122436 O5 - MedImpact Response.pdf

122436 O5 Prescription Drug Benefits Plan

CONTRACTUAL AGREEMENT FORM

By signing this Contractual Agreement Form, the bidder guarantees compliance with the provisions stated in this solicitation and agrees to the terms and conditions unless otherwise indicated in writing and certifies that bidder is not owned by the Chinese Communist Party.

THIS FORM MUST BE SIGNED MANUALLY IN INK OR BY DOCUSIGN

COMPANY: MedImpact Healthcare Systems, Inc.

ADDRESS:

10181 Scripps Gateway Court San Diego, California 92131

PHONE: 800.788.2949

EMAIL: Krista.Kelley@medimpact.com

BIDDER NAME & TITLE:

Krista Kelley – Senior Vice President, Sales and

Marketing

SIGNATURE:

DATE:

VENDOR COMMUNICATION WITH THE STATE CONTACT INFORMATION

(IF DIFFERENT FROM ABOVE)

NAME: Eric McKinnon

TITLE: R.Ph., M.B.A – Sales Director

PHONE: (816) 890-1161

EMAIL: Eric.McKinnon@medimpact.com

BIDDER MUST COMPLETE THE FOLLOWING

Per Nebraska’s Transparency in Government Procurement Act, Neb. Rev Stat § 73-603, DAS is required to collect statistical information regarding the number of contracts awarded to Nebraska Vendors. This information is for statistical purposes only and will not be considered for contract award purposes.

_No_ NEBRASKA VENDOR AFFIDAVIT: Bidder hereby attests that bidder is a Nebraska Vendor.

“Nebraska Vendor” shall mean any bidder who has maintained a bona fide place of business and at least one employee within this state for at least the six (6) months immediately preceding the posting date of this Solicitation. All vendors who are not a Nebraska Vendor are considered Foreign Vendors under Neb. Rev Stat § 73-603 (c).

_No_ I hereby certify that I am a Resident disabled veteran or business located in a designated enterprise zone in accordance with Neb. Rev. Stat. § 73-107 and wish to have preference, if applicable, considered in the award of this contract.

_No_ I hereby certify that I am a blind person licensed by the Commission for the Blind & Visually Impaired in accordance with Neb. Rev. Stat. § 71-8611 and wish to have preference considered in the award of this contract.

Docusign Envelope ID: 32B4B386-2049-4285-B95B-118AA746061B

July 17, 2025

Docusign Envelope ID: 32B4B386-2049-4285-B95B-118AA746061B

122436 O5

MedImpact Corporate Overview

JULY 18, 2025

Corporate Overview

MedImpact.com i

Table of Contents

Table of Contents .............................................................................................................................................. i

CORPORATE OVERVIEW

A. BIDDER IDENTIFICATION AND INFORMATION

B. FINANCIAL STATEMENTS

C. CHANGE OF OWNERSHIP

D. OFFICE LOCATION

E. RELATIONSHIPS WITH THE STATE

F. BIDDER’S EMPLOYEE RELATIONS TO STATE

G. CONTRACT PERFORMANCE

H. SUMMARY OF BIDDER’S CORPORATE EXPERIENCE

I. SUMMARY OF BIDDER’S PROPOSED PERSONNEL/MANAGEMENT APPROACH

J. SUBCONTRACTORS

K. PENDING LITIGATION

L. BANKRUPTCY

M. FINANCIAL RATINGS

N. OTHER MAJOR CHANGES

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CORPORATE OVERVIEW

The Corporate Overview section of the solicitation response should consist of the following subdivisions:

A. BIDDER IDENTIFICATION AND INFORMATION

The bidder should provide the full company or corporate name, address of the company's headquarters, entity organization (corporation, partnership, proprietorship), state in which the bidder is incorporated or otherwise organized to do business, (including whether the Bidder is in good standing in the state in which it is formed or incorporated), year in which the bidder first organized to do business and whether the name and form of organization has changed since first organized. The Bidder should also provide this information for the branch or local office or other subordinate element that will perform or assist in performing the work on this contract.

MedImpact Healthcare Systems, Inc. (MedImpact) located at 10181 Scripps Gateway Court, San Diego, CA 92131, is a privately owned C corporation, incorporated in the state of California on June 1, 1993.

We have not utilized any other name or organization form.

MedImpact’s San Diego, California headquarters will perform the majority of the work for the State. Account management team members work remotely.

