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053-17 - Excel / Canon - Supplement / Change Order AddendumPARTICIPATING ADDENDUM NASPO ValuePoint COOPERATIVE PURCHASING ORGANIZATION Formerly WSCA-NASPO MULTIFUNCTION COPIERS AND RELATED SOFTWARE Lead by the State of Nevada (hereinafter "Lead State") Participating Addendum between Canon U.S.A., Inc. Nevada Contract Number 3091 (hereinafter "Contractor" or "Canon USA") and State of Washington 05214 (hereinafter "Participating State") 1. Scope This Master Price Agreement (this "Agreement") covers the Copiers, Printers & Related Devices 3091 (the "WSCA Agreement") lead by the State of Nevada for use by state agencies and other entities located in the State of Washington authorized by that state's statutes to utilize Washington's contracts with the prior approval of the state's chief procurement official ("Purchasers"). Contractor has been awarded devices and services in the following categories: Group A - Convenience Copiers Group 8 - Production Copiers Group C - Wide Format Copiers Group D - Printers Group F Scanners Particular devices and services available for procurement by Purchasers under this Agreement shall be as provided from time to time under the WSCA Agreement. All orders submitted by Purchasers under this Agreement for the purchase or lease of devices and the purchase or services ("Orders") shall be governed by the terms and conditions of the WSCA Agreement and this Agreement. 2. Participation A list of the Washington SPC members is available from the internet at: hAp-w-Y f! omessm.. aoviga/apes/wok default.WA . Use of specific WSCA-NASPO cooperative contracts by agencies, political subdivisions and other entities (including cooperatives) authorized by another state's statutes to use Washington contracts are subject to the prior approval of such state's State Chief Procurement WASHINGTON PARTICIPATING ADDENDUM 05214 NASPO ValuePoint MULTIFUNCTION COPIERS AND RELATED SOFTWARE 3091 Official. Issues of interpretation and eligibility for participation are solely within the authority of such State Chief Procurement Official. 3. Leases Any equipment acquired under this contract must follow the Office of Financial Management (OFM) Stateside Administrative & Accounting Manual (SAAM) policy 30.20. Leases will be provided to Purchasers under this Agreement from Canon USA's subsidiary, Canon Financial Services, Inc. ("CFS"), pursuant to the terms and conditions of the lease agreement as set forth as Exhibit A and as modified from time to time ("Lease Agreement"). Except as otherwise agreed to by the parties, Purchasers may sign a Lease Agreement for the lease of only the equipment specified in the Lease Agreement at the time of execution, or Purchasers may enter into a master Lease Agreement allowing for multiple lease orders from time to time. To initiate a lease, Purchaser may issue an Order and reference the type of Lease Agreement (FMV, Operational, or Capital Lease) on the Order, and such Order may be issued directly to CFS or may be issued to the Authorized Dealer in which case the Authorized Dealer will assign the Order to CFS; or CFS may require the Purchaser to sign a Lease Agreement. Notwithstanding anything to the contrary in this Participating Addendum, in the event of a conflict between an executed Lease Agreement and this Agreement, the terms of the Lease Agreement will supersede and control. Each lease agreement and each Order for leasing issued prior to the termination of this Participating Addendum shall survive the termination of this Participating Addendum for any reason whatsoever, and each Order to the extent for leasing shall be non -cancellable except to the extent if at all as provided in the Lease Agreement. 4. Primary Contacts The primary contact individuals for this participating addendum are as follows (or their named successors): Contractor Name Canon USA, David Rothauser i Address 1 Canon Park, Melville, NY 11747 Telephone (631) 330-5443 Fax (631) 330-5459 _ E-mail i P arncimg &nnry Name Department of Enterprise Services Address 1500 SE Jefferson St/PO Box 41411 Olympia, WA 98504 Telephone (360) 407-2210 Fax (360) 586-2426 E-mail DESITCo.—w-A_cMvv S. Purchase Order Instructions All Qxders in rder to be entitled to the benefits of and subject to the terms and conditions of this Agrepm@nt must contain the following (i) Mandatory Language "PO is subject to WSCA NASPO Contract 3091 and Washington PA 05214, (ii) Name, Address, Contact, & Phone - Number of Purchaser (iii) Purchase ordei amount, All Orders must be submitted to Authorized Page 2 of 33 WASHINGTON PARTICIPATING ADDENDUM 05214 NASPO ValuePoint MULTIFUNCTION COPIERS AND RELATED SOFTWARE 3091 Dealers (as defined below). 6. Individual Customer Each State agency and political subdivision, as a Purchaser, that purchases or leases products/services will be treated as if they were individual customers. Each Purchaser will be responsible to follow the terms and conditions of this Agreement; and they will have the same rights and responsibilities for their purchases and leases as the Participating State has in this Agreement. Each Purchaser will be responsible for their charges, fees, and liabilities. Each Purchaser will have the same rights to any indemnity or to recover any costs allowed in this Agreement for their purchases. Charges for all Orders will be applied to each Participating Entity individually. This Agreement and the WSCA Agreement together with its exhibits, set forth the entire agreement between the parties with respect to the subject matter of all previous communications, representations or agreements, whether oral or written, with respect to the subject matter hereof. Terms and conditions inconsistent with, contrary or in addition to the terms and conditions of this Agreement and the WSCA Agreement, together with its exhibits, shall not be added to or incorporated into this Agreement or the WSCA Agreement and its exhibits, by any Order or otherwise, and any such attempts to add or incorporate such terms and conditions are hereby rejected. The terms and conditions of this Agreement and the WSCA Agreement and its exhibits shall prevail and govern in the case of any such inconsistent or additional terms within the Participating State. In the event of conflict between the terms of this Agreement and the WSCA Agreement, the terms of this Agreement shall govern. 7. Authorized Dealers All Canon authorized dealers and resellers in the State of Washington, as shown on the dedicated Canon USA (cooperative contract) website ("Authorized Dealers"), are approved to accept Orders and, with respect to all Orders accepted by an Authorized Dealer, shall have all of the rights and obligations of "Contractor" under this Agreement, and without limiting the foregoing shall be contractually liable for the delivery, sale of the devices and the performance of services under such Order. Each Authorized Dealer that accepts an Order shall be treated as individual "Contractors" and shall be solely responsible for the obligations under such Order. Each Authorized Dealer will be responsible to follow the terms and conditions of this Agreement with respect to all Orders. Each Authorized Dealer will be solely entitled to all charges, fees, and liabilities under each of its Orders. Each Authorized Dealer with respect to its Orders will have the same obligations under any indemnity or to reimburse any costs allowed in this Agreement for their Orders. Charges for all Orders will be invoiced individually by each Authorized Dealer to its Purchasers. In the event of any disputes between an Authorized Dealer and a Purchaser, Canon USA shall use investigate, shall consult with Participating State and the Purchaser as appropriate, and shall use commercially reasonable efforts to resolve the dispute. 8. Minority and Women's Bu$i=tess Enterprises (MWSEI Page 3 of 33 WASHINGTON PARTICIPATING ADDENDUM 08214 NASPO ValuePoint MULTIFUNCTION COPIERS AND RELATED SOFTWARE 3091 In accordance with the legislative findings and policies set forth in RCW 39.I9, the State of Washington encourages participation in all of its contracts by minority and woman -owned businesses firms certified by the Office of (OMWBE). While the state does not give preferential treatment, it does seek equitable representation from the minority and women's business community. In addition, the state welcomes participation by self -identified minority and woman owned firms and strongly encourages such firms to become certified by OMWBE. Participation may be either on a direct basis in response to this solicitation or as a subcontractor to a Canon USA. However, unless required by federal statutes, regulations, grants, or contract terms referenced in the original solicitation, no preference will be included in the evaluation of bids, no minimum level of MWBE participation is required as condition for receiving an award, and bids will not be evaluated, rejected or considered non -responsive on that basis. Any affirmative action requirements set forth in federal regulations or statutes included or referenced in the original solicitation will apply. Bidders are encouraged to contact OMWBE for information on becoming a certified firm as set forth in Washington Administrative Code (WAC) Chapters 326-02 and 326-20; or for information on other certified firms for potential sub -contracting arrangements. Nothing in this section is int Winded to prevent or discourage bidders from inviting participation from non-MWBE firms as well as MWBE firms. Prior to performance, an awarded bidder that is a MWBE or intends to use MWBE subcontractor USAs is encouraged to identify the participating firm(s) to DES. Canon USA agrees to provide diversity information for all authorized reseUersi dealers. The State may require a copy of Canon USA "Inclusion Plan". 9. Public records and R&gMZ t iuforxr tion All documents submitted by bidders to DES as part of this procurement will become public records. They are subject to disclosure unless specifically exempt under Revised Code of Washington (RCW) 42.56 (The Public Records Act). Confidential documents: DES strongly discourages submittal of confidential material. DES considers confidential material to be any portion of your submittal clearly marked all or in part "Confidential," "Proprietary" or "Trade SecrEA" (or the equivalent). • DES reserves the right to return, reject or disqualify any submittal that includes confidential material. Public records requests: If a public records request seeks to view or obtain a copy of your RFP submittal, and if your submittal includes content clearly marked "Confidential," "Proprietary" or "Trade Secret" (or the equivalent), DES will: • Notify you of the date DES will disclose the requested records; • Give you an opportunity to seek a court order that stops DES from disclosing the records. DES will not: • Evaluate or defend your claim of confidentiality. It is your responsibility to support your claim and take appropriate legal action to do so; • Withhold or redact your documents without a court order. Page 4 of 33 WASHINGTON PARTICIPATING ADDENDUM 05214 NASPO ValuePoint MULTIFUNCTION COPIERS AND RELATED SOFTWARE 3091 Questions about the confidentiality of your submittal can be directed to the Procurement Coordinator or the DES Public Records Officer at (360) 407-8768 or pubH9r9ccT,ds&die wa.c ov. 10. Ian -state preference/Reciprocity Pursuant to RCW 39.26, DES has established a schedule of price adjustments applicable against any bidders submitting responses from states which grant a preference to their own in -state businesses as identified in the Pr fc erence Table. The reciprocity adjustment is applied as follows. - These adjustments will be applied in formal sealed bid solicitations only. - The business address from which the response was submitted will determine if an adjustment is to be applied. - The appropriate percentage will be added to each response bearing the address from a state with in -state preferences rather than subtracting a like amount from Washington state bidders. - This action will be used only for evaluation. In no instance shall the increase be paid to a supplier whose response is accepted. 