are the subject of a Contract Amendment or Change Order that has not been
fully signed.
4.4 PRE-INVOICE REVIEW. Shortly before Contractor is scheduled to submit each invoice, the parties’
representatives shall meet informally to review any issues relevant to that upcoming invoice so that the formal
invoice process is thereby facilitated and made more efficient.
4.5 SUBMITTING INVOICES. Contractor shall submit an invoice to the ordering Eligible Agency or Co-Op Buyer using
the form provided or required by the ordering Eligible Agency or Co-Op Buyer. Every invoice must be signed by
Contractor’s authorized representative and accompanied by all supporting information and documentation
required by the Contract and applicable laws.
4.6 DEFECTIVE INVOICES. Without prejudice to its other rights under the Contract or further obligation to
Contractor, the ordering Eligible Agency or Co-Op Buyer may, at its discretion, reject any materially defective
invoice.
4.6.1 The ordering Eligible Agency or Co-Op Buyer shall notify Contractor within 5 (five) business days after
receipt if it determines an invoice to be materially defective.
4.6.2 Invoices will be deemed automatically rejected upon delivery if they:
(a) are sent to an incorrect address;
(b) do not reference the correct State contract number; or
(c) are payable to any Person other than the Contractor.
4.6.3 The ordering Eligible Agency or Co-Op Buyer will have no obligation to pay against a defective invoice
unless and until Contractor has re-submitted it free of defects.
4.7 INVOICING FOR TASK ORDERS. For task order Services, invoices must include the following information as
applicable to the relevant task order being invoiced against:
1. substantiation of hours worked using:
a. a detailed daily timesheet;
b. itemization to the task level; and
Request for Proposal
Solicitation No.
ADSPO17-00007024
Description:
Uninterruptible Power Supply: New Equipment Service and
Maintenance
Arizona Department of Administration
State Procurement Office
100 N 15th Ave., Suite 201
Phoenix, AZ 85007
PART 2 of the Solicitation Documents
Template version 2.0 (01-FEB-2017)
SECTION 2-B: Pricing Document
Page 12 of 47 2
Available online at: Procure.AZ.gov
c. breakdown by service area (if the Contract covers more than one area) and Contract Amendment
(if any apply);
2. authorizations and receipts for all allowable reimbursable items being invoiced; and
3. Contractor’s certification that the invoice has been examined and to the best of Contractor’s knowledge
and belief the invoiced amounts are entitled, correct, and accurate as can be demonstrated by the
contractually-required books and records upon State’s demand.
5.0 Payments
5.1 PAYMENT. The applicable Eligible Agency or Co-Op Buyer shall pay undisputed amounts due to Contractor
within the time period specified in Section 18.1 of the Special Terms and Conditions
5.2 JOINT CHECKS OR DIRECT PAY. applicable Eligible Agency or Co-Op Buyer may, but is under no obligation to, pay
by joint check or to pay directly to any Subcontractor or other creditor to whom any portion of Contractor’s
requested payment is owed.
5.3 RECOVERY OF OVER-PAYMENT. If applicable Eligible Agency or Co-Op Buyer determines that an over-payment
has been made to Contractor on any prior invoice, it shall inform Contractor of the amount and date of the
over-payment and may deduct the over-paid amount from amounts then or thereafter due to Contractor.
5.4 PAYMENTS TO SUBCONTRACTORS. Contractor shall make payment of all undisputed amounts due to
Subcontractors within thirty (30) days of receipt of funds from applicable Eligible Agency or Co-Op Buyer
applicable to their services.
5.5 PURCHASING CARD. applicable Eligible Agency or Co-Op Buyer may pay invoices for some or all Orders using a
purchasing card. Any and all fees related to payment using a Purchasing Card are the responsibility of
Contractor. Unless otherwise stated in the Contract there will be no additional fees or increase in prices
associated with this method of payment.
5.6 AUTOMATED CLEARING HOUSE. applicable Eligible Agency or Co-Op Buyer may pay invoices for some or all
Orders through an Automated Clearing House (ACH). In order to receive payments in this manner from Eligible
Agencies, Contractor must complete an ACH Vendor Authorization Form (form GAO-618) within 30 (thirty) days
after the effective date of the Contract. The form is available online at:
https://gao.az.gov/afis/vendor-information
6.0 Exhibits to the Pricing Document
Exhibit 1 .... Pricing Sheet .................................................................................................... m/d/yyyy
End of Section 2-B
Request for Proposal
Solicitation No.
ADSPO17-00007024
Description:
Uninterruptible Power Supply: New Equipment Service and
Maintenance
Arizona Department of Administration
State Procurement Office
100 N 15th Ave., Suite 201
Phoenix, AZ 85007
PART 2 of the Solicitation Documents
Template version 2.0 (01-FEB-2017)
SECTION 2-C: Special Terms and Conditions
Page 13 of 47 2
Available online at: Procure.AZ.gov
SECTION 2-C: Special Terms and Conditions
The Special Terms and Conditions modify the Uniform Terms and Conditions and its Appendices. It can modify them by replacing, deleting,
appending to, or revising the text of an existing provision or by inserting a new paragraph into an existing article. No other document
modifies or adds to the Uniform Terms and Conditions, except as may subsequently be otherwise and expressly agreed and incorporated
by Contract Amendment.
1.0 Definition of Terms
As used in the Contract, the terms listed below are defined as follows:
1.1 Acceptance “Acceptance” means the document headed “Offer and Acceptance Form” bearing the State
contract number once Procurement Officer has signed it to signify (1) State’s formal acceptance
of the Accepted Offer and (2) the formation of the Contract. For clarity of intent, the foregoing is
not to be confused with the term “acceptance” used throughout the Contract in the context of
delivery, inspection, etc., with respect to Materials or Services.
1.2 Accepted Offer If State did not request a Revised Offer, then “Accepted Offer” means the Initial Offer.
If State did request a Revised Offer but not a Best and Final Offer, then “Accepted Offer” means
the latest Revised Offer.
If State requested a Best and Final Offer, then “Accepted Offer” means the Best and Final Offer.
1.3 Arizona Procurement
Code;
A.R.S.; A.A.C.
“Arizona Procurement Code, “A.R.S.,” and “A.A.C.” are each defined in the Instructions to
Offerors.
1.4 Arizona TPT “Arizona TPT” means Arizona Transaction Privilege Tax. For information, refer to the Arizona
Department of Revenue (DOR) website at:
https://www.azdor.gov/business/transactionprivilegetax.aspx.
1.5 Attachment “Attachment” means any item that:
1. the Solicitation required Offeror to submit as part of the relevant Offer
(e.g., Initial Offer, Revised Offer, or BAFO);
2. was attached to an Offer when submitted; and
3. was included in the Accepted Offer.
1.6 Pricing
Document
“Pricing Document” means Section 2-B of Part 2 of the Solicitation Documents, provided that,
if there is no such Section in the Contract, then “Pricing Document” is to be construed as
referring to whatever item in the Contract contains the contracted pricing and payment
provisions.
1.7 Contract
Amendment
"Contract Amendment" means a document signed by Procurement Officer that has been issued
for the purpose of making changes to the Contract after execution. The term “Change Order” in
ProcureAZ is to be construed as being synonymous with “Contract Amendment”.
1.8 Contract Terms
and Conditions
“Contract Terms and Conditions” means the Special Terms and Conditions and these Uniform
Terms and Conditions taken collectively.
1.9 Contractor “Contractor” means the Person identified on the Accepted Offer who has entered into the
Contract with State.
1.10 Contractor Indemnitor “Contractor Indemnitor” means Contractor or any of its owners, officers, directors, agents,
employees, or Subcontractors.
Request for Proposal
Solicitation No.
ADSPO17-00007024
Description:
Uninterruptible Power Supply: New Equipment Service and
Maintenance
Arizona Department of Administration
State Procurement Office
100 N 15th Ave., Suite 201
Phoenix, AZ 85007
PART 2 of the Solicitation Documents
Template version 2.0 (01-FEB-2017)
SECTION 2-C: Special Terms and Conditions
Page 14 of 47 2
Available online at: Procure.AZ.gov
1.11 Co-Op Buyer “Co-Op Buyer” means a member of the State Purchasing Cooperative that has entered into a
“Cooperative Purchasing Agreement” with the Arizona Department of Administration State
Procurement Office under A.R.S. § 41-2632. Unless there is an applicable Cooperative
Purchasing Agreement in effect at the time, a State Purchasing Cooperative member cannot be
a Co-Op Buyer. For reference, “Co-Op Buyer” is to be construed as encompassing “eligible
procurement unit” under A.A.C. R2-7-101(23).
NOTE: Membership in the State Purchasing Cooperative is open to all Arizona political
subdivisions, including cities, counties, school districts, and special districts. Membership is also
available to non-profit organizations, other state governments, the federal government and
tribal nations. For reference, “non-profit organizations” are defined in A.R.S. § 41-2631(4) as any
nonprofit corporation as designated by the IRS under section 501(c)(3) through 501(c)(6) of the
tax code.
1.12 Eligible Agency If the Special Terms and Conditions indicates that the Contract is a “single-agency” contract,
then “Eligible Agency” means the particular State of Arizona agency, university, commission, or
board identified therein. If the Special Terms and Conditions indicates that the Contract is a
“statewide” contract, then “Eligible Agency” means any State of Arizona department, agency,
university, commission, or board.
1.13 Indemnified Basic
Claims
“Indemnified Basic Claims” means any and all claims, actions, liabilities, damages, losses, or
expenses, including court costs, attorneys’ fees, and costs of claim processing, investigation and
litigation, for bodily injury or personal injury, including death, or loss or damage to any real or
tangible or intangible personal property, collectively. See paragraph 6.3.
1.14 Instructions
to Offerors
“Instructions to Offerors” is Section 3-a of Part 3 of the Solicitation Documents.
1.15 Order “Order” means the instrument by which State authorizes Contractor to perform some or all of
the Work. Whether the Contract will have one Order or many Orders depends the scope of the
Contract and how State will use it. The Special Terms and Conditions provide that information.
Any of the following is to be construed as being an “Order”:
1. “Release” or “Release Purchase Order” in ProcureAZ;
2. “task order”, “service order,” or “job order” when a Release Purchase Order for Services
has already been committed in ProcureAZ; or
3. “purchase order” for buying by Co-Op Buyers, if co-op buying applies.
1.16 ProcureAZ “ProcureAZ” means State’s official electronic procurement system, established pursuant to
A.A.C. R2-7-201 as set forth in the Arizona Department of Administration State Procurement
Office policy document Technical Bulletin No. 020, ProcureAZ – The Official State eProcurement
System.
NOTE (1): Technical Bulletin No. 020 is available online at:
https://spo.az.gov/administration-policy/state-procurement-resource/procurement-regulations
NOTE (2): The URL for ProcureAZ itself is:
https://procure.az.gov/
1.17 State With respect to the Contract generally, “State” means the State of Arizona and its department,
agency, university, commission, or board that has executed the Contract. With respect to
administration or rights, remedies, obligations and duties under the Contract for a given Order,
“State” means each of Eligible Agency or Co-Op Buyer who has issued the Order.
1.18 State Indemnitees “State Indemnitees” means, collectively, the State of Arizona, its departments, agencies,
universities, commissions, and boards and, and their respective officers, agents, and employees.
1.19 Subcontractor “Subcontractor” has the meaning given in A.R.S. § 41-2503(38), which, for convenience of
reference only, is “… a person who contracts to perform work or render service to …
[C]ontractor or to another [S]ubcontractor as a part of a contract with a state governmental unit
Request for Proposal
Solicitation No.
ADSPO17-00007024
Description:
Uninterruptible Power Supply: New Equipment Service and
Maintenance
Arizona Department of Administration
State Procurement Office
100 N 15th Ave., Suite 201
Phoenix, AZ 85007
PART 2 of the Solicitation Documents
Template version 2.0 (01-FEB-2017)
SECTION 2-C: Special Terms and Conditions
Page 15 of 47 2
Available online at: Procure.AZ.gov
. . .”The Contract is to be construed as “a contract with a state governmental unit” for purposes
of the definition. For clarity of intent, a Person carrying out any element of the Work is a
Subcontractor from the moment they first carry out that element of the Work regardless of
whether or not a Subcontract exists then or subsequently.
1.20 Work “Work” means the totality of the Materials and the Services and all the acts of administration,
creation, production, and performance necessary to fulfill and incidental to fulfilling all of
Contractor's obligations and duties under the Contract in conformance with the Contract and
applicable laws.
2.0 Contract Interpretation
2.1 Usage Where the Contract:
1. assigns obligations to Contractor, any reference to “Contractor” is to be construed to be
a reference to “Contractor and all Subcontractors, whether they are first-tier
subcontractors, sub-subcontractors, suppliers, sub-suppliers, consultants, or sub-
consultants, as well as all of Contractor’s and the Subcontractors’ respective agents,
representatives, and employees” in every instance unless the context plainly requires
that it is be a reference only to Contractor as apart from Subcontractors;
2. uses the permissive “may” with respect to a party’s actions, determinations, etc., the
term is to be interpreted as in A.A.C. R2-7-101(31) [Definitions]. For clarity of intent, any
right given to State using “State may” or a like construction denotes discretion and
freedom to act so far as any regulatory or operative constraints permit in the relevant
circumstances, provided that: (a) where written “may, at its discretion,” the discretion
extends to whatever is most advantageous to State; and (b) where written only as
“may,” the discretion is constrained by what is fair, reasonable, and as accommodating
of the respective best interests of both parties as practicable under the circumstances;
3. uses the imperative “shall” with respect to a party’s actions, duties, etc., the term is to
be interpreted as in A.A.C. R2-7-101(43) [Definitions]. Conversely, the phrase “shall not”
is to be interpreted as an imperative prohibition.
4. uses the term “must” with respect to a requirement, criterion, etc., the term is to be
interpreted as conveying compulsion or strict necessity, and is to be read as though
written “must, if [the subject] is to be entitled to have [the object] considered or credited
as being compliant with, conforming to, or satisfying [the requirement, criterion,
constraint, etc.], otherwise, [the object] will be considered or debited as being
non-compliant, non-conforming, or unsatisfactory for its Contract-related purposes” in
every instance;
5. uses the term “might” with respect to an event, outcome, action, etc., the term is to be
interpreted as conveying contingency or non-discretionary conditionality; and
6. uses the term “will” or the phrases “is to be” or “are to be” with respect to an event,
outcome, action, etc., the term or phrase is to be interpreted as conveying such certainty
or imperativeness that “shall” is either unnecessary or irrelevant in that instance.
2.2 Contract Order
of Precedence
COMPLEMENTARY DOCUMENTS. All of the documents forming the Contract are
complementary. If certain work, requirements, obligations, or duties are set out only in one but
not in another, Contractor shall carry out the Work as though the relevant work, requirements,
obligations, or duties had been fully described in all, consistent with the other documents
forming the Contract and as is reasonably inferable from them as being necessary to produce
complete results.
CONFLICTS. In case of any inconsistency, conflict, or ambiguity among the documents forming
the Contract and their provisions, they are to prevail in the following order, descending from
most dominate to most subordinate, provided that, among categories of documents or
provisions having the same rank, the document or provision with the latest date prevails.
Request for Proposal
Solicitation No.
ADSPO17-00007024
Description:
Uninterruptible Power Supply: New Equipment Service and
Maintenance
Arizona Department of Administration
State Procurement Office
100 N 15th Ave., Suite 201
Phoenix, AZ 85007
PART 2 of the Solicitation Documents
Template version 2.0 (01-FEB-2017)
SECTION 2-C: Special Terms and Conditions
Page 16 of 47 2
Available online at: Procure.AZ.gov
Information being identified in one document but not in another is not to be considered a
conflict or inconsistency.
(a) Contract Amendments;
(b) the Solicitation Documents, in the order:
(1) Special Terms and Conditions;
(2) Exhibits to the Special Terms and Conditions;
(3) Uniform Terms and Conditions;
(4) Scope of Work;
(5) Exhibits to the Scope of Work;
(6) Pricing Document;
(7) Exhibits to the Pricing Document;
(8) Specifications; and
(9) any other documents referenced or included in the Solicitation;
(c) Orders, in reverse chronological order; and
(d) Accepted Offer.
ATTACHMENTS AND EXHIBITS. For clarity of intent, if an item was an Attachment in the
Solicitation Documents or an Offer (either Initial, Revised, Best and Final, or Accepted) and was
subsequently made into an Exhibit, or its content was incorporated into one of the other
Contract documents, then that Attachment no longer exists contractually as an “Attachment”
since it has at that point been made into some other Contract document. In every other case, an
Attachment and the Offeror data therein remain part of the Accepted Offer for purposes of
precedence and contractual effect.
2.3 Independent
Contractor
Contractor is an independent contractor and shall act in an independent capacity in
performance under the Contract. Neither party is or is to be construed as being to be the
employee or agent of the other party, and no action, inaction, event, or circumstance will be
grounds for deeming it to be so.
2.4 Complete
Integration
The Contract, including any documents incorporated into the Contract by reference, is intended
by the parties as a final and complete expression of their agreement. There are no prior,
contemporaneous, or additional agreements, either oral or in writing, pertaining to the
Contract.
3.0 Contract Administration and Operation
3.1 Term of Contract The term of the Contract will commence on the date indicated on the Acceptance and continue
for two (2) years unless canceled, terminated, or permissibly extended.