B. FINANCIAL STATEMENTS

The bidder should provide its organization's last audited financial statement and the most recent unaudited financial statement if the most recent audited financial statement is older than 12 months as well as the latest SSAE 21 report. If publicly held, the bidder should provide a copy of the corporation's most recent audited financial reports and statements, and the name, address, and telephone number of the fiscally responsible representative of the bidder’s financial or banking organization.

If the bidder is not a publicly held corporation, either the reports and statements required of a publicly held corporation, or a description of the organization, including size, longevity, client base, areas of specialization and expertise, and any other pertinent information, should be submitted in such a manner that solicitation evaluators may reasonably formulate a determination about the stability and financial strength of the organization. Additionally, a non-publicly held firm should provide a banking reference.

The bidder must disclose any and all judgments, pending or expected litigation, or other real or potential financial reversals, which might materially affect the viability or stability of the organization, or state that no such condition is known to exist.

The State may elect to use a third party to conduct credit checks as part of the corporate overview evaluation.

Please see our most recent audited financial statements Exhibit 1.

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We have included the following bank references:

Ron Caldwell | Managing Director Co-Head of Leveraged Finance Origination Truist Securities Mobile: 704.488.0077 Email: ron.caldwell@truist.com

David Rofsky | SVP ICG Relationship Managr Healthcare | Institutional Grup U.S. Bank | Newport Beach Mobile: 949.212.7287 Email: david.rofsky@usbank.com

There are no existing judgments, pending or expected litigation, or other real or potential financial reversals, which might materially affect the viability or stability of MedImpact.

C. CHANGE OF OWNERSHIP

If any change in ownership or control of the company is anticipated during the twelve (12) months following the solicitation response due date, the bidder should describe the circumstances of such change and indicate when the change will likely occur. Any change of ownership to an awarded bidder(s) will require notification to the State.

The bidder should state and describe if it recently experienced any workforce realignments and/or recent merger or acquisition activity. Include in this description, any anticipated changes in ownership or business developments, including but not limited to mergers, stock issues, and the acquisition of new venture capital.

There is no change in ownership or control anticipated during the 12 months following the solicitation response due date.

We acquired Aspen Health, Inc., MTM company, in 2023 and MedImpact’s acquisition of certain Elixir Solutions assets, the PBM subsidiary of Rite Aid, closed February 1, 2024. These acquisitions are the latest addition and part of MedImpact’s ongoing reinvestment strategy to expand the company’s portfolio of clinical, technology, health risk management and consumer empowerment capabilities. MedImpact is celebrating its 35th anniversary this year. While the company began as an independent PBM startup, it has continually invested in innovation and reinvention to offer an ecosystem of total health and technology solutions to meet the needs of clients in a complex and challenging healthcare landscape.

There are no further anticipated changes in workforce realignments.

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D. OFFICE LOCATION

The bidder’s office location responsible for performance pursuant to an award of a contract with the State of Nebraska should be identified.

MedImpact’s San Diego, California headquarters will provide the majority of the services identified. Account management teams work remotely.

E. RELATIONSHIPS WITH THE STATE

The bidder should describe any dealings with the State over the previous twelve (12) months. If the organization, its predecessor, or any Party named in the bidder’s solicitation response has contracted with the State, the bidder should identify the contract number(s) and/or any other information available to identify such contract(s). If no such contracts exist, so declare.

MedImpact has had no contractual dealing with the State of Nebraska over the previous (12) months.

F. BIDDER’S EMPLOYEE RELATIONS TO STATE

If any Party named in the bidder’s solicitation response is or was an employee of the State within the past twelve (12) months, identify the individual(s) by name, State agency with whom employed, job title or position held with the State, and separation date. If no such relationship exists or has existed, so declare.

If any employee of any agency of the State of Nebraska is employed by the bidder or is a subcontractor to the bidder, as of the due date for solicitation response submission, identify all such persons by name, position held with the bidder, and position held with the State (including job title and agency). Describe the responsibilities of such persons within the proposing organization. If, after review of this information by the State, it is determined that a conflict of interest exists or may exist, the bidder may be disqualified from further consideration in this solicitation. If no such relationship exists, so declare.

No party in MedImpact’s solicitation response is, or was, an employee of the State within the last 12 months.