11. Legal notices Any notice or demand or other communication required or permitted to be given under this Agreement or applicable law (except notice of malfunctioning Equipment or defective services or other issues relating specifically to one or more Orders, which should be directed to the applicable Authorized Dealer) will be effective only if it is in writing and signed by the applicable party, properly addressed, and either delivered in person. or by a recognized courier service. or deposited with the United States Postal Service as first-class mail, postage prepaid, certified mail, return receipt requested, via facsimile or by electronic mail, to the parties at the addresses and fax numbers, e-mail addresses provided in Section 4 Primary Contacts above. For purposes of complying with any provision in this Agreement or applicable law that requires a "writing," such communication, when digitally signed with a Washington State Licensed Certificate, shall be considered to be "in writing" or "written" to an extent no less than if it were in paper form. Notices will be effective upon receipt or four business days after mailing, whichever is earlier. The notice address as provided herein may be changed by written notice given as provided above. In the event that a subpoena or other legal process commenced by a third party in any way concerning the Equipment or Services provided pursuant to this Agreement is served upon Canon USA or DES, such party agrees to notify the other party in the most expeditious fashion possible following receipt of such subpoena or other legal process. Canon USA and DES further agree to cooperate with the other party in any lawful effort by the other party to contest the legal validity of such subpoena or other legal process commenced by a third Ply 12. Liens,�claims axtd 9nqqn*rAnces All materials, equipment, supplies and/or services shall be free of all liens, claims, or encumbrances of any kind arising through Contractor (subject to any applicable lease or Page 5 of 33 WASHINGTON PARTICIPATING ADDENDUM 05214 NASPO ValuePoint MULTIFUNCTION COPIERS AND RELATED SOFTWARE 3091 other financing agreements), and if DES or a Purchaser requests, a formal release of same shall be delivered to the respective requestor. 13. Canon USA supervision and coordination Canon USA shall: a. Competently and efficiently supervise and coordinate the implementation and completion of all contract requirements specified herein. b. Identify Canon USA's Authorized Representative, who will be the principal point of contact for DES concerning Canon USA's performance under this contract. c. Immediately notify the Contract Administrator in writing of any change of the designated Authorized Representative assigned to this contract. d. Be bound by all written communications given to or received from Canon USA's Authorized Representative (except that no such communications shall be deemed to modify, amend or supplement any of the provisions of this Agreement unless in a writing signed by authorized representatives of both Canon USA and Participating State). Violation of any provision of this section may be considered a material breach establishing grounds for contract termination. 14. Term contract xm magem:enl Canon USA shall during the term of this Agreement use commercially reasonable efforts, through the Authorized Dealers as appropriate, to; a. Review the impact of the award of this Agreement and take the necessary steps as otherwise provided in this Agreement needed to ensure that contractual obligations will be fulfilled. b. Promote and market the use of this Agreement to all Purchasers. c. Ensure that those who endeavor to utilize this Agreement are authorized Purchasers under this Agreement. d. At no additional charge, assist Purchasers in making the most cost effective, value based purchases which may include, but is not limited to: - Having representatives available to provide information regardmg products and services, including visiting the Purchaser site if needed, and providing Purchasers with materials/supplies/equipment recommendations. - Providing Purchasers with a detailed list of contract items including current contract pricing and part numbers. Contractor shall designate a customer service representative who will be responsible for addressing Purchaser issues including, but not limited to: • Logging requests for service, ensuring repairs are completed in a timely manner, dispatching service technicians and processing warranty claim documentation. • Providing purchasers with regular and timely status updates in the event of a delay in repair or order fulfillment. Each Authorized Dealer is authorized to, and shall, handle all warranty claims for contract items purchased, but Canon USA shall help resolve warranty claims if a Purchaser is dissatisfied with warranty service from its Authorized Dealer. Page 6 of 33 WASHINGTON PARTICIPATING ADDENDUM 05214 NASPO ValuePoint MULTIFUNCTION COPIERS AND RELATED SOFTWARE 3091 15. Statewide Payee Desk Each Authorized Dealer must register with the Statewide Payee Desk, maintained by DES, in order to be paid for Orders. Washington state agencies cannot make payments to an Authorized Dealer until it is registered. Registration materials are available here: Roc(�ivmg x. from the State. 16. Management fee Canon USA will pay a management fee of 0.74 percent to DES on all Orders under this Agreement. The management fee will be paid directly by Canon USA, but the management fee will be calculated based on all Orders to Authorized Dealers, and Canon USA shall be solely responsible for collection of the management fee from the Authorized Dealers. The management fee must be rolled into Canon USA's current pricing, and not shown as a separate line item on an invoice. The purchase price is defined as total invoice price less sales tax. No taxes will be assessed against the management fee, unless otherwise required by applicable law. How to determine the fee: Total sales (not including sales tax) x .0074 = management fee. "Total sales" means collections from Purchasers on Orders on equipment and services, net of returns, credits and other offsets, except that for leasing the management fee shall be paid based on the purchase price of the leased equipment, not on the periodic leasing amounts. DES may increase, reduce or eliminate the management fee, and reserves the right to negotiate contract pricing with Canon USA when adjustment of the management fee might justify an increase in pricing. Written notifications of the management fee by DES become effective for new purchases or new change orders to existing purchases 30 calendar days after notification unless DES grants additional time. The state reserves the right to audit, or have a designated third party audit, records applicable to accuracy of invoices to Purchasers and payment of the management fee to ensure that Purchasers have been properly invoiced and all management fees have been paid. Failure to accurately report total net sales, to submit a timely usage report, or remit timely payment of the management fee, may be cause for Agreement termination, the charging of interest or penalties, or the exercise of other remedies provided by law. The management fee does not include or supersede fee terms owed to other entities such as the Western States Contracting Alliance, National Association of State Procurement Officials (WSCA-NASPO) or governmental entities other than the state of Washington. DES will invoice Canon USA every quarter based on sales reported by Canon USA, and the management fee is payable only on receipt of invoices therefor. Management fee payment must reference the Agreement number, the year and quarter for which the management fee is being remitted, and Canon USA's name as it is known to DES, if not already included on the face of the check. Canon USA will not pay contract administrative fee until invoiced from DES. Canon USA will have up to 30 days to pay the administration fee invoice. DES will charge a 1 % fee for any unpaid contract administrative fee after 30 days. Page 7 of 33 WASHINGTON PARTICIPATING ADDENDUM 06214 NASPO ValuePoint MULTIFUNCTION COPIERS AND RELATED SOFTWARE 3091 17. Contract sales report The management fee will be based on total sales, which must be reported quarterly by Canon USA in the Contract Sales Repoxiung Sygtq- DES will provide a login password and a vendor number. For each report, Canon USA must identify every Purchaser who has made payments on Orders during the reporting period. The "Miscellaneous" option may be used only with prior approval by DES, and use of this option without prior approval by DES may be cause for Agreement termination. Refer sales reporting questions to the Contract Administrator. Due date: Reports must be submitted electronically within 30 days after the end of the calendar quarter: no later than April 30, July 31, October 31 and January 31. Failure to provide reports in accordance with the schedule above may be cause for Agreement termination. 18. Other required term Agreement reports DES or any Purchaser may require Canon USA to provide a detailed annual sales history reports for all Orders or, in the case of a Purchaser, for its Orders. This report, if requested, will include at a minimum, but is not limited to: product description, part number or other product identifier, per unit quantities sold, and contract price. This report must be provided to DES in an electronic format that can be read by MS Excel. Unless the solicitation specifies otherwise, all other required reports will be designed and approved by the parties by mutual agreement. 19. Common vendor -re i tra io air dbid-notWcatiaa.gystem Canon USA shall be registered in Washington's Electronic Businoss Solution (WEBS), the state's common vendor registration and bid notification system (ww►x►.ga.wa.gov/websl.It is the sole responsibility of Canon USA to properly register and maintain an accurate vendor profile. 