DocuSign Envelope ID: A845CFB7-7347-4BF9-AF0C-A806679E1157
Page 4 of 44
Participating Addendum Number 81359 for
COMPUTER EQUIPMENT, PERIPHERALS & RELATED SERVICES
Between State of Tennessee and
Pure Storage, Inc.
Attachment A
State of Tennessee
(“State,” “Participating Entity,” or “Purchasing Entity”)
NASPO ValuePoint COMPUTER EQUIPMENT, PERIPHERALS & RELATED SERVICES 2023-2028
All references to “Contract” hereinbelow shall collectively refer to the “Master Contract”,
“Participating Addendum”, and “Supplemental Terms and Conditions”
Supplemental Terms and Conditions
Standard Terms and Conditions
1.
Required Approvals. The State is not bound by this Contract until it is duly approved by the Parties and
all appropriate State officials in accordance with applicable Tennessee laws and regulations. Depending
upon the specifics of this Contract, this may include approvals by the Commissioner of Finance and
Administration, the Commissioner of Human Resources, the Comptroller of the Treasury, and the Chief
Procurement Officer. Approvals shall be evidenced by a signature or electronic approval.
2.
Communications and Contacts. All instructions, notices, consents, demands, or other communications
required or contemplated by this Contract shall be in writing and shall be made by certified, first class
mail, return receipt requested and postage prepaid, by overnight courier service with an asset tracking
system, or by email or facsimile transmission with recipient confirmation. All communications, regardless
of method of transmission, shall be addressed to the respective Party at the appropriate mailing address,
facsimile number, or email address as stated below or any other address provided in writing by a Party.
The State:
Zohreh S. Hurd, Category Specialist – Technology
Central Procurement Office, Department of General Services (DGS)
312 Rosa L. Parks Ave., Nashville, TN 37243
Tennessee Tower, 3rd Floor
Zohreh.hurd@tn.gov
615-741-2026
The Contractor:
Pure Storage, Inc.
Kim Bradbury, Sr. Director Public Sector Contracts
2555 Augustine Drive, Santa Clara, CA 95054
DocuSign Envelope ID: A845CFB7-7347-4BF9-AF0C-A806679E1157
Page 5 of 44
Participating Addendum Number 81359 for
COMPUTER EQUIPMENT, PERIPHERALS & RELATED SERVICES
Between State of Tennessee and
Pure Storage, Inc.
kim.bradbury@purestorage.com
301-717-9968
FAX # 410-414-2117
All instructions, notices, consents, demands, or other communications shall be considered effective upon
receipt or recipient confirmation as may be required.
3.
Modification and Amendment. This Contract may be modified only by a written amendment signed by all
Parties and approved by all applicable State officials.
4.
Subject to Funds Availability. The Contract is subject to the appropriation and availability of State or
federal funds. In the event that the funds are not appropriated or are otherwise unavailable, the State
reserves the right to terminate this Contract upon written notice to the Contractor. The State’s exercise of
its right to terminate this Contract shall not constitute a breach of Contract by the State. Upon receipt of
the written notice, the Contractor shall cease all work associated with the Contract. If the State
terminates this Contract due to lack of funds availability, the Contractor shall be entitled to compensation
for all conforming goods requested and accepted by the State and for all satisfactory and authorized
services completed as of the termination date. Should the State exercise its right to terminate this
Contract due to unavailability of funds, the Contractor shall have no right to recover from the State any
actual, general, special, incidental, consequential, or any other damages of any description or amount.
5.
Termination for Convenience. The State may terminate this Contract for convenience without cause and
for any reason. The State shall give the Contractor at least thirty (30) days written notice before the
termination date. The Contractor shall be entitled to compensation for all conforming goods delivered and
accepted by the State or for satisfactory, authorized services completed as of the termination date. In no
event shall the State be liable to the Contractor for compensation for any goods neither requested nor
accepted by the State or for any services neither requested by the State nor satisfactorily performed by
the Contractor. In no event shall the State’s exercise of its right to terminate this Contract for
convenience relieve the Contractor of any liability to the State for any damages or claims arising under
this Contract.
6.
Termination for Cause. If the Contractor fails to properly perform its obligations under this Contract in a
timely or proper manner, or if the Contractor materially violates any terms of this Contract (“Breach
Condition”), the State shall have the right to immediately terminate the Contract and withhold payments in
excess of compensation for completed services or provided goods. Notwithstanding the above, the
Contractor shall not be relieved of liability to the State for damages sustained by virtue of any Breach
Condition and the State may seek other remedies allowed at law or in equity for breach of this Contract.
7.
Assignment and Subcontracting. The Contractor shall not assign this Contract or enter into a subcontract
for any of the goods or services provided under this Contract without the prior written approval of the
State. Notwithstanding any use of the approved subcontractors, the Contractor shall be the prime
contractor and responsible for compliance with all terms and conditions of this Contract. The State
reserves the right to request additional information or impose additional terms and conditions before
approving an assignment of this Contract in whole or in part or the use of subcontractors in fulfilling the
Contractor’s obligations under this Contract.
8.
Conflicts of Interest. The Contractor warrants that no part of the Contractor’s compensation shall be paid
directly or indirectly to an employee or official of the State of Tennessee as wages, compensation, or gifts
in exchange for acting as an officer, agent, employee, subcontractor, or consultant to the Contractor in
connection with any work contemplated or performed under this Contract.
DocuSign Envelope ID: A845CFB7-7347-4BF9-AF0C-A806679E1157
Page 6 of 44
Participating Addendum Number 81359 for
COMPUTER EQUIPMENT, PERIPHERALS & RELATED SERVICES
Between State of Tennessee and
Pure Storage, Inc.
The Contractor acknowledges, understands, and agrees that this Contract shall be null and void if the
Contractor is, or within the past six (6) months has been, an employee of the State of Tennessee or if the
Contractor is an entity in which a controlling interest is held by an individual who is, or within the past six
(6) months has been, an employee of the State of Tennessee.
9.
Nondiscrimination. The Contractor hereby agrees, warrants, and assures that no person shall be
excluded from participation in, be denied benefits of, or be otherwise subjected to discrimination in the
performance of this Contract or in the employment practices of the Contractor on the grounds of handicap
or disability, age, race, creed, color, religion, sex, national origin, or any other classification protected by
federal or state law. The Contractor shall, upon request, show proof of nondiscrimination and shall post
in conspicuous places, available to all employees and applicants, notices of nondiscrimination.
10.
Prohibition of Illegal Immigrants. The requirements of Tenn. Code Ann. § 12-3-309 addressing the use of
illegal immigrants in the performance of any contract to supply goods or services to the state of
Tennessee, shall be a material provision of this Contract, a breach of which shall be grounds for
monetary and other penalties, up to and including termination of this Contract.
a.
The Contractor agrees that the Contractor shall not knowingly utilize the services of an illegal
immigrant in the performance of this Contract and shall not knowingly utilize the services of any
subcontractor who will utilize the services of an illegal immigrant in the performance of this
Contract. The Contractor shall reaffirm this attestation, in writing, by submitting to the State a
completed and signed copy of the document at Attachment C: Attestation, semi-annually during
the Term. If the Contractor is a party to more than one contract with the State, the Contractor
may submit one attestation that applies to all contracts with the State. All Contractor attestations
shall be maintained by the Contractor and made available to State officials upon request.
b.
Prior to the use of any subcontractor in the performance of this Contract, and semi-annually
thereafter, during the Term, the Contractor shall obtain and retain a current, written attestation
that the subcontractor shall not knowingly utilize the services of an illegal immigrant to perform
work under this Contract and shall not knowingly utilize the services of any subcontractor who will
utilize the services of an illegal immigrant to perform work under this Contract. Attestations
obtained from subcontractors shall be maintained by the Contractor and made available to State
officials upon request.
c.
The Contractor shall maintain records for all personnel used in the performance of this Contract.
Contractor’s records shall be subject to review and random inspection at any reasonable time
upon reasonable notice by the State.
d.
The Contractor understands and agrees that failure to comply with this section will be subject to
the sanctions of Tenn. Code Ann. § 12-3-309 for acts or omissions occurring after its effective
date.
e.
For purposes of this Contract, "illegal immigrant" shall be defined as any person who is not: (i) a
United States citizen; (ii) a Lawful Permanent Resident; (iii) a person whose physical presence in
the United States is authorized; (iv) allowed by the federal Department of Homeland Security and
who, under federal immigration laws or regulations, is authorized to be employed in the U.S.; or
(v) is otherwise authorized to provide services under the Contract.
11.
Records. The Contractor shall maintain documentation for all charges under this Contract. The books,
records, and documents of the Contractor, for work performed or money received under this Contract,
shall be maintained for a period of five (5) full years from the date of the final payment and shall be
subject to audit at any reasonable time and upon reasonable notice by the State, the Comptroller of the
Treasury, or their duly appointed representatives. The financial statements shall be prepared in
accordance with generally accepted accounting principles.
DocuSign Envelope ID: A845CFB7-7347-4BF9-AF0C-A806679E1157
Page 7 of 44
Participating Addendum Number 81359 for
COMPUTER EQUIPMENT, PERIPHERALS & RELATED SERVICES
Between State of Tennessee and
Pure Storage, Inc.
12.
Monitoring. The Contractor’s activities conducted and records maintained pursuant to this Contract shall
be subject to monitoring and evaluation by the State, the Comptroller of the Treasury, or their duly
appointed representatives.
13.
Progress Reports. The Contractor shall submit brief, periodic, progress reports to the State as requested.
14.
Strict Performance. Failure by any Party to this Contract to require, in any one or more cases, the strict
performance of any of the terms, covenants, conditions, or provisions of this Contract shall not be
construed as a waiver or relinquishment of any term, covenant, condition, or provision. No term or
condition of this Contract shall be held to be waived, modified, or deleted except by a written amendment
signed by the Parties.
15.
Independent Contractor. The Parties shall not act as employees, partners, joint venturers, or associates
of one another. The Parties are independent contracting entities. Nothing in this Contract shall be
construed to create an employer/employee relationship or to allow either Party to exercise control or
direction over the manner or method by which the other transacts its business affairs or provides its usual
services. The employees or agents of one Party are not employees or agents of the other Party.
16.
Patient Protection and Affordable Care Act. The Contractor agrees that it will be responsible for
compliance with the Patient Protection and Affordable Care Act (“PPACA”) with respect to itself and its
employees, including any obligation to report health insurance coverage, provide health insurance
coverage, or pay any financial assessment, tax, or penalty for not providing health insurance. The
Contractor shall indemnify the State and hold it harmless from any costs to the State arising from
Contractor’s failure to fulfill its PPACA responsibilities for itself or its employees.
17.
Limitation of State’s Liability. The State shall have no liability except as specifically provided in this
Contract. In no event will the State be liable to the Contractor or any other party for any lost revenues,
lost profits, loss of business, decrease in the value of any securities or cash position, time, goodwill, or
any indirect, special, incidental, punitive, exemplary or consequential damages of any nature, whether
based on warranty, contract, statute, regulation, tort (including but not limited to negligence), or any other
legal theory that may arise under this Contract or otherwise. Notwithstanding anything else herein, the
State’s total liability under this Contract (including without limitation any exhibits, schedules, amendments
or other attachments to the Contract) or otherwise shall under no circumstances exceed the Estimated
Liability. This limitation of liability is cumulative and not per incident.
