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Master Lease Schedule Software Only
MASTER LEASE AGREEMENT SCHEDULE NO.
(SOFTWARE AND/OR SERVICES ONLY FINANCING SCHEDULE)
THIS SCHEDULE IS SUBJECT TO AND INCORPORATES THE TERMS AND CONDITIONS OF MASTER LEASE AGREEMENT NO. AND ANY AMENDMENTS, IF APPLICABLE, ("Agreement") DATED BETWEEN PHAROS FINANCIAL SERVICES L.P. ("Lessor") AND ("Lessee"). If the entity named on this Schedule is not the Lessee named under the Agreement, then such entity, if an affiliate of Lessee approved in writing in advance by Lessor, shall be deemed the Lessee under this Schedule.
Lessor hereby agrees to lease and/or make available to Lessee subject to the terms, conditions and provisions set forth in this Schedule and in the Agreement, the Products described below. Any capitalized term used herein and not defined herein shall have the meaning ascribed to it in the Agreement.
PRODUCT DESCRIPTION AND LOCATION: See below or Exhibit “A” attached to and made a part hereof.
PRODUCT SELLER:
Product
Description
Product
Location
Lessee Purchase
Order No.
Rent* Primary Term
(Mos.)
Commencement
Date**
See Exhibit 'A' See Exhibit 'A'
Total Product Acquisition Cost:
Rent is payable: in
Interest Rate:
Payment Period:
*Lessee is responsible for applicable taxes, shipping and other amounts as described in the Agreement, and, with the first payment of Rent, any prorated Rent if applicable. Such amounts are further described in Exhibit “A”.
**The Commencement Date may be extended for one Payment Period until the Schedule is returned in accordance with the terms stated in the Agreement. Lessor may charge Lessee prorated Rent accruing from the Acceptance Date to the Commencement Date, as such date is finally determined.
NATURE OF SCHEDULE: Lessee and Lessor acknowledge that this Schedule is strictly a financing arrangement providing for the repayment of a lease purchase in the amount of the Lessor's Basis (as defined below) made by Lessor to Lessee by performing Lessee's payment obligations to the Product Seller under Lessee's Purchase Order referenced above and is to be repaid as and when set forth herein. The amount of the Rent payments provided for herein represents payments of principal and interest on such lease purchase.
PRODUCTS CONSISTING SOLELY OF SOFTWARE AND/OR SERVICES: The Products covered by this Schedule consist exclusively of the Software and/or services identified on Exhibit A; that Lessee hereby acknowledges have been delivered, installed, and accepted by Lessee. Lessee and Lessor agree that (i) any language in the Agreement pertaining to Lessor's ownership of the Products and (ii) the following sections of the Agreement shall not apply to this Schedule: 7 (Return); 9 (Alterations); 13(a)(ii) (in so far as it purports to provide Lessor a right to sell, lease, or otherwise dispose of any Products that would violate the underlying license, service or similar agreement); and, 16 (Ownership; Liens and Encumbrances; Labels). Notwithstanding the foregoing, Lessee acknowledges that the remaining terms and conditions of the Agreement shall apply to this Schedule including without limitation: Sections 4 (Rent; Taxes; Payment Obligation); 5
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Master Lease Schedule Software Only
(Licensed Materials); 11 (Warranty Assignment; Exclusion of Warranties; Limitation of Liability; Finance Lease); 15 (Indemnification); and, 21(i) (Limit on Interest Charges). This Schedule shall terminate upon the expiration of the Primary Term without extension or renewal; provided, however, that such termination of the Schedule shall not effect obligations of Lessee accruing prior to the termination.
ADDITIONAL PROVISIONS: For purposes of this Schedule, the “Lessor's Basis” shall consist of the following amounts: (i) the Total Product Acquisition Cost set forth above; plus (ii) all other amounts that become due and owing under this Schedule that are not included in the amounts paid to Lessor pursuant to clause (i). As security for Lessee's obligations hereunder, Lessee grants Lessor, a first-priority security interest in all of Lessee's rights and interest in and to the Products (including with respect to any Software or services, Lessee's right to use the Software and right to obtain the services) and all proceeds thereof (including without limitation any refunds with respect to the Software and services financed under this Schedule (each a “Refund”) that are received by Lessee or that Lessee has a right to receive), free and clear of all security interests, liens or encumbrances whatsoever. Upon Lessor's written instructions after an Event of Default with respect to this Schedule, Lessee agrees to (a) immediately cease using the Software and obtaining the services, (b) deinstall and delete all copies of the Software from any computer systems owned or controlled by Lessee or used for Lessee's benefit, and (c) provide Lessor with a certificate signed by an authorized representative of Lessee attesting to such cessation of use and services, deinstallation, deletion and destruction. In the event that Lessee shall be entitled to a Refund from the Seller, Lessee authorizes Lessor to deliver a copy of this Schedule to the Seller as evidence of Lessee's consent to Lessor's collection and receipt of the Refund directly; provided, however, nothing herein shall obligate Lessor to pursue Lessee's Refund rights (if any do exist) or modify, excuse or limit Lessee's obligations pursuant to this Schedule that Lessee acknowledges and agrees are absolute and unconditional. Lessor shall apply any Refund actually received by Lessor against the next scheduled Rent payment(s) and all other amounts owed under this Schedule. Lessee agrees that it shall owe any unpaid amounts hereunder remaining after application of such Refund. Finally, notwithstanding anything in the Agreement to the contrary, the Stipulated Loss Value that Lessee may be required to pay Lessor upon an Event of Default under this Schedule shall equal the total sum of the then remaining payments due and unpaid under this Schedule for the Primary Term discounted at the lesser of (x) the discount rate of the Federal Reserve Bank of Chicago on the Commencement Date of this Schedule and (y) the interest rate set forth above.
COMPLETION OF SCHEDULE: Lessee hereby authorizes Lessor to insert or update the serial numbers of the Products as necessary.
If Lessee delivers this signed Schedule, any amendment or other document related to this Schedule or the Master Lease (each a “Document”) to Lessor by facsimile transmission, and Lessor does not receive all of the pages of that Document, Lessee agrees that, except for any pages which require a signature, Lessor may supply the missing pages to the Document from Lessor's database which conforms to the version number at the bottom of the page. If Lessee delivers a signed Document to Lessor as an e-mail attachment, facsimile transmission or by U.S. mail, Lessee acknowledges that Lessor is relying on Lessee's representation that the Document has not been altered. Lessee further agrees that, notwithstanding any rule of evidence to the contrary, in any hearing, trial or proceeding of any kind with respect to a Document, Lessor may produce a tangible copy of the Document transmitted by Lessee to Lessor by facsimile or as an e-mail attachment and such signed copy shall be deemed to be the original of the Document. To the extent (if any) that the Document constitutes chattel paper under the Uniform Commercial Code, the authoritative copy of the Document shall be the copy designated by Lessor or its assignee, from time to time, as the copy available for access and review by Lessee, Lessor or its assignee. All other copies are deemed identified as copies of the authoritative copy. In the event of inadvertent destruction of the authoritative copy, or corruption of the authoritative copy for any reason or as the result of any cause, the authoritative copy may be restored from a backup or archive copy, and the restored copy shall become the authoritative copy. At Lessor's option, this electronic record may be converted into paper form. At such time, such paper copy will be designated or marked as the authoritative copy of the Document.
By signing below, each of the parties hereto agrees to be bound by the terms of the Agreement, this Schedule and the attached Exhibit “A”.
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Master Lease Schedule Software Only
EXECUTED by the undersigned on the dates set forth
below, to be effective as of the Effective Date.
{Lessee Name}
“Lessee”
BY:
NAME:
TITLE:
DATE:
PHAROS FINANCIAL SERVICES L.P.
By: PHAROS FINANCIAL SERVICES, INC. ITS
GENERAL PARTNER
“Lessor”
BY:
NAME:
TITLE:
DATE:
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Validity Opinion Letter - Public
Internal Use - Confidential
SAMPLE VALIDITY OPINION LETTER
TO BE EXECUTED ON COUNSEL'S LETTERHEAD
To:
Ladies and Gentlemen:
We are counsel to (the "Lessee") and, in that capacity, we have examined Master Lease Agreement No. , dated as of , and the Lease Schedule No. to Master Lease Agreement No thereto, dated as of (collectively the "Agreement"), between the Lessee and Dell Financial Services L.L.C. (the "Lessor").
Based on our examination of the Agreement and such other examinations as we have deemed appropriate, we are of the opinion as follows:
(a) The Lessee is an entity duly organized and existing under and by virtue of the authorizing statute or constitutional provisions of the State of ___________________________ and is a state or political subdivision thereof as described in Section 103(a) of the Internal Revenue Code of 1986, as amended, with full power and authority to enter into the Agreement and the transactions contemplated thereby and to perform all of its obligations thereunder;
(b) The Agreement has been duly authorized, executed and delivered by ________________________*, ________________________ of the Lessee by proper action of its governing board at a meeting duly called, regularly convened and attended throughout by the requisite majority of the members thereof or by other appropriate official approval, and all requirements have been met and procedures have occurred in order to ensure the validity and enforceability of the Agreement against the Lessee;
(c) The Agreement constitutes the valid, legal and binding obligation of the Lessee, enforceable in accordance with its terms;
(d) No approval, consent or withholding of objection is required from any federal, state or local governmental authority or instrumentality with respect to the entering into or performance by the Lessee of the Agreement and the transactions contemplated thereby;
(e) Lessee has complied with any applicable public bidding requirements and other applicable state and federal laws in connection with the Agreement and the transactions contemplated thereby;
(f) The entering into and performance of the Agreement will not violate any judgment, order, law or regulation applicable to the Lessee or result in any breach of, or constitute a default under, any instrument to which the Lessee is a party or by which it or its assets may be bound, or result in the creation of any lien, charge, security interest or other encumbrance upon any assets of the Lessee or on the Products, other than those created by the Agreement;
(g) The Products are tangible personal property and when subject to use by the Lessee will not be or become fixtures or real property under the laws of the State of ___________________________;
(h) There are no actions, suits, proceedings, inquiries or investigations, at law or in equity, before or by any court, public board or body, pending or threatened against or affecting, nor to the best of our knowledge and belief is there any basis therefor, which, if determined adversely to Lessee, will have a material adverse effect on the ability of the Lessee to fulfill its obligations under the Agreement; and
(i) Lessee has, in accordance with the requirements of law, fully budgeted and appropriated sufficient funds for Lessee's current Fiscal Period to make the Rent payments scheduled to come due during Lessee's current Fiscal Period and to meet its other obligations under the Agreement for the current Fiscal Period, and such funds have not been expended for other purposes.
This opinion is delivered to the addressee for its benefit and the benefit of its assigns for the purpose contemplated by the Agreement.
Very truly yours,
*Authorized Signatory of Lessee under the Agreement.
Dell EMC Master Flexible Consumption Agreements
and Schedules
Proprietary to Dell Technologies
DELL EMC SLED MFCA Rev 20201005 - 1 CONFIDENTIAL
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Dell EMC APEX Flex on Demand (FOD) – Public Sector Terms Only
This Exhibit states the public sector terms that apply specifically to the APEX Flex on Demand (FOD) offering for consumption-based as-a-service. The General Terms are incorporated by reference into this Exhibit, which is the public sector Master Flexible Consumption Agreement and sample Flex on Demand (FOD) Schedule(s). If there is a conflict between this Exhibit and the General Terms, this Exhibit controls.
This Exhibit is comprised of the following documents, which are hereby incorporated by referenced and attached on the following pages:
1. Master Flexible Consumption Agreement (MFCA) – Public Sector Only
2. Flex on Demand (FOD) Schedule – Public Sector Only
Dell - Internal Use - Confidential
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Internal Use - Confidential
MASTER FLEXIBLE CONSUMPTION AGREEMENT
APEX FLEX ON DEMAND TERMS AND CONDITIONS – PUBLIC SECTOR ONLY
For DELL EMC Use Only
Contract ID
MASTER FLEXIBLE CONSUMPTION AGREEMENT – U.S. STATE & LOCAL GOVERNMENT This Master Flexible Consumption Agreement (this “Master Agreement” or “MFCA”) is made effective as of ___________________ (the “Effective Date”) between the following parties:
EMC Corporation (“Dell EMC”) Xxxxxxxxxxxxxx (“Customer”) 176 South Street And Xxxxxxxxxxxxx
Hopkinton, MA 01748 Xxxxxxxxxxxxxxxx
Email for Legal Notices: [email protected] Email for Legal Notices:
This MFCA governs Customer's access to and use of a configuration of Deployed Capacity on a Flexible Consumption basis at an agreed Customer location, as described in one or more separately executed Flex Consumption Schedules (the “Schedule(s)”). This MFCA shall govern each Schedule (including any related purchase order) that references this MFCA.
1. DEFINITIONS.
A. “Billing Period” means the period of time identified on a Schedule for which DELL EMC will invoice Customer for its Flexible Consumption.
B. “Customer Data” means all data stored on the
Deployed Capacity by or on behalf of Customer or its end users and information derived from such data, including all file layouts and records associated therewith). As between Customer and DELL EMC, Customer Data is Customer’s
Confidential Information.
C. “Documentation” means the then-current, generally
available, written user manuals and online help and guides provided by DELL EMC for Deployed Capacity.
D. “Flexible Consumption” means the amount of
Customer’s usage of the Deployed Capacity, as it may vary from time to time, measured pursuant to a description and metrics identified on the Schedule.
E. “Flexible Consumption Fee” means, for a particular
Billing Period, (i) the fee for the Monthly Committed
Capacity, and (ii) the fee charged by DELL EMC for
Customer’s Flexible Consumption above the Monthly
Committed Capacity, calculated in accordance with the
pricing set forth in the Schedule.
F. “Flexible Consumption Period” means the time period
identified as such on a Schedule, and any DELL EMC
approved extension(s) thereto.
G. “Installation Site” means the ship-to address or other location identified as such on the Schedule as the site of installation and/or use of a Deployed Capacity, or a
subsequent location approved by DELL EMC.
H. “Monthly Committed Capacity” means the amount of
capacity the Customer commits to paying for each monthas specified in a Schedule regardless of it actual consumption of capacity.
I. “Deployed Capacity” means collectively:
(a)“Equipment” (which is EMC-branded or Dell-branded
hardware that DELL EMC provides to Customer under this
Master Agreement); and (b) “Software” (any EMC-
branded or Dell-branded programming code licensed to
Customer as a standard product, also including microcode, firmware and operating system software), as more
specifically identified on a Schedule. The Deployed
Capacity exclude Third Party Products.
J. “Prime Contract” means, if applicable, the contract (Prime Contract) and any applicable purchase order, task order or delivery order between Customer and the state or local government entity for the Deployed Capacity and
Support Services described in an applicable Schedule
issued under this Agreement.
K. “Return” of Deployed Capacity means the earlier to
occur of (a) DELL EMC taking possession of the Deployed Capacity at the Installation Site, or (b) DELL EMC receiving and accepting a return of the Deployed Capacity.
L. “Support Services” mean services for the support and maintenance of Deployed Capacity as described in the
Applicable Schedule.
M. “Third Party Deployed Capacity” means hardware,
software, or services that are not “Dell” branded, “EMC” branded, or “DELL EMC” branded.
N. “Warranty Period” means for a specific Deployed
Capacity, the period of warranty coverage listed at:
https://www.delltechnologies.com/content/dam/digitalasset
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Internal Use - Confidential Internal Use - Confidential s/active/en/unauth/manual-warranty-informations/h4276-
emc-prod-warranty-maint-table.pdf.
2. SCHEDULES, PURCHASING, FEES AND PAYMENT.
A. Schedules. The description of the Deployed Capacity, Support Services, and related pricing are as stated in the applicable Schedule. The product specific terms informs Customer of product-specific use rights and restrictions, unit of measure (if any), and the applicable maintenance (support) obligations.
B. Ordering. Customer indicates its approval of a specific Schedule by signing it and issuing a purchase order, task order or delivery order pursuant to the Prime Contract, if applicable, to DELL EMC that incorporates by reference in its entirety the terms and conditions of such Schedule and this Agreement. DELL EMC indicates its approval of
Customer’s purchase order by (i) counter-signing a
Schedule and any purchase order, task order or delivery order, if applicable, executed by Customer and (ii) shipping the applicable Deployed Capacity to Customer.
C. Authorization to Monitor; Flexible Consumption
Fees. During the Flexible Consumption Period, Customer shall pay a Flexible Consumption Fee calculated in
accordance with pricing and frequency set forth on and
defined in the applicable Schedule. DELL EMC is
authorized to periodically monitor the Flexible Consumption in order to calculate the applicable Flexible Consumption Fee. DELL EMC may conduct such activity through the use of electronic means and/or on-site inspection by DELL EMC personnel and do so only in order to authenticate Customer as the user of the Flexible Consumption and verify
Customer’s usage levels. Customer is responsible for
providing and maintaining the equipment (a physical server or virtual machine) necessary to run storage utilization scripts and to enable electronic communications between the Deployed Capacity and DELL EMC. Customer
authorizes DELL EMC to store at the Installation Site, or load onto Deployed Capacity used for electronic
communications, such equipment and programming as
may be needed by DELL EMC to track usage levels or
perform any Support Services for Deployed Capacity and
shall not disable or interfere in the operation thereof.
Customer shall (i) not copy or make any use thereof
whatsoever; and (ii) protect such from disclosure to any third party and give DELL EMC reasonable access thereto.
DELL EMC shall cooperate with Customer to minimize the
impact of any DELL EMC on-site inspection to Customer’s operations.
D. Payment and Assignment. DELL EMC or if
applicable, its assignee, shall invoice Customer monthly.
Customer shall pay invoices in full and in the same currency as the invoice within thirty (30) days after the date of invoice, with interest accruing thereafter at the lesser of
1.5% per month or the highest lawful rate under any
applicable Prompt Payment Act, if any. No credit cards will be accepted as a form of payment. Payments to DELL
EMC’s assignee of any amounts due shall not be subject to reduction or setoff. Subject to any right of non-appropriation pursuant to Section 10.B herein, Customer’s obligation to pay the Monthly Flexible Consumption Fee for the Flexible Consumption Period is absolute, unconditional and non-
cancellable and shall not be subject to any abatement,
reduction, set off, defense, delay or counterclaim for any reason whatsoever.
E. Taxes. The charges due hereunder and any other items provided by DELL EMC are exclusive of, and Customer
shall pay or reimburse DELL EMC for, all value added
(VAT), sales, excise, withholding, state or other local governmental taxes, property taxes, use taxes and any
other taxes, levies, customs and duties resulting from a Customer purchase order, except for taxes based on DELL EMC’s net income. If Customer is required to withhold
taxes, then Customer will forward any withholding receipts to DELL EMC. Unless otherwise provided on Customer’s
purchase order, invoices shall be sent to the Customer
contact point or Customer’s Accounts Receivable
department, as specified on the applicable Schedule.
F. Interruption of Monitoring Capabilities. For
Schedules in which Flexible Consumption varies based
upon usage or another metric, if, for more than five (5) days of any calendar month, DELL EMC is unable to monitor to determine the applicable Flexible Consumption Fee due to (i) any action by anyone other than DELL EMC, or (ii) a failure of any communications equipment provided by
Customer that is used for purposes of monitoring, DELL
EMC shall invoice, and Customer shall pay, a Flexible
Consumption Fee for the affected Billing Period(s) that shall be based on the Flexible Consumption during the previous Billing Period; provided, however, that if DELL EMC is
unable to monitor for a period of more than thirty (30) days, DELL EMC shall invoice, and the Customr shall pay, either (a) the maximum capacity of the Deployed Capacity, or (b) such other maximum rate described in the Schedule, if
applicable. If DELL EMC is unable to monitor the Flexible Consumption due to any failure which is caused by DELL
EMC (e.g. failure of the modem, software or other
equipment used by DELL EMC to monitor Customer’s
usage), the amounts owed by Customer for such outage
period shall be based on Customer’s Flexible Consumption during the previous Billing Period. DELL EMC shall
promptly notify Customer of an inability to electronically and or physically access the Deployed Capacity, as applicable, and work cooperatively to reestablish access.
3. DELIVERY, RISK, TITLE, USE AND RETURN.
A. Installation Site Preparation. On or before arrival of the Deployed Capacity, Customer shall arrange
(i) appropriate space at the Installation Site; (ii) the necessary environment (power, cooling, etc.) required to support and operate the Deployed Capacity; and
(iii) servers and network connectivity required to support Deployed Capacity.
B. Deployed Capacity Shipment. DELL EMC shall
deliver the Deployed Capacity by common carrier to the
Installation Site. Software may be provided by (i) shipment
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of physical media; or (ii) electronic download (when so offered by DELL EMC).
C. Risk of Loss. DELL EMC shall bear the entire risk of loss, theft, damage or destruction with respect to the DELL EMC Deployed Capacity until the time of arrival of the
Deployed Capacity at the Installation Site(s) and Customer shall bear such risk from such time on until the Deployed Capacity is Returned. If any loss, theft, damage or
destruction to the Deployed Capacity occurs during the time Customer bears such risk, DELL EMC shall be relieved of its Flexible Consumption obligations to the extent such event impacts DELL EMC’s ability to provide such Flexible Consumption until such time as the Deployed Capacity is repaired or replaced. Charges shall continue to accrue
during this period of such interruption. If Deployed Capacity is materially damaged, stolen or destroyed, Customer shall promptly notify DELL EMC.
D. Customer Insurance Coverage. Subject to any
applicable law or regulation to the contrary, Customer must insure the Deployed Capacity (with a reputable insurance company) against all: (a) liability whatsoever to any third party arising directly or indirectly out of Customer’s
selection, possession or use of the Deployed Capacity, and (b) loss or damage to the Deployed Capacity from all
insurable risks for the full cost of replacing it, and (c) other risks in respect of which a prudent owner or operator of Deployed Capacity of the same nature as the Deployed
Capacity would normally insure such Deployed Capacity. In regard to (a) and (b), DELL EMC will be named as co-
insured and loss payee respectively, unless otherwise
prohibited by law. Upon DELL EMC’s prior written consent, Customer may meet the above insurance requirements
with its existing self-insurance program, as provided under applicable law. Upon DELL EMC’s request Customer must
show DELL EMC evidence that the insurance required
under this Master Agreement is in place in respect of the relevant Schedule(s). Customer must immediately notify
DELL EMC of any loss claim and Customer must not settle any claims without DELL EMC’s agreement.
E. Personal Property and Identification. Title to
Deployed Capacity provided by DELL EMC pursuant to any
Schedule remains with DELL EMC at all times and
Customer shall have no right or interest in such Deployed Capacity except as provided in this Master Agreement and related Schedule. All Deployed Capacity shall remain
personal property of DELL EMC notwithstanding the
manner in which such may be attached or affixed to realty.
At any time, Customer shall (i) at request of DELL EMC, legibly mark each item of Equipment in a reasonably
prominent location with a label, disc or other marking
stating that the Equipment is owned by DELL EMC; and
(ii) not remove such without the prior written consent of DELL EMC. Customer may not change the Installation Site without DELL EMC’s prior written consent. Customer shall give DELL EMC immediate written notice of any attachment or judicial process affecting the Deployed Capacity or DELL EMC’s ownership of which Customer becomes aware. In
case the Equipment is installed at a third party Installation Site, Customer undertakes to notify in writing such third party that DELL EMC is the owner of the Equipment and
that such Equipment (i) can not be treated as a fixture or fitting forming part of the third party property (ii) can not be seized by such third party in distress for monies owed by the Customer to such third party. Customer undertakes to guarantee that, at any time during the course of any
Equipment applicable Schedule, DELL EMC have the right
to enter the third party Installation Site to inspect the Equipment and to retake possession of the Equipment on
expiry or termination of any Schedule.
F. Ownership of Customer Data. All Customer Data,
shall remain the responsibility and property of Customer.
The parties acknowledge and agree that DELL EMC does
not handle, process, or direct the use of Customer Data.
G. Return of Deployed Capacity; Data Migration. Prior
to any Return of Deployed Capacity, including in case of expiration or termination of the corresponding Schedule, Customer must completely migrate and erase (by use of a method that does not cause damage to the Deployed
Capacity) its Customer Data and establish a mutually
convenient date, generally coinciding with the end of a Billing Period, when the Deployed Capacity will be
Returned to DELL EMC. Customer is liable for any Return costs and shall reimburse DELL EMC for the reasonable
value of any Deployed Capacity that is not Returned or is Returned in a condition that evidences damage in excess of reasonable wear and tear.
4. LICENSE TERMS. License Grant. Customer is granted
a non-exclusive, non-transferable license to use the
Software and the Documentation during the Flexible
Consumption Period solely for Customer's internal
business operations, and, when so indicated on the
applicable Schedule, for delivery of services to its end users. Customer’s rights to use the Software provided by DELL EMC during the Flexible Consumption Period are
governed by the terms of the Agreement and the terms of the applicable end-user license agreement. Unless
different terms have been agreed between the parties, the terms posted on www.dell.com/eula for the relevant
Software product family and effective as of the date of the applicable Quote shall apply taking into account the
character of this Master Agreement. DELL EMC will provide a hard copy of the applicable terms upon request. Unless expressly otherwise agreed, microcode, firmware or
operating system software required to enable the
Equipment with which it is shipped to perform its basic or enhanced functions, is licensed for use solely on such
Equipment item.
5. WARRANTY.
A. DELL EMC Warranty. During the Warranty Period,
DELL EMC will maintain a Deployed Capacity’s ability to
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Internal Use - Confidential Internal Use - Confidential perform substantially in accordance with the related
Documentation. Customer shall promptly provide DELL
EMC with written notice of any material defect of which it becomes aware. DELL EMC shall remedy such defect
within thirty (30) days of receipt of notice (the “Cure Period”). If DELL EMC fails to cure such defect within the Cure Period, DELL EMC's entire liability and Customer's exclusive remedy shall be for DELL EMC to substitute the defective Deployed Capacity with an identical or equivalent Deployed Capacity model.
B. Exclusions. DELL EMC shall not be responsible for,
and shall have the right to charge Customer for, and
Customer shall promptly pay any charges for, Deployed
Capacity related problems that arise from (i) accident or neglect by Customer or any third party; (ii) any third party items or services with which the Deployed Capacity is used or other causes beyond DELL EMC’s control;
(iii) installation, operation or use not in accordance with DELL EMC’s instructions or the applicable Documentation; (iv) use in an environment, in a manner or for a purpose for which the Deployed Capacity was not designed;
(v) modification, alteration or repair by anyone other than DELL EMC or its authorized representatives; or (vi) in case of Equipment only, causes attributable to normal wear and tear. DELL EMC has no obligation whatsoever for Software installed or used beyond the licensed use, for Equipment which was moved from the Installation Site without DELL EMC’s consent or whose original identification marks have been altered or removed.
C. No Further Warranties; Disclaimer. EXCEPT AS
EXPRESSLY STATED HEREIN, AND TO THE MAXIMUM
EXTENT PERMITTED BY APPLICABLE LAW, WITH
REGARD TO DEPLOYED CAPACITY, SUPPORT
SERVICES OR ANY OTHER ITEMS OR MATTERS
ARISING HEREUNDER, DELL EMC (INCLUDING ITS
SUPPLIERS) MAKES NO OTHER EXPRESS
WARRANTIES, WRITTEN OR ORAL, UNDER THIS
MASTER AGREEMENT AND DISCLAIMS ALL IMPLIED
WARRANTIES. INSOFAR AS PERMITTED UNDER
APPLICABLE LAW, ALL OTHER WARRANTIES ARE
SPECIFICALLY EXCLUDED, INCLUDING, BUT NOT
LIMITED TO, THE IMPLIED WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, TITLE AND NON-INFRINGEMENT, AND ANY
WARRANTY ARISING BY STATUTE, OPERATION OF
LAW, COURSE OF DEALING OR PERFORMANCE, OR
USAGE OF TRADE. DELL EMC AND ITS SUPPLIERS DO
NOT WARRANT THAT SOFTWARE WILL OPERATE
UNINTERRUPTED OR THAT IT WILL BE FREE FROM
DEFECTS OR THAT IT WILL MEET CUSTOMER’S
REQUIREMENTS.