G. CONTRACT PERFORMANCE

If the bidder or any proposed subcontractor has had a contract terminated for default during the past (three)

(3) years, all such instances must be described as required below. Termination for default is defined as a notice to stop performance delivery due to the bidder’s non-performance or poor performance, and the issue was either not litigated due to inaction on the part of the bidder or litigated and such litigation determined the bidder to be in default.

It is mandatory that the bidder submit full details of all termination for default experienced during the past (three) (3) years, including the other Party's name, address, and telephone number. The response to this section must present the bidder’s position on the matter. The State will evaluate the facts and will score the bidder’s solicitation response accordingly. If no such termination for default has been experienced by the bidder in the past (three) (3) years, so declare.

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If at any time during the past (three) (3) years, the bidder has had a contract terminated for convenience, non-performance, non-allocation of funds, or any other reason, describe fully all circumstances surrounding such termination, including the name and address of the other contracting Party.

MedImpact has not had any clients term for default or for convenience in the past 3 years.

H. SUMMARY OF BIDDER’S CORPORATE EXPERIENCE

The bidder should provide a summary matrix listing the bidder’s previous projects similar to this Solicitation in size, scope, and complexity. The State will use no more than three (3) narrative project descriptions submitted by the bidder during its evaluation of the solicitation response.

The bidder should address the following:

i. Provide narrative descriptions to highlight the similarities between the bidder’s experience and this Solicitation. These descriptions should include:

a. The time period of the project,

b. The scheduled and actual completion dates,

c. The bidder’s responsibilities,

d. For reference purposes, a customer name (including the name of a contact person, a current telephone number, a facsimile number, and e-mail address);

and

e. Each project description should identify whether the work was performed as the prime Vendor or as a subcontractor. If a bidder performed as the prime Vendor, the description should provide the originally scheduled completion date and budget, as well as the actual (or currently planned) completion date and actual (or currently planned) budget.

ii. Bidder and Subcontractor(s) experience should be listed separately. Narrative descriptions submitted for Subcontractors should be specifically identified as subcontractor projects.

iii. If the work was performed as a subcontractor, the narrative description should identify the same information as requested for the bidders above. In addition, subcontractors should identify what share of contract costs, project responsibilities, and time period were performed as a subcontractor.

Our corporate experience is included within Table 1. None of the work indicated within Table 1 was performed as a subcontractor.

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I. SUMMARY OF BIDDER’S PROPOSED PERSONNEL/MANAGEMENT

APPROACH

The bidder should present a detailed description of its proposed approach to the management of the project.

The bidder should identify the specific professionals who will work on the State’s project if their company is awarded the contract resulting from this Solicitation. The names and titles of the team proposed for assignment to the State project should be identified in full, with a description of the team leadership, interface, and support functions, and reporting relationships. The primary work assigned to each person should also be identified. For each team member listed, identify whether this staff member will be 100% dedicated/designated to the State account. If the member is not 100% dedicated/designated to the State, please indicate the percentage of time the staff member will designate to the State account as well as the number of other clients with which the staff member has responsibilities. At a minimum, the specific professionals should include:

a. Implementation Coordinator/ Manager

b. Account Executive

c. Eligibility Coordinator/Manager

d. Pharmacist

e. Member Service Manager

f. Government/Legislative Liaison

The bidder should provide resumes for all personnel proposed by the bidder to work on the project. The State will consider the resumes as a key indicator of the bidder’s understanding of the skill mixes required to carry out the requirements of the Solicitation in addition to assessing the experience of specific individuals.

Resumes should not be longer than three (3) pages. Resumes should include, at a minimum, academic background and degrees, professional certifications, understanding of the process, and at least three (3) references (name, address, and telephone number) who can attest to the competence and skill level of the individual. Any changes in proposed personnel shall only be implemented after written approval from the State.

The bidder to note any positions bidder will need to hire if awarded this contract.

The bidder will provide an organization chart, including names and titles, of Account Team and key personnel that will be responsible for the State account.

MedImpact has been providing PBM services since 1989, much of this time has been spent serving state employers such as the State of Nebraska.

Overview Of Account Management

MedImpact provides clients with a concierge approach to account management. MedImpact’s extended service organization model features executive-level team leadership and a multitouch interdisciplinary team with clearly defined escalation and resolution points. We tailor the account management model to achieve each client’s goals and objectives and are committed to meeting our client service objectives:

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➢ Ease of doing business

➢ Continuous quality assurance, accurate reporting, meeting timelines, and exceeding expectations

➢ Proactive needs anticipation and responsiveness

➢ Effective and easy to understand communication

➢ Being a willing partner with an aim to retain and grow business for our clients

➢ Expertise for each client and line of business

We assign an implementation specialist, who transitions off the account after the completion of the implementation phase. To help ensure a seamless transition, your key account management team members are engaged throughout the implementation. After a post-implementation period (typically 90 days), the implementation manager passes responsibility for the ongoing client service to the account management team.