3.2 Contract
Extensions
State may at its discretion extend the initial Contract term in increments of one or more months
and do so one or more times, provided that, the maximum aggregate term of the Contract
including extensions cannot exceed the maximum aggregate term of 5 (five) years.
3.3 Notices and
Correspondence
3.3.1 TO CONTRACTOR. State shall:
(a) address all Contract correspondence other than formal notices to the email
address indicated as “Default for Type” for “General Mailing Address” in
Contractor’s corresponding ProcureAZ Vendor Profile; and
(b) address any required notices to Contractor to the “Contact Name and Title” at the
“Mailing Address” indicated on the Accepted Offer, as that address might have
been amended during the term of the Contract.
3.3.2 TO STATE. Contractor shall :
Request for Proposal
Solicitation No.
ADSPO17-00007024
Description:
Uninterruptible Power Supply: New Equipment Service and
Maintenance
Arizona Department of Administration
State Procurement Office
100 N 15th Ave., Suite 201
Phoenix, AZ 85007
PART 2 of the Solicitation Documents
Template version 2.0 (01-FEB-2017)
SECTION 2-C: Special Terms and Conditions
Page 17 of 47 2
Available online at: Procure.AZ.gov
(a) address all Contract correspondence other than format notices to the email
address indicated in “Contact Instructions” in the ProcureAZ Summary for State;
and
(b) address any required notices to State to Procurement Officer identified as
“Purchaser” in the ProcureAZ Summary at the following mailing address:
Arizona Department of Administration
State Procurement Office
100 N 15th Ave., Suite 201
Phoenix, AZ 85007
3.3.3 CHANGES. State may change the designated Procurement Officer, update contact
information, or change the applicable mailing address by Contract Amendment.
3.4 Signing of Contract
Amendments
Contractor’s counter-signature – or “approval” in ProcureAZ, in the case of a Change Order – is
not required to give effect if the Contract Amendment only covers either:
1. extension of the term of the Contract within the maximum aggregate term;
2. revision to Procurement Officer appointment or contact information; or
3. modifications of a clerical nature that have no effect on terms, conditions, price, scope,
or other material aspect of the Contract.
In every case other than those listed in (1), (2), and (3) above, both parties’ signature – or
“approval” in ProcureAZ, in the case of a Change Order – are required to give it effect.
3.5 Click-Through Terms
and Conditions
If either party uses a web based ordering system, an electronic purchase order system, an
electronic order acknowledgement, a form of an electronic acceptance, or any software based
ordering system with respect to the Contract (each an “Electronic Ordering System”), the parties
acknowledge and agree that an Electronic Ordering System is for ease of administration only,
and Contractor is hereby given notice that the persons using Electronic Ordering Systems on
behalf of State do not have any actual or apparent authority to create legally binding obligations
that vary from the terms and conditions of the Contract. Accordingly, where an authorized State
user is required to “click through” or otherwise accept or be made subject to any terms and
conditions in using an Electronic Ordering Systems, any such terms and conditions are deemed
void upon presentation. Additionally, where an authorized State user is required to accept or be
made subject to any terms and conditions in accessing or employing any Materials or Services,
those terms and conditions will also be void.
3.6 Books and
Records
3.6.1 RETAIN RECORDS. By A.R.S. § 41-2548(B), Contractor shall retain and shall contractually
require each Subcontractor to retain books and records relating for any cost and pricing
data submitted in satisfaction of § 41-2543 for the period specified in the statute.
3.6.2 RIGHT TO AUDIT. The retained books and records are subject to audit by State during
that period. By A.R.S. § 41-2548(B), Contractor shall retain and shall contractually
require each Subcontractor to retain books and records relating to performance under
the Contract for the period specified in the statute and those retained books and
records are subject to audit by State during that period.
3.6.3 AUDITING. Contractor or Subcontractor shall either make all such books and records
under subparagraphs 3.6.1 and 3.6.2 available to State at all reasonable times or
produce the records at a designated State office on State’s demand, the choice of
which being at State’s discretion. For the purpose of this paragraph, “reasonable times”
are during normal business hours and in such a manner so as to not unreasonably
interfere with normal business activities.
3.7 Contractor Licenses Contractor shall maintain current all federal, state and local licenses and permits required for
the operation of its business in general, for its operations under the Contract, and for the Work
itself.
Request for Proposal
Solicitation No.
ADSPO17-00007024
Description:
Uninterruptible Power Supply: New Equipment Service and
Maintenance
Arizona Department of Administration
State Procurement Office
100 N 15th Ave., Suite 201
Phoenix, AZ 85007
PART 2 of the Solicitation Documents
Template version 2.0 (01-FEB-2017)
SECTION 2-C: Special Terms and Conditions
Page 18 of 47 2
Available online at: Procure.AZ.gov
3.8 Inspection
and Testing
By A.R.S. § 41-2547, State may at reasonable times inspect the part of Contractor’s or
Subcontractors’ plant or places of business related to performance under the Contract.
Accordingly, Contractor agrees to permit (for itself) and ensure (for Subcontractors) access for
inspection at any reasonable time to its facilities, processes, and services. State may inspect or
test, at its own cost, any finished goods, work-in-progress, components, or unfinished materials
that are be supplied under the Contract or that will be incorporated into something to be
supplied under the Contract. If the inspection or testing shows non-conformance or defects,
then Contractor will owe State reimbursement or payment of all costs it incurred in carrying out
or contracting for the inspection and testing, as well as for any re-inspection or re-testing that
might be necessary. Neither inspection of facilities nor testing of goods, work, components, or
unfinished materials will of itself constitute acceptance by State of those things.
3.9 Ownership of
Intellectual
Property
3.9.1 RIGHTS IN WORK PRODUCT. All intellectual property originated or prepared by
Contractor pursuant to the Contract, including but not limited to, inventions,
discoveries, intellectual copyrights, trademarks, trade names, trade secrets, technical
communications, records reports, computer programs and other documentation or
improvements thereto, including Contractor’s administrative communications and
records relating to the Contract, are considered work product and Contractor’s
property, provided that, State has Government Purpose Rights to that work product as
and when it was delivered to State.
(a) “Government Purpose Rights” are:
i. the unlimited, perpetual, irrevocable, royalty free, non-exclusive, worldwide
right to use, modify, reproduce, release, perform, display, sublicense,
disclose and create derivatives from that work product without restriction
for any activity in which State is a party;
ii. the right to release or disclose that work product to third parties for any
State government purpose; and
iii. the right to authorize those to whom it rightfully releases or discloses that
work product to use, modify, release, create derivative works from the work
product for any State government purpose; such recipients being
understood to include the federal government, the governments of other
states, and various local governments.
(b) “Government Purpose Rights” do not include any right to use, modify, reproduce,
perform, release, display, create derivative works from, or disclose that work
product for any commercial purpose or to authorize others to do so.
3.9.2 JOINT DEVELOPMENTS. The parties may each use equally any ideas, concepts, know-
how, or techniques developed jointly during the course of the Contract, and may do so
at their respective discretion, without obligation of notice or accounting to the other
party.
3.9.3 PRE-EXISTING MATERIAL. All pre-existing software and other materials developed or
otherwise obtained by or for Contractor or its affiliates independently of the Contract
or applicable Purchase Orders are not part of the work product to which rights are
granted State under subparagraph 3.9.1 above, and will remain the exclusive property
of Contractor, provided that:
(a) any derivative works of such pre-existing material or elements thereof that are
created pursuant to the Contract are part of that work product;
(b) any elements of derivative work of such pre-existing material that was not
created pursuant to the Contract are not part of that work product; and
(c) except as expressly stated otherwise, nothing in the Contract is to be construed
to interfere or diminish Contractor’s or its affiliates’ ownership of such pre-
existing materials.
Request for Proposal
Solicitation No.
ADSPO17-00007024
Description:
Uninterruptible Power Supply: New Equipment Service and
Maintenance
Arizona Department of Administration
State Procurement Office
100 N 15th Ave., Suite 201
Phoenix, AZ 85007
PART 2 of the Solicitation Documents
Template version 2.0 (01-FEB-2017)
SECTION 2-C: Special Terms and Conditions
Page 19 of 47 2
Available online at: Procure.AZ.gov
3.9.4 DEVELOPMENTS OUTSIDE OF CONTRACT. Unless expressly stated otherwise in the
Contract does not preclude Contractor from developing competing materials outside
the Contract, irrespective of any similarity to materials delivered or to be delivered to
State hereunder.
3.10 Subcontracts 3.10.1 INITIAL LIST. At the time of Contract execution, Contractor’s candidate Subcontractors
were identified in Attachment 3-C to the Accepted Offer [Proposed Subcontractors].
Agreeing to them being included in the Accepted Offer signified Procurement Officer’s
advance consent for Contractor to enter into a Subcontract with each candidate, which
Contractor shall do as promptly as necessary to ensure its ability to carry out the Work
in a timely manner.
3.10.2 ADDITIONAL NAMES. Contractor shall not enter into a Subcontract without first
obtaining Procurement Officer’s written consent with any prospective Subcontractor
that (a) was not listed on Attachment 3-C at time of Contract execution or (b) is for any
Materials or Services categories other than the ones for which they were previously
consented. For either case (a) or (b), Contractor shall submit a written request
sufficiently in advance of the need date for those materials or services so that
performance under the Contract is not impaired. Procurement Officer may request any
additional information he or she determines is necessary to assess the submittal, and
may withhold consent pending it.
3.10.3 FLOW-DOWN. Contractor shall incorporate the provisions, terms, and conditions of the
Contract into every Subcontract by inclusion or by reference, as appropriate. When
making any post-execution consent requests, Contractor shall include its warrant that it
will do the same for the pending Subcontracts covered by the request. Entering into
Subcontracts will not relieve Contractor of any of its obligations or duties under the
Contract, including, among other things, the duty to supervise and coordinate the work
of Subcontractors. Nothing contained in any Subcontract will create or is to be
construed as creating any contractual relationship between State and the
Subcontractor.
3.11 Offshore
Performance
of Certain Work
Prohibited
Contractor shall only perform those portions of the Services that directly serve State or its
clients and involve access to secure or sensitive data or personal client data within the defined
territories of the United States. Unless specifically stated otherwise in the Scope of Work, this
paragraph does not apply to indirect or overhead services, redundant back-up services, or
services that are incidental to performance under the Contract. This provision applies to work
performed by Subcontractors at all tiers.
3.12 Orders 3.12.1 ORDER SUFFICIENCY. The Contract was awarded in accordance with the Arizona
Procurement Code; the transactions and procedures required by the code for
competitive source selection have been met. An Order issued that cites the correct
State contract number will suffice to authorize Contractor to provide the Materials and
perform the Services covered by that Order.
3.12.2 ORDER TERMS. All Orders are subject to the Contract Terms and Conditions; an Order
cannot modify the Contract Terms and Conditions.
3.12.3 ORDERS ARE OBLIGATORY. Until the expiration or earlier termination of the Contract,
State may issue and Contractor shall accept Orders that make proper reference to the
Contract and are permissible hereunder, provided that, Contractor is not obliged to
accept any Order that is not consistent with the then-current pricing, lead times,
specifications, or payment provisions of the Contract. Contractor shall fulfill and
complete any Orders that are begun but not yet completed as of expiration or earlier
termination of the Contract unless State instructs otherwise at the time.
3.12.4 SPECIAL CASE. In the special case where both the following conditions are true,
Procurement Officer’s signature on the Acceptance is Contractor’s authorization to
perform and therefore no Order is required: (a) the Contract is identified as being a
Request for Proposal
Solicitation No.
ADSPO17-00007024
Description:
Uninterruptible Power Supply: New Equipment Service and
Maintenance
Arizona Department of Administration
State Procurement Office
100 N 15th Ave., Suite 201
Phoenix, AZ 85007
PART 2 of the Solicitation Documents
Template version 2.0 (01-FEB-2017)
SECTION 2-C: Special Terms and Conditions
Page 20 of 47 2
Available online at: Procure.AZ.gov
“single-agency/single-project” contract and (b) the Contract was created in ProcureAZ
as something other than a “Master/ Blanket” type.
3.12.5 NO MINIMUMS OR COMMITMENTS. (a) Contractor shall not impose any minimum
dollar amount, item count, services volume, or services duration on Orders; (b) State
makes no commitment of any kind concerning the quantity or monetary value of
activity actually initiated or completed during the term of the Contract; (c) Contractor
shall only deliver or perform as authorized by Orders; and (d) State is not limited as to
the number of Orders it may issue for the Contract. For clarity of intent, the foregoing
applies equally whether an Eligible Agency issues the Order or, if applicable, a Co-Op
Buyer issues it.
3.12.6 NON-CONTRACTED MATERIALS OR SERVICES. Any attempt to knowingly represent for
sales, marketing, or related purposes that goods or services not specifically awarded
are under a State contract is a violation of the Contract and law.
3.13 Statewide Contract
Provisions
The Contract is a “statewide” contract for multiple purchases, projects, or assignments, and can
be purchased against by some or all Eligible Agencies and any Co-Op Buyers that elect to
participate. Even if only one Eligible Agency needs or elects to purchase against the Contract, it
is to be construed as being a “statewide” contract hereunder.
The Contract is an indefinite delivery, indefinite quantity (ID/IQ) type of contract; it is to be
construed as a “delivery order” sub-type of ID/IQ contract to the extent the Work is Materials,
and a “task order” sub-type to the extent the Work is Services.
1. Contractor shall verify if an ordering entity is a bona fide Co-Op Buyer before selling
Materials to or providing Services for them under the Contract. The current list of
Co-Op Buyers is available on the State Procurement Office website:
https://spo.az.gov/procurement-services/cooperative-procurement/state-purchasing-
cooperative
2. Contractor shall sell to Co-Op Buyers at the same price and on the same lead times and
other terms and conditions under which it sells to Eligible Agencies, with the sole
exception of any legitimately additional costs for extraordinary shipping or delivery
requirements if the Co-Op Buyer is having Materials delivered or installed or Services
performed at locations not contemplated in the contracted pricing (e.g. delivery to a
location outside Arizona).
3. Contractor shall pay State an administrative fee against all Contract sales to Co-Op
Buyers, as provided for under A.R.S. § 41-2633. The fee rate is one (1%) percent. Failure
to remit the administrative fees is a material breach of contract, and will entitle State to
its remedies under Article 8 and its right to terminate for default under Article 9.
Method of calculation, payment procedures, and other details are provided on the State
Procurement Office website:
https://spo.az.gov/contractor-resources/statewide-contracts-administrative-fee
4. Contractor shall submit to State a quarterly usage report documenting all Contract sales
to both Eligible Agencies and Co-Op Buyers, itemized separately. Contractor shall
further itemize divisions, groups or areas within a given Eligible Agency if they place
Orders independently of each other. Failure to submit the report is a material breach of
contract, and will entitle State to its remedies under Article 8 and its right to terminate
for default under Article 9. Contractor shall submit the report using the forms and
following the instructions on the State Procurement Office website:
https://spo.az.gov/contractor-resources/statewide-contracts-administrative-fee
5. Contractor shall acknowledge each Order from Eligible Agencies within 1 (one) business
day after receipt by either: (a) “approving” the Order electronically in ProcureAZ, which
will indicate Contractor’s unqualified acceptance of the Order as-issued; or
(b) “rejecting” the Order electronically in ProcureAZ, with a concurrent explanation by
email to relevant originator as to the reason for rejecting it. By way of reminder, the
Request for Proposal
Solicitation No.
ADSPO17-00007024
Description:
Uninterruptible Power Supply: New Equipment Service and
Maintenance
Arizona Department of Administration
State Procurement Office
100 N 15th Ave., Suite 201
Phoenix, AZ 85007
PART 2 of the Solicitation Documents
Template version 2.0 (01-FEB-2017)
SECTION 2-C: Special Terms and Conditions
Page 21 of 47 2
Available online at: Procure.AZ.gov
only grounds on which Contractor may reject or refuse an Order are those set out in
subparagraph 3.14.3 [Orders are Obligatory]. Unless and until Contractor has approved
the Order in ProcureAZ, it will have no effect under the Contract and will not oblige
either State or Contractor. If the relevant Eligible Agency explicitly instructs at the time
that a verbal acceptance is sufficient because of urgency or other unusual circumstances
and Contractor duly gives its verbal acceptance, then Contractor will be deemed to have
accepted the Order immediately upon commencing performance, provided that,
Contractor must follow-up its verbal acceptance by accepting the Purchase Order
electronically in ProcureAZ within 3 (three) business days. Contractor shall thereafter be
barred from subsequently rejecting the Order in ProcureAZ and if it does so the
rejection will be void.
6. Contractor shall acknowledge each Order from Co-Op Buyers in conformance with each
buyer’s instructions given at the time of ordering or in any supplemental participating
agreement Contractor might have with them. Orders from Co-Op Buyers create no
obligation on State’s part, since they are entirely between the Co-Op Buyer and
Contractor. That notwithstanding, Contractor’s obligation under the Contract is to
service Co-Op Buyers commercially as though they were with an Eligible Agency, and
Contractor’s refusal to do so would be a material breach of the Contract.