20. Canon USA and Authorized Dealer qqaHfic4tion&pnd regWrement DES reserves the right to require receipt of proof of compliance with any of the requirements in this section within 10 calendar days from the date of request, and to terminate this Agreement as a material breach for noncompliance with any requirement of this paragraph if such breaches are not cured by Canon USA within a reasonable period of time. Canon USA shall maintain compliance with these requirements throughout the life of this contract. a. Qualified and established business DES may, at its sole discretion, require Canon USA and each Authorized Dealer to provide proof of their status as an established business with all required licenses, fees, bonding, facilities, equipment, and trained personnel necessary to meet all requirements and perform the work as specified in the solicitation. b. Authorized Service Provider and Product Reseller certifications Page 8 of 33 WASHINGTON PARTICIPATING ADDENDUM 05214 NASPO ValuePoint MULTIFUNCTION COPIERS AND RELATED SOFTWARE 3091 Upon request, Canon USA must provide evidence of its status as an authorized distributor of equipment covered by this Agreement in the United States, and evidence that each Authorized Dealer is authorized by Canon USA as a seller of CANON brand office equipment and maintenance and repair services therefor. Canon USA shall maintain its authorized distributor status for the initial term and any extensions of this Agreement. If this status is discontinued, this Agreement may be terminated. Canon USA reserves the right to terminate the status of any equipment and service supplier as an "Authorized Dealer", and in such event shall give prompt written notice thereof to DES. c. Dealer authorization Canon USA shall maintain dealer authorization from the manufacturer consistent with the requirements outlined in the original solicitation. d. Assignment Canon USA shall not assign its obligations or any claim arising under this Agreement without the prior written consent of DES, and Authorized Dealers shall not assign their obligations or any claim arising under any Order without the prior written consent of the applicable Purchaser. Such consent will not be unreasonably withheld. Canon USA or the Authorized Dealer shall provide a minimum of 30 calendar days advance notification of intent to assign its obligations under this Agreement or any Orders. Violation of this provision may be considered a material breach and be grounds for Agreement or Order termination. Assignment shall not relieve Canon USA or the Authorized Dealer from its responsibilities and obligations under this Agreement or the Orders. Each Authorized Dealer may assign, solely for financing purposes, its right to payment. Any such assignment however, does not excuse the Authorized Dealer from bearing any obligation, term or condition as outlined under 05214this Agreement. e. Canon USA authority and infringement Under this contract, Canon USA is authorized to sell only those materials, supplies, services and/or equipment as stated herein and allowed for by the provisions of this Agreement. Canon USA shall not misrepresent to Purchasers that it has the authority to sell any other materials, supplies, services and/or equipment under this Agreement. Page 9 of 33 WASHINGTON PARTICIPATING ADDENDUM 06214 NASPO ValuePoint MULTIFUNCTION COPIERS AND RELATED SOFPWARE 3091 f. Hours of labor In compliance with RCW 49.28, Contractor agrees that no worker, laborer, or mechanic in the employ of Contractor shall be permitted or required to work more than eight (8) hours in any one calendar day, or forty (40) hours in any one calendar week. However, in cases of extraordinary emergency such as danger to life or property, the hours of work may be extended but in such cases the rate of pay for time employed in excess of the above shall be at the prevailing overtime rate of pay. Except, contracts will not require the payment of overtime rates for the first two hours worked in excess of eight (8) hours per day when the employer has obtained the employee's agreement (as defined in WAC 296-127- 022.) to work a four -day, ten-hour work week. g. Materials and workmanship Contractor is required to furnish all materials, supplies, equipment and/or services necessary to perform requirements under this Agreement. Materials, supplies, equipment and/or services used in the performance of each Order shall conform to all applicable federal, state, and local codes, regulations and requirements for such equipment, specifications contained herein; and the normal uses for which intended. Materials, supplies, and equipment shall be manufactured in accordance with the best commercial practices and standards for this type of materials, supplies, and equipment. h. Mercury content and preference Canon USA shall provido mercury -free products when available. Should mercury - free products not exist, Canon USA shall provide products with the lowest mercury content available in meeting performance requirements. Canon USA shall disclose products that contain added mercury and provide an explanation that includes the amount or concentration of mercury, and justification as to why added mercury is necessary for the function or performance of the product. Canon USA is to provide any existing technical data pertaining to the addition of mercury or a mercury compound intentionally added to the product. Canon USA shall maintain compliance with these requirements throughout the life of this Agreement. DES reserves the right to require receipt of proof of compliance with within 10 calendar days from the date of request, and to terminate this contract as a material breach for noncompliance. 21. Delivery requirements a. Delivery: Contractor must make commercially reasonable efforts to ensure that delivery of equipment will be made within 30 days after receipt of valid Order, The following apply to all deliveries: - Contractor must deliver the equipment during the Purchaser's normal work hours and within time frame specified above or as otherwise mutually agreed in writing between the Purchaser and Contractor at the time of Order placement. Page 10 of 33 WASHINGTON PARTICIPATING ADDENDUM 05214 NASPO ValuePoint MULTIFUNCTION COPIERS AND RELATED SOFTWARE 3091 Contractor must verify specific working hours of individual Purchasers and instruct carrier(s) to deliver accordingly. The Purchaser may refuse shipment when delivered after normal working hours. The acceptance of late delivery does not constitute a waiver of the requirements for the timely performance of any obligation remaining to be performed by Contractor. Contractor must make all deliveries to the applicable delivery location as indicated in the Order. - Contractor is responsible for verifying delivery conditions/requirements with the purchaser prior to the delivery. - When applicable, Contractor must take all necessary actions to safeguard items during inclement weather. All packing lists, packages, instruction manuals, correspondence, shipping notices, shipping containers, and other written materials associated with this contract shall be identified by the contract identifier and the applicable purchaser's order number. Packing lists shall be enclosed with each shipment and clearly identify all contents and any backorders. b. Receipt of goods: Inspection and rejection: The Purchaser's inspection of all materials, supplies and equipment upon delivery is for the purpose of forming a judgment as to whether such delivered items are what was ordered, were properly delivered, and are ready for Acceptance. If applicable, the Purchaser reserves the right to independently test, at Canon USA's expense, any product of questionable freshness, quality, or origin delivered against this contract. Such inspection shall not be construed as final acceptance. or as acceptance of the materials, supplies or Equipment, if the materials, supplies or equipment does not conform to contractual requirements. If there are any apparent defects in the materials, supplies, or equipment at the time of delivery, the Purchaser will promptly notify Contractor in writing, and shall have such rights and remedies for rejection or revocation of acceptance as are provided under applicable law. Acceptance: Acceptance occurs when the products are delivered and inspected, except, in the case of leased equipment, as may be provided pursuant to the lease agreement. c. Shipping and risk of loss: Contractor shall ship all equipment freight prepaid, FOB Purchaser's destination. The method of shipment shall be consistent with the nature of the equipment and hazards of transportation. Regardless of FOB point, Contractor agrees to bear an risks of loss, damage, or destruction of the Goods ordered hereunder that occurs prior to Delivery, except loss or damage attributable to Purchaser's fault or negligence; and such loss, damage, or destruction shall not release Contractor from any obligation Page 11 of 33 WASHINGTON PARTICIPATING ADDENDUM 05214 NASPO ValuePoint MULTIFUNCTION COPIERS AND RELATED SOFTWARE 3091 hereunder. After Delivery, the risk of loss or damage shall be borne by Purchaser, except loss or damage attributable to Contractor's fault or negligence. d. Site security: While on Purchaser's premises, the agents, or employees, Canon USA and Authorized Dealers shall conform in all respects with physical, fire, or other security regulations that are provided reasonably in advance in writing. e. Installation: When applicable, installation shall be performed in a professional manner in accordance with industry standard best practices. The premises shall be left in a neat, clean, and undamaged condition. The state reserves the right to require Contractor to repair any damage caused by its negligence or intentional misconduct during installation or provide full compensation as reasonably determined by the Purchaser. L Labeling: In limited circumstances and for certain products only, Contractor may deliver equipment to Purchasers in its original shipping cartons. In only such instances, such cartons shall be labeled with the name of the Purchaser, and Order number. g. Hazardous materials: Consistent with WAC 296-839, all manufacturers and distributors of hazardous substances, including any of the items listed in this contract, must include a complete material safety data sheet (MSDS) for each hazardous material. Additionally, each container of hazardous materials must be appropriately labeled with: The identity of the hazardous material. Appropriate hazard warnings, and Name and address of the chemical manufacturer, importer, or other responsible party The Department of Labor and Industries may levy appropriate fines for noncompliance and agencies may withhold payment -pending receipt of a legible copy of MSDS. It should be noted that OSHA Form 20 is not acceptable in lieu of this requirement unless it is modified to include appropriate information relative to "carcinogenic ingredients" and "routes of entry" of the product(s) in question. 22. Payment a. Advance payment prohibited: No advance payment shall be made for the Products and Services furnished by Contractor under Orders. Notwithstanding the above, maintenance payments, to the extent such payments are fixed or, in the case of usage are based on estimates, may be made on a quarterly basis at the beginning of each quarter, if specified in the applicable Order and accepted by Contractor. Page 12 of 33 WASHINGTON PARTICIPATING ADDENDUM 05214 NASPO ValuePoint MULTIFUNCTION COPIERS AND RELATED SOFTWARE 3091 b. Payment: Payment is the sole responsibility of, and will be made by, the Purchaser. Invoices are payable in full within no later than thirty (30) days after the date of receipt. Under !7-�h,gp((;x 39.76..