D. Customer Warranties.
(i). Validity and Documentation. Customer represents,
warrants and covenants to DELL EMC and will provide to
DELL EMC at DELL EMC’s request all documents deemed
necessary or appropriate by DELL EMC, including
Certificates of Insurance, financial statements, Secretary or Clerk Certificates, essential use information or documents (such as affidavits, notices and similar instruments in a form satisfactory to DELL EMC) and Opinions of Counsel (in
substantially such form as provided to Customer by DELL EMC and otherwise satisfactory to DELL EMC)(together
“Documentation”) to the effect that, as of the time Customer enters into this Agreement and each Schedule that:
(a) Customer is an entity duly organized and
existing under and by virtue of the authorizing statute or constitutional provisions of its state and is a state or political subdivision thereof as described in Section 103(a) of the Internal Revenue Code of 1986, as amended, and the
regulations promulgated thereunder as in effect and
applicable to the MFCA or any Schedule, with full power and authority to enter into this MFCA and any Schedules and perform all of its obligations under the Schedules;
(b) The MFCA and each Schedule have been
duly authorized, authenticated and delivered by Customer by proper action of its governing board at a regularly
convened meeting and attended by the requisite majority of board members, or by other appropriate official
authentication, as applicable, and all requirements have been met and procedures have occurred in order to ensure the validity and enforceability of this MFCA and each
Schedule against Customer;
(c) This MFCA and each Schedule constitute the
valid, legal and binding obligations of Customer,
enforceable in accordance with their terms;
(d) No other approval, consent or withholding of
objection is required from any federal, state or local
governmental authority or instrumentality with respect to the entering into or performance by Customer of the MFCA or any Schedule and the transactions cont emplated
thereby;
(e) Customer has complied with such public
bidding requirements and other state and federal laws as may be applicable to the MFCA and any Schedule and the
acquisition by Customer of the Deployed Capacity;
(f) The entering into and performance of the
MFCA or any Schedule will not (i) violate any judgment, order, law or regulation applicable to Customer; (ii) result in any breach of, or constitute a default under, any instrument to which the Customer is a party or by which it or its assets may be bound; or (iii) result in the creation of any lien, charge, security interest or other encumbrance upon any assets of DELL EMC or on the Deployed Capacity, other
than those created pursuant to this MFCA;
(g) There are no actions, suits, proceedings,
inquiries or investigations, at law or in equity, before or by any court, public board or body, pending or threatened
against or affecting Customer, nor to the best of Customer’s knowledge and belief is there any basis therefor, which if determined adversely to Customer will have a material
adverse effect on the ability of Customer to fulfill its obligations under the MFCA or any Schedule;
(h) The Deployed Capacity is essential to the
proper, efficient and economic operation of Customer or to the services which Customer provides to its citizens.
Customer expects to make immediate use of the Commited
Capacity, at a minimum, for which it has an immediate need that is neither temporary nor expected to diminish during
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the applicable Flexible Consumption Period. The Deployed Capacity will be used for the sole purpose of performing one or more of Customer’s governmental or proprietary
functions consistent within the permissible scope of
Customer’s authority; and
(i) Customer has, in accordance with the
requirements of law, fully budgeted and appropriated
sufficient funds to make all Flexible Consumtion Fees and other obligations under this MFCA and any Schedule during the current Fiscal Period, and such funds have not been expended for other purposes.
E. Operating Environment Warranty. Customer shall, at
its expense, operate the Deployed Capacity with
reasonable care and in accordanc e with the
Documentation, and keep the Deployed Capacity located
at the Installation Site free and clear from any liens or encumbrances. Customer shall operate and maintain a
data back-up system in its data center environment.
Customer shall provide for a daily back -up process
including backing up data before performance of any
remedial, upgrade or other works on Customer’s production systems.
6. INDEMNITY.
A. IP Indemnity. DELL EMC will: (a) defend Customer
against any third party claim that Deployed Capacity or Support Services (but excluding Third Party Products and open source software) infringe that party’s patent,
copyright or trade secret enforceable in the country where Customer acquired the Deployed Capacity from DELL
EMC (“Claim”); and (b) indemnify Customer by paying: (1) the resulting costs and damages finally awarded against Customer by a court of competent jurisdiction to the extent that such are the result of the third party Claim; or (2) the amounts stated in a written settlement negotiated and
approved by DELL EMC. In addition, should any
Deployed Capacity or Support Service become, or in
DELL EMC’s opinion be likely to become, the subject of
such a Claim, DELL EMC may, at its expense and in its
discretion: (a) obtain a right for Customer to continue using the affected Deployed Capacity or Support Service; (b)
modify the affected Deployed Capacity or Support Service to make them non-infringing; (c) replace the affected
Deployed Capacity or Support Service with non-
infringing substitutes; or (d) notify Customer to return the Deployed Capacity and discontinue Support Services, and, upon receipt thereof, refund the remaining portion, if any, of any pre-paid Flexible Consumption Fee. Except as
otherwise provided by law, this Section 6 states
Customer’s exclusive remedies for any third-party
intellectual property claim relating to Deployed Capacity or Support Services, and nothing in this Master Agreement or elsewhere will obligate DELL EMC to provide any
greater indemnity.
B. Exclusions from Indemnity. DELL EMC has no
obligation under Section 6.1 above: (a) if Customer is in material breach of this Master Agreement; or (b) for any Claim resulting or arising from: (1) any combination,
operation or use of a Deployed Capacity or Support
Service with any other products, services, items or
technology, including Third Party Products and open
source software; (2) use for a purpose or in a manner
for which the Deployed Capacity or Support Service
was not designed, or use after DELL EMC notifies
Customer to cease such use due to a possible or
pending Claim; (3) any modification to the Deployed
Capacity or Support Service made by any person other than DELL EMC or its authorized representatives; (4) any
modification to the Deployed Capacity or Support Service made by DELL EMC pursuant to instructions, designs,
specifications or any other information provided to DELL EMC by or on behalf of Customer; (5) use of any version of a Deployed Capacity when an upgrade or newer
iteration of the Deployed Capacity or Support Service
made available by DELL EMC would have avoided
the infringement; (6) services provided by Customer
(including Claims seeking damages based on any
revenue Customer derives from Customer’s services); or
(7) any data or information that Customer or a third party records on or utilizes in connection with the Deployed
Capacity or Support Services.
C. Indemnification Process. DELL EMC’s duty to defend
and indemnify under this section is contingent upon Customer:
(a) sending prompt written notice of the Claim to DELL EMC and taking reasonable steps to mitigate damages; (b) granting to DELL EMC the sole right to control the defense and
resolution of the Claim; and (c) cooperating with DELL EMC in the defense and resolution of the Claim and in mitigating any damages.
7. LIMITATION OF LIABILITY.
A. Limitation on Direct Damages. EXCEPT FOR
CUSTOMER’S OBLIGATION TO PAY AMOUNTS OWED
HEREUNDER, CUSTOMER’S VIOLATION OF DELL
EMC’S OR ITS AFFILIATES’ INTELLECTUAL PROPERTY
RIGHTS, OR DELL EMC’S INDEMNITY OBLIGATION
STATED IN SECTION 6 ABOVE, EACH PARTY’S TOTAL
LIABILITY FOR ANY CLAIM ARISING UNDER THIS
MASTER AGREEMENT SHALL BE LIMITED TO THE
TOTAL OF THE FLEXIBLE CONSUMPTION FEES FOR
THE DEPLOYED CAPACITY, SUPPORT SERVICES, OR
BOTH TO WHICH THE CLAIM RELATES PAID DURING
THE TWELVE (12) MONTH PERIOD IMMEDIATELY
PRIOR TO THE DATE ON WHICH THE CLAIM IS MADE,
EXCLUDING AMOUNTS RECEIVED AS
REIMBURSEMENT OF EXPENSES OR PAYMENT OF
TAXES ACCRUED.
B. No Indirect Damages. EXCEPT WITH RESPECT TO
CLAIMS REGARDING VIOLATION OF DELL EMC’S
INTELLECTUAL PROPERTY RIGHTS, NEITHER
CUSTOMER NOR DELL EMC SHALL HAVE LIABILITY
TO THE OTHER FOR ANY SPECIAL, CONSEQUENTIAL,
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EXEMPLARY, INCIDENTAL, OR INDIRECT DAMAGES
(INCLUDING, BUT NOT LIMITED TO, LOSS OF
PROFITS, REVENUES, DATA AND/OR USE), EVEN IF
ADVISED OF THE POSSIBILITY THEREOF.
C. Limitation Period. All claims must be made within () the time period specified by applicable law; or (ii) eighteen (18) months after the cause of action accrues if (a) no such period is specified at law; or (b) the applicable law allows the parties to agree to a shorter period than that specified therein.
8. CONFIDENTIALITY.
A. Existing Non-Disclosure Agreement: If Customer and
DELL EMC have a non-disclosure agreement in place as of the date of this Master Agreement, then that non-disclosure agreement shall supersede this Section 8. Where no such non-disclosure agreement exists Section 8.B shall apply.
B. Confidential Information. “Confidential Information” means any information that is marked “confidential” or
“proprietary” or any other similar term or in relation to which its confidentiality should by its nature be inferred or, if disclosed orally, is identified as being confidential at the time of disclosure and, within two (2) weeks thereafter, is summarized, appropriately labeled and provided in tangible form. Confidential Information does not include information that is (i) rightfully in the receiving party’s possession without prior obligation of confidentiality from the disclosing party; (ii) a matter of public knowledge; (iii) rightfully furnished to the receiving party by a third party without confidentiality restriction; or (iv) independently developed by the receiving party without reference to the disclosing party's Confidential Information. Each party shall (a) use Confidential Information of the other party only for the purposes of exercising rights or performing obligations in connection with this Master Agreement or any Schedule or purchase order hereunder; and (b) protect from disclosure to any third parties, by use of a standard of care equivalent to that as used by recipient to protect its own information of a similar nature and importance, and, no less than the use of reasonable care, any Confidential Information disclosed by the other party for a period commencing upon the date of disclosure until three (3) years thereafter, except with respect to (1) Customer Data to which DELL EMC may
have access in connection with the provision of Services, which shall remain Confidential Information until one of the exceptions stated in the above definition of Confidential Information applies; and (2) Confidential Information that constitutes, contains or reveals, in whole or in part, DELL EMC proprietary rights, which shall not be disclosed by the receiving party at any time. Notwithstanding the foregoing, the receiving party and its assignees may disclose
Confidential Information to (A) other companies within the receiving party’s group, advisors, banks and agents for the purpose of fulfilling its obligations or exercising its rights hereunder as long as such group companies, advisors,
banks and agents comply with the foregoing; (B) to any third party for the purposes of raising funds secured on or
collateralised by this Master Agreement and/or any Schedule (whether by way of bank loan or any other form of financing or fundraising or funding process); and (C) to the extent required by law, court order or regulation.
9. TRADE COMPLIANCE.
Customer’s usage of DELL EMC’s Deployed Capacity or
Support Services and access to related technology (the
“Materials”) are for its own use, not for resale, export, re- export, or transfer. Customer is subject to and responsible for compliance with the export control and economic
sanctions laws of the United States and other applicable jurisdictions. Materials may not be used, sold, leased, exported, imported, re-exported, or transferred except as in compliance with such laws, including, without limitation, export licensing requirements, end-user, end-use, and end- destination restrictions, and prohibitions on dealings with sanctioned individuals and entities, including but not limited to persons on the Office of Foreign Assets Control's
Specially Designated Nationals and Blocked Persons List or the U.S. Department of Commerce Denied Persons List.
Customer represents and warrants that it is not the subject or target of, and that Customer is not located in a country or territory (including without limitation, North Korea, Cuba, Iran, Syria, and Crimea) that is the subject or target of, economic sanctions of the United States or other applicable jurisdictions.
10. TERM; APPROPRIATION OF FUNDS; EVENTS OF
DEFAULT; REMEDIES.
A. Master Agreement Term. This Master Agreement
commences on its Effective Date, and unless otherwise
terminated as set forth below, shall terminate for
convenience when a party sends written notice of
termination, which notice shall become effective forty-five (45) days after receipt thereof. Such termination shall not terminate any Schedule already in effect at the time thereof and shall not impact any renewal provisions of such
Schedules. Any provision that by its nature or context is intended to survive any termination or expiration, including but not limited to provisions relating to payment and liability, shall so survive. Unless earlier terminated pursuant to its term, each Schedule shall commence and expire in
accordance with its terms.
B. Appropriation of Funds.
(i) Customer reasonably believes that legally available funds in an amount sufficient to make all Monthly Flexible Consumption Fees during the Flexible Consumption Period defined in Table 3.3 on each applicable Schedule and will do all things lawfully within its power (notwithstanding its right to self rule) to obtain and maintain funds from which Monthly Flexible Consumption Fees may be paid. The
parties intend that the obligation of Customer to pay the Monthly Flexible Consumption Fee and other amounts due
under a Schedule constitutes a current expense of
Customer and is not to be construed to be a debt in
contravention of any applicable constitutional or statutory limitation on the creation of indebtedness or as a pledge of funds beyond Customer’s current Fiscal Period.
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(ii) Customer may terminate a Schedule in whole, but not in part by giving at least sixty (60) days notice prior to the end of the then current Fiscal Period (as defined in the
Customer’s Secretary/Clerk’s Certificate or other such
documentation as reasonably requested by and provided to DELL EMC) certifying that: (1) sufficient funds were not appropriated and budgeted by Customer’s governing body
or will not otherwise be available to continue the Schedule beyond the current Fiscal Period; and (2) that Customer has exhausted all funds legally available for payment of the Monthly Flexible Consumption Fee beyond the current
Fiscal Period. Upon termination of the Schedule,
Customer’s obligations under the Schedule (except those that expressly survive the end of the Flexible Consumption Period) and any interest in the Deployed Capacity shall cease and Customer shall surrender the Deployed
Capacity in accordance with Section 3.F and/or if requested by DELL EMC, assemble the Deployed Capacity in a single location designated by DELL EMC granting DELL EMC the
right to enter the premises where such Deployed Capacity is located for the purpose of repossession; free from all claims by Customer; provided that the parties shall
reasonably cooperate to enable Customer to migrate and
erase its data and for DELL EMC to recover such Deployed Capacity. Customer shall be responsible for the payment of the actual documented price of any component(s) of the DELL EMC Deployed Capacity not returned by Customer
and for any damage to the DELL EMC Deployed Capacity
beyond normal wear and tear. DELL EMC shall take
reasonable steps to protect Customer Data for thirty (30) days after recovery of Deployed Capacity under this
Subsection B.
(iii) Notwithstanding the foregoing, Customer agrees that, without creating a pledge, lien or encumbrance upon funds available to Customer in other than its current Fiscal Period, it will use its best efforts to take all action necessary to avoid termination of a Schedule, including making budget
requests for each Fiscal Period during each applicable
Flexible Consuption Period for adequate funds to meet its obligations hereunder and to continue the Schedule in
force.
C. Events of Default. Notwithstanding Customer’s rights under Section 10 B. to non-appropriate, the occurrence of any of the following in connection with the MFCA, any
Schedule, or any amendments to either of the foregoing
documents, shall constitute an Event of Default:
(i) Customer shall fail to pay the Monthly Flexible
Consumption Fee within thirty (30) days of its due date; (ii) Customer shall fail to perform any provision, covenant, condition or agreement, and such failure shall continue for thirty (30) days after notice thereof; or (iii) bankruptcy, receivership, insolvency, reorganization, dissolution,
liquidation, or other similar proceedings shall be instituted by or against Customer or all or any part of its property under the Federal Bankruptcy Code or other law of the
United States or any state or jurisdiction in which Customer is organized, and it shall consent thereto or shall fail to cause the same to be discharged within sixty (60) days.
D. Remedies. If an Event of Default shall occur, DELL EMC may exercise any one or more of the following remedies:
(i) immediately terminate any or all Schedules; (ii) by notice in writing to Customer, declare immediately due and
payable, and Customer shall be obliged to pay immediately, (1) all past due Monthly Flexible Consumption Fees and
other past due amounts plus (2) as the parties agreed upon pre-estimate of damages and not a penalty, all Monthly
Flexible Consumption Fees for the Monthly Committed
Capacity for the remainder of the Flexible Consumption
Period with clause (2) being discounted to present value using the discount rate of the Federal Reserve Bank of
Chicago on the Commencement Date of the applicable
Schedule and (iii) require Customer to Return any or all Deployed Capacity as provided in Section 3G and/or if
requested by DELL EMC, assemble the Deployed Capacity
in a single location designated by DELL EMC granting
DELL EMC the right to enter the premises where such
Deployed Capacity is located for the purpose of
repossession; free from all claims by Customer; provided that the parties shall reasonably cooperate to enable
Customer to migrate and erase its data and for DELL EMC to recover such Deployed Capacity. Customer shall be
responsible for the payment of the actual documented costs and reasonable attorney’s fees incurred by DELL EMC in
retaking possession of the Deployed Capacity and/or
seeking to recover amounts due. DELL EMC shall take
reasonable steps to protect Customer Data for thirty (30) days after recovery of Deployed Capacity under this
Subsection D.
11. MISCELLANEOUS.
A. Notices. Notice to DELL EMC under this Master
Agreement or any related transaction must be in writing and sent (i) by registered or certified mail, postage prepaid first- class mail with return receipt requested; or (ii) by overnight delivery service with verification of receipt, to the address below; or (iii) by electronic mail to:
[email protected]. All such notices will be
effective upon receipt.
Dell EMC
Attn: Contracts Manager
Dell Legal Department
One Dell Way, Round Rock, TX 78682
B. Entire Agreement. This Master Agreement, applicable Schedule(s) and each purchase order (i) comprise the
complete statement of the agreement of the parties with regard to the subject matter thereof; and (ii) may be
modified only in a writing with evidence of acceptance by both parties. All terms of any purchase order or similar document provided by Customer, that are inconsistent or conflict with this Master Agreement and/or Schedule, shall be null and void and of no legal force or effect,
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Internal Use - Confidential Internal Use - Confidential C. Assignment and Change in Control. The assignment
or transfer, whether by operation of law or otherwise, of a party’s right(s) or delegation of obligation(s) hereunder, shall require the consent of the other party. However, such consent shall not be required of Customer if the assignment or transfer involves (i) assignment by DELL EMC or its
assignee of the right to receive payments and related rights due by Customer (iii) the purchase of all or substantially all of DELL EMC’s assets or any deemed assignment or
transfer by DELL EMC by reason of merger, consolidation, change-in-control or corporate reorganization. DELL EMC may use its direct or indirect subsidiaries or other
sufficiently qualified subcontractors to provide Services to Customer, provided that DELL EMC remains responsible to Customer for the Services’ performance.
D. Governing Law.
This Master Agreement is governed by the laws of the State in which Customer is located. Subject to applicable state and local laws, the exclusive venue for all litigation arising between the parties related to this Agreement and any
Schedules issued hereunder shall be in the federal courts sitting within the State in which Customer is located. BOTH PARTIES HEREBY WAIVE TRIAL BY JURY..
E. Waiver. Failure to enforce a provision of this Master Agreement will not constitute a waiver.
F. Independent Contractors. The parties shall act as
independent contractors for all purposes under this Master Agreement. Nothing contained herein shall be deemed to
constitute either party as an agent or representative of the other.
G. Financial Statements. In addition to providing the
Documentation that may be requested by DELL EMC under
Section 5D(i) above, Customer agrees to furnish
Customer’s financial statements (prepared in accordance with generally accepted accounting principles) and other financial information, relating to a Schedule within five (5) Business Days as DELL EMC may from time to time
reasonably request and subject to the applicable
confidentiality terms as provided for in Section 8.
H. Severability. If any part of this Master Agreement, Schedule, purchase order, or quote is held unenforceable, the validity of all remaining parts will not be affected.
I. Order of Precedence. In the event of a conflict
between the provisions of the documentation related to this MFCA, the order of precedence with respect to the term in conflict will be: (a) the terms of a Schedule (as amended); (b) the terms of this MFCA (as amended) In the event of a conflict between the terms of the MFCA and any Prime
Contract, the MFCA shall prevail.
In Witness Whereof, the parties have caused their duly authorized representatives to execute this Master Agreement as of the Effective Date.
EMC Corporation (“Dell EMC”) CUSTOMER NAME (“Customer”) By:________________________________________ By:________________________________________ Name (Print):_______________________________ Name (Print):_______________________________ Title:_______________________________________ Title:_______________________________________
APEX FLEX ON DEMAND SCHEDULE TO THE MASTER FLEXIBLE CONSUMPTION AGREEMENT SUPPLEMENTAL TERMS AND CONDITIONS – PUBLIC SECTOR ONLY
For DELL EMC Use Only
Contract ID
Flexible Consumption Schedule (Flex on Demand) – U.S. STATE & LOCAL GOVERNMENT This Flexible Consumption Schedule (the “Schedule”) sets forth the terms under which the customer identified below (“Customer”) may access and use certain Deployed Capacity from the Dell entity identified below (“DELL EMC”). Customer’s use of the Deployed Capacity is subject to the terms of this Schedule and the Governing Agreement identified below.
Effective Date: ________________ Governing Agreement:
Customer’s existing Master Flexible Consumption
Agreement with DELL EMC dated on or about: _________
Name of Dell EMC entity (“DELL EMC”):
EMC CORPORATION
176 SOUTH STREET
HOPKINTON MA 01748
Name of Customer:
[xxxxx]
Xxxx
Xxxxxxx
1. Effective Date, Commencement Date.
1.1 Schedule Effective Date and Transaction Start Date. This Schedule expresses the current understanding of DELL EMC and Customer with regard to the Deployed Capacity listed on the Attachment 1 hereto. This Schedule, when signed by DELL EMC and Customer takes effect as of the Effective Date shown above.
1.2. Commencement Date. The Flexible Consumption Period shall begin on either (i) the first day of the first month following the date the Deployed Capacity has been installed at the Installation Site, or, if Customer delays the installation process or if Customer’s facility is not prepared for the installation of Deployed Capacity, (ii) the first day of the second month following the Deployed Capacity’s arrival at the Installation Site (as applicable, the “Commencement Date”).
2. Listing of Deployed Capacity; Unit of Measure (“UOM”) for Software; Level of Support Services.
2.1 Deployed Capacity. The Deployed Capacity subject to this Schedule is listed on the Attachment 1 hereto.
2.2 Unit of Measure for Software. A complete description of the Unit of Measure applicable to each unit of Software listed on the Attachment 1 is contained in the Software Use Rights Guide at https://www.dellemc.com/content/dam/digitalassets/active/en/unauth/manual-warranty- informations/products/data-protection/h2483-sw-use-rights.pdf
2.3 Support Services. The following Table 2.3 specifies the level of Support Services to be provided for all Deployed Capacity during the Flexible Consumption Period.
Table 2.3 – Level of Support Services
Support Services Level is: Xxxxxxxxxxx
2.4 Support Services Terms. Support Services identified in a Schedule relating to Dell-branded and EMC Branded Deployed Capacity will be provided in accordance with and pursuant to the following terms for ProSupport for Enterprise:
https://www.delltechnologies.com/content/dam/digitalassets/active/en/unauth/offering-overview-documents/services/h16453-dellemc- prosupport-mc-option.pdf.
Support Services identified in a Schedule relating to Dell-branded and EMC Branded Deployed Capacity will be provided in accordance with and pursuant to the following terms for ProSupport Plus for Enterprise:
https://www.delltechnologies.com/content/dam/digitalassets/active/en/unauth/offering-overview-documents/services/h16454-dellemc- prosupport-plus-option.pdf.
Support Services identified in a Schedule relating to Dell-branded and EMC Branded Deployed Capacity will be provided in accordance with and pursuant to the following terms for ProSupport One for Data Center:
https://www.delltechnologies.com/content/dam/documents-and-videos/dv1/en/services/support/legal-pricing/dell-emc-prosupport-one-for-data- center.pdf.
3. BILLING/METRICS. PURCHASE ORDER, FLEXIBLE CONSUMPTION PERIOD AND RENEWALS.
3.1 Billing Metrics and Flexible Consumption Period. Customer is authorized to use all or a portion of the Deployed Capacity and receive Support Services thereon only during the Flexible Consumption Period as described in Table 3.3 below. During the Flexible Consumption Period, DELL EMC will measure the usage of the Deployed Capacity on a daily basis and issue a monthly invoice, in arrears, to Customer that reflects the amount of average usage during the prior month. The monthly Flexible Consumption Fee for
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usage is based on a minimum committed amount of use (the “Monthly Committed Capacity”) plus any usage in excess thereof (use of the “Monthly Reserve Capacity”). The Metered Total Capacity, Monthly Committed Capacity and Reserve Capacity are measured by means of the following metric:
3.2 Capacities and Asset Metering. Prior to Billing, Dell EMC will provide Customer a monthly usage report, which reflects both the Metered Total Capacity of the Deployed Capacity and the Monthly Committed Capacity as a Percentage of that Metered Total Capacity. “Metered Total Capacity” means the reported capacity of the Deployed Capacity based upon Customer’s storage configuration in the applicable environment. Monthly reports will reflect the Metered Total Capacity of Deployed Capacity as reported by the asset and will scale the Monthly Committed Capacity in line with the Monthly Committed Capacity as a Percentage of Metered Total Capacity (see table 3.3). The committed Monthly Flexible Consumption Fee, the Monthly Unit Rate (Charge per GiB per Month) and the Monthly Committed Capacity as a Percentage of Metered Total Capacity remain fixed.
3.3 Rate, Billing Period and Flexible Consumption Fee; Reserve Capacity Cap. Table 3.3 sets forth the Billing Period, Monthly Unit Rate, the Flexible Consumption Period and Fee for the Monthly Committed Capacity. The Flexible Consumption Fee per Billing Period is the sum of the fee for the Monthly Committed Capacity and plus the fee for the Reserve Capacity, if any, used during that Billing Period. These fees are calculated by multiplying the applicable amount of use by the Monthly Unit Rate. In no event shall the Flexible Consumption Fee for any Billing Period be less than that which would apply to the Monthly Committed Capacity. Without limiting the foregoing, Customer is responsible to pay DELL EMC the fees for the Monthly Committed Capacity in accordance with the terms and conditions of this Schedule even if Customer’s actual usage is less than the Monthly Committed Capacity. If the monthly use is not greater than the Monthly Committed Capacity, no Reserve Capacity fee shall be due. If the monthly use exceeds the Monthly Committed Capacity, DELL EMC shall calculate the amount of the Reserve Capacity usage, using the Monthly Unit Rate set forth in Table 3.3 and include the amount in the next monthly invoice issued by DELL EMC..
Table 3.3 – Billing Information
Flexible Consumption Period begins on The Commencement Date Flexible Consumption Period duration is:
xxxxx (xx) months, but continues thereafter on a
month-to-month basis until all Deployed Capacity is
made available for pick-up by DELL EMC.
Billing Period Monthly (in arrears)
Monthly Committed Capacity as a Percentage of Metered Total Capacity Xxxx Monthly Unit Rate (Charge per GiB per Month) Xxxxx
Monthly Flexible Consumption Fee for Monthly Committed Capacity Xxxxx Dell EMC shall charge Customer the Monthly Unit Rate for use of Reserve Capacity above the Monthly Committed Capacity up to eighty-five (85%) percent of the Metered Total Capacity, and Customer’s use of the Reserve Capacity between 85% and 100% of the Metered Total Capacity be at no charge to Customer (“Reserve Capacity Cap”) except in cases of: (i) interruption of monitoring when customer is at fault (Section 2.F of the MFCA), or (ii) Customer is in default of this Schedule, where in either case Dell EMC will continue to invoice for use up to 100%. Dell EMC shall issue invoices referencing this Schedule.
3.4 Purchase Order Requirements. Customer’s initial purchase order must specify an amount that is at least equal to the monthly Flexible Consumption Fee for the Monthly Committed Capacity multiplied by the number of months in the Flexible Consumption Period. That minimum amount of the purchase order is shown in Table 3.4 below. Customer shall pay all invoices for Flexible Consumption Fees, including, but not limited to, those that contain charges for use of Reserve Capacity, regardless of whether or not such amounts exceed the amount of Customer’s purchase order(s) issued to DELL EMC in connection with this Schedule. If DELL EMC reasonably determines that the amount of Customer’s original purchase order will not cover the actual Flexible Consumption Fee, then DELL EMC will notify and discuss the situation with Customer. Upon agreement on the additional funds, Customer shall promptly issue a related purchase order for that additional amount.
Table 3.4 – Purchase Order Amount
Customer Purchase Order amount is: $X,XXX,XXX
3.5 Increasing Monthly Committed Capacity/Flexible Consumption Period. During the Flexible Consumption Period, Customer may increase (i) its Monthly Committed Capacity; or (ii) both the duration of the Flexible Consumption Period and the Monthly Committed Capacity at the applicable Monthly Unit Rates stated in Table 3.5 below. To do so, Customer must agree to the increase in an amendment to this Schedule. When DELL EMC and Customer have agreed on the increase, DELL EMC shall prepare and send an amendment to Customer using the pricing in Table 3.3. The parties shall indicate their acceptance by signing the amendment and DELL EMC shall invoice Customer based on the new pricing pursuant to the amendment. When extending the duration of the Flexible Consumption Period, the revised duration continues to be measured from the original Commencement Date of the Flexible Consumption Period. If the duration of Flexible Consumption Period was thirty (36) months and the amendment adds six (6) months, then the new Flexible Consumption Period is a total of forty-two (42) months, beginning on the original starting date. The revised Monthly Unit Rate commences on the first day of the first month following the month in which the amendment becomes effective. In no event shall the amendment have any retroactive effect.
Table 3.5 – Pricing for Increases Monthly Committed Capacity/Flexible Consumption Period
3.6 Renewal and/or Month-to-Month Extension. Prior to the expiration of the applicable Flexible Consumption Period, Customer shall notify DELL EMC that Customer no longer wishes to use the Deployed Capacity. Customer shall completely migrate its information and data off of the Deployed Capacity and establish a mutually convenient date, coinciding with the end of a Billing Period, when the Deployed Capacity will be returned to DELL EMC. However, until Customer notifies DELL EMC that Customer has removed its data and the Deployed Capacity has been returned, Customer shall continue to pay the then currently applicable Flexible Consumption Fee on a month-to-month basis. In order to implement a new agreement, Customer must issue a new purchase order that complies with the requirements of the new agreement. Customer agrees to pay all charges incurred on a month-to-month extension regardless of whether or not it has issued a purchase order to DELL EMC.