3.14 Multiple-Use
Provisions
Eligible Agencies may issue Orders for Services in several forms, all of which become final and
effective by a “Release Purchase Order” in ProcureAZ. Orders issued by Co-Op Buyers will be in
whatever form the Co-Op Buyer normally uses. Regardless of origin, Orders must cite the State
contract number to be valid. State may, at its discretion in each instance, determine the scope,
schedule, and price for each Order in any of the following ways:
1. By choosing some or all of the Materials or Services items covered by the Contract for
which a price is established in the Pricing Document, then preparing an Order using
those prices (e.g., filling out an order form), and sending it to Contractor.
2. By instructing Contractor to provide a comprehensive proposal of item quantities,
combinations, etc., or services hours, personnel, etc., for a defined scope using those
established prices as a basis, then validating and negotiating the proposal with
Contractor and issuing an Order if and when reaching agreement.
3. As described in (2) above but requesting the proposal from both Contractor and other
vendors who are contracted within the applicable scope categories and locations, either
sequentially or concurrently, then selecting the proposal or proposals combination that
is most advantageous to State.
4. As described in (3) above but introducing ad-hoc commercial competition by making the
selection and ordering conditional on obtaining more favorable prices than the
contractually-established ones.
When evaluating the proposals under (3) and (4) above, State may select based on price (for
example, a quoted number of hours times the contracted or improved rate plus a fixed amount
for incidentals), by experience and qualifications (for example, having an office nearer the
required work location), or whatever combination thereof it determines is most appropriate to
the work in question.
3.15 Other
Contractors
State may undertake with its own forces or award other contracts to the same or other vendors
for additional or related work. In such cases, Contractor shall cooperate fully with State’s
employees and such other vendors and carefully coordinate, fit, connect, accommodate, adjust,
or sequence its work to the related work by others. Where the Contract requires handing-off
Contractor’s work to others, Contractor shall cooperate as State instructs regarding the
necessary transfer of its work product, services, or records to State or the other vendors.
Contractor shall not commit or permit any act that interferes with the State’s or other vendors’
performance of their work, provided that, State shall enforce the foregoing section equitably
among all its vendors so as not impose an unreasonable burden on any one of them.
Request for Proposal
Solicitation No.
ADSPO17-00007024
Description:
Uninterruptible Power Supply: New Equipment Service and
Maintenance
Arizona Department of Administration
State Procurement Office
100 N 15th Ave., Suite 201
Phoenix, AZ 85007
PART 2 of the Solicitation Documents
Template version 2.0 (01-FEB-2017)
SECTION 2-C: Special Terms and Conditions
Page 22 of 47 2
Available online at: Procure.AZ.gov
3.16 Work on State
Premises
3.16.1 COMPLIANCE WITH RULES. Contractor is responsible for ensuring that its personnel
comply with State’s rules, regulations, policies, documented practices, and documented
operating procedures while delivering or installing Materials or performing Services on
State’s grounds or in its facilities. For clarity of intent, the foregoing means that if
Contractor is required to comply with certain security requirements in order to deliver,
install, or perform at that particular location, then it shall do so nonetheless and
without entitlement to any additional compensation or additional time for performance
if those particular requirements are not expressly stated in the Contract. Contractor is
reminded that violation of the prohibition under A.R.S. § 13-1502 against possession of
weapons on State’s property by anyone for whom Contractor is responsible is a
material breach of contract and grounds for termination for default.
3.16.2 PROTECTION OF GROUNDS AND FACILITIES. Contractor shall deliver or install the
Materials and perform the Services without damaging any State grounds or facilities.
Contractor shall repair or replace any damage it does cause promptly and at its own
expense, subject to whatever instructions and restrictions State needs to make to
prevent inconvenience or disruption of operations. If Contractor fails to make the
necessary repairs or replacements and do so in a timely manner, State will be entitled
to exercise its remedies under paragraph 22.5 [Right of Offset].
4.0 Costs and Payments
4.1 Payments 4.1.1 PAYMENT DEADLINE. State shall make payments in compliance with Arizona Revised
Statues Titles 35 and 41. Unless and then only to the extent expressly stated otherwise
in the Pricing Document, State shall make payment in full for Materials that have been
delivered and accepted and Services that have been performed and accepted within
the time specified in A.R.S. § 35-342 after both of the following become true: (a) all of
the Materials being invoiced have been delivered or installed (as applicable) and
accepted and all of the Services being invoiced have been performed and accepted; and
(b) Contractor has provided a complete and accurate invoice in the form and manner
called for in the Pricing Document, provided that, State will not make or be liable for
any payments to Contractor until Contractor has registered properly in ProcureAZ and
provided a current IRS Form W-9 to State unless excused by law from providing one.
4.1.2 PAYMENTS ONLY TO CONTRACTOR. Unless compelled otherwise by operation of law or
order of a court of competent jurisdiction, State will only make payment to Contractor
under the federal tax identifier indicated on the Accepted Offer.
4.2 Applicable
Taxes
4.2.1 CONTRACTOR TO PAY ALL TAXES. State is subject to Arizona TPT. Therefore, Arizona
TPT applies to all sales under the Contract and Arizona TPT is Contractor’s responsibility
(as seller) to remit. Contractor’s failure to collect Arizona TPT or any other applicable
sales or use taxes from an Eligible Agency or Co-Op Buyer (as buyer) will not relieve
Contractor of any obligation to remit sales or use taxes that are due under the Contract
or laws. Unless stated otherwise in the Pricing Document, all prices therein include
Arizona TPT as well as every other manner of transaction privilege or sales/use tax that
is due to a municipality or another state or its political subdivisions. Contractor shall pay
all federal, state, and local taxes applicable to its operations and personnel.
4.2.2 TAX INDEMNITY. Contractor shall hold State harmless from any responsibility for taxes
or contributions, including any applicable damages and interest, that are due to federal,
state, and local authorities with respect to the Work and the Contract, as well any
related costs; the foregoing expressly includes Arizona TPT, unemployment
compensation insurance, social security, and workers’ compensation insurance.
5.0 Contract Changes
5.1 Contract Amendments The Contract is issued for State under the authority of Procurement Officer. Only a Contract
Amendment can modify the Contract, and then only if it does not change the Contract’s general
scope. Purported changes to the Contract by a person not expressly authorized by Procurement
Request for Proposal
Solicitation No.
ADSPO17-00007024
Description:
Uninterruptible Power Supply: New Equipment Service and
Maintenance
Arizona Department of Administration
State Procurement Office
100 N 15th Ave., Suite 201
Phoenix, AZ 85007
PART 2 of the Solicitation Documents
Template version 2.0 (01-FEB-2017)
SECTION 2-C: Special Terms and Conditions
Page 23 of 47 2
Available online at: Procure.AZ.gov
Officer or made unilaterally by Contractor will be void and without effect; Contractor will not be
entitled to any claim made under the Contract based on any such purported changes.
5.2 Assignment and
Delegation
5.2.1 IN WHOLE. Contractor shall not assign in whole its rights or delegate in whole its duties
under the Contract without Procurement Officer’s prior written consent, which consent
Procurement Officer may withhold at his or her discretion. If Contractor’s proposed
assignment or delegation stems from a split, sale, acquisition, or other non-merger
change in control, then no such consent will be given in any event without the assignee
or delegate giving State satisfactory and equivalent evidence or assurance of its
financial soundness, competency, capacity, and qualification to perform as that which
Contractor possessed when State first awarded it the Contract.
5.2.2 IN PART. Subject to paragraph 3.10 [Subcontracts] with respect to subcontracting,
Contractor may assign particular rights or delegate particular duties under the Contract,
but shall obtain Procurement Officer’s written consent before doing so. Procurement
Officer shall not unreasonably withhold consent so long as the proposed assignment or
delegation does not attempt to modify the Contract in any way or to alter or impair
State’s rights or remedies under the Contract or laws.
6.0 Risk and Liability
6.1 Risk of Loss Contractor shall bear all risk of loss to Materials while in pre-production, production, storage,
transit, staging, assembly, installation, testing, and commissioning, if and as those duties are
within the scope of the Work, until they have been accepted as conforming by State in the
particular location and situation specified in the Order, or as specified generally elsewhere in the
Contract if the Order does not provide particulars, provided that, risk of loss for nonconforming
Materials will remain with Contractor notwithstanding acceptance to the extent the loss stems
from the nonconformance.
6.2 Contractor Insurance Contractor and subcontractors shall procure and maintain until all of their obligations have been
discharged, including any warranty periods under this Contract, are satisfied, insurance against
claims for injury to persons or damage to property which may arise from or in connection with
the performance of the work hereunder by the Contractor, his agents, representatives,
employees or subcontractors.
The insurance requirements herein are minimum requirements for this Contract and in no way
limit the indemnity covenants contained in this Contract. The State of Arizona in no way
warrants that the minimum limits contained herein are sufficient to protect the Contractor from
liabilities that might arise out of the performance of the work under this contract by the
Contractor, its agents, representatives, employees or subcontractors, and Contractor is free to
purchase additional insurance.
MINIMUM SCOPE AND LIMITS OF INSURANCE: Contractor shall provide coverage with limits of
liability not less than those stated below.
1. Commercial General Liability – Occurrence Form
policy shall include bodily injury, property damage personal injury and broad form contractual
liability coverage
General Aggregate $2,000,000
Products – Completed Operations Aggregate $1,000,000
Personal and Advertising Injury $1,000,000
Blanket Contractual Liability – Written and Oral $1,000,000
Fire Legal Liability $ 50,000
Each Occurrence $1,000,000
a. The policy shall be endorsed to include the following additional insured
language: “The State of Arizona, its departments, agencies, boards,
Request for Proposal
Solicitation No.
ADSPO17-00007024
Description:
Uninterruptible Power Supply: New Equipment Service and
Maintenance
Arizona Department of Administration
State Procurement Office
100 N 15th Ave., Suite 201
Phoenix, AZ 85007
PART 2 of the Solicitation Documents
Template version 2.0 (01-FEB-2017)
SECTION 2-C: Special Terms and Conditions
Page 24 of 47 2
Available online at: Procure.AZ.gov
commissions, universities and its officers, officials, agents, and employees shall
be named as additional insureds with respect to liability arising out of the
activities performed by or on behalf of the Contractor".
b. Policy shall contain a waiver of subrogation against the State of Arizona, its
departments, agencies, boards, commissions, universities and its officers,
officials, agents, and employees for losses arising from work performed by or
on behalf of the Contractor.
2. Business Automobile Liability
Bodily Injury and Property Damage for any owned, hired, and/or non-owned vehicles used in
the performance of this Contract.
Combined Single Limit (CSL) $1,000,000
a. The policy shall be endorsed to include the following additional insured
language: “The State of Arizona, its departments, agencies, boards,
commissions, universities and its officers, officials, agents, and employees shall
be named as additional insureds with respect to liability arising out of the
activities performed by or on behalf of the Contractor, involving automobiles
owned, leased, hired or borrowed by the Contractor".
b. Policy shall contain a waiver of subrogation against the State of Arizona, its
departments, agencies, boards, commissions, universities and its officers,
officials, agents, and employees for losses arising from work performed by or
on behalf of the Contractor.
3. Worker’s Compensation and Employers’ Liability
Workers’ Compensation Statutory Employers’ Liability
Each Accident $ 500,000
Disease – Each Employee $ 500,000
Disease – Policy Limit $1,000,000
a. Policy shall contain a waiver of subrogation against the State of Arizona, its
departments, agencies, boards, commissions, universities and its officers,
officials, agents, and employees for losses arising from work performed by or
on behalf of the Contractor.
b. This requirement shall not apply to: Separately, EACH contractor or
subcontractor exempt under A.R.S. 23-901, AND when such contractor or
subcontractor executes the appropriate waiver (Sole Proprietor/Independent
Contractor) form.
4. Professional Liability (Errors and Omissions Liability)
Each Claim $ 2,000,000
Annual Aggregate $ 4,000,000
a. In the event that the Professional Liability insurance required by this Contract is
written on a claims-made basis, the Contractor warrants that any retroactive
date under the Policy shall precede the effective date of this Contract; and that
either continuous coverage will be maintained or an extended discovery period
will be exercised for a period of two (2) years beginning at the time work under
this Contract is completed.
b. The Policy shall cover professional misconduct or lack of ordinary skill for those
positions defined in the Scope of Work of this Contract.
ADDITIONAL INSURANCE REQUIREMENTS: The policies shall include, or be endorsed to include,
the following provisions:
1. The State of Arizona, its departments, agencies, boards, commissions,
universities and its officers, officials, agents, and employees wherever
additional insured status is required. Such additional insured shall be covered to
Request for Proposal
Solicitation No.
ADSPO17-00007024
Description:
Uninterruptible Power Supply: New Equipment Service and
Maintenance
Arizona Department of Administration
State Procurement Office
100 N 15th Ave., Suite 201
Phoenix, AZ 85007
PART 2 of the Solicitation Documents
Template version 2.0 (01-FEB-2017)
SECTION 2-C: Special Terms and Conditions
Page 25 of 47 2
Available online at: Procure.AZ.gov
the full limits of liability purchased by the Contractor, even if those limits of
liability are in excess of those required by this Contract.
2. The Contractor's insurance coverage shall be primary insurance with respect to
all other available sources.
3. Coverage provided by the Contractor shall not be limited to the liability
assumed under the indemnification provisions of this Contract.
NOTICE OF CANCELLATION: Each insurance policy required by the insurance provisions of this
Contract shall provide the required coverage and shall not be suspended, voided, canceled, or
reduced in coverage or in limits except after thirty (30) days prior written notice has been given
to the State of Arizona. Such notice shall be sent directly to (State of Arizona Department
Representative's Name & Address) and shall be sent by certified mail, return receipt requested.
ACCEPTABILITY OF INSURERS: Insurance is to be placed with duly licensed or approved non-
admitted insurers in the state of Arizona with an “A.M. Best” rating of not less than A- VII. The
State of Arizona in no way warrants that the above-required minimum insurer rating is sufficient
to protect the Contractor from potential insurer insolvency.
VERIFICATION OF COVERAGE: Contractor shall furnish the State of Arizona with certificates of
insurance (ACORD form or equivalent approved by the State of Arizona) as required by this
Contract. The certificates for each insurance policy are to be signed by a person authorized by
that insurer to bind coverage on its behalf.
All certificates and endorsements are to be received and approved by the State of Arizona
before work commences. Each insurance policy required by this Contract must be in effect
at or prior to commencement of work under this Contract and remain in effect for the
duration of the project. Failure to maintain the insurance policies as required by this
Contract, or to provide evidence of renewal, is a material breach of contract.
All certificates required by this Contract shall be sent directly to (Blair Koolick 100 N 15th
Ave, Suite 201, Phoenix AZ 85007).The State of Arizona project/contract number and
project description shall be noted on the certificate of insurance. The State of Arizona
reserves the right to require complete, certified copies of all insurance policies required by
this Contract at any time. DO NOT SEND CERTIFICATES OF INSURANCE TO THE STATE OF
ARIZONA'S RISK MANAGEMENT DIVISION.
SUBCONTRACTORS: Contractors’ certificate(s) shall include all subcontractors as insured under
its policies or Contractor shall furnish to the State of Arizona separate certificates and
endorsements for each subcontractor. All coverages for subcontractors shall be subject to the
minimum requirements identified above.
APPROVAL: Any modification or variation from the insurance requirements in this Contract shall
be made by the contracting agency in consultation with the Department of Administration, Risk
Management Division. Such action will not require a formal Contract amendment, but may be
made by administrative action.
EXCEPTIONS: In the event the Contractor or sub-contractor(s) is/are a public entity, then the
Insurance Requirements shall not apply. Such public entity shall provide a Certificate of Self-
Insurance. If the contractor or sub-contractor(s) is/are a State of Arizona agency, board,
commission, or university, none of the above shall apply.
6.3 Basic Indemnification
6.3.1 CONTRACTOR/VENDOR (NOT PUBLIC AGENCY). To the fullest extent permitted by law,
Contractor shall defend, indemnify, and hold harmless State Indemnitees from
Indemnified Basic Claims that: (a) are caused or alleged to be caused in whole or in part
by the negligent or willful acts or omissions of a Contractor Indemnitor; (b) arise out of
or are recovered under worker compensation laws; and/or (c) arise out of a Contractor
Indemnitor’s failure to conform to any federal, state, or local law, statute, ordinance,
rule, regulation, or court decree. The parties specifically intend that the Contractor
Indemnitors shall indemnify the relevant State Indemnitees from and against
Indemnified Basic Claims in all instances except where the Indemnified Basic Claim
arises solely from those State Indemnitees’ own negligent or willful acts or omissions.
Request for Proposal
Solicitation No.
ADSPO17-00007024
Description:
Uninterruptible Power Supply: New Equipment Service and
Maintenance
Arizona Department of Administration
State Procurement Office
100 N 15th Ave., Suite 201
Phoenix, AZ 85007
PART 2 of the Solicitation Documents
Template version 2.0 (01-FEB-2017)
SECTION 2-C: Special Terms and Conditions
Page 26 of 47 2
Available online at: Procure.AZ.gov
Wherever the indemnification under this subparagraph applies, Contractor is
responsible for primary loss investigation, defense, and judgment costs for an on behalf
of the other Contractor Indemnitors with respect to State Indemnitees, and accordingly
Contractor is also responsible for any cooperation, contribution, or subordination
between or amongst the Contractor Indemnitors. In consideration of the award of the
Contract by a State Indemnitee, Contractor hereby waives all rights of subrogation
against State Indemnities for losses arising from the Work.