% W , if Purchaser fails to make timely payment(s), Contractor may invoice for 1 percent per month on the amount overdue or a minimum of $1. Payment will not be considered late if a check or warrant is mailed within the time specified. If no terms are specified otherwise in the solicitation, net 30 days will automatically apply. Payment for materials, supplies and/or equipment received and for services rendered shall be made by Purchasers and be redeemable in U.S. dollars. Unless otherwise specified, the Purchaser's sole responsibility shall be to issue this payment, and any bank or transaction fees or similar costs associated with currency exchange procedures or the use of purchasing/credit cards shall be fully assumed by Contractor. Note: when a Purchaser has been overcharged or otherwise reimbursed, the Purchaser may elect to have either direct payments or written credit memos issued. If Contractor fails to make timely payment(s) or issuance of credit memos, the Purchaser may impose a 1 % per month on the amount overdue 30 days after notice to Contractor. c. Invoicing and discounts Contractor must provide a properly completed invoice to each Purchaser. All invoices are to be delivered to the address indicated in the Order. Each invoice must be identified by the Agreement number, Canon USA's statewide vendor registration number assigned by the Washington State Office of Financial Management (OFM), the applicable Purchaser's Order number, and must be in U.S. dollars. Invoices must be prominently annotated by the Contractor with all applicable prompt payment and/or volume discount(s) and shipping charges unless otherwise specified in the solicitation. Invoices for payment will accurately reflect all discounts due the Purchaser. Invoices will not be processed for payment, nor will the period of prompt payment discount commence, until receipt of a properly completed invoice denominated in U.S. dollars and until all invoiced items are received If an adjustment in payment is necessary due to damage or dispute, any prompt payment discount period shall commence on the date final approval for payment is authorized. 23. Taxes, fees and licenses a. Taxes Where required by statute or regulation, Canon USA and each Authorized Dealer shall pay for and maintain in current status all taxes that are necessary for performance under this Agreement and each Order. Unless otherwise indicated, each Purchaser agrees to pay State of Washington taxes on all applicable materials, Page 13 of 33 WASHINGTON PARTICIPATING ADDENDUM 05214 NASPO ValuePoint MULTIFUNCTION COPIERS AND RELATED SOFTWARE 3091 supplies, services and/or equipment purchased. No charge by the Contractor shall be made for federal excise taxes and each Purchaser agrees to furnish Contractor with an exemption certificate where appropriate. b. Collection of retail sales and use taxes In general, sellers engaged in retail sales activities within the State of Washington are required to collect and remit sales tax to Department of Revenue (DOR). In general, out-of-state sellers must collect and remit "use tax" to Department of Revenue if the activity carried on by the seller in the State of Washington is significantly associated with the seller's ability to establish or maintain a market for its products in Washington. Examples of such activity include where seller either directly or by an agent or other representative: Maintains an in -state office, distribution house, sales house, warehouse, service enterprise, or any other in -state place of business; Maintains an in -state inventory or stock of goods for sale; Regularly solicits orders from purchasers located within the State of Washington via sales representatives entering the State of Washington; - Sends other staff into the State of Washington (e.g. product safety engineers, etc.) to mt-ract with purchasers in an attempt to establish or maintain market(s); or - Other factors identified in WAC 408--OQ. c. Department of Revenue registration for out-of-state Canon USA Out-of-state sellers meeting any of the above criteria must register and establish an account with the Department of Revenue. Refer to WAC 458-20-193, and call the Department of Revenue at 800 -647 -7706 for additional information. When out-of-state sellers are not required to collect and remit "use tax," purchasers located in the State of Washington are responsible for paying this tax, if applicable, directly to the Department of Revenue. d. Fees/Licenses After award of contract, and prior to commencing performance under the contract, Canon USA and each Authorized Dealers shall pay for and maintain in a current status any licenses, fees, assessments, permit charges, etc., which are necessary for performance under this Agreement and each Order. It is the sole responsibility of Canon USA and each Authorized Dealer to maintain licenses and to monitor and determine any changes or the enactment of any subsequent regulations for said fees, assessments, or charges and to immediately comply with said changes or regulations during the entire term of this Agreement. e. Taxes on invoice Contractor shall calculate and enter the appropriate state and local sales tax on all invoices. Tax is to be computed on new items after deduction of any trade-in in accordance with WAC 4§8&20-247. L Overpayments to Canon USA Contractor shall refund to its Purchasers the full amount of any erroneous payment for goods or services not provided in accordance with this Agreement or the applicable Order or overpayment under this Agreement or the applicable Order Page 14 of 33 WASHINGTON PARTICIPATING ADDENDUM 05214 NASPO ValuePoint MULTIFUNCTION COPIERS AND RELATED SOFTWARE 3091 within 30 days' written notice. If Canon USA fails to make timely refund, purchaser may charge Canon USA 1 percent per month on the amount due, until paid in full. g. Audits See NASPO Master Agreement 3091. 24.Ouality assurance a. Right of inspection Each Authorized Dealer shall provide right of access to its facilities to DES, or any of DES's officers, or to any other authorized agent or official of the State of Washington or the federal government, at all reasonable times, in order to monitor and evaluate performance, compliance, and/or quality assurance under this contract, subject to the confidentiality provisions in Section 26.c. of this contract. b. Contractor commitments, warranties and representations Any written commitment by Contractor within the scope of this Agreement and set forth in an accepted Order shall be binding upon Contractor. Failure of Contractor to fulfill such a commitment may constitute breach and shall render Contractor liable for damages under the terms of this Agreement. For purposes of this section, a commitment by Contractor includes: (i) Prices, discounts, and options committed to remain in force over the agreed upon period of time, and (n) any warranty or representation made by Canon USA in this Agreement (including in the WSCA Agreement). c. Warranties Canon USA warrants that all materials, supplies, and/or equipment provided under Orders shall be subject to the standard limited warranty terms applicable to such materials, supplies and/or equipment. Acceptance of any materials, supplies, and/or equipment, and inspection incidental thereto, by the Purchaser shall not alter or affect the obligations of Contractor or the rights of the Purchaser under such warranty. d. Cost of remedy Cost of remedying defects: All defects, and resulting costs of correcting, removing or replacing any or all of the defective materials or equipment will be charged against Contractor in accordance with the terms of the standard limited warranty referenced in Section 25.c and applicable agreed upon service requirements. 25. Information and communications a. Advertising Canon USA shall not publish or use any information concerning this Agreement in any format or media for advertising or publicity without prior written consent from DES. The parties will agree to a written approval process with respect to advertising and publicity. Further each party agrees to comply with the other party's respective guidelines and requirements regarding the use of logos and trademarks. b. Retention of records Canon USA shall maintain all books, records, documents, data and other evidence reasonably necessary to support Canon USA's charges and invoices relating to the Page 15 of 33 WASHINGTON PARTICIPATING ADDENDUM 05214 NASPO ValuePoint MULTIFUNCTION COPIERS AND RELATED SOFTWARE 3091 provision of materials, supplies, services and/or equipment described herein, including, but not limited to, accounting procedures and practices. Canon USA shall retain such records for a period of six (6) years following the date of final payment. At no additional cost, these records shall be subject at all reasonable times to inspection, review, or audit, to the extent provided in Section 17, by DES, personnel duly authorized by DES, the Washington State Auditor's Office, and federal and state officials so authorized by law, regulation or agreement. If any litigation, claim or audit is started before the expiration of the six (6) year period, the records shall be retained until final resolution of all litigation, claims, or audit findings involving the records, to the extent such retention is required by applicable law or court order. c. Proprietary or confidential information To the extent consistent with Ch1kpt@r 42.86 R , the Public Disclosure Act, DES shall maintain the confidentiality of Contractor's information marked confidential or proprietary. If a written lawful request is made to view Contractor's proprietary information, DES will notify Contractor in writing of the request and of the date that the records may be released to the requester unless Contractor obtains a court order enjoining that disclosure or otherwise meets applicable laws and procedures in preventing such disclosure. If Contractor fails to obtain the court order enjoining disclosure or other applicable record suppression procedure, DES will release the requested information in accordance with any applicable court order. The state's sole responsibility shall be limited to maintaining the above data in a secure area and to notify Contractor of any request(s) for disclosure for so long as DES retains Contractor's information in DES records. Failure to so label such materials or failure to timely respond after written notice of request for public disclosure has been tim ly given to Contractor by DES shall be deemed a waiver by Contractor of a claim that such materials are exempt from disclosure, subject, however, to any legal action taken by Contractor to pr+ vent such disclosure. d. Non -endorsement and publicity Neither DES nor the Purchasers are endorsing Canon USA's products or Services, nor suggesting that they are the best or only solution to their needs. Canon USA and each Authorized Dealer agrees to make no reference to DES, any Purchaser or the State of Washington in any literature, promotional material, brochures, sales presentation or the like, regardless of method of distribution, without the prior review and express written consent of DES. e. Protection of confidential and personal information Canon USA acknowledges that some of the material and information that may come into its or an Authorized Dealer's possession or knowledge in connection with this contract or its performance may consist of information that is exempt from disclosure to the public or other unauthorized persons under either Chap er.42.17 RCW or other state or federal statutes ("confidential information"). Confidential information includes, but is not limited to, names, addresses, Social Security numbers, e-mail