4. DELIVERY, INSTALLATION AND IDENTIFICATION.
4.1 Delivery. DELL EMC shall deliver all Deployed Capacity to the “Ship-To” address stated in Table 4.3 below. Where Software is provided in a form that is embedded on the Equipment, DELL EMC will enable any required license keys (meaning information needed to enable activation and use of the Software) by electronic means.
4.2 Deployment Services. Deployed Services, subject to this Schedule, are listed on the Attachment 1 hereto. Other services, may be made available under a separate contract signed by the parties.
4.3. Shipment and Installation Site(s).
Table 4.3 – Shipment and Installation Site(s).
Licensed Software Ship-To Address (one address): Installation Site(s), if any:
5. Miscellaneous. Unless otherwise set forth above, the terms and conditions of the Governing Agreement shall apply to, and shall be considered incorporated into, this Schedule. The terms and conditions in this Schedule are deemed to be confidential information in accordance with the Governing Agreement. In the event of the assignment of this Schedule by DELL EMC, the assignee shall have all DELL EMC’s rights hereunder, but none of its obligations, and upon receipt by Customer of written notice of any such assignment, Customer shall make all Flexible Consumption Fee payments thereafter becoming due under any assigned Schedule to such assignee, and in regards to the Committed Capacity portion of that Fee, without regard to any set-off, defense or counter claim that Customer may have against DELL EMC or any third party. Customer and DELL EMC agree that a signed Schedule may be amended by written notice from DELL EMC to Customer provided such notice is to correct the serial (or service tag) number of Deployed Capacity.
The parties have caused their authorized representatives to sign and this Schedule becomes effective as of the Effective Date.
EMC CORPORATION (“DELL EMC”) ABC (“Customer”)
By (Sign): By (Sign):
Name (Print): Name (Print):
Title: Title:
MFCA SCHEDULE
20190412
Internal Use - Confidential
customer is at fault (Section 2.F of the MFCA), or (ii) Customer is in default of this Schedule, where in either case Dell EMC will continue to invoice for use up to 100%. Dell EMC shall issue invoices referencing this Schedule.
3.5 Purchase Order Requirements. Customer’s initial purchase order must specify an amount that is at least equal to the monthly Flexible Consumption Fee for the Monthly Committed Capacity multiplied by the number of months in the Flexible Consumption Period. That minimum amount of the purchase order is shown in Table 3.4 below. Customer shall pay all invoices for Flexible Consumption Fees, including, but not limited to, those that contain charges for use of Reserve Capacity, regardless of whether or not such amounts exceed the amount of Customer’s purchase order(s) issued to Dell EMC in connection with this Schedule. If Dell EMC reasonably determines that the amount of Customer’s original purchase order will not cover the actual Flexible Consumption Fee, then Dell EMC will notify and discuss the situation with Customer. Upon agreement on the additional funds, Customer shall promptly issue a related purchase order for that additional amount.
Table 3.4 – Purchase Order Amount
Customer Purchase Order amount is: $X,XXX,XXX
3.5 Increasing Monthly Committed Capacity/Flexible Consumption Period. During the Flexible Consumption Period, Customer may increase (i) its Monthly Committed Capacity; or (ii) both the duration of the Flexible Consumption Period and the Monthly Committed Capacity at the applicable Monthly Unit Rates stated in Table 3.5 below. To do so, Customer must agree to the increase in an amendment to this Schedule. When Dell EMC and Customer have agreed on the increase, Dell EMC shall prepare and send an amendment to Customer using the pricing in Table 3.3. The parties shall indicate their acceptance by signing the amendment and Dell EMC shall invoice Customer based on the new pricing pursuant to the amendment. When extending the duration of the Flexible Consumption Period, the revised duration continues to be measured from the original Commencement Date of the Flexible Consumption Period. If the duration of Flexible Consumption Period was thirty (36) months and the amendment adds six (6) months, then the new Flexible Consumption Period is a total of forty-two (42) months, beginning on the original starting date. The revised Monthly Unit Rate commences on the first day of the first month following the month in which the amendment becomes effective. In no event shall the amendment have any retroactive effect.
Table 3.5 – Pricing for Increases Monthly Committed Capacity/Flexible Consumption Period
STORAGE
MEMORY
3.6 Renewal and/or Month-to-Month Extension. Prior to the expiration of the applicable Flexible Consumption Period, Customer shall notify Dell EMC that Customer no longer wishes to use the Products. Customer shall completely migrate its information and data off of the Products and establish a mutually convenient date, coinciding with the end of a Billing Period, when the Products will be returned to Dell EMC. However, until Customer notifies Dell EMC that Customer has removed its data and the Products have been returned, Customer shall continue to pay the then currently applicable Flexible Consumption Fee on a month-to-month basis. In order to implement a new agreement, Customer must issue a new purchase order that complies with the requirements of the new agreement. Customer agrees to pay all charges incurred on a month-to-month extension regardless of whether or not it has issued a purchase order to Dell EMC.
4. DELIVERY, INSTALLATION AND IDENTIFICATION.
4.1 Delivery. Dell EMC shall deliver all Products to the “Ship-To” address stated in Table 4.3 below. Where Software is provided in a form that is embedded on the Equipment, Dell EMC will enable any required license keys (meaning information needed to enable activation and use of the Software) by electronic means.
4.2 Deployment Services. Deployed Services, subject to this Schedule, are listed on the Attachment 1 hereto. Other services, may be made available under a separate contract signed by the parties.
4.3. Shipment and Installation Site(s).
MFCA SCHEDULE - VXRAIL
20210401
Internal Use - Confidential
Table 4.3 – Shipment and Installation Site(s).
Licensed Software Ship-To Address (one address): Installation Site(s), if any:
5. Miscellaneous. Unless otherwise set forth above, the terms and conditions of the Governing Agreement shall apply to, and shall be considered incorporated into, this Schedule. The terms and conditions in this Schedule are deemed to be confidential information in accordance with the Governing Agreement. In the event of the assignment of this Schedule by Dell EMC, the assignee shall have all Dell EMC’s rights hereunder, but none of its obligations, and upon receipt by Customer of written notice of any such assignment, Customer shall make all Flexible Consumption Fee payments thereafter becoming due under any assigned Schedule to such assignee, and in regards to the Committed Capacity portion of that Fee, without regard to any set-off, defense or counter claim that Customer may have against Dell EMC or any third party. Customer and Dell EMC agree that a signed Schedule may be amended by written notice from Dell EMC to Customer provided such notice is to correct the serial (or service tag) number of Products.
The parties have caused their authorized representatives to sign and this Schedule becomes effective as of the Effective Date.
EMC Corporation (“Dell EMC”) ABC (“Customer”)
By (Sign): By (Sign):
Name (Print): Name (Print):
Title: Title:
MFCA SCHEDULE
20190412
Attachment 1
Product list to be added
Title Page
Lenovo (United States) Inc. Response to
the National Cooperative Purchasing
Alliance c/o Region 14 Education Service
Center
RFP # 45-22: Technology Solutions,
Products, and Services
November 17, 2022
Steven Franco
Account Executive
432-269-9996
[email protected]
ATTACHMENT 2
Lenovo (United States) Inc. 2
Cover Letter
Lenovo.com 8001 Development Drive
Morrisville, NC 27560
November 17, 2022
National Cooperative Purchasing Alliance
c/o Region 14 Education Service Center
P.O. Box 701273
Houston, TX 77270
Re: Lenovo (United States) Inc. Response to RFP # 45-22: Technology Solutions, Products, and Services
Dear Selection Committee,
Lenovo knows that smarter technology can help organizations transform how they operate, the services they deliver, and how they collaborate and interact with citizens and communities. Ultimately, it’s about connecting people, priorities, and technology in important ways. Lenovo’s broad product portfolio, deep expertise, and relentless focus on innovation makes us the ideal partner for this important work.
Thank you for the opportunity to offer what Lenovo believes is an exciting technology solution to meet National Cooperative Purchasing Alliance’s (NCPA’s) requirements. We are confident that our deep public sector expertise and dedication to our partnership with you will ensure a successful technology decision and contribute to improved agency outcomes. Our proposal outlines a few of our many commitments to the continued success of your organization.
Unparalleled Technology Leadership
As the world’s leading PC company, Lenovo enjoys a record market share of 24 .8 percent, per Gartner’s Market Share Analysis (Q2 2022). Our leadership position is built on a solid, award-winning product portfolio that stretches from mobile endpoints to high-performance, hyperconverged data center productivity, and includes a broad selection of accessories to maximize IT dollars. We combine our breakthrough hardware innovation with a full ecosystem of service and solutions partners to give our customers streamlined answers for their technology challenges.
Experienced Government Agency Partner
Our commitment to the public sector runs deep. We have invested in dedicated federal, state, and local government account teams, and created a dedicated center of excellence for contracts and procurement.
Lenovo delivers unprecedented reliability and unbeatable mobility to over 900 state and local agencies across America. Additionally, over 22 military and civilian federal agencies choose Lenovo to modernize their mission. Lenovo is a trusted provider to various federal agencies, including the Department of Defense, Department of Veterans Affairs, and the Department of Energy.
Unbeatable Product Quality, Durability, and Innovation
Because workstyles are more demanding than ever, we offer the broadest portfolio of MIL- SPEC-tested products and subject our machines to even more stringent examinations internally. Lenovo is committed to continuously improving the quality and value of our products and solutions.
Lenovo (United States) Inc. 3
Secure from the Inside Out
We share your commitment to end-to-end security, as evidenced in our TAA-compliant products and supply chain. Additionally, we incorporate NIST and TCG standards as well as TPM 2.0 and secure BIOS firmware for peace of mind. The result is trustworthy technology to drive the most critical agency functions.
U.S. Investments
In addition to the investments in our Morrisville, North Carolina headquarters, Lenovo maintains both its enterprise campus and its U.S. fulfillment center in North Carolina. This results in 6,800+ employees and an annual economic impact of $1 billion for North Carolina. Lenovo purchases $10 billion in goods and services from U.S. companies annually.
Lenovo’s commitment to providing meaningful, end-to-end technology solutions has made us the world’s top technology partner in the public sector market. Should you have any questions or require additional information, please reach out to the Lenovo team at your convenience.
Sincerely,
Darren Estridge
Executive Director
Lenovo (United States) Inc. 4
Table of Contents
Title Page ......................................................................................... 1 Cover Letter ..................................................................................... 2 Table of Contents ............................................................................ 4 Tab 1 – Master Agreement/Signature Form ................................... 5 Master Agreement ‒ General Terms and Conditions .................................. 5 Process ...................................................................................................... 10 Evaluation Criteria ..................................................................................... 13 Signature Form .......................................................................................... 14 Tab 2 – NCPA Administration Agreement .....................................15 Acknowledgment of Contractor Requirements .......................................... 17 Tab 3 – Vendor Questionnaire .......................................................18 Tab 4 – Vendor Profile ....................................................................22 Tab 5 – Products and Services/Scope ..........................................30 Products .................................................................................................... 31 Services ..................................................................................................... 33 Financial Services Offerings ...................................................................... 35 Tab 6 – References .........................................................................37 Tab 7 – Pricing ................................................................................41 Tab 8 – Value Added Products and Services ................................43 Tab 9 – Required Documents ........................................................46 Federal Required Signatures .................................................................... 48 Antitrust Certification Statements Texas Government Code § 2155.005 . 49 Appendix A: Lenovo Customer Agreement ..................................50
Lenovo (United States) Inc. 5
Tab 1 – Master Agreement/Signature Form
Master Agreement ‒ General Terms and Conditions
Customer Support
The vendor shall provide timely and accurate technical advice and sales support. The vendor shall respond to such requests within one (1) working day after receipt of the request.
Lenovo concurs.
Disclosures
Respondent affirms that he/she has not given, offered to give, nor intends to give at any time hereafter any economic opportunity, future employment, gift, loan, gratuity, special discount, trip, favor or service to a public servant in connection with this contract.
The respondent affirms that, to the best of his/her knowledge, the offer has been arrived at independently, and is submitted without collusion with anyone to obtain information or gain any favoritism that would in any way limit competition or give an unfair advantage over other vendors in the award of this contract.
Lenovo concurs.
Renewal of Contract
Unless otherwise stated, all contracts are for a period of three (3) years with an option to renew for up to five (5) additional one-year terms or any combination of time equally not more than 5 years if agreed to by Region 14 ESC and the vendor.
Lenovo concurs with the understanding that such renewals will be based upon the mutual agreement of the parties.
Funding Out Clause
Any/all contracts exceeding one (1) year shall include a standard “funding out” clause. A contract for the acquisition, including lease, of real or personal property is a commitment of the entity’s current revenue only, provided the contract contains either or both of the following provisions:
Retains to the entity the continuing right to terminate the contract at the expiration of each budget period during the term of the contract and is conditioned on a best efforts attempt by the entity to obtain appropriate funds for payment of the contract.
Lenovo concurs.
Shipments (if applicable)
The awarded vendor shall ship ordered products within seven (7) working days for goods available and within four (4) to six (6) weeks for specialty items after the receipt of the order unless modified. If a product cannot be shipped within that time, the awarded vendor shall notify the entity placing the order as to why the product has not shipped and shall provide an estimated shipping date. At this point the participating entity may cancel the order if estimated shipping time is not acceptable.
Lenovo understands and will comply.
Lenovo takes our commitments to customers very seriously and will establish and implement processes for NCPA to ensure that product delivery and installation timeframes are met.
Our Lenovo Direct Fulfillment goal is to offer NCPA our best-of-breed products, aggressively priced, with a fulfillment model customized to your unique requirements. In the US, Lenovo should be able to ship standard topseller products within 7 business days, and standard and forecasted custom products within 4 to 6 weeks from receipt by Lenovo of a valid purchase order. If the ship date extends beyond these time
Lenovo (United States) Inc. 6
frames, Lenovo will communicate with the customer the revised ship date as information becomes available.
This order fulfillment objective does not apply to initial orders for custom models. When Lenovo creates a custom model based on unique requirements, these models are subject to a “First Off Test” (FOT) which is a process to ensure that the newly created custom model is technically valid, properly manufactured, and has a functional configuration.
Standard shipping is assumed, and premium shipping is available upon request for an additional fee.
Lenovo will be pleased to meet with NCPA and discuss solutions to meet your specific delivery requirements.
Tax Exempt Status
Since this is a national contract, knowing the tax laws in each state is the sole responsibility of the vendor.
Lenovo concurs.
Payments
The entity using the contract will make payments directly to the awarded vendor or their affiliates (distributors/business partners/resellers) as long as written request and approval by NCPA is provided to the awarded vendor.
Lenovo concurs.
Adding Authorized Distributors/Dealers
Awarded vendors may submit a list of distributors/partners/resellers to sell under their contract throughout the life of the contract. Vendor must receive written approval from NCPA before such distributors/partners/resellers considered authorized.
Purchase orders and payment can only be made to awarded vendor or distributors/ business partners/resellers previously approved by NCPA.
Pricing provided to members by added distributors or dealers must also be less than or equal to the pricing offered by the awarded contract holder.
All distributors/partners/resellers are required to abide by the Terms and Conditions of the vendor's agreement with NCPA.
Lenovo concurs.
Pricing
All pricing submitted shall include the administrative fee to be remitted to NCPA by the awarded vendor. It is the awarded vendor’s responsibility to keep all pricing up to date and on file with NCPA.
All deliveries shall be freight prepaid, F.O.B. destination and shall be included in all pricing offered unless otherwise clearly stated in writing
Lenovo concurs for hardware and software products.
For Lenovo services, the pricing contained herein is exclusive of any travel and living expenses, other reasonable expenses incurred in connection with the services, and any applicable taxes.
Lenovo (United States) Inc. 7
Warranty
Proposal should address the following warranty information:
• Applicable warranty and/or guarantees of equipment and installations including any conditions and response time for repair and/or replacement of any components during the warranty period. • Availability of replacement parts
• Life expectancy of equipment under normal use
• Detailed information as to proposed return policy on all equipment Products: Vendor shall provide equipment, materials and products that are new unless otherwise specified, of good quality and free of defects
Construction: Vendor shall perform services in a good and workmanlike manner and in accordance with industry standards for the service provided.
Lenovo’s Limited Warranty
Please note, as Lenovo proposes to utilize the Lenovo Customer Agreement as the basis for the terms and conditions governing Lenovo’s products and services, the issue of warranty is fully addressed within that Agreement. Installation services are not considered part of warranty service but may be obtained through a value-added service.
Please refer to Attachment A, D, and E inside Lenovo’s Customer Agreement for applicable Warranty Service Terms.
Please refer to Appendix A: Lenovo Customer Agreement on page 50 f or a copy of the Lenovo Customer
Agreement.
W
arranty Parts Process for Lenovo
Lenovo maintains service parts throughout the warranty/service period. Lenovo makes commercially reasonable efforts to maintain service parts for five years from product launch date.
A key fundamental component of product warranty is our Parts Depots. Support for Lenovo Think and System x products is made available through our industry leading parts inventory management system.
This service support system includes automated dispatch, updated service technologies, preventive maintenance activities, and a parts distribution system.
Lenovo’s parts stocking and distribution strategy is for parts to be readily available for delivery to a customer’s location to meet the required levels of service for each machine type. Parts are stocked in Mechanicsburg, PA, for Think and System x products and in Grapevine, TX, for Idea products. Efforts are made to support these geographic areas at an availability level in excess of 80-85 percent of total requirements.
Regardless of warranty status, Lenovo will cross ship new or equivalent-to-new parts the same day they are ordered, provided order is placed before 3 p.m. (ET). For orders received after that time, Lenovo will ship the part out to meet the service response objectives. In many cases, Lenovo does not require receipt of the failed part before sending out a new part.
Support for third-party products and software is provided directly by the vendor of the product. The combination of an excellent parts inventory, service representative, and additional support structure for Lenovo-branded products will ensure that NCPA receives world-class service coverage.
Life Expectancy
Lenovo Think, notebook, desktop, servers, and workstation products as well System x server and storage products are highly durable and engineered for a four- to five-year lifecycle.
Lenovo (United States) Inc. 8
Returns
Lenovo’s return policy for public sector customer is 30 days. When a return is needed due to dead- on- arrival (DOA) devices, damaged product, incorrect quantity, or incorrect product delivered, the claim has to be submitted to the appropriate Lenovo inside sales or customer service representative. After analysis and internal approvals, Lenovo will manage the collection of the product from the customer site. Lenovo will then refund the customer for the amount paid for the product that is returned.
Safety
Vendors performing services shall comply with occupational safety and health rules and regulations. Also all vendors and subcontractors shall be held responsible for the safety of their employees and any conditions that may cause injury or damage to persons or property.
Lenovo concurs.
Permits
Since this is a national contract, knowing the permit laws in each state is the sole responsibility of the vendor.
Lenovo concurs.
Indemnity
The awarded vendor shall protect, indemnify, and hold harmless Region 14 ESC and its participants, administrators, employees and agents against all claims, damages, losses and expenses arising out of or resulting from the actions of the vendor, vendor employees or vendor subcontractors in the preparation of the solicitation and the later execution of the contract.
Please note, Lenovo proposes to utilize the Lenovo Customer Agreement as the basis for the terms and conditions governing the purchase of Lenovo’s products and services by the Consortium. Lenovo's proposed patent and copyright protection and IP infringement protection is located in Section 16 of the Agreement. Please refer to Appendix A: Lenovo Customer Agreement on page 50 f or a copy of the
Lenovo Customer Agreement.
F
ranchise Tax
The respondent hereby certifies that he/she is not currently delinquent in the payment of any franchise taxes.
To the best of our knowledge and belief, Lenovo is not currently delinquent in the payment of any Texas franchise taxes.
Supplemental Agreements
The entity participating in this contract and awarded vendor may enter into a separate supplemental agreement to further define the level of service requirements over and above the minimum defined in this contract i.e. invoice requirements, ordering requirements, specialized delivery, etc. Any supplemental agreement developed as a result of this contract is exclusively between the participating entity and awarded vendor.
Lenovo concurs.
Certificates of Insurance
Certificates of insurance shall be delivered to the Public Agency prior to commencement of work. The insurance company shall be licensed in the applicable state in which work is being conducted. The awarded vendor shall give the participating entity a minimum of ten (10) days notice prior to any
Lenovo (United States) Inc. 9
modifications or cancellation of policies. The awarded vendor shall require all subcontractors performing any work to maintain coverage as specified.
Lenovo concurs with the clarification that notification shall be in accordance with the terms and conditions of the applicable policy provisions.
Legal Obligations
It is the Respondent’s responsibility to be aware of and comply with all local, state, and federal laws governing the sale of products/services identified in this RFP and any awarded contract and shall comply with all while fulfilling the RFP. Applicable laws and regulation must be followed even if not specifically identified herein.
Lenovo concurs that it will comply with all local, state, and federal laws applicable to Lenovo as a provider of information technology products and services.
Protest
A protest of an award or proposed award must be filed in writing within ten (10) days from the date of the official award notification and must be received by 5:00 pm CST. Protests shall be filed with Region 14 ESC and shall include the following:
• Name, address and telephone number of protester
• Original signature of protester or its representative • Identification of the solicitation by RFP number
• Detailed statement of legal and factual grounds including copies of relevant documents and the form of relief requested
Any protest review and action shall be considered final with no further formalities being considered.
Lenovo understands.
Force Majeure
If by reason of Force Majeure, either party hereto shall be rendered unable wholly or in part to carry out its obligations under this Agreement then such party shall give notice and full particulars of Force Majeure in writing to the other party within a reasonable time after occurrence of the event or cause relied upon, and the obligation of the party giving such notice, so far as it is affected by such Force Majeure, shall be suspended during the continuance of the inability then claimed, except as hereinafter provided, but for no longer period, and such party shall endeavor to remove or overcome such inability with all reasonable dispatch. The term Force Majeure as employed herein, shall mean acts of God, strikes, lockouts, or other industrial disturbances, act of public enemy, orders and regulation of any kind of government of the United States or any civil or military authority; insurrections; riots; epidemics; pandemic; landslides; lighting; earthquake; fires; hurricanes; storms; floods; washouts; droughts; arrests; restraint of government and people; civil disturbances; explosions, breakage or accidents to machinery, pipelines or canals, or other causes not reasonably within the control of the party claiming such inability. It is understood and agreed that the settlement of strikes and lockouts shall be entirely within the discretion of the party having the difficulty, and that the above requirement that any Force Majeure shall be remedied with all reasonable dispatch shall not require the settlement of strikes and lockouts by acceding to the demands of the opposing party or parties when such settlement is unfavorable in the judgment of the party having the difficulty
Lenovo concurs.
Prevailing Wage
It shall be the responsibility of the Vendor to comply, when applicable, with the prevailing wage legislation in effect in the jurisdiction of the purchaser. It shall further be the responsibility of the Vendor to monitor
Lenovo (United States) Inc. 10
the prevailing wage rates as established by the appropriate department of labor for any increase in rates during the term of this contract and adjust wage rates accordingly.
Lenovo does not believe that any prevailing wage laws would be applicable to Lenovo’s provision of products and services under any contract resulting from this solicitation.
Termination
Either party may cancel this contract in whole or in part by providing written notice. The cancellation will take effect 30 business days after the other party receives the notice of cancellation. After the 30th business day all work will cease following completion of final purchase order.
Lenovo is in general agreement with the termination rights provided for above, with the understanding that Lenovo would be reimbursed for any products and services Lenovo delivers through the date of termination, as well as any reimbursable expenses Lenovo incurs. Lenovo would also seek reimbursement of any applicable adjustment or termination charges and for expenses Lenovo incurs as a result of such termination (which Lenovo will take reasonable steps to mitigate), all in accordance with the provisions of the Lenovo Customer Agreement which can be found in Appendix A: Lenovo Customer Agreement o n page 50.
Open Records Policy
Because Region 14 ESC is a governmental entity, responses submitted are subject to release as public information after contracts are executed. If a vendor believes that its response, or parts of its response, may be exempted from disclosure, the vendor must specify page-by-page and line-by-line the parts of the response, which it believes, are exempt. In addition, the respondent must specify which exception(s) are applicable and provide detailed reasons to substantiate the exception(s).
The determination of whether information is confidential and not subject to disclosure is the duty of the Office of Attorney General (OAG). Region 14 ESC must provide the OAG sufficient information to render an opinion and therefore, vague and general claims to confidentiality by the respondent are not acceptable. Region 14 ESC must comply with the opinions of the OAG. Region14 ESC assumes no responsibility for asserting legal arguments on behalf of any vendor. Respondent are advised to consult with their legal counsel concerning disclosure issues resulting from this procurement process and to take precautions to safeguard trade secrets and other proprietary information.
Lenovo understands.
Process
Region 14 ESC will evaluate proposals in accordance with, and subject to, the relevant statutes, ordinances, rules, and regulations that govern its procurement practices. NCPA will assist Region 14 ESC in evaluating proposals. Award(s) will be made to the prospective vendor whose response is determined to be the most advantageous to Region 14 ESC, NCPA, and its participating agencies. To qualify for evaluation, response must have been submitted on time, and satisfy all mandatory requirements identified in this document.
Lenovo concurs.
Contract Administration
The contract will be administered by Region 14 ESC. The National Program will be administered by NCPA on behalf of Region 14 ESC.
Lenovo understands.
Lenovo (United States) Inc. 11
Contract Term
The contract term will be for three (3) year starting from the date of the award. The contract may be renewed for up to five (5) additional one-year terms or any combination of time equally not more than 5 years.
It should be noted that maintenance/service agreements may be issued for up to (5) years under this contract even if the contract only lasts for the initial term of the contract. NCPA will monitor any maintenance agreements for the term of the agreement provided they are signed prior to the termination or expiration of this contract.
Lenovo understands.
Contract Waiver
Any waiver of any provision of this contract shall be in writing and shall be signed by the duly authorized agent of Region 14 ESC. The waiver by either party of any term or condition of this contract shall not be deemed to constitute waiver thereof nor a waiver of any further or additional right that such party may hold under this contract.
Lenovo understands.
Price Increases
Should it become necessary, price increase requests may be submitted at any point during the term of the contract by written amendment. Included with the request must be documentation and/or formal cost justification for these changes. Requests will be formally reviewed, and if justified, the amendment will be approved.
Lenovo understands.
Products and Services Additions
New Products and/or Services may be added to the resulting contract at any time during the term by written amendment, to the extent that those products and/or services are within the scope of this RFP.
Lenovo concurs.
Competitive Range
It may be necessary for Region 14 ESC to establish a competitive range. Responses not in the competitive range are unacceptable and do not receive further award consideration.
Lenovo understands.
Deviations and Exceptions
Deviations or exceptions stipulated in response may result in disqualification. It is the intent of Region 14 ESC to award a vendor’s complete line of products and/or services, when possible.
Lenovo understands.
Estimated Quantities
While no minimum volume is guaranteed, the estimated (but not limited to) annual volume for Products and Services purchased under the proposed Master Agreement is $400 million dollars annually. This estimate is based on the anticipated volume of Region 14 ESC and current sales within the NCPA program.
Lenovo understands.
Evaluation
Region 14 ESC will review and evaluate all responses in accordance with, and subject to, the relevant statutes, ordinances, rules and regulations that govern its procurement practices. NCPA will assist the
Lenovo (United States) Inc. 12
lead agency in evaluating proposals. Recommendations for contract awards will be based on multiple factors, each factor being assigned a point value based on its importance.
Lenovo understands.
Formation of Contract
A response to this solicitation is an offer to contract with Region 14 ESC based upon the terms, conditions, scope of work, and specifications contained in this request. A solicitation does not become a contract until it is accepted by Region 14 ESC. The prospective vendor must submit a signed Signature Form with the response thus, eliminating the need for a formal signing process. Contract award letter issued by Region 14 ESC is the counter-signature document establishing acceptance of the contract.
Lenovo understands; however, Lenovo’s offer to contract with Region 14 ESC is based upon Lenovo’s response to the solicitation and Lenovo’s modifications, exceptions, and clarifications thereto.
NCPA Administrative Agreement
The vendor will be required to enter and execute the National Cooperative Purchasing Alliance Administration Agreement with NCPA upon award with Region 14 ESC. The agreement establishes the requirements of the vendor with respect to a nationwide contract effort.
Please note, as Lenovo proposes to utilize the Lenovo Customer Agreement as the basis for the terms and conditions governing Lenovo’s products and services, some of the items within the NCPA Administration Agreement are fully addressed within that Agreement.
Lenovo proposes that Region 14 ESC, NCPA, nor Lenovo shall be obligated in any manner with respect to the products and services proposed under this Solicitation until such time as a written contract reflecting mutually agreed upon terms and conditions is executed.
Clarifications/Discussions
Region 14 ESC may request additional information or clarification from any of the respondents after review of the proposals received for the sole purpose of elimination minor irregularities, informalities, or apparent clerical mistakes in the proposal. Clarification does not give respondent an opportunity to revise or modify its proposal, except to the extent that correction of apparent clerical mistakes results in a revision. After the initial receipt of proposals, Region 14 ESC reserves the right to conduct discussions with those respondent’s whose proposals are determined to be reasonably susceptible of being selected for award. Discussions occur when oral or written communications between Region 14 ESC and respondent’s are conducted for the purpose clarifications involving information essential for determining the acceptability of a proposal or that provides respondent an opportunity to revise or modify its proposal.