If Contractor is a public agency, this paragraph does not apply and subparagraph 6.3.2
below applies instead.
6.3.2 PUBLIC AGENCY. Each party (as 'indemnitor') agrees to indemnify, defend, and hold
harmless the other party (as 'indemnitee') from and against any and all claims, losses,
liability, costs, or expenses (including reasonable attorney's fees) (hereinafter
collectively referred to as 'claims') arising out of bodily injury of any person (including
death) or property damage but only to the extent that such claims which result in
vicarious/derivative liability to the indemnitee, are caused by the act, omission,
negligence, misconduct, or other fault of the indemnitor, its officers, officials, agents,
employees, or volunteers.
6.3.3 If Contractor is not a public agency, this paragraph does not apply and subparagraph
above applies instead.
6.4 Patent and Copyright
Indemnification
CONTRACTOR/VENDOR (NOT PUBLIC AGENCY). With respect to Materials or Services provided
or proposed by a Contractor Indemnitor for performance under the Contract, Contractor shall
indemnify, defend and hold harmless State Indemnitees against any third-party claims for
liability, costs, and expenses, including, but not limited to reasonable attorneys' fees, for
infringement or violation of any patent, trademark, copyright, or trade secret by the Materials
and the Services. With respect to the defense and payment of claims under this subparagraph:
1. State shall provide reasonable and timely notification to Contractor of any claim for
which Contractor may be liable under this paragraph;
2. Contractor, with reasonable consultation from State, shall have control of the defense of
any action on an indemnified claim including all negotiations for its settlement or
compromise;
3. State may elect to participate in such action at its own expense; and
4. State may approve or disapprove any settlement or compromise, provided that, (i) State
shall not unreasonably withhold or delay such approval or disapproval and (ii) State shall
cooperate in the defense and in any related settlement negotiations.
If Contractor is a public agency, this paragraph 6.4 does not apply.
6.5 Force Majeure 6.5.1 DEFINITION. For this paragraph, “force majeure” means an occurrence that is
(a) beyond the control of the affected party, (b) occurred without the party’s fault or
negligence, and (c) something the party was unable to prevent by exercising reasonable
diligence. Without limiting the generality of the foregoing, force majeure expressly
includes acts of God, acts of the public enemy, war, riots, strikes, mobilization, labor
disputes, civil disorders, fire, flood, lockouts, injunctions-intervention-acts, failures or
refusals to act by government authorities, and, subject to paragraph 7.66 [Performance
in Public Health Emergency], declared public health emergencies. Force majeure
expressly does not include late delivery caused by congestion at a manufacturer’s plant
or elsewhere, an oversold condition of the market, late performance by a
Subcontractor unless the delay arises out of an occurrence of force majeure, or inability
of either Contractor or any Subcontractor to acquire or maintain any required
insurance, bonds, licenses, or permits.
6.5.2 RELIEF FROM PERFORMANCE. Except for payment of sums due, the parties are not
liable to each other if an occurrence of force majeure prevents its performance under
the Contract. If either party is delayed at any time in the progress of their respective
performance under the Contract by an occurrence of force majeure, the delayed party
Request for Proposal
Solicitation No.
ADSPO17-00007024
Description:
Uninterruptible Power Supply: New Equipment Service and
Maintenance
Arizona Department of Administration
State Procurement Office
100 N 15th Ave., Suite 201
Phoenix, AZ 85007
PART 2 of the Solicitation Documents
Template version 2.0 (01-FEB-2017)
SECTION 2-C: Special Terms and Conditions
Page 27 of 47 2
Available online at: Procure.AZ.gov
shall notify the other no later than the following working day after the occurrence, or as
soon as it could reasonably have been expected to recognize that the occurrence had
effect in cases where the effects were not readily apparent. In any event, the notice
must make specific reference to this paragraph specifying the causes of the delay in the
notice and, if the effects of the occurrence are on-going, provide an initial notification
and thereafter the delayed party shall provide regular updates until such time as the
effects are fully known. To the extent it is able, the delayed party shall cause the delay
to cease promptly and notify the other party when it has done so. The parties shall
extend the time of completion by Contract Amendment for a period equal to the time
that the results or effects of the delay prevented the delayed party from performing.
6.5.3 EXCUSABLE DELAY IS NOT DEFAULT. Failure in performance by either party will not
constitute default hereunder or give rise to any claim for damages or loss of anticipated
profits if and to the extent that such failure was or is being caused by an occurrence of
force majeure.
6.5.4 DEFAULT DIMINISHES RELIEF. Entitlement to relief from the effects of an occurrence of
force majeure is diminished to the extent that the delay did or will result from the
affected party’s default unrelated to the occurrence, in which case and to that extent
the other party’s normal remedies and the affected party’s obligations would apply
undiminished.
6.6 Third Party
Antitrust
Violations
Contractor assigns to State any claim for overcharges resulting from antitrust violations to the
extent that those violations concern materials or services supplied by third parties to Contractor
toward fulfillment of the Contract.
7.0 Warranties
7.1 Conformity to
Requirements
Contractor warrants that, unless expressly provided otherwise elsewhere in the Contract, the
Materials and Services will for 1 (one) year after acceptance and in each instance: (1) conform to
the requirements of the Contract, which by way of reminder include without limitation all
descriptions, specifications, and drawings identified in the Scope of Work and any Contractor
affirmations included as part of the Contract; (2) be free from defects of material and
workmanship; (3) conform to or perform in a manner consistent with current industry
standards; and (4) be fit for the intended purpose or use described in the Contract. Mere
delivery or performance does not substitute for express acceptance by State. Where inspection,
testing, or other acceptance assessment of Materials or Services cannot be done until after
installation, the forgoing warranty will not begin until State’s acceptance.
7.2 Contractor
Personnel
Contractor warrants that its personnel will perform their duties under the Contract in a
professional manner, applying the requisite skills and knowledge, consistent with industry
standards, and in accordance with the requirements of the Contract. Contractor further
warrants that its key personnel will maintain any certifications relevant to their work, and
Contractor shall provide individual evidence of certification to State’s authorized representatives
upon request.
7.3 Intellectual
Property
Contractor warrants that the Materials and Services do not and will not infringe or violate any
patent, trademark, copyright, trade secret, or other intellectual property rights or laws, except
only to the extent the Specifications do not permit use of any other product and Contractor is
not and cannot reasonably be expected to be aware of the infringement or violation.
7.4 Licenses and Permits Contractor warrants that it will maintain all licenses required under paragraph 3.7 [Contractor
Licenses] and all required permits valid and in force.
7.5 Operational
Continuity
Contractor warrants that it will perform without relief notwithstanding being sold or acquired;
no such event will operate to mitigate or alter any of Contractor’s duties hereunder absent a
consented delegation under paragraph 19.3 [Assignment and Delegation] that expressly
recognizes the event.
Request for Proposal
Solicitation No.
ADSPO17-00007024
Description:
Uninterruptible Power Supply: New Equipment Service and
Maintenance
Arizona Department of Administration
State Procurement Office
100 N 15th Ave., Suite 201
Phoenix, AZ 85007
PART 2 of the Solicitation Documents
Template version 2.0 (01-FEB-2017)
SECTION 2-C: Special Terms and Conditions
Page 28 of 47 2
Available online at: Procure.AZ.gov
7.6 Performance in Public
Health Emergency
Contractor warrants that it will:
1. have in effect promptly after commencement a plan for continuing performance in the
event of a declared public health emergency that addresses, at a minimum: (a)
identification of response personnel by name; (b) key succession and performance
responses in the event of sudden and significant decrease in workforce; and
(c) alternative avenues to keep sufficient product on hand or in the supply chain; and
2. provide a copy of its current plan to State within 3 (three) business days after State’s
written request. If Contractor claims relief under paragraph 6.5 [Force Majeure] for an
occurrence of forge majeure that is a declared public health emergency, then that relief
will be conditioned on Contractor having first implemented its plan and exhausted all
reasonable opportunity for that plan implementation to overcome the effects of that
occurrence, or mitigate those effects to the extent that overcoming entirely is not
practicable.
For clarification of intent, being obliged to implement the plan is not of itself an occurrence of
force majeure, and Contractor will not be entitled to any additional compensation or extension
of time by virtue of having to implement it. Furthermore, failure to have or implement an
appropriate plan will be a material breach of contract.
7.7 Lobbying 7.7.1 PROHIBITION.
(a) Contractor warrants that:
i. it will not engage in lobbying activities, as defined in 40 CFR part 34 and
A.R.S. § 41-1231, et seq., using monies awarded under the Contract,
provided that, the foregoing does not intend to constrain Contractor's use of
its own monies or property, including without limitation any net proceeds
duly realized under the Contract or any value thereafter derived from those
proceeds; and
ii. upon award of the Contract, it will disclose all lobbying activities to State to
the extent they are an actual or potential conflict of interest or where such
activities could create an appearance of impropriety.
(b) Contractor shall implement and maintain adequate controls to assure compliance
with (a) above.
(c) Contractor shall obtain an equivalent warranty from all Subcontractors and shall
include an equivalent no-lobbying provision in all Subcontracts.
7.7.2 EXCEPTION. This paragraph does not apply to the extent that the Services are defined in
the Contract as being lobbying for State’s benefit or on State’s behalf.
7.8 Survival of
Warranties
All representations and warrants made by Contractor under the Contract will survive the
expiration or earlier termination of the Contract.
8.0 State's Contractual Remedies
No modifications to uniform terms and conditions section
9.0 Contract Termination
No modifications to uniform terms and conditions section
10.0 Contract Claims
10.1 Claim
Resolution
Notwithstanding any law to the contrary, all contract claims or controversies under the Contract
are to be resolved according to Arizona Revised Statutes Title 41, Chapter 23, Article 9, and rules
adopted thereunder, including judicial review under A.R.S. § 12-1518.
Request for Proposal
Solicitation No.
ADSPO17-00007024
Description:
Uninterruptible Power Supply: New Equipment Service and
Maintenance
Arizona Department of Administration
State Procurement Office
100 N 15th Ave., Suite 201
Phoenix, AZ 85007
PART 2 of the Solicitation Documents
Template version 2.0 (01-FEB-2017)
SECTION 2-C: Special Terms and Conditions
Page 29 of 47 2
Available online at: Procure.AZ.gov
10.2 Mandatory
Arbitration
In compliance with A.R.S. § 12-1518, the parties agree to comply in a judicial review proceeding
with any applicable, mandatory arbitration requirements.
11.0 General Provisions for Products
11.1 Applicability Article 11 applies to the extent the Work is or includes Materials.
11.2 Off-Contract
Materials
Contractor shall ensure that the design and/or procedures for the Materials ordering
method prevents Orders for off-contract items or excluded items. Notwithstanding that State
might have its own internal administrative rules regarding off-contract or excluded item
ordering, and endeavors to prevent such orders from occurring, Contractor is responsible for not
accepting any such Orders; State may, at its discretion, return any such items under
subparagraph 11.17 or cancel any such Order under subparagraph 11.18, in either case being
without obligation and at Contractor’s expense. As used above, “off-contract item” refers to any
product not included in the scope of the Contract and for which no price or compensation has
been established contractually, and “excluded item” refers to any product expressly stated in the
Contract as being excluded from the Contract.
11.3 Compensation for
Late Deliveries
Contractor shall have clear, published policies in place regarding late delivery, order
cancelation, discounts, or rebates given to compensate for late deliveries, etc., and make them
readily available to those Eligible Agencies, and Co-Op Buyers if applicable, that are likely to need
them.
11.4 Indicate Shipping
Costs on Order
Contractor shall identify and provide the required substantiating documentation for the
amount it intends to add for shipping in the Order acknowledgment if shipping is additional to
the contracted price or rate for an item; otherwise, Contractor shall indicate that shipping is
included in the Order price (in other words, every Order must indicate clearly whether or not
shipping is included in the Order price, and if not included, how much is to be added and why
that amount is the correct or appropriate one).
11.5 Current Products Contractor shall keep all products being offered under the Contract: (a) in current and
ongoing production; (b) in its advertised product lines; (c) as models or types that are actively
functioning in other paying customer environments; and (d) in conformance to the requirements
of the Contract.
11.6 Maintain
Comprehensive
Selection
Contractor shall provide at all times the comprehensive selection of products for which
a price is established in the Commercial Document for ordering by Eligible Agencies, and Co-Op
Buyers if applicable.
11.7 Additional
Products
State, at its discretion, may modify the scope of the Contract by Contract Amendment
to include additional products or product categories so long as they are within the general scope
of the ones originally covered by the Contract. Once the Contract Amendment has been fully
executed, Contractor shall then update all applicable catalogs and price lists and make them
available to all affected entities at no additional cost. Either party may make the request to add
products to the Contract; regardless of who makes the request, the parties shall negotiate in
good faith a fair price for any additional products, but State may elect not to add some or all of
the products in question if no agreement is reached on pricing in a timely manner. Contractor’s
request or proposal in response to State’s request must include: (a) documentation
demonstrating that the additional products meet or exceed the specifications for the original
products while remaining in the same product groups as the original ones; and
(b) documentation demonstrating that the proposed price for the additional products is both fair
and reasonable and at the same level of discount relative to market price as were the original
ones. Demonstration of (b) typically requires showing how prices at which sales are currently or
were last made to a significant number of buyers compare to the prices or discounts (as
applicable) being proposed for the additional products.
11.8 Discontinued
Products
If a product or groups of products covered by the Contract are discontinued by the
manufacturer, Contractor shall notify State within 5 (five) business days after receiving the
Request for Proposal
Solicitation No.
ADSPO17-00007024
Description:
Uninterruptible Power Supply: New Equipment Service and
Maintenance
Arizona Department of Administration
State Procurement Office
100 N 15th Ave., Suite 201
Phoenix, AZ 85007
PART 2 of the Solicitation Documents
Template version 2.0 (01-FEB-2017)
SECTION 2-C: Special Terms and Conditions
Page 30 of 47 2
Available online at: Procure.AZ.gov
manufacturer’s notification. State, at its discretion, will either allow Contractor to provide
substitutes for the discontinued products or delete the products from the scope of the Contract,
both of which will be accomplished by Contract Amendment. Contractor shall then update all
applicable catalogs and price lists and make them available to all affected entities at no
additional cost. The parties shall negotiate in good faith a fair price for any substitute product,
but State may elect to delete the products from the scope of the Contract if no agreement is
reached on substitute pricing in a timely manner. When notifying State of the discontinuance,
Contractor shall provide: (a) manufacturer’s announcement or documentation stating that the
products have been discontinued, with identification by model/part number; (b) documentation
demonstrating that the substitute products meet or exceed the specifications for the
discontinued products while remaining in the same product groups as were the discontinued
ones; and (c) documentation demonstrating that the proposed price for the substitute products
is both fair and reasonable and at the same level of discount relative to market price as were the
discontinued ones (with demonstration being as described in subparagraph 11.7).
11.9 Forced Substitutions Forced substitutions will not be permitted; Contractor shall obtain State’s prior written
consent before making any discretionary substitution for any product covered by the Contract.
11.10 Recalls In the event of a recall notice, technical service bulletin, or other important notification
affecting a product offered under the Contract (collectively, “recalls” hereinafter), Contractor
shall send timely notice to State for each applicable Order referencing the affected Order and
product. Notwithstanding whatever protection Contractor might have under A.R.S. § 12-684 with
respect to a manufacturer, Contractor shall handle recalls entirely and without obligation on
State’s part, other than to permit removal of installed products, retrieval of stored products, etc.,
as necessary to implement the recall.
11.11 Delivery 11.11.1 PRICING. Unless stated otherwise in the Commercial Document, all
Materials prices set forth therein are FCA (seller’s dock) Incoterms®2010, with “seller’s dock”
meaning the last place of manufacturing, assembly, integration, final packing, or warehousing
before departure to designated point of delivery to State. For reference, the foregoing is to be
construed as equivalent to “F.o.b. Origin, Contractor’s Facility” under FAR 52.247-30.
11.11.2 LIABILITY. Unless stated otherwise in the Commercial Document or an
Order, Contractor’s liability for all Materials is DDP (State-designated receiving point per Order)
Incoterms®2010, but with unloading at destination included. For reference, the foregoing is to be
construed as equivalent to “F.o.b. Destination, Within Consignee’s Premises” under FAR 52.247-
35.
11.11.3 PAYMENT. Unless stated otherwise in the Commercial Document or an
Order, State shall reimburse Contractor the costs of the difference between DDP (State-
designated receiving point per Order) and FCA (seller’s dock) with no mark-up, which Contractor
shall itemize and invoice separately.
11.12 Delivery Time Unless stated otherwise in the Commercial Document generally or in the applicable
Order particularly, Contractor shall make delivery within 2 (two) business days after receiving
each Order.
11.13 Delivery Locations Contractor shall offer deliveries to every location served under the scope of the
Contract, specifically:
3. if the Contract is for a single State agency in a single area, then Contractor shall
deliver to any agency location in that area;
4. if the Contract is for a single State agency in all its locations, then Contractor shall
deliver to any of that agency’s location in Arizona;
5. if the Contract is for statewide use but excludes certain areas, then Contractor shall
deliver to any Eligible Agency or Co-Op Buyer location that is not in the excluded
areas; and
6. if the Contract is for unrestricted statewide use, then:
(a) Contractor shall deliver to any Eligible Agency or Co-Op Buyer anywhere in
Arizona;
Request for Proposal
Solicitation No.
ADSPO17-00007024
Description:
Uninterruptible Power Supply: New Equipment Service and
Maintenance
Arizona Department of Administration
State Procurement Office
100 N 15th Ave., Suite 201
Phoenix, AZ 85007
PART 2 of the Solicitation Documents
Template version 2.0 (01-FEB-2017)
SECTION 2-C: Special Terms and Conditions
Page 31 of 47 2
Available online at: Procure.AZ.gov
(b) if a prospective Co-Op Buyer outside Arizona wishes to order against the
Contract, Contractor agrees to negotiate in good faith any fair and reasonable
price or lead time adjustments necessary to serve that location if practicable
to do so within the scope of its normal business; and
(c) if the Commercial Document indicates defined delivery areas and prices,
those always apply unless the Order expressly states otherwise and
Contractor accepts it.
11.14 Conditions at Delivery
Location
Contractor shall verify receiving hours and conditions (i.e. height/weight restrictions,
access control, etc.) with the relevant purchaser for the receiving site before scheduling or
making a delivery. State will neither allow extra charges for wait time, comebacks, or the like nor
excuse late delivery if Contractor has failed to make the verification or comply with the
applicable conditions. Contractor shall make each delivery to the specific location indicated in
the Order, which Contractor acknowledges might be inside an industrial building, institutional
building, low-rise office building, or high-rise office building instead of a normal receiving dock.
Contractor might be required to make deliveries to locations inside a secured perimeter at
certain institutional facilities such as prisons where prior clearances are required for each
delivery and driver individually. Contractor shall contact each such facility directly to confirm its
most-current security clearance procedures, allowable hours for deliveries, visitor dress code,
and other applicable rules. State will neither allow extra charges for wait time, comebacks, or the
like nor excuse late delivery if Contractor has failed to make the confirmation or comply with the
applicable conditions.
11.15 Materials Acceptance State has the right to make acceptance of Materials subject to a complete inspection on
delivery and installation, if installation is Contractor’s responsibility. State may apply as
acceptance criteria conformity to the Contract, workmanship and quality, correctness of
constituent materials, and any other matter for which the Contract or applicable laws state a
requirement, whether stated directly or by reference to another document, standard, reference
specification, etc. Contractor shall remove any rejected Materials from the delivery location, or
from any immediate environs to which it might have been reasonably necessary to move it, carry
it off the delivery premises, and subsequently deliver an equal number or quantity of conforming
items. State will not owe Contractor any payment for rejected Materials, and State may, at its
discretion, withhold or make partial payment for any rejected Materials that have been returned
to Contractor in those instances where State has agreed to permit repair instead of demanding
replacement.
11.16 Correcting Defects Contractor shall, at no additional cost and without entitlement to extension of any
delivery deadline or specified time for performance, remove or exchange and replace any
defective or non-conforming delivered or installed Materials.
7. Contractor shall be solely responsible for the cost of any associated cutting and
patching, temporary protection measures, packing and crating, hoisting and
loading, transportation, unpacking, inspection, repacking, reshipping, and
reinstallation if installation is within the scope of the Contract.
8. If Contractor fails to do so in a timely manner, State will be entitled to exercise its
remedies under paragraph 8.5 [Right of Offset] of the Uniform Terms and
Conditions.
9. Whether State will permit Contractor to repair in place or demands that Contractor
remove and replace is at State’s discretion in each instance, provided that, State
shall not apply that discretion punitively if repair in place is practicable and doing so
would not create safety hazards, put property at risk, unreasonably interfere with
operations, create public nuisance, or give rise to any other reasonable concern on
State’s part.
11.17 Returns State may, at its discretion, return for full credit and with no restocking charges any
delivered Materials unused in the original packaging, including any instruction manuals or other
incidental item that accompanied the original shipment, within 30 (thirty) days after receipt. If
Request for Proposal
Solicitation No.
ADSPO17-00007024
Description:
Uninterruptible Power Supply: New Equipment Service and
Maintenance
Arizona Department of Administration
State Procurement Office
100 N 15th Ave., Suite 201
Phoenix, AZ 85007
PART 2 of the Solicitation Documents
Template version 2.0 (01-FEB-2017)
SECTION 2-C: Special Terms and Conditions
Page 32 of 47 2
Available online at: Procure.AZ.gov
State elects to return delivered Materials, then State shall pay all freight, delivery, and transit
insurance costs to return the products to the place from which Contractor shipped them,
provided that, if State returns delivered Materials because they are defective or non-conforming
or for any other reason having to do with Contractor fault or error, then State will not be
responsible for paying freight, delivery, or transit insurance costs to return the products and
may, at its discretion, either have those billed directly to Contractor or offset them under
paragraph 8.5 [Right of Offset] of the Uniform Terms and Conditions.
11.18 Order Cancellation State may cancel Orders within a reasonable period after issuance and at its discretion.
The same method as that used for ordering will be used for cancellation. If State cancels an
Order, then State shall:
10. pay Contractor for any portion of the Materials and Services from that Order that
have been properly delivered or performed as of the cancellation effective date
plus 1 (one) additional business day;
11. reimburse Contractor for:
(a) its actual, documented costs incurred in fulfilling the Order up to the
cancellation effective date plus 1 (one) additional business day; and
(b) the cost of any obligations it incurred as of the cancellation effective date plus
1 (one) additional business day that demonstrably cannot be canceled, or that
have pre-established cancelation penalties specified in the relevant
Subcontracts, to the extent the penalties are reasonable and customary for
the work in question; and
12. Contractor shall not charge or be entitled to charge State for any new costs it incurs
after receiving the cancelation notice plus 1 (one) business day or for any lost
profits or opportunity.
By way of reminder, State is not liable for any products that were produced, shipped, or
delivered or any services that were performed before Contractor had acknowledged the
corresponding Order.
11.19 Product Safety Materials as-shipped must comply with applicable safety regulations and standards.
Unless expressly stated otherwise in the Scope of Work, State is not responsible for making any
Materials safe or compliant following acceptance and is relying exclusively on Contractor to
deliver only products that are already safe and compliant.
11.20 Hazardous Materials Contractor shall timely provide State with any “Safety Data Sheets” (SDS) and any other
hazard communication documentation required under the US Department of Labor’s
Occupational Safety and Health Administration (OSHA) “Hazard Communication Standard” (often
referred to as the “HazCom 2012 Final Rule”) that is reasonably necessary for State to comply
with regulations when it or its other contractors install, handle, operate, repair, maintain or
remove any Materials. Note that, in the past, those documents might have been referred to as
“Material Safety Data Sheets” or “Product Safety Data Sheets”, but State (and this Contract) use
only the more up-to-date “SDS” reference. Contractor shall ensure that all its relevant personnel
understand the nature of and hazards associated with, to the extent it they are Contractor’s
responsibility under the Contract, the design, shipping, handling, delivery, installation, repair and
maintenance of any portion of the Work that is, contains or will become upon use a hazardous
material, with “hazardous material” being any material or substance that is: (1) identified now or
in the future as being hazardous, toxic or dangerous under applicable laws; or (2) subject to
statutory or regulatory requirement governing special handling, disposal or cleanup.
Request for Proposal
Solicitation No.
ADSPO17-00007024
Description:
Uninterruptible Power Supply: New Equipment Service and
Maintenance
Arizona Department of Administration
State Procurement Office
100 N 15th Ave., Suite 201
Phoenix, AZ 85007
PART 2 of the Solicitation Documents
Template version 2.0 (01-FEB-2017)
SECTION 2-C: Special Terms and Conditions
Page 33 of 47 2
Available online at: Procure.AZ.gov
12.0 General Provisions for Services
12.1 Applicability Article 12 applies to the extent the Work is or includes Services.
12.2 Comprehensive
Services Offering Contractor shall provide the comprehensive range of services for which a price is established in
the Pricing Document for ordering by Eligible Agencies, and Co-Op Buyers if co-op buying applies.
12.3 Additional Services State at its discretion may modify the scope of the Contract by Contract Amendment to include
additional services or service categories that are within the general scope of the ones originally
covered by the Contract if it determines that doing so is in its best interest. Once the Contract
Amendment is fully executed, Contractor shall then update all applicable price lists and make
them available to all affected entities at no additional cost. Either party may make the request to
add services to the Contract; regardless of who makes the request, the parties shall negotiate in
good faith a fair price for any additional services, but State may elect not to add some or all of
the services in question if no agreement is reached on pricing in a timely manner. Contractor’s
request or proposal in response to State’s request must include documentation demonstrating
that the proposed price for the additional services is both fair and reasonable and comparable to
the original ones.
12.4 Off-Contract Services Contractor shall ensure that the design and/or procedures for the Services ordering method
prevents Orders for off-contract or excluded services. Notwithstanding that State might have its
own internal administrative rules regarding off contract or excluded service ordering, and
endeavors to prevent such orders from occurring, Contractor is responsible for not accepting any
such Orders. State may, at its discretion, cancel any such Order without obligation. As used
above, “off-contract service” refers to any service not included in the scope of the Contract and
for which no price or compensation has been established contractually, and “excluded service”
refers to any service expressly excluded from the scope of the Contract.
12.5 Removal of Personnel Notwithstanding that Contractor is in every circumstance responsible for hiring, assigning,
directing, managing, training, disciplining, and rewarding its personnel, State may at its
discretion and without the obligation to demonstrate cause instruct Contractor to remove any of
its personnel from State’s facilities or from further assignment under the Contract. In such cases,
Contractor shall promptly replace them with other personnel having equivalent qualifications,
experience, and capabilities.
12.6 Transitions During commencement, Contractor shall attend transition meetings with any outgoing vendors
to coordinate and ease the transition so that the effect on State’s operations is kept to a
minimum. State may elect to have outgoing vendors complete some or all of their work or
orders in progress to ease the transition as is safest and most efficient in each instance, even if
that scope is covered under the Contract. Conversely, State anticipates having a continued need
for the same materials and services upon expiration or earlier termination of the Contract.
Accordingly, Contractor shall work closely with any new (incoming) vendor and State to ensure
as smooth and complete a transfer as is practicable. State’s representative shall coordinate all
transition activities and facilitate joint development of a comprehensive transition plan by both
Contractor and the incoming vendor. As with the incoming transition. State may permit
Contractor (outgoing) to complete work or orders in progress to ease the transition as is safest
and most efficient in each instance.
12.7 Accuracy of Work Contractor is responsible for the accuracy of the Services, and shall promptly make all necessary
revisions or corrections resulting from errors and omissions on its part without additional
compensation. Acceptance by State will not relieve Contractor of responsibility for correction of
any errors discovered subsequently or necessary clarification of any ambiguities.
Request for Proposal
Solicitation No.
ADSPO17-00007024
Description:
Uninterruptible Power Supply: New Equipment Service and
Maintenance
Arizona Department of Administration
State Procurement Office
100 N 15th Ave., Suite 201
Phoenix, AZ 85007
PART 2 of the Solicitation Documents
Template version 2.0 (01-FEB-2017)
SECTION 2-C: Special Terms and Conditions
Page 34 of 47 2
Available online at: Procure.AZ.gov
12.8 Requirements at
Services Location Contractor personnel shall perform their assigned portions of the Services at the specific location
indicated in the Order (if applicable). Contractor acknowledges that the location might be inside
an industrial building, institutional building, or one of various office types and classes.
Additionally, if performing the Services requires Contractor personnel to work inside a secured
perimeter at certain institutional facilities such as prisons where prior clearances are required,
Contractor shall contact the facility directly to confirm its most-current security clearance
procedures, allowable hours for work, visitor dress code, and other applicable rules. State will
neither allow extra charges for wait time, comebacks, or the like nor excuse late performance if
Contractor has failed to make the confirmation or comply with the applicable conditions.
12.9 Services Acceptance State has the right to make acceptance of Services subject to acceptance criteria. State may
apply as acceptance criteria conformity to the Contract, accuracy, completeness, or other
indicators of quality or other matter for which the Contract or law states a requirement,
whether stated directly or by reference to another document, standard, reference specification,
etc. State will not owe Contractor any payment for un-accepted Services; and State may, at its
discretion, withhold or make partial payment for any rejected Services if Contractor is still in the
process of re-performing or otherwise curing the grounds for State’s rejection.
12.10 Corrective Action
Required Notwithstanding any other guarantees, general warranties, or particular warranties Contractor
has given under the Contract, if Contractor fails to perform any material portion of the Services,
including failing to complete any contractual deliverable, or if its performance fails to meet
agreed-upon service levels or service standards set out in or referred to in the Contract, then
Contractor shall perform a root-cause analysis to identify the source of the failure and use all
commercially reasonable efforts to correct the failure and meet the Contract requirements as
promptly as is practicable.
1. Contractor shall provide to State a report detailing the identified cause and setting out
its detailed corrective action plan promptly after the date the failure occurred (or the
date when the failure first became apparent, if it was not apparent immediately after
occurrence).
2. State may demand to review and approve Contractor’s analysis and plans, and
Contractor shall make any corrections State instructs and adopt State’s
recommendations so far as is commercially practicable, provided that State may insist
on any measures it determines within reason to be necessary for safety or protecting
property and the environment.
3. Contractor shall take the necessary action to avoid any like failure in the future, if doing
so is appropriate and practicable under the circumstances.
13.0 Data and Information Handling
13.1 Applicability Article 13 applies to the extent the Work includes handling of any (1) State’s proprietary and
sensitive data or (2) confidential or access-restricted information obtained from State or from
others at State’s behest.
13.2 Data Protection and
Confidentiality
of Information
Contractor warrants that it will establish and maintain procedures and controls acceptable to
State for ensuring that State’s proprietary and sensitive data is protected from unauthorized
access and information obtained from State or others in performance of its contractual duties is
not mishandled, misused, or inappropriately released or disclosed. For purposes of this
paragraph, all data created by Contractor in any way related to the Contract, provided to
Contractor by State, or prepared by others for State are proprietary to State, and all information
by those same avenues is State’s confidential information. To comply with the foregoing
warrant:
1. Contractor shall: (a) notify State immediately of any unauthorized access or
inappropriate disclosures, whether stemming from an external security breach, internal
breach, system failure, or procedural lapse; (b) cooperate with State to identify the
Request for Proposal
Solicitation No.
ADSPO17-00007024
Description:
Uninterruptible Power Supply: New Equipment Service and
Maintenance
Arizona Department of Administration
State Procurement Office
100 N 15th Ave., Suite 201
Phoenix, AZ 85007
PART 2 of the Solicitation Documents
Template version 2.0 (01-FEB-2017)
SECTION 2-C: Special Terms and Conditions
Page 35 of 47 2
Available online at: Procure.AZ.gov
source or cause of and respond to each unauthorized access or inappropriate
disclosure; and (c) notify State promptly of any security threat that could result in
unauthorized access or inappropriate disclosures; and
2. Contractor shall not: (a) release any such data or allow it to be released or divulge any
such information to anyone other than its employees or officers as needed for each
person’s individual performance of his or her duties under the Contract, unless State
has agreed otherwise in advance and in writing; or (b) respond to any requests it
receives from a third party for such data or information, and instead route all such
requests to State’s designated representative.
13.3 Personally Identifiable
Information.
Without limiting the generality of paragraph 13.2, Contractor warrants that it will protect any
personally identifiable information (“PII”) belonging to State’s employees’ or other contractors
or members of the general public that it receives from State or otherwise acquires in its
performance under the Contract.
For purposes of this paragraph:
1. PII has the meaning given in the [federal] Office of Management and Budget (OMB)
Memorandum M-07-16 Safeguarding Against and Responding to the Breach of
Personally Identifiable Information; and
2. “protect” means taking measures to safeguard personally identifiable information and
prevent its breach that are functionally equivalent to those called for in that OMB
memorandum and elaborated on in the [federal] General Services Administration (GSA)
Directive CIO P 2180.1 GSA Rules of Behavior for Handling Personally Identifiable
Information.
NOTE (1): For convenience of reference only, the OMB memorandum is available at:
https://www.whitehouse.gov/sites/default/files/omb/memoranda/fy2007/m07-16.pdf
NOTE (2): For convenience of reference only, the GSA directive is available at:
http://www.gsa.gov/portal/directive/d0/content/658222
13.4 Protected Health
Information
Contractor warrants that, to the extent performance under the Contract involves individually
identifiable health information (referred to hereinafter as protected health information (“PHI”)
and electronic PHI (“ePHI”) as defined in the Privacy Rule referred to below), it:
1. is familiar with and will comply with the applicable aspects of the following collective
regulatory requirements regarding patient information privacy protection: (a) the
“Privacy Rule” in CFR 45 Part 160 and Part 164 pursuant to the Health Insurance
Portability and Accountability Act (“HIPAA”) of 1996; (b) Arizona laws, rules, and
regulations applicable to PHI/ePHI that are not preempted by CFR 45-160(B) or the
Employee Retirement Income Security Act of 1974 (“ERISA”) as amended; and (c)
State’s current and published PHI/ePHI privacy and security policies and procedures;
2. will cooperate with State in the course of performing under the Contract so that both
State and Contractor stay in compliance with the requirements in (1) above; and
3. will sign any documents that are reasonably necessary to keep both State and
Contractor in compliance with the requirements in (1) above, in particular “Business
Associate Agreements” in accordance with the Privacy Rule.
NOTE: For convenience of reference only, the Privacy Rule is available at:
http://www.hhs.gov/hipaa/for-professionals/privacy/index.html
Request for Proposal
Solicitation No.
ADSPO17-00007024
Description:
Uninterruptible Power Supply: New Equipment Service and
Maintenance
Arizona Department of Administration
State Procurement Office
100 N 15th Ave., Suite 201
Phoenix, AZ 85007
PART 2 of the Solicitation Documents
Template version 2.0 (01-FEB-2017)
SECTION 2-C: Special Terms and Conditions
Page 36 of 47 2
Available online at: Procure.AZ.gov
14.0 Information Technology Work
14.1 Applicability Article 14 applies to any Invitation for Bids, Request for Proposals, or Request for Quotations for
"Information Technology," as defined In A.R.S. § 41-3501(6) 6: “ . . . computerized and auxiliary
automated information processing, telecommunications and related technology, including
hardware, software, vendor support and related services, equipment and projects” if and to the
extent that the Work is or includes Information Technology.
14.2 Background Checks Each of Contractor’s personnel who is an applicant for an information technology position must
undergo the security clearance and background check procedure, which includes fingerprinting,
as required by A.R.S § 41-710. Contractor shall obtain and pay for the security clearance and
background check. Contractor personnel who will have administrator privileges on a State
network must additionally provide identify and address verification and undergo State-specified
training for unescorted access, confidentiality, privacy, and data security.
14.3 Information Access 14.3.1 SYSTEM MEASURES. Contractor shall employ appropriate system management and
maintenance, fraud prevention and detection, and encryption application and tools to
any systems or networks containing or transmitting State’s proprietary data or
confidential information.
14.3.2 INDIVIDUAL MEASURES. Contractor personnel shall comply with applicable State
policies and procedures regarding data access, privacy, and security, including
prohibitions on remote access and obtaining and maintaining access IDs and passwords.
Contractor is responsible to State for ensuring that any State access IDs and passwords
are used only by the person to whom they were issued. Contractor shall ensure that
personnel are only provided the minimum only such level of access necessary to
perform his or duties. Contractor shall on request provide a current register of the
access IDs and passwords and corresponding access levels currently assigned to its
personnel.
14.3.3 ACCESS CONTROL. Contractor is responsible to State for ensuring that hardware,
software, data, information, and that has been provided by State or belongs to or is in
the custody of State and is accessed or accessible by Contractor personnel is only used
in connection with carrying out the Work, and is never commercially exploited in any
manner whatsoever not expressly permitted under the Contract. State may restrict
access by Contractor personnel, or instruct Contractor to restrict access their access, if
in its determination the requirements of this subparagraph are not being met.
14.4 Pass-Through
Indemnity
14.4.1 INDEMNITY FROM THIRD PARTY. For computer hardware or software included in the
Work as discrete units that were manufactured or developed solely by a third party,
Contractor may satisfy its indemnification obligations under the Contract by, to the
extent permissible by law, passing through to State such indemnity as it receives from
the third-party source (each a “Pass-Through Indemnity”) and cooperating with State in
enforcing that indemnity. If the third party fails to honor its Pass-Through Indemnity, or
if a Pass-Through Indemnity is insufficient to indemnify State Indemnitees to the extent
and degree Contractor is required to do by the Uniform Terms and Conditions, then
Contractor shall indemnify, defend and hold harmless State Indemnitees to the extent
the Pass-Through Indemnity does not.
14.4.2 NOTIFY OF CLAIMS. State shall notify Contractor promptly of any claim to which a Pass-
Through Indemnity might apply. Contractor, with reasonable consultation from State,
shall control of the defense of any action on any claim to which a Pass-Through
Indemnity applies, including negotiations for settlement or compromise, provided that:
(a) State reserves the right to elect to participate in the action at its own expense;
(b) State reserves the right to approve or reject any settlement or compromise on
reasonable grounds and if done so timely; and
Request for Proposal
Solicitation No.
ADSPO17-00007024
Description:
Uninterruptible Power Supply: New Equipment Service and
Maintenance
Arizona Department of Administration
State Procurement Office
100 N 15th Ave., Suite 201
Phoenix, AZ 85007
PART 2 of the Solicitation Documents
Template version 2.0 (01-FEB-2017)
SECTION 2-C: Special Terms and Conditions
Page 37 of 47 2
Available online at: Procure.AZ.gov
(c) State shall in any case cooperate in the defense and any related settlement
negotiations.
14.5 Systems and Controls In consideration for State having agreed to permit Pass-Through Indemnities in lieu of direct
indemnity, Contractor agrees to establish and keep in place systems and controls appropriate to
ensure that State funds under this Contract are not knowingly used for the acquisition,
operation, or maintenance of Materials or Services in violation of intellectual property laws or a
third party’s intellectual property rights.
14.6 Redress of
Infringement.
14.6.1 REPLACE, LICENSE, OR MODIFY. If Contractor becomes aware that any Materials or
Services infringe, or are likely to be infringing on, any third party’s intellectual property
rights, then Contractor shall at its sole cost and expense and in consultation with State
either:
(a) replace any infringing items with non-infringing ones;
(b) obtain for State the right to continue using the infringing items; or
(c) modify the infringing item so that they become non-infringing, so long as they
continue to function as specified following the modification.
14.6.2 CANCELLATION OPTION. In every case under 14.6.1, if none of those options can
reasonably be accomplished, or if the continued use of the infringing items is
impracticable, State may cancel the relevant Order or terminate the Contract and
Contractor shall take back the infringing items. If State does cancel the Order or
terminate the Contract, Contractor shall refund to State:
(a) for any software created for State under the Contract, the amount State paid to
Contactor for creating it;
(b) for all other Materials, the net book value of the product provided according to
generally accepted accounting principles; and
(c) for Services, the amount paid by State or an amount equal to 12 (twelve) months
of charges, whichever is less.
14.6.3. EXCEPTIONS. Contractor will not be liable for any claim of infringement based solely on
any of the following by a State Indemnitee:
(a) modification or use of Materials other than as contemplated by the Contract or
expressly authorized or proposed by a Contractor Indemnitor;
(b) operation of Materials with any operating software other than that supplied by
Contractor or authorized or proposed by a Contractor Indemnitor; or
(c) combination or use with other products in a manner not contemplated by the
Contract or expressly authorized or proposed by a Contractor Indemnitor.
14.7 First Party Liability
Limitation
14.7.1 LIMIT. Subject to the provisos that follow below and unless stated otherwise in the
Special Terms and Conditions, State’s and Contractor’s respective first party liability
arising from or related to the Contract is limited to the greater of $1,000,000 (one
million dollars) or 3 (three) times the purchase price of the specific Materials or Services
giving rise to the claim.
14.7.2 PROVISOS. This paragraph 14.7 limits liability for first party direct, indirect, incidental,
special, punitive, and consequential damages relating to the Work regardless of the
legal theory under which the liability is asserted. This paragraph 14.7 does not limit
liability arising from any:
(a) Indemnified Claim against which Contractor has indemnified State Indemnitees
under paragraph 6.3;
Request for Proposal
Solicitation No.
ADSPO17-00007024
Description:
Uninterruptible Power Supply: New Equipment Service and
Maintenance
Arizona Department of Administration
State Procurement Office
100 N 15th Ave., Suite 201
Phoenix, AZ 85007
PART 2 of the Solicitation Documents
Template version 2.0 (01-FEB-2017)
SECTION 2-C: Special Terms and Conditions
Page 38 of 47 2
Available online at: Procure.AZ.gov
(b) claim against which Contractor has indemnified State Indemnitees under
paragraph 6.4; or
(c) provision of the Contract calling for liquidated damages or specifying amounts or
percentages as being at-risk or subject to deduction for performance deficiencies.
14.7.2 PURCHASE PRICE DETERMINATION. If the Contract is for a single-agency and a single
Order (or if no Order applies), then “purchase price” in Subparagraph 14.7.1 above
means the aggregate Contract price current at the time of Contract expiration or earlier
termination, including all change orders or other forms of Contract Amendment having
an effect on the aggregate price through that date. In all other cases, “purchase price”
above means the total price of the Order for the specific equipment, software, or
services giving rise to the claim, and therefore a separate limit will apply to each Order.
14.7.3 NO EFFECT ON INSURANCE. This paragraph does not modify the required coverage
limits, terms, and conditions of, or any insured’s ability to claim against, any insurance
that Contractor is required by the Contract to provide, and Contractor shall obtain
express endorsements that it does not.
14.8 Information
Technology Warranty 14.8.1 SPECIFIED DESIGN. Where the Scope of Work for information technology Work provides
a detailed design specification or sets out specific performance requirements,
Contractor warrants that the Work will provide all functionality material to the intended
use stated in the Contract, provided that, the foregoing warranty does not extend to
any portions of the Materials that are:
(a) modified or altered by anyone not authorized by Contractor to do so;
(b) maintained in a way inconsistent to any applicable manufacturer
recommendations; or
(c) operated in a manner not within its intended use or environment.
14.8.2 COTS SOFTWARE. With respect to Materials provided under the Contract that are
commercial-off-the-shelf (COTS) software, Contractor warrants that:
(a) to the extent possible, it will test the software before delivery using commercially
available virus detection software conforming to current industry standards;
(b) the COTS software will, to the best of its knowledge, at the time of delivery be
free of viruses, backdoors, worms, spyware, malware, and other malicious code
that could hamper performance, collect unlawfully any personally identifiable
information, or prevent products from performing as required by the Contract;
and
(c) it will provide a new or clean install of any COTS software that State has reason to
believes contains harmful code.
14.8.3 PAYMENT HAS NO EFFECT. The warranties in this paragraph are not affected by State’s
inspection, testing, or payment.
14.9 Specific Remedies
Unless expressly stated otherwise elsewhere in the Contract, State’s remedy for breach of
warranty under paragraph 14.8 includes, at State’s discretion, re-performance, repair,
replacement, or refund of any amounts paid by State for the nonconforming Work, plus (in every
case) Contractor’s payment of State’s additional, documented, and reasonable costs to procure
materials or services equivalent in function, capability, and performance at that first called for.
For clarification of intent, the foregoing obligations are limited by the limitation of liability in
paragraph 14.7. If none of the forgoing options can reasonably be effected, or if the use of the
materials by State is made impractical by the nonconformance, then State may seek any remedy
available to it under law.
Request for Proposal
Solicitation No.
ADSPO17-00007024
Description:
Uninterruptible Power Supply: New Equipment Service and
Maintenance
Arizona Department of Administration
State Procurement Office
100 N 15th Ave., Suite 201
Phoenix, AZ 85007
PART 2 of the Solicitation Documents
Template version 2.0 (01-FEB-2017)
SECTION 2-C: Special Terms and Conditions
Page 39 of 47 2
Available online at: Procure.AZ.gov
14.10 Section 508
Compliance Unless specifically authorized in the Contract, any electronic or information technology offered
to the State of Arizona under this Contract shall comply with A.R.S. § 18-131 and § 18-132 and
Section 508 of the Rehabilitation Act of 1973, which requires that employees and members of
the public shall have access to and use of information technology that is comparable to the
access and use by employees and members of the public who are not individuals with
disabilities.
14.11 Cloud Applications The following are required for Contractor of any “cloud” solution that hosts State data outside of
the State’s network, or transmits and/or receives State data.
1. Submit a completed Arizona Baseline Infrastructure Security Controls assessment
spreadsheet as found at: https://aset.az.gov/resources/policies-standards-and-
procedures, and mitigate or install compensating controls for any issues of concern
identified by State. Contractor is required to provide any requested documentation
supporting the review of the assessment. The assessment shall be re-validated on a
minimum annual basis.
2. State reserves the right to conduct Penetration tests or hire a third party to conduct
penetration tests of the Contractor’s application. Contractor will be alerted in advance
and arrangements made for an agreeable time. Contractor shall respond to all serious
flaws discovered by providing an acceptable timeframe to resolve the issue and/or
implement a compensating control.
3. Contractor must submit copy of system logs from cloud system to State of AZ security
team on a regular basis to be added to the State SIEM (Security Information Event
Monitor) or IDS (Intrusion Detection System).
Contractor must employ a government-rated cloud compartment to better protect sensitive or
regulated State data.
End of Section 2-B
Request for Proposal
Solicitation No.
ADSPO17-00007024
Description:
Uninterruptible Power Supply: New Equipment Service and
Maintenance
Arizona Department of Administration
State Procurement Office
100 N 15th Ave., Suite 201
Phoenix, AZ 85007
PART 2 of the Solicitation Documents:
Version 9 (01-JUL-2013)
SECTION 2-D: Uniform Terms and Conditions
Page 40 of 47 2
Available online at: Procure.AZ.gov
SECTION 2-D:
Uniform Terms and Conditions
Version: 9 (7/1/2013)
1.0 Definition of Terms
As used in the Contract, the terms listed below are defined as follows:
1.1 Attachment “Attachment” means any item the solicitation requires the Offeror to submit as part of the
Offer.
1.2 Contract “Contract” ” means the combination of the Solicitation, including the Uniform and Special
Instructions to Offerors, the Uniform and Special Terms and Conditions, and the Specifications
and Statement or Scope of Work; the Offer and any Best and Final Offers; and any Solicitation
Amendments or Contract Amendments.
1.3 Contract
Amendment
"Contract Amendment" means a written document signed by the Procurement Officer that is
issued for the purpose of making changes in the Contract.
1.4 Contractor “Contractor” means any Person who has a Contract with the State.
1.5 Days “Days” means calendar days unless otherwise specified.
1.6 Exhibit “Exhibit” means any item labeled as an Exhibit in the Solicitation or placed in the Exhibits section
of the Solicitation.
1.7 Gratuity “Gratuity” means a payment, loan, subscription, advance, deposit of money, services, or
anything of more than nominal value, present or promised, unless consideration of substantially
equal or greater value is received.
1.8 Materials “Materials” means all property, including equipment, supplies, printing, insurance and leases of
property but does not include land, a permanent interest in land or real property or leasing
space.
1.9 Procurement
Officer
“Procurement Officer” means the person, or his or her designee, duly authorized by the State to
enter into and administer Contracts and make written determinations with respect to the
Contract.
1.10 Services “Services” has the meaning given in A.R.S. § 41-2503(35), which, for convenience of reference
only, is “… the furnishing of labor, time, or effort by [the] [C]ontractor or [S}ubcontractor which
does not involve the delivery of a specific end product other than required reports and
performance [but] does not include employment agreements or collective bargaining
agreements.” Services includes Building Work and the service aspects of software described in
paragraph 15.8.
1.11 State “State” means the State of Arizona and Department or Agency of the State that executes the
Contract.
1.12 State Fiscal Year “State Fiscal Year” means the period beginning with July 1 and ending June 30.
1.13 Subcontract “Subcontract” means any Contract, express or implied, between the Contractor and another
party or between a subcontractor and another party delegating or assigning, in whole or in part,
the making or furnishing of any material or any service required for the performance of the
Contract.
Request for Proposal
Solicitation No.
ADSPO17-00007024
Description:
Uninterruptible Power Supply: New Equipment Service and
Maintenance
Arizona Department of Administration
State Procurement Office
100 N 15th Ave., Suite 201
Phoenix, AZ 85007
PART 2 of the Solicitation Documents:
Version 9 (01-JUL-2013)
SECTION 2-D: Uniform Terms and Conditions
Page 41 of 47 2
Available online at: Procure.AZ.gov
2.0 Contract Interpretation
2.1 Arizona Law The Arizona law applies to this Contract including, where applicable, the Uniform Commercial
Code as adopted by the State of Arizona and the Arizona Procurement Code, Arizona Revised
Statutes (A.R.S.) Title 41, Chapter 23, and its implementing rules, Arizona Administrative Code
(A.A.C.) Title 2, Chapter 7.
2.2 Implied Terms Each provision of law and any terms required by law to be in this Contract are a part of this
Contract as if fully stated in it.
2.3 Contract Order
of Precedence
In the event of a conflict in the provisions of the Contract, as accepted by the State and as they
may be amended, the following shall prevail in the order set forth below:
2.3.1. Special Terms and Conditions;
2.3.2. Uniform Terms and Conditions;
2.3.3. Statement or Scope of Work;
2.3.4. Specifications;
2.3.5. Attachments;
2.3.6. Exhibits;
2.3.7. Documents referenced or included in the Solicitation.
2.4 Relationship of
Parties
The Contractor under this Contract is an independent Contractor. Neither party to this Contract
shall be deemed to be the employee or agent of the other party to the Contract.
2.5 Severability The provisions of this Contract are severable. Any term or condition deemed illegal or invalid
shall not affect any other term or condition of the Contract..
2.6 No Parole Evidence This Contract is intended by the parties as a final and complete expression of their agreement.
No course of prior dealings between the parties and no usage of the trade shall supplement or
explain any terms used in this document and no other understanding either oral or in writing
shall be binding.
2.7 No Waiver
Either party’s failure to insist on strict performance of any term or condition of the Contract
shall not be deemed a waiver of that term or condition even if the party accepting or
acquiescing in the nonconforming performance knows of the nature of the performance and
fails to object to it.
3.0 Contract Administration and Operation
3.1 Records Under A.R.S. § 35-214 and § 35-215, the Contractor shall retain and shall contractually require
each subcontractor to retain all data and other “records” relating to the acquisition and
performance of the Contract for a period of five years after the completion of the Contract. All
records shall be subject to inspection and audit by the State at reasonable times. Upon request,
the Contractor shall produce a legible copy of any or all such records.
3.2 Non-Discrimination The Contractor shall comply with State Executive Order No. 2009-09 and all other applicable
Federal and State laws, rules and regulations, including the Americans with Disabilities Act.
3.3 Audit Pursuant to ARS § 35-214, at any time during the term of this Contract and five (5) years
thereafter, the Contractor’s or any subcontractor’s books and records shall be subject to audit
by the State and, where applicable, the Federal Government, to the extent that the books and
records relate to the performance of the Contract or Subcontract.
3.4 Facilities Inspection
and Materials Testing
The Contractor agrees to permit access to its facilities, subcontractor facilities and the
Contractor’s processes or services, at reasonable times for inspection of the facilities or
materials covered under this Contract. The State shall also have the right to test, at its own cost,
the materials to be supplied under this Contract. Neither inspection of the Contractor’s facilities
Request for Proposal
Solicitation No.
ADSPO17-00007024
Description:
Uninterruptible Power Supply: New Equipment Service and
Maintenance
Arizona Department of Administration
State Procurement Office
100 N 15th Ave., Suite 201
Phoenix, AZ 85007
PART 2 of the Solicitation Documents:
Version 9 (01-JUL-2013)
SECTION 2-D: Uniform Terms and Conditions
Page 42 of 47 2
Available online at: Procure.AZ.gov
nor materials testing shall constitute final acceptance of the materials or services. If the State
determines noncompliance of the materials, the Contractor shall be responsible for the payment
of all costs incurred by the State for testing and inspection.
3.5 Notices Notices to the Contractor required by this Contract shall be made by the State to the person
indicated on the Offer and Acceptance form submitted by the Contractor unless otherwise
stated in the Contract. Notices to the State required by the Contract shall be made by the
Contractor to the Solicitation Contact Person indicated on the Solicitation cover sheet, unless
otherwise stated in the Contract. An authorized Procurement Officer and an authorized
Contractor representative may change their respective person to whom notice shall be given by
written notice to the other and an amendment to the Contract shall not be necessary.
3.6 Advertising,
Publishing and
Promotion of Contract
The Contractor shall not use, advertise or promote information for commercial benefit
concerning this Contract without the prior written approval of the Procurement Officer.
3.7 Property of the State Any materials, including reports, computer programs and other deliverables, created under this
Contract are the sole property of the State. The Contractor is not entitled to a patent or
copyright on those materials and may not transfer the patent or copyright to anyone else. The
Contractor shall not use or release these materials without the prior written consent of the
State.
3.8 Ownership of
Intellectual Property
Any and all intellectual property, including but not limited to copyright, invention, trademark,
trade name, service mark, and/or trade secrets created or conceived pursuant to or as a result
of this contract and any related subcontract (“Intellectual Property”), shall be work made for
hire and the State shall be considered the creator of such Intellectual Property. The agency,
department, division, board or commission of the State of Arizona requesting the issuance of
this contract shall own (for and on behalf of the State) the entire right, title and interest to the
Intellectual Property throughout the world. Contractor shall notify the State, within thirty (30)
days, of the creation of any Intellectual Property by it or its subcontractor(s). Contractor, on
behalf of itself and any subcontractor(s), agrees to execute any and all document(s) necessary to
assure ownership of the Intellectual Property vests in the State and shall take no affirmative
actions that might have the effect of vesting all or part of the Intellectual Property in any entity
other than the State. The Intellectual Property shall not be disclosed by contractor or its
subcontractor(s) to any entity not the State without the express written authorization of the
agency, department, division, board or commission of the State of Arizona requesting the
issuance of this contract.
3.9 Federal Immigration
and Nationality Act
The contractor shall comply with all federal, state and local immigration laws and regulations
relating to the immigration status of their employees during the term of the contract. Further,
the contractor shall flow down this requirement to all subcontractors utilized during the term of
the contract. The State shall retain the right to perform random audits of contractor and
subcontractor records or to inspect papers of any employee thereof to ensure compliance.
Should the State determine that the contractor and/or any subcontractors be found
noncompliant, the State may pursue all remedies allowed by law, including, but not limited to;
suspension of work, termination of the contract for default and suspension and/or debarment
of the contractor.
3.10 E-Verify Requirements In accordance with A.R.S. § 41-4401, Contractor warrants compliance with all Federal
immigration laws and regulations relating to employees and warrants its compliance with
Section A.R.S. § 23-214, Subsection A.
3.11 Offshore Performance
of Work Prohibited.
Any services that are described in the specifications or scope of work that directly serve the
State of Arizona or its clients and involve access to secure or sensitive data or personal client
data shall be performed within the defined territories of the United States. Unless specifically
stated otherwise in the specifications, this paragraph does not apply to indirect or 'overhead'
services, redundant back-up services or services that are incidental to the performance of the
contract. This provision applies to work performed by subcontractors at all tiers.
Request for Proposal
Solicitation No.
ADSPO17-00007024
Description:
Uninterruptible Power Supply: New Equipment Service and
Maintenance
Arizona Department of Administration
State Procurement Office
100 N 15th Ave., Suite 201
Phoenix, AZ 85007
PART 2 of the Solicitation Documents:
Version 9 (01-JUL-2013)
SECTION 2-D: Uniform Terms and Conditions
Page 43 of 47 2
Available online at: Procure.AZ.gov
4.0 Costs and Payments
4.1 Payments Payments shall comply with the requirements of A.R.S. Titles 35 and 41, Net 30 days. Upon
receipt and acceptance of goods or services, the Contractor shall submit a complete and
accurate invoice for payment from the State within thirty (30) days.
4.2 Delivery
4.3 Applicable Taxes
Unless stated otherwise in the Contract, all prices shall be F.O.B. Destination and shall include all
freight delivery and unloading at the destination.
4.3.1. Payment of Taxes. The Contractor shall be responsible for paying all applicable taxes.
4.3.2. State and Local Transaction Privilege Taxes. The State of Arizona is subject to all applicable
state and local transaction privilege taxes. Transaction privilege taxes apply to the sale and
are the responsibility of the seller to remit. Failure to collect such taxes from the buyer
does not relieve the seller from its obligation to remit taxes.
4.3.3. Tax Indemnification. Contractor and all subcontractors shall pay all Federal, state and local
taxes applicable to its operation and any persons employed by the Contractor. Contractor
shall, and require all subcontractors to hold the State harmless from any responsibility for
taxes, damages and interest, if applicable, contributions required under Federal, and/or
state and local laws and regulations and any other costs including transaction privilege
taxes, unemployment compensation insurance, Social Security and Worker’s
Compensation.
4.3.4. IRS W9 Form. In order to receive payment the Contractor shall have a current I.R.S. W9
Form on file with the State of Arizona, unless not required by law
4.4 Availability of Funds
for the Next State
fiscal year
4.5 Availability of Funds
for the current State
fiscal year
Funds may not presently be available for performance under this Contract beyond the current
state fiscal year. No legal liability on the part of the State for any payment may arise under this
Contract beyond the current state fiscal year until funds are made available for performance of
this Contract.
Should the State Legislature enter back into session and reduce the appropriations or for any
reason and these goods or services are not funded, the State may take any of the following
actions:
4.5.1. Accept a decrease in price offered by the contractor;
4.5.2. Cancel the Contract; or
4.5.3. Cancel the contract and re-solicit the requirements
5.0 Contract Changes
5.1 Amendments This Contract is issued under the authority of the Procurement Officer who signed this Contract.
The Contract may be modified only through a Contract Amendment within the scope of the
Contract. Changes to the Contract, including the addition of work or materials, the revision of
payment terms, or the substitution of work or materials, directed by a person who is not
specifically authorized by the procurement officer in writing or made unilaterally by the
Contractor are violations of the Contract and of applicable law. Such changes, including
unauthorized written Contract Amendments shall be void and without effect, and the
Contractor shall not be entitled to any claim under this Contract based on those changes.
5.2 Subcontracts The Contractor shall not enter into any Subcontract under this Contract for the performance of
this contract without the advance written approval of the Procurement Officer. The Contractor
shall clearly list any proposed subcontractors and the subcontractor’s proposed responsibilities.
The Subcontract shall incorporate by reference the terms and conditions of this Contract.
5.3 Assignment and
Delegation
The Contractor shall not assign any right nor delegate any duty under this Contract without the
prior written approval of the Procurement Officer. The State shall not unreasonably withhold
approval.
Request for Proposal
Solicitation No.
ADSPO17-00007024
Description:
Uninterruptible Power Supply: New Equipment Service and
Maintenance
Arizona Department of Administration
State Procurement Office
100 N 15th Ave., Suite 201
Phoenix, AZ 85007
PART 2 of the Solicitation Documents:
Version 9 (01-JUL-2013)
SECTION 2-D: Uniform Terms and Conditions
Page 44 of 47 2
Available online at: Procure.AZ.gov
6.0 Risk and Liability
6.1 Risk of Loss The Contractor shall bear all loss of conforming material covered under this Contract until
received by authorized personnel at the location designated in the purchase order or Contract.
Mere receipt does not constitute final acceptance. The risk of loss for nonconforming materials
shall remain with the Contractor regardless of receipt.
6.2 Indemnification 6.2.1. Contractor/Vendor Indemnification (Not Public Agency) The parties to this contract agree
that the State of Arizona, its departments, agencies, boards and commissions shall be
indemnified and held harmless by the contractor for the vicarious liability of the State as a
result of entering into this contract. However, the parties further agree that the State of
Arizona, its departments, agencies, boards and commissions shall be responsible for its
own negligence. Each party to this contract is responsible for its own negligence.
6.2.2. Public Agency Language Only Each party (as 'indemnitor') agrees to indemnify, defend,
and hold harmless the other party (as 'indemnitee') from and against any and all claims,
losses, liability, costs, or expenses (including reasonable attorney's fees) (hereinafter
collectively referred to as 'claims') arising out of bodily injury of any person (including
death) or property damage but only to the extent that such claims which result in
vicarious/derivative liability to the indemnitee, are caused by the act, omission,
negligence, misconduct, or other fault of the indemnitor, its officers, officials, agents,
employees, or volunteers."
6.3 Indemnification –
Patent and Copyright
The Contractor shall indemnify and hold harmless the State against any liability, including costs
and expenses, for infringement of any patent, trademark or copyright arising out of Contract
performance or use by the State of materials furnished or work performed under this Contract.
The State shall reasonably notify the Contractor of any claim for which it may be liable under
this paragraph. If the contractor is insured pursuant to A.R.S. § 41-621 and § 35-154, this section
shall not apply.
6.4 Force Majeure 6.4.1 Except for payment of sums due, neither party shall be liable to the other nor deemed
in default under this Contract if and to the extent that such party’s performance of this
Contract is prevented by reason of force majeure. The term “force majeure” means an
occurrence that is beyond the control of the party affected and occurs without its fault
or negligence. Without limiting the foregoing, force majeure includes acts of God; acts
of the public enemy; war; riots; strikes; mobilization; labor disputes; civil disorders; fire;
flood; lockouts; injunctions-intervention-acts; or failures or refusals to act by
government authority; and other similar occurrences beyond the control of the party
declaring force majeure which such party is unable to prevent by exercising reasonable
diligence.
6.4.2. Force Majeure shall not include the following occurrences:
6.4.2.1. Late delivery of equipment or materials caused by congestion at a
manufacturer’s plant or elsewhere, or an oversold condition of the market;
6.4.2.2. Late performance by a subcontractor unless the delay arises out of a force
majeure occurrence in accordance with this force majeure term and condition;
or 6.4.2.3. Inability of either the Contractor or any subcontractor to acquire or
maintain any required insurance, bonds, licenses or permits.
6.4.3. If either party is delayed at any time in the progress of the work by force majeure, the
delayed party shall notify the other party in writing of such delay, as soon as is
practicable and no later than the following working day, of the commencement thereof
and shall specify the causes of such delay in such notice. Such notice shall be delivered
or mailed certified-return receipt and shall make a specific reference to this article,
thereby invoking its provisions. The delayed party shall cause such delay to cease as
soon as practicable and shall notify the other party in writing when it has done so. The
time of completion shall be extended by Contract Amendment for a period of time
Request for Proposal
Solicitation No.
ADSPO17-00007024
Description:
Uninterruptible Power Supply: New Equipment Service and
Maintenance
Arizona Department of Administration
State Procurement Office
100 N 15th Ave., Suite 201
Phoenix, AZ 85007
PART 2 of the Solicitation Documents:
Version 9 (01-JUL-2013)
SECTION 2-D: Uniform Terms and Conditions
Page 45 of 47 2
Available online at: Procure.AZ.gov
equal to the time that results or effects of such delay prevent the delayed party from
performing in accordance with this Contract.
6.4.4. Any delay or failure in performance by either party hereto shall not constitute default
hereunder or give rise to any claim for damages or loss of anticipated profits if, and to
the extent that such delay or failure is caused by force majeure.
6.5 Third Party Antitrust
Violations
The Contractor assigns to the State any claim for overcharges resulting from antitrust
violations to the extent that those violations concern materials or services supplied by third
parties to the Contractor, toward fulfillment of this Contract.
7.0 Warranties
7.1 Liens The Contractor warrants that the materials supplied under this Contract are free of liens and
shall remain free of liens.
7.2 Quality Unless otherwise modified elsewhere in these terms and conditions, the Contractor warrants
that, for one year after acceptance by the State of the materials, they shall be:
7.2.1. Of a quality to pass without objection in the trade under the Contract description;
7.2.2. Fit for the intended purposes for which the materials are used;
7.2.3. Within the variations permitted by the Contract and are of even kind, quantity, and quality
within each unit and among all units;
7.2.4. Adequately contained, packaged and marked as the Contract may require; and
7.2.5. Conform to the written promises or affirmations of fact made by the Contractor.
7.3 Fitness The Contractor warrants that any material supplied to the State shall fully conform to all
requirements of the Contract and all representations of the Contractor, and shall be fit for all
purposes and uses required by the Contract.
7.4 Inspection/Testing The warranties set forth in subparagraphs 7.1 through 7.3 of this paragraph are not affected by
inspection or testing of or payment for the materials by the State.
7.5 Compliance
with Laws
The materials and services supplied under this Contract shall comply with all applicable Federal,
state and local laws, and the Contractor shall maintain all applicable license and permit
requirements.
7.6 Survival of Rights and
Obligations after
Contract Expiration or
Termination
7.6.1. Contractor's Representations and Warranties. All representations and warranties made by
the Contractor under this Contract shall survive the expiration or termination hereof. In
addition, the parties hereto acknowledge that pursuant to A.R.S. § 12-510, except as
provided in A.R.S. § 12-529, the State is not subject to or barred by any limitations of
actions prescribed in A.R.S., Title 12, Chapter 5.
7.6.2. Purchase Orders. The Contractor shall, in accordance with all terms and conditions of the
Contract, fully perform and shall be obligated to comply with all purchase orders received
by the Contractor prior to the expiration or termination hereof, unless otherwise directed
in writing by the Procurement Officer, including, without limitation, all purchase orders
received prior to but not fully performed and satisfied at the expiration or termination of
this Contract.
8.0 State's Contractual Remedies
8.1 Right to
Assurance
If the State in good faith has reason to believe that the Contractor does not intend to, or is
unable to perform or continue performing under this Contract, the Procurement Officer may
demand in writing that the Contractor give a written assurance of intent to perform. Failure by
the Contractor to provide written assurance within the number of Days specified in the demand
may, at the State’s option, be the basis for terminating the Contract under the Uniform Terms
and Conditions or other rights and remedies available by law or provided by the contract.
Request for Proposal
Solicitation No.
ADSPO17-00007024
Description:
Uninterruptible Power Supply: New Equipment Service and
Maintenance
Arizona Department of Administration
State Procurement Office
100 N 15th Ave., Suite 201
Phoenix, AZ 85007
PART 2 of the Solicitation Documents:
Version 9 (01-JUL-2013)
SECTION 2-D: Uniform Terms and Conditions
Page 46 of 47 2
Available online at: Procure.AZ.gov
8.2 Stop Work Order 8.2.1. The State may, at any time, by written order to the Contractor, require the Contractor to
stop all or any part, of the work called for by this Contract for period(s) of days indicated
by the State after the order is delivered to the Contractor. The order shall be specifically
identified as a stop work order issued under this clause. Upon receipt of the order, the
Contractor shall immediately comply with its terms and take all reasonable steps to
minimize the incurrence of costs allocable to the work covered by the order during the
period of work stoppage.
8.2.2. If a stop work order issued under this clause is canceled or the period of the order or any
extension expires, the Contractor shall resume work. The Procurement Officer shall make
an equitable adjustment in the delivery schedule or Contract price, or both, and the
Contract shall be amended in writing accordingly.
8.3 Non-exclusive
Remedies
The rights and the remedies of the State under this Contract are not exclusive.
8.4 Nonconforming
Tender
Materials or services supplied under this Contract shall fully comply with the Contract. The
delivery of materials or services or a portion of the materials or services that do not fully comply
constitutes a breach of contract. On delivery of nonconforming materials or services, the State
may terminate the Contract for default under applicable termination clauses in the Contract,
exercise any of its rights and remedies under the Uniform Commercial Code, or pursue any
other right or remedy available to it.
