HP MASTER AGREEMENT

HP MASTER AGREEMENT
This Master Agreement (“Agreement”) is made on the Effective Date specified below between the Hewlett-Packard entity named below
(“HP”) and the State of Wisconsin (“State”) and applies to Authorized User’s purchases of Hardware, Software licenses, Support
(including BTO Software Support), and Professional Services from HP or HP Business Partners.
This Agreement does not authorize the purchase of Products or Services unless an appropriate procurement process has occurred using
the Authorized User’s procurement policies and procedures.
Authorized User may order Products, Services, Professional Services, and/or Support from HP or HP Business Partner (as appropriate) in
accordance with the terms and conditions of this Agreement. However, this Agreement excludes the purchase of Custom Products and
third party products unless third party technology is embedded in the HP Branded Products.
This Master Agreement shall not take precedence over the terms and conditions contained in competitive bids issued by Authorized
Users, unless a competitive bid states that the terms of this Master Agreement shall govern the procurement, or as otherwise agreed by
Authorized Users and HP.
For Software purchases under this Master Agreement, the Software License Terms in section C, which eliminate the need for End User
License Agreements (EULA), take precedence over EULAs entered into by Authorized Users after the Effective Date of this Agreement.
This Agreement consists of the following:
1.
this Cover Page;
2.
A. HP Base Terms
3.
One or more of the following sections, which apply to applicable Authorized User purchase orders:
B. HP Hardware Terms
C. HP Software License Terms
D. HP Support Terms
E. HP Professional Services Terms
F. HP Software Support Offerings and Additional Terms
4.
Exhibit A – State and Local Government and Education Customer Return Policy; and
5.
related Transaction Documents (as defined in section A.1.v.).
This Agreement shall remain in effect until terminated as provided herein.
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A.
HP BASE TERMS
1.
DEFINITIONS
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HP WIP ID# 176689
a.
Affiliate of a party means an entity controlling, controlled by, or under common control with, that party.
b.
Authorized User or Customer means those State Agencies and Municipalities, as defined below, that may
purchase Products or Services using this Agreement.
c.
Confidential Information means all tangible and intangible information and materials, including all proprietary and
confidential, being disclosed in connection with this Agreement, in any form or medium (and without regard to
whether the information is owned by the Authorized User, the State or by a third party), that satisfy at least one
of the following criteria: (i) Personally Identifiable Information; (ii) non-public information related to the Authorized
User’s or the State’s employees, customers, technology (including data bases, data processing and
communications networking systems), schematics, specifications, and all information or materials derived
therefrom or based thereon; or (iii) information expressly designated as confidential in writing by the
Authorized User of the State. Further, in connection with Professional Services described in the Transaction
Document, either party may receive or have access to technical information, information about product plans
and strategies, promotions, other customers of HP and related technical, financial or business information
which the disclosing party considers to be the confidential information of that party or its third party contractors
or suppliers.
d.
Custom Products means Products that are not listed in any HP price list as a standard offering, Product(s) that
require additional programming or customization before it can be put into production and Product(s) that are
built to order.
e.
Deliverable means the tangible work product resulting from the performance of Services excluding Products
and Custom Products.
f.
Hardware means computer and related devices and equipment, related documentation, accessories, parts
and upgrades.
g.
HP means the Hewlett-Packard Company.
h.
HP Branded means Products and Services bearing a trademark or service mark of Hewlett-Packard Company
or any Hewlett-Packard Company Affiliate.
i.
HP Business Partner means select companies authorized by HP to promote, market, support, and deliver
certain Products and Services including, but not limited to, HP Authorized Resellers.
j.
Municipality means a county, city, village, town, school district, federally recognized Indian Tribes, Board of
school directors, sewer district, drainage district, vocational, technical and adult education district or other
public or quasi-public corporation, board or other body having authority to award public contracts within the
State.
k.
Personally Identifiable Information means an individual’s last name and the individual’s first name or first initial,
in combination with and linked to any of the following elements, if the element is not publicly available
information and is not encrypted, redacted, or altered in any manner that renders the element unreadable: (a)
the individual’s Social Security number; (b) the individual’s driver’s license number or state identification
number; (c) the number of the individual’s financial account, including a credit or debit card account number,
or any security code, access code, or password that would permit access to the individual’s financial account;
(d) the individual’s DNA profile; or (e) the individual’s unique biometric data, including fingerprint, voice print,
retina or iris image, or any other unique physical representation, and any other information protected by state
or federal law.
l.
Product means Hardware and Software listed in HP's standard price list at the time of HP’s acceptance of an
Authorized User’s purchase order, and includes products that are modified, altered, or customized to meet
Customer requirements (“Custom Products”).
m.
Professional Service means consulting, integration, or technical services performed under a Statement of
Work or other Transaction Document.
n.
Service means Support and Professional Services.
o.
Software means machine-readable instructions and data (and copies thereof) and related updates and
upgrades, licensed materials, user documentation, user manuals, and operating procedures.
p.
Software License Information (SLI) is license information that is specific to a Software Product. SLI may be
found in a file in the Software Product’s directory or as information that accompanies the Software Product or
in HP quotations.
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2.
3.
q.
Specification means technical information about Products published in HP Product manuals, user
documentation, and technical data sheets in effect on the date Products are delivered to the Authorized User.
r.
State means the State of Wisconsin.
s.
State Agency means any office, department, institution of higher education, association, society or other body
in state government that is authorized to expend monies appropriated by the state legislature.
t.
Statement of Work or SOW means an executed document so titled, that describes the Services to be
performed under the Professional Services Terms or Support Terms sections.
u.
Support means Hardware maintenance and repair, Software maintenance, training, installation and
configuration, and other standard support services provided by HP or an HP Business Partner and including
“Custom Support,” which is any agreed non-standard Support, as described in a Statement of Work.
v.
Transaction Document(s) means an accepted Authorized User’s purchase order (excluding pre-printed terms).
and in relation to that purchase order, HP published technical data sheets or service descriptions, HP limited
warranty statements delivered or otherwise made available to Authorized Users with Products, and mutually
executed Statements of Work, all as provided by HP or an HP Business Partner. Transaction Documents
includes other mutually executed documents that reference this Agreement including without limitation, valid
quotations, and HP’s responses to competitive bids that reference this Agreement accepted in writing by both
parties.
w.
Version means a release of Software that contains new features, enhancements, and/or maintenance updates,
or for certain Software, a collection of revisions packaged into a single entity and, as such, made available by
HP to its customers and Authorized Users (also called a “Release”).
PARTICIPATION
a.
Global Agreement. Authorized Users’ may participate under this Agreement through the issuance of their
purchase order referencing this Agreement and its acceptance by an HP Affiliate in the United States of
America. Upon acceptance of such a purchase order, the terms of this Agreement will apply between the HP
Affiliate and the Authorized User and references to “HP” shall mean HP Affiliate. The HP Affiliate may include
in its acceptance transmittal, supplemental specific terms to reflect local law or business practice that will take
precedence over any other inconsistent terms in this Agreement. All purchase orders placed by Authorized
Users must specify a “ship to” address or Service performance location.
b.
Affiliate Liability. Each HP Affiliate shall perform only in its designated jurisdiction and is solely responsible for
claims arising out of its own performance. HP shall remain responsible for its Products as set forth herein.
PRICES AND TAXES
a.
Prices. Product and Service prices are specified in the current local published HP price list at the time the
purchase order is received or in a valid Transaction Document. Prices are subject to change at any time prior
to HP's acceptance of Authorized User's purchase order, unless stated otherwise in a Transaction Document.
b.
Price Validity. Unless prices are changed by HP in accordance with this Agreement, prices are valid while this
Agreement is in effect for the period set forth in a Transaction Document.
c.
Taxes. The State of Wisconsin and its agencies are exempt from payment of all federal taxes and Wisconsin
State and local taxes on its purchases, except Wisconsin excise taxes.
d.
Withholding Tax. If an Authorized User is required by law to withhold and remit tax relating to Authorized
User's order, Authorized User shall:
e.
4.
1.
be entitled to reduce the payment by the amount of such tax;
2.
withhold and remit such tax to the applicable tax jurisdiction;
3.
assist to obtain the benefit of any reduced withholding tax under applicable tax treaties; and
4.
furnish a tax certificate or other acceptable evidence of payment of such tax as required by the relevant
taxing authorities.
Financing. Third party financing transactions require advance written notice for appropriate tax treatment.
AUTHORIZED USER ORDERS
a.
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Orders. Orders must reference this Agreement and are subject to acceptance. Orders must specify a “ship
to” address and have a delivery date within ninety (90) days from the order date unless otherwise provided in
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a Transaction Document.
5.
6.
7.
b.
Cancellation. Authorized User may cancel an order for Products at no charge up to five (5) business days
prior to the scheduled shipment date.
c.
Extended Delivery Dates. Changes to purchase orders that extend delivery dates beyond ninety (90) days
from the order date shall be considered new orders at the prices in effect when the changed order is received,
except as otherwise agreed in a contract resultant from a competitive bid.
DELIVERY
a.
Delivery. Products shall be delivered by arranging shipping to the receiving area at the “ship to” address
specified in Authorized User's purchase order. Delivery of Software, Deliverables, Specifications, or Product
documentation may be by enabling electronic transmission to, or electronic access or download by Authorized
User.
b.
Delivery Charges. Transportation and handling charges are payable by Authorized User and will be specified
in an invoice unless otherwise specified in a Transaction Document. Special packing or shipping
arrangements will be charged separately to Authorized User.
c.
Delivery Requirements. If the Products cannot be delivered in accordance with Authorized User's Product
delivery requirements, Authorized User may cancel that order, and such cancellation is Authorized User's sole
remedy, unless otherwise agreed to in a Transaction Document.
d.
Guaranteed Delivery. Subject to section 15.c., HP shall meet delivery schedules specified in a Transaction
Document.
PAYMENT TERMS AND INVOICING
a.
The State of Wisconsin will pay properly submitted invoices within thirty (30) days of receipt in accordance
with the State's Prompt Payment Law (§§ 16.528 and 16.53 (2) and (11)).
b.
At a minimum, all invoices must be itemized showing a detailed description and name of
Products/Support/Services purchased, the quantity purchased per line item, the cost (unit list price,
discounted price and extended price) by line item and dates of coverage for support, the name of the support
package, a list of each software/hardware product covered, the number/quantity of licenses/units covered by
product by line item, and if new hardware product, the serial number. Failure to provide the minimum
required information on an invoice may result in delayed payments.
c.
In the event that Authorized User receives an invoice containing inaccurate charges, the Authorized User
agrees to pay the portion of the invoice that is accurate in accordance with the State’s Prompt Payment Law,
§§ 16.528 and 16.53 (2) and (11), and provide a written description of the inaccurate charges within such
period. The parties agree to discuss any inaccuracy within ten (10) business days of the receipt of such
description. If necessary, a corrected invoice shall be provided to the Authorized User after the discussion,
and the Authorized User will pay such invoice promptly thereafter.
d.
If HP has delinquent Wisconsin tax liability, HP’s payments under this Agreement may be offset by the State
of Wisconsin in accordance with the State’s Setoffs, § 16.767, Wis. Stats. after written notice and a
reasonable opportunity to cure.
WARRANTY PROVISIONS
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HP WIP ID# 176689
a.
Warranty Statements. HP limited warranty statements for Hardware (section B), Software (section C),
Support (section D), and Professional Services (section E), as applicable, are contained in their respective
sections of this Agreement. The limited warranties in this Agreement are subject to the terms, limitations, and
exclusions contained in the limited warranty statement provided for the Product in the country where that
Product is located when the warranty claim is made. A different limited warranty statement may apply and be
quoted if the Product is purchased as part of a system.
b.
Transfer. Warranties are transferable to another party for the remainder of the warranty period subject to HP
license transfer policies and any assignment restrictions. License transfer polices, which are Product specific,
can be accessed at: http://www.hp.com/softwarereleases/releases-media2/slt/americas/index.html.
c.
Delivery Date. Warranties begin on the date of delivery, or for Hardware on the date of installation if installed
by HP an HP Affiliate or an HP Business Partner. If Authorized User schedules or delays such installation by
HP, an HP Affiliate, or an HP Business Partner more than thirty (30) days after delivery, Authorized User's
warranty period shall begin on the 31st day after delivery. If Authorized User installs the Hardware, the
warranty date begins on the date of delivery.