Our team structure is designed to provide prompt response to client inquiries and needs. The account management team will meet with the State as needed, typically quarterly and annual, to discuss performance, goals, future opportunities, and projects. In addition, the team provides structured support through routine coordinated operation meetings based on your preferences. Your account team will facilitate these meetings providing the opportunity to:

➢ Review inquiries and service items

➢ Identify plan priorities

➢ Track progress towards goals

➢ Address your day-to-day needs

Your account manager will serve as your daily point of contact with a goal of one-touch resolution. We track all inquiries requiring additional research through our customer relationship management platform, Salesforce. All internal business departments collaborate to effectively respond to Salesforce cases, and MedImpact leadership monitors case volume and timeliness on a daily basis. Through this tool, we document all client inquiries, assign them to the appropriate party for resolution, and track the timely resolution of all inquiries. We leverage routine meetings with the State to review the project log and address any outstanding inquiries on an agreed-upon schedule. As shown in Figure 1, the State's account management team will work directly with our internal teams, including senior leadership, to collaboratively support your short- and long-term strategic objectives as well as maintain operational service excellence.

Figure 1: MedImpact SMEs Work Collaboratively

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To ensure timely and efficient response times, our cohesive, collaborative approach includes cross-training and maintaining defined escalation points and designated backups at all times to support the appropriate escalation and resolution of the State's inquiries.

MedImpact always puts our clients first and allocates every available resource to support a collaborative and high-touch relationship for our clients. Through these methods, we successfully achieve long lasting and positive experiences with our clients. We will work closely with the State to customize our approach to fit your unique needs.

Resumes

The resumes of key personnel, including personal references, have been included within Exhibit 2. Key personnel, and their designated/dedicated status to the State’s account are as noted:

➢ Implementation manager: 100% dedicated for the implementation period

➢ Account executive: 100% dedicated

➢ Account manager: Designated, 50% of their time will be used to support the State

➢ Business system analyst (This individual and the account manager will support eligibility coordination, among other things): Designated, 20-40% of their time will be used to support the State

➢ Clinical account executive (PharmD): Designated, 50% of their time will be used to support the State

➢ Client administrator to support member services: Designated, 20-40% of their time will be used to support the State

We have not provided a named government/legislative liaison; however, the State will be well supported by our regulatory and government affairs team.

Organizational Chart

Figure 2 includes the account team organizational chart.

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Figure 2: Organizational Chart

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➢ A.M. Best: Not applicable

➢ Standard & Poor’s: B+

➢ Moody’s: B1

➢ Fitch: Not applicable

N. OTHER MAJOR CHANGES

The Bidder should indicate any staff relocations, computer system changes/upgrades, program changes, or telephone system changes in process at this time or proposed within the next 12-24 months.

MedImpact does not anticipate any changes within the next 12-24 months. Any potential changes are carefully planned to avoid disruption to clients and members and do not impact implementations. MedImpact's account management team would notify State DAS SPB prior to any changes that will impact your members well in advance of these changes, and work with you to develop a custom communication plan letting them know of the change.

MedImpact Healthcare Systems, Inc.

10181 Scripps Gateway Ct. San Diego, CA 92131 Phone: 800.788.2949

MedImpact.com

State of Nebraska Department of Administrative Services

SOLICITATION NUMBER RELEASE DATE

122436 O5 June 9, 2025

OPENING DATE AND TIME PROCUREMENT CONTACT

July 18, 2025 2:00 p.m. Central Time Brook Taylor

II. TERMS AND CONDITIONS

Bidder should read the Terms and Conditions within this section and must initial either “Accept All Terms and Conditions Within Section as Written” or “Exceptions Taken to Terms and Conditions Within Section as Written” in the table below. If exception is not taken to a provision, it is deemed accepted as stated. If the bidder takes any exceptions, they must provide the following within the “Exceptions” field of the table below (Bidder may provide responses in separate attachment if multiple exceptions are taken):

1. The specific clause, including section reference, to which an exception has been taken;

2. An explanation of why the bidder took exception to the clause; and

3. