05/04/2018 Agreement MASTER AGREEMENT
BETWEEN
XEROX CORPORATION
AND
THE UNIVERSITY OF SOUTH FLORIDA BOARD OF TRUSTEES,
A PUBLIC BODY CORPORATE
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THIS MASTER AGREEMENT, including any Schedules attached hereto which are incorporated
by reference, is effective as of 4th day of May, 2018 ("Effective Date"), by and between Xerox
Corporation("Xerox"),a corporation with its corporate offices at 201 Merritt 7,Norwalk, CT 06851,
and the University of South Florida Board of Trustees,a public body corporate,4202 Fowler East Ave
— SVC 4010,Tampa,FL 33620("University").
BACKGROUND
A. This Agreement is done in accordance with the Invitation To Negotiate ITN-17-16-MH (the
"ITN")that has been awarded to Xerox,and serves as a master agreement to enable Xerox and
Customer and their respective Affiliates in different jurisdictions to contract with each other
under this Master Agreement's terms and conditions.
B. Xerox and Xerox Affiliates wish to provide Services and Products and Customer and Eligible
Entities wish to procure Services and Products and may contract for such by incorporating the
terms set forth herein and setting forth any additional terms as appropriate and required.
C. Individual standalone transactions between Xerox and Xerox Affiliates and Customer and
Eligible Entities (as applicable) for the acquisition of Products will utilize an Order. Orders
may also include the provision of Maintenance Services and Consumables.
D. The acquisition of Services will be done under the auspices of an Order, (1) for the Customer
and its Direct Support Organizations,placed under a Services Contract that is established under
the Services Module; or (11) for Non-Affiliated Eligible Entities, placed under a Services
Contract under a Services Agreement that is established using a Services Master Agreement
signed by both parties and of the type included as the SMA Module herein.
DEFINITIONS
DEF 1.DEFINITIONS
The following definitions apply unless otherwise specified in an Order. Any defined terms not
specifically identified below shall have the meaning set forth in the Agreement.
Affiliate(s)means a Xerox Affiliate(s) and/or an Eligible Entity(ies).
Agreement means this agreement and any Schedules attached hereto.
Application Software means software and accompanying Documentation specifically identified
in an Order that allows Equipment or Third Party Hardware to perform functions beyond those
enabled by its Base Software.
Assessment means a written report including Xerox's recommendations and any applicable
assessment of Customer's existing network and infrastructure and requirements,but excluding any
Customer Confidential Information, as more fully described in an Order.
Base Software means software and accompanying Documentation embedded,installed,or resident
in Equipment that is necessary for operation of the Equipment in accordance with published
specifications (i.e., operating system software).
Cartridges means Equipment components designated by Xerox as customer-replaceable units,
including copy or print cartridges and xerographic modules or fuser modules.
Charges mean the fees payable by Customer for Services or Products as specified in the applicable
Order.
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Confidential Information means information identified as confidential by the disclosing party
which is provided by the disclosing party to the receiving party including,without limitation, trade
secrets as defined by § 688.002(4), Florida Statutes. "Customer Confidential Information" means
Confidential Information belonging to Customer and includes, without limitation, Customer
Content."Xerox Confidential Information"means Confidential Information belonging to Xerox and
includes,without limitation,whether marked as such or not, any procedures manuals,Xerox Tools,
Xerox Customer Tools and Xerox Intellectual Property.
Consumables or Consumable Supplies vary depending upon the Equipment model, and include:
(1) for black and white Equipment, standard black toner and/or dry ink, black developer, Copy
Cartridges,and,if applicable,fuser agent required to make impressions;(11)for full color Equipment,
the items in (i) plus standard cyan, magenta, and yellow toners and dry inks (and their associated
developers);and,(111)for Equipment identified as"Phaser",only,if applicable,black solid ink,color
solid ink, imaging units, waste cartridges, transfer rolls, transfer belts, transfer units, belt cleaner,
maintenance kits,print Cartridges, drum Cartridges, waste trays and cleaning kits.Unless otherwise
set forth in an Order, Consumable Supplies excludes paper and staples.
Customer means University and Customer Direct Affiliate(s).
Customer Assets means all hardware,software,assets,and facilities owned,leased,rented,licensed
or controlled by Customer (including Existing Equipment and other equipment, fixtures, software,
network and work space) and any services utilized by Customer that Customer makes available to
Xerox to enable Xerox to provide Services or Products under an Order.
Customer Confidential Information has the meaning set forth in Section DEF 1 (Confidential
Information).
Customer Content means documents, materials or data that Customer provides in hard copy or
electronic format to Xerox, containing information about Customer or its clients,in order for Xerox
to provide Services or Products under an Order.
Customer Direct Affiliate means each of the Customer-identified "Direct Support Organizations"
as defined by § 1004.28, Florida Statutes, that are authorized to order hereunder.
Customer Facilities means those facilities controlled by Customer where Xerox performs Services
or provides Products.
Customer Intellectual Property means all intellectual property and associated intellectual property
rights including patent, trademark, service mark, copyright, trade dress, logo and trade secret rights
which exist and belong to Customer as of the Effective Date or that may be created by Customer
after the Effective Date, excluding Xerox Confidential Information.
Date of Installation means: (a) for Equipment (or Third Party Hardware) installed by Xerox, the
date Xerox determines the Equipment (or Third Party Hardware) to be operating satisfactorily as
demonstrated by successful completion of diagnostic routines and is available for Customer's use;
and (b) for Equipment (or Third Party Hardware) designated as "Customer Installable," the
Equipment(or Third Party Hardware) delivery date.
Diagnostic Software means software embedded in or loaded onto Equipment and used by Xerox to
evaluate or maintain the Equipment.
Documentation means all manuals, brochures, specifications, information and software
descriptions,in electronic,printed or camera-ready form,and related materials customarily provided
by Xerox to customers for use with certain Products or Services.
Effective Date means the date this Agreement goes into effect as set forth in the opening paragraph
above.
Eligible Entities mean both Customer Direct Affiliates and Non-Affiliated Eligible Entities.
Equipment means Xerox-brand equipment.
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Excluded Taxes means (1) Taxes on Xerox's income, capital, employment, (11) Taxes for the
privilege of doing business, and (111) personal property tax on Equipment rented or leased to
Customer under this Agreement.
Leased Equipment means Equipment that Xerox leases to a Customer under this Agreement and
an Order.
Maintenance Releases or Updates means new releases of the Base Software or Application
Software that primarily incorporate coding error fixes and are designated as "Maintenance
Releases."
Maintenance Services means regularly scheduled or required maintenance of Equipment to keep
the Equipment in good working order.
Module means a specific set of terms and conditions.This Agreement is grouped into Modules.The
GEN Module is applicable to all Services and Products provided hereunder,while the other Modules
are applicable specifically to Services or to certain Product order types, as specified in this
Agreement.
Non-Affiliated Eligible Entity(ies) means an entity who is not a Customer Direct Affiliate and is
authorized to order under this Master Agreement.
Order means a document that Xerox requires for processing of orders for Services, Maintenance
Services and/or Products hereunder,which may specify the contracting parties and location(s)where
the foregoing will be provided; Customer's requested shipment date; the Products that Customer
will purchase, lease, rent or license; the Services and/or Maintenance Services that Xerox will
provide; the applicable Charges and expenses; the term during which the Services, Maintenance
Services and/or Products described therein shall be provided; the Xerox-provided contract number;
and any applicable SLAB. An Order may be in the form of a Xerox Order Agreement ("XOA"), a
Services and Solutions Order("SSO"),or a Customer-issued PO.A Statement of Work may be part
of an Order for Services,but cannot function as a stand-alone ordering document.
Output of Services means electronic images created by scanning tangible documents containing
Customer Content, all full or partial copies (tangible and intangible) of Customer Content, and all
Data,reports(other than Assessments) and other documentation,photographs,images,impressions,
data and other materials(tangible and intangible)created by Xerox and delivered to Customer under
an Order,but does not include Software, or Third Party Software, or Xerox Intellectual Property.
Periodic Minimum Charge(sometimes referred to as"Monthly Minimum Charge", "MMC"or
"Lease Minimum Payment") means a fixed, regularly-recurring charge that (along with any
additional print charges)covers the cost for the Equipment's or Third Party Hardware's use and,for
Equipment, Maintenance Services. The Periodic Minimum Charge may include, if applicable, a
periodic minimum number of prints ("Minimum Prints"), meaning a fixed number of prints that
are included as part of the Periodic Minimum Charge, and other amounts as agreed to including,but
not limited to,Consumables, Software,Third Party Software, Services,lease buyout funds,monthly
equipment component amounts from previous contracts, amounts being financed or refinanced,
analyst services, and/or customer training.
Privacy Laws means all applicable state, federal, and international laws relating to data privacy,
trans-border data flows and data protection.
Product means Software,Equipment, Third Party Products or Consumables supplied by Xerox.
Purchased Equipment means Equipment or Third Party Hardware that Xerox sells to Customer
under this Agreement and an Order.
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Residuals means general ideas, concepts,know-how, methods,processes, technologies, techniques
or information in non-tangible form,which may be retained in the unaided memory of persons who
have had access to Confidential Information.
Services means managed services (e.g. copy center and mailroom services), consultative services,
and/or professional services, including,but not limited to, assessment, document management, and
managed and centralized print services, as more fully described in the applicable Order. Standard
back-office administrative and contract support functions, such as billing,contract management and
order processing, are not Services, but are included in the pricing provided for the Services
hereunder.
Services Contract means one or more Orders having the same Services Contract number. Orders
within a Service Contract are governed by the applicable terms and conditions of this Agreement
and in each such Order.
Service Level Agreements (or SLAB) means the levels of performance for the Services, if
applicable, as set out in the applicable Order.
Software means Base Software or Application Software.
Supplier Equipment means Equipment or Third Party Hardware which is supplied by Xerox to the
Customer during the term of an Order and which is subject to the Services described in the Order.
Supplier Equipment may also be Leased Equipment or Purchased Equipment.
Taxes means any and all taxes of any kind or nature, however denominated, imposed or collected
by any governmental entity, including but not limited to federal, state, provincial, or local net
income, gross income, sales, use, transfer, registration, business and occupation, value added,
excise, severance, stamp, premium, windfall profit, customs, duties, real property, personal
property,capital stock,social security,unemployment,disability,payroll,license,employee or other
withholding, or other tax, of any kind whatsoever, including any interest, penalties or additions to
tax or additional amounts in respect of the foregoing.
Third Party Funds means funds Xerox provides to Customer to acquire Third Party Hardware or
to license Third Party Software and/or to retire debt on existing Third Party Hardware.
Third Party Hardware means non-Xerox brand equipment.
Third Party Products means, collectively, Third Party Hardware and Third Party Software.
Third Party Software means non-Xerox brand software.
Transaction Taxes means any and all Taxes that are required to be paid in respect of any transaction
and resulting Charges under this Agreement and any transaction documents, including but not
limited to sales,use, services,rental, excise,transaction-based gross receipts, and privilege Taxes.
Withholding Taxes means any and all Taxes or amounts that a Customer or Eligible Entity is
required by applicable law to withhold or deduct from any Charge payable pursuant to this
Agreement.
Xerox Affiliate(s) means Xerox or the Xerox Affiliate(s) that contracts to provide Services or
Products under this Agreement.
Xerox Confidential Information has the meaning set forth in Section DEF 1 (Confidential
Information).
Xerox Customer Tools means certain proprietary software used to provide certain Services, and
any modifications, enhancements, improvements thereto and derivative works thereof, that are
licensed to Customer for their installation,use and access in accordance with the terms set forth in
Section GEN 1.9(e).
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Xerox Intellectual Property means all of all intellectual property and associated intellectual
property rights including patent, trademark, service mark, copyright, trade dress, logo and trade
secret rights which exist and belong to Xerox as of the Effective Date or that may be created by
Xerox after the Effective Date, excluding Customer Confidential Information.
Xerox Products means Equipment, Xerox-brand Software, and Consumables leased, rented,
licensed, or purchased pursuant to this Agreement.
Xerox Tools means certain proprietary tools used by Xerox to provide certain Services, and any
modifications, enhancements,improvements thereto and derivative works thereof.
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GENERAL MODULE
GENE GENERAL
The terms and conditions in this General(GEN)Module apply to acquisition of Services,
Maintenance Services, and/or Products by Customer and Eligible Entities.
GEN 1.1 Agreement Structure
a. General Contract Structure. Xerox will provide, and Customer will procure,
Services or Products in accordance with: (1) the terms and conditions stated in this
Agreement; (11) the terms set forth in a Services Contract or an individual Order.
b. Affiliates. Xerox and its Affiliates may sell Services and Products under this
Agreement; however, of Xerox's Affiliates, only Zeno Office Solutions may sell
Services and Products to the University and its Direct Support Organizations. The
University and its Direct Support Organizations, who have been identified at the
website listed in GEN l.l.b.1 below, as well as Non-Affiliated Eligible Entities,
may acquire Services and Products under this Agreement. If a Xerox Affiliate and
an Eligible Entity enter into an Order, they shall be considered "Xerox" and
"Customer",respectively, for the purposes of that Order, and receive the rights and
benefits and undertake the responsibilities as Xerox and the Customer,respectively,
under this Agreement.
1. http://www.usf.edu/business-finance/purchasing/resources/dso.aspx
C. Orders. Orders shall specify:
1. the contracting Xerox Affiliate and Customer, and location(s) where the
Services or Products will be provided;
11. the Products and Services that Xerox will provide;
iii. the applicable Charges;
iv. any terms and conditions in addition to (and permitted as deviations from
or supplements to) those specified in this Agreement;
V. the term during which the Services or Products described therein shall be
provided; and
vi. a description of the responsibilities of each party with regard to the Services
or Products to be provided.
Orders must reference this Agreement by name or assigned contract number in
order to be incorporated herein.
Xerox may accept an Order by either by its signature or by commencing
performance. Orders may be submitted by hard copy or electronic means (where
acceptable to the Xerox Affiliate agreeing to and receiving the Order) and those
submitted electronically will be considered: (1) a "writing" or "in writing"; (11)
"signed"by the Customer; (iii) an "original"when printed from electronic records
established and maintained in the ordinary course of business; and (iv) valid and
enforceable. Xerox reserves the right to review and approve the applicable
Customer's credit prior to acceptance of an Order, and the applicable Customer
authorizes the applicable Xerox Affiliate or its agent to obtain credit reports from
commercial credit reporting agencies.
d. Purchase Orders. Customer may issue purchase orders to Xerox for order entry
purposes only, specifying the requested shipment date, installation site, quantities,
bill-to address,description of Products to be delivered and term, and,if applicable,
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Trade-In Equipment. Such purchase orders shall reference the Agreement by name
or number, incorporate and be subject solely to this Agreement's terms and
conditions, and any applicable Order hereunder, notwithstanding anything
contained in such purchase order at variance with or in addition to this Agreement
and any applicable Order. Any purchase order that meets the foregoing
requirements shall be considered an Order hereunder.
e. Modules Incorporated by Reference. Orders shall incorporate the terms and
conditions of respective Modules hereunder as set forth in the chart below:
MASTER AGREEMENT MODULE APPLICABILITY BASED ON NATURE OF SOLUTION BEING OFFERED
GEN SVC EOP EL EP SW MS SMA
Applies Applies Applies Applies Applies Applies Applies Applies
Product Only
Lease I X X X X X
Purchase,with Maintenance Services X X X X X
Purchase,without Maintenance Services X X X X
Maintenance Services Only X X X
Services(Customer/Customer Direct Affiliate)
Includes Product X X X X X
Does Not Include Product X X
Services(Customer Indirect Affiliate) X
GEN 1.2 Charges and Payment
a. Charges. Charges for the particular Services and Products will be as agreed to by
the parties and set forth in an Order, and are exclusive of any and all Transaction
Taxes. Xerox's then current overtime rates will apply to services requested and
performed outside Customer's standard working hours.
b. Invoices.
i. Payment. If the invoice displays a due date,payment must be received by
Xerox on or before the due date. If the invoice does not display a due date,
payment must be received by Xerox within thirty (30) days after invoice
receipt, which is deemed to occur three (3) days from the invoice date.
Customer agrees to pay Xerox all undisputed amounts due under each
invoice via P-card, check, Automated Clearing House debit, Electronic
Funds Transfer, or direct debit from Customer's bank account. Restrictive
covenants on instruments or documents submitted for or with payments
will not reduce Customer's obligations.
ii. Disputes.If Customer disputes any amount included in an invoice,then(a)
Customer must notify Xerox of the dispute in writing, (b) such notice shall
include a description of the item(s) Customer is disputing and the reason
such item is being disputed; and (c) Customer shall promptly exercise its
best efforts to work with Xerox to resolve such dispute and pay undisputed
amounts in accordance with subsection (i) above. Regular recurring
monthly Charges (such as Lease Minimum Payments for standalone lease
transactions and Monthly Minimum Charges for Services transactions),
shall not be subject to dispute at any time.
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C. Late Payment.
1. For any payment not received by Xerox within ten (10) days after the due
date, Xerox may charge, and Customer agrees to pay, interest at a rate
established pursuant to § 55.03(1), Florida Statutes, and Non-Affiliated
Eligible Entities agree to pay the highest rate allowed by applicable law,or,
absent such law,the rate of 1.5%per month, as reasonable collection costs.
ii. Neither party shall withhold or set-off any payment due to the other party
under this Agreement or any Order, or any other agreement against any
actual or alleged claim such party may have against the other under this
Agreement or any Order,or any other agreement between the parties.
GEN 1.3 Taxes
a. Charges are exclusive of any and all Transaction Taxes. Unless Xerox has received
proof of Customer's tax exempt status, Customer will be responsible for all
Transaction Taxes.Transaction Taxes will be included in Xerox's invoice. Customer
shall not be responsible for Excluded Taxes. If a taxing authority determines that
Xerox did not collect all Transaction Taxes, Customer shall remain liable to Xerox
for such additional Transaction Taxes until six(6) months after the expiration of the
statute of limitations(as extended)for such Transaction Tax.
b. The State of Florida, and Customer as a state agency, is a tax immune sovereign
and exempt from the payment of all sales, use or excise taxes. Xerox shall pay all
personal property taxes on leased equipment,if applicable,and all taxes based upon
net income.
C. Xerox and Customer each agree to take commercially reasonable steps to cooperate
with each other in order to minimize Taxes (including Transaction Taxes and
Withholding Taxes)imposed with respect to the transactions contemplated by this
Agreement to the extent permissible under applicable law.
GEN 1.4 Mainframe Equipment Rebate
Within sixty (60) days following the end of each calendar quarter, Xerox will pay an
incentive rebate to the Customer for all mainframe units of Equipment installed hereunder
in that quarter. The rebate will be equal to six percent(6%) of the "load price" (with such
"load price" being the USF Purchase Price, as shown in the related Major Account Lease
Pricing Exhibit) for all such Equipment.
GEN 1.5 Notices
Any notice,report, approval or consent required or permitted hereunder shall be in writing and
will be deemed to have been given upon receipt or refusal if. (1)delivered personally,by courier
or by express service; (11) mailed by registered or certified mail postage prepaid; or(111) sent by
facsimile followed by ahard-copy confirmation,to the respective addresses of the parties set forth
below or as may be otherwise designated by like notice from time to time.
If to Xerox: Xerox Corporation
1511 N Westshore Blvd Suite
225 Tampa, FL 33607
Attention: Christopher McPherson
Telephone: 813-636-4509
With a copy to: Xerox Corporation
45 Glover Avenue
Norwalk, CT 06856
Attention: Office of General Counsel
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If to Customer: University of South Florida
4202 East Fowler Ave— SVC
4010 Tampa, FL 33620
Attention: Carl Smith
Telephone: (813) 974-1047
Email: techcontracts&)usf.edu
With a copy to: Lori Stevens
(813) 974-6627
itnurchasin�-Y a>,usf.edu
Invoices are not considered notices under this Agreement and are governed by provisions
relating specifically thereto.
GEN 1.6 Mutual Responsibilities
Each party agrees:
a. that neither party grants the other party the right to use its trademarks, trade dress,
service marks,trade names,or other designations in any promotion or publication;
b. each party grants the other only the licenses and rights explicitly set forth herein or
in an Order and no other licenses or rights (including licenses or rights under
patents, copyrights or other intellectual property) are granted; and
C. unless otherwise set forth in an Order, in the event of a disassociation of a Direct
Support Organization, Customer shall notify Xerox in writing and such
disassociated Direct Support Organization will not be allowed to enter into
subsequent or new Orders;however,Products installed or Services being provided
to such disassociated entity under an existing Order shall retain the pricing and
terms and conditions thereof until the Order's initial term expires.
GEN 1.7 Customer Responsibilities
Customer agrees to perform its responsibilities under this Agreement and the applicable
Order in support of the Services or Products in a timely manner. Customer agrees:
a. that Products acquired hereunder are ordered for Customer's own business use
(rather than resale)and will not be used for personal,household or family purposes;
b. to provide Xerox with timely and sufficient access to Customer Facilities,including
network access where reasonably required, for Xerox to fulfill its obligations and
provide Services or Products under an Order and to ensure that Customer Facilities
are safe for Xerox personnel to work in and fully comply with all applicable laws
and regulations;
C. to permit Xerox to use or access Customer Assets,in each case as needed by Xerox
to perform Services or provide Products under an Order, and will grant Xerox
sufficient rights to use, access and,if agreed, modify the same;
d. to bear the costs of providing access to and use of the Customer's Facilities and
Customer Assets,without charge to Xerox;
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e. to acquire or continue maintenance,repair and software support services,without
charge to Xerox, for all Customer Assets that Customer permits Xerox to use or
access;
f. to provide Xerox with access to appropriate members of Customer personnel,
as reasonably requested by Xerox,in order for Xerox to perform the Services or
provide Products;
g. to respond to and provide such documentation, data and other information as
Xerox reasonably requests in order for Xerox to perform the Services or
provide Products;
h. to contract for the minimum types and quantities of Equipment and Consumables
required by Xerox to perform the Services (as set out in the applicable Order);
1. that, as between Xerox and Customer, Customer alone is responsible for backing
up its Customer Content and Xerox shall not be responsible for Customer's failure
to do so.
j. that Xerox is not responsible for determining whether Customer Content that may
be provided to Xerox for duplication, scanning or imaging may be duplicated,
scanned, or imaged without violating a third party's intellectual property rights.
GEN 1.8 Warranties
a. Mutual Warranties. Each party represents and warrants to the other, as an
essential part of this Agreement, that:
i. it is duly organized and validly existing and in good standing under the laws
of the state of its incorporation or formation;
11. this Agreement has been duly authorized by all appropriate action for
execution;
in the individuals signing this Agreement are duly authorized to do so;
IV. to its knowledge,it is under no obligation or restriction and will not assume
any such obligation or restriction, that does or would in any way interfere
or conflict with or would present a conflict of interest concerning the
obligations set forth under this Agreement; and
V. it will comply with all laws applicable to the performance of its obligations
under this Agreement.
b. Xerox Warranties.
1. Services Warranty.Xerox warrants to the Customer that the Services and
Maintenance Services will be performed in a professional and workmanlike
manner by Xerox personnel with appropriate training, experience and skills
in accordance with the applicable Order. If the Services or Maintenance
Services do not meet specifications, Customer will notify Xerox in writing
detailing its concerns and,within 10 days following Xerox's receipt of such
notice, Xerox and Customer will meet, clarify the Customer's concern(s)
and begin to develop a corrective action plan. As Customer's exclusive
remedy for Xerox's non-compliance:
(a) if a specific remedy is set out in a particular Order, that remedy shall
apply;
(b) if no specific remedy applies,Xerox will correct the failure within sixty
(60) days of finalizing the plan, or in such other time period
FL-University of So.Florida Master Agreement 11 11/24/2017
agreed to in writing by the parties. If Xerox fails to correct the failure
within the stated timeframe, Customer may terminate the affected
I Maintenance Services, and/or related portions of the Services,
Products.
11. Equipment Warranty. Any Equipment warranty to which Customer is
entitled shall commence upon the Date of Installation. Use by Customer
of consumables not approved by Xerox that affect the performance of the
Equipment may invalidate any applicable warranty.
iii. Third Party Product Warranty. Where Xerox in its sole discretion selects
and supplies Third Party Products, Xerox warrants they will operate
substantially in conformance with applicable SLAB or other requirements
in the Order.Customer's sole remedy for breach of this warranty is to return
the Third Party Product to Xerox and then receive a refund of any fees paid
for such non-conforming Third Party Product, less a reasonable usage fee.
If Customer requests a specific Third Party Product, Xerox will pass-
through as permitted any third party warranties.
iv. Exclusions. Xerox shall not be responsible for any delay or failure to
perform the Services or provide Products,including meeting specifications
or achieving any associated SLAB and other activities in the applicable
Orders,to the extent that such delay or failure is caused by:
(a)the Customer's failure or delay in performing its responsibilities under
this Agreement or the respective Order;
(b)reasons outside Xerox's reasonable control, including Customer
Assets, Customer Content, or delays or failures by Customer's agents,
suppliers or providers of maintenance and repair services for Customer
Assets; or
(c)unauthorized modifications to Equipment, Third Party Hardware,
Existing Equipment or the Output of Services.
V. Disclaimer.
(a)TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE
LAW, THE EXPRESS WARRANTIES SET FORTH IN THIS
AGREEMENT AND ANY ORDER HEREUNDER ARE IN LIEU OF
ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, AND
XEROX DISCLAIMS AND CUSTOMER WAIVES ALL OTHER
WARRANTIES INCLUDING ANY WARRANTY OF
MERCHANTABILITY,NON-INFRINGEMENT OR FITNESS FOR
A PARTICULAR PURPOSE.
(b)The warranties set forth in this Agreement and any Order hereunder are
expressly conditioned upon the use of the Services, Products and
Output of Services for their intended purposes in the systems
environment for which they were designed and shall not apply to any
Services, Products or Output of Services which have been subject to
misuse, accident, alteration or modification by the Customer or any
third party.
GEN 1.9 Intellectual Property Ownership
a. Customer Intellectual Property. Ownership of and title to all Customer
Intellectual Property will remain with Customer. Customer grants to Xerox a non-
exclusive,royalty-free, fully-paid up,worldwide license to use Customer
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Intellectual Property only for purposes of providing Services or Products under this
Agreement or an Order.Xerox shall not use Customer Intellectual Property for any
other purpose. Xerox agrees not to decompile or reverse engineer any Customer
Intellectual Property. Except as expressly set forth in this Agreement, no rights to
any Customer Intellectual Property are granted to Xerox.
b. Xerox Intellectual Property.Ownership of and title in and to all Xerox Intellectual
Property will remain with Xerox or its licensors. Customer shall not use Xerox
Intellectual Property for any purpose except as expressly set forth in this Agreement
or in an Order. Customer agrees not to decompile or reverse engineer any Xerox
Intellectual Property. Except as expressly set forth in this Agreement, no rights to
any Xerox Intellectual Property are granted to Customer.
C. Ownership of Output of Services and License to Xerox Intellectual Property.
Except to the extent that the Output of Services may incorporate any Xerox
Intellectual Property, the Output of Services shall be the sole and exclusive
property of Customer, and Xerox shall gain no rights therein, except as may be
required for Xerox to perform Services.Xerox hereby assigns,grants,conveys,and
transfers to Customer all rights in and to the Output of Services (excluding any
incorporated Xerox Intellectual Property).To the extent that the Output of Services
may incorporate any Xerox Intellectual Property, Xerox grants Customer a non-
exclusive,perpetual (subject to revocation for default under this Agreement or the
applicable Order), fully paid-up,worldwide right to use,display and reproduce the
Xerox Intellectual Property only as required for use of the Output of Services for
Customer's customary business purposes and for the purpose set forth in the
applicable Order and not for resale, license or distribution outside of Customer's
organization.
d. Xerox Tools.Xerox Tools may be used by Xerox to provide certain Services.Xerox
and its licensors will,at all times,retain all right,title and interest in and to the Xerox
Tools and, except as expressly set forth herein,no rights to Xerox Tools are granted
to Customer. Xerox Tools will be installed and operated only by Xerox or its
authorized agents.Customer will not decompile or reverse engineer any Xerox Tools.
Customer will have access to data and reports generated by the Xerox Tools and
stored in a provided database as set forth in the applicable Order,but Customer will
have no rights to use, access or operate the Xerox Tools. Xerox may remove the
Xerox Tools at any time in its sole discretion, provided that the removal of Xerox
Tools will not affect Xerox's obligations to perform Services, and Customer shall
reasonably facilitate such removal.
e. Xerox Customer Tools. Xerox grants to Customer a non-exclusive, non-
transferable, non-assignable (by operation of law or otherwise) license to install,
use and access the Xerox Customer Tools only for the purpose of receiving the
Services for which they were provided. Customer has no other rights to the Xerox
Customer Tools and, in particular, may not: (1) distribute, copy, modify, create
derivatives of, decompile, or reverse engineer the Xerox Customer Tools, except
as permitted by applicable law; or, (11) allow others to engage in same. Title to the
Xerox Customer Tools and all copyrights and other intellectual property rights in
it shall, at all times, reside solely with Xerox and its licensors. Certain Xerox
Customer Tools may be subject to mandatory third party flow-down terms and
conditions,which will be provided separately with the applicable Xerox Customer
Tool(s).
f. Data Collection and Use. When the Xerox Tools or Xerox Customer Tools are
installed on Customer's network, the Xerox Tools or Xerox Customer Tools
automatically collect data("Data") from all of the Equipment and Third Party
FL-University of So.Florida Master Agreement 13 11/24/2017
Hardware that appear on Customer's network or are locally connected to another
device on Customer's network. The Data is transmitted to a remotely hosted server
that hosts those Xerox Tools that perform analysis and reporting functions. Data
may include, but is not limited to, product registration, meter read, supply level,
device configuration and settings, software version, and problem/fault code data.
The automatic data transmission capability will not allow Xerox to read, view or
download the content of any of Customer's documents residing on or passing
through the Equipment or Third Party Hardware or Customer's information
management systems. Data may be used by Xerox for billing, report generation,
supplies replenishment, ongoing and future site optimization and product
improvement purposes.
GEN 1.10 Indemnification
a. General Indemnification.Xerox(and its Affiliates) and,to the extent allowed by
applicable law, Customer shall indemnify, defend and hold harmless the other
party and respective officers,directors, employees, agents,successors and assigns,
from and against all claims by a third party for losses, damages, costs or liability
of any kind (including expenses and reasonable legal fees) that a court finally
awards such party ("Claims") for bodily injury (including death) and damage to
real or tangible property to the extent proximately caused by the indemnifying
party (or its Affiliates') negligent acts or omissions or willful misconduct, in
connection with this Agreement or any Order hereunder. Nothing in this
Agreement shall be construed as an indemnification of Xerox by Customer.
Customer warrants and represents that as a sovereign entity, it is self-insured.
Customer assumes any and all risk of personal injury and property damage
attributable to the negligent acts or omissions of Customer and the officers,
employees,and servants thereof while acting within the scope of their employment
by Customer. Xerox and Customer agree that nothing contained herein shall be
construed or interpreted as (a) the consent of Customer and State of Florida, their
agents and agencies to be sued except as provided for herein; or (b) a waiver of
sovereign immunity by Customer and the State of Florida beyond that provided in
§ 768.28, Florida Statutes.
b. Intellectual Property Infringement Indemnification.
1. Xerox Indemnification.Xerox shall indemnify, defend and hold harmless
Customer, and their respective officers, directors, employees, agents,
successors and assigns, for all Claims that Xerox Products, Output of
Services(excluding Customer Content),or Services("Indemnified Items")
infringe a third party's patent or copyright or other intellectual property rights
or otherwise misappropriates a third party's intellectual property. However,
Xerox shall have no obligation under this subsection to the extent any Claim
is based on or arises out of any: (1)modification or alteration to such Xerox
Products, Output of Services or Services not approved in writing by Xerox;
(2) any combination or use of the Xerox Products, Output of Services, or
Services with any product, service, data, or apparatus that Xerox did not
provide,or was not approved in writing by Xerox,if such combination forms
the basis of such Claim; (3) use of the Xerox Products, Output of Services,
or Services not in accordance with the applicable Documentation; (4)
Customer's failure to use corrections or enhancements to the Xerox Products,
Output of Services,or Services provided by Xerox,if such failure forms the
basis of such Claim; (5) Services performed using Customer Assets,
Customer Content or other materials provided to Xerox by Customer for
which Customer failed to
FL-University of So.Florida Master Agreement 14 11/24/2017
provide sufficient rights to Xerox; or(6) Products or Services infringement
resulting from Customer's direction, specification,or design.
If a Claim is made or appears likely to be made, Customer agrees to permit
Xerox, at Xerox's sole option and expense, to obtain the right to enable
Customer to continue to use such Indemnified Items, to make them non-
infringing or to replace them with items that are at least functionally
equivalent.If Xerox determines that none of these alternatives is reasonably
available,Customer agrees to return such Indemnified Items to Xerox upon
Xerox's written request.Xerox will then give Customer a credit equal to the
amount Customer paid Xerox for such Indemnified Items,less a reasonable
usage fee.
C. Indemnification Procedures. The indemnification obligations set forth above in
subsections GEN 1.10(a) and(b) are subject to the following:
1. Customer shall give Xerox prompt written notice of any Claim for which it
seeks indemnification and provide copies of such Claim and any documents
relating to the action that is the basis of the Claim;
11. Xerox shall have sole control over the defense and settlement of such
Claim, provided that the Customer shall be entitled to participate in the
defense of such Claim and to employ counsel at its own expense to assist
in the handling of such Claim;
iii. Customer shall provide all reasonable cooperation requested by Xerox in
order to properly defend such Claim at Xerox's own expense;
iv. Xerox shall obtain the prior written approval of the Customer before
entering into any settlement of such Claim, if such settlement would
adversely affect any rights of or impose any obligation or liability on the
Customer; and
V. any failure or delay to notify Xerox under Section GEN 1.10(c)(i) above
shall not relieve Xerox of its obligations under this Agreement or the
respective Order except to the extent the failure or delay is materially
prejudicial to Xerox's defense of the claim.
GEN 1.11 Limitation of Liability
Except as prohibited by law, the following limitations apply:
a. NO CONSEQUENTIAL DAMAGES. SUBJECT TO SECTION GEN 1.11.c., IN
NO EVENT WILL EITHER PARTY OR ITS AFFILIATES OR THEIR RESPECTIVE
OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS BE LIABLE TO THE
OTHER PARTY OR ITS AFFILIATES OR THEIR RESPECTIVE OFFICERS,
DIRECTORS, EMPLOYEES OR AGENTS FOR ANY INDIRECT, INCIDENTAL,
EXEMPLARY, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES,
INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS,
REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT
(INCLUDING NEGLIGENCE AND INDEMNITY) OR OTHERWISE, AND EVEN IF
SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
b. LIMITATION ON RECOVERY. SUBJECT TO SECTION GEN 1.11.c., THE
TOTAL AGGREGATE LIABILITY OF EITHER PARTY(AND ITS AFFILIATES AND
THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS)
FOR DIRECT DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED TO
THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING
NEGLIGENCE AND INDEMNITY), OR OTHERWISE, WILL BE
FL-University of So.Florida Master Agreement 15 11/24/2017
LIMITED TO AN AMOUNT EQUAL TO THE LESSER OF THE AMOUNT OF ALL
CHARGES PAID BY CUSTOMER TO XEROX UNDER THE ORDER UNDER
WHICH THE CLAIM AROSE (LESS PASS THROUGH EXPENSES SUCH AS,
WITHOUT LIMITATION, POSTAGE) IN THE TWELVE (12) MONTHS PRIOR TO
THE DATE UPON WHICH THE CLAIM AROSE OR $200,000. THE EXISTENCE
OF MULTIPLE CLAIMS OR SUITS UNDER OR RELATED TO THIS AGREEMENT
AND ANY ORDERS HEREUNDER WILL NOT ENLARGE OR EXTEND THIS
LIMITATION OF DAMAGES. NOTWITHSTANDING THE FOREGOING, NOTHING
SET FORTH IN THIS SECTION GEN 1.11.b. SHALL LIMIT CUSTOMER'S
OBLIGATION TO PAY XEROX ALL CHARGES AND EXPENSES FOR
PRODUCTS AND SERVICES PROVIDED UNDER THIS AGREEMENT.
C. EXCEPTIONS. THE LIMITATIONS SET FORTH IN SECTION GEN 1.11 SHALL
NOT APPLY WITH RESPECT TO:
i. EITHER PARTY'S WILLFUL MISCONDUCT OR FRAUD;
ii. A PARTY EXCEEDING ITS RIGHTS, IF ANY, TO THE OTHER PARTY'S
INTELLECTUAL PROPERTY OR MISAPPROPRIATING OR INFRINGING THE
OTHER PARTY'S INTELLECTUAL PROPERTY RIGHTS AS GRANTED
UNDER THIS AGREEMENT. IN SUCH CASE, CUSTOMER'S LIABILITY
SHALL NOT EXCEED $200,000 PER CLAIMANT OR $300,000 IN
AGGREGATE.
GEN 1.12 Term and Termination
a. Term. This Agreement shall commence on the Effective Date and continue for a
term of five (5)years. The Customer may renew this Agreement for two additional
one (1)year periods upon written notice at least sixty(60)days prior to the
upcoming expiration.Each Order hereunder shall have its own term. In the event
the Agreement expires or is terminated, each Order in effect at such time shall
remain in full force and effect until the end of its term(including any extensions or
renewals thereof) and shall at all times be governed by, and be subject to,the terms
and conditions of this Agreement as if the Agreement were still in effect.
Termination of any Order shall not affect this Agreement or any other Orders then
in effect.
b. Termination for Cause
This Agreement may be terminated by either party immediately, or on expiration
of the notice period specified in the notice,by written notice to the other party:
1. if the other party commits a material breach of this Agreement(other than
as set forth in subsections ii. and iii. below) that is capable of being
remedied and such breach is not remedied within thirty(30)days following
the service of written notice related thereto;
ii. if Xerox is the party in material breach and the material breach relates to
the Services,Xerox shall have 60 days to cure the material breach;
iii. if Xerox does not receive any payment within fifteen (15) days after the
date it is due, in which case Customer will be considered to be in default;
or
iv. if the other party commits a material breach of this Agreement that is not
capable of being remedied;.
C. Survival. In the event of any termination or expiration of this Agreement,
any terms and conditions of this Agreement which by their nature extend beyond
termination or expiration of the Agreement will remain in effect until fulfilled, and apply to
the parties' and their respective successors and assigns.
FL-University of So.Florida Master Agreement 16 11/24/2017
GEN 1.13 Confidentiality
a. Obligation. Customer and Xerox acknowledge that, during the term of this
Agreement and any Order hereunder,each party may be provided with or have access
to, certain Confidential Information belonging to the other party. The parties will
ensure that their employees comply with their respective corporate policies and
procedures regarding the disclosure of Confidential Information.The parties agree to
use the Confidential Information provided under this Agreement only for purposes
directly related to the performance of obligations under this Agreement. The
receiving party may not disclose Confidential Information to any third party unless
such third party has a need to know such Confidential Information in order to perform
under this Agreement and has agreed in writing to be bound by terms no less
restrictive than those set forth herein.Each party shall be responsible for any breaches
of the obligations in this Section by such third parties or employees. The receiving
party shall protect the disclosing party's Confidential Information with the same
degree of care that it uses to protect its own confidential information of like
importance, but not less than reasonable care. Xerox may disclose the identity and
address of Customer to Xerox's third party licensors if required for royalty reporting
purposes.
b. Unilateral Cancellation/Public Records Law. Notwithstanding any
confidentiality provisions in this Agreement, as an agency or subdivision of the State
of Florida, Customer is subject to Chapter 119, Florida Statutes ("Florida Public
Records Act").As such,this Agreement and all associated materials and information
may be considered a "public record." While Customer will endeavor not to
voluntarily disclose this Agreement or other associated information, it reserves the
absolute right to interpret its legal obligations under the Florida Public Records Act.
Any necessary disclosure of this Agreement or any other information pursuant to a
public records request shall not be considered a breach of any confidentiality
provisions.
Further, Xerox may be considered a contractor of a public agency as defined in §
119.0701(1)(b), and may be required by law to keep and maintain public records
related to its services;provide copies of, or allow inspection of, such public records
to Customer upon request;and ensure that exempt or confidential and exempt records
are not disclosed except as authorized by law.Upon completion of this Agreement or
performance of the services, Xerox may transfer all public records related to the
services to Customer, at no cost to Customer, or may keep such public records in
accordance with the applicable state record retention requirements.If Xerox chooses
to transfer such records to Customer,Xerox shall destroy any duplicate records in its
possession that are exempt or confidential and exempt from disclosure.
CUSTOMER CANNOT PROVIDE LEGAL ADVICE TO
XEROX REGARDING ITS LEGAL DUTIES. HOWEVER,
XEROX MAY CONTACT CUSTOMER'S CUSTODIAN OF
PUBLIC RECORDS AT USFPURCHAS "( S
OR 813-974-2481 IF XEROX HAS QUESTIONS
REGARDING THE APPLICATION OF CHAPTER 119,
FLORIDA STATUTES TO XEROX'S DUTY TO PROVIDE
AND MAINTAIN PUBLIC RECORDS RELATING TO THIS
AGREEMENT.
Customer may unilaterally cancel the Agreement for refusal by Xerox to comply with
the provisions of Chapter 119, Florida Statutes.
FL-University of So.Florida Master Agreement 17 11/24/2017
C. Exclusions. The obligations of confidentiality will not apply to any Confidential
Information that: (1)was publicly available prior to, at the time of,or subsequent to
the date of disclosure through no fault of the receiving parry; (11) was rightfully in
the receiving party's possession or the possession of any third party free of any
obligation of confidentiality; or (111) was developed by the receiving party's
employees or agents independently of and without reference to any of the disclosing
party's Confidential Information.
d. Return of Information. Upon termination or expiration of an Order or Services
Contract, except as otherwise set forth in this Agreement, the receiving parry will
deliver or return to the disclosing party,or destroy(at the disclosing party's request)
all Confidential Information of the disclosing party that is related to such terminated
or expired Order or Services Contract and is in the possession of the receiving parry;
provided, however, that terms regarding removal of Customer Confidential
Information stored on hard drives on Equipment owned by Xerox, and any costs
associated with such removal,will be set forth in the applicable Order.
e. Duration of Confidentiality Obligation. The obligations set forth in this Section
shall continue for 1 year after termination or expiration of this Agreement or the
Order under which such Confidential Information was disclosed,whichever occurs
later. Notwithstanding the foregoing, unless one or more of the exclusions in
Section GEN 1.13(b) applies, the Customer's confidentiality obligations with
respect to Xerox Intellectual Property, Xerox Tools and Xerox Customer Tools
shall continue so long as they continue to be trade secrets as defined by §
688.002(4), Florida Statutes, as applicable.
f. Customer Technical Confidential Information. The parties do not intend for
Customer to disclose confidential technical information,which includes,but is not
limited to,computer programs,source code and algorithms,and Customer will only
disclose such information under a separate negotiated non-disclosure agreement.
g. Residual Rights. Each parry understands that the other parry shall be free to use,
for any purpose,the Residuals resulting from access to Confidential Information as
a result of the performance of its obligations under an Order, provided that such
party shall maintain the confidentiality of such Confidential Information as
provided herein. Neither parry shall pay royalties for any work resulting from the
use of Residuals. However, the foregoing shall not be deemed to grant either parry
a license under the other's copyrights or patents.
GEN 1.14 Data Protection/Privacy
a. Customer as Controller. The parties acknowledge and agree that Customer will
be the controller of the Customer Content for purposes of all Privacy Laws, with
rights to determine the purposes for which the Customer Content is processed and,
so long as not inconsistent with, or an expansion of, Xerox's Services obligations
hereunder, the means of processing, and nothing in this Agreement will restrict or
limit in any way Customer's rights or obligations as owner or controller of the
Customer Content. As such controller of the Customer Content, Customer directs
Xerox to process the Customer Content exclusively in accordance with the terms of
this Agreement, applicable Order and subsequent instructions from Customer, so
long as such instructions are not inconsistent with or an expansion of Xerox's
Services obligations hereunder. Customer agrees to comply with all applicable
Privacy Laws.
FL-University of So.Florida Master Agreement 18 11/24/2017
b. Xerox Compliance.Xerox's processing of the Customer Content is,and will at
all times be, conducted in compliance with Xerox's privacy policies and with
applicable Privacy Laws.
C. Xerox's Safeguards.Xerox has adopted reasonable physical,technical and
organizational safeguards designed to prevent accidental,unauthorized or unlawful
loss, disclosure, access, transfer or use of Customer Content. Xerox will promptly
notify,but in no event longer than five(5)days,Customer in the event of any known
unauthorized access to or use of the Customer Content.
d. Customer Compliance. Customer represents that it has been given or has
obtained all consents of subjects of personal data as may be required by applicable
Privacy Laws for the performance of the Services. In particular, as required by the
applicable Privacy Laws in the states in which the Services are performed, Xerox
and Customer acknowledge:
i. the scope and reasons for the management of personal data;
11. the legal basis for the sharing of this personal data;
iii. the consequences resulting from any refusal to share any personal data;
iv. the scope and extent of the exchange of personal data in support of this
Agreement and the applicable Order(s); and
V. the rights granted to the parties under the applicable Privacy Laws and this
Agreement.
e. Consent.Where applicable Privacy Laws require the Customer's express consent
to be given to Xerox in order to process personal data, Section GEN 1.14(a) shall
be sufficient for such purpose. The Customer also expressly consents to the
processing of personal data by Xerox's subcontractors or other third parties who
need to process such personal data in performing the Services, so long as such sub-
contractors have agreed to the confidentiality and data protection/privacy
provisions of this Agreement.
GEN 1.15 Governing Law and Jurisdiction
a. This Agreement, each respective Order, and any dispute or claim arising out of or
in connection with this Agreement or such Order, shall be governed by and
construed in accordance with the laws of Florida, without regard to its conflict of
law provisions and submitted to the exclusive jurisdiction of the federal and state
courts of Tampa, Florida.
b. The parties consent to the exclusive jurisdiction of the courts specified in
subsection a above, and expressly waive any objection to the jurisdiction or
convenience of such courts.
C. Waiver of Jury Trial. In any action to enforce this Agreement or any Order
hereunder, the parties agree to waive their right,if any, to a jury trial.
GEN 1.16 Intentionally Omitted
GEN 1.17 Force Majeure
a. General. Except for Customer's payment obligations,neither party shall be liable
to the other during any period in which a party's performance is delayed or
prevented, in whole or in part, by a circumstance beyond its reasonable control,
which circumstances include,but are not limited to,the following: act of God(e.g.,
flood, earthquake,wind); fire;war; act of a public enemy or terrorist; act of
FL-University of So.Florida Master Agreement 19 11/24/2017
sabotage; strike or other labor dispute; riot; misadventure of the sea; inability to
secure materials and/or transportation; or, a restriction imposed by legislation, an
order or a rule or regulation of a governmental entity (a"Force Majeure Event").
If such a circumstance occurs,the party whose performance is delayed or prevented
shall undertake reasonable action to notify the other party thereof.
b. Avoidance of Breach. Customer shall not be in breach of this Agreement in
connection with a payment delay due to a Force Majeure Event: (1) if Customer
undertakes all reasonable efforts to continue or resume its payment obligations;and
(11) Customer does the earlier of the following: (a) immediately pays all delayed
payments and recommences regular payments once the Force Majeure Event no
longer delays or prevents Customer's ability to make payments, or (b) pays all
delayed payments and recommences regular monthly payments within sixty (60)
days after the date the Force Maj eure Event first delayed or prevented payment, in
either case not later than thirty (30) days following the end of the term of the
applicable Order.
GEN 1.18 Intentionally Omitted
GEN 1.19 Insurance Coverage.
Xerox on behalf of itself and its Affiliates shall maintain the following limits of insurance
coverage during the term of this Agreement:
a. Where required by law, Workers Compensation, at statutory limits;
b. Employers Liability, with $1,000,000 limit of liability or at statutory limits,
whichever is greater;
C. Commercial General Liability,including Products-Completed Operations coverage
and Broad Form Contractual, with $2,000,000 limit of liability per occurrence for
Bodily Injury and Property Damage;
d. Where applicable, Automobile Liability, with a combined single limit of liability
of$2,000,000 per accident or at statutory limits,whichever is greater;
e. Umbrella Liability,with$5,000,000 limit of liability per occurrence; and
f. Professional Liability,with$2,000,000 limit of liability per occurrence.
GEN 1.20 Audits
Xerox will keep accurate records in support of the Charges for Services performed and
Products provided hereunder and shall,upon reasonable written request,make such relevant
records available to Customer for audit. Such records shall be kept for a period of three (3)
years following the invoice date for Services performed or Products provided, as the case
may be, to which such records apply (or for such longer period as required by applicable
law). Notwithstanding the foregoing, Xerox shall not be required to disclose information
deemed by Xerox to be confidential or proprietary (e.g., labor costs, benefit loads, parts
costs, equipment costs, etc.). In addition, Customer will:
a. provide at least sixty (60) days written notice to Xerox prior to any audit being
conducted;
b. ensure that any audit, inspection or verification is conducted during the hours of
normal operation of the Xerox's locations (or as otherwise agreed by the parties
from time to time);
C. as far as is commercially practicable,minimize disruption to Xerox's business;and
d. limit the frequency of such audits to no more than once per contract year.
FL-University of So.Florida Master Agreement 20 11/24/2017
Each party shall bear its own expenses in connection with such audit and ensure that any
such audit is subject to all auditors executing appropriate confidentiality agreements with
Xerox.
GEN 1.21 Compliance with Laws and Policies
a. Compliance with Laws.Xerox and Customer shall comply with all applicable
laws and regulations in the performance of their respective obligations under this
Agreement. It is the Customer's responsibility to ensure that the Customer's
Facilities meet applicable health and safety requirements.
b. Internal Policies. Xerox agrees to comply with Customer's internal policies
provided to Xerox by the Customer(University Customer's regulations and policies
can be found at http://regulationspolicies.usf edu/) regarding security and safety at
the Customer's Facilities that are reasonable and customary under the
circumstances and which do not conflict with the terms of this Agreement.
GEN 1.22 Funding (Applies To State &Local Government Customers Only)
Customer represents and warrants that all payments due and to become due during
Customer's current fiscal year are within the fiscal budget of such year and are included
within an unrestricted and unencumbered appropriation currently available for the
acquisition of the Products, and it is Customer's intent to use the Products for the entire
initial term and to make all payments required under the Agreement or an Order. If (1)
through no action initiated by Customer, Customer's governing body does not appropriate
funds for the continuation of the Agreement or an Order for any fiscal year after the first
fiscal year and has no funds to do so from other sources, and (11) Customer has made a
reasonable but unsuccessful effort to find an assignee within Customer's general
organization who can continue the Agreement or an Order,the Agreement or the Order may
be terminated. To effect this termination, Customer must, 30 days prior to the beginning of
the fiscal year for which Customer's governing body does not appropriate funds for the
upcoming fiscal year, notify Xerox that Customer's governing body failed to appropriate
funds and that Customer has made the required effort to find an assignee. Customer's notice
must certify that canceled Equipment is not being replaced by equipment performing similar
functions during the ensuing fiscal year.Customer agrees to release the Equipment to Xerox
and, when returned, the Equipment will be in good condition and free of all liens and
encumbrances. Customer will then be released from any further payments obligations
beyond those payments due for the current fiscal year.
GEN 1.23 Miscellaneous
a. Construction and Interpretation.This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, and all of which together
shall constitute one and the same instrument. The section and paragraph headings
contained herein are for convenience of reference only and shall not be considered
as substantive parts of this Agreement. The use of the singular or plural form shall
include the other form and the use of the masculine,feminine or neuter gender shall
include the other genders. In construing or interpreting this Agreement, the word
"including" shall not be limiting and the word "hereunder" shall mean under this
Agreement. The parties agree that this Agreement shall be fairly interpreted in
accordance with its terms without any strict construction in favor of or against either
party and that ambiguities shall not be interpreted against the drafting party.
b. Copies of Agreement. Except as required by local law,both parties agree that any
reproduction of this Agreement made by reliable means (for example, photocopy
or facsimile) shall be considered an original. Xerox may retain a hardcopy,
electronic image,photocopy or facsimile of this Agreement and each
FL-University of So.Florida Master Agreement 21 11/24/2017
Order hereunder, which shall be considered an original and shall be admissible in
any action to enforce said Agreement or Order
C. Amendment. All changes to this Agreement must be made in a writing signed by
Customer and Xerox. Any amendment of this Agreement shall not affect the
obligations of either parry under any then existing Orders, which shall continue in
effect unless the amendment expressly states that it applies to such existing Orders.
d. No Waiver and Severability. The failure by Customer or Xerox to insist upon
strict performance of any of the terms and conditions in this Agreement or to
exercise any rights or remedies will not be construed as a waiver of the right to
assert those rights or to rely on that term or condition at any time thereafter. If any
provision is held invalid by any arbitrator or any court under applicable law, such
provision shall be deemed to be restated as nearly as possible to reflect the original
intention of the parties in accordance with applicable law. The remainder of this
Agreement shall remain in full force and effect.
e. Independent Contractors. Xerox shall perform all Services hereunder in the
capacity of independent contractor and not as Customer's employee, agent or
representative.
f. Assignment.Neither party may assign this Agreement and any Order(s)hereunder
without the prior written consent of the other party. In the event of an approved
assignment by Xerox for the purposes of securitizing a pool of assets or as part of a
third parry financial transaction,Xerox,without notice to the Customer,may release
information it has about the Customer and this Agreement.In the event of a permitted
assignment by Xerox for the purposes of securitizing a pool of assets or as part of a
third party financial transaction,Xerox,without further notice to the Customer,may
release financial information it has about the Customer and this Agreement. Each
successive assignee of Xerox will have all of the rights,but none of the obligations,
of Xerox pursuant to this Agreement. Customer will continue to look to Xerox for
performance of Xerox's obligations hereunder, and Customer hereby waives and
releases any assignees of Xerox from any such claim. Customer will not assert any
defense, counterclaim or setoff that Customer may have or claim against Xerox
against any assignee of Xerox.
g. Communication Authorization. Customer authorizes Xerox or its agents to
communicate with Customer by any electronic means (including cellular phone,
email, automatic dialing and recorded messages) using any phone number
(including cellular) or electronic address that Customer provides to Xerox.
h. Limitation on Charges. In no event will Xerox charge or collect any amounts in
excess of those allowed by applicable law.Any part of an Order that would,but for
this subsection GEN 1.23.h., be construed to allow for a charge higher than that
allowed under any applicable law, is limited and modified by this Section to limit
the amounts chargeable under such Order to the maximum amount allowed by law.
If, in any circumstances, an amount in excess of that allowed by law is charged or
received,such charge will be deemed limited to the amount legally allowed and the
amount received by Xerox in excess of that legally allowed will be applied to the
payment of amounts owed or will be refunded to Customer.
i. Order of Precedence. This Agreement,including all Schedules hereto, constitutes
the entire agreement between the parties as to the subject matter and supersedes all
prior and contemporaneous oral and written agreements regarding the subject matter
hereof and neither party has relied on or is relying on any other information,
representation, discussion or understanding in entering into and completing the
transactions contemplated in this Agreement. The parties agree
FL-University of So.Florida Master Agreement 22 11/24/2017
that in the event of any conflict between the terms and conditions in this
Agreement, and those contained in any of the documents referenced herein, the
order of precedence shall be as follows:
i. All modules of the Agreement other than the General Module;
ii. General Module of this Agreement;
iii. Services Contracts and related Orders (excluding any Customer purchase
order terms).
However if a term in the main body of this Agreement or Schedule expressly
provides for a term in a Schedule or Order to take precedence, such provision in
the Schedule or Order shall prevail to the extent of any conflict.
Notwithstanding the foregoing, except as may be modified in Schedule C,
provisions in the General Module of this Agreement related to: (1) Section GEN
1.10 (Indemnification); (11) Section GEN 1.11 (Limitation of Liability); and (iii)
Section GEN 1.13 (Confidentiality)will prevail over conflicting provisions in any
other contractual document.
GEN 1.24-Entire Agreement
The following are attached hereto and made part hereof:
SERVICES MODULE: TERMS AND CONDITIONS SPECIFIC TO SERVICES
EQUIPMENT MODULE: TERMS AND CONDITIONS SPECIFIC TO
EQUIPMENT& THIRD PARTY HARDWARE
EQUIPMENT LEASING MODULE: TERMS AND CONDITIONS SPECIFIC TO
LEASED EQUIPMENT
EQUIPMENT PURCHASE MODULE: TERMS AND CONDITIONS SPECIFIC TO
EQUIPMENT PURCHASE
MAINTENANCE SERVICES MODULE: TERMS AND CONDITIONS SPECIFIC
TO MAINTENANCE SERVICES
SOFTWARE LICENSE MODULE: TERMS AND CONDITIONS SPECIFIC TO
SOFTWARE
SERVICES MASTER AGREEMENT ("SMA")MODULE: STANDALONE
SERVICES AGREEMENT FOR NON-AFFILIATED ELIGIBLE ENTITIES
This Master Agreement constitutes the entire agreement between the parties relating to the
acquisition by Customer of Services, Products, Maintenance Services, and Consumable Supplies
under transactions that reference this Master Agreement, and supersedes all prior oral and written
agreements relating to such subject matter. If there is a conflict between the terms and conditions
in this Master Agreement and any of the documents referenced herein, this Master Agreement will
control.
[SIGNATURES ON NEXT PAGE]
FL-University of So.Florida Master Agreement 23 11/24/2017
IN WITNESS WHEREOF,the parties have executed this Agreement on the dates set forth
below intending it to become effective on the Effective Date and thereby agree to the terms
of this Master Agreement on behalf of themselves and their Affiliates.
UNIVERSITY OF SOUTH FLORIDA XEROX CORPORATION
BOARD OF TRUSTEES,A PUBLIC
BODY CORPORATE DN:cn T'mothyCM y Jr., U'vers ryof Florida, V4^i r If s -;N. .�.�,...
D'gltallys gned byT thyCMy Jr ',v ��
Timothy C. Mays,Jr. �=°«ne=�9=e��e=eme� �mo�nv4s��=Fed� � ���� w
_ M
Signature SigAa�'ture` ,
Timothy C.Mays,Jr. Christopher McPherson
Name (Please Print) Name (Please Print)
Associate Director,Procurement Services General Manager, Southeastern US
Title Title
1511 N Westshore Blvd, Suite 225
4202 East Fowler Ave, Tampa,FL 33620 Tampa, FL 33607
Address Address
June 12,2018 June 15,2018
Date Date
APPP'PV11) ,;JOfKDRM
NOLA(i,S1'I092HN(N
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FL-University of So.Florida Master Agreement 24 11/24/2017
SERVICES MODULE
SVC 1 TERMS AND CONDITIONS SPECIFIC TO SERVICES
In addition to the terms and conditions in the General (GEN) Module, the following terms and
conditions apply to Xerox's performance of Services. Xerox has assigned Services Master
Agreement Number to this Services Module.
SVC 1.1 Scope of Services
Subject to the terms and conditions of this Agreement, Services will be performed in
accordance with the requirements set forth in an Order. In support of the delivery of the
Services, Xerox and Customer will undertake the activities described in the Order. If
Customer fails to perform or is delayed in performing any of its responsibilities under this
Agreement or the Order, such failure or delay may prevent Xerox from being able to
perform any part of the Services or Xerox-related activities. Xerox shall be entitled to an
extension or revision of the applicable term of the Order(which may include setting a new
expected date for commencement of Services)or to an equitable adjustment in performance
metrics associated with such failure or delay.
SVC 1.2 Orders and Services Contracts
Orders for Services, Maintenance Services, and/or Products are grouped into Services
Contracts.Each separate Services Contract will be established when the first Order is placed
that bears a new Services Contract number assigned by Xerox and Xerox accepts that Order.
Each Services Contract will be assigned its own Services Contract number that will consist
of this Service Module's Service Master Agreement Number followed by a three digit
extension. Each Services Contract constitutes a separate contract under this Agreement.
Customer may add Services, Maintenance Services or Products to an existing Services
Contract by submitting additional Orders referencing the applicable Services Contract
number.Each Services Contract will consist of the terms and conditions of this Agreement,
the first Order under the Services Contract number and each additional Order with the same
Services Contract number. Unless Customer provides notice in writing at least thirty (30)
days before the end of the term of an Order of its intention not to renew, the Order will
continue automatically on a month-to-month basis on the same terms and at the same price.
SVC 1.3 Charges for Services
Charges are based upon information exchanged between Customer and Xerox, which is
assumed to be complete and accurate, and also depend upon other factors such as the timely
performance by Customer of its responsibilities. I£ (1) such information should prove to be
incomplete or inaccurate in any material respect; or (2) there is a failure or delay by the
Customer in performing its responsibilities under this Agreement or an Order which results
in Xerox incurring a loss or additional cost or expense,then the Charges shall be adjusted to
reflect proportionately the impact of such materially incomplete or inaccurate information or
such failure or delay. Variations to the Charges shall also occur pursuant to specific price
variation terms appearing in an Order or, as agreed in writing by the parties, on the occasion
of any variation to the Services. If not specified, Charges due under this Agreement or an
Order shall be calculated at Xerox's then current time and materials rates.If Customer agrees
to reimburse Xerox for travel expenses in this Agreement, such travel expenses will only be
reimbursed by Customer if incurred in compliance with§ 112.061,Florida Statutes.If Xerox
provides paper under a Services Contract, upon 30 days' notice, Xerox may adjust paper
pricing, or either party may terminate the provision of paper. If Xerox agrees to begin
providing Services partially or
FL-University of So.Florida Master Agreement 25 11/24/2017
early(for example,prior to the start of the initial term of an Order),Xerox will bill Customer
on a pro rata basis, based on a thirty (30) day month, and the terms and conditions of this
Agreement will apply.
SVC 1.4 Use of Subcontractors
Xerox may, when it reasonably deems it appropriate to do so, subcontract any portion of the
Services.Xerox shall remain responsible for any Services performed by subcontractors
retained by Xerox to the same extent as if such Services were performed by Xerox.
SVC 1.5 Services Scope Changes
Except as otherwise set forth in an Order, either party may propose to modify the then-
existing Services that are described in an Order,or to add new services to an Order.If Xerox
determines such changes are feasible, Xerox will prepare and propose to Customer an
amendment to the Order(s) regarding the requested changes and any related impact to the
Charges or terms.All change orders to an Order and acceptance or rejection of such change
orders shall be in writing. Once both parties execute a change order, Xerox will promptly
proceed with the new revised Services set forth in the change order in accordance with the
terms of the change order.
SVC 1.6 Early Termination of Services and Labor
Except as otherwise set forth in a Services Contract, upon ninety (90) days prior written
notice, Customer may terminate or reduce any Services or labor provided pursuant to an
Order without incurring early termination charges, unless such Services or labor are
terminated (a) by Xerox due to Customer's default or (b) by Customer, for reasons other
than nonappropriations or Xerox uncured default, and Customer acquires similar services
from another supplier within six (6) months of the termination of such Services or labor,
Customer shall pay all amounts due as of the termination date, together with the early
termination charges, for loss of bargain and not as a penalty, stated in the Order or, if not
specifically stated therein, an amount equal to the then current MMC for said terminated or
reduced Services or labor multiplied by the number of months remaining in the term of the
related Order,not to exceed six(6) months.
SVC 1.7 Early Termination—Third Party and Amortized Services
Certain Services, such as consulting and training may be amortized over the term of the
SSO or MSO ("Amortized Services")or Xerox may provide funds to Customer to acquire
Third Party Hardware or to license Third Party Software and/or to retire debt on existing
Third Party Hardware ("Third Party Funds"). Collectively, Third Party Funds and
Amortized Services are "Funds". The Funds amount will be included in the Monthly
Minimum Charge. Notwithstanding any other provision in the Agreement to the contrary,
should an Order be terminated prior to expiration for any reason or a unit of Third Party
Hardware or any Third Party Software for which Third Party Funds have been provided is
removed or replaced prior to expiration, Customer agrees to pay to Xerox, in addition to
any other amounts owed under said Order, an amount equal to the remaining principal
balance of the Funds together with a 15% disengagement fee,for loss of bargain and not as
a penalty.
SVC 1.8 Xerox Remedies for Customer Default
If Customer defaults, Xerox, in addition to its other remedies (including the cessation of
Services), may require immediate payment of(a) all amounts then due,plus interest on all
amounts due from the due date until paid at the rate established pursuant to § 55.03(1),
Florida Statutes, and(b) any applicable early termination charges.
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FL-University of So.Florida Master Agreement 26 11/24/2017
EQUIPMENT MODULE
EQP 1 TERMS AND CONDITIONS SPECIFIC TO EQUIPMENT& THIRD
PARTY HARDWARE
In addition to the terms and conditions in the General (GEN) Module, the following terms and
conditions apply to Equipment or Third Parry Hardware provided to Customer under an Order.
EQP 1.1 Commencement Date and Date of Installation
The commencement date for each unit of Equipment provided under an Order shall be the
Date of Installation.
EQP 1.2 Delivery and Removal and Suitability of Customer Facilities
Xerox will be responsible for all standard delivery charges for Equipment or Third Parry
Hardware. Customer will be responsible for any non-standard delivery charges and, for
Equipment for which Xerox retains ownership, all removal charges for Equipment or Third
Parry Hardware. Customer agrees to take responsibility for legally disposing of all
hazardous wastes generated from the use of Third Party Hardware or supplies. The
suitability of Customer Facilities for installation of Equipment or Third Parry Hardware,
including compliance with state and local building, fire and safety codes and any non-
standard state or local installation requirements, is Customer's responsibility.
EQP 1.3 Equipment Status
Unless Customer is acquiring previously installed equipment,Equipment will be either: (a)
"Newly Manufactured," which may contain some recycled components that are
reconditioned; (b) "Factory Produced New Model" which is manufactured and newly
serialized at a Xerox factory, adds functions and features to a product previously
disassembled to a Xerox predetermined standard, and contains new components and
recycled components that are reconditioned; or (c) "Remanufactured," which has been
factory produced following disassembly to a Xerox predetermined standard and contains
both new components and recycled components that are reconditioned. Xerox makes no
representations as to the status of any Third Parry Hardware that Xerox may provide under
any Order.
EQP 1.4 Product Availability
Xerox may withdraw Products that become generally commercially unavailable from future
order taking under an Order. Xerox may add Products to this Agreement for order taking
under an Order.
EQP 1.5 Consumables
If specified in an Order,Xerox will provide Consumables for Equipment. Consumables are
Xerox's property until used by Customer and Customer will: (1) use them only with the
Equipment for which they were provided under the applicable Order, (11) return all
Cartridges to Xerox as provided in this Agreement, and (111) at the end of the term of the
applicable Order,return any unused Consumables to Xerox at Xerox's expense when using
Xerox-supplied shipping labels, or destroy them in a manner permitted by applicable law.
Should Customer's use of Consumables exceed Xerox's published yields by more than
10%,Xerox may charge Customer for such excess usage.
FL-University of So.Florida Master Agreement 27 11/24/2017
EQP 1.6 Use and Relocation
For any Equipment or Third Parry Hardware provided by Xerox, with the exception of
Purchased Equipment for which Customer has paid in full, Customer agrees that: (a) the
Equipment or Third Party Hardware shall remain personal property; (b) Customer will not
attach any of the Equipment or Third Party Hardware as a fixture to any real estate; (c)
Customer will not pledge, sub-lease or part with possession of the Equipment or Third Party
Hardware or file or permit to be filed any lien against the Equipment or Third Parry Hardware;
and(d) Customer will not make any permanent alterations to the Equipment or Third Parry
Hardware. Customer hereby authorizes Xerox or its agents to file financing statements
necessary to protect Xerox's rights to Supplier Equipment.While Equipment or Third Party
Hardware is subject to an Order, Customer must provide Xerox prior written notice of all
Equipment or Third Party Hardware relocations and Xerox may arrange to relocate the
Equipment or Third Party Hardware at Customer's expense.While Equipment or Third Party
Hardware is being relocated,Customer remains responsible for making all payments to Xerox
required under the applicable Order. All parts or materials replaced, including as part of an
upgrade, will become Xerox's property. Equipment or Third Party Hardware cannot be
relocated outside of the U.S.until Customer has paid in full for the Equipment or Third Parry
Hardware and has received title thereto. Notwithstanding anything to the contrary in the
foregoing, to the extent that the Equipment contains any Software, any relocation of such
Equipment is subject to the terms and conditions set forth in the Software License Module of
this Agreement.
EQP 1.7 Trade-In Equipment
If Customer is providing trade-in equipment("Trade-In Equipment")to Xerox under an
Order:
a. Customer warrants that Customer has the right to transfer title to the Trade-In
Equipment and that the Trade-In Equipment is in good working order and has not
been modified from its original configuration(other than by Xerox). Title and risk
of loss to the Trade-In Equipment will pass to Xerox when Xerox removes it from
Customer's premises.
b. Customer will maintain the Trade-In Equipment at its present site and in
substantially its present condition until removed by Xerox.
C. Customer will pay all accrued charges for the Trade-In Equipment (up to and
including payment of the final principal payment number) and all applicable 1
maintenance, administrative, supply, and finance charges until Xerox removes the
Trade-In Equipment from Customer's premises.
EQP 1.8 Remote Services For Equipment
Certain models of Equipment are supported and serviced using Remote Data Access.Remote
Data Access also enables Xerox to transmit to the Customer Maintenance Releases or Updates
for software or firmware and to remotely diagnose and modify Equipment to repair or correct
malfunctions. Remote Data will be transmitted to and from Customer in a secure manner
specified by Xerox.Remote Data Access will not allow Xerox to read,view or download any
Customer data,documents or other information residing on or passing through the Equipment,
Third Party Hardware or Customer's information management systems. Customer grants the
right to Xerox,without charge,to establish and maintain Remote Data Access for the purposes
described above. Upon Xerox's request, Customer will provide contact information for
Equipment such as name and address of Customer contact and IP and physical
addresses/locations of Equipment.Customer will enable
FL-University of So.Florida Master Agreement 28 11/24/2017
Remote Data Access via a method prescribed by Xerox and Customer will provide Xerox
with reasonable assistance to allow Xerox to have Remote Data Access. Unless Xerox
deems Equipment incapable of Remote Data Access, Customer will ensure that Remote
Data Access is maintained at all times Maintenance Services are being performed.
EQP 1.9 Data Security
Certain models of Equipment can be configured to include a variety of data security
features. The selection, suitability and use of data security features are solely Customer's
responsibility. Upon request, Xerox will provide additional information to Customer
regarding the security features available for particular Equipment models and costs
associated with such features.
EQP 1.10 Supplier Equipment Provided with Services
In the event that, other than through outright purchase, Xerox provides Supplier Equipment to
Customer in connection with the provision of Services, the following terms shall apply unless
otherwise specified in an Order:
a. Xerox (or the applicable third party vendor) shall at all times retain title to the
Supplier Equipment provided as part of the Services. Customer will be responsible
upon delivery for the risk of loss or damage of Supplier Equipment when such loss
or damage is due to fire, theft, or disappearance, or willful misconduct, or the
negligence of its employees acting within the scope of their employment. The full
risk of loss for Supplier Equipment provided to a Non-Affiliated Eligible Entity
shall pass to the Non-Affiliated Eligible Entity upon delivery to the Non-Affiliated
Eligible Entity's Facility.
b. Customer agrees to use the Supplier Equipment in accordance with, and to
perform,all operator maintenance procedures for the Supplier Equipment described
in the applicable manuals and Documentation provided by Xerox. Customer shall
not (unless the Supplier Equipment is Purchased Equipment, and then only with
Xerox's prior consent):
1. sell, charge, let or part with possession of the Supplier Equipment;
ii. remove the Supplier Equipment from the Customer's premises in which it is
installed; or
iii. make any changes or additions to the Supplier Equipment.
C. Equipment is ordered for a minimum order period(as specified in the applicable
Order) and on the basis that the Equipment will be subject to the Services for that
minimum order period.If Equipment is terminated for any reason before the end of
its minimum order period,the termination charges as set out in the applicable Order
for such Equipment(plus applicable Transaction Taxes) shall apply.
d. At the end of the Order term, unless Customer opts to purchase the Equipment
(where such option is available as set forth in the applicable Order), Customer shall
work with Xerox to schedule the return of the Equipment, together with any related
Software,to Xerox.At the time of removal,the Equipment(and related Software)will
be in the same condition as when delivered,reasonable wear and tear excepted.
e. Unless Customer provides notice in writing at least ninety(90) days before the end
of the lease term of its intention not to renew,the Order for such Leased Equipment
will continue automatically on a month-to-month basis on the same terms and at the
same price.
f. Except as expressly provided herein and as permitted by applicable law, Customer
waives all rights and remedies conferred upon a lessee by Article 2A of the Uniform
Commercial Code.
FL-University of So.Florida Master Agreement 29 11/24/2017
Where the Supplier Equipment to be used in the Services is being purchased outright, the
following additional terms apply:
a. Orders for an outright purchase of Equipment to be used with the Services shall
include both the unique Xerox-provided contract number that is associated with the
Equipment Purchase Module for purchased Equipment transactions under this
Agreement, as well as either (1) the Services Contract Number that is associated
with the Services Module of this Agreement, for ordering Customer and Customer
Direct Affiliates, or (11) the corresponding Services Master Agreement that is
associated with the ordering Non-Affiliated Eligible Entity.
b. Title to the Purchased Equipment will pass to Customer upon payment in full of
the applicable Charges or, if payment is received in advance of delivery of the
Purchased Equipment to the Customer Facility, upon delivery to the Customer
Facility.
1. Xerox warrants that it has the right to transfer title to the Purchased
Equipment;
11. Xerox's standard warranty in effect for the Purchased Equipment at the
time of delivery to the Customer shall apply.
C. If Customer or a Non-Affiliated Eligible Entity fails to pay the applicable
Charges for such Purchased Equipment,
Xerox, in addition to its other remedies (including the cessation of Maintenance
Services, if applicable), may require immediate payment of all amounts then due
(plus all applicable Transaction Taxes),plus applicable interest,at a rate established
pursuant to § 55.03(1), Florida Statutes, for Customer, or the highest rate allowed
by applicable law, or, absent such law, the rate of 1.5% per month for Non-
Affiliated Eligible Entities,on all amounts due from the due date until paid.
d. Software provided with Supplier Equipment shall be governed by the terms set
forth in the Software License Module of this Agreement.
e. If Customer elects to receive Maintenance Services for Purchased Equipment,
Customer shall do so under a separate Order under the Services Module of the
Agreement for such Maintenance Services. Maintenance Services for Equipment
that is provided as part of Services will be provided in accordance with the
Maintenance Services Module of this Agreement.
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FL-University of So.Florida Master Agreement 30 11/24/2017
EQUIPMENT LEASING MODULE
EL 1 TERMS AND CONDITIONS SPECIFIC TO LEASED EQUIPMENT
In addition to the terms set forth in the General(GEN) and Equipment(EQP) Modules,the
following terms apply to Leased Equipment Orders.
EL 1.1 Contract Number
On all Order documents for Major Account Lease Orders, Customer will include the
contract number that is provided on the attached Major Account Lease Pricing Exhibit.
EL 1.2 Periodic Minimum Charge
As set forth on the applicable Order, the Periodic Minimum Charge for the Leased
Equipment, along with any additional print charges, covers Customer's cost for the use of
the Leased Equipment and Maintenance Services, for the term specified in the applicable
Order.
EL 1.3 Term
The initial Term for any standalone lease Order will be the number of full calendar
months stated in such Order. The Lease Minimum Payment for any partial month
following the Installation Date will be billed on a pro rata basis,based on a 30 day
month.
EL 1.4 Title,Risk of Loss,Insurance
Title to the Leased Equipment shall remain with Xerox until Customer exercises its
purchase option, if available. Customer will be responsible upon delivery for the risk of
loss or damage of Leased Equipment when such loss or damage is due to fire, theft, or
disappearance, or willful misconduct, or the negligence of its employees acting within the
scope of their employment.
EL 1.5 NON-CANCELABLE LEASE
LEASED EQUIPMENT SUBJECT TO THIS MODULE CANNOT BE CANCELED OR
TERMINATED EXCEPT AS EXPRESSLY PROVIDED ELSEWHERE IN THIS
AGREEMENT,AND CUSTOMER'S OBLIGATION TO MAKE ALL PAYMENTS DUE
OR TO BECOME DUE UNDER ANY ORDER FOR LEASED EQUIPMENT SHALL BE
ABSOLUTE AND UNCONDITIONAL, AND SHALL NOT BE SUBJECT TO ANY
DELAY, REDUCTION, SET-OFF, DEFENSE, COUNTERCLAIM, OR RECOUPMENT
FOR ANY REASON WHATSOEVER, IRRESPECTIVE OF XEROX'S
PERFORMANCE OF ITS OBLIGATIONS HEREUNDER. ANY CUSTOMER CLAIM
AGAINST XEROX MAY BE ASSERTED SOLELY AGAINST XEROX IN A
SEPARATE ACTION.
EL 1.6 Early Termination
If any unit of Leased Equipment subject to this EL Module is terminated for any reason,
including, without limitation, default by Customer, Xerox, in addition to its other remedies
(including the cessation of Maintenance Services), may require immediate payment, as
liquidated damages for loss of bargain and not as a penalty,of. (1) all amounts then due,plus
applicable interest on all amounts due from the due date until paid; (11) the Lease Minimum
Payment(less the Maintenance Services and Consumables components thereof, as reflected
on Xerox's books and records)remaining in the initial term of the Order for the unit of Leased
Equipment, discounted at the applicable rate; (111) where applicable, any purchase option as
set forth in the Order; and(iv) all applicable Transaction Taxes.In
FL-University of So.Florida Master Agreement 31 11/24/2017
addition to paying the amounts required in the preceding sentence, Customer shall either(1)
make the Leased Equipment available for removal by Xerox (or by Customer where
applicable) when requested to do so by Xerox and, at the time of removal, the Leased
Equipment will be in the same condition as when delivered, reasonable wear and tear
excepted, together with any related Software or (11) if available as an option,purchase the
Leased Equipment "AS IS, WHERE IS" and WITHOUT ANY WARRANTY AS TO
CONDITION OR VALUE by paying Xerox the purchase option, if available, as set forth
in the applicable Order, plus all applicable Transaction Taxes. If any unit of Leased
Equipment subject to this EL Module is terminated for any reason, other than
nonappropnations in accordance with Section GEN 1.22 or uncured Xerox default in
accordance with subsection GEN 1.12.b., including, without limitation, defaults under the
Agreement or a Standard Lease IA,Xerox may,in addition to its other remedies(including
cessation of Maintenance Services), remove the Equipment at Customer's expense and
require immediate payment, as liquidated damages for loss of bargain and not as a penalty,
of. (a) all amounts then due,plus interest from the due date until paid at the rate established
pursuant to § 55.03(1), Florida Statutes for Customer, and the highest rate allowed by
applicable law, or, absent such law, the rate of 1.5%per month for Non-Affiliated Eligible
Entities;(b)the Lease Minimum Payments(less the Maintenance Services and Consumable
Supplies components thereof, as reflected on Xerox's books and records) remaining in the
initial Term of the Standard Lease IA, discounted at 4% per annum; (c) the applicable
Purchase Option; and (d) all applicable Taxes. If Customer notifies Xerox and makes the
Equipment available for removal by Xerox in the same condition as when delivered
(reasonable wear and tear excepted) within 30 days after notice of default, upon recovery
of the Equipment Customer will receive a credit for the fair market value of the Equipment
(as determined by Xerox), less any costs incurred by Xerox.
EL 1.7 Leased Equipment Return
At the end of the lease term, Customer shall contact Xerox to schedule the return of the
Leased Equipment together with any related Software to Xerox.At the time of removal,the
Leased Equipment(and related Software)will be in the same condition as when delivered,
reasonable wear and tear excepted.
EL 1.8 Maintenance Component Price Increase
Unless otherwise stated in an Order, Xerox may annually increase that amount of the
Periodic Minimum Charge that Customer is charged for maintenance of Leased Equipment
(the "Maintenance Component").
EL 1.9 Renewal
Unless Customer provides notice in writing at least ninety (90) days before the end of the
term of an Order for Leased Equipment of its intention not to renew, said Order for such
Leased Equipment will continue automatically on a month-to-month basis on the same
terms and pricing.
EL 1.10 Finance Lease
A LEASE TRANSACTION DOCUMENT IS A "FINANCE LEASE" UNDER ARTICLE
2A OF THE UNIFORM COMMERCIAL CODE AND, EXCEPT TO THE EXTENT
EXPRESSLY PROVIDED HEREIN, AND TO THE EXTENT PERMITTED BY
APPLICABLE LAW, CUSTOMER WAIVES ALL RIGHTS AND REMEDIES
CONFERRED UPON A LESSEE BY ARTICLE 2A.
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FL-University of So.Florida Master Agreement 32 11/24/2017
EQUIPMENT PURCHASE MODULE
EP 1 TERMS AND CONDITIONS SPECIFIC TO EQUIPMENT PURCHASE
In addition to the terms and conditions in the General (GEN) Module, the following terms
and conditions apply to the acquisition of Purchased Equipment.
EP 1.1 Contract Number
On all Order documents for Equipment Purchase Orders,Customer will include the contract
number that is provided on the attached Equipment Purchase Pricing Exhibit.
EP 1.2 Title and Risk of Loss
Title and risk of loss to such Purchased Equipment will pass to Customer upon delivery to
Customer Facility.
EP 1.3 Default
If Customer defaults under an Order for Purchased Equipment, Xerox, in addition to its
other remedies(including the cessation of Maintenance Services if applicable),may require
immediate payment of all amounts then due plus all applicable Transaction Taxes), plus
applicable interest, at a rate established pursuant to § 55.03(1), Florida Statutes for
Customer, or the highest rate allowed by applicable law, or, absent such law, the rate of
1.5%per month, for Non-Affiliated Eligible Entities on all amounts due from the due date
until paid.
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FL-University of So.Florida Master Agreement 33 11/24/2017
MAINTENANCE SERVICES MODULE
MS 1 TERMS AND CONDITIONS SPECIFIC TO MAINTENANCE SERVICES
In addition to the terms and conditions in the General (GEN) Module, and except as
otherwise set forth in an Order, the following terms and conditions apply to the provision
of Maintenance Services.
MS 1.1 Maintenance Services
As a mandatory part of an Order that includes leased or rented Equipment, or pursuant to
an Order for stand-alone Maintenance Services, or pursuant to an Order for Services that
includes Maintenance Services for Equipment,Xerox or a designated service provider will
provide the following Maintenance Services for Equipment. If Customer is acquiring
Equipment for which Xerox does not offer Maintenance Services, such Equipment will be
designated as "No Svc". This Module does not apply to maintenance of Third Party
Hardware. Any such maintenance that Xerox provides on Third Party Hardware will be
provided in accordance with the terms of the applicable Order. .
The provision of Maintenance Services is contingent upon Customer facilitating timely and
efficient resolution of Equipment issues by: (1) utilizing Customer-implemented remedies
provided by Xerox; (11) replacing Cartridges; and (iii) providing information to and
implementing recommendations provided by Xerox telephone support personnel in those
instances where Xerox is not providing on-site Equipment support personnel. If an
Equipment issue is not resolved after completion of (1) through (iii) above, Xerox will
provide on-site support as provided in the applicable Order.
MS 1.2 Repairs and Parts
a. Xerox will make repairs and adjustments necessary to keep the Equipment in good
working order and operating in accordance with its written specifications(including
such repairs or adjustments required during initial installation). Maintenance
Services shall cover repairs and adjustments required as a result of normal wear and
tear or defects in materials or workmanship. Parts required for repair may be new,
reconditioned,reprocessed or recovered.
b. If Xerox is providing Maintenance Services for Equipment that uses Cartridges,
Customer will use only unmodified Cartridges purchased directly from Xerox or its
authorized resellers. Failure to use such Cartridges will void any warranty
applicable to such Equipment. Cartridges packed with Equipment or furnished by
Xerox as Consumables will meet Xerox's new Cartridge performance standards and
may be new, remanufactured or reprocessed and contain new and/or reprocessed
components. To enhance print quality, Cartridges for many models of Equipment
have been designed to cease functioning at a predetermined point.
MS 1.3 Hours and Exclusions
Unless otherwise set forth in an Order,Maintenance Services will be provided during Xerox's
standard working hours(excluding locally-recognized Xerox holidays)in the areas within the
geography in which the Equipment is delivered. Maintenance Services excludes repairs due
to: (1)misuse,neglect or abuse;(11)failure of the installation site or the PC or workstation used
with the Equipment to comply with Xerox's published specifications; (iii) use of options,
accessories, or other products not serviced by Xerox; (iv) non-Xerox alterations, relocation,
service or supplies; or (v) failure to perform operator maintenance procedures identified in
operator manuals. Customer agrees to use Equipment in accordance with, and to perform all
operator maintenance procedures for Equipment set
FL-University of So.Florida Master Agreement 34 11/24/2017
forth in, the applicable manuals and Documentation provided by Xerox. Customer agrees
to purchase all referenced parts,tools,and supplies needed to perform those procedures that
are described in the applicable manuals and instructions.
MS 1.4 Installation Site and Meter Readings
In order to receive Maintenance Services for Equipment requiring connection to a PC or
workstation, Customer must utilize a PC or workstation that either(1)has been provided by
Xerox or(11) meets Xerox's published specifications. The Equipment installation site must
conform to Xerox's published requirements. If applicable, unless otherwise set forth in an
Order, Customer agrees to provide meter readings in the manner prescribed by Xerox. If
Customer does not provide Xerox with meter readings as required, Xerox may estimate
them and bill Customer accordingly.
MS 1.5 Remedy
If Xerox is unable to maintain the Equipment as described above, Xerox will replace the
Equipment with an identical product or,at Xerox's option, another model with comparable
features and capabilities. If replacement Equipment is provided pursuant to this Section,
there shall be no additional charge for its provision by Xerox during the initial lease term of
the Order and it shall be subject to the terms and conditions of this Agreement and the
applicable Order(s). This remedy applies only if the Equipment has been continuously and
exclusively maintained by Xerox or its designated service provider from the Date of
Installation. Customer's use of non-Xerox approved consumables that affect the
performance of the Equipment may invalidate this remedy.
MS 1.6 Charges for Maintenance Services
Except as otherwise stated in an Order, Xerox may annually increase charges for
Maintenance Services.
MS 1.7 End of Service
Xerox has no obligation to maintain or replace Equipment beyond the "End of Service"for
that particular model of Equipment. End of Service ("EOS")means the date announced by
Xerox after which Xerox will no longer offer Maintenance Services for a particular
Equipment model. An EOS Equipment list is available upon request.
MS 1.8 Remedy for Default (applies to Purchase with Maintenance Orders, and
Maintenance Services Only Orders)
Unless otherwise agreed to by the parties in an Order, if Customer defaults under this
Agreement or a Maintenance Services Order, Xerox, in addition to its other remedies
(including the cessation of Maintenance Services), may require immediate payment, as
liquidated damages for loss of bargain and not as a penalty, of. (a) all amounts then due,
plus applicable interest on all amounts due from the due date until paid (at the rate
established pursuant to § 55.03(1), Florida Statutes, for Customer, or the highest rate
allowed by applicable law, or, absent such law, the rate of 1.5% per month for Non-
Affiliated Eligible Entities;(b)the lesser of(1)the remaining minimum periodic base charge
in such Maintenance Services Order's term, not to exceed six (6) such (minimum periodic
base charge) payments for one year Maintenance Services Orders, or twelve (12) such
payments for multi-year Maintenance Services Orders; and, (c) all applicable Transaction
Taxes.
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FL-University of So.Florida Master Agreement 35 11/24/2017
SOFTWARE LICENSE MODULE
SW 1 TERMS AND CONDITIONS SPECIFIC TO SOFTWARE
In addition to the terms and conditions in the General (GEN) Module the following terms
and conditions apply to the license and use of Software and its associated Documentation.
SW 1.1 Software License
Xerox may provide Software to Customer pursuant to an Order hereunder. The following
license applies to Software provided hereunder,unless such Software is accompanied by a
click-wrap or shrink-wrap license agreement or otherwise provided subject to a separate
license agreement.
a. Xerox grants Customer a non-exclusive, non-transferable, non-assignable (by
operation of law or otherwise) license to use: (1) Base Software only on or with the
Equipment with which (or within which) it was delivered; and (11) Application
Software only on any single unit of Equipment, subject to Customer remaining
current in the payment of any indicated applicable Software license fees (including
any annual renewal fees). Customer has no other rights to the Software. Customer
will not and will not allow its employees, agents, contractors or vendors to: (1)
distribute, copy, modify, create derivatives of, decompile, or reverse engineer
Software except as permitted by applicable law;(11)activate Software delivered with
or within the Equipment/in an un-activated state; or, (iii) access or disclose
Diagnostic Software for any purpose. Title to Software and all copyrights and other
intellectual property rights in Software will reside solely with Xerox and its licensors
(who will be considered third parry beneficiaries of this Agreement's software and
limitation of liability provisions).
b. The Base Software license will terminate: (1)if Customer no longer uses,possesses
the Equipment with which the Base Software was provided; or (11) upon the
expiration or termination of any Order under which Customer has leased the
Equipment with which the Base Software was provided (unless Customer has
exercised an option to purchase the Equipment,where available).
C. Software may contain, or be modified to contain, computer code capable of
automatically disabling proper operation or functioning of the Equipment. Such
disabling code may be activated if. (1) Xerox is denied reasonable access to
periodically reset such code;(11)Customer is notified of a default under an Order;or
(iii) Customer's license is terminated or expires. Xerox shall notify Customer by
screen message at least sixty (60) days prior to the activation of any such disabling
code. In the event Customer has notified Xerox in writing that it disputes Xerox's
right hereunder to disable the Equipment by activation of disabling code with respect
to any Software, Xerox shall, if provided timely access to such Software by
Customer, deactivate the disabling code until such dispute has been resolved to
Customer's reasonable satisfaction,provided that Customer shall pay to Xerox any
then current license fees for the Software that remained activated past its scheduled
termination or expiration date and that such default(i.e.,subsection(11)above)is not
related to non-payment.
d. Xerox does not warrant that the Software will be free from errors or that its
operation will be uninterrupted.
FL-University of So.Florida Master Agreement 36 11/24/2017
SW 1.2 Software Support
For Base Software, Software Support will be provided during the initial term of the
applicable Order and any renewal period,but not longer than five(5)years after Xerox stops
taking orders for the subject model of Equipment. For Application Software, Software
Support will be provided as long as Customer is current in the payment of all applicable
software license, annual renewal and "support only"fees.
a. Xerox will maintain a web-based or toll-free hotline during Xerox's standard
working hours to report Software problems and answer Software-related questions.
Xerox,either directly or with its vendors,will make reasonable efforts to: (1) assure
that Software performs in material conformity with its Documentation; (11)provide
available workarounds or patches to resolve Software performance problems; and
(111)resolve coding errors for(1)the current release and(2)the previous release for
a period of six (6) months after the current release is made available to Customer.
Xerox will not be required to provide Software support if Customer has modified
the Software.
b. Xerox may make available new releases of the Software that primarily incorporate
coding error fixes and are designated as "Maintenance Releases" or "Updates".
Maintenance Releases or Updates are provided at no charge and must be
implemented within six (6) months after being made available to Customer. Each
Maintenance Release or Update shall be considered Software governed by these
terms. New releases of the Software that are not Maintenance Releases which
include new content or functionality ("Feature Releases") will be subject to
additional license fees at Xerox's then-current pricing and shall be considered
Software governed by these terms and conditions (unless otherwise noted in an
Order). Implementation of a Maintenance Release, Update or Feature Release may
require Customer to procure, at its expense, additional hardware and/or software
from Xerox or another entity. Upon installation of a Maintenance Release, Update
or Feature Release, Customer will return or destroy all prior Maintenance Releases,
Updates or Feature Releases.
C. Xerox may annually increase Software license fees and support fees for Application
Software.
SW 1.3 Diagnostic Software
Diagnostic Software and method of entry or access to it constitute valuable trade secrets of
Xerox. Title to the Diagnostic Software shall at all times remain solely with Xerox and
Xerox's licensors. Xerox does not grant Customer a license or right to use the Diagnostic
Software. Customer will not use, reproduce, distribute, or disclose the Diagnostic Software
for any purpose(or allow third parties to do so).Customer will allow Xerox reasonable access
to the Equipment during Customer's normal business hours to remove or disable Diagnostic
Software if Customer is no longer receiving Maintenance Services from Xerox.
SW 1.4 Third Party Software
Third Party Software is subject to license and support terms provided by the applicable
Third Party Software vendor.
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FL-University of So.Florida Master Agreement 37 11/24/2017
SERVICES MASTER AGREEMENT ("SMA") MODULE
STANDALONE SERVICES AGREEMENT FOR NON-AFFILIATED ELIGIBLE
ENTITIES
SERVICES MASTER AGREEMENT erox
THIS SERVICES MASTER AGREEMENT NO. << Enter 7 Digit Contract Number >>> (the
"Agreement", or "Contract", or "SMA") is between Xerox Corporation ("Xerox"), a New York
corporation with offices at 201 Merritt 7, Norwalk, CT 06851 and << Enter Customer's Legal Name
>>> ("Customer").
AGREEMENT STRUCTURE
This Agreement serves as a master agreement to enable Xerox and Customer to contract with each
other for a range of products and services to be provided to the Customer over time. However, it is
the intent of the parties that the products and services be acquired by the Customer under the
auspices of the Master Agreement between Xerox and the University of South Florida (the "Master
Agreement")that resulted from the award of the Invitation To Negotiate ITN-17-16-MH. Therefore,
the terms and conditions of the ITN Contract are incorporated herein by reference; however, and any
conflict or inconsistency between the below terms and conditions of this Agreement and the Master
Agreement shall be resolved in favor of this Agreement.
This Agreement is grouped into Modules. The "GEN" Module applies to all products and services
provided hereunder, while the other Modules apply as appropriate to what Xerox is providing to
Customer under the applicable Order.
DEFINITIONS MODULE
DEF 1.—DEFINITIONS
The following definitions (and those found elsewhere in this Agreement) apply unless otherwise
specified in an Order.
a. Affiliate means a legal entity that directly or indirectly controls, is controlled by, or is
under common control with either party. An entity is considered to control another entity
if it owns, directly or indirectly, more than 50%of the total voting securities or other such
similar voting rights.
b. Agreement means this Services Master Agreement. This Agreement may also be
referred to in ordering and contracting documents as a "Services and Solutions
Agreement" or"SSA."
C. Amortized Services means certain services such as consulting and training, the
Charges for which are amortized over the term of an Order.
d. Application Software means Xerox-brand software that allows Equipment or Third Party
Hardware to perform functions beyond those enabled by its Base Software.
e. Base Software means software embedded, installed, or resident in Equipment that is
necessary for operation of the Equipment in accordance with published specifications.
f. Cartridges means copy/print cartridges and xerographic modules or fuser modules
designated by Xerox as customer-replaceable units for the Equipment.
FL-University of So.Florida Master Agreement(Schedule A) 1 11/26/2017
g. Charges mean the fees payable by Customer for Services, Maintenance Services and/or
Products as specified in this Agreement.
h. Confidential Information means information identified as confidential and provided by
the disclosing party to the receiving party.
i. Consumable Supplies.Consumable Supplies vary depending upon the Equipment model,
and include: (i) for black and white Equipment, standard black toner and/or dry ink, black
developer, Copy Cartridges, and, if applicable, fuser agent required to make impressions;
(ii)for full color Equipment, the items in (i) plus standard cyan, magenta, and yellow toners
and dry inks (and their associated developers); and, (iii) for Equipment identified as
"Phaser", only, if applicable, black solid ink, color solid ink, imaging units,waste cartridges,
transfer rolls, transfer belts, transfer units, belt cleaner, maintenance kits, print Cartridges,
drum Cartridges, waste trays and cleaning kits. Unless otherwise set forth in an Order,
Consumable Supplies excludes paper and staples.
j. Customer Assets means all hardware, equipment, fixtures, software, assets, networks,
work space, facilities, services and other assets owned, leased, rented, licensed or
controlled by Customer (including Existing Equipment and Existing Software) that
Customer makes available to Xerox to enable Xerox to fulfill its obligations under an Order.
k. Customer Confidential Information means Confidential Information belonging to
Customer and includes, without limitation, Customer Content and Private Information.
I. Customer Content means documents, materials or information that Customer provides
in hard copy or electronic format to Xerox, containing information about Customer or its
clients, in order for Xerox to provide Services, Maintenance Services, or Products.
M. Customer Facilities means those facilities controlled by Customer where Xerox
performs Services or provides Products.
n. Customer Intellectual Property means all intellectual property and associated
intellectual property rights including patent, trademark, service mark, copyright, trade
dress, logo and trade secret rights which exist and belong to Customer as of the Effective
Date or that may be created by Customer after the Effective Date, excluding Xerox
Confidential Information.
o. Data means data that the Xerox Tools and Xerox Client Tools automatically collect from
all Equipment and Third Party Hardware that appears on Customer's network, or that
are locally connected to another device on Customer's network, when such Tools are
installed on Customer's network. Examples of Data include product registration, meter
read,supply level, device configuration and settings, software version, and problem/fault
code data.
p. Date of Installation means: (a) for Equipment (or Third Party Hardware) installed by
Xerox,the date Xerox determines the Equipment(or Third Party Hardware)to be operating
satisfactorily as demonstrated by successful completion of diagnostic routines and is
available for Customer's use; and (b)for Equipment(or Third Party Hardware)designated
as"Customer Installable,"the Equipment(or Third Party Hardware)delivery date.
q. Description of Services or DOS means a document attached to an Order which
references the applicable Services Contract number and specifies the Products and/or
Services provided under such Order.
r. Diagnostic Software means Xerox-proprietary software embedded in or loaded onto
Equipment and used by Xerox to evaluate or maintain the Equipment.
S. Documentation means all manuals, brochures, specifications, information and software
descriptions, and related materials customarily provided by Xerox to customers for use
with certain Products or Services.
t. Effective Date means the date this Agreement is signed by Xerox.
U. Equipment means Xerox-brand equipment.
FL-University of So.Florida Master Agreement(Schedule A) 2 11/26/2017
V. Excluded Taxes means (i) taxes on Xerox's income, capital, and employment, (ii) taxes
for the privilege of doing business, and (iii) personal property tax on Equipment rented or
leased to Customer under this Agreement.
w. Existing Equipment means devices which are leased, rented or owned by the Customer
outside of this Agreement, which are used to provide Services, and which remain subject
to the terms and conditions of the agreements under which they were originally acquired.
X. Existing Software means software licensed by the Customer outside of this Agreement
and which is used to provide the Services and which remains subject to the terms and
conditions of the agreements under which it was originally acquired.
y. Feature Releases means new releases of Software that include new content or
functionality.
Z. Force Majeure Event means a circumstance beyond a party's reasonable control,which
circumstances include, but are not limited to, the following: act of God (e.g., flood,
earthquake, wind); fire; war; act of a public enemy or terrorist; act of sabotage; strike or
other labor dispute; riot; misadventure of the sea; inability to secure materials and/or
transportation; or a restriction imposed by legislation, an order or a rule or regulation of a
governmental entity.
aa. Funds means collectively Amortized Services and Third Party Funds.
bb. Maintenance Releases or Updates means new releases of Software that primarily
incorporate coding compliance updates and error fixes and are designated as
"Maintenance Releases" or"Updates."
cc. Maintenance Services means required maintenance of Equipment to keep the Equipment
in good working order.
dd. Module means a specific set of terms and conditions contained in this Agreement that
is identified as a "Module." The Modules under this Agreement are the DEF, GEN, SVC,
EQP, EP, MS and SW Modules.
ee. Monthly Minimum Charge or MMC means the regular recurring Charge that is identified
in an Order and which, along with any additional print/impression charges, covers the
cost for the Services, Maintenance Services and/or Products.The MMC may also include
lease buyout funds, Funds, monthly equipment component amounts, remaining
Customer obligations from previous contracts, and amounts being financed or refinanced.
One-time items are billed separately from the MMC.
ff. Order means a document that Xerox requires for processing of orders for Services,
Maintenance Services and/or Products hereunder, which may specify the contracting
parties and location(s) where the foregoing will be provided; Customer's requested
shipment date; the Products that Customer will purchase, lease, rent or license; the
Services and/or Maintenance Services that Xerox will provide; the applicable Charges and
expenses; the term during which the Services, Maintenance Services and/or Products
described therein shall be provided; the Xerox-provided contract number; and any
applicable SLAs. An Order must reference the applicable Services Contract number, and
may also be in the form of a Services and Solutions Order ("SSO"), a Xerox Order
Agreement ("XOA") (which is used solely for an outright purchase by Customer under the
EP module of this Agreement)or a Customer-issued PO.A Statement of Work may be part
of an Order but cannot function as a stand-alone ordering document.
gg. Output of Services means electronic images created by scanning tangible documents
containing Customer Content, all full or partial copies (tangible and intangible) of
Customer Content, and all reports and other documentation, photographs, images,
impressions, and other materials (tangible and intangible)created by Xerox and delivered
to Customer under an Order, but shall not include Third Party Software, or Xerox
Intellectual Property.
hh. Privacy Laws means state, federal, and international laws relating to data privacy and
data protection as applicable to Xerox's performance of the Services.
FL-University of So.Florida Master Agreement(Schedule A) 3 11/26/2017
ii. Private Information means Protected Health Information ("PHI") as defined by the
Health Insurance Portability and Accountability Act ("HIPAA"), Non-Public Personal
Information ("NPI") as defined by the Gramm-Leach Bliley Act ("GLBA") and equivalent
categories of protected health and financial information under applicable state Privacy
Laws.
jj. Products means Software, Equipment, Third Party Products and/or Consumable
Supplies supplied by Xerox and provided to Customer pursuant to an Order.
kk. Purchase Order or PO means a document containing the applicable Services Contract
number that is issued by Customer to Xerox for Order entry purposes only. Any terms in
a PO are not binding and are of no force or effect.
II. Purchased Equipment means Equipment or Third Party Hardware that Xerox sells
outright to Customer under the EP Module.
mm. Remote Data means data that is automatically collected by Xerox or transmitted to or from
Xerox by Equipment or Third Party Products connected to Customer's network. Examples
of Remote Data include product registration, meter read, supply level, equipment
configuration and settings, software version, and problem/fault code data.
nn. Remote Data Access means electronic transmission of Remote Data to or from a secure
offsite location.
oo. Residuals means general ideas, concepts, know-how, methods, processes, technologies,
algorithms or techniques related to the Services, which are in non-tangible form and
retained in the unaided memory of persons who have had access to Confidential
Information.
pp. Service Level Agreements or SLAs means the levels of performance for the Services,
if applicable, as set out in the applicable Order.
qq. Services means managed services (e.g. copy center and mailroom services), consultative
services, and/or professional services, including, but not limited to, assessment,
document management, and managed and centralized print services, as more fully
described in the applicable Order. Standard back-office administrative and contract
support functions, such as billing, contract management and order processing, are not
Services, but are included in the pricing provided for the Services hereunder.
rr. Services Contract means the applicable terms and conditions of this Agreement, the
first Order having a particular assigned Services Contract number, and each additional
Order, if any, with the same Services Contract number.
ss. Software means Base Software and Application Software.
tt. Statement of Work or SOW means a document which references the applicable
Services Contract number and specifies the details of a particular transaction where
Customer wishes to acquire Services, Maintenance Services and/or Products from Xerox
under this Agreement.
uu. Supplier Equipment means devices which are supplied by Xerox to the Customer
during the term of an Order. Supplier Equipment may be Equipment or Third Party
Hardware.
vv. Taxes means any and all taxes of any kind or nature, however denominated, imposed
or collected by any governmental entity, including but not limited to federal, state,
provincial, or local net income, gross income, sales, use, transfer, registration, business
and occupation, value added, excise, severance, stamp, premium, windfall profit,
customs, duties, real property, personal property, capital stock, social security,
unemployment, disability, payroll, license, employee or other withholding, or other tax, of
any kind whatsoever, including any interest, penalties or additions to tax or additional
amounts in respect of the foregoing.
ww. Third Party Funds means funds Xerox provides to Customer to acquire Third Party
Hardware or to license Third Party Software and/or to retire debt on existing Third Party
Hardware.
FL-University of So.Florida Master Agreement(Schedule A) 4 11/26/2017
xx. Third Party Hardware means non-Xerox brand equipment.
yy. Third Party Products means, collectively,Third Party Hardware and Third Party Software.
zz. Third Party Software means non-Xerox brand software.
aaa. Transaction Taxes means any and all Taxes that are required to be paid in respect of
any transaction and resulting Charges under this Agreement and any transaction
documents, including but not limited to sales, use, services, rental, excise, transaction-
based gross receipts, and privilege Taxes.
bbb. XDM Customer Views means a limited set of features such as printer error messages,
basic printer status, troubleshoot(e.g., access printer web page,submit test page, reboot
printer, retrieve audit logs) and upgrade printer (e.g., add upgrade file, delete upgrade
file, run upgrade, delete upgrade task, restart upgrade task) that are available through
the Xerox Tool known as Xerox Device Manager.
ccc. Xerox Confidential Information means Confidential Information belonging to Xerox and
includes, without limitation, whether marked as such or not, any services procedures
manuals, Xerox Tools, Xerox Client Tools and Xerox Intellectual Property.
ddd. Xerox Client Tools means certain proprietary software used to provide certain Services,
and any modifications, enhancements, improvements thereto and derivative works
thereof that are licensed to Customer in accordance with GEN 1.8(d).
eee. Xerox Intellectual Property means all intellectual property and associated intellectual
property rights including patent,trademark,service mark, copyright,trade dress, logo and
trade secret rights which exist and belong to Xerox as of the Effective Date or that may
be created by Xerox after the Effective Date, including without limitation, Software, Data,
Remote Data, Xerox Tools and Xerox Client Tools, and excluding Customer Confidential
Information and Output of Services.
fff.Xerox Products means Equipment, Software and Consumable Supplies acquired pursuant
to this Agreement.
ggg. Xerox Tools means certain proprietary tools used by Xerox to provide certain Services,
and any modifications, enhancements, improvements thereto and derivative works
thereof.
GENERAL MODULE
GEN 1. — GENERAL
The terms and conditions in this General (GEN) Module apply to all Services,
Maintenance Services, and Products acquired by Customer under this Agreement.
GEN 1.1—AGREEMENT STRUCTURE
a. General Contract Structure. The parties intend for this Agreement to serve as a master
agreement stating the terms and conditions governing separate transactions between (i)
Xerox and Customer, and (ii) Xerox and Customer Affiliates. Xerox will provide, and
Customer will procure, Services, Maintenance Services and/or Products in accordance
with the terms and conditions stated in this Agreement, any Services Contract(s), and any
applicable Orders.
b. Orders and Services Contracts.
i. Xerox may accept Orders either by its signature or by commencing
performance. Xerox reserves the right to review and approve Customer's
credit, or in the case of an Order by a Customer Affiliate, such Affiliate's credit,
prior to acceptance of an Order and the entity placing the Order hereby authorizes
Xerox or its agent to obtain credit reports from commercial credit reporting
agencies for this purpose. If a Customer Affiliate establishes a Services Contract
by placing an Order hereunder, it will be the "Customer" for the purposes of
such Services Contract.
FL-University of So.Florida Master Agreement(Schedule A) 5 11/26/2017
ii. Orders for Services, Maintenance Services, and/or Products are grouped into
Services Contracts. Each separate Services Contract will be established when
the first Order is placed that bears a new Services Contract number assigned
by Xerox and Xerox accepts that Order. Each Services Contract will be
assigned its own Services Contract number that will consist of this
Agreement's number followed by a three digit extension. Each Services
Contract constitutes a separate contract under this Agreement. Customer may
add Services, Maintenance Services or Products to an existing Services
Contract by submitting additional Orders referencing the applicable Services
Contract number. Each Services Contract will consist of the terms and
conditions of this Agreement, the first Order under the Services Contract
number and each additional Order with the same Services Contract number.
iii. Unless Customer provides notice in writing at least thirty(30) days before the
end of the term of an Order of its intention not to renew, the Order will renew
automatically on a month-to-month basis on the same terms and at the same
price.
iv. Orders may be submitted by hard copy or electronic means and those
submitted electronically will be considered: (a) a "writing" or "in writing;" (b)
"Signed" by the Customer; (c)an"original"when printed from electronic records
established and maintained in the ordinary course of business; and (d) valid
and enforceable.
GEN 1.2—CHARGES, PAYMENT AND DEFAULT
a. Charges. Charges for the particular Services, Maintenance Services, and/or Products
will be set forth in an Order and are exclusive of any and all Transaction Taxes. Xerox's
then current overtime rates will apply to Services requested and performed outside
Customer's standard working hours.
b. Payment. Customer agrees to pay Xerox all undisputed amounts due under each invoice
via check, Automated Clearing House debit, Electronic Funds Transfer, or direct debit
from Customer's bank account within thirty (30) days from invoice receipt, which is
deemed to occur three (3) days from the invoice date. Restrictive covenants submitted
for or with payment to indicate that it is in full satisfaction of an invoice will not operate as
an accord and satisfaction to reduce Customer's payment obligations if it is not, in fact,
full payment. For any payment not received by Xerox within ten (10) days after the due
date,Xerox may charge, and Customer agrees to pay, a late charge of the greater of$25
or five percent (5.0%) of the amount overdue (not to exceed the maximum amount
permitted by applicable law) as reasonable collection costs. If Customer disputes any
amount included in an invoice, then (i) Customer must notify Xerox of the dispute in
writing, (ii)such notice shall include a description of the items Customer is disputing and
the reason such items are being disputed; and (iii) Customer shall promptly exercise its
best efforts to work with Xerox to resolve such dispute. Pending resolution of such
disputed amount, Customer shall pay any and all undisputed amounts within thirty (30)
days of invoice date, including the MMC which Customer agrees shall not be subject to
dispute at any time.
C. Default. Customer will be in default if Xerox does not receive any payment within fifteen
(15)days after the date it is due, or if Customer breaches any other obligation under this
Agreement, any Services Contract, or any other agreement with Xerox. If Customer,
defaults, Xerox, in addition to its other remedies (including cessation of Services,
Maintenance Services and/or Consumable Supplies), may require immediate payment
of(1)all amounts then due, plus interest on all amounts due from the due date until paid
at the rate established by applicable law,or, absent such law,the rate of 1.5%per month,
and (2) any early termination charges set forth in this Agreement or in the applicable
Services Contract and/or Order(s).
GEN 1.3—TAXES
FL-University of So.Florida Master Agreement(Schedule A) 6 11/26/2017
Customer will be responsible for all Transaction Taxes. Transaction Taxes will be included in
Xerox's invoice unless Xerox receives proof of Customer's tax exempt status. Customer shall not
be responsible for Excluded Taxes.
GEN 1.4— RESERVED.
GEN 1.5— RESERVED.
GEN 1.6—CUSTOMER RESPONSIBILITIES
Customer agrees to perform its responsibilities under this Agreement in support of the Services,
Maintenance Services, or Products in a timely manner. Customer agrees:
a. that Products acquired hereunder are ordered for Customer's (or its Affiliates') own
internal business use (rather than resale, license and/or distribution outside of
Customer's organization) and will not be used for personal, household or family
purposes;
b. to (1) provide Xerox and its agents with timely and sufficient access, without charge, to
Customer Facilities required by Xerox to perform Services and Maintenance Services
and/or provide Products, and (2) ensure that Customer Facilities are suitable for the
Services, Maintenance Services and/or Products, safe for Xerox personnel, and fully
comply with all applicable laws and regulations, including without limitation any federal,
state and local building, fire and safety codes;
C. to provide Xerox and its agents with timely and sufficient use of and access, without
charge, to Customer Assets required by Xerox to perform Services and Maintenance
Services and/or provide Products, and to grant Xerox and its agents sufficient rights to
use, access and, if agreed, modify the same;
d. to acquire or continue maintenance, repair and software support services, without
charge to Xerox, for all Customer Assets that Customer permits Xerox to use or
access;
e. to maintain the manufacturer's maintenance agreement for any Third Party Products;
f. to provide Xerox with access to appropriate members of Customer personnel, as
reasonably requested by Xerox, in order for Xerox to perform the Services and
Maintenance Services and/or provide Products;
g. to respond to and provide such documentation, data and other information as Xerox
reasonably requests in order for Xerox to perform the Services and Maintenance
Services and/or provide Products;
h. to contract for the minimum types and quantities of Equipment and Consumable Supplies
required by Xerox to perform the Services and Maintenance Services;
i. that, as between Xerox and Customer, Customer alone is responsible for backing up its
Customer Content and Xerox shall not be responsible for Customer's failure to do so;
j. that as between Xerox and Customer, Customer alone is responsible for determining
whether Customer Content provided to Xerox (i) is libelous, defamatory or obscene, or
(ii) may be duplicated, scanned or imaged without violating a third party's intellectual
property rights; and
k. to provide contact information for Equipment such as name and address of Customer
contact.
GEN 1.7—WARRANTIES
a. Mutual Warranties. Each party represents and warrants to the other, as an essential
part of this Agreement, that:
i. it is duly organized and validly existing and in good standing under the laws
of the state of its incorporation or formation;
ii. this Agreement and the Orders hereunder have been duly authorized by all
appropriate corporate action for signature; and
FL-University of So.Florida Master Agreement(Schedule A) 7 11/26/2017
iii. the individual signing this Agreement, and all Orders (where applicable), is
duly authorized to do so.
b. Xerox Warranties.
i. Services Warranty. Xerox warrants to the Customer that the Services will be
performed in a professional and workmanlike manner by Xerox personnel with
appropriate training, experience and skills in accordance with the applicable
Order. If the Services do not comply with the SLAs or other requirements set
forth in the applicable Order, Customer will notify Xerox in writing detailing its
concerns and, within 10 days following Xerox's receipt of such notice, Xerox
and Customerwill meet,clarify the Customer's concern(s)and begin to develop
a corrective action plan. As Customer's exclusive remedy under this warranty
for Xerox's non-compliance with this warranty, Xerox will either modify the
Services to comply with the applicable SLAs or other requirements or re-do the
work at no additional charge within 60 days of finalizing the plan or another time
period agreed to in writing by the parties.
ii. Equipment Warranty. Any Equipment warranty to which Customer is entitled
shall commence upon the Date of Installation. Use by Customer of
consumables not approved by Xerox that affect the performance of the
Equipment may invalidate any applicable warranty.
iii. Third Party Product Warranty. Where Xerox in its sole discretion selects and
supplies Third Party Products, Xerox warrants they will operate substantially
in conformance with applicable SLAs or other requirements in the Order.
Customer's sole remedy for breach of this warranty is to return the Third Party
Product to Xerox and then receive a refund of any fees paid for such non-
conforming Third Party Product, less a reasonable usage fee. If Customer
requests a specific Third Party Product, Xerox will pass-through as permitted
any third party warranties.
iv. Exclusions. Xerox shall not be responsible for any delay or failure to perform
the Services or provide Products, including achieving any associated SLAs or
other requirements in the applicable SOWs, DOSs or Orders, to the extent
that such delay or failure is caused by:
(a) Customer's failure or delay in performing its responsibilities under
this Agreement;
(b) reasons outside Xerox's reasonable control, including Customer
Assets, Customer Content, or delays or failures by Customer's agents,
suppliers or providers of maintenance and repair services for
Customer Assets; or
(c) unauthorized modifications to Equipment, Third Party Hardware or the
Output of Services.
C. Disclaimer. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE
EXPRESS WARRANTIES SET FORTH IN THIS AGREEMENT ARE IN LIEU OF ALL
OTHER WARRANTIES, EXPRESS OR IMPLIED, AND XEROX DISCLAIMS AND
CUSTOMER WAIVES ALL OTHER WARRANTIES INCLUDING ANY WARRANTY OF
MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR
PURPOSE. EXCEPT AS EXPRESSLY PROVIDED HEREIN AND AS PERMITTED BY
APPLICABLE LAW, CUSTOMER WAIVES ALL RIGHTS AND REMEDIES
CONFERRED UPON A LESSEE BY ARTICLE 2A OF THE UNIFORM COMMERCIAL
CODE.
d. The warranties set forth in this Agreement are expressly conditioned upon the use of the
Services, Products and Output of Services for their intended purposes in the systems
environment for which they were designed and shall not apply to any Services, Products
or Output of Services which have been subject to misuse, accident or alteration or
modification by Customer or any third party.
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GEN 1.8—INTELLECTUAL PROPERTY OWNERSHIP
a. Customer Intellectual Property. Customer grants to Xerox a non-exclusive, royalty-
free, fully-paid up, worldwide license to use Customer Intellectual Property, Customer
Content and Output of Services only for purposes of, and only to the extent required for,
providing Services, Maintenance Services or Products under this Agreement. Xerox
agrees not to decompile or reverse engineer any Customer Intellectual Property. Except
as expressly set forth in this Agreement, no rights to any Customer Intellectual Property
are granted to Xerox.
b. Ownership of Output of Services and License to Xerox Intellectual Property.
Except to the extent that the Output of Services may incorporate any Xerox Intellectual
Property, the Output of Services shall be the sole and exclusive property of Customer.
To the foregoing extent, Xerox hereby assigns, grants, conveys, and transfers to
Customer all rights in and to the Output of Services for the applicable Order. To the
extent that the Output of Services may incorporate any Xerox Intellectual Property,Xerox
grants Customer a non-exclusive, perpetual,fully paid-up,worldwide right to use,display
and reproduce the Xerox Intellectual Property only as required for use of the Output of
Services for Customer's customary business purposes and not for resale, license or
distribution outside of Customer's organization. If XDM Customer Views are to be
provided under an SOW,Xerox grants Customer a limited license to access and use the
XDM Customer Views only for the purpose of receiving Services under the SOW.
Customer agrees not to decompile or reverse engineer any Xerox Intellectual Property.
Except as expressly set forth in this Agreement, no rights to any Xerox Intellectual
Property are granted to Customer.
C. Xerox Tools.Xerox Tools may be used by Xerox to provide certain Services.Xerox and
its licensors will at all times retain all right,title and interest in and to Xerox Tools including
without limitation,all intellectual property rights therein, and,except as expressly set forth
herein, no rights to use, access or operate the Xerox Tools are granted to Customer.
Xerox Tools will be installed and operated only by Xerox or its authorized agents.
Customer will not decompile or reverse engineer any Xerox Tools, or allow others to
engage in same. Customer will have access to Data and reports generated by the Xerox
Tools and stored in a provided database as set forth in the applicable SOW. Xerox may
remove Xerox Tools at any time in Xerox's sole discretion, provided that the removal of
Xerox Tools will not affect Xerox's obligations to perform Services, and Customer shall
reasonably facilitate such removal.
d. Xerox Client Tools. Xerox grants to Customer a non-exclusive, non-transferable, non-
assignable (by operation of law or otherwise) license to install, use and access the Xerox
Client Tools only for the purpose of receiving the Services for which they were provided.
Customer may not: (i)distribute, copy, modify, create derivatives of, decompile,or reverse
engineer the Xerox Client Tools, except as permitted by applicable law;or, (ii)allow others
to engage in same.Title to the Xerox Client Tools and all intellectual property rights therein
shall, at all times, reside solely with Xerox and its licensors.Certain Xerox Client Tools may
be subject to mandatory third party flow-down terms and conditions,which will be provided
separately.
e. Data Collection and Use. Data collected by the Xerox Tools is transmitted by a Xerox
Tool to a remotely hosted server that hosts other Xerox Tools. The automatic data
transmission capability will not allow Xerox to read, view or download any Customer
documents or other information residing on or passing through the Equipment or Third
Party Hardware or Customer's information management systems.
GEN 1.9—INDEMNIFICATION
a. General Indemnification. Xerox and, to the extent allowed by applicable law, the
Customer, if promptly notified and given the right to control the defense, shall indemnify,
defend and hold harmless the other party, its Affiliates, and their respective officers,
directors, employees, agents, successors and assigns, from and against all claims by a
third party for losses, damages, costs or liability of any kind (including expenses and
FL-University of So.Florida Master Agreement(Schedule A) 9 11/26/2017
reasonable legal fees) that a court finally awards such party ("Claims") for bodily injury
(including death)and damage to real or tangible property, to the extent proximately caused
by the negligent acts or omissions, or willful misconduct of the indemnifying party (or its
Affiliates) in connection with this Agreement.
b. Xerox Indemnification. Xerox shall, if promptly notified by Customer (or its Affiliate(s))
and given the right to control the defense, indemnify,defend and hold harmless Customer,
its Affiliates and their respective officers, directors, employees, agents successors and
assigns, for all Claims that Xerox Products or Customer's use of the Services provided by
Xerox under this Agreement infringe a U.S. patent, copyright or other intellectual property
right. Notwithstanding anything to the contrary herein,Xerox shall have no obligation under
this subsection GEN 1.9(b) to the extent any Claim is based on or arises out of any (i)
Services performed using Customer Assets, Customer Content or other materials
provided to Xerox by Customer for which Customer failed to provide sufficient rights to
Xerox; (ii) infringement by Services resulting from Customer's direction, specification or
design, (iii) modification or alteration to such Xerox Products or Services not approved in
writing by Xerox; (iv) any combination or use of the Xerox Products or Services not
approved in writing by Xerox; (v) use of the Xerox Products or Services not in accordance
with the applicable Documentation; or (vi) Customer's failure to use corrections or
enhancements to the Xerox Products provided by Xerox. If a Claim is made, or appears
likely to be made, pursuant to this subsection GEN 1.9(b), Customer agrees to permit
Xerox, at Xerox's sole option and expense, to obtain the right to enable Customer to
continue to use such Xerox Products, to make them non-infringing or to replace them with
items that are at least functionally equivalent. If Xerox determines that none of these
alternatives is reasonably available, Customer agrees to return such Xerox Products to
Xerox upon Xerox's written request. Xerox will then give Customer a refund equal to the
amount Customer paid Xerox for such Xerox Products less a reasonable usage fee.
C. Customer Indemnification. To the extent allowed by applicable law, Customer shall, if
promptly notified by Xerox (or its Affiliate(s)) and given the right to control the defense,
indemnify, defend and hold harmless Xerox, its Affiliates, and their respective officers,
directors, employees, agents, successors and assigns, for all Claims for intellectual
property infringement to the extent such Claim is based on (i) Xerox's use of Customer
Assets or customer's content or materials used in performing Services or providing
Products underthis Agreement or any Order entered into hereunder; (ii) Customer's use of
the Products or Services not in accordance with this Agreement or the applicable
Documentation; and (iii) Claims arising out of or related to Section GEN 1.9(b)(i)-(vi) or
Customer's failure to perform its responsibilities under Section GEN 1.60)
d. The indemnifying party is not responsible for any litigation expenses of the indemnified
party or any settlements unless it pre-approves them in writing.
GEN 1.10— LIMITATION OF LIABILITY
Except as prohibited by law, the following limitations apply:
a. NO CONSEQUENTIAL DAMAGES. SUBJECT TO SECTION GEN 1.10(c), IN NO
EVENT WILL EITHER PARTY OR ITS AFFILIATES OR THEIR RESPECTIVE
OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS BE LIABLE TO THE OTHER
PARTY OR ITS AFFILIATES OR THEIR RESPECTIVE OFFICERS, DIRECTORS,
EMPLOYEES OR AGENTS FOR ANY INDIRECT, INCIDENTAL, EXEMPLARY,
PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT
LIMITATION, DAMAGES FOR LOST PROFITS, REGARDLESS OF THE FORM OF
ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE AND
INDEMNITY)OR OTHERWISE,AND EVEN IF SUCH PARTY HAS BEEN ADVISED OF
THE POSSIBILITY OF SUCH DAMAGES.
b. LIMITATION ON RECOVERY. SUBJECT TO SECTION GEN 1.10(c), THE TOTAL
AGGREGATE LIABILITY OF EITHER PARTY (AND ITS AFFILIATES AND THEIR
RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS) FOR DIRECT
DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT,
FL-University of So.Florida Master Agreement(Schedule A) 10 11/26/2017
WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE AND INDEMNITY), OR
OTHERWISE, WILL BE LIMITED TO AN AMOUNT EQUAL TO THE LESSER OF THE
AMOUNT OF ALL CHARGES PAID BY CUSTOMER TO XEROX UNDER THE ORDER
UNDER WHICH THE CLAIM AROSE (LESS PASS THROUGH EXPENSES SUCH AS,
WITHOUT LIMITATION, POSTAGE) IN THE TWELVE (12) MONTHS PRIOR TO THE
DATE UPON WHICH THE CLAIM AROSE OR $200,000. THE EXISTENCE OF
MULTIPLE CLAIMS OR SUITS UNDER OR RELATED TO THIS AGREEMENT AND ANY
ORDERS HEREUNDER WILL NOT ENLARGE OR EXTEND THIS LIMITATION OF
DAMAGES. NOTWITHSTANDING THE FOREGOING, NOTHING SET FORTH IN THIS
SECTION GEN 1.10(b) SHALL LIMIT CUSTOMER'S OBLIGATION TO PAY XEROX ALL
CHARGES AND EXPENSES FOR PRODUCTS AND SERVICES PROVIDED UNDER
THIS AGREEMENT.
C. EXCEPTIONS. THE LIMITATIONS SET FORTH IN SECTION GEN 1.10 SHALL NOT
APPLY WITH RESPECT TO:
i. EITHER PARTY'S WILLFUL MISCONDUCT OR FRAUD;
ii. A PARTY EXCEEDING ITS RIGHTS, IF ANY, TO THE OTHER PARTY'S
INTELLECTUAL PROPERTY OR MISAPPROPRIATING OR INFRINGING THE
OTHER PARTY'S INTELLECTUAL PROPERTY RIGHTS AS GRANTED UNDER
THIS AGREEMENT.
GEN 1.11 —TERM AND TERMINATION
This Agreement shall commence on the Effective Date and shall continue for a term of
months, and continue on a month-to-month basis thereafter until expressly renewed by mutual written
agreement or terminated by either party upon thirty (30) days' written notice. Upon termination,
Customer shall permit Xerox to enter Customer Facilities for purposes of removing the Products,Xerox
Tools and/or Xerox Client Tools. Each Order hereunder shall have its own term,which shall be stated
in the Order. In the event the Agreement expires or is terminated, each Services Contract in effect at
such time shall remain in full force and effect until the expiration or termination of all Orders constituting
such Services Contract (including any extensions or renewals thereof) and shall at all times be
governed by, and be subject to, the terms and conditions of this Agreement as if this Agreement were
still in effect. Termination of any Order shall not affect this Agreement or any other Orders then in
effect. Notwithstanding any other provision in the Agreement to the contrary, should an Order be
terminated prior to expiration for any reason or a unit of Third Party Hardware or any Third Party
Software for which Third Party Funds have been provided is removed or replaced prior to expiration,
Customer agrees to pay to Xerox, in addition to any other amounts owed under said Order, an amount
equal to the remaining principal balance of the Funds together with a 15%disengagement fee,for loss
of bargain and not as a penalty.
GEN 1.12— CONFIDENTIALITY
a. Obligation. Customer and Xerox acknowledge that, during the term of this Agreement
and any Order hereunder, each party(or its Affiliates)may be provided with or have access
to, certain Confidential Information belonging to the other party(or its Affiliates).The parties
will ensure that their employees comply with their respective corporate policies and
procedures regarding the disclosure of Confidential Information. The parties agree to use
the Confidential Information provided under this Agreement only for purposes directly
related to the performance of obligations and use of rights granted under this Agreement.
The receiving party may not disclose Confidential Information to third parties unless such
third party has a need to know such Confidential Information in order to perform under this
Agreement and has agreed in writing to be bound by terms no less restrictive than those
set forth herein. Each party shall be responsible for any breaches of the obligations in this
Section by its employees and such third parties. The receiving party shall protect the
disclosing party's Confidential Information with the same degree of care that it uses to
protect its own confidential information of like importance, but not less than reasonable
care. Each party agrees not to disclose the terms and conditions of this Agreement, all
Services Contracts and Orders, and any attachments and exhibits thereto, without the
other party's prior written consent. Xerox may use Customer as a reference with other
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customers, including in marketing materials.Xerox may disclose the identity and address
of Customer to Xerox's third party licensors if contractually required for royalty reporting
purposes.
b. Unilateral Cancellation/Public Records Law. (applicable to State and Local Florida
Government Customers only) Notwithstanding any confidentiality provisions in this
Agreement, as an agency or subdivision of the State of Florida, Customer is subject to
Chapter 119, Florida Statutes ("Florida Public Records Act"). As such, this Agreement
and all associated materials and information may be considered a "public record."While
Customer will endeavor not to voluntarily disclose this Agreement or other associated
information, it reserves the absolute right to interpret its legal obligations under the Florida
Public Records Act.Any necessary disclosure of this Agreement or any other information
pursuant to a public records request shall not be considered a breach of any
confidentiality provisions.
Further, Xerox may be considered a contractor of a public agency as defined in §
119.0701(1)(b), and may be required by law to keep and maintain public records related to
its services; provide copies of,or allow inspection of,such public records to Customer upon
request; and ensure that exempt or confidential and exempt records are not disclosed
except as authorized by law. Upon completion of this Agreement or performance of the
services, Xerox may transfer all public records related to the services to Customer, at no
cost to Customer, or may keep such public records in accordance with the applicable state
record retention requirements. If Xerox chooses to transfer such records to Customer,
Xerox shall destroy any duplicate records in its possession that are exempt or confidential
and exempt from disclosure.
CUSTOMER CANNOT PROVIDE LEGAL ADVICE TO
XEROX REGARDING ITS LEGAL DUTIES. HOWEVER,
XEROX MAY CONTACT CUSTOMER'S CUSTODIAN OF
PUBLIC RECORDS AT <INSERT EMAIL> OR <INSERT
PHONE> IF XEROX HAS QUESTIONS REGARDING THE
APPLICATION OF CHAPTER 119, FLORIDA STATUTES TO
XEROX'S DUTY TO PROVIDE AND MAINTAIN PUBLIC
RECORDS RELATING TO THIS AGREEMENT.
Customer may unilaterally cancel the Agreement for refusal by Xerox to comply with the
provisions of Chapter 119, Florida Statutes.
C. Exclusions. The obligations of confidentiality will not apply to any Confidential Information
that: (1) was in the publicly available prior to, at the time of, or subsequent to the date of
disclosure through no fault of the receiving party; (2) was rightfully in the receiving party's
possession or the possession of any third party free of any obligation of confidentiality; or
(3) was developed by the receiving party's employees independently of and without
reference to any of the other party's Confidential Information.
d. Return of Information. Upon termination or expiration of this Agreement or an Order,
except as otherwise set forth hereunder, each party shall cease use of the other party's
Confidential Information and other data and, upon request, shall (1) return all such
Confidential Information and any copies thereof, or (2) permanently destroy
suchConfidential Information and certify that such Confidential Information has been so
destroyed; provided, however, that any obligations regarding removal of Customer
Confidential Information stored on hard drives on Equipment owned by Xerox and any
costs associated with such removal will be set forth in the applicable Order.
e. Disclosure under Legal Requirement. If the recipient of Confidential Information is
required to disclose Confidential Information pursuant to a court order or by law or
regulation, that party will (1) notify the disclosing party of the obligation to make such
disclosure, and (2) reasonably cooperate with the disclosing party if the disclosing party
FL-University of So.Florida Master Agreement(Schedule A) 13 11/26/2017
seeks a protective order, but any costs incurred by the receiving party will be reimbursed by
the disclosing party, except for costs of the receiving party's employees.
f. Duration of Confidentiality Obligation. Except for Private Information and Xerox
Intellectual Property, the obligations set forth in this Section shall continue for one (1) year
after termination or expiration of this Agreement or the Order under which such Confidential
Information was disclosed,whichever occurs later.The duration of confidentiality obligations
with respect to Private Information shall be governed by applicable Privacy Laws.
Confidentiality obligations with respect to Xerox Intellectual Property shall continue so long
as it continues to be Xerox trade secrets, as defined by § 688.002(4), Florida Statutes, as
applicable..
g. Residual Rights. Each party understands that the other party shall be free to use for any
purpose the Residuals resulting from access to Confidential Information as a result of the
performance of its obligations under an Order, provided that such party shall maintain the
confidentiality of such Confidential Information as provided herein. Neither party shall pay
royalties for the use of Residuals. However,the foregoing shall not be deemed to grant either
party a license under the other party's copyrights or patents.
GEN 1.13— DATA PROTECTION/PRIVACY
a. To the extent that Privacy Laws are applicable to Customer and Xerox in connection with
the performance of Services, each party agrees to comply with the applicable provisions
of such Privacy Laws.
b. Xerox has adopted reasonable physical, technical and organizational safeguards
designed to prevent accidental, unauthorized or unlawful loss, disclosure, access,
transfer or use of Private Information.Xerox will promptly notify Customer in the event of
any known unauthorized or unlawful loss, disclosure, access, transfer or use of Private
Information.
GEN 1.14—GOVERNING LAW AND JURISDICTION
This Agreement, each respective Order, and any dispute or claim arising out of or in connection with
this Agreement or such Order, shall be governed by and construed in accordance with the laws of
Florida without regard to its conflict of laws provisions and submitted to the exclusive jurisdiction of
the federal and state courts of Florida. The parties agree to waive their rights to a jury trial.
GEN 1.15— RESERVED.
GEN 1.16— FORCE MAJEURE
Except for Customer's absolute and unconditional obligation to make all required payments of any
amounts not properly disputed under this Agreement, neither Customer nor Xerox shall be liable to
the other party during any period in which its performance is delayed or prevented, in whole or in
part, by a Force Majeure Event. If such a circumstance occurs, the party whose performance is
delayed or prevented shall undertake reasonable action to notify the other party thereof.
GEN 1.17— INSURANCE COVERAGE
Xerox shall maintain the following limits of insurance coverage during the term of this Agreement:
a. Where required by law, Workers Compensation, at statutory limits;
b. Employers Liability, with $1,000,000 USD limit of liability or at statutory limits, whichever
is greater;
C. Commercial General Liability, including Products - Completed Operations coverage and
Broad Form Contractual, with $2,000,000 USD limit of liability per occurrence for Bodily
Injury and Property Damage; and,
d. Where applicable, Automobile Liability, with a combined single limit of liability of
$2,000,000 USD per accident or at statutory limits, whichever is greater.
GEN 1.18— FUNDING (Applies To State &Local Government Customers Only)
Customer represents and warrants that all payments due and to become due during Customer's
current fiscal year are within the fiscal budget of such year and are included within an unrestricted
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and unencumbered appropriation currently available for the acquisition of the Products, and it is
Customer's intent to use the Products for the entire initial term and to make all payments required
under the Agreement or an Order. If (i) through no action initiated by Customer, Customer's
governing body does not appropriate funds for the continuation of the Agreement or an Order for
any fiscal year after the first fiscal year and has no funds to do so from other sources, and (ii)
Customer has made a reasonable but unsuccessful effort to find an assignee within Customer's
general organization who can continue the Agreement or an Order, the Agreement or the Order may
be terminated. To effect this termination, Customer must, 30 days prior to the beginning of the fiscal
year for which Customer's governing body does not appropriate funds for the upcoming fiscal year,
notify Xerox that Customer's governing body failed to appropriate funds and that Customer has
made the required effort to find an assignee. Customer's notice must certify that canceled
Equipment is not being replaced by equipment performing similar functions during the ensuing fiscal
year. Customer agrees to release the Equipment to Xerox and, when returned, the Equipment will
be in good condition and free of all liens and encumbrances. Customer will then be released from
any further payments obligations beyond those payments due for the current fiscal year.
GEN 1.19— COMPLIANCE WITH LAWS AND POLICIES
Xerox and Customer shall comply with all applicable laws and regulations in the performance of
their respective obligations under this Agreement. Xerox agrees to comply with Customer's internal
policies regarding security and safety at Customer Facilities that are reasonable and customary
under the circumstances and which do not conflict with the terms of this Agreement. Customer
agrees to provide Xerox with reasonable prior written notice of such policies and any changes to
such policies. If a change in Customer policy results in incremental costs to Xerox,Xerox may, upon
providing notice to Customer, pass such costs on to Customer.
GEN 1.20—MISCELLANEOUS
a. Copies of Agreement. Except as required by law, both parties agree that any
reproduction of this Agreement made by reliable means (for example, photocopy or
facsimile)shall be considered an original.Xerox may retain a hardcopy, electronic image,
photocopy or facsimile of this Agreement and each Order hereunder, which shall be
considered an original and shall be admissible in any action to enforce said Agreement
or Order.
b. Amendment.All changes to this Agreement must be made in a writing signed by Customer
and Xerox.Any amendment of this Agreement shall not affect the obligations of either party
under any then-existing Orders, which shall continue in effect unless the amendment
expressly states that it applies to such existing Orders. An amendment to a Services
Contract shall reference the number of the Services Contract that it amends.
C. No Waiver; Severability; Survival.The failure by Customer or Xerox to insist upon strict
performance of any of the terms and conditions in this Agreement or to exercise any rights
or remedies will not be construed as a waiver of the right to assert those rights or to rely
on that term or condition at any time thereafter. If any provision is held invalid by any
arbitrator or any court under applicable law, such provision shall be deemed to be
restated as nearly as possible to reflect the original intention of the parties in accordance
with applicable law. The remainder of this Agreement shall remain in full force and effect.
Any terms and conditions of this Agreement or any Order which by their nature extend
beyond the termination or expiration of the Agreement or Order will survive such
termination or expiration.
d. Independent Contractors.Xerox shall perform all Services hereunder in the capacity of
independent contractor and not as Customer's employee, agent,or representative.Xerox
employees shall not be entitled to privileges of employment that Customer may provide
to Customer's employees, and Xerox shall be responsible for payment of all
unemployment, social security, federal (state and local, as necessary) and other payroll
taxes in regard to its employees involved in the performance of the Services. Neither of
the parties, nor their respective employees or Affiliates, shall be authorized to conclude
contracts in the name of the other party, or to act or appear as a representative of the
other, whether in performing the Services or otherwise.
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e. No Hiring. During the term of an Order under which Xerox is providing Services and for
a period of one (1)year thereafter, Customer and Xerox each agree not to hire, solicit, or
employ any of the other's personnel who have been engaged in the provision of services
or the performance of this Agreement, unless prior written consent is obtained from the
other party. Such prohibition shall not apply to hiring as a result of general public
solicitations of employment. Should one of the parties hire the other party's personnel in
violation of this Agreement, the violating party shall immediately pay to the other, as
liquidated damages and as the sole remedy for such violation, an amount equal to such
personnel's then current annual compensation (or the amount paid to such person during
the previous twelve (12) months in the case of an independent contractor).
f. Assignment. Except for Xerox's assignment to an Affiliate or to a third party for the
purposes of securitizing or factoring, neither party may assign this Agreement and any
Order(s) hereunder without the prior written consent of the other party. In the event of a
permitted assignment by Xerox, each successive assignee of Xerox will have all of the
rights but none of the obligations of Xerox pursuant to this Agreement. Customer will
continue to look to Xerox for performance of Xerox's obligations hereunder and Customer
hereby waives and releases any assignees of Xerox from any such claim. Customer will
not assert any defense, counterclaim, or setoff that Customer may have or claim against
Xerox against any assignee of Xerox.
g. Communication Authorization. Customer authorizes Xerox or its agents to
communicate with Customer by any electronic means (including cellular phone, email,
automatic dialing, and recorded messages) using any phone number (including cellular)
or electronic address that Customer provides to Xerox.
h. Limitation on Charges. In no event will Xerox charge or collect any amounts in excess of
those allowed by applicable law. Any part of an Order that would, but for this Section, be
construed to allow for a charge higher than that allowed under any applicable law, is limited
and modified by this Section to limit the amounts chargeable under such Order to the
maximum amount allowed by law. If, in any circumstances, an amount in excess of that
allowed by law is charged or received, such charge will be deemed limited to the amount
legally allowed and the amount received by Xerox in excess of that legally allowed will be
applied to the payment of amounts owed or will be refunded to Customer.
i. Order of Precedence; Entire Agreement. This Agreement, including all schedules,
attachments, exhibits and amendments hereto and the Services Contract(s) hereunder,
constitutes the entire agreement between the parties as to the subject matter and
supersedes all prior and contemporaneous oral and written agreements regarding the
subject matter hereof and neither party has relied on or is relying on any other information,
representation, discussion or understanding in entering into and completing the
transactions contemplated in this Agreement. The parties agree that except as expressly
set forth in this Agreement, in the event of any conflict between terms and conditions, the
order of precedence shall be this Agreement, the applicable Orders under the Services
Contract(excluding Customer POs), and the SOW or DOS, as applicable. If a term in this
Agreement expressly provides for a term in an Order to take precedence, such provision
in the Order shall prevail to the extent of any conflict. Notwithstanding the foregoing,
provisions in the General Module of this Agreement related to: (1) Section GEN 1.8
(Intellectual Property Ownership); (2)Section GEN 1.9 (Indemnification); (3)Section GEN
1.10 (Limitation of Liability); (4) Section GEN 1.12 (Confidentiality); and (5) Section GEN
1.3 (Taxes),will prevail over conflicting provisions in any other contractual document.
SERVICES MODULE
SVC 1 —TERMS AND CONDITIONS SPECIFIC TO SERVICES
In addition to the terms and conditions in the General (GEN) Module, the following terms and
conditions apply to Xerox's performance of Services.
SVC 1.1 —SCOPE OF SERVICES
Subject to the terms and conditions of this Agreement, Services will be performed by Xerox and/or its
Affiliates in accordance with the requirements set forth in an Order. If Customer fails to perform or is
delayed in performing any of its responsibilities under this Agreement, such failure or delay may
prevent Xerox from being able to perform any part of the Services or Xerox-related activities. Xerox
shall be entitled to an extension or revision of the applicable term of the Order (which may include
setting a new expected date for commencement of Services) or to an equitable adjustment in
performance metrics associated with such failure or delay.
SVC 1.2—CHARGES FOR SERVICES
Charges for Services are set forth in the applicable Order. Charges are based upon information
exchanged between Customer and Xerox,which is assumed to be complete and accurate, and also
depend upon other factors such as the timely performance by Customer of its responsibilities. If: (a)
such information should prove to be incomplete or inaccurate in any material respect; or(b)there is
a failure or delay by the Customer in performing its responsibilities under this Agreement or an Order
which results in Xerox incurring a loss or additional cost or expense, then the charges shall be
adjusted to reflect proportionately the impact of such materially incomplete or inaccurate information
or such failure or delay. Charges that are indicated in an Order as being fixed are not subject to an
annual percentage escalation for the initial term of such Order. If Xerox provides Services partially
or early(for example, prior to the start of the initial term of an Order), Xerox will bill Customer on a
pro rata basis, based on a thirty(30)day month, and the terms and conditions of this Agreement will
apply.
SVC 1.3— USE OF SUBCONTRACTORS
Xerox may, when it reasonably deems it appropriate to do so, subcontract any portion of the
Services. Xerox shall remain responsible for any Services performed by subcontractors retained
by Xerox to the same extent as if such Services were performed by Xerox.
SVC 1.4— SERVICES SCOPE CHANGES
Except as otherwise set forth in an Order, either party may propose to modify the then-existing
Services that are described in an Order, or to add new Services under a Services Contract. If Xerox
determines such changes are feasible, Xerox will prepare and propose to Customer an Order
incorporating the requested changes and any related impact to the Charges or terms. Once
Customer executes and Xerox accepts the Order, Xerox will promptly proceed with the new and/or
revised Services in accordance with the terms of the Order and this Agreement.
SVC 1.5— EARLY TERMINATION OF SERVICES AND LABOR
Except as otherwise set forth in a Services Contract, upon ninety (90) days prior written notice,
Customer may terminate or reduce any Services or labor provided pursuant to an Order without
incurring early termination charges, except as set forth in the next sentence. Notwithstanding the
foregoing, if any such Services or labor provided under an Order are terminated (a)by Xerox due to
Customer's default or(b) by Customer and Customer acquires similarservices from anothersupplier
within six (6) months of the termination of such Services or labor, Customer shall pay all amounts
due as of the termination date, together with the early termination charges, for loss of bargain and
not as a penalty, stated in the Order or, if not specifically stated therein, an amount equal to the then
current MMC for said terminated or reduced Services or labor multiplied by the number of months
remaining in the term of the related Order, not to exceed six(6) months.
SVC 1.6— RECOVERY OF FUNDS BALANCES
Notwithstanding any other provision in the Agreement to the contrary, should an Order be
terminated prior to expiration for any reason or a unit of Third Party Hardware or any Third Party
Software for which Third Party Funds have been provided is removed or replaced prior to expiration,
Customer agrees to pay to Xerox, in addition to any other amounts owed under said Order, an
amount equal to the remaining principal balance of the Funds together with a 15% disengagement
fee, for loss of bargain and not as a penalty.
EQUIPMENT MODULE
EQP 1 —TERMS AND CONDITIONS SPECIFIC TO EQUIPMENT&THIRD PARTY HARDWARE
In addition to the terms and conditions in the General (GEN) Module, the following terms and
conditions apply to Equipment and Third Party Hardware provided to Customer.
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EQP 1.1 —TERM AND DATE OF INSTALLATION
The term for each unit of Equipment shall be the term stated on the applicable Order, with the
commencement date based upon the actual Date of Installation. If the Date of Installation for a unit
of Equipment is prior to the applicable Order start date, Xerox will bill the Customer for such
Equipment on a pro rata basis, based on a thirty (30) day month, and the terms and conditions of
this Agreement and the applicable Services Contract will apply as of the Date of Installation.
EQP 1.2— DELIVERY AND REMOVAL AND SUITABILITY OF CUSTOMER FACILITIES
Xerox will be responsible for all standard delivery charges for Equipment and Third Party Hardware
and, for Equipment or Third Party Hardware for which Xerox holds title, standard removal charges.
Non-standard delivery or removal charges (including removal prior to the end of the term for any
Equipment) will be at Customer's expense. The suitability of Customer Facilities for installation of
Equipment or Third Party Hardware, including compliance with state and local building, fire and
safety codes and any non-standard state or local installation requirements, is Customer's
responsibility.
EQP 1.3— EQUIPMENT STATUS
Unless Customer is acquiring previously installed equipment, Equipment will be either: (a) "Newly
Manufactured,"which may contain some recycled components that are reconditioned; (b) "Factory
Produced New Model"which is manufactured and newly serialized at a Xerox factory, adds functions
and features to a product previously disassembled to a Xerox predetermined standard, and contains
new components and recycled components that are reconditioned; or(c) "Remanufactured,"which
has been factory produced following disassembly to a Xerox predetermined standard and contains
both new components and recycled components that are reconditioned. Xerox makes no
representations as to the status of any Third Party Hardware that Xerox may provide under any
Order.
EQP 1.4—CONSUMABLE SUPPLIES
If specified in an Order, Xerox will provide Consumable Supplies for related Equipment. Consumable
Supplies are Xerox's property until used in the Equipment for which they are provided. Upon expiration
or termination of the applicable Order, Customer will either return any unused Consumable Supplies
to Xerox at Xerox's expense when using Xerox-supplied shipping labels, or destroy them in a manner
permitted by applicable law. Xerox reserves the right to charge Customer for any Consumable
Supplies usage that exceeds Xerox's published yields by more than ten percent(10%). In such a case,
Xerox will notify Customer of the excess usage. If such excess usage does not cease within thirty(30)
days after notice,Xerox may charge Customer for the excess usage. If Xerox provides paper under a
Services Contract, upon thirty (30) days' notice, Xerox may adjust paper pricing or either party may
terminate the provision of paper.
EQP 1.5— USE AND RELOCATION
For any Equipment or Third Party Hardware provided by Xerox, with the exception of Purchased
Equipment for which Customer has paid in full,Customer agrees that: (a)the Equipment or Third Party
Hardware shall remain personal property; (b)Customer will not attach any of the Equipment or Third
Party Hardware as a fixture to any real estate; (c) Customer will not pledge, sub-lease or part with
possession of the Equipment or Third Party Hardware or file or permit to be filed any lien against the
Equipment or Third Party Hardware; and (d)Customer will not make any permanent alterations to the
Equipment or Third Party Hardware.While Equipment or Third Party Hardware is subject to an Order,
Customer must provide Xerox prior written notice of all Equipment or Third Party Hardware relocations
and Xerox may arrange to relocate the Equipment or Third Party Hardware at Customer's expense.
While Equipment or Third Party Hardware is being relocated, Customer remains responsible for
making all payments to Xerox required under the applicable Order. All parts or materials replaced,
including as part of an upgrade, will become Xerox's property. Equipment or Third Party Hardware
cannot be relocated outside of the U.S. until Customer has paid in full for the Equipment or Third Party
Hardware and has received title thereto. Notwithstanding anything to the contrary in the foregoing, to
the extent that the Equipment contains any Software, any relocation of such Equipment is subject to
the terms and conditions set forth in the Software License Module of this Agreement.
EQP 1.6— SUPPLIER EQUIPMENT PROVIDED
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In the event Xerox provides Supplier Equipment to Customer, the following terms shall apply unless
otherwise specified in an Order:
a. Unless Supplier Equipment is purchased by Customer, Xerox (or the applicable third
party vendor) shall at all times retain title to the Supplier Equipment. Customer hereby
authorizes Xerox or its agents to file financing statements necessary to protect Xerox's
rights to Supplier Equipment. Each party will promptly notify the other, in writing, of any
change in ownership, and the Customer will notify Xerox if it relocates its principal place
of business or changes the name of its business. The risk of loss for the Supplier
Equipment shall pass to Customer upon delivery to the applicable Customer Facilities.
b. Customer agrees to use the Supplier Equipment in accordance with, and to perform, all
operator maintenance procedures for the Supplier Equipment described in the
applicable Documentation made available or provided by Xerox. The Customer shall not
(unless the Supplier Equipment is Purchased Equipment, and then only with Xerox's
prior consent):
i. sell, charge, let or part with possession of the Supplier Equipment;
ii. remove the Supplier Equipment from Customer Facilities in which it is
installed; or
iii. make any changes or additions to the Supplier Equipment.
C. Early Termination. Equipment is provided for a minimum order term (as specified in
the applicable Order per EQP 1.1 above). If Equipment is terminated for any reason
before the end of its minimum order term, the termination charges set forth in the
applicable Order or Services Contract for such Equipment shall apply.
EQP 1.7— DATA SECURITY
Certain models of Equipment can be configured to include a variety of data security features. There
may be an additional cost associated with certain data security features. The selection, suitability
and use of data security features are solely Customer's responsibility. Upon request, Xerox will
provide additional information to Customer regarding the security features available for particular
Equipment models.
EQP 1.8-REMOTE SERVICES FOR EQUIPMENT
Certain models of Equipment are supported and serviced using Remote Data Access. Remote Data
Access also enables Xerox to transmit to the Customer Maintenance Releases or Updates for
software or firmware and to remotely diagnose and modify Equipment to repair or correct
malfunctions. Remote Data will be transmitted to and from Customer in a secure manner specified
by Xerox. Remote Data Access will not allow Xerox to read, view or download any Customer data,
documents or other information residing on or passing through the Equipment, Third Party Hardware
or Customer's information management systems. Customer grants the right to Xerox,without charge,
to establish and maintain Remote Data Access for the purposes described above. Upon Xerox's
request, Customer will provide contact information for Equipment such as name and address of
Customer contact and IP and physical addresses/locations of Equipment. Customer will enable
Remote Data Access via a method prescribed by Xerox and Customer will provide Xerox with
reasonable assistance to allow Xerox to have Remote Data Access. Unless Xerox deems Equipment
incapable of Remote Data Access, Customer will ensure that Remote Data Access is maintained at
all times Maintenance Services are being performed.
EQP 1.9-REMOVAL OF HAZARDOUS WASTE
Customer agrees to take responsibility for legally disposing of all hazardous wastes generated from
the use of Third Party Hardware or supplies.
EQUIPMENT PURCHASE MODULE
EP 1 — TERMS AND CONDITIONS SPECIFIC TO EQUIPMENT PURCHASE
In addition to the terms and conditions in the General (GEN) Module, the following terms and
conditions apply to the acquisition of Purchased Equipment:
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EP 1.1 —ORDER
Orders for an outright purchase of Equipment shall include the unique Xerox-provided contract
number and the number of this Agreement on all applicable ordering documents.
EP 1.2—TITLE
Title to Purchased Equipment will pass to Customer upon delivery to the applicable Customer
Facilities.
EP 1.3— DEFAULT
If Customer defaults under a XOA for Purchased Equipment,Xerox, in addition to its other remedies
(including the cessation of Maintenance Services if applicable), may require immediate payment of
all amounts then due, plus all applicable Transaction Taxes and applicable interest on all amounts
due from the due date until paid.
EP 1.4— MAINTENANCE SERVICES FOR PURCHASED EQUIPMENT
If Customer elects to receive Maintenance Services for Purchased Equipment, Customer shall do
so under a separate Order under the Agreement for such Maintenance Services.
EP 1.5—AGREEMENT PROVISION EXCLUSIONS
The following Agreement provisions do not apply to Orders for an outright purchase of Equipment:
GEN 1.1 c.ii— iii; GEN 1.6 b—j; GEN 1.7 b.1; GEN 1.11; EQP 1.4; EQP 1.6.
MAINTENANCE SERVICES MODULE
MS 1 —TERMS AND CONDITIONS SPECIFIC TO MAINTENANCE SERVICES
In addition to the terms and conditions in the General (GEN) Module, and except as otherwise set
forth in an Order, the following terms and conditions apply to provision of Maintenance Services.
MS 1.1 — MAINTENANCE SERVICES
As part of an Order for (a) stand-alone Maintenance Services related to Purchased Equipment, or
(b)Maintenance Services related to Equipment to which Xerox does not hold title, or as a mandatory
part of an Order for Equipment (other than Purchased Equipment) that includes Maintenance
Services, Xerox or a designated service provider will provide the following Maintenance Services
for Equipment. If Customer is acquiring Equipment for which Xerox does not offer Maintenance
Services, such Equipment will be designated as "No Svc." This Module does not apply to
maintenance of Third Party Hardware. Maintenance that Xerox provides on Third Party Hardware
will be provided in accordance with the terms of the applicable Order.
The provision of Maintenance Services is contingent upon Customer facilitating timely and efficient
resolution of Equipment issues by: (i)utilizing Customer-implemented remedies provided by Xerox; (ii)
replacing Cartridges; and (iii) providing information to and implementing recommendations provided
by Xerox telephone support personnel in those instances where Xerox is not providing on-site
Equipment support personnel. If an Equipment issue is not resolved after completion of(i)through (iii)
above,Xerox will provide on-site support as provided in the applicable Order.
MS 1.2— REPAIRS AND PARTS
a. Xerox will make repairs and adjustments necessary to keep the Equipment in good
working order and operating in accordance with its written specifications (including such
repairs or adjustments required during initial installation). Maintenance Services shall
cover repairs and adjustments required as a result of normal wear and tear or defects in
materials or workmanship. Parts required for repair may be new, reconditioned,
reprocessed or recovered.
b. If Xerox is providing Maintenance Services for Equipment that uses
Cartridges, Customer will use only unmodified Cartridges purchased directly from
Xerox or its authorized resellers. Failure to use such Cartridges will void any warranty
applicable to such Equipment. Cartridges packed with Equipment or furnished by Xerox
as Consumable Supplies will meet Xerox's new Cartridge performance standards and
may be new, remanufactured or reprocessed and contain new and/or reprocessed
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components. To enhance print quality, Cartridges for many models of Equipment have
been designed to cease functioning at a predetermined point.
MS 1.3— HOURS AND EXCLUSIONS
Unless otherwise set forth in an Order, Maintenance Services will be provided in areas accessible for
repair services during Xerox's standard working hours. Maintenance Services excludes repairs due
to: (a) misuse, neglect or abuse; (b)failure of the installation site or the PC or workstation used with
the Equipment to comply with Xerox's published specifications; (c) use of options, accessories, or
other products not serviced by Xerox; (d) non-Xerox alterations, relocation, service or supplies; and
(e) failure to perform operator maintenance procedures identified in operator manuals. Customer
agrees to furnish all referenced parts, tools, and supplies needed to perform those procedures that
are described in the applicable manuals and instructions.
MS 1.4— INSTALLATION SITE AND METER READINGS
In order to receive Maintenance Services for Equipment requiring connection to a PC or workstation,
Customer must utilize a PC or workstation that either (a) has been provided by Xerox or (b) meets
Xerox's published specifications. The Equipment installation site must conform to Xerox's published
requirements. If applicable, unless otherwise set forth in an Order, Customer agrees to provide meter
readings in the manner prescribed by Xerox. If Customer does not provide Xerox with meter readings
as required, for Equipment not capable of Remote Data Access, or if Remote Data Access is
interrupted,Xerox may estimate them and bill Customer accordingly.
MS 1.5— REMEDY
If Xerox is unable to maintain the Equipment as described above,Xerox will, as Customer's exclusive
remedy for Xerox's failure to provide Maintenance Services, replace the Equipment with an identical
product or, at Xerox's option, another model with comparable features and capabilities. If replacement
Equipment is provided pursuant to this Section, there shall be no additional charge for its provision by
Xerox during the initial term of the Order and it shall be subject to the terms and conditions of this
Agreement and the applicable Order(s). Customer's use of non-Xerox approved consumables that
affect the performance of the Equipment may invalidate this remedy.
MS 1.6— END OF SERVICE
Xerox has no obligation to maintain or replace Equipment beyond the "End of Service" for that
particular model of Equipment. End of Service ("EOS") means the date announced by Xerox after
which Xerox will no longer offer Maintenance Services for a particular Equipment model. An EOS
Equipment List is available upon request.
SOFTWARE LICENSE MODULE
SW 1 —TERMS AND CONDITIONS SPECIFIC TO SOFTWARE
In addition to the terms and conditions in the General (GEN) Module the following terms and
conditions apply to the license and use of Software and its associated Documentation.
SW 1.1—SOFTWARE LICENSE
Xerox may provide Software to Customer pursuant to an Order hereunder. The following license
applies to Software provided hereunder, unless such Software is accompanied by a click-wrap or
shrink-wrap license agreement or otherwise provided subject to a separate license agreement.
a. Xerox grants Customer a non-exclusive, non-transferable, non-assignable (by operation
of law or otherwise) license to use in the U.S.: (i) Base Software only on or with the
Equipment with which (or within which)it was delivered; and (ii)Application Software only
on any single unit of Equipment, subject to Customer remaining current in the payment
of any indicated applicable Software license fees (including any annual renewal fees).
Customer has no other rights to the Software. Customer will not and will not allow its
employees, agents, contractors or vendors to: (i) distribute, copy, modify, create
derivatives of,decompile,or reverse engineer Software except as permitted by applicable
law; (ii)activate Software delivered with or within the Equipment in an un-activated state;
or, (iii) access or disclose Diagnostic Software for any purpose. Title to Software and all
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copyrights and other intellectual property rights in Software will reside solely with Xerox
and its licensors (who will be considered third party beneficiaries of this Agreement's
software and limitation of liability provisions).
b. The Base Software license will terminate: (i) if Customer no longer uses or possesses
the Equipment with which the Base Software was provided; or(ii) upon the expiration or
termination of any Order under which Customer has acquired the Equipment with which
the Base Software was provided (unless Customer has exercised an option to purchase
the Equipment, where available).
C. Software may contain code to prevent its unlicensed use and/or transfer. If you do not
permit Xerox periodic access to such Software, this code may impair the Equipment's
and/or Software's functionality.
d. Xerox does not warrant that the Software will be free from errors or that its operation will
be uninterrupted.
SW 1.2—SOFTWARE SUPPORT
Software support will be provided by Xerox or a designated service provider as follows. For Base
Software, Software support will be provided during the initial term of the applicable Order and any
renewal period, but not longer than five (5) years after Xerox stops taking orders for the subject
model of Equipment. For Application Software, Software support will be provided as long as
Customer is current in the payment of all applicable software license, annual renewal and "support
only"fees.
a. Xerox will maintain a web-based or toll-free hotline during Xerox's standard working hours
to report Software problems and answer Software-related questions. Xerox, either
directly or with its vendors, will make reasonable efforts to: (i) assure that Software
performs in material conformity with its Documentation; (ii)provide available workarounds
or patches to resolve Software performance problems; and (iii) resolve coding errors for
(1) the current release and (2) the previous release for a period of six (6) months after
the current release is made available to Customer. Xerox will not be required to provide
Software support if Customer has modified the Software.
b. Xerox may make available new releases of the Software that are designated as
"Maintenance Releases" or"Updates." Maintenance Releases or Updates are provided
at no charge and must be implemented within six (6) months after being made available
to Customer. Each Maintenance Release or Update shall be considered Software
governed by these terms. Feature Releases will be subject to additional license fees at
Xerox's then-current pricing and shall be considered Software governed by these terms
and conditions (unless otherwise noted in an Order). Implementation of a Maintenance
Release, Update or Feature Release may require Customer to procure, at its expense,
additional hardware and/or software from Xerox or another entity. Upon installation of a
Maintenance Release, Update or Feature Release,Customer will return or destroy all prior
Maintenance Releases, Updates or Feature Releases.
C. Xerox may annually increase Software license fees and support fees for Application
Software.
SW 1.3— DIAGNOSTIC SOFTWARE
Diagnostic Software and method of entry or access to it constitute valuable trade secrets of Xerox.
Title to the Diagnostic Software shall at all times remain solely with Xerox and Xerox's licensors.
Xerox does not grant Customer a license or right to use the Diagnostic Software. Customer will not
use, reproduce, distribute,or disclose the Diagnostic Software for any purpose(or allow third parties
to do so). Customer will allow Xerox reasonable access to the Equipment during Customer's normal
business hours to remove or disable Diagnostic Software if Customer is no longer receiving
Maintenance Services from Xerox.
SW 1.4—THIRD PARTY SOFTWARE
Third Party Software is subject to license and support terms provided by the applicable Third Party
Software vendor.
IN WITNESS WHEREOF, the parties have executed this Agreement on the dates set forth
below intending it to become effective on the Effective Date and thereby agreeing to its terms.
ENTER NON-AFFILIATED ENTITY NAME XEROX CORPORATION
Signature Signature
Name (please print) Name
Title Title
Address Address
Date Date
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