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d.
Exclusions. HP is not obligated to provide warranty services or Support for any claims resulting from:
1.
improper site preparation, or site or environmental conditions that do not conform to HP’s site
specifications;
2.
Authorized User’s non-compliance with Specifications or Transaction Documents;
3.
improper or inadequate maintenance or calibration;
4.
Authorized User or third-party media, software, interfacing, supplies, or other products;
5.
modifications not performed or authorized by HP or an HP Business Partner;
6.
virus, infection, worm or similar malicious code not introduced by HP or an HP Business Partner; or
7.
abuse, negligence, accident, loss or damage in transit, fire or water damage, electrical disturbances,
transportation by Authorized User, or other causes beyond HP’s control.
e.
Non-HP Branded Products and Services. HP provides third-party products, software, and services that are
not HP Branded “AS IS” without warranties of any kind, although the original manufacturers or third party
suppliers of such products, software and services may provide their own warranties.
f.
Disclaimer. THE WARRANTIES AND ANY ASSOCIATED REMEDIES EXPRESSED OR REFERENCED IN
THIS AGREEMENT ARE EXCLUSIVE. NO OTHER WARRANTY, WRITTEN OR ORAL, IS EXPRESSED OR
IMPLIED BY HP OR MAY BE INFERRED FROM A COURSE OF DEALING OR USAGE OF TRADE. TO
THE EXTENT ALLOWED BY LOCAL LAW HP DISCLAIMS ALL IMPLIED WARRANTIES OR CONDITIONS
INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE, TITLE AND NON-INFRINGEMENT.
g.
Rejected Products. Failure to replace or accept returns of Hardware rejected in accordance with the warranty
provisions of this Agreement or returned in accordance with Exhibit A – State and Local Government and
Education Customer Return Policy, shall be subject to the terms of section A.12 and Exhibit A.
8.
INDEMNIFICATION
8.1
PATENT INFRINGEMENT
a.
Third Party Claims. HP guarantees its Products were manufactured or produced in accordance with
applicable federal labor laws. Further, that the sale or use of the Products shall not infringe any United
States patent. HP covenants that it shall at its own expense defend and settle any third party claim/suit
which shall be brought against the State of Wisconsin or any Authorized User (provided that HP is promptly
notified of such suit, all papers therein are delivered to it, that the Authorized User cooperates with HP in the
defense of the claim, and grants HP sole control of the defense of the claim) alleging that HP Branded
Products or Support infringes intellectual property rights in the country where they were sold. HP agrees that
it shall pay infringement claim defense costs, HP-negotiated settlement amounts, and court-awarded
damages.
b.
Remedies. If such a claim appears likely, then HP may modify the HP Branded Products or Support, procure
any necessary license(s), or replace the affected item(s) with one that is at least functionally equivalent. If
HP determines that none of these alternatives is reasonably available, then HP shall issue Authorized User a
refund equal to:
c.
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HP WIP ID# 176689
1.
the purchase price paid for the affected item(s) if within one year of delivery, or the Authorized User’s net
book value thereafter; or
2.
if the claim relates to infringing Support, the greater of twelve (12) months charges for the claimed
infringing Support or the amount paid by the Authorized User for that Support.
Exclusions. HP has no obligation for any claim of infringement arising from:
1.
HP’s compliance with Authorized User or third party designs, specifications, instructions, or technical
information;
2.
Modifications made by Authorized User or a third party; except for an HP Affiliate or an HP Business
Partner.
3.
Authorized User’s non-compliance with the Specifications or the Transaction Documents;
4.
Authorized User’s use with products, software, or services that are not HP Branded, or
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5.
d.
8.2
Any open source or freeware software.
Sole and Exclusive. This section 8.1 states HP's entire liability for claims of intellectual property infringement
and this indemnification is subject to the limits of liability in section A.11.
GENERAL INDEMNIFICATION
HP will indemnify and save harmless the State of Wisconsin , the Authorized User and all of their officers, agents and employees
from all third party suits, actions, or claims (pay third party defense costs, settlement amounts and court-awarded damages) of
any character brought for or on account of any injuries (including injury resulting in death) to any persons or direct damages to
tangible property resulting from the operations of HP, or of any of its subcontractors, in prosecuting work under this Agreement.
This indemnification is conditioned upon the following: the State or Authorized User shall give HP prompt notice of any claim or
potential claim covered by this section 8.2 and shall give HP reasonable evidentiary assistance and complete control of the
defense thereof; provided, however, that failure to give such notice shall not limit HP’s obligations hereunder except to the extent
HP is prejudiced thereby. The foregoing shall not apply to the extent such liability, injuries, claims, damages, or loss was caused
by the intentional, willful, or wanton acts or omissions of the State or Authorized User. HP is not obligated under this section to
indemnify the State or Authorized User for the sole negligence of the State or Authorized User.
9.
INTELLECTUAL PROPERTY RIGHTS
No rights in copyright, patents, trademarks, trade secrets, or other intellectual property are granted by either party to the other
except as expressly provided under this Agreement. Authorized User will not register or use any mark or internet domain name
that contains HP's trademarks (e.g., “HP,” “hp,” or “Hewlett-Packard”).
10.
RESTRICTED USE
Products, Support, and Deliverables are not specifically designed, manufactured, or intended for use as parts, components, or
assemblies for the planning, construction, maintenance, or direct operation of a nuclear facility. To the extent permitted by
Wisconsin State law, Authorized User is solely liable if Products, Support, or Deliverables purchased by Authorized User are
used for these applications.
11.
LIMITATION OF LIABILITY AND REMEDIES
a.
Limitation of Liability. Except for the amounts in sub-section A.8.1 above and damages for bodily injury
(including death) HP's total aggregate liability is limited to the amount paid by Authorized User for:
1.
the Product;
2.
Support during the period of a material breach up to a maximum of twelve (12) months; or
3.
the Professional Service;
that in each case is the subject of the claim.
12.
b.
Disclaimer. EXCEPT FOR CLAIMS BY A PARTY FOR INFRINGEMENT OF THEIR INTELLECTUAL
PROPERTY RIGHTS AGAINST THE OTHER PARTY, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR
ANY INCIDENTAL, INDIRECT, SPECIAL, OR CONSEQUENTIAL COSTS OR DAMAGES INCLUDING,
WITHOUT LIMITATION, DOWNTIME COSTS; LOST BUSINESS, REVENUES, OR PROFITS; FAILURE TO
REALIZE EXPECTED SAVINGS; LOSS OR UNAVAILABILITY OF OR DAMAGE TO DATA; OR SOFTWARE
RESTORATION.
c.
Legal Theory. TO THE EXTENT ALLOWED BY LOCAL LAW, THESE LIMITATIONS WILL APPLY
REGARDLESS OF THE BASIS OF LIABILITY, INCLUDING NEGLIGENCE, MISREPRESENTATION,
BREACH OF ANY KIND, OR ANY OTHER CLAIMS IN CONTRACT, TORT OR OTHERWISE.
TERMINATION.
If either party fails to comply with terms, conditions, and specifications of this Agreement, the terms of this section A.12 shall
govern.
(Version# 00.3)
HP WIP ID# 176689
a.
Termination for Convenience. Either party may terminate this Agreement for convenience upon thirty (30)
days prior written notice to the other party.
b.
Termination for Cause. Either party may terminate this Agreement, or any document entered into under the
authority of this Agreement (i.e., a Transaction Document) upon written notice to the other party for failure to
comply with the terms of this Agreement, or the terms of any document entered into under the authority of this
Agreement, provided however, that the non-complying party has been notified in writing of the nature of the
failure and been provided with a reasonable time to cure the failure.
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13.
c.
Prior Orders. Except as otherwise provided in sub-section A.12.d below, the termination of this Agreement
shall not affect payments due or fulfillment and payment of orders accepted prior to termination.
d.
Bankruptcy. If either party becomes insolvent, is unable to pay its debts when due, files for bankruptcy, is
subject of involuntary bankruptcy, has a receiver appointed, or has its assets assigned, the other party may
terminate this Agreement without notice and may cancel any unfulfilled obligations.
e.
Effect. In the event that the Agreement or any purchase order issued hereunder is terminated for cause or
convenience, Authorized User will pay HP for Products delivered and Support or Services that have been
performed in accordance with the Agreement or purchase order through the date of notice of termination, and,
subject to the terms of sub-sections A.9 (Intellectual Property Rights), C.2 (Ownership), D.5 (Proprietary
Service Tools), and E.3 (Intellectual Property Rights), shall transfer to Authorized User all work that has been
completed and paid for under the Agreement or Purchase order.
e.
Survival. Any terms in this Agreement, which by their nature extend beyond the termination or expiration of
this Agreement shall remain in effect until fulfilled and will apply to both parties' respective successors and
permitted assigns. Any termination under this sub-section A.12 will be without prejudice to the terminating
party's legal rights and remedies, including injunction and other equitable remedies.
f.
Effect on Agreement on Termination of a Transaction Document. The termination of an Authorized User’s
Transaction Document does not affect the entire Agreement. Except as set forth in Section A.12.d above, the
termination of this Agreement by the State shall not be deemed to terminate any existing Transaction
Documents hereunder unless otherwise agreed to by the parties in writing.
CANCELLATION
Subject to the terms of sub-sections A.12.c. and A.12.e., the State of Wisconsin reserves the right to cancel this Agreement:
14.
a.
or a Transaction Document in whole or in part without penalty due to non-appropriation of funds;
b.
if HP fails to follow the requirements of s. 77.66, Wis. Stats., and related and applicable statutes regarding
certification for collection of sales and use tax; or
c.
if it is determined that HP is a federally debarred contractor or a contractor that is identified on the list of
parties excluded from federal procurement and non-procurement contracts.
HP BUSINESS PARTNERS
HP's obligations with respect to HP Branded Products or Services procured by Authorized User from authorized HP Business
Partners are limited to the sub-sections A.7 Warranty Provisions, A.8.1 Patent Infringement, A.9 Intellectual Property Rights, A.10
Restricted Use, A.11 Limitation of Liability and Remedies; and clauses b, c, d, e, f, g, h, i, j, and k of sub-section A.15 General, in
these Base Terms and the Software License Terms section. HP is not responsible for the acts or omissions of HP Business
Partners, for any obligations undertaken or representations that they may make, or for any other products or services that they
supply to Authorized User.
15.
GENERAL
a.
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Ordering.
1.
Purchase orders or releases via purchasing cards may be placed directly to HP, an HP Affiliate, or an HP
Business Partner (as appropriate) by an Authorized User. No other purchase documents are authorized.
2.
Electronic Orders and EDI. Where facilitated under local law, the parties may do business electronically,
including order placement and acceptance. Once accepted, such orders will create fully enforceable
obligations subject to the terms of this Agreement. Such orders and acceptances will be deemed for all
purposes to be an original signed writing. Customer and HP will adopt commercially reasonable security
measures for password and access protection.
b.
Use. Products and Services acquired by Authorized User under this Agreement are solely for Authorized
User's own use and not for resale or sub-licensing.
c.
Force Majeure. Neither party shall be in default by reason of any failure in performance of this Agreement in
accordance with reasonable control and without fault or negligence on their part. Such causes may include,
but are not restricted to, acts of nature or the public enemy, acts of the government in either its sovereign or
contractual capacity, fires, floods, epidemics, quarantine restrictions, strikes, freight embargoes and
unusually severe weather, but in every case the failure to perform such must be beyond the reasonable
control and without the fault or negligence of the party. However, this provision shall not apply to the State’s
or Authorized Users’ payment obligations.
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d.
Assignment. No right or duty in whole or in part of either party under this Agreement may be assigned or
delegated without the prior written consent of the other party and such consent shall not be unreasonably
withheld. Any attempted assignment, delegation, or transfer without such written consent shall be null and
void. Assignments of HP Software licenses are subject to compliance with HP's Software license transfer
policies. License transfer polices, which are Product specific, can be accessed at:
http://www.hp.com/softwarereleases/releases-media2/slt/americas/index.html. HP may, however assign or
transfer any rights and obligations hereunder to a company within the Hewlett-Packard group subject to
written notice.
e.
Export and Import. Authorized User, who exports, re-exports, imports, or otherwise transfers Products,
technology, or technical data purchased hereunder, assumes responsibility for complying with applicable laws
and regulations and for obtaining required export and import authorizations. HP may suspend performance
under this Agreement: 1) if the Authorized User is in violation of any applicable laws or regulations, and 2) to
the extent necessary to assure compliance under the U.S. or other applicable export or similar regulations.
f.
Governing Law. This Agreement shall be governed under the laws of the State of Wisconsin. HP shall at all
times comply with and observe all federal and State laws, local laws, ordinances, and regulations which are in
effect during the period of this Agreement and which in any manner affect the work or its conduct.
g.
Notices. All notices that are required under this Agreement shall be in writing and shall be considered
effective upon receipt.
h.
Entire Agreement and Order of Precedence.
1.
Entire Agreement. This Agreement shall apply to an Authorized User’s purchases of Products and
Services covered by this Agreement, and no other terms and conditions in any document shall be
effective or binding unless expressly agreed to in writing by the parties.
2.
Order of Precedence. Unless otherwise agreed or provided herein, the documents below will apply in
the following descending order of precedence:
i.
ii.
iii.
iv.
v.
(Version# 00.3)
HP WIP ID# 176689
any subsequent amendments or change orders to this Agreement (the later dated document will
govern);
Software License Information (SLI);
the sections and Exhibits of this Agreement;
Statement(s) of Work (if applicable);
all other Transaction Documents.
i.
Waiver. Neither party's failure to exercise or delay in exercising any of its rights under this Agreement shall
constitute or be deemed a waiver or forfeiture of those rights.
j.
Independent Capacity of Contractor. The parties hereto agree that HP, its officers, agents, and employees, in
the performance of this Agreement shall act in the capacity of an independent contractor and not as an officer,
employee, or agent of the State or any Authorized User. HP agrees to take such steps as may be necessary
to ensure that each subcontractor of HP will be deemed to be an independent contractor and will not be
considered or permitted to be an agent, servant, joint venturer, or partner of the State or any Authorized User.
k.
Recordkeeping and Record Retention. HP shall establish and maintain adequate records of all expenditures
incurred under the Agreement. All records must be kept in accordance with generally accepted accounting
procedures. All procedures must be in accordance with federal, State, and local ordinances.
l.
Audits by the Authorized User. Subject to §§ 19.36 (3) and 134.90 (1) (c), Wis. Stats., the Authorized User, its
auditor, and other government representatives authorized by law to have access, shall have the right to audit,
review, examine, copy, and transcribe pertinent records or documents relating to any orders, including
invoices and payment records associated with such orders for the Authorized User (“Records”). HP will retain
all documents applicable to the Agreement for a period of not less than three (3) years after final payment is
made. Such audits may be conducted only in accordance with the following:
1.
Audits shall occur no more than once each calendar year and the scope of the audit will be limited to
Agreement-related Records over the preceding twelve (12) month period.
2.
Authorized User shall provide HP with thirty (30) days prior written notice of each audit;
3.
The parties will work together in good faith to establish an audit process that does not interfere with HP’s
ability to perform its obligations under this Agreement or any other contract, or compromise any
reasonable security processes or procedures;
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4.
Prior to conducting the audit, the auditor will sign a confidentiality agreement that is no less protective to
HP than the confidentiality terms set forth in this Agreement;
5.
HP shall provide the auditor with information required to effect the audit, provided however that HP
reserves the right to require additional assurances from Authorized User and its auditor as may be
necessary to protect the Confidential Information of HP that may be accessed by Authorized User’s
auditor as a part of the audit;
6.
The auditor reports prepared in connection with the audits will be deemed confidential information of HP,
except for information required to be released by Wisconsin Open Records law; and
7.
If, as a result of the audit, it is determined that HP has overcharged the Authorized User, HP will
promptly pay to the Authorized User, within thirty (30) days, the amount of the overcharge.
In no event will HP be required to provide Customer or its auditor with access to HP’s internal cost and
resource utilization data, or data related to employees or other customers of HP.
m.
Antitrust Assignment. The parties recognize that in actual economic practice, overcharges resulting from
antitrust violations are in fact usually borne by the Authorized User. Therefore, HP hereby assigns to the
Authorized User any and all claims for such overcharges as to goods, materials or services purchased in
connection with this Agreement.
n.
Nondiscrimination / Affirmative Action. In connection with the performance of work under this Agreement,
HP agrees not to discriminate against any employee or applicant for employment because of age, race,
religion, color, handicap, sex, physical condition, developmental disability as defined in s. 51.01(5), Wis.
Stats., sexual orientation as defined in s. 111.32(13m), Wis. Stats., or national origin. This provision shall
include, but not be limited to, the following: employment, upgrading, demotion or transfer; recruitment or
recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for
training, including apprenticeship. Except with respect to sexual orientation, HP further agrees to take
affirmative action to ensure equal employment opportunities.
The State agrees that HP’s approved plan is currently on file with the State of Wisconsin, which is valid
through June 30, 2009, at which time the State will request that a new plan is submitted to the State of
Wisconsin Department of Administration for approval. Instructions on preparing the plan and technical
assistance regarding this clause are available from the Department. Periodically (approx. every 3 years)
thereafter, the Department shall require HP to either update their current plan or submit a new plan. HP shall
provide the information required within the timeframes stated in the Department’s written request.
HP agrees to post in conspicuous places, available for employees and applicants for employment, a notice to
be provided by the State of Wisconsin Department of Administration that sets forth the provisions of the State
of Wisconsin's nondiscrimination law.
Failure to comply with the conditions of this clause may result in HP becoming declared an "ineligible"
contractor, termination of the Agreement, or withholding of payment.
o.
Safety Requirements. All materials, equipment, and supplies provided to an Authorized User must comply
fully with all applicable safety requirements as set forth by the Wisconsin Administrative Code and all
applicable OSHA Standards.
p.
Insurance Responsibility. When performing services on-site for an Authorized User, HP shall:
q.
(Version# 00.3)
HP WIP ID# 176689
1
Maintain worker's compensation insurance as required by Wisconsin Statutes, for all employees
engaged in the work.
2.
Maintain commercial liability, bodily injury and property damage insurance against any claim(s), which
might occur in carrying out this Agreement. Coverage shall be one million dollars ($1,000,000) liability for
bodily injury and property damage including products liability and completed operations. HP shall provide
motor vehicle insurance for all owned, non-owned and hired vehicles that are used in carrying out this
Agreement. Coverage shall be one million dollars ($1,000,000) per occurrence combined single limit for
automobile liability and property damage.
Disclosure. If a State public official (s. 19.42, Wis. Stats.), a member of a State public official's immediate
family, or any organization in which a State public official or a member of the official's immediate family owns
or controls a ten percent (10%) interest, is a party to this Agreement, and if this Agreement involves payment
of more than three thousand dollars ($3,000) within a twelve (12) month period, this Agreement is voidable by
the State unless appropriate disclosure is made according to s. 19.45(6), Wis. Stats., before signing the
Agreement. Disclosure must be made to the State of Wisconsin Ethics Board, 44 East Mifflin Street, Suite
601, Madison, Wisconsin 53703 (Telephone 608-266-8123).
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B.
r.
Material Safety Data Sheet. If any item(s) on an order(s) resulting from this Agreement is a hazardous
chemical, as defined under 29 CFR 1910.1200, HP shall provide one (1) copy of the Material Safety Data
Sheet for each item with the shipped container(s).
s.
Promotional Advertising/News Releases. Reference to or use of the State of Wisconsin, any of its
departments, agencies or other sub-units, or any State official or employee for commercial promotion is
prohibited. News releases pertaining to this Agreement shall not be made without prior approval of the State
of Wisconsin Department of Administration. Release of broadcast e-mails pertaining to this Agreement shall
not be made without prior written authorization of the State of Wisconsin Department of Administration.
HP HARDWARE TERMS
1.
RISK OF LOSS
Risk of loss or damage, and title to Hardware, shall pass to Authorized User and acceptance shall occur upon delivery to the
“ship to” address or, if special shipping arrangements are agreed to, upon delivery to Authorized User’s carrier or designee.
2.
INSTALLATION
If HP, an HP Affiliate or an HP Business Partner provides installation services, Authorized User shall make available facilities that
meet HP published site guidelines that shall be provided to Authorized User. Upon delivery, Authorized User shall place each
item of Hardware in its designated location. Installation is billed at HP's published installation charges (less appropriate
discounts) unless quoted as part of the Hardware purchase price, or in a Transaction Document. Installation by HP, an HP
Affiliate or an HP Business Partner is complete when the Hardware passes HP's standard installation and test procedures.
3.
TRADE-IN PROGRAMS
Authorized User has the responsibility for risk of loss for trade-in Hardware until receipt by HP. Such items must be returned to
HP as soon as reasonably practicable at Authorized User's expense free of all liens, claims, or encumbrances, or Authorized
User shall repay to HP the applicable trade-in credit.
4.
HARDWARE LIMITED WARRANTY
HP warrants HP Branded Hardware against defects in materials and workmanship under normal use during the warranty period
and that it shall materially conform to its Specifications for the time specified in the applicable Transaction Documents. HP
Branded Hardware may contain used parts that are equivalent to new in performance and reliability and are warranted as new.
Warranty information shall be provided on express limited warranty statements, which accompany the Product.
5.
OPERATION
HP does not warrant that the operation of Hardware will be uninterrupted or error free, or that Hardware will operate in Hardware
and Software combinations other than as expressly required by HP in the Product Specifications or that Hardware will meet
requirements specified by Authorized User. Authorized User may only use firmware embedded in the Hardware to enable the
Hardware to function in accordance with its Specifications.
6.
EXCLUSIVE REMEDIES
Upon notice of a valid warranty claim during the warranty period and if provided reasonable access to the HP Branded Hardware,
HP will, at its option, repair a defect in the HP Branded Hardware, or correct a material non-conformance to Specifications, or
replace such Hardware with Hardware of equal or better functional performance. If HP is unable, within a reasonable time, to
complete the repair or correction, or replace such HP Branded Hardware, Authorized User shall be entitled to a refund of the
purchase price paid upon prompt return of such Hardware to HP. Subject to the terms of Authorized User’s specific Product
warranty statement. Authorized User shall pay all expenses for shipments of repaired or replacement Hardware. This subsection states HP's entire liability for Hardware warranty claims.
C.
HP SOFTWARE LICENSE TERMS
1.
LICENSE GRANT
HP grants Authorized User a non-exclusive, non-transferable perpetual license to “Use,” in object code form, the Version or
Release of the HP Branded Software delivered from HP, HP Affiliate, or HP Business Partner accepted order. For purposes of
this Agreement, unless otherwise specified in the Software License Information (SLI). “Use” means to access, install, store, load,
execute, merge and display one copy of the Software on one device at a time for Authorized User's business purposes.
Authorized User's Use of such Software is subject to these license terms and the Use restrictions and authorizations and
licensed locations for the Software specified in SLI (the “Software License”). Usage terms for HP Branded Software specified in
the SLI shall not be materially more restrictive than the Use defined in this section C.1. For HP Branded Software that includes
embedded third party software products, the terms of the Agreement shall apply as well as the SLI. For third party software
products (non HP Branded Software), the third party’s license terms and use restrictions found in the SLI shall govern its use.
(Version# 00.3)
HP WIP ID# 176689
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2.
OWNERSHIP
This Software License confers no title or ownership and is not a sale of any rights in the Software. Third-party suppliers are
intended beneficiaries under this Agreement and independently may protect their rights in the Software in the event of any
infringement. All rights not expressly granted to Authorized User are reserved solely to HP or its suppliers.
3.
ACCEPTANCE
Authorized User accepts Software upon delivery.
4.
UPGRADES
Software Versions or maintenance updates, if available, may be ordered separately or may be available through Software
Support. For HP Software Products priced on a tiered basis, HP reserves the right to require additional licenses and fees for
Software Versions or separately purchased maintenance updates or for Use of the Software in conjunction with upgraded
Hardware or Software. When Customer obtains a license for a new Software Version through Software Support or purchases an
upgrade license to a new Version, Authorized User’s Software License for the earlier Version shall terminate. Software Versions
are subject to the license terms in effect on the date that HP delivers or makes the Version available to Authorized User.
5.
LICENSE RESTRICTIONS
a.
Use Restrictions. Authorized User may not exceed the number of licenses, agents, tiers, nodes, seats, or
other Use restrictions or authorizations agreed to and paid for by Authorized User. Some Software may
require license keys or other technical protection measures (e.g., passwords, software codes, asset protection
devices) that shall not contain any electronic reporting capability back to HP. Authorized User acknowledges
that HP may periodically (no more than annually) request the Authorized User to provide information regarding
the usage of HP software licenses for compliance with Use restrictions and authorizations.
b.
Copy and Adaptation. Unless otherwise permitted by HP, Authorized User may only make copies or
adaptations of the Software for archival purposes or when copying or adaptation is an essential step in the
authorized Use of the Software. If Authorized User makes a copy for backup purposes and installs such copy
on a backup system, unless otherwise provided in the SLI, Authorized User may not operate such backup
installation of the Software without paying an additional license fee, except in cases where the system
becomes inoperable or during periodic testing of the back-up system to ensure it is operational. If Authorized
Users wants to use the backup in a development, testing, or production environment, Authorized User will be
required to pay an additional license fee.
If a copy is activated on a backup device in response to failure of the original device, the Use on the backup
device must be discontinued when the original or replacement device becomes operable. Authorized User
may not copy the Software onto or otherwise Use or make it available on, to, or through any public or external
distributed network. Licenses that allow Use over Authorized User's intranet require restricted access by
authorized users only.
(Version# 00.3)
HP WIP ID# 176689
c.
Copyright Notice. Authorized User must reproduce all copyright notices that appear in or on the Software
(including documentation) on all permitted copies or adaptations. Copies of documentation are limited to
operational use.
d.
Designated System. Notwithstanding anything to the contrary herein, the Software License for certain
Software, as identified in the SLI, is non-transferable and for use only on a computer system owned, controlled,
or operated by or solely on behalf of Authorized User, for NonStop Products, and may be further identified by
HP by the combination of a unique number and a specific system type (“Designated System”) and such
license will terminate in the event of a change in either the system number or system type, an unauthorized
relocation, or if the Designated System ceases to be within the possession or control of Authorized User.
Sections C.5.b. (Copy and Adaptation) and C.7. (License Transfer) shall govern Software license transfers.
e.
OS Software. Operating system Software may only be used when operating the associated Hardware in
configurations as approved, sold, or subsequently upgraded by HP, an HP Affiliate or an HP Business Partner.
f.
Changes. Authorized User shall not modify, reverse engineer, disassemble, decrypt, decompile, or make
derivative works of the Software. Where Authorized User has other rights mandated under statute, Authorized
User shall provide HP with reasonably detailed information regarding any intended modifications, reverse
engineering, disassembly, decryption, or decompilation and the purposes therefore.
g.
Use for Service Provision. Extending the Use of Software to any person or entity other than Authorized User
as a function of providing services, (i.e.; making the Software available through a commercial timesharing or
service bureau) must be authorized in writing by HP prior to such use and may require additional licenses and
fees.
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h.
6.
Consultant Use and Access. Subject to the terms and conditions of this Agreement, Authorized User may
permit a consultant or subcontractor to Use Software at the licensed location for the sole purpose of providing
services to Authorized User. Authorized User shall be responsible and directly liable, to the extent permitted
by law, for consultants’ compliance with this Agreement.
LICENSE TERM AND TERMINATION
The Software License granted Authorized User shall be perpetual, provided however that HP may terminate the Software
License upon notice for failure to comply with this Agreement. Termination procedures are provided in section A.12 of the Base
Terms and include the right to cure. Immediately upon termination of the Software License or upon expiration of any individual
limited term license, Authorized User shall destroy the Software and all copies of the Software subject to the termination or
expiration or return them to HP. Authorized User shall remove and destroy or return to HP any copies of the Software that are
merged into adaptations, except for individual pieces of data in Authorized User's database. Authorized User may retain one
copy of the Software subsequent to termination solely for archival purposes only. At HP's request, Authorized User shall certify
in writing to HP that Authorized User has complied with these requirements.
7.
LICENSE TRANSFER
Authorized User may not sublicense, assign, transfer, rent, or lease the Software or the Software License to any other party
except as permitted in this section. Except as provided in sub-section C.5.d above, HP Branded Software licenses are
transferable subject to HP's prior written authorization and payment to HP of any applicable fees or compliance. Upon transfer of
the Software License Authorized User's rights under the License shall terminate and Authorized User shall immediately deliver
the Software and all copies to the transferee. The transferee must agree in writing to the terms of the Software License, and,
upon such agreement, the transferee shall be considered the “Authorized User” for purposes of the license terms. Authorized
User may transfer firmware only upon transfer of the associated Hardware. License transfer polices, which are Product specific,
can be accessed at: http://www.hp.com/softwarereleases/releases-media2/slt/americas/index.html.
8.
U.S. FEDERAL GOVERNMENT USE
If the Software is licensed for use in the performance of a U.S. Government prime contract or subcontract, Authorized User
agrees that, consistent with FAR 12.211 and 12.212, commercial computer Software, computer Software documentation and
technical data for commercial items are licensed under HP’s standard commercial license.
9.
COMPLIANCE
In the event that HP undertakes an audit of an Authorized User in which the HP’s software is installed:
10.
a.
HP must provide at least forty-five (45) business day’s prior written notice to the Authorized User,
b.
the scope of the audit shall be limited to a review of the Authorized User’s applicable written records
pertaining to the Agreement and the licensed software, if HP can reasonably demonstrate to the Department
of Administration (DOA) in the case of a State Agency audit, and to the municipality in the case of a
municipality audit, that said written records are inadequate, then with DOA’s or the municipality’s prior written
authorization, HP may extend such audit to the Authorized User’s computer installations so long as such audit
does not interfere or disrupt the Authorized User’s production/work environment during normal business hours,
c.
the Authorized User shall be obligated only to pay for unpaid licenses found to be in use and for no other
costs, fees or penalties, and
d.
all information transmitted to HP’s pursuant to the above shall be held in confidential status by HP.
WARRANTY
HP Branded Software shall materially conform to its Specifications. If a warranty period is not specified for HP Branded Software,
the warranty period shall be ninety (90) days from the delivery date.
11.
VIRUS WARRANTY
HP warrants that any physical media containing HP Branded Software shall be shipped free of viruses. HP warrants that any
physical media containing HP Branded Software will be scanned for viruses using reasonable, industry-standard, up-to-date antivirus routines and that any viruses so found will be removed from the HP Branded Software prior to providing them to Authorized
User. Authorized User’s sole and exclusive remedy for breach of this warranty during the warranty period, which shall not
exceed ninety (90) days from the date of delivery, shall be to replace the HP Branded Software.
12.
INDUCED INHIBITING CODE
HP shall not include any Induced Inhibiting Code (“IIC”) in any HP Branded Software licensed under this Agreement. IIC means
any deliberately-included application or system code that will degrade performance, result in inaccurate data, deny accessibility,
or adversely effect, in any way, programs or data or use of the system. HP represents and covenants that the HP Branded
(Version# 00.3)
HP WIP ID# 176689
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Software shall not contain any computer code that would disable it, or contain other similar self-destruct mechanisms (sometimes
referred to as "time bombs," "time locks," or "drop dead" devices) or other mechanisms that would permit HP to access the HP
Branded Software to cause such disablement or impairment (sometimes referred to as a "trap door" device). For purposes of this
Agreement, technical protection measures (i.e. passwords, software codes, and asset protection devices) inserted in the
Software for purposes of preventing its customers’ unauthorized use under the license agreement applicable to same, are not
considered time bombs, time locks, drop dead devices or trap door devices.
13. WARRANTY LIMITATION
HP does not warrant that the operation of Software will be uninterrupted or error free, or that Software will operate in Hardware
and Software combinations other than as expressly required by HP in the Product Specifications or that Software will meet
requirements specified by Authorized User, unless otherwise agreed in writing by the parties, in an applicable Transaction
Document or a contract resultant from a competitive bid.
14. EXCLUSIVE REMEDIES
If notified of a valid warranty claim during the warranty period, HP will, at its option, correct the warranty defect for HP Branded
Software, or replace such Software. If HP is unable, within a reasonable time, to complete the correction, or replace such
Software, Authorized User Authorized User shall be entitled to a refund of the purchase price paid upon prompt return of such
Software to HP. Authorized User shall pay expenses for return of such Software to HP. HP shall pay expenses for shipment of
repaired or replacement Software to Authorized User. This sub-section C.13 states HP's entire liability for warranty claims.
15. IMPLIED LICENSE
There are no implied licenses.
16. OTHER TERMS
Except for SLI or third party product license terms that may be applicable as provided in this section C, no shrink-wrap, click-wrap
or other terms and conditions or agreements (Additional Terms) unilaterally provided with any products or software hereunder,
which may ‘pop up’ when the Software is downloaded, shall be binding on the State, even if use of such products and software
requires an affirmative “acceptance” of those Additional Terms before access is permitted. All such Additional Terms shall be of
no force or effect and shall be deemed rejected by the State and the Authorized User in their entirety. However, SLI or third party
product license terms that may be applicable as provided in this section C that are ‘pop up’ terms will not apply. License terms
that are provided when the Software is downloaded for use (e.g. an accompanying “Read Me” file) will not be considered ‘pop-up’
terms.
D.
HP SUPPORT TERMS
1.
SUPPORT SERVICES
a.
Description of Support. HP shall deliver Support according to the description of the offering, eligibility
requirements, service limitations, and Authorized User responsibilities described in the relevant Transaction
Documents. HP Software Support can be accessed at:
http://www.hp.com/go/hpsoftwaresupport/support_options. Hardware Support (Care Packs), can be accessed
at www.hp.com/hps/carepack.
b.
Ordering Support. Authorized User may order Support:
c.
(Version# 00.3)
HP WIP ID# 176689
1.
at the time of Product purchase, or prior to installation of Products for which Support is being purchased,
for a fixed term (may be referred to as “HP Care Pack”);
2.
after the time of Product purchase, for either a fixed term or an initial term that may be renewed (may be
referred to as “HP Contractual Services”);
3.
on a per-event basis; or
4.
at any time, when agreed non standard Support has been offered by HP to the Authorized User
according to a purchase order and a Statement of Work (also known as “Custom Support”) or as
otherwise offered by HP. Authorized User may order HP support from HP, an HP Authorized Business
Partner or an Authorized Reseller provided the appropriate Authorized User’s procurement procedures
and processes have occurred.
Cancellation. Authorized User may cancel Support orders or delete Products from Support upon thirty (30)
days written notice, unless otherwise stated in a Transaction Document. HP may discontinue Support for
Products and specific Support services no longer included in HP's Support offering. HP will endeavor to
provide Authorized Users one-year advanced notice of intent to discontinue standard Hardware maintenance
software technical support and Software update support services as a result of changing business demands,
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though no less than sixty (60) days written notice will be provided, unless otherwise agreed. If Authorized
User cancels prepaid Support, HP shall refund Authorized User a pro-rata amount for the unused prepaid
Support, less any early termination fees or subject to any restrictions set forth in a Transaction Document.
HP’s Software support lifecycle information can be accessed at: http://support.openview.hp.com/prod-spptlifecycle/index.jsp.
2.
3.
d.
Return to Support. If Authorized User allows Support to lapse, HP may charge Authorized User additional
fees to resume Support or require Authorized User to perform certain hardware or software upgrades. HP
shall review and assess whether such fees are required, and explain these to Authorized User at the time of
the request to return to Support.
e.
Local Availability. Authorized User may order Support from HP's current Support offerings. Some offerings,
features, and coverage (and related Products) may not be available in all countries or areas.
f.
Support Warranty. HP warrants that it shall perform Support using generally recognized commercial practices
and standards.
g.
Exclusive Remedies. HP shall re-perform Support not performed in accordance with the warranty in section
D.1.f. This sub-section D.1.g states HP's entire liability for Support warranty claims.
PRICING, SERVICES, AVAILABILITY, AND INVOICING
a.
Pricing. Except for prepaid Support or as otherwise stated in a Transaction Document, HP may change
Support prices upon sixty (60) days written notice.
b.
Additional Services. Additional services performed by HP at Authorized User's request that are not included in
Authorized User's purchased Support will be chargeable at the applicable published US service rates less
applicable discounts. Such additional services include but are not limited to:
1.
Authorized User requests for Support after HP’s local standard business hours (unless Authorized User
has specifically purchased after-hours coverage for the requested Support);
2.
Authorized User requests for repair for damage or failure attributable to the causes specified in subsection A.7.d of the HP Base Terms (“Warranty Provisions Exclusions”); and
3.
Authorized User requests for Support where Authorized User does not, in HP’s reasonable
determination, meet the applicable prerequisites and eligibility requirements for Support.
c.
Local Availability. Support outside of the applicable HP coverage areas may be subject to travel charges,
longer response times, reduced restoration or repair commitments, and reduced coverage hours.
d.
Invoicing. Invoices for Support will be issued in advance of the Support period. HP Support invoices and
related documentation will be produced in accordance with section A.6.b. Additional levels of detail
requested by Customer may be chargeable.
SITE AND PRODUCT ACCESS
shall provide HP access to the Products covered under Support; adequate working space and facilities within a reasonable
distance of the Products; access to and use of information, resources, and facilities as reasonably determined necessary by HP
to service the Products; and other access requirements described in the relevant Transaction Document. If fails to provide such
access, resulting in HP's inability to provide Support, HP shall be entitled to charge for the Support call at HP's published service
rates. is responsible for removing any Products ineligible for Support to allow HP to perform Support. If delivery of Support is
made more difficult because of ineligible Products, HP will charge for the extra work at HP's published service rates.
4.
STANDARD SUPPORT PRODUCT ELIGIBILITY
(Version# 00.3)
HP WIP ID# 176689
a.
Minimum Configuration for Support. Authorized User must purchase the same level of Support and for the
same coverage period for all Products within a minimum supportable system unit (i.e. all components within a
server, storage, or network device) to allow for proper execution of standalone and operating system
diagnostics for the configuration.
b.
Eligibility. For initial and on-going Support eligibility Authorized User must maintain all Products and
associated hardware and software at the latest HP-specified configuration and revision levels and in HP's
reasonable opinion, in good operating condition.
c.
Modifications. Authorized User will allow HP, at HP's request and at no additional charge, to modify Products
to improve operation, supportability, and reliability, or to meet legal requirements, during times agreed by the
parties.
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5.
d.
Loaner Units. HP maintains title and Authorized User shall have risk of loss or damage for loaner units if
provided at HP's discretion as part of Support or warranty services and such units shall be returned to HP
without lien or encumbrance at the end of the loaner period.
e.
Relocation. Authorized User is responsible for moving Products. If Authorized User moves the Products to a
new location, HP may charge additional Support fees and modify the response times, and Authorized User
may be required to execute amended or new Transaction Documents. If Authorized User moves Products to
another country, Support shall be subject to availability in the destination country. Reasonable advanced
notice to HP may be required to begin Support for some Products after relocation.
f.
Maximum Use Limitations. Certain Products have a maximum usage limit, which is set forth in the
manufacturer's operating manual or the technical data sheet. Authorized User must operate such Products
within the maximum usage limit.
g.
Multi-Vendor Support. HP provides Support for certain non-HP Branded Products. The relevant Transaction
Document will specify availability and coverage levels, and govern delivery of multi-vendor Support, whether
or not the non-HP Branded Products are under warranty. HP may discontinue Support of non-HP Branded
Products if the manufacturer or licensor ceases to provide support for such Products.
PROPRIETARY SERVICE TOOLS
HP will require Authorized User's use of certain hardware and/or software system and network diagnostic and maintenance
programs (“Proprietary Service Tools”), as well as certain diagnostic tools that may be included as part of the Authorized User’s
system, for delivery of Support under certain coverage levels. Proprietary Service Tools are and remain the sole and exclusive
property of HP, are provided “as is,” and include, but are not limited to: remote fault management software, network Support tools,
Insight Manager, Instant Support, and Instant Support Enterprise Edition (known as “ISEE”). Proprietary Service Tools may
reside on the Authorized User's systems or sites. Authorized User may only use the Proprietary Service Tools during the
applicable Support coverage period and only as allowed by HP. Authorized User may not sell, transfer, assign, pledge, or in any
way encumber or convey the Proprietary Service Tools. Upon termination of Support, Authorized User shall return the
Proprietary Service Tools or allow HP to remove these Proprietary Service Tools.
Authorized User shall also be required to:
a.
allow HP to keep the Proprietary Service Tools resident on Authorized User’s systems or sites, and assist HP
in running them;
b.
install Proprietary Service Tools, including installation of any required updates and patches;
c.
use the electronic data transfer capability to inform HP of events identified by the software;
d.
if agreed to by the Authorized User, purchase HP-specified remote connection hardware for systems with
remote diagnosis service; and
e.
if agreed by the Authorized User, provide remote connectivity through an HP approved communications line.
If Authorized User does not meet the requirements of section D.5.a-e, an additional service fee may be charged by HP.
6.
AUTHORIZED USER RESPONSIBILITIES
(Version# 00.3)
HP WIP ID# 176689
a.
Data Backup. To reconstruct lost or altered Authorized User files, data, or programs, Authorized User must
maintain a separate backup system or procedure that is not dependent on the Products under Support.
b.
Temporary Workarounds. Authorized User shall implement temporary procedures or workarounds provided
by HP, during times agreed by the parties, while HP works on permanent solutions.
c.
Hazardous Environment. Authorized User shall notify HP if Authorized User uses Products in an environment
that poses a potential health or safety hazard to HP employees or subcontractors. HP may require Authorized
User to maintain such Products under HP supervision and may postpone service until Authorized User
remedies such hazards.
d.
Authorized Representative. Authorized User shall have a representative present when HP provides Support
at Authorized User's site.
e.
Product List. Authorized User shall create and maintain a list of all Products under Support including: the
location of the Products, serial numbers, the HP-designated system identifiers (SAID), and coverage levels.
Authorized User shall keep the list updated during the applicable Support period.
f.
Documentation. If Authorized User purchases a Support offering that includes documentation updates,
Authorized User may copy such updates only for systems under such coverage. Copies must include
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appropriate HP trademark and copyright notices.
7.
SUPPORTED SOFTWARE
Authorized User may purchase available Support for HP Branded Software only if Authorized User can provide evidence it has
rightfully acquired an appropriate HP license for such Software. HP will be under no obligation to provide Support due to any
alterations or modifications to the Software not authorized by HP or for Software for which Authorized User cannot provide a
sufficient proof of a valid license. Unless otherwise agreed by HP, HP only provides Support for the current Version and the
immediately preceding Version of HP Branded Software, and then only when HP Branded Software is used with Hardware or
Software included in HP-specified configurations at the specified Version level.
8.
9.
E.
ACCESSORIES AND PARTS AND MISCELLANEOUS
a.
Compatible Cables and Connectors. Authorized User shall connect Products covered under Support with
cables or connectors (including fiber optics if applicable) that are compatible with the system, according to
the manufacturer's operating manual.
b.
Support for Accessories. HP may provide Support for cables, connectors, interfaces, and other accessories
if Authorized User purchases Support for such accessories at the same Hardware service level purchased
for the Products with which they are used.
c.
Consumables. Support does not include the delivery, return, replacement, or installation of supplies or other
consumable items (including, but not limited to, operating supplies, magnetic media, print heads, ribbons,
toner, and batteries) unless otherwise stated in a Transaction Document.
d.
Replacement Parts. Parts provided under Support may be whole unit replacements or be new or functionally
equivalent to new in performance and reliability and warranted as new. Replaced parts become the property
of HP, unless HP agrees otherwise and Authorized User pays any applicable charges.
e.
Service Providers. HP reserves the right and Authorized User agrees to HP's use of HP-authorized service
providers to assist in the provision of Support.
ACCESS TO HP SOLUTION CENTER AND IT RESOURCE CENTER
a.
Designated Callers. Authorized User may identify a reasonable number of callers, as determined by HP and
Authorized User (“Designated Callers”), who may access HP's customer Support call centers (“Solution
Centers”). Authorized Users will only need their SAID number(s) when accessing HP’s Solution Centers.
b.
Qualifications. Designated Callers must be generally knowledgeable and demonstrate technical aptitude in
system administration, system management, and, if applicable, network administration and management and
diagnostic testing. HP may review and discuss with Authorized User any Designated Caller's experience to
determine initial eligibility. If issues arise during a call to the Solution Center that, in HP's reasonable opinion,
may be a result of a Designated Caller's lack of general experience and training, the Authorized User may be
required to replace that Designated Caller. All Designated Callers must have the proper system identifier
(SAID) as provided in the Transaction Documents or by HP when Support is initiated. HP shall provide the
system identifier numbers (SAID) to the Authorized User after the time of the purchase of the Support for the
first year. The SAID number shall remain with the Product’s support for the life of the Product unless the
support for Products purchased from a Business Partner or Affiliate are transitioned to HP. HP Solution
Centers shall provide support in English.
c.
HP IT Resource Center. HP IT Resource Center is available via the worldwide web for certain types of
Support. Authorized User may access specified areas of the HP IT Resource Center. File Transfer Protocol
access is required for some electronic services. Authorized User employees who submit HP Solution Center
service requests via the HP IT Resource Center must meet the qualifications set forth in sub-section D.9.b
above.
d.
Telecommunication Charges. Authorized User shall pay for all telecommunication charges associated with
using HP IT Resource Center, installing and maintaining ISDN links and Internet connections (or HPapproved alternatives) to the HP Solution Center, or using the Proprietary Service Tools.
U.S. HP PROFESSIONAL SERVICES TERMS
Additional provisions related to Professional Services are provided below and form part of the HP Authorized User Agreement.
This Agreement does not cover Custom Products.
1.
DEFINITIONS. The following definitions shall apply for purposes of the Professional Services provisions set forth below:
(Version# 00.3)
HP WIP ID# 176689
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2.
a.
Deliverables means the tangible work product resulting from HP’s performance of Professional Services that is
specified in a Transaction Document to be provided to Authorized User, excluding Products, Custom
Products, and modifications, enhancements, and derivative works thereto.
b.
Professional Services means consulting, integration, or technical services to be performed by HP under a
Purchase Order and a Statement of Work or other Transaction Document, excluding Hardware maintenance
and repair, software maintenance, training, or other standard support services provided by HP (“Support”).
c.
Statement of Work means an executed document so titled, that describes the Professional Services to be
performed by HP. The parties may utilize a Statement of Work (SOW) or other form of Transaction Document
to describe the Professional Services. A purchase order is required in addition to an SOW or Transaction
Document.
PROFESSIONAL SERVICES
a.
Professional Services. HP shall perform the Professional Services and provide Deliverables as described in
the relevant Transaction Documents.
b.
Project Representatives. Each party shall appoint an individual for each project who shall serve as their
primary representative (“Project Representative”). Each Project Representative shall:
1.
Have overall responsibility for managing and coordinating the performance of the party it represents in a
prompt and professional manner; and
2.
Meet with the other party’s Project Representatives at regular intervals to review progress and resolve
any issues relating to the Professional Services.
The Authorized User’s Project Representative shall be available at all times when HP’s personnel are at
Authorized User’s premises or shall designate an alternate with the same level of authority and project
knowledge in the event of unavailability. Either party may change its Project Representative at any time upon
written notice.
3.
c.
Changes. Requests by Authorized User and recommendations by HP for changes to the Professional
Services or Deliverables are subject to HP change management procedures set forth in the applicable
Transaction Document, and shall become effective upon the execution date of such mutually agreed to
change order accompanied by an Authorized User’s purchase order.
d.
A change order Purchase Order shall be issued by the Authorized User prior to any changes or additional
work being authorized or commenced by HP on any project or transaction. The Purchase Order shall
describe the changes to be made along with the additional or decreased cost. HP shall not charge the
Authorized User a fee to prepare the description of any Charge Order. Invoices shall not be paid for work that
has not been approved and authorized by an official Purchase Order issued by the Authorized User.
e.
Dependencies. Authorized User shall comply with the general obligations specified in this Agreement,
together with any specific Authorized User obligations described in the relevant Transaction Documents, in a
timely manner. Authorized User acknowledges that HP’s ability to deliver the Professional Services is
dependent upon Authorized User’s full and timely cooperation with HP, as well as the accuracy and
completeness of any information and data Authorized User provides to HP.
INTELLECTUAL PROPERTY RIGHTS
(Version# 00.3)
HP WIP ID# 176689
a.
Intellectual Property Rights. All copyrights, patents, trademarks, trade secrets, and any other intellectual
property rights existing prior to the Effective Date of the relevant Transaction Document shall belong to the
party that owned such rights immediately prior to the Effective Date.
b.
HP Intellectual Property. As between HP and Authorized User, HP shall own all materials, software, (whether
written or machine-readable) and the copyrights, patents, trademarks, trade secrets and all other intellectual
property rights (“IPR”): (i) owned by or licensed to HP or one of its Affiliates prior to the effective date of the
relevant Transaction Document hereunder, (ii) all IPR developed by HP or one of its Affiliates outside the
scope of this Agreement, and (iii) all modifications, enhancements, and derivative works thereof (collectively
“HP Intellectual Property”).
c.
License to HP. Authorized User grants HP a non-exclusive, worldwide, royalty-free right and license (or right
to use or sublicense) to use, copy, make derivative works of, distribute, display, perform, and transmit
Authorized User's and third parties’ intellectual property rights only to the extent necessary for HP to perform
its obligations and exercise its rights under this Agreement.
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d.
e.
4.
Deliverables. All materials developed by HP under this Agreement and specifically identified as a Deliverable
in the relevant Transaction Document shall be identified as one of the following Deliverable designations
(“Deliverable Type”) in such Transaction Document and the rights and licenses shall be as follows with respect
to each Deliverable Type. Where no Deliverable Type has been designated in the applicable SOW, the
Deliverable Type shall be considered a Type I Deliverable. Authorized User shall not disassemble or
decompile any software Deliverable without HP’s written consent. Notwithstanding the license grants in this
sub-section E.3, any third party Software incorporated into any licensed Deliverables will be subject to the
license terms applicable to such Software.
1.
For Type I Deliverables (e.g., general documents, reports): HP shall retain all IPR in Deliverables
designated as Type I. HP grants to Authorized User a worldwide, non-exclusive, fully paid, royalty-free
license to use, execute, reproduce, display and make copies of such Deliverables for its use only
(including a license of the same scope to HP Intellectual Property included in such Deliverable so long
as such HP Intellectual Property is necessary for the intended use of the Deliverable). Authorized
User’s license confers no title or ownership in the Deliverable and no rights in any associated source
code. HP shall deliver one copy of the specified Type I Deliverable to Authorized User.
2.
For Type II Deliverables (e.g., design documents, specifications, plans): Subject to HP’s retention of its
ownership rights in HP Intellectual Property, HP hereby assigns to Authorized User the copyright in
Deliverables designated as Type II Deliverables. HP retains all other IPR in such Deliverables. HP
grants to Authorized User a worldwide, non-exclusive, fully paid, royalty-free license to use, execute,
reproduce, distribute copies of, display, perform and create derivative works of HP Intellectual Property
included in such Deliverable for its use only, to the extent necessary for the intended use of the
Deliverables. HP may retain one copy of the Type II Deliverables. Authorized User grants HP a
worldwide, non-exclusive, fully paid, royalty-free, irrevocable license, including the right to grant
sublicenses, to use, execute, reproduce, distribute copies of, display, perform, and create derivative
works based upon Type II Deliverables.
3.
For Type III Deliverables: This section is intentionally deleted, since Type III Deliverables are not
authorized by the State and, as a result, shall not be provided by HP under this Agreement.
Residuals. Notwithstanding anything in this Agreement to the contrary, each party shall be free to use
Residuals (as defined below) for any purpose provided that the party seeking to use Residuals did not know at
the time of such use that the Residuals were the Confidential Information of the other party. “Residuals”
means information that is received or developed under this Agreement and retained in the unaided memory of
one or more employees who have had access to the information. The parties agree that the right to use
Residuals shall not be deemed to grant either party any license under the other party’s copyrights or patents.
CONFIDENTIALITY
In connection with Professional Services described in the Transaction Document, the following shall apply to any Confidential
Information:
(Version# 00.3)
HP WIP ID# 176689
a.
Before any Confidential Information is disclosed, the parties shall first agree to disclose and receive such
information in confidence. If then disclosed, the Confidential Information shall be marked as confidential at the
time of disclosure, or if disclosed orally but stated to be confidential, shall be designated as confidential in a
writing by the disclosing party summarizing the Confidential Information disclosed and sent to the receiving
party within thirty (30) days after such oral disclosure.
b.
Confidential Information may be used by the receiving party only with respect to the performance of its
obligations under this Agreement and the relevant Transaction Document, and only by the employees of the
receiving party and its employees, agents or contractors who have a need to know such information for
purposes of this Agreement and the relevant Transaction Document. The receiving party shall protect, and
shall ensure that its employees, agents and contractors shall protect, the disclosed Confidential Information by
using the same degree of care, but no less than a reasonable degree of care, to prevent the unauthorized use,
dissemination or publication of the Confidential Information as the receiving party uses to protect its own
confidential information of a like nature.
c.
The receiving party’s confidentiality obligation shall survive the termination or cancellation of this Master
Agreement.
d.
The confidentiality obligations of the parties shall not extend to information that:
1.
was in the receiving party’s possession before receipt from the disclosing party;
2.
is or becomes publicly known without breach by the receiving party;
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e.
3.
is rightfully received by the receiving party from a third party without a duty of confidentiality;
4.
is independently developed or learned by the receiving party;
5.
is disclosed by the receiving party with the disclosing party’s prior written approval, or
6.
is required to be disclosed by operation of law.
Not withstanding the foregoing HP, HP Affiliates and HP Business Partners shall not use Confidential,
Information for any purpose other than the limited purposes set forth in this Agreement, and all related and
necessary actions taken in fulfillment of the obligations thereunder. HP, HP Affiliates, and HP Business
Partners shall hold all Confidential Information in confidence, and shall not disclose such Confidential
Information to any persons other than those directors, officers, employees, and agents who have a businessrelated need to have access to such Confidential Information in furtherance of the limited purposes of this
Agreement and who have been apprised of, and agree to maintain, the confidential nature of such information
in accordance with the terms of this Agreement.
HP, HP Affiliates, and HP Business Partners shall institute and maintain such security procedures as are
commercially reasonable to maintain the confidentiality of the Confidential Information while in its possession
or control including transportation, whether physically or electronically.
HP, HP Affiliates, and HP Business Partners shall ensure that all indications of confidentiality contained on or
included in any item of Confidential Information shall be reproduced by HP, HP Affiliate, and HP Business Partner
on any reproduction, modification, or translation of such Confidential Information. If requested by the Authorized
User of the State, HP, HP Affiliate and HP Business Partner shall make a reasonable effort to add a proprietary
notice or indication of confidentiality to any tangible materials within its possession that contain Confidential
Information of the Authorized User and the State, as directed.
HP, HP Affiliates, and HP Business Partners shall maintain all Confidential Information for a period of three (3)
years from the date of termination of this Contract, and shall thereafter return or destroy said Confidential
Information directed by the State.
HP shall provide any HP Affiliate and HP Business Partner these provisions when the Affiliate or Business
Partner has access to the Confidential Information.
5.
PRICES, PAYMENT SCHEDULE, AND TAXES
a.
(Version# 00.3)
HP WIP ID# 176689
Prices. Prices shall be as specified in the current local published HP price list at the time HP receives
Authorized User’s purchase order or as specified in a valid Transaction Document, which will include a price
validity date, or as otherwise specified in a contract resultant from a competitive bid. With prior written
approval, the Authorized User will be responsible for payment of reasonable out of pocket expenses incurred
by HP in connection with performance of the Professional Services, including travel and travel-related
expenses (such as lodging and meals), unless otherwise stated in the Transaction Document.
1.
All Statements of Work shall include an itemized estimate of all expenses if expenses are anticipated.
Any invoice that includes expenses shall be itemized.
2.
Direct costs such as travel, meals, mileage, and lodging shall be invoiced in accordance with the rates
allowed in the State of Wisconsin Pocket Travel Guide at the time the direct costs are incurred. The
rates in effect as of July 1, 2008 are detailed below. Rate increases are published annually in the
appropriate Compensation Plan link on website:
http://oser.state.wi.us/section_detail.asp?linkcatid=413&linkid=27&sname=Human%20Resource%20Ser
vices.
3.
Air Travel will be reimbursed at the lowest airfare, which is coach fare.
4.
Train Travel will be reimbursed at coach fare, if available, unless overnight where accommodations
should be limited to roomette.
5.
Meals: The current rates in effect as of July 1, 2008 are: Breakfast @$8.00; Lunch @$9.00; and Dinner
@$17.00.
6.
Breakfast will be reimbursed if the individual leaves home before 6:00 a.m.; and Dinner will be
reimbursed if the individual returns home after 7:00 p.m.
7.
Mileage: The current rate in effect as of 1 July 2008 is: $.485. Mileage rates when using personal
vehicles may change during the fiscal year. If and when they become effective, they will be published in
Section F (subsection 3.05) on the following webpage http://oser.state.wi.us/docview.asp?docid=6691.
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8.
Rental Vehicles: Economy vehicles can be rented. The inclusion of the Collusion Damage Waiver
(CDW) and Liability Insurance and documented gasoline charges attributable to State/Government
Business can be claimed.
9.
Lodging: The current rates in effect as of July 1, 2008 are:
10.
b.
i.
$70 per night for all counties excluding Milwaukee, Waukesha and Racine Counties; and
ii.
$80 per night for Milwaukee, Waukesha and Racine Counties
NOTE: all lodging rates exclude sales and/or room taxes. If the taxes are included on the invoice from
the hotel/motel, the Authorized User will reimburse HP for the taxes charged. Prior to making lodging
reservations or registering, HP should request a letter on Government letterhead from the Authorized
User informing the hotel that the persons listed in the letter are working on State or Government
Business and therefore eligible for state lodging rates and are exempt from state taxes.
Payment Schedule. Any applicable payment schedule shall be set forth in the purchase order and any
Transaction Document. Any Professional Services provided on a time and expense basis will be invoiced
monthly, unless otherwise agreed in the purchase order and the Transaction Document.
Milestones and deliverables for fixed fee Professional Services shall be provided in the SOW along with a
payment schedule, to be negotiated and agreed in writing. Detailed payment terms and conditions shall be
provided in the SOW.
6.
ACCEPTANCE
Acceptance of Professional Services shall occur upon HP's performance of the Professional Services, unless otherwise specified
in the relevant purchase order and Transaction Document. Acceptance of Deliverables occurs upon delivery, unless otherwise
specified in the relevant purchase order and Transaction Document. If a Deliverables acceptance procedure is set forth in the
relevant purchase order and the Transaction Document, such procedure and associated remedies do not apply to Products, even
if they can be used in connection with the Professional Services or Deliverables.
Acceptance testing requirements shall be included in the Statement of Work or applicable Transaction Document.
7.
WARRANTY
(Version# 00.3)
HP WIP ID# 176689
a.
HP warrants that it shall perform Professional Services using generally recognized commercial practices and
standards. HP shall re-perform any Professional Services not performed in accordance with the foregoing
warranty provided that HP receives written notice from Authorized User within thirty (30) days after such
Professional Services were performed. This will be Authorized User’s sole and exclusive remedy for a breach
of the foregoing warranty.
b.
HP warrants that the final Deliverable provided to Authorized User shall substantially conform to the
requirements set forth in the applicable Transaction Document for such Deliverable for a period of thirty (30)
days following the date of acceptance. If Authorized User provides written notice to HP, within thirty (30) days
after acceptance of the Deliverable, of any non-conformance with this warranty, HP shall attempt to correct
any non-conformance confirmed by HP within a reasonable time. Authorized User shall provide HP with
sufficient information to permit HP to confirm such non-conformance, and shall provide assistance and
cooperation as reasonably requested by HP to permit HP to attempt to correct such non-conformance. If HP
is unable to comply with the foregoing obligations, HP shall refund a reasonable portion of the price stated in
the Transaction Document applicable to that Deliverable upon Authorized User’s prompt return of the affected
Deliverable to HP. This will be Authorized User’s sole and exclusive remedy for a breach of the foregoing
warranty. This Deliverables warranty and associated remedies do not apply to Products or Custom Products,
even if they can be used in connection with the Professional Services or Deliverables.
c.
HP shall not be responsible for a breach of warranty that would not have occurred but for:
1.
changes to a Deliverable that were implemented by Authorized User or a third party without HP’s prior
written authorization;
2.
changes to software or hardware with which the Deliverable operates or interfaces, or on which the
Deliverable or the Professional Services otherwise rely, made by Authorized User or a third party,
including the vendors of such software or hardware without HP’s prior written authorization;
3.
errors or defects in software or hardware with which the Deliverable operates or interfaces, or on which
the Deliverable or Professional Services otherwise rely (excluding HP Branded Hardware and Software
provided in connection with the Deliverable); or
4.
improper use or operation of a Deliverable or any portion thereof.
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d.
8.
Disclaimer. HP DOES NOT WARRANT THAT DELIVERABLES WILL BE ERROR FREE OR THAT THEY
WILL BE COMPATIBLE WITH PRESENT OR FUTURE PRODUCTS OF HP OR OTHER VENDORS.
INTELLECTUAL PROPERTY INFRINGEMENT
a.
Third Party Claims. HP shall defend or settle third party claims against Authorized User brought in the country
where the Professional Services and Deliverables are provided under this Agreement resulting from: (i) HP's
infringement of any trade secrets, copyrights, trademarks, service marks or trade names alleged to have
occurred in relation to the Deliverables; or (ii) HP’s knowing infringement of the patent of a third party in
connection with the performance of the Professional Services or the provision of the Deliverables, if
Authorized User:
1.
promptly notifies HP of the claim in writing;
2.
cooperates with HP in the defense of the claim; and
3.
grants HP sole control of the defense and settlement of the claim.
HP shall pay infringement claim defense costs, HP-negotiated settlement amounts, and court-award damages.
b.
Remedies. If such a claim appears likely, HP may modify the infringing Professional Service or Deliverable,
procure any necessary rights to use, or replace the affected Professional Service or Deliverable with one that
is at least functionally equivalent. If HP determines that none of these alternatives is reasonably available,
then HP shall issue a refund to the Authorized User for a pro-rata portion of the charges paid by Authorized
User for the infringing Professional Services or Deliverable upon discontinuance of the Professional Service or
return of the Deliverable to HP.
c.
Exclusions. HP has no obligation for any claim of infringement arising from:
d.
9.
10.
1.
any third party materials;
2.
HP’s compliance with or use of Authorized User’s information, technology, designs, specifications or
instructions, including those incorporated into any Transaction Document or Deliverable;
3.
modifications made by Authorized User or a third party;
4.
Authorized User’s non-compliance with the Transaction Documents; or the licensing or use restrictions
set forth herein; or
5.
Authorized User’s use with Deliverables that are not HP Branded or third party materials.
Sole and Exclusive. This section E.8 states HP’s entire liability and Authorized User’s sole and exclusive
remedy for claims of intellectual property infringement.
LIMITATION OF LIABILITY AND REMEDIES
a.
Limitation of Liability. Except for the amounts in section E.8 above and damages for bodily injury (including
death), HP's total aggregate liability is limited to the amount paid by Authorized User for the Professional
Services or Deliverable under the Transaction Document that is the subject of the claim.
b.
Disclaimer. EXCEPT FOR CLAIMS BY A PARTY FOR INFRINGEMENT OF THEIR INTELLECTUAL
PROPERTY RIGHTS AGAINST THE OTHER PARTY, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR
ANY INCIDENTAL, INDIRECT, SPECIAL, OR CONSEQUENTIAL COSTS OR DAMAGES OF ANY KIND OR
FOR ANY DOWNTIME COSTS; LOST BUSINESS, REVENUES, OR PROFITS; FAILURE TO REALIZE
EXPECTED SAVINGS; LOSS OR UNAVAILABILITY OF OR DAMAGE TO DATA; OR SOFTWARE
RESTORATION WHETHER OR NOT THAT PARTY WAS AWARE OR SHOULD HAVE BEEN AWARE OF
THE POSSIBILITY OF SUCH COSTS, EXPENSES, OR DAMAGES.
c.
Legal Theory. TO THE EXTENT ALLOWED BY LOCAL LAW, THESE LIMITATIONS WILL APPLY
REGARDLESS OF THE BASIS OF LIABILITY, INCLUDING NEGLIGENCE, MISREPRESENTATION,
BREACH OF ANY KIND, OR ANY OTHER CLAIMS IN CONTRACT, TORT OR OTHERWISE.
TERMINATION.
(Version# 00.3)
HP WIP ID# 176689
a.
Termination for Cause. Either party may terminate this Agreement or a Statement of Work hereunder for
cause if the other party fails to comply with this Agreement after it has been notified in writing of the nature of
the failure and been provided with a reasonable time to cure the failure.
b.
Effect of Termination. Except as otherwise provided in section A.12.d, the termination of this Agreement shall
not be deemed to terminate any existing Statement(s) of Work hereunder unless otherwise agreed to by the
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parties in writing. This Agreement will be deemed in full force in effect for any existing Statement(s) of Work
that may continue. Upon termination of the Agreement, or any Statement(s) of Work, Authorized User will pay
HP for all Professional Services performed and charges and expenses incurred by HP up to the date of
termination, and Authorized User will receive all work in progress for which Authorized User has paid. Should
the sum of such amounts be less than any advance payment received by HP, HP will refund the difference
within thirty (30) days of such termination.
c.
11.
Effect of Termination of Licenses. HP may terminate Authorized User’s license in the Deliverables upon
notice for failure to comply with the terms of this Agreement after a reasonable opportunity to cure. In the
event of termination of Authorized User’s license, Authorized User will immediately destroy or return to HP the
affected Deliverables and all partial or complete copies thereof, or provide satisfactory evidence of their
destruction to HP.
HIRING OF EMPLOYEES
Authorized User agrees not to solicit, or make offers of employment to, or enter into consultant relationships with any HP
employee involved, directly or indirectly, in the performance of this Agreement for one (1) year after the date such employee
ceases to perform Professional Services under this Agreement. Authorized User shall not be prevented from hiring any such
employee who responds to a general hiring program conducted in the ordinary course of business and not specifically directed to
such HP employees.
12.
GENERAL
a.
Use. Professional Services and Deliverables acquired by Authorized User under this Agreement are solely for
Authorized User’s own use, allows and benefits and are not for resale or distribution.
b.
Similar Services. Nothing in this Agreement shall prohibit HP from providing Professional Services similar to
those provided hereunder to other customers so long as no Authorized User Confidential Information is used
in the provision of such services.
c.
Promotional Advertising/News Releases. Reference to or use of the State of Wisconsin, any of its
departments, agencies or other sub-units, or any State official or employee for commercial promotion is
prohibited. News releases pertaining to this Agreement shall not be made without prior approval of the State
of Wisconsin Department of Administration. Release of broadcast e-mails pertaining to this Agreement shall
not be made without prior written authorization of the State of Wisconsin Department of Administration.
d.
Background Checks. HP conducts background checks in accordance with HP’s policies and procedures. HP
shall be responsible for all costs and expenses associated with its performance of such checks. The
Authorized User may require HP to provide the background checks for individuals selected to work on specific
transactions and based on the background information may reject the individual and request HP to replace
that individual with another person. Any additional checks imposed by the State or Authorized User are
subject to HP’s prior review and agreement, and HP shall bear no responsibility or liability for any related
schedule delays.
e.
Authorization to install Software. During the provision of Professional Services, the Authorized User, and not
HP, shall install copies of third-party or HP Branded Software that are required and the Authorized User, and
not HP, will accept license terms accompanying such software (“Shrink-Wrap Terms”) on behalf of Authorized
User. Shrink-Wrap Terms may be in electronic format, embedded in the software, or contained within the
Software documentation.
HP shall not be penalized or determined to be in default, for any delays due to Authorized User’s review,
approval, or acceptance of the Shrink-Wrap Terms.
f.
F.
Prime Contractor. HP shall be responsible for Contract performance when HP’s subcontractors are used.
When subcontractors are used, they must abide by all terms and conditions of the Agreement and the
applicable Transaction Document or Statement of Work.
HP SOFTWARE SUPPORT OFFERINGS AND ADDITIONAL TERMS
(Foundation (9x5, 24x7) and Premier Support Features)
HP SUPPORT TERMS
In addition to HP’s standard terms and conditions included in this Agreement, the following terms are applicable. Capitalized terms not
otherwise defined in this HP Software Support Offerings and Additional Terms, section F are defined in the Agreement. For purposes of
(Version# 00.3)
HP WIP ID# 176689
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this section, “HPSW” means all products sold as part of the BTO (Business Technology Optimization), BIO (Business Information
Optimization), and BSA (Business Service Automation) businesses.
1.
2.
HP SUPPORT TERMS DEFINITIONS.
a.
HP Software Support.
The support of HP BTO Software does not include, OpenCall Software, firmware, and operating system
software associated with hardware.
b.
Updates
Support includes all Updates, which shall be deemed Software when made commercially available by HP, its
assignee, or a successor. “Update” means (i) bug fixes, patches and maintenance releases and (ii) “version
upgrades”, i.e., new product releases denoted by a change to the right of the first decimal point (e.g., v6.0 to
v6.1) and new major version releases denoted by a change to the left of the first decimal point (e.g., v6.0 to
7.0) that are generally made available by HP, its assignees or successor, to paid Support Authorized Users.
c.
Major Version
As used herein, a “Major Version” means a version of the Software that includes major enhancements or new
functionality and, which is denoted by a change to the left of the first decimal point (e.g., v6.0 to 7.0).
d.
“Minor Version” means a functional enhancement of the Software denoted by a changed to the right of the first
decimal point (e.g., v 6.1 to 6.2).
e.
"You” and “Your” refer either to an individual person or to a single legal entity or the Authorized User.
f.
Third-Party Software Products. Third Party software is deemed any product or support that does not bear a
trademark or service mark of Hewlett-Packard Company or any Hewlett-Packard Company Affiliate.
SUPPORT DELIVERABLES.
a.
Feature
License to use and copy
software product
updates
HP Software Support—specifications and features
Delivery specifications
You receive the license to use and copy the software product updates to the same extent as granted by the
original software license.
The license terms shall be as described in the HP software licensing terms corresponding to your prerequisite
underlying software license, or in accordance with the current licensing terms of the third-party software
manufacturer, if applicable, including any additional software licensing terms that may accompany such
software Updates provided under this support offering.
.
Software product and
documentation updates
As HP releases updates to certain select HP software, the latest revisions of the software and reference
manuals are made available to your system manager. For certain products, you may be able to select from a
choice of media types. Through this service offering, an access code, license key or instructions for obtaining
an access code or license key is also provided to you when required to install or run the latest software
revision.
Software product and
documentation updates
for 3rd party software
For select third party software, HP will provide the third-party updates if updates are part of this service
offering, and as such updates are made available from the third party. HP will provide instructions on how to
obtain any third-party updates provided under this service offering either directly from HP or shipped directly
from the third party.
Online software support
HP provides unlimited access to an electronic facility that includes a knowledge database with known
symptoms and solutions, software product descriptions, specifications and technical literature.
HP may also make available certain software patches for HP software, which will be posted in this electronic
facility for you to access. For select third-party software, any patches, along with instructions on how to obtain
the patch through the original software manufacturer, will be provided by HP when and if such patches are
made available through the original software manufacturer.
Self-Solve
You will receive a 24x7 intelligent response via the web within minutes of original case logging or knowledgebased query. Expanded search parameters enable flexible search methods that are easy to use. Your search
attempts are carried to case history, allowing engineers to detect the problems. If available for the specific
Software.
Access to technical
resources
You can access our technical resources via Software Support Online, telephone, or fax (where locally
available) for assistance in resolving software or operations problems.
Problem analysis and
HP provides corrective support to resolve identifiable and Authorized User-reproducible software product
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Feature
resolution
Delivery specifications
problems. We also provide support to help you identify problems difficult to reproduce. You receive
assistance in troubleshooting problems and solving configuration parameters.
Remote access
At our option and with your approval, we may use selected remote access tools, such as a telephone support
tool, to facilitate problem solving. The use of these tools allows us to work interactively with your organization
and to diagnose remotely your problem.
You can choose to use any of the selected tools to assist in the resolution of support requests. Only HPprovided/approved tools are to be used as a part of this feature.
Escalation management
HP has established formal escalation procedures to solve complex software problems. Local HP
management coordinates problem escalation, rapidly enlisting the skills of key problem solving experts
throughout HP and with select third parties.
Software features and
operational support
HP provides information on the latest product features, known problems and available solutions, and
operational advice and assistance.
Software Update
Manager
A portal enables you to have online access to your support contracts, manage your profile, and immediately
download new updates.
Installation advisory
support
Should you encounter difficulties while performing a product installation, we provide advisory support. This
includes advice on proper installation methods and updating of stand-alone applications as well as support for
products installed in a network environment.
This support feature does not include down-line loading of complete software packages or walking you
through an installation, advanced configuration, or performance tuning from start to finish. These services are
available to you for an additional charge and can be purchased separately from us.
Coverage window
The service coverage window specifies the time during which your calls may be logged.
• 9x5—Standard business hours, standard business days. Service is available between 8 a.m. and 5 p.m.,
Monday through Friday, excluding HP holidays. Calls received and answered outside this service window
will be logged the next day for which you have a service window. Response is based on the location of
your contract.
• 24x7—Service is available 24 hours per day, Monday through Sunday, including all bank, public and HP
holidays.
b.
Software
updates
General
provisions
Limitations
HP Software Support—General Provisions and Limitations
Distribution of certain third-party software updates, license agreements, and/or license keys may be made directly
from the third-party vendor to your organization.
Software updates are not included for all software products. If you are an HP TeMIP Software or HP Service Quality
Manager Software Authorized User who needs rights to new Versions, you should purchase Software updates
separately.
Software
support
Non-HP
software
HP will support specified Versions of selected non-HP software, but will not support the software any longer than the
vendor supports it.
Standard
response
time
“Response Time" goals are provided as typical initial response times to support requests. HP will use commercially
reasonable efforts to meet response time goals. Response time goals in no way create a legal requirement or
obligation for HP to provide always such response in the stated time.
Severity
Levels
Response times vary by the following Authorized User defined severity levels:
 Severity Level 1 (Critical) – There is an issue that makes a critical application totally unusable. Your business is
severely impacted.
 Severity Level 2 (Serious) – There is an issue that makes a portion of a solution’s key functionality highly unstable
and/or unusable. Your business is significantly impacted.
 Severity Level 3 (Standard) – There is an issue that needs to be resolved, but primary functionality to critical and
key solutions is not impaired. You have a low impact to your overall business.
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 Severity Level 4 (Low) – There is no impact to critical or key solutions, and primary functionality is not impaired.
You have no impact to your overall business, or you have a request for an enhancement to the application.
Term
Licenses
3.
Access to HP Support Centers for term license software may be limited to electronic.
HP SUPPORT PLANS
a.
Foundation: 9x5 and 24x7
HP 9x5 and 24x7 Software Support provides software support and access to HP Response Centers. HP Response Center engineers
work with your IT team to provide advice on software features and use, problem diagnosis and resolution, software defect identification
and access to patches. An additional fee is required for 24X7 Software Support.
Software updates are provided and HP also makes available new revisions of selected HP software and selected HP supported third
party software products, software patches and reference manuals. This includes the license to use and copy new revisions of software
products to the extent allowed by the original software license.
HP Software Support provides electronic access to comprehensive support information that allows your IT staff to locate essential product
and support information. For third-party products, this is subject to the availability of such information electronically from the vendor.
b.
Premier Support Features
HP Software Premier Support offers a flexible package of proactive and enhanced reactive deliverables, managed by either a Named
Response Center Engineer (“NRCE”) and/or a named HP Software Enterprise Support Manager (“ESM”) assigned to your account. An
NRCE is your assigned technical resource with an in-depth knowledge across select products. An ESM is your assigned alliance
manager with a broad knowledge across the entire HP portfolio. Premier Support requires an additional fee.
c.
Table of HP 9X5, 24X7, and PREMIER Support Plans
9X5
 9X5 phone-in assistance
available during business
hours.
d.
24 X 7
 24x7 phone-in assistance; available
during business hours, holidays &
weekends.
 Differentiated response times from
9x5.
 Priority support response.
 Enhanced escalation process for
24x7; Severity Level 1 issues.
PREMIER
 Option of Enterprise Support
Manager or Named Response
Center Engineer.
 Pool of Engineers.
 Specialist team days.
 Requires subscription to either
9x5 or 24x7 phone-in assistance.
Service Request Severity / Response Resolution Table
The HP Support engineer will assess the severity of the request based on Authorized User’s description of the problem and assign a
severity level as described in the criteria table below. HP Support response and resolution objectives are described in the table below.
Severity 1
Target
Response Time for
9x5 for BTO
Target
Response Time
24x7 for BTO
Resolution
(any one or a
combination of
these)
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9x5:
2 hours
Severity 2
9x5:
6 hours
Severity 3
9x5:
8 hours
Severity 4
9x5:
1 business day
24x7: 2 hours
24x7: 4 hours
24x7: 6 hours
24x7: 1 business day
▪ Satisfactory workaround is provided.
▪ Software patch is
provided.
▪ Fix incorporated into
future release.
▪ Fix or work-around
incorporated into
▪ Satisfactory work-around
is provided.
▪ Software patch is
provided.
▪ Fix incorporated into
future release.
▪ Fix or work-around
incorporated into
▪ Answer to question is
provided.
▪ Satisfactory workaround is provided.
▪ Fix incorporated into
future release.
▪ Fix or work-around
incorporated into
▪ Answer to question is
provided.
▪ Incorporate answer into
knowledge database.
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knowledge database.
4.
knowledge database.
knowledge database.
ADDITIONAL SUPPORT TERMS AND CONDITIONS.
a.
Cancellation. You may choose to cancel Support orders or delete Products from Support effective at the Software's next
Support renewal date and Authorized User agrees to use commercially reasonable efforts to provide sixty (60) days prior
notice. Fee adjustments will become effective at the Software's next renewal date. HP may discontinue Support for
Software and specific Support services no longer included in HP's Support offering upon sixty (60) days notice.
b.
Lapsed Support. If you allow support to lapse, HP shall charge You all past support fees and may charge a fifteen percent
(15%) penalty of the total past support fees to resume support. HP may further require You to perform certain hardware or
software upgrades. You may re-enroll only upon payment of the following fees: (i) the annual support fee for the renewal
term, (ii) one hundred percent (100%) of all annual support fees that would have been paid had You not terminated support
services, and (iii) the fifteen percent (15%) penalty, if applicable.
c.
End of Life Support. HP shall provide Support for the current and previous Minor Versions of the current Major release.
HP shall support the last Minor Version of a Major release for twenty-four (24) months from the date when a new Major
Version becomes generally available. If HP discontinues Software and no later Version of same is commercially available
from HP as an update under Support, provided that You have paid all applicable Support fees, HP shall provide support for
twenty-four (24) months from the date of HP’s notice of such Software discontinuance."
d.
Service Renewal Fee. Unless otherwise specified in a quotation or contract, maintenance fees are calculated based upon
the list Software License fee paid. For a period of two years after the order date, HP shall limit any increase in
maintenance fees for the applicable Software licensed to no more than five percent (5%) per year using the price paid as
the base."
e.
Upgraded Versions. For any new Versions of the Software delivered under support (“Upgraded Versions’) HP authorizes
You, for a period of six (6) months from the receipt of the License Entitlement Certificate ("Migration Period") for the
Upgraded Versions, to Use both the earlier version and the Upgraded Version of the HP Software in conjunction with the
migration of the HP Software. During the Migration Period, You shall only Use the HP Software to manage the same
environment that is being currently managed using the earlier version. At the end of the Migration Period, Your license for
the earlier version shall terminate.
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EXHIBIT A
Hewlett Packard Company
State and Local Government and Education Customer Return Policy
COVERAGE
These guidelines apply only to returns initiated by State and Local Government or Education customers purchasing
HP/Compaq branded product direct from Hewlett Packard Company (“HP”) or a customer purchase under one of HP’s State
and Local Government or Education direct contract. A direct contract is defined as a contract by and between HP and a
State, Local or Education end user. This return policy does not apply to resellers purchasing directly from HP Direct under a
contract held by and between the reseller and the end user. This return policy does not apply to loaners, early marketing
units or employee purchases administered as internal HP orders.
PRODUCTS NOT ELIGIBLE
Factory Express Services: Products that require a custom image load, asset tagging and/or special packaging are not
eligible unless the products are damaged, customer received an overage or HP incorrectly configured, ordered or shipped
product (HP error).
Refurbished products: HP/Compaq branded product
Consumable products: (i.e. printer cartridges, paper, open box software, etc.) cannot be returned to Hewlett-Packard
Third Party Options: Where returns are otherwise governed by the original manufacturer - Note: The original manufacturer
may provide their own warranties; the guidelines should be confirmed with the customer support representative when
requesting a Return Good Authorization (“RGA”).
Product not purchased from HP directly: Which means product purchased from another source, such as a reseller, distributor,
etc. not covered under an HP Direct held contract
RETURN OF PRODUCTS
Defective Product:
For product that is defective on arrival, it is recommended that customers call Technical Support at 1-800-HPINVENT to
determine if the product can be corrected. Or, the customer may utilize the 30 day goodwill return policy. Also the customer
may call the HP North America Customer Service at 1-800-652-6672 to report product that was defective on arrival and obtain
warranty service for HP Product, or obtain contact information for warranty services provided by other manufacturers.
Carrier Related Loss or Damaged Shipments:
Customers should note damages or shortages on the Bill Of Lading at the time of delivery. Within a reasonable time or not
later than 30 days from delivery, notify the HP Customer Service team and provide a copy of the Bill of Lading/Packing Slip.
Concealed damage(s) or shortage(s) (where the box is in good condition but product is missing or damaged) is an exception
and should be reported as soon as practicable after delivery in order for HP to establish the claim with the carrier.
HP is committed to customer satisfaction and values our relationship with State and Local Government and Education
Customer. To show our commitment, HP is providing a goodwill right to return, or exchange unused products within 30 days
from receipt of the product. HP does not charge a restocking or handling fee for product returned within 30 days. It’s at HP’s
sole discretion to accept return products after 30-days. If a product return is accepted after 30-days a restocking fee may
apply.
Procedures for Returns:
The State or Local Government Customer should contact the assigned Customer Service Representative by calling HP’s toll
free number, 1.800.727.2472 to coordinate returns or replacements within 30 days from receipt of product. At that time the
customer will be issued a Return Good Authorization (RGA) number that shall remain valid for a period of fifteen (15) calendar
days from the date of issuance. All materials must be received within the RGA validation period.
The HP Customer Service Representative will schedule the pickup for returns and forward an email to the person requesting
the return. Faxes can also be forwarded in place of an email. The email will include all the information regarding the return,
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including the Return Good Authorization Number ("RGA") and carrier name and date of pickup. The Customer Service
Representative will assist the Customer on any other details or specifics regarding returns, credits and refunds.
Hewlett-Packard reserves the right to refuse any return that does not meet the requirements stated below:
Package - Product must be returned in the original shipping packaging. In the event the packaging is not available or
unusable, it must be noted when requesting an RGA.
If possible, remove all mailing labels on the outside of the box that references the customer address or simply mark out the
mailing labels address with a marker. The customer will either receive a mailing label via email that should be attached to the
return products and/or will be provided a label by the carrier. Be sure to mark your RGA number on the box.
If product for more than one RGA is being returned in the same box, make sure that all RGA numbers are listed on both the
mailing label and packing list. If products are received at the Returns Center without valid RGA numbers on the mailing label,
your credit may be delayed and proof of delivery or other supporting documentation may be required.
The RGA number(s) must appear clearly on the box, as returns will not be accepted without an RGA number.
Returns must be 100% complete, unused, in original and re-salable condition, with all original packaging, manuals, registration
card(s), software, cabling and accessories. If, after the product has been returned and inspected, it is discovered that
components are missing from the return, HP reserves the right not to issue an RGA for the return of the missing components. If it
is determined that there are missing components when the product is returned, and the customer has received a credit, the
customer will be issued an invoice for the missing component. Missing components may include but are not limited to
keyboard, mouse, software, speakers, accessories, drives, memory, microprocessors, and processor boards.
RGA numbers that have been open for greater than fifteen (15) days may be cancelled and the customer subsequently
invoiced for the unreturned product. Another RGA can be requested as long as it is within the 30 days of receipt of the
product. Please note that all returned products must be credited against the account and order from which the product was
originally invoiced.
All products must be returned to the address provided by the HP Customer Service Representative via email or by the carrier:
HP Returns/Foxconn LLC
10739 W Little York RD Ste 100
Houston, TX 77401-4001
RGA (XXXXXXXX)
Please note: HP reserves the right to change any part of its return guidelines.
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