addresses, telephone numbers, financial profiles, credit card information, driver's license numbers, medical data, law enforcement records, agency source code or Page 16 of 33 WASHINGTON PARTICIPATING ADDENDUM 06214 NASPO ValuePoint MULTIFUNCTION COPIERS AND RELATED SOFTWARE 3091 object code, agency security data, etc or information identifiable to an individual that relates to any of these types of information. Canon USA and each Authorized Dealer agrees to hold confidential information in strictest confidence and not to make use of confidential information for any purpose other than the performance of this Agreement and the Orders, to release it only to authorized employees or subcontractors requiring such information for the purposes of carrying out this contract, and not to release, divulge, publish, transfer, sell, disclose, or otherwise make the information known to any other party without purchaser's express written consent or as provided by law. Canon USA and each Authorized Dealer agrees to release such information or material only to employees or subcontractors who are under obligations of confidence consistent with the obligations of Canon USA and the Authorized Dealers under this Section. Canon USA and each Authorized Dealer agrees to implement physical, electronic, and managerial safeguards to reasonably prevent unauthorized access to Confidential Information. "Personal information" including, but not limited to, "protected health information" (PHI) under the Health Insurance Portability and Accountability Act (HIPAA), individuals' names, addresses, phone numbers, birth dates, and social security numbers collected., used, or acquired in connection with this contract shall be protected against unauthorized use, disclosure, modification or loss. HIPAA establishes national minimum standards for the use and disclosure of certain health information. Canon USA and each Authorized Dealer must comply with all HIPAA requirements and rules as required by applicable law. If a Purchaser and Canon USA or an Authorized Dealer determine in good faith that (1) the Purchaser is a "covered entity" under HIPAA, and that (2) the Authorized Dealer will perform "business associate" services and activities covered under HIPAA, then at the Purchaser's request, the Authorized Dealer agrees to execute a mutually agreed to business associate contract in compliance with HIPAA. Each Authorized Dealer shall ensure its directors, officers, employees, subcontractors or agents use personal information solely for the purposes of accomplishing the services set forth herein. Each Authorized Dealer and its subcontractors agree not to release, divulge, publish, transfer, sell or otherwise make known to unauthorized persons personal information without the express written consent of the agency or as otherwise required by law. Any breach of this provision may result in termination of the Agreement or applicable Orders and demand for return of all personal information. Canon USA and each Authorized Dealer agrees, severally and not jointly; to indemnify and hold harmless the State of Washington and the Purchaser for any damages related to both: (1) the indemnitor's unauthorized use of personal information and (2) the unauthorized use of personal information by unauthorized persons as a result of the indemnitor's failure to sufficiently protect against unauthorized use, disclosure, modification, or loss. Violation of this section by Canon USA may result in termination of this Agreement, or by an Authorized Dealer may result in termination of its Orders, and demand for return of all confidential information, monetary damages, or penalties. Page 17 of 33 WASHINGTON PARTICIPATING ADDENDUM 05214 NASPO ValuePoint MULTIFUNCTION COPIERS AND RELATED SOFTWARE 3091 Immediately upon expiration or termination of this Agreement, Canon USA and each Authorized Dealer shall either, as reasonably agreed by Purchaser and Canon USA: (i) certify to purchaser that Canon USA or the Authorized Dealer, as applicable, has destroyed all confidential information; or (ii) return all confidential information to the Purchaser; or (iii) take whatever other steps Purchaser requires of Canon USA or the Authorized Dealer to protect the Purchaser's confidential information. 26. General Provisions a. Governing law and venue This Agreement shall be construed and interpreted in accordance with the laws of the State of Washington, and the venue of any action brought hereunder shall be in the Superior Court for Thurston County. b. Severability SeverabiliW If any provision of this Agreement or any provision of any document incorporated by reference shall be held invalid, such invalidity shall not affect the other provisions of this contract that can be given effect without the invalid provision, and to this end the provisions of this contract are declared to be severable. c. Survivorship All transactions executed for products and services provided pursuant to the authority of this Agreement shall be bound by all of the terms, conditions, Prices and Price discounts set forth herein, notwithstanding the expiration of the initial term of this Agreement or any extension thereof. Further, the terms, conditions and warranties contained in this contract that by their sense and context are intended to survive the completion of the performance, cancellation or termination of this Agreement shall so survive. Obligations of Purchasers under lease agreement shall survive termination of this Agreement or the related Orders unless otherwise expressly provided herein. In addition, the terms of the sections titled Overpayments to Canon USA; Ownership/Rights in Data; Canon USA's Commitments, Warranties and Representations; Protection of purchaser's Confidential Information; Section Headings, Publicity; Retention of Records; Patent and Copyright Indemnification; Canon USA's Proprietary Information; Disputes; and Limitation of Liability shall survive the termination of this contract. d. Independent contractor status In the performance of this Agreement the parties hereto will be acting, and in the performance of Orders the parties thereto will be acting, in their individual, corporate or governmental capacities and not as agents, employees, partners, joint ventures, or associates of one another. The parties intend that an independent Canon USA or Authorized Dealer, as applicable, relationship will be created by this Agreement and the Orders. The employees or agents of one party shall not be deemed or construed to be the employees or agents of the other party for any purpose whatsoever. Canon USA and the Authorized Dealers shall not make any claim of right, privilege or benefit which would accrue to an employee under VfT, or Title 51 RMV, e. Gifts and gratuities Page 18 of 33 WASHINGTON PARTICIPATING ADDENDUM 06214 NASPO ValuePoint MULTIFUNCTION COPIERS AND RELATED SOFTWARE 3091 Canon USA and the Authorized Dealers shall comply with all state laws regarding gifts and gratuities, including but not limited to: RCW 38.26 , RCW 42.82.150, R(,* 42,52,1 B0, and RCW 42-82.170 under which it is unlawful for any person to directly or indirectly offer, give or accept gifts, gratuities, loans, trips, favors, special discounts, services, or anything of economic value in conjunction with state business or contract activities. Under RgWAnQ and the Ethics in Public Service Law,11a9ter 42.82, CW, state officers and employees are prohibited from receiving, accepting, taking or seeldng gifts (except as permitted by RCW 42. h2.1 1,30) if the officer or employee participates in contractual matters relating to the purchase of goods or services. f. Immunity and hold harmless To the fullest extent permitted by law, Canon USA and each Authorized Dealer (each, an "Indemnitor") shall indemnify, defend and hold harmless state, agencies of state and all officials, agents and employees of state (the "Indemnified Parties"), from and against all third party claims for bodily injury, death or damage to property to the extent resulting from the Indemnitor's negligence or wilful misconduct in the performance of this Agreement and the Orders. The Indemnitor's obligation to indemnify, defend, and hold harmless include.s any claim by the Indemnitor's agents, employees, representatives, or any subcontractor or its employees. With respect to any indemnification claim under this contract, such indemnification obligations are subject to DES providing Canon USA with (a) prompt written notice of any claim for indemnification, (b) sole control over the defense and settlement thereof, and (c) such assistance, at Canon USA's reasonable expense, as Canon USA shall reasonably request. Each Indemnitor waives its immunity under Title 81 to the extent it is required to indemnify, defend and hold harmless state and its agencies, officials, agents or employees. g. Personal liability It is agreed by and between the parties hereto that in no event shall any official, officer, employee or agent of the State of Washington when executing their official duties in good faith, be in any way personally liable or responsible for any agreement herein contained whether expressed or implied, nor for any statement or representation made herein or in any connection with this agreement. 27.Insurance The following are general insurance provisions for the State of Washington. Additional requirements specific to a good/service may be detailed elsewhere in a solicitation or its appendices. a. General requirements Each Authorized Dealer shall, at its own expense, obtain and keep in force insurance as follows until completion of its Orders. Upon request, each Authorized Dealer shall furnish evidence in the form of a certificate of insurance, in the following kinds and Page 19 of 33 WASHINGTON PARTICIPATING ADDENDUM 05214 NASPO ValuePoint MULTIFUNCTION COPIERS AND RELATED SOFTWARE 3091 minimum amounts, has been secured. Failure to provide proof of insurance, as required, will result in contract cancellation. Each Authorized Dealer shall include all subcontractors as insureds under all required insurance policies, or shall furnish separate Certificates of Insurance and endorsements for each subcontractor. All insurance provided in compliance with this contract shall be primary as to any other insurance or self-insurance programs afforded to or maintained by the state. b. Specific requirements Employer's Liability (Stop Gap): Canon USA and each Authorized Dealer will at all times comply with all applicable workers' compensation, occupational disease, and occupational health and safety laws, statutes, and regulations to the full extent applicable and will maintain Employers Liability insurance with a limit of no less than $1,000,000.00. The State of Washington will not be held responsible in any way for claims filed by Canon USA or Authorized Dealers or their employees for services performed under the terms of this Agreement. Commercial General Liability Insurance: Each Authorized Dealer shall at all times during the term of its Orders, carry and maintain commercial general liability insurance and if necessary, commercial umbrella insurance for bodily injury and property damage arising out of services provided under this contract. This insurance shall cover such claims as may be caused by any act, omission, or negligence of the Authorized Dealer or its officers, agents, representatives, assigns, or servants. The insurance shall also cover bodily injury, including disease, illness and death, and property damage arising out of the Authorized Dealer's premises/operations, products/completed operations, personal injury and advertising injury, and contractual liability (including the tort liability of another assumed in a business contract), and contain separation of insured's (cross liability) conditions. Each Authorized Dealer waives all rights against the State of Washington for the recovery of damages to the extent they are covered by general liability or umbrella insurance. The limits of liability insurance shall not be less than as follows: General aggregate limits (other than products -completed operations) $2 million Products -completed operations aggregate $2 million Personal and advertising injury aggregate $1 million Each occurrence (applies to all of the above) $1 million i Fire damage limit (per occurrence) 1$50,000 c. Commercial Auto Policy In the event that services delivered pursuant to this Agreement involve the use of vehicles, or the transportation of clients, automobile liability insurance shall be required. The coverage provided shall protect against claims for bodily injury, including illness, disease, and death; and property damage caused by an occurrence arising out of or in consequence of the performance of this service by the Authorized Dealer, subcontractor, or anyone employed by either. Page 20 of 33 WASHINGTON PARTICIPATING ADDENDUM 05214 NASPO ValuePoint MULTIFUNCTION COPIERS AND RELATED SOFTWARE 3091 Each Authorized Dealer shall maintain Commercial auto liability and, if necessary, commercial umbrella liability insurance with a combined single limit not less than $1,000,000 per occurrence. The Commercial auto liability shall include Hired and Non -Owned coverage. Each Authorized Dealer waives all rights against the State of Washington for the recovery of damages to the extent they are covered by business auto liability or commercial umbrella liability insurance. d. Additional insurance provisions All above insurance policies shall include, but not be limited to, the following provisions: Additional insured: The State of Washington shall be named as an additional insured on all general liability, umbrella, excess, and property insurance policies. All policies shall be primary over any other valid and collectable insurance. Notice of policy cancellation/Non-renewal: All such policies shall contain language that they cannot be canceled, non -renewed, or coverage reduced except after thirty (30) days' prior notice to Canon USA, Inc.. If Canon USA, Inc. receives any such notice of cancellation, non -renewal or reduction in coverage where Canon USA, Inc cannot meet the minimum requirements set forth in this agreement, Canon USA, Inc. shall within ten (10) days of its receipt notify Participating State of such notice and provide Participating State with a copy of such notice. Written notice shall include the affected Agreement reference number, e. Insurance carrier rating The insurance required above shall be issued by an insurance company authorized to do business within the State of Washington. Insurance is to be placed with a carrier that has a rating of A- Class VII or better in the most recently published edition of Best's Reports. Any exception must be reviewed and approved by the Risk Manager for the State of Washington, by submitting a copy of the contract and evidence of insurance before contract commencement. If an insurer is not admitted, all insurance policies and procedures for issuing the insurance policies must comply with ChApjj 48.15 RCW and ghanter 284-15 WAC f. Excess coverage The limits of all insurance required to be provided by the Authorized Dealer shall be no less than the minimum amounts specified. However, coverage in the amounts of these minimum limits shall not be construed to relieve the Authorized Dealer from liability in excess of such limits. 28. jn_dustrial Insurance Coverage Each Authorized Dealer shall comply with the provisions of Title 51 RCW Industrial Insurance. If an Authorized Dealer fails to provide industrial insurance coverage or fails to pay premiums or penalties on behalf of its employees as may be required by law, DES may terminate such Authorized Dealer's Orders. This provision does not waive any of the Page 21 of 33 WASHINGTON PARTICIPATING ADDENDUM 05214 NASPO ValuePoint MULTIFUNCTION COPIERS AND RELATED SOFTWARE 3091 Washington State Department of Labor and Industries (L&I) rights to collect from Canon USA of an Authorized Dealer, as applicable. 29. Na discrbn nation During the performance of this contract, Canon USA and each Authorized Dealer shall comply with all applicable federal and state nondiscrimination laws, regulations and policies, including, but not limited to, Title VII of the Civil Rights Act, 42 U.S.C. section 12101 et. seq.; the Americans with Disabilities Act (ADA); and, RC , Discrimination - Human Rights Commission. 30. OSHA and WISHA reavirements Canon USA and each Authorized Dealer agrees to comply with conditions of the federal Occupational Safety and Health Administration (OSHA) and, if manufactured or stored in the State of Washington, the Washington Industrial Safety and Health Act (WISHA) and the standards and regulations issued thereunder, and certifies that all items furnished and purchased will conform to and comply with said laws, standards and regulations. Each Indemnitor further agrees, severally and not jointly, to indemnify and hold harmless DES and each Purchaser from all damages assessed against such Purchaser as a result of the Indemnitor's failure to comply with those laws, standards and regulations, and for the failure of the items furnished under the contract to so comply. 31. Antitrust The state maintains that, in actual practice, overcharges resulting from antitrust violations are borne by the purchaser. Therefore, Canon USA hereby assigns to the State of Washington any and all of Canon USA's claims for such price fixing or overcharges which arise under federal or state antitrust laws, relating to the materials, supplies, services and/or equipment purchased under this contract. 32. Waiver Failure or delay of DES or a Purchaser to insist upon the strict performance of any term or condition of the Agreement or to exercise any right or remedy provided in the Agreement or by law; or DES's or a Purchaser's acceptance of or payment for materials, supplies, services and/or equipment, shall not release Contractor from any responsibilities or obligations imposed by this Agreement or by law, and shall not be deemed a waiver of any right of DES or Purchaser to insist upon the strict performance of the entire Agreement by Contractor. In the event of any claim for breach of contract against Canon USA or an Authorized Dealer, no provision of this Agreement shall be construed, expressly or by implication, as a waiver by DES or Purchaser of any existing or future right and/or remedy available by law. Page 22 of 33 WASHINGTON PARTICIPATING ADDENDUM 05214 NASPO ValuePoint MULTIFUNCTION COPIERS AND RELATED SOFTWARE 3091 33. Disputes and remedies a. Problem resolution and disputes Problems arising out of the performance of this contract shall be resolved in a timely manner at the lowest possible level with authority to resolve such problem. If a problem persists and cannot be resolved, it may be escalated within each organization. In the event a bona fide dispute concerning a question of fact arises between DES or the purchaser and Canon USA and it cannot be resolved between the parties through the normal problem escalation processes, either party may initiate the dispute resolution procedure provided herein.. The dispute shall be handled by a Dispute Resolution Panel in the following manner. Each party to this contract shall appoint one member to the Panel. These two appointed members shall jointly appoint an additional member. The Dispute Resolution Panel shall review the facts, contract terms and applicable statutes and rules and make a determination of the dispute as quickly as reasonably possible. The determination of the Dispute Resolution Panel shall be final and binding on the parties hereto. DES and/or purchaser and Canon USA agree that, the existence of a dispute notwithstanding, they will continue without delay to carry out all their respective responsibilities under this contract that are not affected by the dispute. In the event a bona fide dispute concerning a question of fact arises between DES or the purchaser and Canon USA and it cannot be resolved between the parties through the normal escalation processes, either party may initiate the dispute resolution procedure provided herein. The initiating party shall reduce its description of the dispute to writing and deliver it to the responding party. The responding party shall respond in writing within three business days. The initiating party shall have three business days to review the bid. If after this review a resolution cannot be reached, both parties shall have three business days to negotiate in good faith to resolve the dispute. If the dispute cannot be resolved after three business days, a Dispute Resolution Panel may be requested in writing by either party who shall also identify the first panel member. Within three business days of receiving the request, the other party will designate a panel member. Those two panel members will appoint a third individual to the Dispute Resolution Panel within the next three business days. The Dispute Resolution Panel will review the written descriptions of the dispute, gather additional information as needed, and render a decision on the dispute in the shortest practical time. Each party shall bear the cost for its panel member and share equally the cost of the third panel member. Both parties agree to be bound by the determination of the Dispute Resolution Panel. Both parties agree to exercise good faith in dispute resolution and to settle disputes prior to using a Dispute Resolution Panel whenever possible. DES, the purchaser and Canon USA agree that, the existence of a dispute notwithstanding, they will continue without delay to carry out all their respective responsibilities under this contract that are not affected by the dispute. Page 23 of 33 WASHINGTON PARTICIPATING ADDENDUM 05214 NASPO ValuePoint MULTIFUNCTION COPIERS AND RELATED SOFTWARE 3091 If the subject of the dispute is the amount due and payable by purchaser for materials, supplies, services and/or equipment being provided by Canon USA, Canon USA shall continue providing materials, supplies, services and/or equipment pending resolution of the dispute provided purchaser pays Canon USA the amount purchaser, in good faith, believes is due and payable, and places in escrow the difference between such amount and the amount Canon USA, in good faith, believes is due and payable. b. Administrative suspension When it in the best interest of the state, DES may at any time, and without cause, suspend the contract or any portion thereof for a period of not more than 30 calendar days per event by written notice from DES to the Canon USA Representative. Canon USA shall resume performance on the next business day following the 30th day of suspension unless an earlier resumption date is specified in the notice of suspension. If no resumption date was specified in the notice of suspension, Canon USA can be demanded and required to resume performance within the 30-day suspension period by DES providing Canon USA's Representative with written notice of such demand. Suspension will not impact existing agreements. Suspension will apply to new business. c. Force majeure The term "force majeure" means an occurrence that is beyond the control of the party affected and could not have been avoided by exercising reasonable diligence. Force majeure shall include acts of war, riots, strikes, fire, floods, windstorms, epidemics or other similar occurrences. Exceptions: Except for payment of sums due, neither party (including Authorized Dealers and Purchasers, as applicable) shall be liable to the other or deemed in breach under this Agreement or an Order if, and to the extent that, such parry's performance of this Agreement or such Order is prevented by reason of force majeure. Notification: If either party is delayed by force majeure, said party shall make reasonable efforts to provide written notification within 48 hours. The notification shall provide evidence of the force majeure to the satisfaction of the other party. Such delay shall cease as soon as practicable and written notification of same shall likewise be provided. So far as consistent with the Rights Reserved below, the time of completion shall be extended by contract amendment for a period of time equal to the time that the results or effects of such delay prevented the delayed party from performing in accordance with this contract. d. Alternative dispute resolution fees and costs In the event that the parties engage in arbitration, mediation or any other alternative dispute resolution forum to resolve a dispute in lieu of litigation, both parties shall share equally in the cost of the alternative dispute resolution method, including cost of mediator or arbitrator. In addition, each party shall be responsible for its own attorneys' fees incurred as a result of the alternative dispute resolution method. Page 24 of 33 WASHINGTON PARTICIPATING ADDENDUM 05214 NASPO ValuePoint MULTIFUNCTION COPIERS AND RELATED SOFTWARE 3091 e. Non-exclusive remedies The remedies provided for in this contract shall not be exclusive but are in addition to all other remedies available under law, except to the extent that remedies are limited or excluded by other provisions of this Agreement. 34. Damages a. Limitation of liability The parties agree that neither Canon USA nor Authorized Dealers on the one hand, nor DES and Purchasers on the other hand, shall be liable to each other, regardless of the form of action, for consequential, incidental, indirect, or special damages. This section does not modify any sections regarding liquidated damages or any other conditions as are elsewhere agreed to herein between the parties. The damages specified in the sections titled Termination for Default and Retention of Records shall be limited to direct damages. Canon USA, Authorized Dealers, DES and Purchasers are not liable for any damages arising from causes beyond their reasonable control and without their fault or negligence. Such causes may include, but are not restricted to, acts of the public enemy, acts of a governmental body other than DES or the Purchaser acting in either its sovereign or contractual capacity, war, explosions, fires, floods, earthquakes, epidemics, quarantine restrictions, strikes, freight embargoes, and unusually severe weather; but in every case the delays must be beyond the reasonable control and without fault or negligence of Canon USA, the Authorized Dealer, DES or the Purchaser, or their respective subcontractors. If delays are caused by a subcontractor without its fault or negligence, Canon USA and the applicable Authorized Dealer(s) shall not be liable for damages for such delays, unless the services to be performed were obtainable on comparable terms and prices from other sources in reasonably sufficient time to permit Canon USA and/or the Authorized Dealers to meet its required performance schedule. No party (including Authorized Dealers and Purchasers) shall be liable for personal injury to the other party or damage to the other parry's property except to the extent personal injury or damage to property proximately caused by such parry's respective fault or negligence. b. Federal funding (if applicable) In the event that a federally funded acquisition results from this procurement, Canon USA or the applicable Authorized Dealer(s) may be required to provide additional information (free of charge) at the request of DES or the Purchaser. Further, Canon USA and/or Authorized Dealers may be subject to those federal requirements specific to the commodity, to the extent agreed to in writing by Canon USA or the Authorized Dealer, such agreement not to be unreasonably withheld. c. Federal restrictions on lobbying Canon USA certifies that under the requirements of Lobbying Disclosure Act, 2 U.S.C., Section 1601 et seq., no federal appropriated funds have been paid or will be paid, by or on behalf of the Canon USA, to any person for influencing or attempting to Page Z5 of 33 WASHINGTON PARTICIPATING ADDENDUM 05214 NASPO ValuePoint MULTIFUNCTION COPIERS AND RELATED SOFTWARE 3091 influence an officer or employee of any agency, a member of Congress, an officer or employee of Congress, or an employee of a member of Congress in connection with the awarding of any federal contract, the making of any federal grant, the making of any federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any federal contract, grant, loan, or cooperative agreement. 35. Debarment and suspension Canon USA certifies, by submitting this bid or proposal, that neither it nor its affiliates presently are debarred, suspended, proposed for debarment, declared ineligible or voluntarily excluded from participation in this procurement/contract by any government agency. Canon USA also agrees to notify DES if its debarment status changes during the term of this Agreement. 36. gotKat_termination a. Material breach This Agreement may be terminated for cause by DES, at the sole discretion of DES, for a material breach by Canon USA of any tc.=rm or condition under this Agreement, and any Order may be terminated for cause by DES or the affected Purchaser, at its sole discretion, for a material breach of any term or condition under such Order. Material breach of a term or condition may include but is not limited to: • The applicable Authorized Dealer's material and repeated failure to perform services or deliver materials, supplies, or equipment by the date required or by an alternate date as mutually agreed in a written amendment to the applicable Order; • Canon USA's or an Authorized Dealer's failure to carry out any warranty or fails to perform or comply with any mandatory provision of the contract; • Canon USA or an Authorized Dealer becomes insolvent or in an unsound financial condition so as to endanger performance hereunder; • Canon USA or an Authorized Dealer becomes the subject of any proceeding under any law relating to bankruptcy, insolvency or reorganization, or relief from creditors and/or debtors that endangers Canon USA's or the Authorized Dealer's proper performance hereunder; • Appointment of any receiver, trustee, or similar official for Canon USA or an Authorized Dealer or any of its property and such appointment endangers its proper performance hereunder or under any Orders, as applicable; • A determination by court order that Canon USA or an Authorized Dealer is in violation of federal, state, or local laws or regulations and that such determination renders Canon USA or the Authorized Dealer unable to perform any aspect of this Agreement or an Order, as applicable. b. Opportunity to cure In the event that a breaching party fails to perform a contractual requirement or materially breaches any term or condition, DES may issue a written cure notice of a minimum of 30 days. DES is not required to allow the breaching party to cure defects Page 26 of 33 WASHINGTON PARTICIPATING ADDENDUM 08214 NASPO ValuePoint MULTIFUNCTION COPIERS AND RELATED SOFTWARE 3091 if the opportunity for cure is not feasible as determined solely within the reasonable discretion of DES and with an opportunity for the breaching party to provide an explanation to DES as to why a cure period is feasible.. If the breach remains after the breaching party has been provided the opportunity to cure, DES may do any one or more of the following: - Exercise any remedy provided by law, except as otherwise provided in this Agreement; - Terminate this Agreement or the affected Orders, as applicable, and any related contracts or portions thereof, subject to applicable non -cancellation terms of any leasing or financing agreements; - Impose actual damages as permitted under applicable law and subject to the provisions of this Agreement (including Section 35.a); - Suspend or bar Canon USA or the Authorized Dealer, as applicable, from receiving future DES solicitations or other opportunities; Termination of this Agreement shall not constitute a termination of any Orders, and termination of any Order shall not constitute a termination of any other Orders, except as otherwise expressly provided herein. c. Termination for cause In the event DES, in its sole discretion, determines that the Canon USA has failed to comply with the conditions of this contract in a timely manner or is in material breach, DES has the right to suspend or terminate this contract, in part or in whole. DES shall notify the Canon USA in writing of the need to take corrective action. If corrective action is not taken within 30 calendar days or as otherwise specified by DES, or if such corrective action is deemed by DES to be insufficient, the contract may be terminated. DES reserves the right to suspend all or part of the contract, withhold further payments, or prohibit the Canon USA from incurring additional obligations of funds during investigation of the alleged breach and pending corrective action by the Canon USA or a decision by DES to terminate the contract. In the event of termination, DES shall have the right to procure for all purchasers any replacement materials, supplies, services and/or equipment that are the subject of this contract on the open market. In addition, the Canon USA shall be liable for damages as authorized by law including, but not limited to, any price difference between the original contract and the replacement or cover contract and all administrative costs directly related to the replacement contract, e.g., cost of the competitive bidding, mailing, advertising and staff time. If it is determined that. (1) the Canon USA was not in material breach; or (2) failure to perform was outside of Canon USA's or its subcontractor's control, fault or negligence, the termination shall be deemed to be a "termination for convenience." The rights and remedies of DES and/or the purchaser provided in this contract are not exclusive and are in addition to any other rights and remedies provided by law. d. Termination for convenience Except as otherwise provided in this contract, DES, at the sole discretion of DES, may terminate this Agreement, in whole only and not in part by giving 30 calendar days or other appropriate time period written notice beginning on the second day after Page 27 of 33 WASHINGTON PARTICIPATING ADDENDUM 05214 NASPO ValuePoint MULTIFUNCTION COPIERS AND RELATED SOFTWARE 3091 mailing to Canon USA. Neither DES nor any Purchaser shall have any other obligation whatsoever to Canon USA for such termination. This Termination for Convenience clause may be invoked by DES when it is in the best interest of the State of Washington. Termination for convenience shall not affect the obligations of Authorized Dealers and Purchasers under any Orders or any related contracts or portions thereof. e. Termination for withdrawal of authority In the event that DES and/or purchaser's authority to perform any of its duties is withdrawn, reduced, or limited in any way after the commencement of this contract and prior to normal completion, DES may terminate this contract, in whole or in part, by seven calendar days written notice, or other appropriate time period, to Canon USA. Withdrawal of Authority is determined by legislature. In the event authority is withdrawn, DES will make its best effort to transition this agreement to the new authorizing entity. f. Termination for non -allocation of funds If funds are not allocated to Purchaser(s) to continue their Orders in any future period, such Purchaser(s) may terminate such Orders with seven calendar days written notice, or other appropriate time period, to Canon USA and/or the applicable Authorized Dealers, or work with Canon USA and/or the applicable Authorized Dealers to arrive at a mutually acceptable .x esolution of the situation. Purchasers will not be obligated to pay any further charges for materials, supplies, services and/or equipment including the net remainder of agreed -to consecutive periodic payments remaining unpaid beyond the end of the then -current period. DES and/or Purchaser agree to notify Canon USA in writing of such non -allocation at the earliest possible time. No penalty shall accrue to the Purchasers in the event this section shall be exercised. This section shall not be construed to permit DES to terminate any Orders in order to acquire similar materials, supplies, services and/or equipment from a third party. g. Termination for conflict of interest DES may terminate this Agreement by written notice to Canon USA, or may terminate any Orders by written notice to the applicable Authorized Dealer, if it is determined, after due notice and examination, that Canon USA or the Authorized Dealer, as applicable, has violated Chap#er 42.52 RCW , Ethics in Public Service, or any other laws regarding ethics in public acquisitions and procurement and performance of contracts. In the event this Agreement or any Orders are so terminated, DES and/or Purchaser shall be entitled to pursue the same remedies against the applicable party(ies) that it would have for a material breach. h. Termination by mutual agreement DES and the Canon USA may terminate this contract in whole or in part, at any time, by mutual agreement. Page 28 of 33 WASHINGTON PARTICIPATING ADDENDUM 06214 NASPO ValuePoint MULTIFUNCTION COPIERS AND RELATED SOFTWARE 3091 IN WITNESS WHEREOF, the parties have executed this Agreement as of the date of execution by both parties below. Participating State: Washington By: - - - Contractor: Canon U.S.A., INC. By. - --- - Name: Neva Peckham Name: juni shitake Title: Department of Enterprise Services, Contracts Specialist Title: Senior Vice President & General Manager Date: Dater j-7 e40j,5 Name: Scott Smith fZ Title: Washington State Procurement Manager - IT Date: Name: Christine Warnock �• Title: Washington NASPO ValuePoint Director Date: 2T Page 29 of 33 WASHINGTON PARTICIPATING ADDENDUM 05214 NASPO ValuePomt MULTIFUNCTION COPIERS AND RELATED SOFTWARE 3091 Attachment O SERVICE LEVEL AGREEMENT (SLA) 1. Customer Level SLA 1.1 Purpose The purpose of this addendum is to define service levels; penalties for the performance of the service levels; as well as provide the Customer with a defined replacement process for equipment performing below expectations. 1.2 Response Time - Fleet Vendor a Group AB :1: C. to maintain the following service levels defined below as tai Performance Criteria Quarterly Uptime Average Uptime under 105ppm multifunctional devices ( within servicing territory for each dealer) Includes Average Uptime Production Equipment 105ppm or greater (within servicing territory for each dealer) Wide Format Devices PW900 CW650 PW340 CW900 PW500 95% or better over the 4 fixed quarterly intervals per year, for devices within Servicing Territory. (Excludes devices with rated speeds of 105ppm or greater 80% or better on all production equipment over the 4 fixed quarterly intervals per year on production level equipment within Canon's Servicing Territory. 195% or better over the 4 fixed quarterly intervals per year, for devices within Servicing Territory. D Printers (Color and Black &White) imageCLASS Models MF models See Exchange /Carry -In imageRUNNER LBP Policy Attached models have the same uptime as category A/B under 105ppm F I Scanners See Exchange /Carry -In Policy Attached Page 30 of 33 WASHINGTON PARTICIPATING ADDENDUM O5214 NASPO ValuePoint MULTIFUNCTION COPIERS AND RELATED SOFTWARE 3091 Average On -Site Response Time First Time Fix 6 Hours or Less - over 6 fixed quarterly intervals per year, for devices within a servicing territory. Except exchange models if applicable. 80% of all service calls or better These service levels will be measured on a quarterly basis between Vendor and the State. Servicing Territory — 50 miles within the Authorized Servicer Production Equipment - units with rated speeds 105 pages per min or faster and/or graphic production color units (excludes imageRUNNER color units). Multifunctional Devices — Black and White units with rated speeds below 105 pages per minute and business color units (imageRUNNER color units are included in this classification). For All Multi -Function devices _- BIW & Color Average response time - Response time, as noted above, shall be calculated from the time the customer call is placed with our Dispatch department, until the time the Technician arrives at the individual lot,,ation. Response times are calculated between 8:30am and 5 OOpm, Monday through Friday, excluding Canon holidays. For the individual location which has multiple machines and active service calls, the Technicians arrival shall stop the response time calculation for all open service calls at that location. For B/W units with rated s eeds 105 pages iper minute or faster and/or Graphic Production color units Excludes ima eRUNNBR color units Downtime is calculated from the time a service call is placed with our Dispatch department until the time the Technician completes the repair. Uptime criteria are calculated between 8:30am and 5:OOpm, Monday through Friday, excluding Canon holidays, and exceptions outlined in the following sentence(s). Uptime requirements will not include preventative maintenance service calls, calls which could have been prevented by key operator functions outlined in unit's operation manual, calls created by user mishandling, units which are running outside the manufacturer's optimum performance volume, or units which need to be over -hauled as a result of reaching useful life, in the opinion of our Service department. For Groups -A and B - Downtime is calculated from the time a service call is placed with our Dispatch department until the time the Technician completes the repair. Uptime criteria is calculated between 8:30am and 5:OOpm, Monday through Friday, excluding Canon holidays, and exceptions outlined below. Uptime requirements will not include preventative maintenance service calls, calls which could have been prevented by key operator functions outlined in unit's operation manual, calls created by Page 31 of 33 WASHINGTON PARTICIPATING ADDENDUM 05214 NASPO ValuePoint MULTIFUNCTION COPIERS AND RELATED SOFTWARE 3091 user mishandling, units which are running outside the manufacturer's optimum performance volume, or units which need to be over -hauled as a result of reaching useful life, in the opinion of our Service department. Loaner Unit/Backup Production — If any unit in Groups A and B is inoperable for a period in excess of 72 hours, Vendor shall provide the Customer with either: i) A loaner unit of similar speed and capabilities until such time as the unit(s) covered by this agreement are operable, or ii) Provide the Customer with off -site manned production capabilities to accomplish the work of the unit that is inoperable at the sole cost of the Vendor. Such costs shall be limited to cost of production (service and supplies), equipment, labor, power, transportation of jobs to and from the off -site production facility and facilities. Prior to installing a substitute product, supplier will be allowed 90 days to remedy any quality or reliability issues. A designated factory authorized technician must certify each unit's ability to produce acceptable impressions with acceptable copies between calls or uptime. The guarantee will remain in effect for the term of the contract or up to five (5) years from the date of purchase/lease, provided the equipment has not been subjected to abuse or neglect and has been continuously covered by a Maintenance Contract. This replacement policy will remain in effect for the term of the contract and is subject to the Customer remaining current with supplier's payment requirements. For groups D and F, The Exchange and Carry -Inn Product Limited Warranty would apply. 1.3 Additional Vendor Guarantees 1.3.1 Training — End -user training - Upon equipment installation shall be at no charge. Technical support training to include Network connectivity and print driver installation. Subsequent training shall be available on an ongoing basis during the contract at an additional charge. Scheduling of all training shall be mutually agreed upon during regular business hours. 1.3.2 Invoicing — Vendor shall maintain timely, accurate invoicing, less service run impressions, as defined below. Measurable Service Level Timely Invoicing Invoices will be submitted no later than the 25 of the month immediately following the close of a billing period Accurate Invoicin Service Impressions Invoices do not require any credits for miss -billing Vendor will credit all service run impressions within the same billinsz cycle Page 32 of 33 WASHINGTON PARTICIPATING ADDENDUM 06214 NASPO ValuePoint MULTIFUNCTION COPIERS AND RELATED SOFTWARE 3091 2. Reporting and Billing 2.1 Timely Reporting - Vendor shall produce reporting for the State within 30 days of the closing of the reporting period. 2.2 Timely Payment of Administrative Fees -- Vendor shall produce payment for any State Specific Administrative Fee within 30 days of the closing of the reporting period. 2.3 Accuracy of Reporting - The State may request at any point proof of the reporting accuracy through the data set supporting the reporting. If the State has reason to believe that multiple and systemic reporting errors exist, that cannot be corrected to the State's satisfaction; the State may require an audit by a third party. If errors are found, the Successful vendor must reimburse the State for the cost of the auditor as well as correcting any administrative fee errors. .1.4 Accuracy of Billing — The State may request at any point proof of the billing accuracy through the data set supporting the billing. If the State has reason to believe that multiple and systemic billing errors exist, that cannot be corrected to the State's satisfaction; the State may require an audit by a third party. Page 33 of 33