Region 14 ESC will not assist respondent bring its proposal up to the level of other proposals through discussions. Region 14 ESC will not indicate to respondent a cost or price that it must meet to neither obtain further consideration nor will it provide any information about other respondents’ proposals or prices.
Lenovo understands.
Multiple Awards
Multiple Contracts may be awarded as a result of the solicitation. Multiple Awards will ensure that any ensuing contracts fulfill current and future requirements of the diverse and large number of participating public agencies.
Lenovo understands.
Past Performance
Past performance is relevant information regarding a vendor’s actions under previously awarded contracts; including the administrative aspects of performance; the vendor’s history of reasonable and
Lenovo (United States) Inc. 13
cooperative behavior and commitment to customer satisfaction; and generally, the vendor’s businesslike concern for the interests of the customer.
Lenovo understands.
Evaluation Criteria
Pricing (40 points)
Electronic Price Lists
• Products, Services, Warranties, etc. price list
• Prices listed will be used to establish both the extent of a vendor’s product lines, services, warranties, etc. available from a particular bidder and the pricing per item.
Ability to Provide and Perform the Required Services for the Contract (25 points) • Product Delivery within participating entities specified parameters • Number of line items delivered complete within the normal delivery time as a percentage of line items ordered.
• Vendor’s ability to perform towards above requirements and desired specifications. • Past Cooperative Program Performance
• Quantity of line items available that are commonly purchased by the entity. • Quality of line items available compared to normal participating entity standards.
References and Experience (20 points)
• A minimum of ten (10) customer references for product and/or services of similar scope dating within past 3 years
• Respondent Reputation in marketplace
• Past Experience working with public sector.
• Exhibited understanding of cooperative purchasing
Value Added Products/Services Description, (8 points)
• Additional Products/Services related to the scope of RFP • Marketing and Training
• Minority and Women Business Enterprise (MWBE) and (HUB) Participation • Customer Service
Technology for Supporting the Program (7 points)
• Electronic on-line catalog, order entry use by and suitability for the entity’s needs • Quality of vendor’s on-line resources for NCPA members. • Specifications and features offered by respondent’s products and/or services
Lenovo understands NCPA’s evaluation criteria.
Lenovo (United States) Inc. 14
Signature Form
The undersigned hereby proposes and agrees to furnish goods and/or services in strict compliance with the terms, specifications and conditions at the prices proposed within response unless noted as clarified in writing in Lenovo’s response. The undersigned further certifies that he/she is an officer of the company and has authority to negotiate and bind the company named below and has not prepared this bid in collusion with any other Respondent and that the contents of this proposal as to prices, terms or conditions of said bid have not been communicated by the undersigned nor by any employee or agent to any person engaged in this type of business prior to the official opening of this proposal.
P
rices are guaranteed: 120 days
Lenovo ( United States) Inc. _____
Company Name
8001 Development Drive _ ______
Address
Morrisville, NC 27560__________
City State Zip
855-2
53- 6686________________ n/a_________________________
Telephone Number Fax Number
[email protected] _________________________________________ Email Address
Darren Estridge _____________ E
xecutive Director______________
Printed Name Position
_____________________________
Authorized Signature
Lenovo (United States) Inc. 15
Tab 2 – NCPA Administration Agreement
Lenovo Response:
Please note, as Lenovo proposes to utilize the Lenovo Customer Agreement as the basis for the terms and conditions governing Lenovo’s products and services, some of the items within the NCPA Administration Agreement are fully addressed within that Agreement.
Lenovo proposes that Region 14 ESC, NCPA, nor Lenovo shall be obligated in any manner with respect to the products and services proposed under this Solicitation until such time as a written contract reflecting mutually agreed upon terms and conditions is executed.
Please refer to Appendix A: Lenovo Customer Agreement on page 50 for a copy of the Lenovo Customer Agreement.
Thi
s Administration Agreement is made as of _________________________________, by and between National Cooperative Purchasing Alliance (“NCPA”) and _________________________________ (“Vendor”).
Recitals
WHEREAS, Region 14 ESC has entered into a certain Master Agreement dated _______________________, referenced as Contract Number _______________________, by and between Region 14 ESC and Vendor, as may be amended from time to time in accordance with the terms thereof (the “Master Agreement”), for the purchase of Technology Solutions, Products and Services;
WHEREAS, said Master Agreement provides that any state, city, special district, local government, school district, private K-12 school, technical or vocational school, higher education institution, other government agency or nonprofit organization (hereinafter referred to as “public agency” or collectively, “public agencies”) may purchase products and services at the prices indicated in the Master Agreement;
WHEREAS, NCPA has the administrative and legal capacity to administer purchases under the Master Agreement to public agencies;
WHEREAS, NCPA serves as the administrative agent for Region 14 ESC in connection with other master agreements offered by NCPA
WHEREAS, Region 14 ESC desires NCPA to proceed with administration of the Master Agreement;
WHEREAS, NCPA and Vendor desire to enter into this Agreement to make available the Master Agreement to public agencies on a national basis;
NOW, THEREFORE, in consideration of the payments to be made hereunder and the mutual covenants contained in this Agreement, NCPA and Vendor hereby agree as follows:
General Terms and Conditions
• The Master Agreement, attached hereto as Exhibit 1 and incorporated herein by reference as though fully set forth herein, and the terms and conditions contained therein shall apply to this December 1, 2022
December 1, 2022
Lenovo (United States) Inc
Lenovo (United States) Inc. 16
Administration Agreement except as expressly changed or modified by this Administration Agreement.
• NCPA shall be afforded all of the rights, privileges and indemnifications afforded to Region 14 ESC under the Master Agreement, and such rights, privileges and indemnifications shall accrue and apply with equal effect to NCPA under this Administration Agreement including, but not limited to, Contractor’s obligation to provide appropriate insurance and certain indemnifications to Region 14 ESC.
• Contractor shall perform all duties, responsibilities and obligations required under the Master Agreement in the time and manner specified by the Master Agreement. • NCPA shall perform all of its duties, responsibilities, and obligations as administrator of purchases under the Master Agreement as set forth herein, and Contractor acknowledges that NCPA shall act in the capacity of administrator of purchases under the Master Agreement. • With respect to any purchases made by Region 14 ESC or any Participating Agency pursuant to the Master Agreement, NCPA (a) shall not be construed as a dealer, remarketer, representative, partner, or agent of any type of Contractor, Region 14 ESC, or such Participating Agency, (b) shall not be obligated, liable or responsible (i) for any orders made by Region 14 ESC, any Participating Agency or any employee of Region 14 ESC or Participating Agency under the Master Agreement, or (ii) for any payments required to be made with respect to such order, and (c) shall not be obligated, liable or responsible for any failure by the Participating Agency to (i) comply with procedures or requirements of applicable law, or (ii) obtain the due authorization and approval necessary to purchase under the Master Agreement. NCPA makes no representations or guaranties with respect to any minimum purchases required to be made by Region 14 ESC, any Participating Agency, or any employee of Region 14 ESC or Participating Agency under this Administration Agreement or the Master Agreement.
• With respect to any supplemental agreement entered into between a Participating Agency and Contractor pursuant to the Master Agreement, NCPA, its agents, members and employees shall not be made party to any claim for breach of such agreement. • This Administration Agreement supersedes any and all other agreements, either oral or in writing, between the parties hereto with respect to the subject matter hereof, and no other agreement, statement, or promise relating to the subject matter of this Administrative Agreement which is not contained herein shall be valid or binding.
• Contractor agrees to allow NCPA to use their name and logo within website, marketing materials and advertisement. Any use of NCPA name and logo or any form of publicity regarding this Administration Agreement or the Master Agreement by Contractor must have prior approval from NCPA.
• If any action at law or in equity is brought to enforce or interpret the provisions of this Administration Agreement or to recover any administrative fee and accrued interest, the prevailing party shall be entitled to reasonable attorney’s fees and costs in addition to any other relief to which such party may be entitled.
• Neither this Administration Agreement nor any rights or obligations hereunder shall be assignable by Contractor without prior written consent of NCPA, provided, however, that the Contractor may, without such written consent, assign this Administration Agreement and its rights and delegate its obligations hereunder in connection with the transfer or sale of all or substantially all of its assets or business related to this Administration Agreement, or in the event of its merger, consolidation, change in control or similar transaction. Any permitted assignee shall assume all assigned obligations of its assignor under this Administration Agreement. • This Administration Agreement and NCPA’s rights and obligations hereunder may be assigned at NCPA’s sole discretion, to an existing or newly established legal entity that has the authority and capacity to perform NCPA’s obligations hereunder.
Term of Agreement
This Agreement shall be in effect so long as the Master Agreement remains in effect, provided, however, that the obligation to pay all amounts owed by Vendor to NCPA through the
Lenovo (United States) Inc. 17
termination of this Agreement and all indemnifications afforded by Vendor to NCPA shall surv ive the term of this Agreement.
Fee
s and Reporting
The awarded vendor shall electronically provide NCPA with a detailed quarterly report showing the dollar volume of all sales under the contract for the previous quarter. Reports are due on the fifteenth (15th) day after the close of the previous quarter. It is the responsibility of the awarded vendor to collect and compile all sales under the contract from participating members and submit one (1) report. The report shall include at least the following information as listed in the example below:
Entity Name Zip Code State PO or Job # Sale Amount
Tot
al ____________
Each q
uarter NCPA will invoice the vendor based on the total of sale amount(s) reported. From the invoice the vendor shall pay to NCPA an administrative fee based upon the tiered fee schedule below.
Vendor’s annual sales shall be measured on a calendar year basis. Deadline for term of payment will be included in the invoice NCPA provides.
Annual Sales Through Contract Administrative Fee
0 - $30,000,000 2%
$30,000,001 - $50,000,000 1.5%
$50,000,001+ 1%
Suppl
ier shall maintain an accounting of all purchases made by Public Agencies under the Master Agreement. NCPA and Region 14 ESC reserve the right to audit the accounting for a period of four (4) years from the date NCPA receives the accounting. In the event of such an audit, the requested materials shall be provided at the location designated by Region 14 ESC or NCPA. In the event such audit reveals an under reporting of Contract Sales and a resulting underpayment of administrative fees, Vendor shall promptly pay NCPA the amount of such underpayment, together with interest on such amount and shall be obligated to reimburse NCPA’s costs and expenses for such audit.
Acknowledgment of Contractor Requirements
National Cooperative Purchasing Alliance
Organization Vendor Name
Name Name
Title Title
Address Address
Address Address
Signature Signature
Date Date
Lenovo (United States) Inc.
Darren Estridge
Executive Director Lenovo Government
8001 Development Drive
Morrisville, NC 27560
12/5/2022
Matthew Mackel
Director, Business Development
PO Box 701273
Houston, TX 77270
December 1, 2022
Lenovo (United States) Inc. 18
Tab 3 – Vendor Questionnaire
Please provide responses to the following questions that address your company’s operations, organization, structure, and processes for providing products and services.
Locations Covered
• Bidder must indicate any and all locations where products and services can be offered. • Please indicate the price co-efficient for each location if it varies.
All 50 States & District of Columbia
(Selecting this box is equal to checking all boxes below) Alabama Illinois Montana Rhode Island
Alaska Indiana Nebraska South Carolina
Arizona Iowa Nevada South Dakota
Arkansas Kansas New Hampshire Tennessee
California Massachusetts New Jersey Texas
Colorado Michigan New Mexico Utah
Connecticut Minnesota New York Vermont
Delaware Mississippi North Carolina Virginia
D.C. Missouri North Dakota Washington
Florida Kentucky Ohio West Virginia
Georgia Louisiana Oklahoma Wisconsin
Hawaii Maine Oregon Wyoming
Idaho Maryland Pennsylvania
All U.S. Territories and Outlying Areas
(Selecting this box is equal to checking all boxes below) American Samoa Northern Marina Island
Federated States of Micrones Puerto Rico
Guam U.S. Virgin Islands
Midway Islands
All Canada Provinces and Territories
(Selecting this box is equal to checking all boxes below) Alberta Prince Edward Island
British Columbia Quebec
Manitoba Saskatchewan
New Brunswick Northwest Territories
Newfoundland and Labrador Nunavut
Nova Scotia Yukon
Ontario
If awarded a Master Agreement, will your company extend the terms offered in your Proposal to public agencies in Canada? If no or maybe, please explain.
Yes Maybe No
If an opportunity arises , Lenovo could possibly assist. However, currency requirements and trade agreements may impact how we pursue an opportunity.
Lenovo (United States) Inc. 19
If awarded a Master Agreement, will your company extend the terms offered in your Proposal to private sector customers?
Yes Maybe No
M
inority and Women Business Enterprise (MWBE) and (HUB) Participation It is the policy of some entities participating in NCPA to involve minority and women business enterprises (MWBE) and historically underutilized businesses (HUB) in the purchase of goods and services.
Respondents shall indicate below whether or not they are an M/WBE or HUB certified.
Minority/Women Business Enterprise Respondent Certifies that this firm a Minority / Women Business Enterprise
Historically Underutilized Business Respondent Certifies that this firm is a Historically Underutilized Business
Lenov
o Response:
Neither category above applies to Lenovo.
Small Business, MWBE and HUB Growth
If Proposer is a Large, National or Multinational Organization/Corporation, what programs are in place that partners or supports the growth of small and MWEB and HUB business? If yes, please describe.
N/A, we are a recognized small, MWEB or HUB organization No, we do not have any programs in place.
Yes, we have programs in place.
R
esidency
Responding Company’s principal place of busine ss is in the city of Morrisville, State of North Carolina.
Felony Conviction Notice
Please Check Applicable Box (If the 3rd box is checked, a detailed explanation of the names and convictions must be attached):
A publicly held corporation; therefore, this reporting requirement is not applicable.
Is not owned or operated by anyone who has been convicted of a felony.
Is owned or operated by the following individual(s) who has/have been convicted of a felony
D
istribution Channel
Which best describes your company’s position in the distribution channel:
Manufacturer Direct Certified education/government reseller Authorized Distributor Manufacturer marketing through reseller Value-added reseller Other: ______________________________________
Pr
ocessing Contact Information
Contact Person S teven Franco
Title Account Executive
Company Lenovo (United States) Inc.
Address 8001 Development Drive
City/State/Zip Morrisville, NC 27560
Phone 432-269-9996
Email [email protected]
Lenovo (United States) Inc. 20
Pricing Information
In addition to the current typical unit pricing furnished herein, the Vendor agrees to offer all future product introductions at prices that are proportionate to Contract Pricing. If answer is no, attach a statement detailing how pricing for NCPA participants would be calculated for future product introductions.
Yes No
Pr
icing submitted includes the required NCPA administrative fee. The NCPA fee is calculated based on the invoice price to the customer.
Yes No
Lenovo (United States) Inc. 21
Lenovo (United States) Inc. 22
Tab 4 – Vendor Profile
Please provide the following information about your company:
Company’s official registered name.
Lenovo (United States) Inc.
Brief history of your company, including the year it was established.
Lenovo (HKSE: 992) (ADR: LNVGY) is a US$70 billion revenue global technology powerhouse, ranked #172 in the Fortune Global 500, employing 75,000 people around the world, and serving customers every day in 180 markets. Focused on a bold vision to deliver smarter technology for all, Lenovo has built on our success as the world’s leading PC player by expanding into new growth areas of infrastructure, mobile, solutions, and services. This transformation together with Lenovo’s world- changing innovation is building a more inclusive, trustworthy, and sustainable digital society for everyone, everywhere.
While the Lenovo brand came into existence in 2004, the company has a much longer history. From our founding in 1984 through our acquisition of IBM’s award-winning Think ® lines of PCs and laptops in 2005
and the IBM System X in 2014 to our partnerships with more than 900 US state and local agencies today, our focus has yielded one of the industry’s most diverse cultures — serving more than 1 billion customers around the world.
Lenovo (United States) Inc. is the U.S.-based entity within the global Lenovo corporate structure that offers intelligent devices for government, education, business, and consumer customers. Lenovo has become one of the world’s largest manufacturers offering a wide portfolio of connected products, including PCs (ThinkPad, Yoga, Lenovo Legion), tablets, workstations, augmented and virtual reality (AR/VR) devices, and smart home/office solutions. Lenovo (United States) Inc. headquarters are in Morrisville, NC, along with one of our key global research centers.
To find out more, visit www.lenovo.com and read about the latest news via our StoryHub.
Company’s Dun & Bradstreet (D&B) number.
Lenovo’s D&B number is 52-2449153.
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Company’s organizational chart of those individuals that would be involved in the contract.
Corporate office location.
• List the number of sales and services offices for states being bid in solicitation. • List the names of key contacts at each with title, address, phone and e- mail address.
Lenovo team members for the NCPA contract are based out of our US headquarters or in a home office, which is not listed due to privacy reasons. Telephone and email contact information for key team members are listed below.
Lenovo (United States) Inc. Headquarters
8001 Development Drive
Morrisville, NC 27560
(855) 253-6686
www.lenovo.com/us/en
Key Lenovo Contacts Contact Information
Lance Couch, Contract Manager +1 (281) 712-2155
[email protected]
Melissa Autrey Freeman, Senior Contract Analyst +1 (919) 294-0609 [email protected]
Steven Franco, Account Executive +1 (432) 269-9996
[email protected]
Christy D’Onofrio, Inside Sales Representative +1 (919) 874-3537 [email protected]
Chuck Boorman, Director Business Development +1 (512) 657-5220 [email protected]
Define your standard terms of payment.
Lenovo’s standard payment terms and net 30.
Who is your competition in the marketplace?
Lenovo has a large product portfolio and competition varies by product line. However, our largest competitors include Dell, HP, Samsung, Microsoft, and Apple.
Lenovo (United States) Inc. 24
Wha
t differentiates your company from competitors?
Focused on a bold vision to deliver smarter technology for all, Lenovo has built on our success as the world’s leading PC manufacturer by expanding into new growth areas of infrastructure, mobile, solutions, and services. Working with our customers, we strive to build a more inclusive, trustworthy, and sustainable digital society for everyone, everywhere.
History of Innovation
Lenovo’s commitment to innovation differentiates our products. By designing, engineering, and building the world’s most complete portfolio of smart devices and infrastructure, we are leading an Intelligent Transformation – the idea of people improving their lives through the use of transformative technology – to create better experiences and opportunities for millions of customers around the world. Since our inception, Lenovo has won hundreds of technology and design awards for our innovative products – including more than 33,000 active patents globally – and introduced many industry firsts, including the world’s first foldable PC, first 2-in-1 convertible laptop, and first 5G smartphone. Also, we have committed to doubling our R&D investment by fiscal year 23/24 from the fiscal year 20/21 level and are adding 12,000 R&D professionals globally.
Commitment to Sustainability and Social Responsibility
After exceeding our 2020 emissions reduction goals a year ahead of schedule, Lenovo has committed to a vision to achieve net-Zero by 2050 and is working with the Science Based Target Initiative to establish goals that support this vision. Lenovo has reported on sustainability topics since 2008, including outlining our work and goals around climate change mitigation, the circular economy, and sustainable materials. In addition to the net-zero vision, Lenovo has committed to positively impacting 15 million lives through philanthropic programs and partnerships by 2025.
Our
philanthropic arm, the Lenovo Foundation, provides smarter technology for all by empowering underrepresented communities with access to technology and STEM education. We also continue to promote diversity, equity, and inclusion. Lenovo was listed in Bloomberg Gender-Equality Index again in
Lenovo (United States) Inc. 25
2022. We are one of the leaders in our industry with over 36% female representation in our workforce.
Also, Lenovo won 24 best employer and best workplace awards last year, including the World’s Most Admired Companies by Fortune magazine.
Trusted, Award-winning Global Supply Chain
Lenovo has once again been named in the Gartner Global Supply Chain Top 25 listing for 2022 , rising seven places to rank #9. This recognition highlights Lenovo’s leadership as a purpose- driven organization as well as the operational excellence of our global supply chain. Lenovo’s supply chain has always been a core strength, from managing logistics and our relationships with component suppliers and partners to our unique global hybrid manufacturing footprint of 35+ factories around the world that together see five devices shipped every second to customers. Lenovo’s strong supply chain has been a key factor in our ability to stay flexible and resilient in the face of industry challenges in the last few years and to respond customers’ needs more effectively.
D
escribe how your company will market this contract if awarded.
Lenovo has held a contract with NCPA since 2015 and will continue to create awareness of the contract and its contents among potential users of the contract. Our marketing plan will include:
• Email announcement of contract award to current Lenovo North American public sector customers and potential customers
• Social media announcements to promote the Lenovo and NCPA relationship – Announcement (upon award) via Lenovo social media outlets including LinkedIn, Twitter, Facebook, and Instagram
– Lenovo YouTube Channel video explaining benefits and offerings of NCPA • Creation of contract-specific marketing flyer for distribution to Lenovo public sector customers • Ongoing contract awareness/education via telephone and email with public sector customers at all levels (e.g., executives, buyers, and end users)
• Multiple contract references/mentions in various North American customer information sessions, including webinars and road shows specific to public sector customers • Ongoing contract awareness/education with our business partners to develop co-marketing opportunities specific to NCPA customer channels
Describe how you intend to introduce NCPA to your company.
Lenovo has successfully leveraged our contract with NCPA since 2015 and continually hosts training for our team members about the contract as well as new member on-boarding training. We will continue to emphasize our contract with NCPA to Lenovo sellers through the following:
• Email notification to Lenovo public sector sales executives in each North American region covered with intent to cascade to all Lenovo public sector sellers • Several internal informational/orientation webcasts/conference calls for extended Lenovo North American sales teams
• Announcement of award on Lenovo's social media outlets LinkedIn, Twitter, Facebook, and Instagram
Describe your firm’s capabilities and functionality of your on-line catalog / ordering website.
Lenovo can create a web portal designed specifically for our direct accounts. Each portal offers a range of products, services, tools, and support chosen specifically to meet your requirements including:
• Personalization − Customer welcome page and customized order authorization levels • Solution selection − Customized product catalogue, specific prices, products that can be browsed by category with comparison capability, fast path to the most-frequently purchased solutions • Order direct and tracking in real time − Shipping and pay preferences in local currency, order tracking online
Lenovo (United States) Inc. 26
• Ease of use − Interactive help to choose options, contacts associated with account, self-service support tools
Lenovo will provide a 24/7 online ordering portal specifically for NCPA purchases. The selected standard configurations will be displayed prominently on the home page and will also offer customization of internal components on non-image models. In addition to NCPA standards, Lenovo portal users will have access to Lenovo's full product catalog − or any subset thereof as designated by the customer − at negotiated pricing. The Lenovo web portal supports credit card, procurement card, and net 30 purchase methods, and may be limited to one or two methods as needed.
The Lenovo web portal allows users to create and place orders, quotes, and save carts for future use. It also provides a link to our order history tool called Order Visibility Portal (OVP). The OVP tool provides comprehensive order information, customizable searches, and downloads. OVP users can create, save, and repeat custom reports, and can also schedule delivery of this information on a repeat basis.
In addition to NPCA’s procurement website, Lenovo offers a 24/7 Technical Support website (support.lenovo.com/en_US/) that provides drivers, updates, how-t o guides, technical help, and more.
Users can check whether the product is in or out of warranty as well as the warranty expiration date (pcsupport.lenovo.com/us/en/warrantylookup#/) and view the most up-to-da te product information. These support tools are easily accessed through the customized NCPA web portal.
D
escribe your company’s Customer Service Department (hours of operation, number of ser vice centers, etc.)
NCPA can count on Lenovo to provide superior, 24/7/365 Help Desk support through our award- winning call centers. Spread across geographies and time zones, Lenovo’s 19 call centers give customers seamless coverage to support our customers wherever they are. The call center supporting the North American market is in Atlanta, Georgia. The latest telephony technology integrated with call routing and call management applications help to ensure shorter wait times for customers and provides customer call history information to support specialists with each call. Advanced technological links allow the routing of call center calls, transparently to the customer, to provide coverage during emergency situations or natural disasters. For example, when a US call center closed during a hurricane, calls were routed to Canada with no interruption in support to our customers.
Once an end user places a call to the call center, the caller routed to the appropriate call center agent.
This is where initial problem determination and remote diagnostics begin. If the problem is not resolved remotely or via the shipment of a self-service customer replaceable unit (CRU) at this stage, the agent will determine if the unit is eligible for repair or service (e.g., depot/repair center, carry -in, on-site). When the warranty involves on-site service, the agent will electronically dispatch a field service technician to the site. Our objective is to have the technician on-site based on the response objectives by location. The specialist will arrive with the right skills and training, the right parts, and an action plan to resolve the problem.
Lenovo call centers can be reached via our website (https://support.lenovo.com/us/en) or via telephone (1-855-253-6686 #1).
G
reen Initiatives (if applicable)
• As our business grows, we want to make sure we minimize our impact on the Earth’s climate. We are taking every step we can to implement innovative and responsible environmental practices throughout NCPA to reduce our carbon footprint, reduce waste, energy conservation, ensure efficient computing and
Lenovo (United States) Inc. 27
much more. To that effort we ask respondents to provide their companies environmental policy and/or green initiative.
Lenovo has reported on our sustainability efforts since 2008, including outlining our work and goals around climate change mitigation, the circular economy, and sustainable materials. After exceeding our 2020 greenhouse gas (GHG) emissions reduction goals a year ahead of schedule, Lenovo has committed to a vision to achieve net-Zero by 2050 and is working with the Science Based Target Initiative to establish goals that support this vision.
We continually seek new ways to reduce harmful GHG emissions across all of our business activities, including those of our suppliers and customers. Our commitment to climate change and a low -carbon economy can be seen through:
• Approach – To minimize our carbon footprint, we follow a structured approach. This includes a climate and energy policy, climate change strategy, and key objectives and targets to meet. • Operations – As well as driving energy and cost savings, our operational initiatives help us to meet our climate change goals.
• Performance – We have been reporting on our GHG emissions performance for over 10 years.
By continuing to measure, analyze, and disclose our efforts, we strive to make a real difference each year.
• Supply Chain – As a responsible corporate citizen, we monitor sustainability programs across our full supply chain. This includes targets to reduce GHG emissions and minimize environmental impacts. As an approximate percentage of production spend:
For the third consecutive year, Lenovo has been recognized as one of the 2022 world’s 100 most sustainable companies by Corporate Knights. The Corporate Knights annual ESG-foc used rankings evaluated over 7,000 global businesses which generate more than US$1 billion in revenue. Companies are evaluated based on 23 key performance indicators covering resource management, employee management, financial management, clean revenue, clean investment, and supplier performance.
Product Development
Lenovo has integrated green initiatives into all development operations. Every product development team has an environmentally conscious products focal point and environmental requirements as part of Lenovo’s environmental management system, to which all product development must comply. We actively manage our response to ongoing energy-related regulatory activities such as updates to emerging protocols and regulations, and industry-related standards, including:
• ENERGY STAR
® program specifications
• U.S. Department of Energy (DOE) Appliance and Equipment Standards • California Appliance Efficiency Program requirements
• China CEL and CECP Standards
• EU Ecodesign (ErP) requirements
Lenovo (United States) Inc. 28
In 2020, we used nearly 6 million kilograms of recycled plastics in our products, including approximately 4 million kilograms of closed-loop post-consumer recycled content across a portfolio of 103 products.
Looking toward the future, we will continue to integrate sustainable materials and transition to a circular economy. By 2025, we are aiming for the following:
• 100 percent of PC products will contain post-consumer recycled content materials. • 100 percent of smartphone products and accessories will be free of PVC and BFR. • 90 percent of PC products plastic packaging and 60 percent of smartphone packaging will be made from recycled materials.
• We will have enabled the recycling and reuse of 363 million kilograms of end-of-life products and use 136 million kilograms of post-consumer recycled content plastics in our products.
Greener, Lighter Packaging
Over a decade ago, Lenovo began using 100% recycled and recyclable packaging material. Instead of using polystyrene packaging, we now encourage the use of molded pulp, fiber, and low- density polyethylene (LDPE).
In 2018, we began implementing the use of an innovative, bio-based packaging made from bamboo and sugar cane fiber. The material is not only 100 percent biodegradable, but also lighter than previous packaging and its strength characteristics enable design improvements that reduce overall package size. This new packaging was used to ship memory cards and one of our ThinkPad models.
With lighter packaging materials and package weight, the result was
6.7 percent less transportation CO
2 emissions. We are, therefore, looking to expand the use of this bamboo and sugar cane fiber packaging innovation.
A number of our other green packaging initiatives include the following:
• With 100% recycled thermoformed cushions, our PCs can now be stacked closer together and require less packaging material, helping to minimize shipping costs. • Many of our notebook product lines now use 100% post-consumer molded fiber (or paper pulp) packaging, which can be readily recycled in municipal waste streams. • All Think product primary carton boxes contain a minimum of 50% post-consumer fiber content and are required to use the maximum available post-consumer material. • 98% of ThinkPad products now use recycled cushioning material, with the printing on boxes done via flexography with water-based, non-toxic, RoHS compliant inks. • The high recycled content foam we use for server packaging contains a minimum of 65% recycled resin content.
• We are also working with suppliers to reuse packaging used for shipping between our suppliers and Lenovo factories.