8.5 Right of Offset The State shall be entitled to offset against any sums due the Contractor, any expenses or costs
incurred by the State, or damages assessed by the State concerning the Contractor’s non-
conforming performance or failure to perform the Contract, including expenses, costs and
damages described in the Uniform Terms and Conditions.
9.0 Contract Termination
9.1 Cancellation for
Conflict of Interests
Pursuant to A.R.S. § 38-511, the State may cancel this Contract within three (3) years after
Contract execution without penalty or further obligation if any person significantly involved in
initiating, negotiating, securing, drafting or creating the Contract on behalf of the State is or
becomes at any time while the Contract or an extension of the Contract is in effect an employee
of or a consultant to any other party to this Contract with respect to the subject matter of the
Contract. The cancellation shall be effective when the Contractor receives written notice of the
cancellation unless the notice specifies a later time. If the Contractor is a political subdivision of
the State, it may also cancel this Contract as provided in A.R.S. § 38-511.
9.2 Gratuities The State may, by written notice, terminate this Contract, in whole or in part, if the State
determines that employment or a Gratuity was offered or made by the Contractor or a
representative of the Contractor to any officer or employee of the State for the purpose of
influencing the outcome of the procurement or securing the Contract, an amendment to the
Contract, or favorable treatment concerning the Contract, including the making of any
determination or decision about contract performance. The State, in addition to any other rights
or remedies, shall be entitled to recover exemplary damages in the amount of three times the
value of the Gratuity offered by the Contractor.
9.3 Suspension or
Debarment
The State may, by written notice to the Contractor, immediately terminate this Contract if the
State determines that the Contractor has been debarred, suspended or otherwise lawfully
prohibited from participating in any public procurement activity, including but not limited to,
being disapproved as a subcontractor of any public procurement unit or other governmental
body. Submittal of an offer or execution of a contract shall attest that the contractor is not
currently suspended or debarred. If the contractor becomes suspended or debarred, the
contractor shall immediately notify the State.
9.4 Termination for
Convenience
The State reserves the right to terminate the Contract, in whole or in part at any time when in
the best interest of the State, without penalty or recourse. Upon receipt of the written notice,
the Contractor shall stop all work, as directed in the notice, notify all subcontractors of the
Request for Proposal
Solicitation No.
ADSPO17-00007024
Description:
Uninterruptible Power Supply: New Equipment Service and
Maintenance
Arizona Department of Administration
State Procurement Office
100 N 15th Ave., Suite 201
Phoenix, AZ 85007
PART 2 of the Solicitation Documents:
Version 9 (01-JUL-2013)
SECTION 2-D: Uniform Terms and Conditions
Page 47 of 47 2
Available online at: Procure.AZ.gov
effective date of the termination and minimize all further costs to the State. In the event of
termination under this paragraph, all documents, data and reports prepared by the Contractor
under the Contract shall become the property of and be delivered to the State upon demand.
The Contractor shall be entitled to receive just and equitable compensation for work in progress,
work completed and materials accepted before the effective date of the termination. The cost
principles and procedures provided in A.A.C. R2-7-701 shall apply.
9.5 Termination for
Default
9.5.1. In addition to the rights reserved in the contract, the State may terminate the Contract in
whole or in part due to the failure of the Contractor to comply with any term or condition
of the Contract, to acquire and maintain all required insurance policies, bonds, licenses
and permits, or to make satisfactory progress in performing the Contract. The
Procurement Officer shall provide written notice of the termination and the reasons for it
to the Contractor.
9.5.2. Upon termination under this paragraph, all goods, materials, documents, data and reports
prepared by the Contractor under the Contract shall become the property of and be
delivered to the State on demand.
9.5.3. The State may, upon termination of this Contract, procure, on terms and in the manner
that it deems appropriate, materials or services to replace those under this Contract. The
Contractor shall be liable to the State for any excess costs incurred by the State in
procuring materials or services in substitution for those due from the Contractor.
9.6 Continuation of
Performance Through
Termination
The Contractor shall continue to perform, in accordance with the requirements of the Contract,
up to the date of termination, as directed in the termination notice.
10.0 Contract Claims
10.1 Contract Claims All contract claims or controversies under this Contract shall be resolved according to A.R.S. Title
41, Chapter 23, Article 9, and rules adopted thereunder.
11.0 Arbitration
11.1 Arbitration The parties to this Contract agree to resolve all disputes arising out of or relating to this contract
through arbitration, after exhausting applicable administrative review, to the extent required by
A.R.S. § 12-1518, except as may be required by other applicable statutes (Title 41).
12.0 Comments Welcome
12.1 Comments Welcome The State Procurement Office periodically reviews the Uniform Terms and Conditions and
welcomes any comments you may have. Please submit your comments to: State Procurement
Administrator, State Procurement Office, 100 North 15th Avenue, Suite 201, Phoenix, Arizona,
85007.
End of Section 2-D
End of Part 2
EXHIBIT B
TO
COOPERATIVE SERVICES AGREEMENT
BETWEEN
THE TOWN OF FOUNTAIN HILLS
AND
TITAN POWER, INC.
[Quote or Work Order]
See following pages.
5/4/2022
Mike Ciccarone
Fountain Hills, Town of
16705 E. Avenue of the Fountains
Fountain Hills, AZ 85268
Subject: Equipment and/or Labor Services Proposal
Titan Power Proposal #: 26607
Customer Solicitation # (if applicable):
Dear Mike Ciccarone,
Titan Power is pleased to have the opportunity to submit this proposal for your review and consideration. Enclosed please find Titan Power's proposal, along
with supporting information and documentation for your reference. We have taken great care to be as thorough as possible in our submittal of this proposal.
As an industry leading service provider for critical power and air environments, Titan Power pledges to provide a superior level of service and reliability through
several key differentiating factors:
· Experience - Complete over 50 turnkey critical power and air equipment installations on average every year
· Support - 24 x 7 x 365 Support and Emergency Service
· Brand Neutral, Single-Source Solution - Provide, install and service all major brands of equipment from over 35 different manufacturers
· Competitive Pricing - History of high sales volume with suppliers, passing top-tier level pricing and discounts to the customer
· Culture of Responsiveness - Organization built on providing prompt and efficient response to both customer requests and emergencies
· Audited Safety Program - Ensures strict safety procedures are followed by all
Thank you for your interest in Titan Power as your service provider. We look forward to working with you and Fountain Hills, Town of on your critical power and
air requirements. Should you have any questions or require any additional information please feel free to contact me.
Sincerely,
Jack McKenzie
Jack McKenzie
Account Manager
O: 480-576-7795, x7795
jmckenzie@titanpower.com | www.titanpower.com
7031 West Oakland Street | Chandler, Arizona 85226
toll free: 800.509.6170 | office: 480.968.3191 | fax: 480.968.3111
www.titanpower.com | info@titanpower.com
Contractor Lic.: AZ 228490 | AZ 216136 | CA 884661 | NV 77127
EQUIPMENT &/OR LABOR PROPOSAL
Proposal Number:26607
Corporate Office
7031 W. Oakland St. | Chandler, Arizona 85226
(800) 509-6170 | Office: (480) 968-3191 | Fax: (480) 968-3111
| info@titanpower.com
CUSTOMER ADDRESS EQUIPMENT LOCATION
Attn: Mike Ciccarone
Fountain Hills, Town of Fountain Hills, Town of
16705 E. Avenue of the Fountains 16705 E. Avenue of the Fountains
Fountain Hills, AZ 85268 Fountain Hills, AZ 85268
L/I QTY PART #DESCRIPTION UNIT PRICE EXT. PRICE
1 1.00 UPS1PH Eaton 9PX Series Single Phase Online Rackmount/Tower UPS
5000VA/4500W
208V-120V/208V, 50/60Hz
Input:(1) Terminal block with L6-30P; 6' Cord
Output: (1) L6-30R, (2) L6-20R, (18) 5-20R
4 minutes internal runtime at full load
4-Post Rail Kit
NETWORK-MS Card
Dims (HWD): 10.2"(6U) x 17.3" x 28.4"
Weight: 201 lbs
$5,471.05 $5,471.05
2 3.00 EBMUPS Eaton 9PX 5/6kVA Extended Battery Module
5/6kVA Extended Battery Module
(1) EBM provides XX min runtime @ 3500W load
Dims: 5.1"H (3U) x 17.3"W x 25.4"D each
Weight: 150 lbs
$1,350.05 $4,050.15
3 1.00 RACK Tripp Lite 42U 4-Post Open Frame Rack Cabinet 36" Depth No Sides or Doors $1,178.19 $1,178.19
4 1.00 FOB
DESTINATION
Freight is FOB Destination - Transfer of goods occurs once arrived at customer site
Please thoroughly inspect sensitive electronic equipment and note any damage prior
to signing for the shipment with the driver for claims purposes.
Standard shipping terms - Dock-to-Dock delivery includes:
Site must accommodate a 53’ tractor trailer
Palletized freight delivered to a dock-level facility on a 53’ tractor trailer during regular
business hours.
* Unloading not included/ Ground unloading / delivery with Lift Gate not included*
$762.45 $762.45
5 1.00 AZSTATECONTRA
CT
Pricing per AZ State Contract
ADSP018-176583-2
*Please send Purchase Orders to orders@titanpower.com
SUBTOTAL $11,461.84
SALES TAX $834.55
TOTAL COST $12,296.39
Payment Terms:Shipping:Lead Time:
Net 30 Best Way 2 -3 weeks ARO
QUOTATION NOTES
Electrical, rigging, mechanical or any other trade requiring a contractors license is not included unless specifically stated in quotation scope of work.
Lead time is an estimate based on availability and subject to change.
Shipping is by standard ground method, dock to dock, during normal business hours, unless otherwise stated in proposal.
Returned product must be returned in new condition with original packing and authorized Return Material Authorization (RMA).
Restocking fee and return shipping charged may apply.
By signing customer block below and/or by submitting payment, customer agrees to Titan Power's Terms and Conditions.
Sales Tax, if applicable, is not included in the proposal unless specifically indicated in the above pricing.
Sales Tax, if included, is subject to change based on applicable sales tax laws.
ORDERING INSTRUCTIONS
Purchase Order(s) to be made out to:
Titan Power, Inc.
7031 West Oakland Street
Chandler, Arizona 85226
Purchase Orders can be sent to:
Orders@titanpower.com with a copy to the below Titan Power Representative, or
Titan Power's Corporate Office @ 7031 West Oakland Street, Chandler, Arizona 85226
Please reference the above Proposal # on Purchase Order(s) for efficient processing
Purchase Order must include above Payment Terms and Shipping Terms
Forms of payments accepted: check, all major credit cards*, government P cards*, ACH.
*Payments made by credit cards maybe subject to a 3.5% service charge.
CUSTOMER TITAN POWER
Signature:Signature:Jack McKenzie
Print Name:Print Name:Jack McKenzie
Title: Title Account Manager
Date: Date:5/4/2022
Phone:Phone 480-576-7795 Ext.7795
Email:Email jmckenzie@titanpower.com
TERMS & CONDITIONS
Titan Power - Terms & Conditions - Billable
1.DEFINITIONS: As used in this Service Agreement (“Agreement”): (A) “TPI” shall mean Titan Power, Inc.; (B) “Customer” shall mean the party requesting
Titan Power's services; (C) “The Parties” or “a Party” shall mean either Customer, TPI or both. These terms and conditions, in conjunction with any
specific terms set out on the attached Proposal or order, or in any other document issued by TPI and specified in the attached Proposal, or order, shall
constitute the entire contract between TPI and the Customer. No variation of these Terms and Conditions shall be effective or binding upon TPI unless in
writing and signed by an authorized employee of TPI.
2.PROPOSAL AND PRICES: (A) Proposals are valid for 15 days from the date they are issued. Prices are firm for goods that are on order unless the
shipping date is beyond 6 months from the date the order was placed. All clerical errors are subject to correction; (B) All Proposals, delivery dates and
other agreements are contingent upon strikes, accidents, fire, availability of materials and all other causes beyond our control and dependent upon our
prompt receipt of all details necessary for the execution of customer’s order; (C) All sales are subject to appropriate sales taxes. Sales Tax, if applicable,
may not be included in the proposal unless specifically indicated in the above pricing
3.PARTS REPLACEMENTS: (A) Basic Installation Services are limited to: removal of existing parts, installation of new parts, disposal per local, state and
federal regulations, freight, labor to verify operation of UPS system. Work performed during normal business hours. (M – F, 8:00AM – 5:00PM), unless
otherwise stated in proposal. Basic Site Requirements for Basic Installation Service: standard dock delivery that accommodates a standard size semi-
truck with an onsite forklift or pallet jack (at least 4,000lb capacity), inside staging area large enough for the parts being installed and removed, inside
staging area must be within 50’ of the dock area, UPS room/cabinets must be within 200’ of the staging area, Doorways at least 34” in width, elevators
within easy access and be rated for at least 2,500 lbs. (B) If customer needs a service or has a site requirement that falls outside of the Basic Installation
Services or Basic Site Requirements listed above, Titan Power will provide the customer with an additional quote or modify the original quote to include
the Special Installation Services or Special Site Requirements and if agreed to by the customer, shall be invoiced the additional amounts set forth in the
quote. Please notify your salesperson if you require Special Installation Services or have any other Special Site Requirements for which there will be an
additional charge. (C) Special Installation Services and Special Site Requirements for which there will be additional costs and charges include, but are
not limited to: inside delivery, ground delivery, floor protection, floor loading limitations, delivery path includes stairways, ramps or other obstructions, use
of cranes, exclusive labor requirements deliveries, exclusive labor requirements installations.
4.ACCEPTANCE OF ORDER: Orders based on valid Proposals are subject to acceptance by an authorized employee of TPI. TPI is not obliged to execute
any order received other than in writing.
5.PAYMENT TERMS: Standard payment terms are net thirty (30) unless otherwise stated in the proposal. All orders are subject to down payment when
placing order with payments made when equipment is shipped and delivered. Payments Terms may differ based on credit review and approval. New
customers are subject to credit review and approval before Payment Terms are established. Payments made by credit card or purchasing card are
accepted for orders under $50,000.
6.DELIVERY AND SHIPMENT POLICY: Delivery of equipment does not include rigging unless otherwise stated in the proposal. Delivery of the equipment
to a common carrier at any TPI location shall constitute delivery to the purchaser and, regardless of freight payment, title and all risk shall pass to
purchaser at that time. TPI cannot be held responsible for damaged goods that were delivered, in good condition to the carrier. TPI shall assist customer
in making a claim and shall expedite replacement materials to satisfy the claim. Claims for shortages or other errors must be made within ten (10) days
from the date of shipment. TPI will communicate the anticipated ship date when acknowledging the status of an order. This is an estimated date, and
shall not constitute a term of any contract. TPI reserves the right to invoice and the customer shall pay for the value of the goods and/or storage fees in
the event shipment is delayed at the Customer’s request beyond this date. Title shall pass to the Customer on the date of invoice, and as such shall be
responsible for any insurance coverage. International orders must be shipped to a USA address.
7.EQUIPMENT WARRANTY: TPI is a reseller of manufactured equipment. Equipment sold by TPI will have a manufacturer warranty. In the event of a
claim of defective equipment, notice of claim must be submitted to manufacturer as outlined in the manufacturer’s warranty policy.
8.LIMITATION OF DAMAGES: TPI shall not be liable for any claim arising from special, indirect or consequential damages nor from any loss of production
or other losses resulting from the failure of equipment. The company shall not be responsible or liable for delays or failures to deliver due to causes
beyond our control such as strikes, fire, failure of machinery, unavailability of materials or transportation or acts of God.
9.CANCELLATION: An order accepted by TPI may be cancelled only with TPI’s approval and upon terms safeguarding TPI from loss. A restocking fee
may be incurred by Customer for cancelled orders.
10.PRODUCT RETURNS: Any customer requested changes or cancellations will result in additional charges and restocking fees. TPI will not accept non-
warranty product returns. Claims must be made within thirty (30) days of receipt of order directly to the manufacturer or the equipment. All returns will be
subject to inspection. All returns must be shipped pre-paid and customer may be responsible for shipping fees.
11.DEFAULT: In the event either party shall breach any of the material terms and conditions of this agreement, the aggrieved party shall notify the other
party. The offending party shall have ten (10) days to correct the identified breach. In the event such breach is not rectified to the satisfaction of the
aggrieved party, then the aggrieved party shall be entitled to declare the agreement null, void and of no further force and effect. In the event of
termination hereof, the Customer shall be obligated to pay TPI for all Parts and Service already provided and shall continue to observe the limitations set
forth in this agreement. These terms and conditions and any disputes arising thereof shall be governed by the State of Arizona, Maricopa County.
12.MODIFICATIONS/WAIVERS: Reference to Customer's request for proposal or other documents is made part of this Agreement only to the extent such
items or terms are consistent with this Agreement. No agent or employee of TPI shall have authority to waive any clause of this Agreement unless
approval is obtained from TPI in writing and signed by an authorized representative of TPI.
13.ASSIGNMENT/DELEGATION: Neither Customer nor TPI may assign this Agreement or any of its rights hereunder without prior written consent of the
other. Such consent shall not be unreasonably withheld. This Agreement shall be binding on the parties hereto, their heirs, successors and assigns.
14.SEVERABILITY: If any section or part of these Terms and Conditions is or becomes illegal, unenforceable or invalid, then such part or section shall be
struck from these Terms and Conditions and the remainder of this Agreement shall remain in full force and effect.