18.
Limitation of Contractor’s Liability. In accordance with Tenn. Code Ann. § 12-3-701, the Contractor’s
liability for all claims arising under this Contract shall be limited to ) an amount equal to two (2) times the
Estimated Liability amount detailed in Special Terms and Conditions #2, and as may be amended
PROVIDED THAT in no event shall this Section limit the liability of the Contractor for: (i) intellectual
property or any Contractor indemnity obligations for infringement for third-party intellectual property rights;
(ii) any claims covered by any specific provision in the Contract providing for liquidated damages; or (iii)
any claims for intentional torts, criminal acts, fraudulent conduct, or acts or omissions that result in
personal injuries or death.
19.
Hold Harmless. The Contractor agrees to indemnify and hold harmless the State of Tennessee as well
as its officers, agents, and employees from and against any and all claims, liabilities, losses, and causes
of action which may arise, accrue, or result to any person, firm, corporation, or other entity which may be
injured or damaged as a result of omissions, or negligence on the part of the Contractor, its employees,
or any person acting for or on its or their behalf relating to this Contract. The Contractor further agrees it
shall be liable for the reasonable cost of attorneys’ fees, court costs, expert witness fees, and other
litigation expenses for the State to enforce the terms of this Contract.
DocuSign Envelope ID: A845CFB7-7347-4BF9-AF0C-A806679E1157
Page 8 of 44
Participating Addendum Number 81359 for
COMPUTER EQUIPMENT, PERIPHERALS & RELATED SERVICES
Between State of Tennessee and
Pure Storage, Inc.
In the event of any suit or claim, the Parties shall give each other immediate notice and provide all
necessary assistance to respond. The failure of the State to give notice shall only relieve the Contractor
of its obligations under this Section to the extent that the Contractor can demonstrate actual prejudice
arising from the failure to give notice. This Section shall not grant the Contractor, through its attorneys,
the right to represent the State in any legal matter, as the right to represent the State is governed by
Tenn. Code Ann. § 8-6-106.
20.
HIPAA Compliance. The State and Contractor shall comply with obligations under the Health Insurance
Portability and Accountability Act of 1996 (“HIPAA”), Health Information Technology for Economic and
Clinical Health (“HITECH”) Act and any other relevant laws and regulations regarding privacy (collectively
the “Privacy Rules”). The obligations set forth in this Section shall survive the termination of this Contract.
a.
Contractor warrants to the State that it is familiar with the requirements of the Privacy
Rules, and will comply with all applicable requirements in the course of this Contract.
b.
Contractor warrants that it will cooperate with the State, including cooperation and
coordination with State privacy officials and other compliance officers required by the
Privacy Rules, in the course of performance of the Contract so that both parties will be in
compliance with the Privacy Rules.
c.
The State and the Contractor will sign documents, including but not limited to business
associate agreements, as required by the Privacy Rules and that are reasonably
necessary to keep the State and Contractor in compliance with the Privacy Rules. This
provision shall not apply if information received or delivered by the parties under this
Contract is NOT “protected health information” as defined by the Privacy Rules, or if the
Privacy Rules permit the parties to receive or deliver the information without entering into
a business associate agreement or signing another document.
d.
The Contractor will indemnify the State and hold it harmless for any violation by the
Contractor or its subcontractors of the Privacy Rules. This includes the costs of
responding to a breach of protected health information, the costs of responding to a
government enforcement action related to the breach, and any fines, penalties, or
damages paid by the State because of the violation.
21.
Tennessee Consolidated Retirement System. Subject to statutory exceptions contained in Tenn. Code
Ann. §§ 8-36-801, et seq., the law governing the Tennessee Consolidated Retirement System (“TCRS”),
provides that if a retired member of TCRS, or of any superseded system administered by TCRS, or of any
local retirement fund established under Tenn. Code Ann. §§ 8-35-101, et seq., accepts State
employment, the member's retirement allowance is suspended during the period of the employment.
Accordingly and notwithstanding any provision of this Contract to the contrary, the Contractor agrees that
if it is later determined that the true nature of the working relationship between the Contractor and the
State under this Contract is that of “employee/employer” and not that of an independent contractor, the
Contractor, if a retired member of TCRS, may be required to repay to TCRS the amount of retirement
benefits the Contractor received from TCRS during the Term.
22.
Tennessee Department of Revenue Registration. The Contractor shall comply with all applicable
registration requirements contained in Tenn. Code Ann. §§ 67-6-601 – 608. Compliance with applicable
registration requirements is a material requirement of this Contract.
23.
Debarment and Suspension. The Contractor certifies, to the best of its knowledge and belief, that it, its
current and future principals, its current and future subcontractors and their principals:
a.
are not presently debarred, suspended, proposed for debarment, declared ineligible, or
voluntarily excluded from covered transactions by any federal or state department or
agency;
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Participating Addendum Number 81359 for
COMPUTER EQUIPMENT, PERIPHERALS & RELATED SERVICES
Between State of Tennessee and
Pure Storage, Inc.
b.
have not within a three (3) year period preceding this Contract been convicted of, or had
a civil judgment rendered against them from commission of fraud, or a criminal offense in
connection with obtaining, attempting to obtain, or performing a public (federal, state, or
local) transaction or grant under a public transaction; violation of federal or state antitrust
statutes or commission of embezzlement, theft, forgery, bribery, falsification, or
destruction of records, making false statements, or receiving stolen property;
c.
are not presently indicted or otherwise criminally or civilly charged by a government entity
(federal, state, or local) with commission of any of the offenses detailed in section b. of
this certification; and
d.
have not within a three (3) year period preceding this Contract had one or more public
transactions (federal, state, or local) terminated for cause or default.
The Contractor shall provide immediate written notice to the State if at any time it learns that there was an
earlier failure to disclose information or that due to changed circumstances, its principals or the principals
of its subcontractors are excluded, disqualified, or presently fall under any of the prohibitions of sections
a-d.
24.
Force Majeure. “Force Majeure Event” means fire, flood, earthquake, elements of nature or acts of God,
wars, riots, civil disorders, rebellions or revolutions, acts of terrorism or any other similar cause beyond
the reasonable control of the Party except to the extent that the non-performing Party is at fault in failing
to prevent or causing the default or delay, and provided that the default or delay cannot reasonably be
circumvented by the non-performing Party through the use of alternate sources, workaround plans or
other means. A strike, lockout or labor dispute shall not excuse either Party from its obligations under this
Contract. Except as set forth in this Section, any failure or delay by a Party in the performance of its
obligations under this Contract arising from a Force Majeure Event is not a default under this Contract or
grounds for termination. The non-performing Party will be excused from performing those obligations
directly affected by the Force Majeure Event, and only for as long as the Force Majeure Event continues,
provided that the Party continues to use diligent, good faith efforts to resume performance without delay.
The occurrence of a Force Majeure Event affecting Contractor’s representatives, suppliers,
subcontractors, customers or business apart from this Contract is not a Force Majeure Event under this
Contract. Contractor will promptly notify the State of any delay caused by a Force Majeure Event (to be
confirmed in a written notice to the State within one (1) day of the inception of the delay) that a Force
Majeure Event has occurred, and will describe in reasonable detail the nature of the Force Majeure
Event. If any Force Majeure Event results in a delay in Contractor’s performance longer than forty-eight
(48) hours, the State may, upon notice to Contractor: (a) cease payment of the fees for the affected
obligations until Contractor resumes performance of the affected obligations; or (b) immediately terminate
this Contract or any purchase order, in whole or in part, without further payment except for fees then due
and payable. Contractor will not increase its charges under this Contract or charge the State any fees
other than those provided for in this Contract as the result of a Force Majeure Event.
25.
State and Federal Compliance. The Contractor shall comply with all State and federal laws and
regulations applicable to Contractor in the Contractor’s performance of this Contract.
26.
Governing Law. This Contract shall be governed by and construed in accordance with the laws of the
State of Tennessee, without regard to its conflict or choice of law rules. The Tennessee Claims
Commission or the state or federal courts in Tennessee shall be the venue for all claims, disputes, or
disagreements arising under this Contract. The Contractor acknowledges and agrees that any rights,
claims, or remedies against the State of Tennessee or its employees arising under this Contract shall be
subject to and limited to those rights and remedies available under Tenn. Code Ann. §§ 9-8-101 - 408.
DocuSign Envelope ID: A845CFB7-7347-4BF9-AF0C-A806679E1157
Page 10 of 44
Participating Addendum Number 81359 for
COMPUTER EQUIPMENT, PERIPHERALS & RELATED SERVICES
Between State of Tennessee and
Pure Storage, Inc.
27.
Entire Agreement. This Contract is complete and contains the entire understanding between the Parties
relating to its subject matter, including all the terms and conditions of the Parties’ agreement. This
Contract supersedes any and all prior understandings, representations, negotiations, and agreements
between the Parties, whether written or oral.
28.
Severability. If any terms and conditions of this Contract are held to be invalid or unenforceable as a
matter of law, the other terms and conditions of this Contract shall not be affected and shall remain in full
force and effect. The terms and conditions of this Contract are severable.
29.
Headings. Section headings of this Contract are for reference purposes only and shall not be construed
as part of this Contract.
30.
Incorporation of Additional Documents. Each of the following documents is included as a part of this
Contract by reference. In the event of a discrepancy or ambiguity regarding the Contractor’s duties,
responsibilities, and performance under this Contract, these items shall govern in order of precedence
below:
a.
any amendment to this Contract, with the latter in time controlling over any earlier
amendments;
b.
this Contract with any attachments or exhibits, which includes Attachments A-G;
c.
any clarifications of or addenda to the Contractor’s proposal seeking this Contract;
31.
Iran Divestment Act. The requirements of Tenn. Code Ann. § 12-12-101, et seq., addressing contracting
with persons as defined at Tenn. Code Ann. §12-12-103(5) that engage in investment activities in Iran,
shall be a material provision of this Contract. The Contractor certifies, under penalty of perjury, that to the
best of its knowledge and belief that it is not on the list created pursuant to Tenn. Code Ann. § 12-12-106.
32.
Insurance. Contractor shall maintain insurance coverage as specified in this Section. The State reserves
the right to amend or require additional insurance coverage, coverage amounts, and endorsements
required under this Contract. Contractor’s failure to maintain or submit evidence of insurance coverage,
as required, is a material breach of this Contract. If Contractor loses insurance coverage, fails to renew
coverage, or for any reason becomes uninsured during the Term, Contractor shall immediately notify the
State. All insurance companies providing coverage must be: (a) acceptable to the State; (b) authorized
by the Tennessee Department of Commerce and Insurance (“TDCI”); and (c) rated A- / VII or better by
A.M. Best. All coverage must be on a primary basis and noncontributory with any other insurance or self-
insurance carried by the State. Contractor agrees to name the State as an additional insured on any
insurance policy with the exception of workers’ compensation (employer liability) and professional liability
(errors and omissions) insurance. All policies must contain an endorsement for a waiver of subrogation in
favor of the State. Any deductible or self insured retention (“SIR”) over fifty thousand dollars ($50,000)
must be approved by the State. The deductible or SIR and any premiums are the Contractor’s sole
responsibility. The Contractor agrees that the insurance requirements specified in this Section do not
reduce any liability the Contractor has assumed under this Contract including any indemnification or hold
harmless requirements.
To achieve the required coverage amounts, a combination of an otherwise deficient specific policy and an
umbrella policy with an aggregate meeting or exceeding the required coverage amounts is acceptable.
For example: If the required policy limit under this Contract is for two million dollars ($2,000,000) in
coverage, acceptable coverage would include a specific policy covering one million dollars ($1,000,000)
combined with an umbrella policy for an additional one million dollars ($1,000,000). If the deficient
underlying policy is for a coverage area without aggregate limits (generally Automobile Liability and
Employers’ Liability Accident), Contractor shall provide a copy of the umbrella insurance policy
documents to ensure that no aggregate limit applies to the umbrella policy for that coverage area. In the
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Participating Addendum Number 81359 for
COMPUTER EQUIPMENT, PERIPHERALS & RELATED SERVICES
Between State of Tennessee and
Pure Storage, Inc.
event that an umbrella policy is being provided to achieve any required coverage amounts, the umbrella
policy shall be accompanied by an endorsement at least as broad as the Insurance Services Office, Inc.
(also known as “ISO”) “Noncontributory—Other Insurance Condition” endorsement or shall be written on a
policy form that addresses both the primary and noncontributory basis of the umbrella policy if the State is
otherwise named as an additional insured.
Contractor shall provide the State a certificate of insurance (“COI”) evidencing the coverages and
amounts specified in this Section. The COI must be on a form approved by the TDCI (standard ACORD
form preferred). The COI must list each insurer’s National Association of Insurance Commissioners
(NAIC) number and be signed by an authorized representative of the insurer. The COI must list the State
of Tennessee – CPO Risk Manager, 312 Rosa L. Parks Ave., 3
rd
floor Central Procurement Office,
Nashville, TN 37243 as the certificate holder. Contractor shall provide the COI ten (10) business days
prior to the Effective Date and again thirty (30) calendar days before renewal or replacement of coverage.
Contractor shall provide the State evidence that all subcontractors maintain the required insurance or that
subcontractors are included under the Contractor’s policy. At any time, the State may require Contractor
to provide a valid COI. The Parties agree that failure to provide evidence of insurance coverage as
required is a material breach of this Contract. If Contractor self-insures, then a COI will not be required to
prove coverage. Instead Contractor shall provide a certificate of self-insurance or a letter, on Contractor’s
letterhead, detailing its coverage, policy amounts, and proof of funds to reasonably cover such expenses.
The State reserves the right to require complete copies of all required insurance policies, including
endorsements required by these specifications, at any time.
The State agrees that it shall give written notice to the Contractor as soon as practicable after the State
becomes aware of any claim asserted or made against the State, but in no event later than thirty (30)
calendar days after the State becomes aware of such claim. The failure of the State to give notice shall
only relieve the Contractor of its obligations under this Section to the extent that the Contractor can
demonstrate actual prejudice arising from the failure to give notice. This Section shall not grant the
Contractor or its insurer, through its attorneys, the right to represent the State in any legal matter, as the
right to represent the State is governed by Tenn. Code Ann. § 8-6-106.
The insurance obligations under this Contract shall be: (1)—all the insurance coverage and policy limits
carried by the Contractor; or (2)—the minimum insurance coverage requirements and policy limits shown
in this Contract; whichever is greater. Any insurance proceeds in excess of or broader than the minimum
required coverage and minimum required policy limits, which are applicable to a given loss, shall be
available to the State. No representation is made that the minimum insurance requirements of the
Contract are sufficient to cover the obligations of the Contractor arising under this Contract. The
Contractor shall obtain and maintain, at a minimum, the following insurance coverages and policy limits.
a.
Commercial General Liability (“CGL”) Insurance
1)
The Contractor shall maintain CGL, which shall be written on an ISO Form CG 00 01
occurrence form (or a substitute form providing equivalent coverage) and shall cover
liability arising from property damage, premises and operations products and completed
operations, bodily injury, personal and advertising injury, and liability assumed under an
insured contract (including the tort liability of another assumed in a business contract).
The Contractor shall maintain single limits not less than one million dollars ($1,000,000)
per occurrence. If a general aggregate limit applies, either the general aggregate limit
shall apply separately to this policy or location of occurrence or the general aggregate
limit shall be twice the required occurrence limit.
b.
Workers’ Compensation and Employer Liability Insurance
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Page 12 of 44
Participating Addendum Number 81359 for
COMPUTER EQUIPMENT, PERIPHERALS & RELATED SERVICES
Between State of Tennessee and
Pure Storage, Inc.
1)
For Contractors statutorily required to carry workers’ compensation and employer liability
insurance, the Contractor shall maintain:
i.
Workers’ compensation in an amount not less than one million dollars
($1,000,000) including employer liability of one million dollars ($1,000,000) per
accident for bodily injury by accident, one million dollars ($1,000,000) policy limit
by disease, and one million dollars ($1,000,000) per employee for bodily injury by
disease.
2)
If the Contractor certifies that it is exempt from the requirements of Tenn. Code Ann. §§
50-6-101 – 103, then the Contractor shall furnish written proof of such exemption for one
or more of the following reasons:
i.
The Contractor employs fewer than five (5) employees;
ii.
The Contractor is a sole proprietor;
iii.
The Contractor is in the construction business or trades with no employees;
iv.
The Contractor is in the coal mining industry with no employees;
v.
The Contractor is a state or local government; or
vi.
The Contractor self-insures its workers’ compensation and is in compliance with
the TDCI rules and Tenn. Code Ann. § 50-6-405.
c.
Automobile Liability Insurance
1)
The Contractor shall maintain automobile liability insurance which shall cover liability
arising out of any automobile (including owned, leased, hired, and non-owned
automobiles).
2)
The Contractor shall maintain bodily injury/property damage with a limit not less than one
million dollars ($1,000,000) per occurrence or combined single limit.
d.
Technology Professional Liability (Errors & Omissions)/Cyber Liability Insurance
1)
The Contractor shall maintain technology professional liability (errors & omissions)/cyber
liability insurance appropriate to the Contractor’s profession in an amount not less than
ten million dollars ($10,000,000) per occurrence or claim and ten million dollars
($10,000,000) annual aggregate, covering all acts, claims, errors, omissions, negligence,
infringement of intellectual property (including copyright, patent and trade secret);
network security and privacy risks, including but not limited to unauthorized access,
failure of security, information theft, damage to destruction of or alteration of electronic
information, breach of privacy perils, wrongful disclosure and release of private
information, collection, or other negligence in the handling of confidential information, and
including coverage for related regulatory fines, defenses, and penalties.
2)
Such coverage shall include data breach response expenses, in an amount not less than
ten million dollars ($10,000,000) and payable whether incurred by the State or
Contractor, including but not limited to consumer notification, whether or not required by
law, computer forensic investigations, public relations and crisis management firm fees,
credit file or identity monitoring or remediation services and expenses in the performance
of services for the State or on behalf of the State hereunder.
33.
Major Procurement Contract Sales and Use Tax. Pursuant to Tenn. Code Ann. § 4-39-102 and to the
extent applicable, the Contractor and the Contractor’s subcontractors shall remit sales and use taxes on
the sales of goods or services that are made by the Contractor or the Contractor’s subcontractors and
that are subject to tax.
34.
Confidentiality of Records. Strict standards of confidentiality of records and information shall be
maintained in accordance with applicable state and federal law. All material and information, regardless
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of form, medium or method of communication, provided to the Contractor by the State or acquired by the
Contractor on behalf of the State that is regarded as confidential under state or federal law shall be
regarded as “Confidential Information.” Nothing in this Section shall permit Contractor to disclose any
Confidential Information, regardless of whether it has been disclosed or made available to the Contractor
due to intentional or negligent actions or inactions of agents of the State or third parties. Confidential
Information shall not be disclosed except as required or permitted under state or federal law. Contractor
shall take all necessary steps to safeguard the confidentiality of such material or information in
conformance with applicable state and federal law.
The obligations set forth in this Section shall survive the termination of this Contract.
35.
Boycott of Israel. The Contractor certifies that it is not currently engaged in, and covenants that it will
not, for the duration of the Contract, engage in a Boycott of Israel, as that term is defined in Tenn. Code
Ann. § 12-4-119.
36.
Prohibited Contract Terms. The prohibited contract terms and conditions enumerated in Pub. Ch. 113, §
5, shall be a material provision of this Contract. The Contractor acknowledges, understands, and agrees
that the inclusion of a term or condition prohibited by Pub. Ch. 113, § 5, shall be null and void and the
Contract shall be enforceable as if the Contract did not contain such term or condition.
Special Terms and Conditions
1.
Conflicting Terms and Conditions. Should any of these special terms and conditions conflict with any
other terms and conditions of this Contract, the special terms and conditions shall be subordinate to the
Contract’s other terms and conditions.
2.
Estimated Liability. The total purchases of any goods or services under the Contract are not known. The
State estimates the purchases during the Term shall be FIVE MILLION ($5,000,000) (“Estimated
Liability”). This Contract does not grant the Contractor any exclusive rights. The State does not
guarantee that it will buy any minimum quantity of goods or services under this Contract. Subject to the
terms and conditions of this Contract, the Contractor will only be paid for goods or services provided
under this Contract after a purchase order is issued to Contractor by the State or as otherwise specified
by this Contract.
3.
Payment Methodology. The Contractor’ Authorized Resellers shall be compensated based on the
payment methodology for goods or services authorized by the State in a total amount as set forth in
Special Terms and Conditions #2 above and which is based on the NASPO Valuepoint reseller catalog
found at:
https://www.naspovaluepoint.org/portfolio/computer-equipment-peripherals-related-services-2023-
2028/pure-storage/
https://www.purestorage.com/company/how-to-buy/naspo-valuepoint-23020.html
4.
Travel Compensation. The Contractor shall not be compensated or reimbursed for travel time, travel
expenses, meals, or lodging.
5.
Statement of Work. Professional Services shall be secured through a Statement of Work (SOW) using
Contractor’s template preferred or NASPO Template (See Attachment D) executed between the
Contractor and the State Agency or Purchasing Entity. This SOW constitutes an Order under this
Participating Addendum NASPO COMPUTER EQUIPMENT, PERIPHERALS & RELATED SERVICES
SWC3014, (the “Contract”) and incorporates by reference the terms and conditions, specifications, and
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other incorporated contract documents of the Contract. In case of any conflict between the SOW and the
Contract, the Contract shall prevail.
6.
Invoice Requirements. The Contractor’s Authorized Resellers shall invoice the State only after
completion of all work, described in this Contract, and present invoices no more often than monthly, with
all necessary supporting documentation, to:
State Agency Billing Address
a.