Anti-Discrimination Policy (if applicable)
• Describe your organizations’ anti-discrimination policy.
Maintaining a diverse culture and achieving its full potential is fundamental to the Lenovo’s competitive success. A key element in our workforce diversity programs is the commitment to equal employment opportunity and to prohibit discrimination, harassment, and similarly inappropriate behavior in the workplace. Lenovo’s policy and Code of Conduct commits to providing a work environment free of discrimination and harassment based on race, color, gender, religion, age, nationality, social or ethnic origin, sexual orientation, gender identity or expression, marital status, pregnancy, disability, or veteran status. Company policy prohibits management from making employment decisions based on such characteristics. These business activities and the design and administration of Lenovo’s benefit plans
Lenovo (United States) Inc. 29
must comply with all applicable laws. For qualified employees with disabilities, we will make reasonable accommodations needed for effective job performance in a manner that complies with applicable laws.
Diversity and inclusion have been the building blocks of Lenovo’s history and are among our greatest strengths. Our diverse team of people and locations enables collaboration and sharing across borders and encourages us to adopt the best practices in the markets it serves. Lenovo is bringing awareness about inclusion to all its leaders and employees in a variety of ways, including global anti -harassment training to ensure a workplace free of harassment. This year, we are conducting a global campaign with 100 percent target completion rate for global anti-harassment training.
We understand that a diverse business model starts at the top. Lenovo’s leaders throughout the world hold a deep commitment to these values that fuel long-term growth. We believe that a global workforce should reflect the global customers that it serves, and this begins with leadership that is representative of the various cultures and ethnicities that comprise our internal talent.
Vendor Certifications (if applicable)
• Provide a copy of all current licenses, registrations and certifications issued by federal, state and local agencies, and any other licenses, registrations or certifications from any other governmental entity with jurisdiction, allowing respondent to perform the covered services including, but not limited to, licenses, registrations, or certifications. Certifications can include M/WBE, HUB, and manufacturer certifications for sales and service.
Lenovo maintains the necessary business licenses in the various jurisdictions in which we operate globally, including all states and provinces located in the United States and Canada. Our corporate tax identification numbers are 52-2449153 (US) and 85480-7039 RT0001 (Canada). Lenovo is not classified as a small or disadvantaged business.
Lenovo also maintains the necessary licenses and certifications related to Lenovo's manufacturing operations. For example, Lenovo has achieved certifications such as ISO 14001:2015 (environmental), ISO 50001:2018 (energy management), ISO 45001:2018 (occupational health and safety), and ISO 9001:2015 (quality management systems). We are happy to provide additional details upon request.
Lenovo (United States) Inc. 30
Tab 5 – Products and Services/Scope
Respondent shall perform and provide these products and/or services under the terms of this agreement.
The supplier shall assist the end user with making a determination of their individual needs.
Warranty
Proposal should address the following warranty information:
• Applicable warranty and/or guarantees of equipment and installations including any conditions and response time for repair and/or replacement of any components during the warranty period. • Availability of replacement parts
• Life expectancy of equipment under normal use
• Detailed information as to proposed return policy on all equipment Products
• Vendor shall provide equipment, materials and products that are new unless otherwise specified, of good quality and free of defects
Construction
• Vendor shall perform services in a good and workmanlike manner and in accordance with industry standards for the service provided.
Lenovo’s Limited Warranty
Please note, as Lenovo proposes to utilize the Lenovo Customer Agreement as the basi s for the terms and conditions governing Lenovo’s products and services, the issue of warranty is fully addressed within that Agreement. Installation services are not considered part of warranty service but may be obtained through a value-added service.
Please refer to Attachment A, D, and E inside Lenovo’s Customer Agreement for applicable Warranty Service Terms.
Please refer to Appendix A: Lenovo Customer Agreement on page 50 f or a copy of the Lenovo Customer
Agreement.
W
arranty Parts Process for Lenovo
Lenovo maintains service parts throughout the warranty/service period. Lenovo makes commercially reasonable efforts to maintain service parts for five years from product launch date.
A key fundamental component of product warranty is our Parts Depots. Support for Lenovo Think and System x products is made available through our industry leading parts inventory management system.
This service support system includes automated dispatch, updated service technologies, preventive maintenance activities, and a parts distribution system.
Lenovo’s parts stocking and distribution strategy is for parts to be readily available for delivery to a customer’s location to meet the required levels of service for each machine type. Parts are stocked in Mechanicsburg, PA, for Think and System x products and in Grapevine, TX, for Idea products. Efforts are made to support these geographic areas at an availability level in excess of 80-85 percent of total requirements.
Regardless of warranty status, Lenovo will cross ship new or equivalent-to-new parts the same day they are ordered, provided order is placed before 3 p.m. (ET). For orders received after that time, Lenovo will ship the part out to meet the service response objectives. In many cases, Lenovo does not require receip t of the failed part before sending out a new part.
Lenovo (United States) Inc. 31
Support for third-party products and software is provided directly by the vendor of the product. The combination of an excellent parts inventory, service representative, and additional support structure for Lenovo-branded products will ensure that NCPA receives world-class service coverage.
Life Expectancy
Lenovo Think, notebook, desktop, servers, and workstation products as well System x server and storage products are highly durable and engineered for a four- to five-year lifecycle.
Returns
Lenovo’s return policy for public sector customer is 30 days. When a return is needed due to dead-on- arrival (DOA) devices, damaged product, incorrect quantity, or incorrect product delivered, the claim has to be submitted to the appropriate Lenovo inside sales or customer service representative. After analysis and internal approvals, Lenovo will manage the collection of the product from the customer site. Lenovo will then refund the customer for the amount paid for the product that is returned.
The following is a list of suggested (but not limited to) Technology Solutions, Products and Services categories. List all categories along with manufacturer that you are responding with:
Products
Products Manufacturers
Laptops / Notebooks / 2-in-1s Lenovo and Durabook
Tablets Lenovo
Desktop Computers Lenovo
Workstations – Fixed and Mobile Lenovo
Gaming Devices Lenovo
Chromebooks – Education and Enterprise Lenovo
Servers
High Performance Computing
Data Storage / Drives
Converged Infrastructure
Hyper Converged Infrastructure
Cloud Products
Software Lenovo and third-party partners
Security Solutions Lenovo and third-party partners
Data Protection HW / SW Lenovo and third-party partners Networking
Internet of Things (IOT) Lenovo and third-party partners Sensors & Edge Devices Lenovo and third-party partners
Printers & Accessories Third-party partners
Digital Imaging – Cameras / Scanner Third-party partners Keyboard / Mice / Input Devices Lenovo and third-party partners Memory / System Components Lenovo and third-party partners
Lenovo (United States) Inc. 32
Displays / Large Format Displays / Interactive
Flat Panels
Lenovo and third-party partners
Spare Parts Lenovo
Accessories / Cables Lenovo
Battery Back-up / Power / Surge Protectors Third-party partners Sound / Multimedia Lenovo and third-party partners
Telecommunications Products Motorola
Video – Monitors / Cards / Projector Lenovo and third-party partners Interactive Whiteboards
Commercial-Off-the-Shelf (COTS) Software Lenovo and third-party partners Software-as-a-Service (SaaS) Lenovo and third-party partners Infrastructure-as-a-service (IaaS)
Platform-as-a-Service (PaaS)
Software Licensing and Maintenance
Agreements
Lenovo and third-party partners
Subscription Based Software Licenses Lenovo and third-party partners Software Related Services Lenovo and third-party partners
Lenovo manufacturers a wide range of hardware to meet the entirety of the requirements for government and education customers. We offer various form factors of desktops, towers, small form factors and tiny, and in our notebooks as well, clamshell, 2-in-1 (Yoga), detachable and foldable. We also offer both AMD and Intel options throughout the portfolio. The list below is not exhaustive but represents our core hardware offerings.
Laptops
X Series – X1 Carbon, X1 Extreme, X1 Nano, X1 Yoga, X1
Titanium Yoga, X1 Fold 16, X13, X13s, and X13 Yoga
T Series – T14, T14s, T16, T15p, T15g
L Series – L13, L13 Yoga, L14, L15
E Series – E14, E15
C Series – C14
ThinkBook – 13s, 13x, 14, 14p, 15, 16, 16p
Legion
Mobile Thin Clients
Chromebooks – 10e, 11e, 14e, 14w, 100e, 300e,
500e
Laptop Workstations
P Series – P17, P14s, P15, P15s, P15v, P1
Lenovo (United States) Inc. 33
Desktops
M Series Tower – M90t, M80t, M70t, M75t
M Series Small Form Factor – M75s, M70s, M80s, M90s
M Series Tiny – M75q, M70q, M80q, M90q
M Series Nano – M75 IoT
M Series All in One – M90a, M70a
Tiny-in-One – TIO 22”, TIO 24”, TIO 27”
IoT Smart Edge, Nano IoT and EPC300
Legion, Legion Cube
Thin Client
Desktop Workstations
P Series – P360 Tower/Ultra/Tiny, P520, P520c, P620, P720, P920, P920 Rack
Tablets
X12 Detachable
Android – Tab M8 HD, Smart Tab M8 HD, Tab M10 FHD Plus, Smart Tab M10 FHD Plus w/Google, Smart Tab M10 FHD Plus w/Alexa, Yoga Smart Tab s10 w/Google, P11 Pro
Smartphones
Motorola has a 90-year history of innovation…from the first cellular phone to the first 5G device. As the #3 smartphone manufacturer in North America and a business group within the Lenovo corporate structure, Motorola has steadily grown by being the dominant consumer-centric smartphone manufacturer – solving consumer pain points through innovation to create unparalleled value. Motorola’s portfolio consists of products that have the longest battery life, best cellular performance, enterprise grade security with ThinkShield for Mobile, and durability to protect the devices against everyday spills and splashes.
Motorola offers three product families to meet every need:
• Moto G, “Designed for What Matters” – This value family brings aspirational innovation at assessable price points. Premium features such as a stylus, triple cameras, and large displays are available with the Moto G portfolio.
• Edge, “Expanding Possibilities” – This innovative line is comprised of expert mobile craftsmanship that drives what’s next with features such as Ready For, the fastest 5G, and the best in entertainment and imaging experiences. The Edge family is all about performance, style, and technology.
• Razr, “Redefining Boundaries” – The iconic Razr provides all the conveniences of a modern smartphone in the most compact foldable form factor – a design focused innovation. The Razr is a true industry disruptor and has the largest external display to easily access all your content.
Services
Services Manufacturers
Deployment & Installation Lenovo
Professional Services Lenovo
Consulting Services Lenovo
Security Services Lenovo
Business Continuity / Business Resiliency Lenovo
Disaster Recovery Lenovo
VMware Professional Services Lenovo
Lenovo (United States) Inc. 34
Microsoft Professional Services Lenovo
AWS Product and Services Lenovo
Application Services – End User Lenovo
Application Services – Data Center Lenovo
Residencies Lenovo
Managed Services – End User Lenovo
Managed Services – Data Center Lenovo
Education & Training Lenovo
Telecommunications Lenovo
Product Configurations Lenovo
Product Support Lenovo
Warranty Lenovo
Asset Lifecycle Management Lenovo
Asset Recovery Lenovo
Lenovo Services has a wide array of offerings available to help organizations plan, manage, and support their Lenovo hardware. From initial strategic planning to configuration, deployment, security, and more – Lenovo has services and solutions to help companies embrace new workplace technologies.
Planning Services – Planning services include strategy, assessment, and personal consultation to define the “who, what, where, when, and why” for how an organization can integrate Lenovo solutions.
Lenovo experts work closely with your team to carefully examine and plot out how services will be deployed across the organization’s technology footprint, and how Lenovo can help the organization achieve its business goals. Examples include:
• Lenovo Whiteboard Sessions
• Windows Transition Services
Configuration Services – Configuration services shift the expensive and labor-intensive deskside functions from in-house IT teams to highly skilled Lenovo technicians. These services make sure devices are ready for use when they arrive at your customer’s organization. Configuration services reduce operational costs, minimize downtime, and quickly get employees productive with their new PCs.
Examples include:
• Custom Imaging Services – Includes Image Verification, Image Design/Build, Smart Image Services, Image Management, First-Boot Services, and Custom BIOS • Ready-to-Provision (RTP) Services – Includes RTP Release Control and RTP Plus • Asset Tagging
• Laser Etching
• Custom Carton Labels
• Microsoft Autopilot Registration
• Drop-in-the-Box documentation
Deployment Services – When devices arrive at your location, there are many complex and time- consuming tasks for IT to perform for employees to actually begin using their new PCs with the apps and security the company requires. Lenovo’s Deployment Services shift this burden from internal IT teams to Lenovo technicians. Examples include:
• Chrome OS Zero-Touch Enrollment
• Custom Fulfillment Services
• Advanced Deployment Services
Lenovo (United States) Inc. 35
• Lenovo Cloud Provisioning and Recovery
• Modern IT Kits
Support and Protection Services – Lenovo’s rich portfolio of support and protection services give customers the technical support, backup, and repair services needed to keep devices performing at peak efficiency. This includes Lenovo ThinkShield for critical device security and protection from cybersecurity threats. Other examples include:
• Warranty Extensions and Upgrades
– Accidental Damage Protection
– Sealed Battery Warranty
– Keep-Your-Drive Service
• Depot or Onsite Support Services
• Premier Support
• Legion Ultimate Support
• Services Engagement Management
• ThinkShield security solutions
• Lenovo Device Intelligence Plus
Managed Services – Lenovo Managed Services offer other valuable services for IT teams and a portfolio of Lenovo-developed and partner-developed software solutions, including on-site help desks, compliance monitoring and management, and inventory control. Other examples include:
• Lenovo Project Management Office – Includes help desk augmentation/integration and desktop deployment services
• Lenovo Solution Café, Smart Kiosk, Smart Vending, and Smart Lockers • Advanced Exchange Services
• Staff Augmentation
• Lenovo Device-as-a-Service (DaaS)
Asset Recovery Services – Lenovo offers solutions for the environmentally friendly disposal of units while maximizing residual value and ensuring data security and environmental compliance. Examples include:
• CO
2 Offset
• Asset Recycling
• Value Recovery
• Lenovo Genuine Parts
Financial Services Offerings
Financial Services Offerings Manufacturers
Infrastructure-as-a-Service (IaaS) Lenovo
Leasing for Public and Private/Commercial
Entities with schedules included for:
Lenovo
• Fair Market Value Lease Lenovo
• Purchase Option Lease Lenovo
• Tax Exempt Lease Purchase Lease Lenovo
• Flex Lease Purchase Lenovo
• PC-as-a-Service Lenovo
Lenovo (United States) Inc. 36
• Software Schedule Lenovo
Deferred Payments (Direct and Indirect
Financing)
Lenovo
Payment Agreements Lenovo
Usage Agreements Lenovo
Lenovo offers a complete portfolio of IT solutions under our new TruScale “as-a-Service” umbrella.
Lenovo TruScale Services simplify and optimize everything from hardware, software, and licensing to support and management, with one contract and one point of contact. TruScale consists of two primary building blocks – Infrastructure-as-a-Service and Device-as-a-Service; however, the entire Lenovo portfolio is available as-a-service from a single vendor.
In addition, Lenovo Financial Services or LFS (www.lenovo.com/us/en/outletus/landingpage/lenovo- financial-services/) reinforces Lenovo’s commitment to deliver pioneering products and services recognized for their quality, excellence, and trustworthiness. We offer financing solutions and services that compliment your technology solution anywhere in the world.
LF
S is uniquely qualified to support and manage opportunities with customized and integrated processes.
Additional benefits you may enjoy when financing with LFS include:
• Ability to Bundle Costs – LFS offers the option to finance your entire IT solution including hardware, software, and business partner services into a single transaction and invoice. • Total Life-Cycle Management – We offer life-cycle management of your technology assets from acquisition to disposition allowing your organization to always have the most current technology at the lowest cost.
• Protection Against Advancing Technology – Financing through LFS allows you to deploy the latest technological advances with minimal financial impact or risk. Depending upon the lease structure selected, you can add-on or upgrade during the term of the contract, or you can choose to return, extend, or purchase the assets at the end of the contact. • Lower Upfront Costs – Financing 100% of your purchase reduces deployment costs, providing your organization with an ability to acquire the IT assets you need today without impacting cash flow. In addition to preserving working capital and keeping credit lines intact, using an LFS procurement solution allows a quicker ROI.
Finally, customers with large transactions (i.e., hundreds or thousands of assets) will benefit from LFS’ Premier Client Services. Each large account is assigned a servicing representative as a single point of contact for the lifetime of the relationship.
Lenovo (United States) Inc. 43
Tab 8 – Value Added Products and Services
Include any additional products and/or services available that vendor currently performs in their normal course of business that is not included in the scope of the solicitation that you think will enhance and add value to this contract for Region 14 ESC and all NCPA participating entities.
Commitment to Public Sector
Lenovo’s commitment to the public sector runs deep. Currently, Lenovo is supporting public sector customers in every state in the United States, with more than 1,700 government solution contracts.
Lenovo is on the U.S. General Services Administration (GSA) Multiple Award Schedule (MAS) and has been a tested and proven supplier to federal, state, and local agencies across the country.
We have invested in dedicated account teams focused on federal, state, and local government as well as teams that specialize in K-12 education and higher education. In addition, we have created a dedicated center of excellence (COE) for contracts and procurement to ensure a smooth working relationship with our public sector customers. Also, the COE team can help customers navigate national and state purchasing contracts, ensuring they remain compliant with local mandates.
Lenovo’s long history of delivering quality products has made us the world’s #1 PC and tablet maker. We deliver unprecedented reliability and unbeatable mobility to over 900 state and local agencies across the US. Additionally, over 22 military and civilian federal agencies choose Lenovo to modernize their mission.
Lenovo is a trusted provider to various federal agencies, including the Department of Defense, Department of Veterans Affairs, and the Department of Energy.
We share your commitment to end-to-end security, as evidenced in our TAA-compliant products and supply chain. Additionally, we incorporate NIST and TCG standards as well as TPM 2.0 and secure BIOS firmware for peace of mind. The result is trustworthy technology to drive the most critical gov ernment agency functions.
White Glove Services (Primarily for Education)
Effortlessly migrate and integrate new Chromebooks PCs. Lenovo’s “white glove” service comprises of planning, setup, and end-to-end management of custom rollouts and deployments, reducing cost and time to deploy. Pre-enrolled and activated in the Google console, new PCs integrate seamlessly into the organization’s existing environment, right out of the box. A Lenovo Services project manager works with the customer and service delivery teams to develop a jointly agreed to schedule of services, which likely will include the following tasks.
1. Receive system units and stage the equipment in a climate-controlled warehouse.
2. Unbox all systems and thoroughly inspect for any physical damages or blemishes.
3. Identify any system issues or DOA devices to Lenovo and/or customer.
4. Update the Chrome OS to the latest version.
5. Enroll the Chrome OS devices into customer’s Google Apps domain using an enrollment account that does not require admin privileges.
6. Perform wireless network configuration for customer’s network.
7. Repackage all equipment and then deliver to the final customer location based on the required and established schedule.
White glove services for Windows devices are also available upon request.
Lenovo (United States) Inc. 44
Services to Solidify Security in our Supply Chain
As the technology to serve remote workers is growing more sophisticated, so are the techniques to exploit it. Vulnerabilities in the supply chain can create opportunities for criminals to tamper with PCs, removing or replacing components and causing anything from device malfunctions to stolen or lost data.
In this evolving threat landscape, Lenovo has partnered with Intel to provide Trusted Device Setup Services and Transparent Supply Chain Services to keep customers protected by sealing software at the point of manufacturing and bringing Lenovo security into the transport and delivery cycle. The Transparent Supply Chain Service expands device protection into transport and delivery, minimizing the risk of PC tampering throughout the supply chain. The Trusted Device Setup Service minimizes the risk of preload tampering (in transport or at the partner site). Trusted Device Setup takes place in the factory, whereas Transparent Supply Chain encompasses transportation. Together, these two services create a secure chain of ownership, enabling security from manufacturing through delivery.
Sustainability Services All Around
Lenovo strives to not only make great products but also offer services related to those products that make our customers’ decisions easier and better for the community. End-of-life services such as Asset Recovery Services give customers the peace of mind that their devices are recycled properly with certified data wiped drives and the ability to reclaim any residual value the device may hold. Along with our sustainability approach, we also offer CO2 Offset Services that will cover emissions not only during the manufacturing of the device but throughout the life of the device as well.
Lenovo Whiteboard Sessions
Lenovo works with customers to coordinate a whiteboard session led by a Lenovo Services technical specialist with the support of Lenovo’s Transition Services Team and the Image Technology Center. The session is designed to dive deep into a customer’s current PC lifecycle process with a full , end-to- end review of internal process flows and associated challenges, gaps, and goals. The intent of the deep-dive session is to understand an individual organization’s business objectives and how those impact future deployment solution needs. Lenovo’s whiteboard session summary provides a recommended future PC deployment solution based on an organization’s unique capabilities and infrastructure, along with Lenovo’s innovative configuration services, automation and cloud capabilities, and industry best practices.
The Lenovo Services team documents a customer’s current and recommends future process workflows along with the benefits. A whiteboard session allows different parts of a customer’s organization to collaborate, learn about best practice solutions other customers are using, and discuss how those best practices can be used to create efficiencies in their own process. Creating and documenting this process reduces costs across the deployment, including an 80% reduction in deployment time, and transitions the customer to a user self-serve deployment process allowing their team to focus on other projects.
After the session, Lenovo will provide a customized solution report that maps out the organization’s current imaging processes and deployment workflow, and also recommends deployment services to support an improved, highly efficient workflow leveraging automation with associated cost assumptions.
ThinkShield Security
ThinkShield is a custom solution that secures an organization’s most critical data and business technologies with comprehensive, end-to-end protection. From the moment we envision a new platform, we incorporate a security-by-design approach into the R&D process that extends to our supply chain to deliver on our vision of platform security.
Lenovo ThinkShield solutions seamlessly integrate with our industry-leading Lenovo devices to improve user experience and operational efficacy while helping to minimize overall IT cost. With the rapid digital
Lenovo (United States) Inc. 45
transformation of the workplace, ThinkShield keeps customers protected from the evolving threat landscape with advanced, next-gen security capabilities so that your risks and response times are reduced.
Our holistic approach to security starts with our platform security. Built-in ThinkShield security solutions come standard on Lenovo’s industry-leading Think-branded devices. These include such features as our self-healing bios or the Trusted Supplier program, a rigorous vetting process to ensure every supplier meets the highest standards of trust.
Access to Testing and Demo Equipment
Upon request, Lenovo will provide demo equipment for testing purposes that meet the needs of the organization. Also, Lenovo offers customers the opportunity to buy the demo equipment or return it to Lenovo when testing is complete.
Lenovo (United States) Inc. 46
Tab 9 – Required Documents
Federal Funds Certifications
The following clauses are deemed by Lenovo to not be applicable:
• (D) Davis-Bacon Act, as amended (40 U.S.C. 3141-3148). When required by Federal program legislation, all prime construction contracts in excess of $2,000 awarded by non- Federal entities must include a provision for compliance with the Davis-Bacon Act (40 U.S.C. 3141-3144, and 3146-3148) as supplemented by Department of Labor regulations (29 CFR Part 5, “Labor Standards Provisions Applicable to Contracts Covering Federally Financed and Assisted Construction”). In accordance with the statute, contractors must be required to pay wages to laborers and mechanics at a rate not less than the prevailing wages specified in a wage determination made by the Secretary of Labor. In addition, contractors must be required to pay wages not less than once a week. The non-Federal entity must place a copy of the current prevailing wage determination issued by the Department of Labor in each solicitation. The decision to award a contract or subcontract must be conditioned upon the acceptance of the wage determination. The non- Federal entity must report all suspected or reported violations to the Federal awarding agency. The contracts must also include a provision for compliance with the Copeland “Anti-Kickback” Act (40 U.S.C. 3145), as supplemented by Department of Labor regulations (29 CFR Part 3, “Contractors and Subcontractors on Public Building or Public Work Financed in Whole or in Part by Loans or Grants from the United States”). The Act provides that each contractor or subrecipient must be prohibited from inducing, by any means, any person employed in the construction, completion, or repair of public work, to give up any part of the compensation to which he or she is otherwise entitled. The non-Federal entity must report all suspected or reported violations to the Federal awarding agency.
• Pursuant to Federal Rule (D) above, when a Participating Agency expends federal funds during the term of an award for all contracts and subgrants for construction or repair, offeror will be in compliance with all applicable Davis-Bacon Act provisions
• Any Participating Agency will include any current and applicable prevailing wag e determination in each issued solicitation and provide Offeror with any required documentation and/or forms that must be completed by Offeror to remain in compliance the applicable Davis-Bacon Act provisions.
• (E) Contract Work Hours and Safety Standards Act (40 U.S.C. 3701-3708). Where applicable, all contracts awarded by the non-Federal entity in excess of $100,000 that involve the employment of mechanics or laborers must include a provision for compliance with 40 U.S.C. 3702 and 3704, as supplemented by Department of Labor regulations (29 CFR Part 5). Under 40 U.S.C. 3702 of the Act, each contractor must be required to compute the wages of every mechanic and laborer on the basis of a standard work week of 40 hours. Work in excess of the standard work week is permissible provided that the worker is compensated at a rate of not less than one and a half times the basic rate of pay for all hours worked in excess of 40 hours in the work week. The requirements of 40 U.S.C. 3704 are applicable to construction work and provide that no laborer or mechanic must be required to work in surroundings or under working conditions which are unsanitary, hazardous or dangerous. These requirements do not apply to the purchases of supplies or materials or articles ordinarily available on the open market, or contracts for transportation or transmission of intelligence.
• Pursuant to Federal Rule (E) above, when a Participating Agency expends federal funds, offeror certifies that offeror will be in compliance with all applicable provisions of
Lenovo (United States) Inc. 47
the Contract Work Hours and Safety Standards Act during the term of an award for all contracts by Participating Agency resulting from this procurement process.
• (F) Rights to Inventions Made Under a Contract or Agreement. If the Federal award meets the definition of “funding agreement” under 37 CFR §401.2 (a) and the recipient or subrecipient wishes to enter into a contract with a small business firm or nonprofit organization regarding the substitution of parties, assignment or performance of experimental, developmental, or research work under that “funding agreement,” the recipient or subrecipient must comply with the requirements of 37 CFR Part 401, “Rights to Inventions Made by Nonprofit Organizations and Small Business Firms Under Government Grants, Contracts and Cooperative Agreements,” and any implementing regulations issued by the awarding agency.
• Pursuant to Federal Rule (F) above, when federal funds are expended by Participating Agency, the offeror certifies that during the term of an award for all contracts by Participating Agency resulting from this procurement process, the offeror agrees to comply with all applicable requirements as referenced in Federal Rule (F) above
Lenovo takes exception to the following certification as Lenovo does not provide a blanket compliance statement as it relates to this provision. Requests to expressly state compliance with this provision shall be considered on a case-by-case basis.
• CERTIFICATION OF COMPLIANCE WITH BUY AMERICA PROVISIONS To the extent purchases are made with Federal Highway Administration, Federal Railroad Administration, or Federal Transit Administration funds, offeror certifies that its products comply with all applicable provisions of the Buy America Act and agrees to provide such certification or applicable waiver with respect to specific products to any Participating Agency upon request.
Participating Agencies will clearly identify whether Buy America Provisions apply in any issued solicitation. Purchases made in accordance with the Buy America Act must still follow the applicable procurement rules calling for free and open competition.
Clean Air and Water Act & Debarment Notice
To the best of our knowledge and belief, Lenovo concurs.
Contractors Requirements
Lenovo concurs.
Required Clauses for Federal Assistance by FTA
The entire “Require Clauses for Federal Assistance Provided by FTA” section is deemed by Lenovo to not be applicable.
Federal Required Signatures
Please refer to page 48 for Lenovo’s completed Federal Required Signatures form.
Antitrust Certification Statements Texas Government Code § 2155.005 Please refer to page 49 for Lenovo’s completed Antitrust Certification Statements Texas Government Code form.
State Notice Addendum
Lenovo concurs.
Lenovo (United States) Inc. 48
Federal Required Signatures
Offeror certifies compliance with all provisions, laws, acts, regulations, etc. as specifically noted in the pages above.* It is further acknowledged that offeror agrees to comply with all federal, state, and local laws, rules, regulations and ordinances as applicable.
*
Note: Lenovo certifies compliance with all provisions, laws, acts, regulations, etc. as specifically noted in the pages above with the exceptions noted regarding clauses that do not apply to Lenovo and the Lenovo statement pertaining to the Buy America Provisions.
Lenovo (
United States) Inc. _____
Offeror
8001 Development Drive _ ______
Address
Morrisville, NC 27560__________
City State Zip
___________________________
Authorized Signature
November 17, 2022____________
Date
Lenovo (United States) Inc. 49
Antitrust Certification Statements Texas Government
Code § 2155.005
I affirm under penalty of perjury of the laws of the State of Texas that:
(1) I am duly authorized to execute this contract on my own behalf or on behalf of the company, corporation, firm, partnership or individual (Company) listed below; (2) In connection with this bid, neither I nor any representative of the Company has violated any provision of the Texas Free Enterprise and Antitrust Act, Tex. Bus. & Comm. Code Chapter 15; (3) In connection with this bid, neither I nor any representative of the Company has violated any federal antitrust law; and
(4) Neither I nor any representative of the Company has directly or indirectly communicated any of the contents of this bid to a competitor of the Company or any other company, corporation, firm, partnership or individual engaged in the same line of business as the Company.