Each invoice, on Contractor’s letterhead, shall clearly and accurately detail all of the following
information (calculations must be extended and totaled correctly):
(1)
Invoice number (assigned by the Contractor);
(2)
Invoice date;
(3)
Contract number (assigned by the State);
(4)
Customer account name: State Agency & Division Name;
(5)
Customer account number (assigned by the Contractor to the above-referenced
Customer);
(6)
Contractor name;
(7)
Contractor Tennessee Edison registration ID number;
(8)
Contractor contact for invoice questions (name, phone, or email);
(9)
Contractor remittance address;
(10)
Description of delivered goods or services provided and invoiced, including identifying
information as applicable; and
(11)
Total amount due for delivered goods or services provided (as stipulated in Special
Terms and Conditions #2 above).
b.
The Contractor understands and agrees that an invoice under this Contract shall:
(1)
only include charges for goods delivered or services provided as described in this
Contract and in accordance with payment terms and conditions set forth in Special Terms
and Conditions #3;
(2)
only be submitted for goods delivered or services completed and shall not include any
charge for future goods to be delivered or services to be performed;
(3)
not include Contractor’s taxes which includes without limitation Contractor’s sales and
use tax, excise taxes, franchise taxes, real or personal property taxes, or income taxes;
and
(4)
begin the timeframe for payment (and any discounts) only when the State is in receipt of
the invoice, and the invoice meets the minimum requirements of this Special Terms and
Conditions #6.
7.
Deductions. The State reserves the right to deduct from amounts, which are or shall become due and
payable to the Contractor under this or any contract between the Contractor and the State of Tennessee,
any amounts that are or shall become due and payable to the State of Tennessee by the Contractor.
8.
Prerequisite Documentation. The Contractor’s Authorized Resellers shall not invoice the State under this
Contract until the State has received the following, properly completed documentation.
a.
The Contractor’ Authorized Resellers shall complete, sign, and present to the State the
"Authorization Agreement for Automatic Deposit Form" provided by the State. By doing so, the
Contractor’s Authorized Resellers acknowledges and agrees that, once this form is received by the
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State, payments to the Contractor, under this or any other contract the Contractor has with the State
of Tennessee, may be made by ACH; and
b.
The Contractor’s Authorized Resellers shall complete, sign, and return to the State the State-
provided W-9 form. The taxpayer identification number on the W-9 form must be the same as the
Contractor's Federal Employer Identification Number or Social Security Number referenced in the
Contractor’s Edison registration information.
9.
State Ownership of Goods. The State shall have ownership, right, title, and interest in all goods provided
by Contractor under this Contract including full rights to use the goods and transfer title in the goods to
any third parties.
10.
Intellectual Property Indemnity. The Contractor agrees to indemnify and hold harmless the State of
Tennessee as well as its officers, agents, and employees from and against any and all claims or suits
which may be brought against the State concerning or arising out of any claim of an alleged patent,
copyright, trade secret or other intellectual property infringement related to the Contractor’s products. In
any such claim or action brought against the State, the Contractor shall satisfy and indemnify the State for
the amount of any settlement or final judgment, and the Contractor shall be responsible for all legal or
other fees or expenses incurred by the State arising from any such claim. The State shall give the
Contractor notice of any such claim or suit, however, the failure of the State to give such notice shall only
relieve Contractor of its obligations under this Section to the extent Contractor can demonstrate actual
prejudice arising from the State’s failure to give notice. This Section shall not grant the Contractor,
through its attorneys, the right to represent the State of Tennessee in any legal matter, as provided in
Tenn. Code Ann. § 8-6-106.
11.
Additional lines, items, or options to the Contract. At its sole discretion, the State may make written
requests to the Contractor to add lines, items, or options that are needed and within the Scope but were
not included in the original Contract. Such lines, items, or options will be added to the Contract through a
Memorandum of Understanding (“MOU”), not an amendment.
a.
After the Contractor receives a written request to add lines, items, or options, the Contractor
shall have ten (10) business days to respond with a written proposal. The Contractor’s written
proposal shall include:
1)
The effect, if any, of adding the lines, items, or options on the other goods or services
required under the Contract;
2)
Any pricing related to the new lines, items, or options;
3)
The expected effective date for the availability of the new lines, items, or options; and
4)
Any additional information requested by the State.
b.
The State may negotiate the terms of the Contractor’s proposal by requesting revisions to the
proposal.
c.
To indicate acceptance of a proposal, the State will sign it. The signed proposal shall constitute a
MOU between the Parties, and the lines, items, or options shall be incorporated into the Contract
as if set forth verbatim.
d.
Only after a MOU has been executed shall the Contractor perform or deliver the new lines, items,
or options.
12.
Software License Warranty. Contractor grants a license to the State to use all software provided under
this Contract in the course of the State’s business and purposes pursuant to the End User Agreement
included as Attachment G.
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Participating Addendum Number 81359 for
COMPUTER EQUIPMENT, PERIPHERALS & RELATED SERVICES
Between State of Tennessee and
Pure Storage, Inc.
13.
Software Support and Maintenance Warranty. Contractor shall provide to the State all software
upgrades, modifications, bug fixes, or other improvements in its software that it makes generally
available to its customers pursuant to the End User Agreement.
14.
Extraneous Terms and Conditions. Contractor’s Authorized Resellers shall fill all orders submitted by the
State under this Contract. No purchase order, invoice, or other documents associated with any sales,
orders, or supply of any good or service under this Contract shall contain any terms or conditions other
than as set forth in the Contract. Any such extraneous terms and conditions shall be void, invalid and
unenforceable against the State. Any refusal by Contractor to supply any goods or services under this
Contract conditioned upon the State submitting to any extraneous terms and conditions shall be a
material breach of the Contract and constitute an act of bad faith by Contractor.
15.
Other Requirements. .
a.
Minimum Requirements
(1)
The Contractor and all data centers used by the Contractor to host State data, including
those of all Subcontractors, must comply with the State’s Enterprise Information Security
Policies as amended periodically. The State’s Enterprise Information Security Policies
document is found at the following URL:
https://www.tn.gov/finance/strategic-technology-solutions/strategic-technology-solutions/sts-
security-policies.html.
(2)
The Contractor agrees to maintain the Application so that it will run on a current,
manufacturer-supported Operating System. “Operating System” shall mean the software that
supports a computer's basic functions, such as scheduling tasks, executing applications, and
controlling peripherals.
(3)
If the Application requires middleware or database software, Contractor shall maintain
middleware and database software versions that are at all times fully compatible with current
versions of the Operating System and Application to ensure that security vulnerabilities are
not introduced.
16.
Prohibited Advertising or Marketing. The Contractor shall not suggest or imply in advertising or marketing
materials that Contractor's goods or services are endorsed by the State. The restrictions on Contractor
advertising or marketing materials under this Section shall survive the termination of this Contract.
17.
Public Accountability. If the Contractor is subject to Tenn. Code Ann. §§ 8-4-401, et seq., or if this
Contract involves the provision of services to citizens by the Contractor on behalf of the State, the
Contractor agrees to establish a system through which recipients of services may present grievances
about Contractor’s operation of the service program. The Contractor shall also display in a prominent
place, located near the passageway through which the public enters in order to receive contract-
supported services, a sign at least eleven inches (11") in height and seventeen inches (17") in width
stating the following:
NOTICE: THIS AGENCY IS A RECIPIENT OF TAXPAYER FUNDING. IF YOU OBSERVE AN AGENCY
DIRECTOR OR EMPLOYEE ENGAGING IN ANY ACTIVITY THAT YOU CONSIDER TO BE ILLEGAL,
IMPROPER, OR WASTEFUL, PLEASE CALL THE STATE COMPTROLLER’S TOLL-FREE HOTLINE:
1-800-232-5454
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Participating Addendum Number 81359 for
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The sign shall be of the form prescribed by the Comptroller of the Treasury. The contracting state agency
shall request copies of the sign from the Comptroller of the Treasury and provide signs to contractors.
18.
Contractor Commitment to Diversity. The Contractor shall comply with and make reasonable business
efforts to exceed the commitment to diversity represented by the Contractor’s Response to Attachment B:
Diversity Letter and resulting in this Contract.
The Contractor shall assist the State in monitoring the Contractor’s performance of this commitment by
providing, as requested, a monthly report of participation in the performance of this Contract by small
business enterprises and businesses owned by minorities, women, service-disabled veterans, and
persons with disabilities. Such reports shall be provided to the State of Tennessee Governor's Office of
Diversity Business Enterprise in the TN Diversity Software available online at:
https://tn.diversitysoftware.com/FrontEnd/StartCertification.asp?TN=tn&XID=9810
19.
Unencumbered Personnel. The Contractor shall not restrict its employees, agents, subcontractors or
principals who perform services for the State under this Contract from performing the same or similar
services for the State after the termination of this Contract, either as a State employee, an independent
contractor, or an employee, agent, subcontractor or principal of another contractor with the State.
20.
Personally Identifiable Information. While performing its obligations under this Contract, Contractor may
have access to Personally Identifiable Information held by the State (“PII”). For the purposes of this
Contract, “PII” includes “Nonpublic Personal Information” as that term is defined in Title V of the Gramm-
Leach-Bliley Act of 1999 or any successor federal statute, and the rules and regulations thereunder, all as
may be amended or supplemented from time to time (“GLBA”) and personally identifiable information and
other data protected under any other applicable laws, rule or regulation of any jurisdiction relating to
disclosure or use of personal information (“Privacy Laws”). Contractor agrees it shall not do or omit to do
anything which would cause the State to be in breach of any Privacy Laws. Contractor shall, and shall
cause its employees, agents and representatives to: (i) keep PII confidential and may use and disclose
PII only as necessary to carry out those specific aspects of the purpose for which the PII was disclosed to
Contractor and in accordance with this Contract, GLBA and Privacy Laws; and (ii) implement and
maintain appropriate technical and organizational measures regarding information security to: (A) ensure
the security and confidentiality of PII; (B) protect against any threats or hazards to the security or integrity
of PII; and (C) prevent unauthorized access to or use of PII. Contractor shall immediately notify State: (1)
of any disclosure or use of any PII by Contractor or any of its employees, agents and representatives in
breach of this Contract; and (2) of any disclosure of any PII to Contractor or its employees, agents and
representatives where the purpose of such disclosure is not known to Contractor or its employees, agents
and representatives. The State reserves the right to review Contractor's policies and procedures used to
maintain the security and confidentiality of PII and Contractor shall, and cause its employees, agents and
representatives to, comply with all reasonable requests or directions from the State to enable the State to
verify or ensure that Contractor is in full compliance with its obligations under this Contract in relation to
PII. Upon termination or expiration of the Contract or at the State’s direction at any time in its sole
discretion, whichever is earlier, Contractor shall immediately return to the State any and all PII which it
has received under this Contract and shall destroy all records of such PII.
The Contractor shall report to the State any instances of unauthorized access to or potential disclosure of
PII in the custody or control of Contractor (“Unauthorized Disclosure”) that come to the Contractor’s
attention. Any such report shall be made by the Contractor within twenty-four (24) hours after the
Unauthorized Disclosure has come to the attention of the Contractor. Contractor shall take all necessary
measures to halt any further Unauthorized Disclosures. The Contractor, at the sole discretion of the
State, shall provide no cost credit monitoring services for individuals whose PII was affected by the
Unauthorized Disclosure. The Contractor shall bear the cost of notification to all individuals affected by
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the Unauthorized Disclosure, including individual letters and public notice. The remedies set forth in this
Section are not exclusive and are in addition to any claims or remedies available to this State under this
Contract or otherwise available at law. The obligations set forth in this Section shall survive the
termination of this Contract.
21.
Statewide Contract. This Contract establishes a source or sources of supply for all Tennessee State
Agencies. “Tennessee State Agency” refers to the various departments, institutions, boards,
commissions, and agencies of the executive branch of government of the State of Tennessee with
exceptions as addressed in Tenn. Comp. R. & Regs. 0690-03-01-.01. The Contractor shall provide all
goods or services and deliverables as required by this Contract to all Tennessee State Agencies. The
Contractor shall make this Contract available to the following entities, who are authorized to and who may
purchase off of this Statewide Contract (“Authorized Users”):
a.
all Tennessee State governmental entities (this includes the legislative branch; judicial branch;
and, commissions and boards of the State outside of the executive branch of government);
b.
Tennessee local governmental agencies;
c.
members of the University of Tennessee or Tennessee Board of Regents systems;
d.
any private nonprofit institution of higher education chartered in Tennessee; and,
e.
any corporation which is exempted from taxation under 26 U.S.C. Section 501(c) (3), as
amended, and which contracts with the Department of Mental Health and Substance Abuse to
provide services to the public (Tenn. Code Ann. § 33-2-1001).
These Authorized Users may utilize this Contract by purchasing directly from the Contractor’s Authorized
Resellers according to their own procurement policies and procedures. The State is not responsible or
liable for the transactions between the Contractor’s Authorized Resellers and Authorized Users.
22.
Statewide Contract Reports. All reports shall be submitted electronically in Microsoft Excel format.
Reports shall include the ability to sort or summarize data in accordance with the Contract Administrator's
specifications. All reports shall be provided at no additional cost to the State.
1
Quarterly Reports: Contractor(s) will submit quarterly reports to the Contract Administrator no later than
thirty (3 0) days after the end of the State's quarter (e.g. a fiscal year quarter 2 report for October -
December is due no later than January 10th). At the Contract Administrator's sole discretion, the State
may extend the time allowed to complete quarterly reports. Quarterly reports shall provide statistical data
on all purchases under this Contract by Tennessee State Agencies and Authorized Users. At minimum,
the quarterly report's statistical data shall be detailed and broken down by line item to include:
1.
Edison contract number
2.
Contract line item number
3.
Invoice date
4.
Invoice number
5.
Supplier part number
6.
Item or bundle description
7.
Quantity purchased
8.
Unit of measure
9.
Unit of measure description
10.
Name of State Agency or Authorized User
11.
Identity of purchaser: State entity or non-State entity
12.
State Agency location
13.
Unit/Contract price per line item
14.
List price as listed in supplier's catalog if catalog item
15.
Subtotals for each category above
16.
Grand totals for each category above
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Custom Reports: When requested by the State, the Contractor shall submit custom reports to the
Contract Administrator within thirty (30) days of the request.
23.
Survival. The terms, provisions, representations, and warranties contained in this Contract which by their
sense and context are intended to survive the performance and termination of this Contract, shall so
survive the completion of performance and termination of this Contract.
24.
Inspection and Acceptance. The State shall have the right to inspect all goods or services provided by
Contractor under this Contract. If, upon inspection, the State determines that the goods or services are
Defective, the State shall notify Contractor, and Contractor shall re-deliver the goods or provide the
services at no additional cost to the State. If after a period of thirty (30) days following delivery of goods or
performance of services the State does not provide a notice of any Defects, the goods or services shall
be deemed to have been accepted by the State.
25.
Term of Contract. This Contract shall be effective for the period beginning on January 5, 2024
(“Effective Date”) and ending on June 30, 2025. The State shall have no obligation for goods or services
provided by the Contractor prior to the Effective Date.
26.
Renewal Options. This Contract may be renewed upon satisfactory completion of the Term. The State
reserves the right to execute up to three (3) renewal options under the same terms and conditions for a
period not to exceed twelve (12) months each by the State, at the State's sole option. In no event,
however, shall the maximum Term, including all renewals or extensions, exceed a total of sixty (60)
months or extend beyond the term of the Master Agreement.
27.
Term Extension. The State may extend the Term an additional period of time, not to exceed one hundred-
eighty (180) days beyond the expiration date of this Contract, under the same terms and conditions, at
the State’s sole option. In no event, however, shall the maximum Term, including all renewals or
extensions, exceed a total of sixty (60) months or extend beyond the term of the Master Agreement.
28.
Warranty. Contractor represents and warrants that the term of the warranty (“Warranty Period”) shall be
the warranty generally offered by Contractor pursuant to its End User Agreement. The goods or services
provided under this Contract shall conform to the corresponding Technical Documentation. Any
nonconformance of the goods or services to the Technical Documentation shall constitute a “Defect” and
shall be considered “Defective.” If Contractor receives notice of a Defect during the Warranty Period,
then Contractor shall correct the Defect pursuant to the terms and conditions of the End User Agreement.
Contractor represents pursuant to the End User Agreement that the State is authorized to possess and
use all equipment, materials, software, and deliverables provided under this Contract.
Contractor represents and warrants that all goods or services provided under this Contract shall be
provided in a timely and professional manner, by qualified and skilled individuals, and in conformity with
standards generally accepted in Contractor’s industry.
If Contractor fails to provide the goods or services as warranted, then Contractor will re-provide the goods
or services at no additional charge. If Contractor is unable or unwilling to re-provide the goods or
services as warranted, then the State shall be entitled to recover the fees paid to Contractor’s Authorized
Reseller for the Defective goods or services. Any exercise of the State’s rights under this Section shall
not prejudice the State’s rights to seek any other remedies available under this Contract or applicable law.
29.
State and Federal Compliance. The Contractor shall comply with all State and federal laws and
regulations applicable to Contractor in the Contractor’s performance of this Contract.
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Participating Addendum Number 81359 for
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30.
Administrative Fees. The Contractor shall pay the State an Administrative Fee of one (1) percent (1.0% or
0.01) in accordance with the Terms and Conditions of the Master Agreement no later than 60 days
following the end of each calendar quarter. The State’s Administrative Fee shall be submitted quarterly
and is based on sales of products and services (less any charges for taxes or shipping).
Period End Admin Fee Due
March 31 May 31
June 30 August 31
September 30 November 30
December 31 February 28
The administrative fee shall be submitted to the following address:
Michael Winston, Director of Financial Management
Department of General Services
W.R. Snodgrass TN. Tower 22nd Floor
312 Rosa L. Parks Avenue
Nashville, TN 37243
The Contractors point of contact for reporting and processing of the administrative fee is:
Name:
Katie Lefebvre, Public Sector Contracts Specialist, III
Address:
2555 Augustine Drive, Santa Clara, CA 95054
Telephone:
(630) 863-9428
Email:
klefebvre@purestorage.com
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Participating Addendum Number 81359 for
COMPUTER EQUIPMENT, PERIPHERALS & RELATED SERVICES
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Page 21 of 44
ATTACHMENT B
DIVERSITY COMMITMENT
State of Tennessee
Central Procurement Office
Department of General Services (DGS)
Tennessee Tower, 3rd Floor
312 Rosa L. Parks Ave., Nashville, TN 37243
Attn: Zohreh S. Hurd, Category Specialist – Technology
Pure Storage, Inc. is committed to achieving or surpassing a goal of 10 percent spend with certified diversity business
enterprise firms on State of Tennessee Contract #81359 (Edison document #0000232662). Diversity businesses are defined
as those that are owned by minority, women, service-disabled veterans, businesses owned by persons with disabilities, and
small businesses which are certified by the Governor's Office of Diversity Business Enterprise (Go-DBE).
We confirm our commitment of 10 percent participation on the Contract #81359 by using the following
Diversity businesses:
(i)
Name and ownership characteristics (i.e., ethnicity, gender, service-disabled veteran, or disability) of
anticipated diversity subcontractors and suppliers: SHI International Corporation - Minority Women Owned
Business
(ii)
Participation estimates (expressed as a percent of the total contract value to be dedicated to diversity
subcontractors and suppliers): 10%.
(iii)
Description of anticipated services to be performed by diversity subcontractors and suppliers: Authorized
Reseller to issue quotes, accept orders, invoice and accept payment under the Contract #81359
We accept that our commitment to diversity advances the State’s efforts to expand opportunity of diversity businesses to
do business with the State as contractors and sub-contractors.
Further, we commit to:
1.
Using applicable reporting tools that allow the State to track and report purchases from businesses owned by
minority, women, service-disabled veterans, businesses owned by persons with disabilities, and small businesses.
2.
Reporting monthly to the Go-DBE office the dollars spent with certified diversity
businesses owned by minority, women, service-disabled veterans, businesses owned by persons with disabilities,
and small business accomplished under Contract #81359 (Edison document #0000232662).
Pure Storage, Inc. is committed to working with the Go-DBE office to accomplish this goal.
Regards,
Michael Wiseman
VP, Americas Public Sector Sales
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Participating Addendum Number 81359 for
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CONTRACTOR SIGNATURE
ATTACHMENT C
A T T E S T A T I O N R E P E R S O N N E L U S E D I N C O N T R A C T P E R F O R M A N C E
SUBJECT CONTRACT NUMBER:
81359
CONTRACTOR LEGAL ENTITY NAME:
Pure Storage, Inc.
EDISON VENDOR IDENTIFICATION NUMBER:
0000232662
The Contractor, identified above, does hereby attest, certify, warrant, and assure that the
Contractor shall not knowingly utilize the services of an illegal immigrant in the performance of
this Contract and shall not knowingly utilize the services of any subcontractor who will utilize
the services of an illegal immigrant in the performance of this Contract.
NOTICE: This attestation MUST be signed by an individual empowered to contractually bind the Contractor. Attach evidence documenting the
individual’s authority to contractually bind the Contractor, unless the signatory is the Contractor’s chief executive or president.
Michael Wiseman, VP Americas Public Sector Sales
PRINTED NAME AND TITLE OF SIGNATORY
December 20, 2023
DATE OF ATTESTATION
DocuSign Envelope ID: A845CFB7-7347-4BF9-AF0C-A806679E1157
Participating Addendum Number 81359 for
COMPUTER EQUIPMENT, PERIPHERALS & RELATED SERVICES
Between State of Tennessee and
Pure Storage, Inc.
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ATTACHMENT D
NASPO COMPUTER EQUIPMENT, PERIPHERALS
& RELATED SERVICES SWC3014
[Insert Requesting State Agency name]
Statement of Work
For
[Insert Project Title]
[Insert Planview Work ID - Sequential #]
[Date]
1.0 Statement of Work
DocuSign Envelope ID: A845CFB7-7347-4BF9-AF0C-A806679E1157
Participating Addendum Number 81359 for
COMPUTER EQUIPMENT, PERIPHERALS & RELATED SERVICES
Between State of Tennessee and
Pure Storage, Inc.
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1.1 Project Title
This Statement of Work (SOW) is being executed between [insert Contractor name] (“Contractor”) and [Insert
Agency] (“Agency” or “Purchasing Entity”) for [insert a brief description of the project], effective as of [Insert
Effective Date] (the “SOW Effective Date”).
This Statement of Work (SOW) constitutes an Order under that certain [Contract or Participating Addendum]
between [contractor name] and the State of Tennessee, [contract name and number], (the “Contract”) and
incorporates by reference the terms and conditions, specifications, and other incorporated contract documents
of the Contract. In case of any conflict between this SOW and the Contract, the Contract shall prevail.
1.2 Background
● Describe the history of your project and the prior events that brought you to this SOW
1.3 Reference to other applicable documents
The following documents are hereby incorporated by reference into this SOW:
● List any pertinent documents or supporting materials pertaining to the SOW, if any, otherwise write
“None”.
2.0 Agency Staffing and Roles
2.1
Staffing
Project Manager – Agency
The Agency’s Project Manager is:
Name:
Address:
City:
DocuSign Envelope ID: A845CFB7-7347-4BF9-AF0C-A806679E1157
Participating Addendum Number 81359 for
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Between State of Tennessee and
Pure Storage, Inc.
Page 25 of 44
State & Zip
Phone:
Cell:
Fax:
Email:
Insert contact information for any additional relevant staff.
2.2
Agency Staff and Roles
● Who within the agency will have decision-making authority, including approval of changes, report,
documentation and deliverables?
● State agency staff (if any) to assist with the project effort
● Individuals key to the project and detail their roles and responsibilities
3.0 Project Requirements and Deliverables
3.1
Requirements
Describe:
● Tasks to be performed and any additional Contractor qualifications for specialized projects
● Any known non-standard work schedule tasks
● Location(s) where project work is required to be performed or may be performed, including the use of
onsite, offsite, and offshore resources at the procuring State agency’s discretion
● Include tasks that do not result in specific deliverables (i.e. project management)
● Include any security requirements from Special Terms and Conditions, Section 13 of the Contract that are
applicable to this SOW.
3.2
Agency Tasks and Responsibilities
● Include tasks to be performed by the agency
● Precise definition of all hardware, software, data services, and facilities the agency will provide
3.3
Deliverables
Describe the Deliverables to be provided under this SOW, including the estimated delivery dates. If no
Deliverables, state “none.
DocuSign Envelope ID: A845CFB7-7347-4BF9-AF0C-A806679E1157
Participating Addendum Number 81359 for
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Pure Storage, Inc.
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3.4
Exclusions
Describe:
● Tasks which are not part of the scope of this project
4.0
Cost Criteria
4.1
Payment Methodology
Describe the payment methodology and the associated charges applicable to this SOW. Pricing must reflect the
original terms of the State contract.
4.2
SOW Monetary Cap
Check one of the following to apply to this SOW:
€ This SOW is a fixed fee SOW. The total charges under this SOW are [ ] dollars ($ ) [specify
SOW monetary cap] for the performance of the work as set forth in this SOW.
€ This SOW is a time and materials SOW. The total charges under this SOW are [ ] dollars ($ )
[specify SOW monetary cap] for the performance of the work as set forth in this SOW (the “SOW NTE
Amount”). The Agency shall compensate the Contractor for actual work performed, in an amount not to
exceed the SOW NTE Amount. The Agency shall not be obligated to pay for, and the Contractor shall not
be obligated to perform, work under this SOW in excess of the SOW NTE Amount unless and until the
parties execute a written amendment to this SOW to increase such SOW NTE Amount.
€ This SOW is a consumption-based SOW. The estimated charges under this SOW are [ ] dollars
($ ) [specify SOW estimated budget]. For clarity, the terms of this SOW and the Contract will continue
to apply to any Cloud Services provided in excess of the specified estimated charges.
4.3
State Agency Billing Address
Insert the applicable State Agency billing address.
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Participating Addendum Number 81359 for
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5.0
Deliverable Acceptance
Define the process for submitting, approving and rejecting deliverables (including testing dates and scenarios)
6.0
Estimated Timeline and Period of Performance
Project must begin no later than [Month, Year] and be completed by [Month, Year].
7.0
Project Management (if applicable)
Describe what will be required as far as project management, which reports will be required, how often these
reports will be required, and what must be submitted to the State procuring agency.
8.0
Additional State Policies and Standards
Specifically reference any additional state policies and standards that would apply, to the extent applicable to
Contractor in its performance of the work under the Order. If none, write “none”.
● Insert any other relevant links to the latest versions of the policies, standards and environment
9.0
Key Assumptions
Identify any additional agency or contractor assumptions
If additional sections are required for your specific project, please leave the above section numbering as it is and
add your new sections here as 10.0, 11.0 etc.
DocuSign Envelope ID: A845CFB7-7347-4BF9-AF0C-A806679E1157
Participating Addendum Number 81359 for
COMPUTER EQUIPMENT, PERIPHERALS & RELATED SERVICES
Between State of Tennessee and
Pure Storage, Inc.
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This SOW will not be effective, and Contractor shall not commence services hereunder, until it is approved and
signed by Contractor and the Participating Entity.
In witness whereof, the parties have executed this SOW as of the last date of execution of the signatories below.
[Insert State Purchasing Agency]
[Contractor Name]
Signature:
Signature:
Name:
Name:
Title:
Title:
Date:
Date:
DocuSign Envelope ID: A845CFB7-7347-4BF9-AF0C-A806679E1157
Participating Addendum Number 81359 for
COMPUTER EQUIPMENT, PERIPHERALS & RELATED SERVICES
Between State of Tennessee and
Pure Storage, Inc.
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Participating Entity Product and Service Exclusions and Clarifications
ATTACHMENT E
1)
Software that can be purchased from another statewide contract should not be purchased on this contract.
2)
Contractors may offer limited professional services related ONLY to the equipment and configuration of the
equipment purchased through the resulting contracts.
3)
In the event replacement Hardware is needed due to defects in material and/or workmanship, the Contractor shall
either replace the non-functional Hardware with new Hardware or refurbished/reconditioned/remanufactured
Hardware at the discretion of the State pursuant to the End User Agreement accompanying the Products. If the
State elects to receive refurbished/reconditioned/remanufactured Hardware, then the Contractor shall credit the
invoice for the applicable Order in an amount equal to the difference in cost between the new Hardware and the
refurbished/reconditioned/remanufactured Hardware.
DocuSign Envelope ID: A845CFB7-7347-4BF9-AF0C-A806679E1157
Participating Addendum Number 81359 for
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Between State of Tennessee and
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ATTACHMENT F
Protection of Federal Tax Information
I.
PERFORMANCE
In performance of this Contract, the Contractor agrees to comply with and assume responsibility for
compliance by officers or employees with the following requirements:
(1)
All work will be performed under the supervision of the Contractor.
(2)
The Contractor and Contractor’s officers or employees to be authorized access to FTI must meet
background check requirements defined in IRS Publication 1075. The Contractor will maintain a
list of officers or employees authorized access to FTI. Such list will be provided to the agency
and, upon request, to the IRS.
(3)
FTI in hardcopy or electronic format shall be used only for the purpose of carrying out the
provisions of this Contract. FTI in any format shall be treated as confidential and shall not be
divulged or made known in any manner to any person except as may be necessary in the
performance of this Contract. Inspection or disclosure of FTI to anyone other than the Contractor
or the Contractor’s officers or employees authorized is prohibited.
(4)
FTI will be accounted for upon receipt and properly stored before, during, and after processing. In
addition, any related output and products require the same level of protection as required for the
source material.
(5)
The Contractor will certify that FTI processed during the performance of this Contract will be
completely purged from all physical and electronic data storage with no output to be retained by
the Contractor at the time the work is completed. If immediate purging of physical and electronic
data storage is not possible, the Contractor will certify that any FTI in physical or electronic
storage will remain safeguarded to prevent unauthorized disclosures.
(6)
Any spoilage or any intermediate hard copy printout that may result during the processing of FTI
will be given to the agency. When this is not possible, the Contractor will be responsible for the
destruction of the spoilage or any intermediate hard copy printouts and will provide the agency
with a statement containing the date of destruction, description of material destroyed, and the
destruction method.
(7)
All computer systems receiving, processing, storing, or transmitting FTI must meet the
requirements in IRS Publication 1075. To meet functional and assurance requirements, the
security features of the environment must provide for the managerial, operational, and technical
controls. All security features must be available and activated to protect against unauthorized use
of and access to FTI.
(8)
No work involving FTI furnished under this Contract will be subcontracted without the prior written
approval of the IRS.
DocuSign Envelope ID: A845CFB7-7347-4BF9-AF0C-A806679E1157
Participating Addendum Number 81359 for
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(9)
Contractor will ensure that the terms of FTI safeguards described herein are included, without
modification, in any approved subcontract for work involving FTI.
(10)
To the extent the terms, provisions, duties, requirements, and obligations of this Contract apply to
performing services with FTI, the Contractor shall assume toward the subcontractor all
obligations, duties and responsibilities that the agency under this Contract assumes toward the
Contractor, and the subcontractor shall assume toward the Contractor all the same obligations,
duties and responsibilities which the Contractor assumes toward the agency under this Contract.
(11)
In addition to the subcontractor’s obligations and duties under an approved subcontract, the
terms and conditions of this Contract apply to the subcontractor, and the subcontractor is bound
and obligated to the Contractor hereunder by the same terms and conditions by which the
Contractor is bound and obligated to the agency under this Contract.
(12)
For purposes of this Contract, the term “Contractor” includes any officer or employee of the
Contractor with access to or who uses FTI, and the term “subcontractor” includes any officer or
employee of the subcontractor with access to or who uses FTI.
(13)
The agency will have the right to void the Contract if the Contractor fails to meet the terms of FTI
safeguards described herein.
II.
CRIMINAL/CIVIL SANCTIONS
(1)
Each officer or employee of a Contractor to whom FTI is or may be disclosed shall be notified in
writing that FTI disclosed to such officer or employee can be used only for a purpose and to the
extent authorized herein, and that further disclosure of any FTI for a purpose not authorized
herein constitutes a felony punishable upon conviction by a fine of as much as $5,000 or
imprisonment for as long as 5 years, or both, together with the costs of prosecution.
(2)
Each officer or employee of a Contractor to whom FTI is or may be accessible shall be notified in
writing that FTI accessible to such officer or employee may be accessed only for a purpose and
to the extent authorized herein, and that access/inspection of FTI without an official need-to-know
for a purpose not authorized herein constitutes a criminal misdemeanor punishable upon
conviction by a fine of as much as $1,000 or imprisonment for as long as 1 year, or both, together
with the costs of prosecution.
(3)
Each officer or employee of a Contractor to whom FTI is or may be disclosed shall be notified in
writing that any such unauthorized access, inspection or disclosure of FTI may also result in an
award of civil damages against the officer or employee in an amount equal to the sum of the
greater of $1,000 for each unauthorized access, inspection, or disclosure, or the sum of actual
damages sustained as a result of such unauthorized access, inspection, or disclosure, plus in the
case of a willful unauthorized access, inspection, or disclosure or an unauthorized
access/inspection or disclosure which is the result of gross negligence, punitive damages, plus
the cost of the action. These penalties are prescribed by IRC sections 7213, 7213A and 7431 and
set forth at 26 CFR 301.6103(n)-1.
(3)
Additionally, it is incumbent upon the Contractor to inform its officers and employees of the
penalties for improper disclosure imposed by the Privacy Act of 1974, 5 U.S.C. 552a. Specifically, 5
U.S.C. 552a(i)(1), which is made applicable to contractors by 5 U.S.C. 552a(m)(1), provides that any
officer or employee of a contractor, who by virtue of his/her employment or official position, has
possession of or access to agency records which contain individually identifiable information, the
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disclosure of which is prohibited by the Privacy Act or regulations established thereunder, and who
knowing that disclosure of the specific material is so prohibited, willfully discloses the material in any
manner to any person or agency not entitled to receive it, shall be guilty of a misdemeanor and fined
not more than $5,000.
(4)
Granting a contractor access to FTI must be preceded by certifying that each officer or employee
understands the agency’s security policy and procedures for safeguarding FTI. A contractor and each
officer or employee must maintain their authorization to access FTI through annual recertification of
their understanding of the agency’s security policy and procedures for safeguarding FTI. The initial
certification and recertifications must be documented and placed in the agency's files for review. As
part of the certification and at least annually afterwards, a contractor and each officer or employee
must be advised of the provisions of IRC sections 7213, 7213A, and 7431 (see Exhibit 4, Sanctions
for Unauthorized Disclosure, and Exhibit 5, Civil Damages for Unauthorized Disclosure). The training
on the agency’s security policy and procedures provided before the initial certification and annually
thereafter must also cover the incident response policy and procedure for reporting unauthorized
disclosures and data breaches. (See Section 10) For the initial certification and the annual
recertifications, the contractor and each officer or employee must sign, either with ink or electronic
signature, a confidentiality statement certifying their understanding of the security requirements.
III.
INSPECTION
The IRS and the Agency, with 24 hour notice, shall have the right to send its inspectors into the
offices and plants of the Contractor to inspect facilities and operations performing any work with FTI
under this Contract for compliance with requirements defined in IRS Publication 1075. The IRS’ right
of inspection shall include the use of manual and/or automated scanning tools to perform compliance
and vulnerability assessments of information technology (IT) assets that access, store, process or
transmit FTI. Based on the inspection, corrective actions may be required in cases where the
Contractor is found to be noncompliant with FTI safeguard requirements.
DocuSign Envelope ID: A845CFB7-7347-4BF9-AF0C-A806679E1157
Participating Addendum Number 81359 for
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ATTACHMENT G
End User Agreement
IMPORTANT: Please read this End User Agreement (“Agreement”) before
installing or using any Products or services that you or the entity that you
represent (“End User” or “Customer”) obtain from Pure Storage, Inc. (“Pure”)
or from any third party authorized by Pure to resell the Products and
services. By installing or using the Products or services, you represent and
warrant that you have the authority to bind End User and agree that End
User is bound by this Agreement with Pure, unless a separate written
agreement is in effect that specifically governs the subject matter of your
purchase.
1. UNIVERSAL END USER TERMS (APPLICABLE TO ALL PRODUCTS
AND SERVICES).
1.1
Purchases Made Via Pure’s Authorized Resellers. Except for Pay-As-
You-Go Software Licenses (as described in the Portworx Terms), all other
Products and services are purchased via a Pure authorized reseller. All
pricing, payment, and delivery terms (including risk of loss) for all Products
and services are set forth in the order between End User and the applicable
Pure authorized reseller.
1.2
Pure’s Retained Rights. Except for title to the underlying hardware for
hardware purchases (as described in Section 2 herein) or Evergreen //Flex
(as describe in Section 3.3 herein), Pure and its suppliers exclusively retain
all right, title and interest, in all other intellectual
property rights, including
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patent, trademark, trade name and copyright, whether registered or
not registered, in and to the Products and related documentation, and any
modifications, improvements, enhancements, customizations, updates, or
derivative works thereof. Pure and its suppliers reserve all rights not
expressly granted herein, and no other license or other implied rights of any
kind are granted or conveyed. In the event that items of software code
provided with the Products are subject to “open source” or “free software”
licenses, nothing herein limits End User’s rights under, or grants rights that
supersede, the applicable license therefore. End User grants to Pure a
perpetual, irrevocable, worldwide, sublicenseable, fully paid-up and royalty-
free right to modify and use any Feedback in any manner, provided that
Feedback is anonymized and does not identify End User.
1.3
Product Restrictions. End User shall not directly or indirectly (a)
reproduce, modify, distribute, assign, disclose or make available any portion
of the Products (or any related documentation) to any third party (except as
otherwise authorized herein); (b) rent, lease or sublicense the Products; (c)
reverse engineer, decompile, or disassemble any portion of the Products, or
otherwise attempt to decrypt, extract or derive source code for, or any
algorithms or data structures embodied within, any portion of the Products
(except to the extent the foregoing restriction is expressly prohibited by
applicable law); (d) use the Products to develop a similar product or service;
(e) transfer or copy the software to, or use the software on, any other
product or device, including any second-hand or gray market hardware that
End User has not purchased from Pure or a Pure authorized reseller; or (f)
publish or disclose to any third party any technical features, performance or
benchmark tests, or comparative or competitive analyses relating to
the Products, except for internal use by the End User or as may be authorized
by Pure in writing. End User will remain fully and primarily responsible to
Pure for compliance with this Agreement if End
User permits any third party
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to access the Products or services. Any future release, update, or other
addition to functionality of the Products made available by Pure to End User
shall be subject to this Agreement, unless Pure expressly states otherwise.
End User shall preserve and shall not remove, obscure or alter any copyright
labels required by law or other proprietary notices in the Products or related
documentation.
1.4
Data Privacy. If End User provides personal data to Pure, the parties
will ensure that such personal data is disclosed and handled in accordance
with all applicable data protection laws and the confidentiality provisions set
forth in the Contract. End User acknowledges and agrees that Pure does not
host or have read or write access to the End User data stored on the
Products. End User is solely responsible for data (including personal data)
managed or stored using the Products and for compliance with all applicable
data privacy laws related thereto, and where required by applicable law,
additional terms and conditions may apply.
1.5
Products, Services, and Subscriptions in the Data Center. End User
acknowledges and agrees that it is exclusively responsible for backing up its
own data and placement and use of all Products and services in a secure
network environment with security access controls and data back-up
processes consistent with then-current data center and network security
policies and procedures. Notwithstanding anything to the contrary contained
herein, it is expressly understood by the parties that Pure does not host or
have read or write access to the End User data stored on the Products.
1.6
Product Diagnostic Reporting. End User acknowledges that the
Products store certain diagnostic information about the routine operations of
the Product, including performance, capacity usage, data reduction ratios,
configuration data, and hardware faults (“Pure1® Reports”) and, when
enabled by End User, periodically transmit these Pure1 Reports to Pure and
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authorized End User partners. End User understands and agrees that End
User data stored on the Products is not accessed, transmitted or provided
to Pure or any third party as part of the Pure1 Reports. Pure retains all rights,
title, and interest in the Pure1 Reports. End User agrees that the collection
and
transmission
of
such
Pure1
Reports
is
necessary
to
facilitate
any subscription services and certain support services under an Evergreen
subscription.
1.7
End of Product Lifecycle and Upgrade Policy. All Pure Products and
services are subject to Pure's End-of-Product Lifecycle Overview, which sets
forth Pure's Product Lifecycle Policy. Additionally, as long as a valid and up-
to-date Evergreen Subscription is in place, all versions of Purity are
supported but fixes will only be delivered via a maintenance update to the
then-current non EoL version of Pure Storage Operating Environment (OE).
2. HARDWARE PRODUCTS. (APPLICABLE TO CAPITAL PURCHASES
OF PURE HARDWARE WITH A PERPETUAL LICENSE TO ANY
EMBEDDED OPERATING SOFTWARE). Purchases of Pure’s hardware
Products are covered by Pure’s Hardware Products Terms of Use.
3. EVERGREEN SUBSCRIPTIONS.
3.1
EVERGREEN (Applicable To Hardware And Software-Only
Products). At its option, and subject to regional availability, End User may
purchase an Evergreen Subscription providing the generally available
Product maintenance and technical support in accordance with
the Pure Storage Customer Support Guide during the term for which End
User has purchased such Evergreen subscription, with these subscriptions
commencing as of the date of order acceptance. Depending on the Product
or level of Evergreen //Forever or //Foundation Subscription purchased,
certain benefits of the Evergreen Storage Program Description may also
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apply. Pure may designate support partners and authorized resellers to
deliver the Evergreen Subscription in accordance with this Agreement.
3.2
EVERGREEN //ONE. (F/K/A Pure As-A-Service; Applicable To The
Purchase Of A Service Whereby Pure-Owned Hardware, Software, And
Capacity-Management Services Are Delivered On A Consumption
Basis). At its option, and subject to regional availability, End User may
purchase an Evergreen //One subscription whereby Pure-owned products
and services are provided to the End User on a consumption basis pursuant
to the Evergreen //One Terms of Use.
3.3
EVERGREEN //FLEX. (Applicable To The Purchase Of A
Consumption-Based License To Pure’s Software And Delivered On
Pure Hardware Owned By The End User). At its option, and subject to
regional availability, End User may purchase an Evergreen Flex subscription
whereby Pure’s software and capacity management services are provided to
the End User on a consumption basis pursuant to the Evergreen //Flex
Terms of Use.
3.4
PLUG-IN TERMS. (Applicable only if Pure Storage Plugin / Adaptor
/ Provider / SDK / Tool / Management Pack are used). If End User uses
Pure’s Plugins, the End User will be subject to the Plugin Terms of Use.
4. PROFESSIONAL SERVICES. (APPLICABLE TO PROFESSIONAL
SERVICES). End User may purchase Pure-branded professional installation
or other professional services pursuant to Pure’s Professional Services
Addendum.
5. PORTWORX PRODUCTS. (APPLICABLE TO PORTWORX
PRODUCTS ONLY). Portworx Products are provided pursuant
to
the Portworx Products Terms of Use.
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6. PURE PROTECT. (APPLICABLE TO THE PURE PROTECT
SOLUTION ONLY). Pure Protect is available pursuant to the Pure Protect
Terms of Use.
7. LEGAL MISCELLANEOUS.
7.1
Confidential Information. Pure’s Confidential Information includes all
non-public information relating to, or derived from, the Products and
services, including technical features, benchmark results, or performance
results. Information does not constitute a party’s Confidential
Information if
(a) already known by Recipient without obligation of confidentiality;
(b) independently developed by Recipient without use of Discloser’s
Confidential Information; (c) publicly known without breach of this
Agreement; or (d) lawfully received from a third party without obligation of
confidentiality. Recipient shall: (i) not use or disclose any Confidential
Information except as expressly authorized by this Agreement or Discloser;
(ii) protect Discloser’s Confidential Information using the same degree of
care that it uses with respect to its own Confidential Information of a like
nature, but in no event with safeguards less than a reasonably
prudent business would exercise under similar circumstances; and (iii) limit
access to Discloser’s Confidential Information to its employees, affiliates,
agents, or authorized representatives having a need to know and who are
bound by confidentiality obligations no less protective to those contained
herein. Recipient shall take prompt and appropriate action to prevent
unauthorized use or disclosure of Discloser’s Confidential Information.
Recipient’s obligations under this Section 7.1 survive termination and
continue for five (5) years from the date of termination of this Agreement. All
tangible materials containing Confidential Information shall remain the
property of Discloser. Upon termination, Recipient shall cease any use of
Confidential Information. Upon Discloser’s written request, the receiving
party shall promptly return (or at Recipient’s option, destroy) all documents
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and tangible materials containing any portion of, or summarizing, Discloser’s
Confidential Information. At Discloser’s request, an authorized representative
of Recipient shall provide a certificate attesting to compliance with this
section. Recipient shall promptly notify Discloser of any legal, accounting or
regulatory order or request requiring the disclosure of any Confidential
Information to any third party, when possible or allowed under applicable law,
and permit Discloser (at its own expense) to seek an appropriate protective
order.
7.2
Warranty Disclaimer. EXCEPT FOR THE EXPRESS WARRANTIES
IN THE CONTRACT, PURE DISCLAIMS ALL OTHER WARRANTIES,
EXPRESS, IMPLIED OR STATUTORY, TO THE EXTENT WARRANTIES
MAY BE DISCLAIMED UNDER APPLICABLE LAW, INCLUDING ANY
IMPLIED WARRANTIES OF MERCHANTABILITY,
SATISFACTORY QUALITY OR FITNESS FOR A PARTICULAR
PURPOSE. PURE DOES NOT WARRANT AGAINST LOSS OR
INACCURACY OF DATA OR THAT THE OPERATION OF THE
PRODUCT WILL BE UNINTERRUPTED OR ERROR FREE. EXCEPT AS
EXPRESSLY STATED HEREIN, PURE PROVIDES THE PRODUCTS ON
AN “AS IS” BASIS. THE PRODUCTS ARE NOT DESIGNED OR INTENDED
FOR USE WHERE FAILURE OF THE PRODUCT COULD REASONABLY
BE EXPECTED TO RESULT IN PERSONAL INJURY, LOSS OF LIFE
OR PROPERTY DAMAGE. END USER IS RESPONSIBLE FOR
ENSURING THAT IT HAS APPROPRIATE DATA BACK-UP, DATA
RECOVERY, AND DISASTER RECOVERY MEASURES IN PLACE.
7.6
Relationship. The parties hereto are independent contractors. Nothing
in this Agreement shall be deemed to create an agency, employment,
partnership, fiduciary or joint venture relationship between the parties.
DocuSign Envelope ID: A845CFB7-7347-4BF9-AF0C-A806679E1157
Participating Addendum Number 81359 for
COMPUTER EQUIPMENT, PERIPHERALS & RELATED SERVICES
Between State of Tennessee and
Pure Storage, Inc.
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Neither party will have the power to bind the other or incur obligations on the
other’s behalf without the other’s prior written consent.
7.7
Notices. Except as specifically stated, all notices or other
communications required or permitted under this Agreement shall be in
writing and shall be delivered by personal delivery, certified overnight
delivery such as Federal Express, or registered mail (return receipt
requested) and shall be deemed given upon personal delivery or upon
confirmation of receipt.
7.8
Compliance with Laws. The parties agree to comply with all applicable
laws with regards to the distribution and use of the Products and
performance of its obligations under this Agreement, including but not limited
to those laws specifically set forth in Section 7.10 herein.
7.9
Severability; Waiver. If any provision of this Agreement is, for any
reason, held to be invalid or unenforceable, the other provisions of this
Agreement remain enforceable and the invalid or unenforceable provision is
deemed modified so that it is valid and enforceable to the maximum extent
permitted by law. Any waiver or failure to enforce any provision of this
Agreement on one occasion is not deemed a waiver of any other provision
or of such provision on any other occasion.
7.10
Export. The Products and related technology are subject to U.S.
export control laws and regulations and may be subject to export or import
regulations in other countries. End User represents and warrants that (a) it
is not on any export control or economic sanctions lists, including those
subject to the Export Administration Regulations (“EAR”), International Traffic
in Arms Regulations (“ITAR”) and Office of Foreign Asset Control
Regulations (“OFAC”), or any other export exclusion list of any other U.S. or
non-U.S. governmental agency; (b) it will not export
Products or services to
(i) destinations requiring a license; (ii) persons or entities requiring a license;
DocuSign Envelope ID: A845CFB7-7347-4BF9-AF0C-A806679E1157
Participating Addendum Number 81359 for
COMPUTER EQUIPMENT, PERIPHERALS & RELATED SERVICES
Between State of Tennessee and
Pure Storage, Inc.
Page 41 of 44
or (iii) end user and end uses requiring a license, unless such license has
been obtained; and (c) it will comply with the then-current version of such
laws and regulations, including but not limited to agreeing not to export, re-
export, divert, or transfer, directly or indirectly, any Products or other
technology, software or technical data acquired from Pure (i) for use in
activities which involve the development, production, use or stockpiling of
nuclear activities of any kind, chemical or biological weapons or missiles,
unmanned aerial vehicles, or microprocessors for military use, nor use the
Products in any facilities which are engaged in activities relating to such
weapons or applications, without prior authorization from the U.S.
government and prior notification to Pure; (ii) to any entity or country that is
subject to U.S. government approval, including, but not limited to, Cuba, Iran,
North Korea,, Syria, or the Crimea, Donetsk, or Luhansk regions of Ukraine,
unless otherwise authorized by the U.S. government; (iii) to any entity or
country that is subject to the selling country’s legal export restrictions, such
as a debarred list issued by its government, if any; or (iv) for China military
end-use or end-users or Russian military end-use or end-users or other
destinations in Russia requiring an export license or other approval, unless
otherwise authorized
by the U.S. government. End User acknowledges that
U.S. federal law and the selling country’s law prohibits the sale, export or re-
export diversion or transfer, or other participation in any export transaction
involving the Products with individuals or entities listed in the U.S.
Commerce Department’s Table of Denial Orders, the U.S. Treasury
Department’s list of Specially Designated Nationals, or the U.S. Department
of State’s list of individuals debarred from receiving Munitions List items, or
other applicable lists, such as the selling country’s entity or denial
person/company lists. End User agrees to obligate, by contract or other
similar assurances, the parties to whom it may re-export or otherwise
transfer Products to comply with all obligations set forth in this Agreement.
DocuSign Envelope ID: A845CFB7-7347-4BF9-AF0C-A806679E1157
Participating Addendum Number 81359 for
COMPUTER EQUIPMENT, PERIPHERALS & RELATED SERVICES
Between State of Tennessee and
Pure Storage, Inc.
Page 42 of 44
Upon Pure’s request, End User agrees to provide Pure with applicable end
use information.
7.11
Assignment. This Agreement, and End User’s rights and obligations
herein, may not be assigned by End User without Pure’s prior written
consent, which consent will not be unreasonably withheld, and any
attempted assignment in violation of the foregoing will be null and void. Pure
may assign this Agreement and its rights hereunder.
7.12
U.S. Government End Users. The Products and related
documentation are “commercial off the shelf items” as defined in FAR 2.101
and their use is subject to the policies set forth in FAR 12.211, FAR 12.212
and FAR 227.7202, as applicable.
7.13
Force Majeure. Neither party shall be liable hereunder by reason of
any failure or delay in the performance of its obligations under this
Agreement on account of strikes, shortages, riots, insurrection, fires, flood,
storm, pandemic, explosions, acts of God, war, terrorism, governmental
action, labor conditions, earthquakes, volcanic eruption, material shortages
or any other cause that is beyond the reasonable control of the party.
7.14
Termination. The licenses granted in this Agreement, and End User’s
rights to use the applicable Product or services terminates immediately if
End User materially breaches any provision of this Agreement and, if
capable of cure, fails to cure such breach within 30 days from the date of
Pure’s written notice to End User. Upon any such termination, any terms,
which upon a plain-reading, are intended to survive termination or expiration
of this Agreement, shall survive any termination of this Agreement.
7.15
Interpretation. All headings herein are inserted only for convenience
and ease of reference and are not to be considered in the construction or
interpretation of any provision of this Agreement. Each party has been given
DocuSign Envelope ID: A845CFB7-7347-4BF9-AF0C-A806679E1157
Participating Addendum Number 81359 for
COMPUTER EQUIPMENT, PERIPHERALS & RELATED SERVICES
Between State of Tennessee and
Pure Storage, Inc.
Page 43 of 44
the opportunity to independently review this Agreement with legal counsel
and each party has the requisite experience and sophistication to
understand, interpret, and agree to the particular language of the provisions.
Therefore, in the event of any ambiguity in or dispute regarding the
interpretation of this Agreement, the drafting of the language shall not be
attributed to either party.
8. DEFINITIONS APPLICABLE TO ENTIRE AGREEMENT (ALL
PRODUCTS AND SERVICES).
8.1
Agreement: this Pure End User Agreement and any attachments
thereto.
8.2
Confidential Information: any nonpublic information of Discloser,
whether disclosed orally or in written or digital media, that is identified as
“confidential” or with a similar legend at the time of such disclosure or that
Recipient knows or should have known is the confidential or proprietary
information of Discloser.
8.3
Disclosure: a party disclosing Confidential Information.
8.4
Documentation: the standard end-user technical documentation and
specifications that Pure provides or makes available with the Products.
8.5
Evaluation license: a limited-use license for evaluation purposes only
of software-only Products.
8.6
Evergreen Forever Subscription: an innovation and support
subscription for Hardware and software-only Products, which provides End
User with additional software and hardware benefits.
DocuSign Envelope ID: A845CFB7-7347-4BF9-AF0C-A806679E1157
Participating Addendum Number 81359 for
COMPUTER EQUIPMENT, PERIPHERALS & RELATED SERVICES
Between State of Tennessee and
Pure Storage, Inc.
Page 44 of 44
8.7
Feedback: any input or feedback to Pure regarding the use, operation,
performance, and functionality of the Products and Pre-Release Products,
including identifying potential errors and improvements (collectively,
“Feedback”).
8.8
Pre-Release Products: any beta or pre-release versions (before
general public availability) of any Products.
8.9
Product(s): any Pure-branded hardware, software, subscription
services (including any hardware or software components thereof) and any
services.
8.10
Recipient: the party receiving Confidential Information from the
Discloser.
8.11
System: each individual data storage device.
Last Updated October 30, 2023