Lenovo (
United States) Inc. _____
Company Name
8001 Development Drive _ ______
Address
Morrisville, NC 27560__________
City State Zip
855-2
53- 6686________________
Telephone Number
n/a_________________________
Fax Number
[email protected] _________
Email Address
Darren Estridge _______________
Printed Name
Executive Director___ __________
Title
____________________________
Authorized Signature
Lenovo (United States) Inc. 50
Appendix A: Lenovo Customer Agreement
This appendix includes a copy of the Lenovo Customer Agreement as referenced in our responses within Tab 1 and Tab 2.
COE-00003-01 Lenovo Customer Agreement
04.2022
Lenovo Confidential
Signature Page - Page 1 of 1
Lenovo Customer Agreement
“Personal Computer”
Parties
This Lenovo Customer Agreement (this “Agreement”) is made by and between:
1. National Cooperative Purchasing Alliance (“Customer”) with an office at PO Box 701273, Houston, TX 77270, and
2. Lenovo (United States) Inc. (“Lenovo”) with an office at 8001 Development Dr., Morrisville, NC 27560.
Customer and Lenovo may be referred to collectively as the “Parties” and each individually as a “Party”.
Agreement Structure
The following documents are incorporated into and form part of this Agreement:
Attachment A: General Terms
Attachment B: Pricing, Products , Services Descriptions and Contact Details Attachment C: Warranty Service Information (“Personal Computer”)
This Agreement applies to all Products and Services ordered by Customer in accordance with its terms and conditions.
Each Party accepts the terms of this Agreement by signing either by hand or, where permitted by law, electronically.
Any reproduction of this Agreement, an Attachment or a Transaction Document made by reliable means, such as PDF using email, shall be considered an original. The Parties have caused this Agreement to be executed by their duly authorized representatives as of the Effective Date. After signing, please return a copy of this Agreement to the Lenovo address shown above.
Accepted and agreed for and on behalf of:
Accepted and agreed for and on behalf of:
National Cooperative Purchasing Alliance
Lenovo (United States), Inc.
by:
Authorized signature
by:
Authorized signature
Signatory Name:
(type or print)
Signatory Name:
(type or print)
Signatory Title:
Signatory Title:
Signature Date:
Signature Date:
Lenovo Customer Agreement
COE-00003-01 Lenovo Customer Agreement
04.2022
Lenovo Confidential
Attachment A - Page 1 of 11
ATTACHMENT A
General Terms
1 Definitions
In this Agreement, in addition to the various terms defined elsewhere in this Agreement, the following terms shall be interpreted as follows:
1.1 “Affiliate ” means, with respect to any party, any entity that, during the Term, directly or indirectly controls, is controlled by , or is under common control with such party. For purposes of this definition, “ controls” “controlled by,” and “ under common control with ” mean (i) the ownership, direct or indirect, of (a) more than fifty percent (>50%) of the shares of stock entitled to vote for the election of directors, in the case of a corporation, or (b) more than fifty percent (>50%) or such other controlling interest (as determined by applicable law) in the equity interests of any other type of legal entity (whether in the form of stock or otherwise), or (ii) status as a general partner in any partnership, or any other arrangement whereby a party controls or has the right to control the board of directors or equivalent governing body of a corporation or other entity.
1.2 “Enterprise ” means a Party , and any entity that is controlled by , controls, or is under common control or ownership with such Party, including its sister companies, parent, Affiliates or subsidiaries.
1.3 “Hardware Product ” means a physical programmable electronic Lenovo-b randed or Third Party -branded device designed to process data and perform logic operations, as well as any related device and may include, without limitation, a personal computer, a server, a storage device, and any related accessory and device.
1.4 “Lenovo Pa rtners” means Lenovo and its Affiliates , and their subcontractors, assignees, relevant service providers, distributors and resellers.
1.5 “Machine ” means a Lenovo-branded Hardware Product (to be identified by a “Machine Type”), as well as its features, conversions or upgrades.
1.6 “Machine Code ” means all code provided for a Machine (including, without limitation, a Machine’s firmware and microcode), excluding code that is licensed under a license agreement other than the terms of this Agreement governing the use of Machine Code. The term “Machine Code” specifically includes any whole or partial copy of Machine Code, and any fix, patch, or replacement provided for Machine Code . The licensing of Machine Code is described in Section 8 “Licenses for Machine Code” of this Attachment A “General Terms” below.
1.7 “Materials ” means literary works or other works of authorship, such as Programs and code, documentation, reports, and similar works that Lenovo may deliver to Customer as part of a Service, but excluding Programs, Machine Code, and other items available under their own license terms or agreements.
1.8 “Price ” means, as applicable, the price payable for a Product or the charge payable for a Service.
1.9 “Product ” means any Hardware Product or Program that Lenovo makes available for purchase by Customer under this Agreement.
1.10 “Program ” means any Lenovo-branded or Third Party software, whether in object code or source code form, and whether pre-loaded or provided separately, which is licensed to Customer under a separate license agreement. The term “Program” also includes related licensed materials, such as documentation, but always excludes Machine Code.
1.11 “Service” means the performance of a task, the provision of advice or assistance, or access to a resource such as an information data base that Lenovo makes available to Customer under this Agreement . Unless otherwise agreed hereafter, terms and conditions relating to additional Services other than any warranty services shall be agreed subsequently and set forth in a separate Transaction Document.
1.12 “Third Party ” means any legal entity or individual person which or who is not subject to the terms and conditions of this Agreement, and hence neither a Party nor an Affiliate of a Party.
Lenovo Customer Agreement
COE-00003-01 Lenovo Customer Agreement
04.2022
Lenovo Confidential
Attachment A - Page 2 of 11
1.13 “Transaction Document ” means, strictly subject to Section 18.2 of this Attachment A “General Terms ”, a separate subsequent document accepted by the Parties referencing this Agreement and which contains specific details and terms related to an individual transaction, such as a purchase order, service transaction, statement of work, supplement, product catalog, schedule, invoice, exhibit, change authorization, amendment or addendum and any applicable annex. One or more Transaction Documents may be associated with a single transaction. Each transaction under this Agreement constitutes a separate agreement , and is independent from other such transactions.
2 Orders, Acceptance and Delivery
2.1 Customer may place one or more orders, subject to acceptance by Lenovo, for any of the Products and Services agreed between the Parties under this Agreement, in particular as agreed in a Transaction Document or in an Attachment. Unless agreed otherwise, Customer accepts the terms in Transaction Documents by: (i) signing the relevant Transaction Document, by hand, or electronically or otherwise manifesting assent thereto; (ii) using the Product or Service, or allowing others to do so; or (iii) making any payment for a Product or Service.
2.2 Unless agreed otherwise by Lenovo, acceptance by Lenovo of any such order shall be subject to: (i) proof of Customer’s creditworthiness satisfactory to Lenovo; or (ii) Lenovo’s receipt of a payment guarantee from either Customer or another acceptable guarantor, in a form acceptable to Lenovo.
2.3 A Product or Service becomes subject to this Agreement when Lenovo accepts Customer ’s order by: (i) signing a Transaction Document; (ii) sending Customer written acceptance of the order or billing Customer for the same; (iii) shipping the Product; or (iv) otherwise making the Product or Service available to Customer .
Confirmation of Lenovo’s receipt of a Customer order does not constitute Lenovo’s acceptance of that Customer order.
2.4 Any Transaction Document will require written signature of both Parties, if requested by either Party.
2.5 Delivery dates and shipping dates are estimates, unless otherwise specifically agreed by Lenovo in a Transaction Document.
2.6 For any Program that Lenovo provides to Customer in tangible form, Lenovo fulfils its shipping and delivery obligations upon the delivery of the Program to the Lenovo-designated carrier, unless otherwise agreed to in writing by Customer and Lenovo.
3 Prices, Payment and Taxes
3.1 Prices and related costs for Products and Services shall be as set forth in Attachment B “Pricing, Products, Services Descriptions and Contact Details”, or as otherwise agreed by the Parties in a Transaction Document.
No other discounts, quantity entitlements, or promotions apply unless expressly agreed in writing by Lenovo.
3.2 If not paid in advance of shipment or performance, all amounts due to Lenovo on Services and Products are due upon receipt and not later than thirty (30) days of Lenovo ’s invoice issuance date. Any amounts not received by Lenovo within thirty (30) days of the invoice’s issuance date shall be overdue. In the event payment is not received by Lenovo on or before the 30th day after the date of the invoice, then Lenovo may, in addition to any other remedies available at equity or in law, at its option, elect to do any one or more of the following:
(i) charge interest on the outstanding sum from the due date (both before and after any judgment) at 1.5% per month until paid in full (or, if less, the maximum amount permitted by applicable laws); (ii) suspend any further performance hereunder until such invoice is paid in full; (iii) terminate this Agreement ; and/or sell any undelivered Products in the open market, in which event, Customer agrees to: (a) be liable for any difference between the resale price obtained by Lenovo and the price thereof, as well as for costs and expenses incurred by Lenovo in connection with such resale, and interest as provided herein; and (b) immediately pay such difference to Lenovo upon demand. If Customer fails to take delivery of any Product on any scheduled delivery date, Lenovo shall store such Product as Customer’s agent, and Customer shall be invoiced on the 1st day of each month following such scheduled delivery for reasonable administration and storage costs. Customer shall not have any right to offset any obligation of Lenovo to Customer against any obligation of Customer to Lenovo.
Lenovo Customer Agreement
COE-00003-01 Lenovo Customer Agreement
04.2022
Lenovo Confidential
Attachment A - Page 3 of 11
3.3 Each and every delivery of Products is separate, and Customer agrees not to withhold payment on any one delivery, including, without limitation, a partial delivery, because of a controversy relating to any other delivery or to any undelivered Products . In the event of delivery by installments, whether by prior agreement of the Parties or otherwise, delivery of one or more such installments shall not relieve Customer of its obligation to accept and pay for remaining installments.
3.4 Customer shall pay any applicable sales, use or similar taxes, fees or duties on Services and Products, unless Customer provides exemption documentation to Lenovo. Customer becomes responsible for taxes on (i) Hardware Products and Programs pre-loaded on Hardware Products from the date Lenovo has delivered them to the Lenovo-designated carrier for shipment to Customer, (ii) Programs from the date Lenovo has made them available or accessible to Customer, and (iii) Services from the date on which the Services are provided by Lenovo. Lenovo shall be solely responsible for paying all taxes on Lenovo’s net or gross income. 4 Title and Risk
4.1 When Customer orders any Hardware Product , Lenovo transfers title to Customer upon delivery of the Hardware Product at the Lenovo-designated carrier for shipment to Customer. Lenovo does not transfer title to any Program, which Program is solely licensed in accordance with its applicable terms and not sold.
4.2 For each Hardware Product supplied by it, Lenovo bears the risk of loss or damage up to the time it is delivered to the Lenovo-designated carrier for shipment to Customer. At no cost to Customer, each Hardware Product supplied by Lenovo will be covered by insurance, arranged, managed and paid for by Lenovo or one of its Affiliates for Customer, covering the period until the Hardware Product is delivered to Customer. For the avoidance of doubt, pursuant to Attachment B “Pricing, Products, Services Descriptions and Contact Details” Lenovo will bear freight and duty charges incurred in importing Hardware Products and delivering them to Customer, unless otherwise specifically agreed by Lenovo in a Transaction Document. 5 Warranties
5.1 Warranties for Lenovo Hardware Products: Lenovo warrants that each Lenovo-branded Hardware Product supplied under this Agreement is free from defects in materials and workmanship under normal use during the applicable warranty period. Unless Lenovo specifies otherwise, Lenovo’s warranties for any Lenovo Hardware Product apply only in the country where it was acquired. Unless otherwise specified in a Transaction Document, the warranty period shall commence on the invoice’s issuance date. During the warranty period, Lenovo shall provide repair and exchange service for the Lenovo Hardware Product, without charge, under the type of warranty service designated by Lenovo for the Hardware Product . If a defect in materials or workmanship is discovered during the warranty period and Lenovo is unable either: (i) to repair the Lenovo Hardware Product; or (ii) to replace it with one that is at least functionally equivalent, Customer may return the Lenovo Hardware Product to Lenovo for a pro-rated refund. Lenovo may change components or parts of a Lenovo Hardware Product without notice, provided that the substituted components or parts provide equal or better performance. Any such change shall be at no additional cost to Customer , and will not change Customer’s rights under the warranty applicable to the Lenovo Hardware Product.
5.2 Warranty for Third Party Hardware Products: Lenovo offers no warranty in respect of Third Party Products under this Agreement. Where the supplier or producer of any Third Party Product offers its own warranty, and to the extent that Lenovo is free to do so, Lenovo will upon request endeavor to transfer associated warranty service and other rights to Customer, subject always to the applicable Third Party’s terms and conditions.
5.3 Warranty for Services: Lenovo warrants that it will perform each Service using reasonable care and skill and according to its current description, including any completion criteria, contained in this Agreement or a relevant Attachment or Transaction Document. Customer shall provide timely written notice to Lenovo of any failure to comply with this warranty not later than thirty (30) days after completion of the Service at issue identifying the failure with reasonable particularity, in order that Lenovo may take corrective action as specified in the following sentence. Lenovo will either correct the failure or provide a credit of the charges paid to Lenovo for the defective portion of the Services. Such corrective action shall be Customer’s sole remedy for a breach of this Section 5.3 “Warranty for Services”.
5.4 Warranty for Programs: Lenovo does not offer any warranty in respect of Programs under this Agreement.
See Section 6 “Programs” of this Attachment A “General Terms ” for where to locate warranty terms for Programs, if any.
Lenovo Customer Agreement
COE-00003-01 Lenovo Customer Agreement
04.2022
Lenovo Confidential
Attachment A - Page 4 of 11
5.5 Specific Exclusions: The warranties in this Section 5 “Warranties” are made to and for the benefit solely of the specific buyer under this Agreement and are non-transferable. The warranties stated in this Section 5 “Warranties” shall not apply to any Lenovo Hardware Product: (i) that: (a) has been subjected to misuse, accident, unauthorized modification, improper installation, damage or mishandling, or rendered inoperable due to willful or negligent acts or omissions; (b) has been operated in an unsuitable physical or operating environment or contrary to the applicable documentation published by Lenovo; (c) has been subjected to natural disasters, power surges or discharge, or unauthorized maintenance; or (d) is incapable of being tested by Lenovo under its normal test conditions; or (ii) that is sold for beta, evaluation, testing or demonstration purposes. Lenovo shall not be liable under this Section 5 “Warranties” for claims arising from Customer’s, its Affiliates’ or their subcontractors’, or any unauthorized Third Party’s misuse, neglect, improper installation or testing, attempts to repair, or any other cause beyond the range of the intended use of the Lenovo Hardware Product. The Lenovo Hardware Product warranty will become void if a Hardware Product component is installed as an add-on to or replacement for the original Lenovo Hardware Product, without Lenovo ’s prior written approval. Unless otherwise agreed or mandated by statute, such warranties shall not apply to: (1) any Third Party Hardware Product, including those that Lenovo may provide or integrate into a Lenovo Hardware Product at Customer’s request; or (2) any Program, whether provided with a Lenovo Hardware Product or installed subsequently. The warranties stated in this Section 5 “Warranties” also: (x) do not include any technical support, such as assistance with “how-to” questions and those regarding Lenovo Hardware Product set-up and installation; and (y) shall be voided by the removal or alteration of identification labels on a Lenovo Hardware Product or its parts. In no event shall the warranties stated in this Section 5 “Warranties” include any Lenovo responsibility for: (A) uninterrupted or error-free operation of any Product; (B) correction of any or all program or Program code defects; or (C) any loss of, or damage to, data caused by a Product.
5.6 General Exclusions: TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE WARRANTIES SET FORTH UNDER THIS SECTION 5 “WARRANTIES” ARE EXCLUSIVE AND IN LIEU OF ALL OTHER
WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY
IMPLIED WARRANTIES OF MERCHANTABILITY OR SATISFACTORY QUALITY, NON -INFRINGEMENT OR FITNESS FOR A P ARTICULAR PURPOSE, WHICH LENOVO HEREBY EXPRESSLY DISCLAIMS.
UNLESS OTHERWISE EXPRESSLY SPECIFIED, ALL SOFTWARE, MACHINE CODE , PROGRAMS, SERVICES, SUPPORT AND ALL THIRD PARTY PRODUCTS AND SERVICES ARE PROVIDED “AS IS”,
WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, AND LENOVO MAKES NO WARRANTY THAT ANY PRODUCT WILL OPERATE ON AN UNINTERRUPTED OR ERROR-FREE BASIS. THIRD PARTY
MANUFACTURERS, SUPPLIERS, DEVELOPERS, SERVICE PROVIDERS, LICENSORS OR PUBLISHERS MAY SEPARATELY PROVIDE THEIR OWN WARRANTIES TO CUSTOMER. 6 Programs
Unless otherwise agreed in this Agreement, all terms and conditions for any Program purchased under this Agreement, whether Lenovo or Third Party branded, including but not limited to warranty terms, liability and the use of such Program will solely be governed by its own specific Lenovo or Third Party license terms, as separately provided to or agreed by Customer, as the case may be, before its act ual use. In case, but to the extent only, of any conflict between any of the terms and conditions of this Agreement and those of the license agreement for any such Program, the latter will prevail solely as regards the Program. 7 Specified Image
7.1 The Parties may agree that Lenovo will install a specific “system image” consisting of a specified set of Customer-selected Programs and modules (a “Specified Image”) requested and provided by Customer onto a Lenovo Hardware Product supplied under this Agreement.
7.2 Unless specifically agreed otherwise in writing: (a) Lenovo will act as Customer’s agent when installing Specified Images; (b) Lenovo’s warranty and other Hardware Product -related obligations, including without limitation regarding technical performance, interoperability and Third Party rights compliance, shall be limited to Lenovo Hardware Products in their unmodified state; and (c) Lenovo shall only be liable to provide Hardware Product warranty service to Customer for any Lenovo Hardware Product on which a Specified Image is installed to the extent that the fault reported by Customer can be recreated on the Hardware Product in its standard, unmodified state. Any faults should be reported to Lenovo in writing by Customer not later than ninety (90) days following delivery of the Lenovo Hardware Product to Lenovo’s designated carrier, or the faults will be considered waived.
Lenovo Customer Agreement
COE-00003-01 Lenovo Customer Agreement
04.2022
Lenovo Confidential
Attachment A - Page 5 of 11
8 Licenses for Machine Code
Customer acknowledges that each Machine contains Machine Code. Regardless of the source from which Customer acquires a Machine, the Machine Code shall be subject to the terms of the license agreement included with the relevant Machine. Customer’s use of Machine Code on a Machine is governed by the terms of the applicable Lenovo License Agreement which is available on or through Lenovo’s support website at https://support.lenovo.com/, or other wise will be provided upon request. 9 C onfidentiality
9.1 Any non-public information which is received under this Agreement by one Party from the other and which is clearly marked as “confidential” (“Confidential Information”) shall be (i) maintained in confidence during the term of this Agreement and for two (2) years following termination or expiration of this Agreement (or, if it is Confidential Information additionally marked as and comprising a “trade secret,” for so long as it remains a trade secret under applicable law), (ii) used only for the purpose of fulfilment of the receiving Party’s obligations under this Agreement, and (iii) protected during such periods against unauthorized disclosure by the receiving Party, except for the following permitted disclosures: (a) disclosure to the receiving Party’s Affiliates, employees and contractors with a business “need to know” for the exercise of the receiving Party ’s rights or fulfilment of its obligations under this Agreement, provided that such further recipients are also obligated by the receiving Party to protect the Confidential Information to the same extent as the receiving Party under this Section 9 “Confidentiality” and (b) disclosure with the prior written consent of the disclosing Party. Further, the receiving Party is permitted to disclose any protected Confidential Information of the disclosing Party, to the extent required by law, on condition that in any such case the receiving Party promptly notifies the discloser (to the extent not prohibited by applicable law), to allow the disclosing Party a reasonable opportunity to seek a protective order. Confidential Information is provided with no warranty, and without liability as to its accuracy or completeness. Confidential Information disclosed to a third party, notwithstanding a valid consent provided under this Agreement or in the event of an unauthori zed disclosure, remains Confidential Information under this Section 9 “Confidentiality”. The terms of this Agreement are the Confidential Information of Lenovo.
9.2 Information shall not be considered “Confidential Information” under this Section 9 “Confidentiality”, and the receiving Party is free to disclose it, if: (i) the information was already in the recipient’s possession without obligation of confidentiality at the time of its re ceipt from the receiving Party ; (ii) the information was independently developed by the receiving Party without use of the Confidential Information of the disclosing Party; (iii) the information was obtained from a third party without obligation of confidentiality to the disclosing Party; (iv) the information was or becomes publicly available through no breach of this Agreement by the receiving Party or its Affiliates, employees and contractors; or (v) the disclosing Party reveals the information to a third party without imposing an obligation of confidentiality on the third party.
9.3 The terms of this Section 9 “Confidentiality” supersede and replace the terms of any confidentiality or non- disclosure agreement entered into by and between the Parties prior to the Effective Date (an “NDA”), provided however that any such NDA shall remain effective in accordance with its terms with respect to any confidential information disclosed under it by the Parties prior to the Effective Date. 10 Personal Information
10.1 Lenovo will collect, access, retain and, as appropriate, share (collectively “ Process”) the names and contact information of Customer, as well as machine types and serial numbers of the Products sold to Customer (collectively “ Personal Information ”). This Personal Information will be Processed by Lenovo in order to perform the obligations of this Agreement, including contractual warranties.
10.2 Lenovo will Process Personal Information of Customer consistent with its general website and product privacy statements available at https://www.lenovo.com/us/en/privacy/ an d/or, as applicable, privacy statements designed for a specific Lenovo Product or Service.
10.3 T o perform its obligations pursuant to this Agreement in relation to the Products and Services, Lenovo may transfer Personal Information (i) from any country to any other country in the world where Lenovo and its Enterprise operate, and (ii) to Lenovo’s Enterprise and Lenovo Service Providers acting on Lenovo’s behalf in relation to this Agreement and/or the Products or Services.
Lenovo Customer Agreement
COE-00003-01 Lenovo Customer Agreement
04.2022
Lenovo Confidential
Attachment A - Page 6 of 11
10.4 Lenovo and Customer will comply with all data privacy or data protection laws applicable to their Processing of Personal Information pursuant to this Agreement.
10.5 Lenovo and Customer will have appropriate technical and organizational security measures in place to protect Personal Information from unauthorized access, use, or release.
10.6 If Customer accesses any Personal Information directly from a Lenovo order visibility platform or other data system, Customer (i) shall have in place appropriate administrative, physical, and technical controls to address threats to the confidentiality and security of Lenovo’s platform or data system and associated information and (ii) shall not transfer across international borders any Personal Information it receives from Lenovo without Lenovo’s express prior written consent.
10.7 Lenovo and Customer agree to cooperate as needed to address any actual or suspected Personal Information incident that may occur within the scope of this Agreement, including actual or suspected breaches of Personal Information, and to take any necessary steps to investigate, address, remediate and/or mitigate such incidents.
10.8 Furthermore, Lenovo and Customer agree to appropriately respond to any individual’s requests to review, correct, amend or delete his or her Personal Information Processed within the scope of this Agreement. 11 Additional Customer Responsibilities
11.1 As may be reasonably required by Lenovo , Customer shall provide Lenovo with sufficient and safe access (including remote access authorized by Customer) to Customer’s facilities, systems, information, personnel, and resources, all at no charge to Lenovo . Lenovo shall not be responsible for any delay in performing or failure to perform caused by Customer’s delay in providing such access or performing other Customer responsibilities under this Agreement.
11.2 If Customer is making any facilities, software, hardware or other resources available to Lenovo in connection with this Agreement: (i) Customer shall obtain any Third Party approvals, consents, licenses or permissions related to these resources that may be necessary for Lenovo, or its Affiliates, and/or Lenovo Partners to perform the Services; (ii) Lenovo shall be relieved of any obligation that is adversely affected by Customer’s failure promptly to obtain any of the foregoing; and (iii) Customer shall reimburse Lenovo for any costs and other amounts that Lenovo may incur related to Customer’s failure to obtain any of the foregoing.
11.3 Customer will at all times remain responsible for: (i) the implementation and management of its own data backup and recovery arrangements for any data stored on Customer’s Hardware Products.
11.4 Unless otherwise agreed in an Attachment or a Transaction Document , Customer is responsible for: (i) any data, and the content of any database stored on the Hardware Products or that it makes available to Lenovo in connection with this Agreement; and (ii) the selection and implementation of procedures and controls regarding access to its data, and the security, encryption, protection from unauthorized use, and transmission of data. Lenovo’s responsibilities regarding any such data or database, including any obligations related to data subjects’ rights or the confidentiality and security of the data, will be governed by the specific Transaction Document applicable to the particular Service transactions, which are subject to the provision of Section 17 “Limitation of Liability” of this Attachment A “General Terms” and other terms and conditions of this Agreement. 12 Returns
If for any reason, whether based on applicable law or on a specific contractual provision under this Agreement, Customer is entitled to return a Hardware Product to Lenovo, Customer is responsible, before returning the Hardware Product for: (i) resetting t he system to its original factory settings as provided by Lenovo to Customer; (ii) ensuring that such Hardware Product is entirely free of any Customer or Third Party security interest or deposit; and (iii) securely erasing any Customer or Third Party personal and other data stored on the Hardware Product. If Customer fails to do so, Lenovo shall be entitled to erase all such stored data. Lenovo is not responsible to maintain any program or other data stored in or on any returned Hardware Product and shall not be liable for any such data. Lenovo may operate disposal procedures according to Lenovo defined processes and in accordance with applicable laws. In any event, Customer shall not return any Hardware Products to Lenovo unless Customer has obtained a returned goods authorization from Lenovo for the applicable Hardware Products, and otherwise complies with the return policy of Lenovo then in effect.
Lenovo Customer Agreement
COE-00003-01 Lenovo Customer Agreement
04.2022
Lenovo Confidential
Attachment A - Page 7 of 11
Customer may return a new, standard Product that is still in its sealed, unopened package, to Lenovo for any reason within twenty-one (21) days of the date of invoice for a refund or credit. Customers may only return the entire Product or all such Products for a refund or credit. Partial refunds or credits for Products that are not standard; or Products configured to Customer’s requirements, including installation of software Product options; or quantities of Products that are not separately priced, are not available to Customers. In order to receive a credit or refund, Customer must contact its Lenovo Customer Support Representative to obtain a return-authorization form. Customer must return the new Product, including all documentation and accessories, intact and in its unopened original packaging to the location and by the date specified by Lenovo.
A copy of the invoice, the return-authorization form, and the shipping label must accompany the returned Product. Shipping and handling charges will not be refunded or credited to Customer. Products returned without a Lenovo return-authorization form, or returned after the date specified by Lenovo, may be subject to a restocking fee in the amount of fifteen percent (15%) of the price paid.
Customer agrees to pay the restocking fee if charged by Lenovo. A refund or credit is not available for the return of Products which are not generally available to customers and for which Lenovo created a unique machine type model (MTM) or a part number. Returns of Products shipped as a result of a Lenovo error will be accepted by Lenovo. Lenovo will initiate a return of such Products with appropriate documentation at no charge to Customer if Lenovo is notified of the error within twenty one (21) days of the date of the invoice. If Customer acquired a software Product separate from a hardware Product, and paid a software license fee, but does not agree to the terms of the license, Customer may return the software Product within twenty one (21) days of the date of invoice and receive a refund or credit in the amount of the fee. 13 Export Regulations
Any use, export, re-export, or transfer in- country, either directly or indirectly, of Products and technical data supplied by Lenovo under this Agreement is subject to applicable export laws and regulations, including without limitation those of the United States and the European Union. Customer is responsible for compliance with all applicable export laws and regulations when using, exporting, re-exporting, or transferring in-country, directly or indirectly, any such Product or technical data. Customer shall defend, indemnify and hold Lenovo and its Affiliates harmless from any claim, damage, liability or expense (including but not limited to reasonable attorneys’ fees, costs of investigation, and costs of defense) arising out of or in connection with any violation of this Section 13 “Export Regulations”.
This Agreement shall immediately terminate in the event Customer is listed as a restricted party on any sanctions list including, but not limited to, the United Nations Sanctions List, United States Treasury Department’s Office of Foreign Asset Control Specially Designated National List; and the United States Department of Commerce’s Denied Parties List, Entity List, or Un verified List. Lenovo shall have no further obligations under this Agreement until Customer is no longer designated a restricted party. 14 Force Majeure
Except for payment obligations, neither Party shall be liable to the other for any failure or delay in the performance of its obligations, to the extent such failure or delay is caused by: fire, flood, earthquakes, or other elements of nature; acts of war; terrorism, riots, strikes, labor stoppages, civil disorders, rebellions or revolutions; epidemics, communication line or power failures; governmental laws, court orders or regulations; or any other cause beyond its reasonable control.
15 Intellectual Property Rights
15.1 Lenovo and its suppliers retain ownership of all their pre- existing intellectual property as well as intellectual property rights that were developed outside of this Agreement and any modifications or enhancements of such intellectual property that may be made under this Agreement . To the extent they are embedded in any Materials, such intellectual property is licensed in accordance with their separate licenses provided to or agreed with Customer.
15.2 Lenovo and its suppliers shall own all intellectual property rights in Materials created as part of a Services transaction. Lenovo grants Customer an irrevocable, nonexclusive, worldwide, paid-up license to use, execute, reproduce, display, perform and distribute copies of these Materials only to Customer’s Affiliates.
Lenovo Customer Agreement
COE-00003-01 Lenovo Customer Agreement
04.2022
Lenovo Confidential
Attachment A - Page 8 of 11
15.3 Each Party agrees to reproduce the copyright notice and any other legend of ownership on any copies made under the licenses granted in this Section 15 “Intellectual Property Rights”.
15.4 Each Party grants the other only the licenses and rights expressly specified in this Agreement. Unless agreed by the Parties in a separate license agreement, no other licenses or rights to Products (including licenses or rights under any patent, copyright, trademark or any other intellectual property right) are granted either directly, by implication, or otherwise by either Party.
15.5 The rights and licenses granted to Customer under this Agreement may be terminated by Lenovo if Customer fails to fulfil its applicable payment obligations.
15.6 Unless otherwise agreed, neither Party grants the other the right to use its or any of its Affiliates’ trademarks, trade names, logos or other designations in any promotion or publication without prior written consent. 16 Intellectual Property Indemnification
16.1 If a Third Party files a lawsuit against Customer claiming that a Lenovo-branded Product infringes that party’s patents or copyrig hts (hereinafter referred to as a “ Claim”) for the purposes of this Section 16 “Intellectual Property Indemnification” , Lenovo will indemnify Customer against that Claim at Lenovo’s expense. At Lenovo’s option, Lenovo may also defend Customer against that Claim at Lenovo’s expense.
16.2 Lenovo’s obligations under this Section are conditioned on the following: (1) Customer promptly notifies Lenovo in writing of the Claim ; (2) if Lenovo elects to defend, Lenovo will solely control the conduct of the defense and any settlement of the Claim and Customer must fully and timely cooperate with Lenovo and provide Lenovo with all reasonably requested authority, information and assistance in connection with defense of the Claim; and (3) Customer is and remains in compliance with the terms of this Agreement , including Customer's obligations under this Section 16 “Intellectual Property Indemnification” . Lenovo will not be responsible for any costs, expenses or compromise incurred or made by Customer without Lenovo’s prior written consent.
16.3 If such a Claim is made or appears likely to be made, and Customer maintains an inventory of Products, Customer shall permit Lenovo, in Lenovo’s sole discretion, to: (1) enable Customer to continue to use and sell the Products; (2) modify the Products so that they are non-infringing; (3) replace the Products with non- infringing, functionally-equivalent products; or (4) provide a credit to Customer equal to the net book value of any Products that Customer promptly returns to Lenovo at its written request.
16.4 Lenovo shall have no obligation regarding any Claim based on: (1) anything Customer or a Third Party on Customer's behalf provides which is incorporated into, or combined with a Product; (2) modification of a Product by Customer or a Third Party on Customer's behalf; (3) the combination, operation, or use of a Product with any products not provided by Lenovo as a system, or the combination, operation, or use of a Product with any product, data, apparatus or business method that Lenovo did not provide; (4) Lenovo’s compliance with Customer’s specifications or requirements; or (5) infringement by a Third Party product alone and used by Customer, as opposed to its combination with Products; or (6) any standard essential patent ((1) through (6) are collectively the “ Customer Obligations”). Customer will defend and indemnify Lenovo for all costs and damages arising from infringement claims against Lenovo based upon the Customer Obligations provided that (a) Lenovo promptly notifies Customer in writing of such claim; (b) Customer will solely control the conduct of the defense and any settlement of such claim and Lenovo must fully and timely cooperate with Customer and provide Customer with all reasonably requested authority, information and assistance in connection with defense of the claim; and (c) no settlement of such claim shall be made without Lenovo’s prior written consent if the settlement would result in a payment from Lenovo or in any ongoing obligation or restriction on Lenovo or a Product.
16.5 The foregoing is Lenovo’s entire obligation to Customer, and Customer’s exclusive remedy, regarding any Claim.
17 Limitation of Liability
17.1 Except as expressly stated in this Agreement, neither Enterprise shall be liable to the other Enterprise for any of the following even if informed of their possibility or foreseeable and whether the claim arises in contract, tort (including gross negligence where legally permissible) , or otherwise: (1) third-party claims for damages; (2)
Lenovo Customer Agreement
COE-00003-01 Lenovo Customer Agreement
04.2022
Lenovo Confidential
Attachment A - Page 9 of 11
loss of, or damage to, data; (3) special, incidental, indirect , punitive, exemplary or consequential damages; (4) loss of profits, business, revenue, goodwill or anticipated savings; (5) loss of use; or ( 6) wasted management time.
17.2 The maximum cumulative liability of either Enterprise to the other Enterprise for all actions arising out of or related to this Agreement and all orders issued hereunder, regardless of the form of the action or the theory of recovery, sh all be limited to actual direct damages, not to exceed the total amount paid or payable by Customer and the Enterprise of which it is a part to Lenovo and the Enterprise of which it is a part for all orders issued under this Agreement.
17.3 The provisions of Sections 17.1 and 17.2 of this Attachment A “General Terms” shall also limit the liability of Lenovo, its subcontractors, suppliers and program developers, collectively, to Customer and the Enterprise of which it is a part.
17.4 The provisions of Sections 17.1 and 17.2 of this Attachment A “General Terms” shall not apply to either Party’s obligations under Sections 16 “Intellectual Property Indemnification” of this Attachment A “General Terms”.
17.5 The provisions of this Section 17 “Limitation of Liability” shall not apply to the extent prevented or restricted by mandatory applicable law (including without limitation in relation to fraud) that cannot be amended or excluded by contractual waiver.
18 Entire Agreement and Conflicts
18.1 This Agreement, including the Attachments described on the cover page, any Transaction Documents hereunder, and any other referenced terms and conditions incorporated herein form the entire Agreement of the Parties with respect to the subject -matter of this Agreement, and together replace any prior or contemporaneous agreements, understandings, communications, representations, undertakings, warranties, promises, covenants, and commitments, whether oral or written, between the Parties regarding the subject- matter of this Agreement.
18.2 Unless otherwise agreed herein or otherwise, additional or different terms, Product descriptions, statements of work or sim ilar Transaction Documents shall only become part of this Agreement if agreed in a signed written document executed by the Parties, in particular where the provisions of this Agreement are incorporated or referenced. Additional or different terms in any other written communication without the written consent of Lenovo, such as on a purchase order, are void.
18.3 In the event, but only to the extent, of any conflict between the provisions of this Agreement, and those of any of its Attachments or any other document incorporated into this Agreement, the following order of precedence shall apply:
(1) any subsequent Transaction Document created under, and referring to, this Agreement shall prevail as to the specific Products or Services referenced therein; provided that, to the extent there is any conflict among Transaction Documents, the most recently executed Transaction Document will prevail over any other previously executed Transaction Documents; (2) any Attachment to this Agreement;
(3) these General Terms.
19 Term and Termination
19.1 The term of this Agreement shall begin on xx/xx/xxxx Date and continue for three (3) years with option to renew for up to five (5) additional one-year terms or any combination of time equally not more than 5 years if agreed to by Region 14 ESC and the vendor.
19.2 E ither Party may terminate this Agreement early without cause upon thirty (30) days’ prior written notice to the other Party. Either Party may terminate this Agreement early if the other Party, materially breaches the terms of this Agreement ; provided the Party alleged not to be in compliance is given written notice of the non - compliance and not less than thirty (30) days to cure, except in the event of a non-payment in which case only
Lenovo Customer Agreement
COE-00003-01 Lenovo Customer Agreement
04.2022
Lenovo Confidential
Attachment A - Page 10 of 11
ten (10) days to cure shall be required. Any transaction validly initiated under this Agreement shall remain governed by the terms and conditions of this Agreement until completion, notwithstanding any early termination of this Agreement, unless otherwise agreed by the Parties in writing.
19.3 Any terms of this Agreement which expressly or by their nature survive the expiration or termination of this Agreement, including but not limited to Section 15 “Intellectual Property Rights” and Section 17 “Limitation of Liability” of this Attachment A “General Terms”, shall survive the expiration or termination of this Agreement. 20 Assignment
Neither Party may assign this Agreement , in whole or in part, without the prior written consent of the other Party. Neither Party shall unreasonably withhold, condition or delay such consent. The assignment of this Agreement, in whole or in part by either Party to any of its Affiliates, or to a successor organization by merger or acquisition, does not require the consent of the other Party unless the proposed assignee of Customer is a competitor of Lenovo. Lenovo may assign its rights to receive payments under this Agreement without Customer’s consent.
21 Governing Law and Venue
This Agreement and all orders issued hereunder will be governed under the laws of the State of New York, without regard to its conflict of law principles. Neither party may bring an action arising out of or related to this Agreement more than two (2) years after the cause of action arose. 22 Miscellaneous
22.1 The Parties shall endeavor in good faith to amicably resolve any dispute arising out of or in connection with this Agreement and will cooperate to escalate any disputes to their management teams, as appropriate.
22.2 Customer may not bring an action arising out of or related to this Agreement more than one (1) year after the cause of action arose. The rights and obligations of each Party are valid only in the jurisdiction in which the transaction is performed or, if Lenovo agrees, where the Product is placed in productive use, except that all licenses are valid as specifically granted. Nothing in this Agreement affects any statutory rights of consumers that cannot be waived or limited by contract.
22.3 Unless otherwise agreed in writing in advance by Lenovo under a Transaction Document, Products are sold under this Agreement for Customer’s own use and not for onward resale, lease or rental, other than to an Affiliate of Customer. If Customer sells, leases or rents Products or Services purchased from Lenovo in competition with Lenovo resellers, Lenovo may terminate this Agreement and any open transactions hereunder with immediate effect and discontinue further sales to Customer.
22.4 Notices and other written communications are to be sent to the physical, e-mail or facsimile address specified in an appli cable Attachment or Transaction Document. Electronic mail can be used to send and receive communications in connection with this Agreement . All such communications shall be considered a signed writing. An identification code or “user ID” contained in an electronic document shall be sufficient to verify the sender’s identity and the document’s authenticity.
22.5 The Parties are independent contractors. Neither this Agreement nor any transaction hereunder shall create the relationships of principal and agent, joint venturers, partners, or employer or employee as between Customer and Lenovo or their respective Affiliates.
22.6 Each Party shall assign personnel that are reasonably qualified to perform the tasks required of it under this Agreement, and shall be solely responsible for the supervision, direction, control, and compensation of its personnel. Subject to the foregoing, the Parties and their relevant Affiliates may in their sole discretion determine the assignment of their personnel and contractors. Lenovo may delegate any of its rights and obligations under this Agreement to an Affiliate. Lenovo may engage subcontractors to perform this Agreement; provided that Lenovo shall be responsible for the performance of Services under this Agreement by its subcontractors.
Lenovo Customer Agreement
COE-00003-01 Lenovo Customer Agreement
04.2022
Lenovo Confidential
Attachment A - Page 11 of 11
22.7 Either Party may enter into similar agreements with others to develop, acquire, or provide competitive products and services.
22.8 No Third Party beneficiaries are intended to this Agreement. To the fullest extent permitted by applicable law:
(i) no right or cause of action arises or is created, irrespective of whether in contract, tort, under the law or otherwise, in favor of any Third Party under this Agreement or any transaction hereunder; and (ii) no Third Party shall have any right to enforce any of the terms and conditions of this Agreement or of any agreement associated with any transaction hereunder, except that Lenovo ’s suppliers may avail themselves of Section 17 “Limitation of Liability” of this Attachment A “General Terms”.
22.9 Customer is responsible for selecting the Products and Services that meet its needs and for the results obtained from the use of the Products and Services , including Customer ’s decision to implement any recommendation concerning Customer’s business practices and operations. Customer may not and shall not rely on Lenovo for any of the foregoing.
22.10 Where approval, acceptance, consent or similar action by Customer is required under this Agreement , such action will not be unreasonably delayed, conditioned or withheld.
22.11 The English versions of this Agreement and the Transaction Documents, regardless of whether a translation in any other language is or shall be made, shall be the only authentic ones. Any translation of this Agreement or a Transaction Document in another language prepared for any reason shall be a non-bi nding accommodation of no legal effect, and the English version of this Agreement or a Transaction Document , including any amendments thereto, shall govern.
22.12 Except as set forth in Section 3 of Attachment B “Pricing, Products, Service Descriptions and Contact Details”, this Agreement may be amended solely by a writing signed by both Parties 23 Lenovo Resellers
Lenovo provides different ways to purchase Products and Services, depending on the region and/or choice of Customer: “Direct” purchase means that the Product or Service is available for purchase directly from Lenovo and subject to this Agreement; and “Indirect ” purchase means that the Product or Service is available for purchase from a Lenovo reseller. Indirect purchase of Products or Services from a reseller shall be subject to such terms and conditions, as well as prices , as Customer and reseller may agree. Lenovo shall not be responsible for: (i) the actions of any such reseller; (ii) any obligation that such reseller may have to Customer; or (iii) any Third Party product or service that such reseller may supply to Customer. [End of Attachment A]
Lenovo Customer Agreement
COE-00003-01 Lenovo Customer Agreement
04.2022
Lenovo Confidential
Attachment B - Page 1 of 2
ATTACHMENT B
Pricing, Products, Services Descriptions and Contact Details 1 Pricing, Products and Services
1.1 Customer is not committing to minimum purchase volumes or order quantities with Lenovo.
1.2 Lenovo makes Products and Services descriptions available to Customer for purchase through a “Customer Product Catalog” or any other Transaction Document or via a website, as agreed by the Parties, at the then current agreed Prices. Prices for additional Services will be agreed subsequently (except for warranty services chargeable at Lenovo’s then-current rates) and set forth in a separate Transaction Document.
1.3 Prices do not include local taxes, Value Added Tax, Goods & Services Tax or tariffs.
1.4 Unless agreed otherwise, international freight, duties and insurance are included in the Prices, with the exception of some countries which shall be communicated to Customer in advance. Transportation or delivery charges, if applicable, will be specified in a Transaction Document. 2 Changes
2.1 Unless a specific period for the validity of Prices has been agreed in writing between the Parties in a Transaction Document, Lenovo may change Prices, including labor rates, for Products and Services and other financial terms under this Agreement by providing Customer at least one (1) month prior written notice, e.g., to reflect a price increase in raw materials or in Product components. However, no such change shall be retroactive. Any such change shall be effective on the date specified in the notice. It shall only apply to new orders, on- going transactions of indefinite duration, and transactions with a defined recurring period. For transactions with a defined recurring period, Customer may request in writing that Lenovo delay the effective date of the change to after the end of the current recurring period.
2.2 Unless otherwise agreed, Customer acknowledges its agreement to have all such changes apply for such transactions: (i) by placing new orders for Products or Services after the effective date of the change; (ii) in the absence of a request that the effective date of the change be delayed until the end of the recurring period; (iii) by allowing transactions to recur or proceed after receipt of the change notice; or (iv) in the absence of notice of termination of transactions of indefinite duration prior to the effective date of the change. Except as provided above, in order for a change to be valid, it must be signed by both Parties.
2.3 The previous paragraph notwithstanding, if the cost on the international market of any Product component rises so significantly that it would not be commercially viable for Lenovo to be obliged to continue to allow Customer to buy the affected Products at the previously agreed Prices or discounts, Customer accepts that:
(i) upon having appropriately demonstrated such worldwide component cost increase, Lenovo may raise the Price of (or lower the discounts for) its affected Products proportionally in order to compensate for such cost increase; or (ii) if Customer refuses such price increase or discount reduction, Lenovo may temporarily refuse to accept Customer ’s orders for the affected Products until the overall cost of components has returned to levels in line with those which applied when this Agreement was first signed. 3 Combination of Prices and Discounts
Prices or discounts may not be combined with any other discounts or promotions, unless approved by Lenovo. 4 Contact Details
Customer Lenovo
Attention: BUSINESS UNIT
Tel.: XXXX
Fax: XXXX
General E-mail address: XXXX
Attention: Lance Couch
Tel.: 281-712-2155
General E-mail address: [email protected]
Lenovo Customer Agreement
COE-00003-01 Lenovo Customer Agreement
04.2022
Lenovo Confidential
Attachment B - Page 2 of 2
5 Product Catalog
The “Product Catalog” may be updated from time to time. [End of Attachment B]
Lenovo Customer Agreement
COE-00003-01 Lenovo Customer Agreement
04.2022
Lenovo Confidential
Attachment C - Page 1 of 3
ATTACHMENT C
Warranty Service Information (Personal Computers)
1 General
If a defect in material or workmanship is discovered in a Lenovo branded Hardware Product during the warranty period, warranty Service may be obtained by contacting Lenovo or a Lenovo-approved Service provider (“Service Provider ”). Repair, correction and replacement in the manner described below shall constitute fulfilment of all of Lenovo’s obligations under the Lenovo Limited Warranty. A list of Service Providers and their telephone numbers is available through www.lenovo.com/support/phone.
Warranty service may not be available in all locations and may differ from location to location. Charges may apply outside a Service Provider’s normal Service area. Contact a local Service Provider for information specific to Customer’s location.
2 Customer Responsibilities for Warranty Service
Before warranty Service is provided, Customer must take the following steps:
• follow the Service request procedures specified by the Service Provider; • backup or secure all programs and data contained in the Product; • authorize the Service Provider to access the systems and system relevant data necessary to provide warranty Services under this Agreement;
• provide the Service Provider with sufficient, free, and safe access to Customer facilities to perform Service; • remove all data, including confidential information, proprietary information and personal information, from the Hardware Product or, if Customer is unable to remove any such information, modify the information to prevent its access by another party or so that it is not personal data under applicable law. The Service Provider shall not be responsible for the unintentional loss or disclosure of any data, including confidential information, proprietary information, or personal information, on a Hardware Product returned or accessed for warranty service;
• remove all features, parts, options, alterations, and attachments not covered by the warranty; • ensure that the Hardware Product or part is free of any legal restrictions that prevent its replacement; • if Customer is not the owner of a Hardware Product or part, obtain authorization from the owner for the Service Provider to provide warranty Service.
3 What the Service Provider Will Do to Correct Problems When Customer contacts a Service Provider, Customer must follow the specified problem determination and resolution procedures.
The Service Provider will attempt to diagnose and resolve the problem by telephone, e-mail or remote assistance. The Service Provider may direct Customer to download and install designated software updates.
Some problems may be resolved with a replacement part to be installed by Customer called a “Customer Replaceable Unit” (“CRU”). If so, the Service Provider will ship the CRU to Customer for installation.
If the problem cannot be resolved over the telephone; through the application of software updates or the installation of a CRU, the Service Provider will arrange for service under the Type of Warranty Service designated for the Hardware Product as specified in the table below.
If the Service Provider determines that it is unable to repair the Hardware Product, the Service Provider will replace it with one that is at least functionally equivalent.
If the Service Provider determines that it is unable to either repair or replace the Hardware Product, Customer’s sole remedy under this Limited Warranty is to return the Hardware Product to the place of purchase or to Lenovo for a prorated refund of the purchase Price (unless the Customer is entitled to a complete refund under applicable mandatory law).
Lenovo Customer Agreement
COE-00003-01 Lenovo Customer Agreement
04.2022
Lenovo Confidential
Attachment C - Page 2 of 3
4 Replacement Products and Parts
When warranty Service involves the replacement of a Hardware Product or part, the replaced Hardware Product or part becomes Lenovo’s property and the replacement Hardware Product or part becomes Customer’s property. Only unaltered Lenovo Hardware Products and parts are eligible for replacement. The replacement Hardware Product or part provided by Lenovo may not be new, but it will be in good w orking order and at least functionally equivalent to the original Hardware Product or part. The replacement Hardware Product or part shall be warranted for the balance of the warranty period remaining on the original Hardware Product.
5 What this Warranty Does not Cover
This warranty does not cover the following:
• uninterrupted or error-free operation of a Hardware Product; • loss of, or damage to, Customer data by a Hardware Product; • any software programs, whether provided with the Hardware Product or installed subsequently; • failure or damage resulting from misuse, abuse, accident, modification, unsuitable physical or operating environment, natural disasters, power surges, improper mai ntenance, or use not in accordance with the Hardware Product information materials;
• damage caused by a non-authorized Service provider;
• failure of, or damage caused by, any Third Party products, including those that Lenovo may provide or integrate into the Lenovo Hardware Product at Customer’s request; • any technical or other support, such as assistance with “how -to” questions and those regarding a Product set-up and installation; and
• Hardware Products or parts with an altered identification label or from which the identification label has been removed.
If required, the Service Provider will provide repair or exchange Service depending on the type of warranty Service specified for the Hardware Product and the available service. Scheduling of Service will depend upon the time of Customer’s call, parts availability, and other factors.
6 Types of Warranty Service
6.1 Customer Replaceable Unit (CRU) Service
Under “ CRU Service ”, a Service Provider will ship CRUs to Customer for installation by Customer. CRU information and replacement instructions are shipped with the Hardware Product and are available from Lenovo at any time upon request. CRUs that are easily installed by Customer are called “Self-Service CRUs”. “Optional- Service CRUs” are CRUs that may require some technical skills and tools. Installation of Self-Service CRUs is Customer’s responsibility. Customer may request that a Service Provider install Optional -Service CRUs under one of the other types of warranty Service designated for the Hardware Product. An optional Service offering may be available for purchase from a Service Provider or Lenovo under which Self -Service CRUs would be installed for Customer. Customer may find a list of CRUs and their designation in the publication that ships with the Hardware Product or at www.lenovo.com/CRUs. The requirement to return a defective CRU, if any, will be specified in the materials shipped with a replacement CRU. When return is required: (1) return instructions, a prepaid return shipping label, and a container will be included with the replacement CRU; and (2) Customer may be charged for the replacement CRU if the Service Provider does not receive the defective CRU within thirty (30) days of Customer’s receipt of the replacement CRU.
6.2 O
n -Site Service
Under “ On-Site Service ”, a Service Provider will , at its discretion, either repair or exchange the Hardware Product at Customer’s location. Customer must provide a suitable working area to allow disassembly and reassembly of the Hardware Product. Some repairs may need to be completed at a Service center . If so, the Service Provider will send the Hardware Product to the Service center at its expense.
6.3 Courier or Depot Service
Under “Co urier or Depot Service ”, the Hardware Product will be repaired or exchanged at a designated Service center, with shipping at the expense of the Service Provider. Customer is responsible for disconnecting the Hardware Product and packing it in a shipping container provided to Customer for return of the Hardware Product to a designated Service center. A courier will pick up the Hardware Product and deliver it to the designated Service center. The Service center will return the Hardware Product to Customer at its expense.
Lenovo Customer Agreement
COE-00003-01 Lenovo Customer Agreement
04.2022
Lenovo Confidential
Attachment C - Page 3 of 3
6.4 Customer Carry-In Service
Under “ Customer Carry -In Service”, the Hardware Product will be repaired or exchanged after Customer delivers it to a designated Service center at Customer’s risk and expense. After the Hardware Product has been repaired or exchanged, it will be made available for collection by Customer. Failure to collect the Hardware Product may result in the Service Provider disposing of the Hardware Product as it sees fit, with no liability to Customer.
6.5 Mail-In Service
Under “Mail-In Service”, the Hardware Product will be repaired or exchanged at a designated Service center after Customer delivers it at Customer’s risk and expense. After the Hardware Product has been repaired or exchanged, it will be returned to Customer at Lenovo's risk and expense, unless the Service Provider specifies otherwise.
6.6 Customer Two-Way Mail-In Service
Under “ Customer Two -Way Mail -In Service ”, the Hardware Product will be repaired or exchanged after Customer delivers it to a designated Service center at Customer’s risk and expense. After the Hardware Product has been repaired or exchanged, it will be made available to Customer for return shipping at Customer’s risk and expense. If Customer fails to arrange return shipment, the Service Provider may dispose of the Product as it sees fit, with no liability to Customer.
6.7 Product Exchange Service
Under “Product Exchange Service”, Lenovo will ship a replacement Hardware Product to Customer’s location.
Customer shall be responsible for its installation and verification of its operation. The replacement Hardware Product becomes the property of Customer in exchange for the failed Hardware Product, which becomes the property of Lenovo. Customer shall pack the failed Hardware Product in the shipping carton used to ship the replacement Hardware Product and return it to Lenovo. Transportation charges, both ways, shall be at Lenovo’s expense. If Customer fails to use the carton in which the replacement Hardware Product was received, Customer may be responsible for any damage to the failed Hardware Product occurring during shipment. Customer may be charged for the replacement Hardware Product if Lenovo does not receive the failed Hardware Product within thirty (30) days of Customer’s receipt of the replacement Hardware Product.
[End of Attachment C]
DATE: July 16, 2025
TO: Mayor and Members of the City Council
FROM: John R. Gillison, City Manager
INITIATED BY: Shelly Munson, Director of Innovation and Technology Lilyan Villarreal, Deputy Director of Innovation and Technology Ruth Cain, Procurement Manager
Tanya Trieu-Bui, Management Analyst I
SUBJECT: Consideration to Approve an Agreement for Backup Cloud Services from Amazon Web Services, Inc. Not to Exceed the Amount of $137,000. (CITY)
RECOMMENDATION:
Staff recommends the City Council approve an agreement for backup cloud services from Amazon Web Services, Inc. (AWS) not to exceed the adopted budget amount of $137,000.
BACKGROUND:
In 2019, the City implemented Amazon AWS cloud backup storage services in combination with iLand, and Veeam as a 3-tiered backup solution. Utilizing cloud backups allowed the City to migrate from data tape cartridges to direct backup into a cloud storage environment, automating the data transfer process and eliminating the need and expense to store physical cartridges off- site for safekeeping and recovery. Utilizing a cloud-based backup and recovery system also allows for additional recovery scenarios, including the ability to restore critical systems directly from virtual machines in the cloud environment should the need arise.
ANALYSIS:
AWS, Inc. provides a secure hosting infrastructure to store the data that is backed up by the City's iLand and Veeam platform, and allows for an additional layer of protection for data by creating a redundant copy stored off-site. AWS, Inc. is an Advanced Technology Partner with AWS Storage Competency status and ensures complete compatibility with the City's current data backup system. AWS, Inc. meets compliance with all applicable International Organization for Standardization (ISO) and Systems and Organization Controls (SOC) standards relating to cloud data centers and has a proven track record of customer service and partnership. Staff recommends awarding a single-source agreement to AWS, Inc., based on their references with Veeam, Inc., compatibility with the City's current backup systems, and unique features offered as part of their services. Based on an analysis of the rate of growth of the City's data, staff recommends an approval with AWS, Inc. not to exceed $137,000 per year.
FISCAL IMPACT:
The estimated cost for the continued use of AWS, Inc. was included in the Fiscal Year 2025/26 Adopted Budget, and therefore, no additional funds are requested.
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Fiscal Year 2025/26 Adopted Budget:
General Fund F001-CC209-SC2107 Contract Services $137,000
COUNCIL MISSION / VISION / VALUE(S) ADDRESSED:
This item addresses City Council's Core Value of intentionally embracing and anticipating our future.
ATTACHMENTS:
Attachment 1 - AWS, Inc. Cloud Backup Quote
Attachment 2 - AWS, Inc. Single Source Justification Form and Memo
1 City of Rancho Cucamonga
Amazon Web Services (AWS)
Price Estimate
6/30/25
AWS Point of Contact:
Nghia Nguyen
Amazon Web Services
410 Terry Ave. North
Seattle, WA 98109-5210
206-445-7625
[email protected]
Amazon Web Services (AWS) is pleased to provide the following estimate for Michael Scott at the City of Rancho Cucamonga. Based on AWS’s current pricing and your projected requirements, the total price is estimated to be $137,000.
This estimate is being provided for convenience and illustrative purposes only. Actual pricing for City of Rancho Cucamonga will be based on your actual usage of AWS’s cloud services at AWS’s then-current prices. For current prices for AWS’s cloud services, please refer to the AWS website at http://aws.amazon.com.A breakdown of this price estimate can be found on our online simple monthly calculator.
Services: AWS will make available all of its standard cloud computing services including Amazon Elastic Compute Cloud (Amazon EC2), Amazon Simple Storage Service (Amazon S3), Amazon CloudFront, Amazon Elastic Block Store (Amazon EBS), AWS Import/Export Snowball, AWS Support, and others. Details about AWS’s cloud services are available at http://aws.amazon.com/products/. In cases where software licenses from third parties (e.g., Red Hat) are required, City of Rancho Cucamonga would be responsible for acquiring those licenses directly from the third-party vendor, including any charges for such licenses.
Instance Types, Sizes, and Regions: For Amazon EC2, AWS will provide our standard set of compute instances across all available regions and Availability Zones as outlined on our website at http://aws.amazon.com/ec2/. At a minimum, AWS will provide access to instances in our current regions including US East (Northern Virginia), US West (Oregon), US West (Northern California), EU (Ireland), South America (Sao Paulo), Asia Pacific (Tokyo), Asia Pacific (Sydney), and Asia Pacific (Singapore). As other regions and Availability Zones come online, City of Rancho Cucamonga will have the ability to access and use those regions and instance configurations.
ATTACHMENT 1
2 City of Rancho Cucamonga is free to use different instance types and regions to support the tasks outlined for the opportunity. Note that different instance types and regions have different price points as outlined on our website at http://aws.amazon.com/ec2/#pricing. In addition to Amazon EC2 usage, AWS will bill City of Rancho Cucamonga for the use of any other AWS’s cloud services (e.g., Amazon EBS, Amazon S3, Amazon Virtual Private Cloud [Amazon VPC]) as per our established pricing found at https://aws.amazon.com/pricing/services/.
Billing/Reporting: AWS will bill City of Rancho Cucamonga for its actual usage of all services used in any given month as per our established pricing at the time of purchase. Please refer to the following link for specific prices for each service and the various configurations and pricing plans: https://aws.amazon.com/pricing/services/. AWS will work with City of Rancho Cucamonga to enable invoicing and consolidated billing across the AWS accounts that will be allocated to this opportunity. Details can be found at http://aws.amazon.com/account. City of Rancho Cucamonga is eligible for invoice billing and AWS will send monthly invoices to the AWS account owners as determined by City of Rancho Cucamonga.
Price Estimate: $137,000 for one year of AWS services
Note that the quote provided has been built to meet the requirements as stated by City of Rancho Cucamonga. All system specifications and cost estimations do not necessarily meet AWS best practices for high availability, performance, and the cost-effective elastic model to build and host multi-tier applications on AWS. More information on hosting web applications on AWS and optimal architectures—ones that use cloud best practices, web application hosting best practices, and fault-tolerant applications—is available online and would help inform City of Rancho Cucamonga on how to obtain best value with more robust and scalable web servers and applications. We welcome the opportunity to speak with City of Rancho Cucamonga further about Amazon EC2 Reserve Instances and other potential architectures to optimize its needs.
Please contact Nghia Nguyen with any additional questions or comments regarding AWS’s cloud services.
Annually
ATTACHMENT 2
07/01/2025
DATE:July 16, 2025
TO:Mayor and Members of the City Council
President and Members of the Board of Directors
FROM:John R. Gillison, City Manager
INITIATED BY: Peter Castro, Deputy City Manager, Administrative Services Jevin Kaye, Finance Director
Rick Flinchum, Deputy Finance Director
SUBJECT: Consideration of Amendment No. 002 to the Professional Services Agreement with PFM Asset Management LLC, an SEC-Registered Investment Adviser Under U.S. Bancorp Asset Management, for Registered Investment Services (CO #2020-089) to Renew the Contract for Two (2) Additional Years. (CITY/FIRE)
RECOMMENDATION:
Staff recommends the City Council and Fire Board of the Rancho Cucamonga Fire Protection District approve Amendment No. 002 to Contract #2020-089 with PFM Asset Management LLC (PFM) for professional investment advisory services to renew the contract for two (2) additional years, for a total of seven (7) years.
BACKGROUND:
Many government agencies engage investment advisors for assistance in managing their investment portfolios. The City has retained PFM Asset Management since 2020 to perform various portfolio services, including professional portfolio management, specialized risk management, and continuity in the investment function.
On August 5, 2020, the City Council approved a three-year contract with PFM Asset Management LLC for professional investment advisory services. On October 18, 2023, the City Council approved a two-year extension of the contract. The total estimated value of the contract at the time of that extension was $905,000.
ANALYSIS:
Fees for investment advisory services are based on assets under management. Assets under management exclude funds not directly under PFM Management, such as assets held by the Local Agency Investment Fund (LAIF) and the California Asset Management Program (CAMP).
PFM provides a graduated approach to determining their fees as set below.
Assets Under Management Basis Points
First $100 Million 5.5 basis points (0.055%)
Next $100 Million 5 basis points (0.05%)
Above $200 Million 4.5 basis points (0.045%)
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PFM provides a sliding scale fee structure based on the assets under management. Based on the combined portfolios of the City and Fire District, when the contract was extended in 2023, the total anticipated value of the contract was $905,000. Over the course of the first five years of the contract, the assets under management by PFM have grown at a steady pace due to the reinvestment of earnings and large deposits due to grants and development-related activity. This growth is illustrated for the four most recent years of the contract in the table below:
Assets Under Management ($ in millions)
5/31/2022 5/31/2023 5/31/2024 5/31/2025
City $ 297.21 $ 312.88 $ 372.02 $ 396.44
Fire $ 54.25 $ 59.11 $ 60.73 $ 64.81
Total $ 351.46 $ 371.99 $ 432.75 $ 461.25
The original fee estimate for the extended contract approved in October 2023 was $905,000. For the remaining two years, the anticipated growth will result in anticipated fees of $242,000 and $265,000 in FY 2025/26 and FY 2026/27, respectively. As such, the proposed amendment recommends a current contract value of $1,412,000.
The attached Amendment No. 2 to PFM’s professional services agreement formally extends the contract for two more years and agrees to the rate structure for the City and Fire District’s Assets Under Management (AUM).
FISCAL IMPACT:
The Fiscal Year 2025/26 Adopted Budget for the City and the Fire District includes sufficient funding for the fees associated with assets under management in the portfolio.
COUNCIL MISSION / VISION / GOAL(S) ADDRESSED:
The monthly investment schedule supports the City Council’s core value of providing and nurturing a high quality of life for all by demonstrating the active, prudent fiscal management of the City’s investment portfolio to ensure that financial resources are available to support the various services the city provides to all Rancho Cucamonga stakeholders.
ATTACHMENTS:
Attachment 1 – Amendment No. 002
Attachment 2 – Original PFM Professional Services Agreement (CO 2020-089) Attachment 3 – Amendment No. 001 to CO 2020-089
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9 Amendment No. 002
To
Professional Services Agreement (CO #2020-089)
Between
U.S. Bancorp Asset Management, Inc. (hereinafter “Consultant”) And
City of Rancho Cucamonga (hereinafter the “City”)
THIS AMENDMENT NO. 002 TO PROFESSIONAL SERIVCES AGREEMENT (CO #2020-089), made as of June 24, 2025 and effective as of August 1, 2025 (hereinafter the “Second Amendment”), is entered into between the CITY OF RANCHO CUCAMONGA (hereinafter the “City”), and U.S.
BANCORP ASSET MANAGEMENT, INC (hereinafter the “Consultant”). The CITY and CONSULTANT may be referred to collectively as the “Parties.” WHEREAS, CITY and PFM Asset Management LLC (hereinafter “PFMAM”) entered into an Agreement for Professional Services, dated August 5, 2020 (the “Original Agreement”), whereby PFMAM provides investment management services to CITY; and
WHEREAS, CITY and PFMAM, entered into Amendment No. 001 to Professional Services Agreement, dated October 26, 2023, hereinafter referred to as the “First Amendment” (and collectively with the Original Agreement, the “Existing Agreement), by which CITY and PFMAM agreed to extend the term of the Original Agreement for a two-year term; and WHEREAS, effective October 1, 2024, the Existing Agreement was assigned by PFMAM to CONSULTANT; and
WHEREAS, the Existing Agreement by its terms expires on June 30, 2025; and WHEREAS, the Parties now desire to enter into this Second Amendment to extend the term of the Existing Agreement amend the fee schedule therein; and
WHEREAS, the Existing Agreement, as amended by Second Amendment, is referred to herein as the “Agreement.”
NOW, THEREFORE, CITY and CONSULTANT, in consideration of the premises and mutual covenants herein contained, and intending to be legally bound, hereby agree as follows:
ATTACHMENT 1
2 5
9 3
9 1. Paragraph 2 of the Agreement is hereby amended and restated in its entirety to read as follows:
2. Term of Agreement: The term of this Agreement shall become effective of the date of the mutual execution by way of both parties signature (the “Effective Date”). No work shall be conducted; service or goods will not be provided until this Agreement has been executed and requirements have been fulfilled. This Agreement shall continue unless terminated by one of the parties pursuant to Paragraph 14 herein.
2. Paragraph 3 of the Agreement is hereby amended and restated in its entirety to read as follows:
3. Compensation. For services provided by the Consultant pursuant to this Agreement, the City shall pay the Consultant an annual fee, in monthly installments, based on the daily net assets under management according to the schedule below:
Average Assets Under Management Fees
Next $100 million 5.5 basis points (0.055%)
Next $100 million 5 basis points (0.05%)
Above $200 million 4.5 basis points (0.045%)
“Daily net assets” is defined to include the amortized value of securities, accrued interest and the market value of cash or any money market fund balance. The Consultant’s annual fee shall start to accrue as of the date that the City’s account is funded.
The minimum annual fee is $40,000, and such minimum annual fee shall be applied in equal monthly installments. For avoidance of doubt, in any month commencing with the funding of the City’s account where the amount of the fee calculated under the schedule above is less than the amount of such equal monthly installment, then the amount of such equal monthly installment shall be applied.
3. Exhibit A to the Agreement is hereby amended and restated to read as follows:
SCOPE OF SERVICES
Proposal for Investment Advisory Services dated October 3, 2019 Investment Advisor Provisions
3 5
9 3
9 In Accordance with RFP #19/20-016
4. Except as provided herein, all provisions of the Existing Agreement shall remain in full force and effect.
[Reminder of Page Intentionally Left Blank]
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9 3
9 IN WITNESS WHEREOF, the Parties hereto have caused this Second Amendment to be executed by their authorized representatives as of the date set forth in the first paragraph of this Second Amendment.
CITY OF RANCHO CUCAMONGA
By:
Name:
Title:
U.S. BANCORP ASSET MANAGEMENT, INC.
By:
Name:
Title:
ATTACHMENT 2
City of Rancho Cucamonga
Proposal for Investment Advisory Services
RFP #19/20-016
Presented by
October 3, 2019
PFM Asset
Management LLC
601 S. Figueroa St.
Suite 4500
Los Angeles, CA 90017
213.489.4075
pfm.com
October 2, 2019
601 S. Figueroa Street
Suite 4500
Los Angeles, CA 90017
213.489.4075
pfm.com
City of Rancho Cucamonga
Procurement Division
10500 Civic Center Drive
Rancho Cucamonga, California 91730
RE: Proposal for Investment Advisory Services, RFP #19/20-016
3.1. Cover Letter/Introduction
Dear Sir/Madam:
On behalf of PFM Asset Management LLC (“PFM”), we are pleased to submit this proposal to provide investment advisory services to the City of Rancho Cucamonga (the “City”). We understand that this is the first time that the City will be hiring an outside investment advisor. We have helped numerous public agencies in California make the transition from internal to external investment management, and we welcome the opportunity to put that experience to work for you. We want to be viewed as your investment partner, and we will work hard to earn that honor.
We understand the City’s desire to enhance interest earnings on its portfolio, while also maintaining its foremost focus on safety and liquidity. With that in mind, we are pleased to present our ideas for safely maximizing earnings and enhancing portfolio diversification in the following Executive Summary and throughout our proposal, in particular, in our response to question E.3. We are hopeful that our value-add strategies, coupled with our commitment to safety and our depth of resources and experience, will demonstrate why PFM is ideally suited to serve as the City’s investment advisor.
PFM is willing to perform all services outlined in the City’s Request for Proposal (“RFP”). Our contact person regarding our RFP response is Sarah Meacham. Sarah’s contact information is:
Sarah Meacham, Managing Director
PFM Asset Management LLC
601 S. Figueroa Street, Suite 4500, Los Angeles, CA 90017 213.489.4075
We are ready to deploy our extensive resources and expertise for the City’s benefit.
Please contact Sarah with any questions at 213.489.4075 or via email at [email protected].
Thank you for your consideration.
Sincerely,
Sarah Meacham
Managing Director
PFM Asset Management LLC
Lesley Murphy
Senior Managing Consultant
PFM Asset Management LLC
October 3, 2019
3.1. Cover Letter/Introduction ....................................................................................... 1
3.2 Table of Contents
3.3. Executive Summary .............................................................................................. 2
3.4. Proposal Response ........................................ .................................................... 6 A. Firm Background and Organization ................................................................... 6 B. Experience ......................................................................................................... 8 C. Personnel ......................................................................................................... 11 D. Assets Under Management ............................................................................. 16 E. Investment Management Appr oach and Discipline ......................................... 18 F. Reporting .......................................................................................................... 33 G. Fees ................................................................................................................. 37 H. Additional In formation ...................................................................................... 37
3.5. Exhibits A through H
Exhibit A – Conflict of Interest/Non-Disclosure Statement Exhibit B – Professional Services Agreement Exceptions Summary Exhibit C – Acknowledgment of Insurance Requirements and Certification of Ability to Provide and Maintain Coverages Specified
Exhibit D – Addendum Acknowledgement
Exhibit E – Debarment and Suspension Certification Form Exhibit F – Participation Clause
Exhibit G – Signature of Authority
Exhibit H – References Worksheet
Appendices
A. Resumes of Key Professionals
B. Fixed Income Performance Composites
C. Sample Reports
i. Sample Monthly Statement
ii. Sample Quarterly Report
D. Sample Client Communications
E. Form ADV, Parts 1 and 2
F. Audited Financial Statement
PFM Asset
Management LLC
213.489.4075
pfm.com
601 S. Figueroa St.
Suite 4500
Los Angeles, CA 90017
City of Rancho Cucamonga
Proposal for Investment Advisory Services
RFP #19/20-016
ABOUT PFM
PFM is the marketing name for a group of affiliated companies providing a range of services. All services are provided through separate agreements with each company. This material is for general information purposes only and is not intended to provide specific advice or a specific recommendation.
Investment advisory services are provided by PFM Asset Management LLC which is registered with the Securities and Exchange Commission (“SEC”) under the Investment Advisers Act of 1940. Financial advisory services are provided by PFM Financial Advisors LLC and Public Financial Management, Inc.
Both are registered municipal advisors with the SEC and the Municipal Securities Rulemaking Board (“MSRB”) under the Dodd-Frank Act of 2010. Swap advisory services are provided by PFM Swap Advisors LLC which is registered as a municipal advisor with both the MSRB and SEC under the Dodd-Frank Act of 2010, and as a commodity trading advisor with the Commodity Futures Trading Commission. Additional applicable regulatory information is available upon request.
Consulting services are provided through PFM Group Consulting LLC. Institutional purchasing card services are provided through PFM Financial Services LLC. PFM’s financial modeling platform for strategic forecasting is provided through PFM Solutions LLC. A web-based platform for municipal bond information is provided through Munite LLC.
For more information regarding PFM’s services or entities, please visit www.pfm.com.
2City of Rancho Cucamonga Proposal for Investment Advisory Services | RFP #19/20-016
Firm Background and Experience
PFM has extensive experience managing fixed income portfolios and, over the past four decades, we have become a thought leader to institutional investors. The City will be supported by our in-depth knowledge of the fixed income market, our understanding of public sector investors’ unique needs, and our use of the technical resources needed to develop and implement effective investment programs. We specialize in providing investment advisory services to public agencies like the City and will leverage that expertise to bring value to this engagement. PFM distinguishes itself from our competitors with our:
Local California Team Supported By National
Resources. We have been managing and advising on
public sector assets in California for 30 years. The City’s engagement will be serviced primarily from our Los
Angeles office, with additional support from our San
Francisco, California, and Harrisburg, Pennsylvania offices.
The engagement team, led by Managing Director Sarah
Meacham, will be supported by more than
200 professionals dedicated to supporting the investment needs of our public sector clients. The City will receive the full breadth of our investment management resources, including the capabilities of our California Government Code sector specialists, in-house credit analysis and fixed income research, Governmental Accounting Standards Board (“GASB”)-compliant reporting from our Accounting Group and dedicated analyst team, responsive service from our Client Services Group, and coordinated trade execution, settlement, and compliance systems maintained by separate teams.
3.3. Executive Summary
The City seeks an investment advisory partner to help with the transition from managing funds internally to relying on an external consultant. PFM has helped numerous clients in California and across the nation transition to an external investment advisor. We provide education and training, share guidance on best practices, and are transparent on our recommendations for our clients. Each step of our non-discretionary investment process considers safety, liquidity and yield in the context of your unique goals, and is communicated to you through educational review meetings, reporting, and strategic discussions. 200+ EMPLOYEES
3City of Rancho Cucamonga Proposal for Investment Advisory Services | RFP #19/20-016 Commitment to the Public Sector. PFM’s professionals have managed funds for public entities nationwide since 1980; in California, we have managed public funds since 1989. As such, we are well versed in the sections of California Government Code that relate to public funds investing, and we have the skills and resources necessary to help our clients develop and implement effective strategies within the framework of California Government Code. As of June 30, 2019, we had $140.8 billion in total assets, including $102.8 billion in discretionary assets under management (“AUM”) and $38 billion in non-discretionary assets under advisement. In California alone, we manage and advise on $43.2 billion in assets for 167 clients, including approximately $29.4 billion for 76 cities and counties in California.
Customized Investment Process. Our clients’ needs are unique, as is our approach. At the outset of this engagement, we will work to understand the City’s cash flow needs and investment goals, objectives, and risk/return preferences. We will then work with you to update the City and Fire Protection District’s investment policies, as necessary. The Investment Policy document will serve as the framework for all of our investment recommendations. Within the constraints of the Investment Policy and subject to guidance fo our Fixed Income Investment Committee, our portfolio managers will access the markets to identify trades for the City’s portfolios, seeking to take advantage of market movements and/or relative value changes while carefully monitoring and controlling risk. Robust Client Training and Education. One of PFM’s hallmarks is our focus on informing and educating our clients using both formal and informal approaches. We continue to expand our communication, and we pride ourselves on being responsive to clients’ needs and suggestions.
Whether reviewing your Investment Policy together for the first time or providing a quarterly performance review, all of our meetings with City staff can include an educational component. We also keep our clients informed through PFM-sponsored seminars, investment education webinars, and a suite of communications we publish on a regular basis, including monthly market commentaries and whitepapers.
Supplemental and Customized Reporting. As a fiduciary, we believe it is important for our clients to hold us accountable through clear, transparent performance reporting. Our objective is to keep the City
4City of Rancho Cucamonga Proposal for Investment Advisory Services | RFP #19/20-016 informed regarding all investment activity on a timely basis. We will provide the City with a comprehensive reporting package. These reports contain portfolio analysis, recent market developments, and strategy recommendations. In addition, we offer online reporting for clients through Easy Online Network (“EON”), our Internet reporting site that is available 24/7. EON houses most of our available reports and offers daily access to portfolio holdings and transactions, as well as the ability to review and print complete portfolio details.
Our Proposed Engagement Team
Senior Managing Consultant Lesley Murphy will serve as the City’s relationship liaison, working with Senior Managing Consultant Richard Babbe who will serve as the City’s relationship manager and primary point of contact. Managing Directors Sarah Meacham and Monique Spyke will provide engagement oversight and help ensure we are meeting the City’s objectives and expectations. Managing Director and Co-Heads of PFM’s Portfolio Strategies Group, Kenneth Schiebel, CFA and Kyle Jones, will oversee the City’s portfolio strategy, with Portfolio Managers Joseph Creason, CFA and Meredith LaBuda Sullivan leading the City’s portfolio management team, under the supervision of Head of Portfolio Management, Robert Cheddar, CFA.
Investment Management Approach
PFM will partner with the City in seeking to achieve its investment objectives of safety, liquidity, and return on investments. We will provide comprehensive services, including investment policy review, strategy development and implementation tailored to the City’s funds, ongoing non-discretionary portfolio management, full-service reporting, and client service and education. Our hands-on approach to research and our committee-driven process gives us a level of industry knowledge that we feel may not be replicated at other firms.
As this is the first time the City is seeking an advisor to help manage its funds, our investment professionals stand ready to step in and help the City smoothly and efficiently transition the daily tasks of managing and overseeing the City’s investment program to PFM, while maintaining final decision-making authority on all transactions. We understand the importance of working closely with the City so that it can develop a comfort level with the services we provide. Our goal is to support the City in developing and implementing a sound investment strategy that will provide liquidity, optimize investment returns, and be compliant with the City’s Investment Policies and the California Government Code.
Adding Value for the City: Portfolio Review and Suggested Portfolio Considerations We have thoroughly reviewed the portfolio holdings of both the City and the Fire Protection District as of July 31, 2019. While the portfolios have performed well and have satisfied the City’s main objectives of safety and liquidity, with the support and resources of PFM, the City is now at a point to take the next step in portfolio ma
nagement and to explore options to further diversify the portfolio in order to safely enhance earnings. Our key considerations, as detailed in our response to question E.3, are to:
Optimize liquidity balances by performing a detailed cash flow analysis to determine the optimal balance between liquidity and managed portfolio balances. Reducing excess liquidity will enable additional investment in longer-term instruments, which have historically generated higher returns and
5City of Rancho Cucamonga Proposal for Investment Advisory Services | RFP #19/20-016 greater income. Based on our initial cash flow analysis, the City could potentially transfer a portion of its liquidity funds to the managed portfolio, which could result in greater portfolio efficiency and the potential for enhanced investment earnings over the longer-term. Using the ICE Bank of America Merrill Lynch (ICE BofAML) 1-5 Year Treasury/Agency Index as a proxy for longer-dated securities, for the 10 years ended June 30, 2019, 1-5 year U.S. Treasury and federal agency obligations have delivered 1.72% in total return, 99 basis points (0.99%) higher than the return of the Local Agency Investment Fund (“LAIF”) over the same time period. Based on this historic data, this incremental 99 basis points in return would have translated into an estimated $99,000 in incremental earnings per year on $10 million transferred from LAIF to the individual portfolio. Consider extending the overall duration of the portfolios by carefully analyzing the risk/return trade- off of various longer-duration investment strategies. As of July 31, 2019, the duration of the City’s portfolios (excluding LAIF) was quite short – around one year. If the City were to consider extending the duration of its portfolios, it may be able to capitalize on the higher returns offered by longer-dated securities. For example, the return of the ICE BofAML 1-Year U.S. Treasury Index (a proxy for the duration of the City and Fire Protection District portfolios) was 0.76%. By contrast, the return of the 1-5Year U.S. Treasury/Agency index was 96 basis points (0.96%) higher. On average, on a portfolio size of $275 million, this 96 basis points (0.96%) in incremental return would have translated into an estimated $2.6 million in incremental earnings per year. Further diversify the portfolios across the full range of permitted investments under California Government Code. Supported by PFM’s sector specialists, dedicated market resources, and stringent credit review process, the City may want to consider further diversifying its portfolio across credit sectors, including corporate notes, AAA-rated asset-backed securities (“ABS”), and negotiable certificates of deposit (“CDs”).
Sources: LAIF website, Bloomberg, ICE BofAML.
We look forward to further discussing each of these observations with you in more detail. While we feel that it is our duty and privilege to present our best value-add ideas to our clients, we understand that each client is unique and operates under a unique risk/return framework. Even though we work hard to educate all decision-makers on the rationale behind each of our observations, we understand that you – as the client – are the ultimate decision maker, and all of our investment decisions and recommendations will be made within the framework under which you are comfortable operating. Although we feel that these observations are prudent and will serve to optimize portfolio performance, we look forward to hearing the thoughts and preferences of the decisi on-makers before offering any formal recommendations.
6City of Rancho Cucamonga Proposal for Investment Advisory Services | RFP #19/20-016
3.4. Proposal Response
A. Firm Background and Organization
1. Describe your organization, date founded, and ownership of y our firm. If your firm has experienced a material change in organizational structure, ownership or management during the past three years, please describe.
PFM provides independent and well-informed investment advice and portfolio management for the public sector and other institutional investors. We have a history of thoughtful innovation coupled with an abiding dedication to managing funds in a conservative manner, preserving client capital.
PFM’s original practice was founded in 1975 to provide independent financial advisory services to the public sector and PFM began providing investment advisory services to public entities in 1980. We have been providing investment management services for 40 years.
PFM is 100% owned by the firm’s 91 managing directors (as of June 30, 2019).
We have not experienced a material change in organizational structure, ownership, or management during the past three years.
2. Describe any other business a ffiliations (e.g., subsidiaries, joint ventures, “soft dollar” arrangements with brokers). Describe your firm’s policy on soft dollars.
Our affiliates and subsidiaries are described below. PFM does not participate in any soft dollar or other fee-sharing arrangements.
Affiliates
PFM Financial Advisors LLC and Public Financial Management, Inc. provide financial advisory services including debt issuance, capital planning, revenue forecasting and evaluation, resource allocation, debt policy development, and bond or loan-transaction management. PFM Swap Advisors LLC provides advice on interest rate swaps and related derivatives that may be employed by issuers of municipal securities.
PFM Financial Services LLC is responsible for providing the Payment Solutions (“P-Card”) program, a simple, easy-to-use purchasing card program designed to save clients time and money. PFM Ventures LLC is our affiliate through which innovative programs are developed, such as Synario, a flexible financial modeling platform that is designed to produce dynamic, multi-year financial projections to facilitate strategic planning. PFM Group Consulting LLC provides a broad range of services, including multi-year financial planning; consolidating and shared-services analysis; operational and program analysis; revenue
7City of Rancho Cucamonga Proposal for Investment Advisory Services | RFP #19/20-016 maximization; fleet management; workforce analysis; and pension and other post-employment benefits (“OPEB”) review and strategies.
Subsidiaries
PFM Fund Distributors, Inc. is a limited-purpose broker-dealer whose primary activity is to serve as the distributor for shares of the local government investment pools (“LGIPs”) and registered investment companies that PFM sponsors and advises.
BondResource Partners, LLC and BondResource Partners, LP conduct arbitrage rebate monitoring and tax compliance services.
3. Describe the firms’ sources of revenue, categorized by retai l and institutional accounts.
One hundred percent of the firm’s revenue is derived from institutional entities like the City. PFM has no individual high-net-worth or retail clients. Additionally, as an independent advisor, we receive no revenue from investment managers or mutual funds, brokerage services, or other sources.
4. Is your firm a registered inv estment advisor under the Investment Advisor’s Act of 1940, as amended?
Yes, PFM Asset Management LLC is an SEC-registered investment adviser under the Investment Advisers Act of 1940.
5. Describe any SEC, NASD, or re gulatory censure or litigation involving your firm or its employees.
Neither PFM Asset Management LLC, nor to the best of its knowledge, any of its employees are involved in any regulatory censure or litigation.
6. Did you, or will you, pay a finder’s fee to any third party for business related to this account? Specify the recipients of any fee.
No. PFM does not pay finder’s fees nor does our firm receive compensation or finder’s fees from third-party managers. We maintain no financial relationships with third-party managers and are paid only by our clients.
7. Outline the errors and omissions (professional liability) PFM maintains professional liability and fidelity bond coverages which total $35 million and $10 million, respectively. PFM also carries a $10 million cyber liability policy.
8City of Rancho Cucamonga Proposal for Investment Advisory Services | RFP #19/20-016 B. Experience
1. Describe your firm’s experience in managing fixed income portfolios for public funds and governmental entities.
PFM is a leading provider of independent investment advisory services to public entities and other institutional investors1 with $140.8 billion in total assets, including $102.8 billion in discretionary AUM and $38 billion in non- discretionary assets under advisement as of June 30, 2019. 2 In California alone, we manage and advise on $43.2 billion in assets for 167 clients. Of that amount, we manage or advise on approximately $29.4 billion for 76 cities and counties in California. Since 1989, we have also served as the investment advisor to the California Asset Management Program (“CAMP”)3, a California joint powers authority that operates a LGIP for California public entities, with fund assets of approximately $5 billion as of June 30, 2019.4 We have extensive experience in providing fixed income investment services, including:
Investment management
Investment advice (consulting)
Cash flow analyses
Investment policy review and development
Investment strategy analysis and implementation
Performance benchmarking and reporting
Management of LGIPs
Bond proceeds strategies, including arbitrage rebate services Procurement of banking and custodial services
1 Source: “Largest Money Managers: 2019.” Pensions & Investments, May 27, 2019. Accessed May 30, 2019. https://www.pionline.com/specialreports/money-managers/20190527 2 Total assets include discretionary and nondiscretionary fixed income and multi-asset class assets. 3 This information is for institutional investor use only, not for further distribution to retail investors, and does not repres ent an offer to sell or a solicitation of an offer to buy or sell any fund or other security. Investors should consider the Trust’s investment objectives, risks, charges and expenses before investing in the Trust. This and other information about the Trust is available in the Trust’s current Information Statement, which should be read carefully before investing. A copy of the Trust’s Information Statement may be obtained by calling 1-800-729-7665 or is available on the Trust’s website at www.camponline.com. While the Trust seeks to maintain a stable net asset value of $1.00 per share, it is possible to lose money investing in the Trust. An investment in the Trust is not insured or guaranteed by the Federal Deposit Insurance Corporation or any other government agency. Shares of the Trust are distributed by PFM Fund Distributors, Inc., member Financial Industry Regulatory Authority (“FINRA”) (www.finra.org) and Securities Investor Protection Corporation (“SIPC”) (www.sipc.org). PFM Fund Distributors, Inc. is a wholly owned subsidiary of PFM Asset Management LLC. 4 Please see important disclosures at the end of this document.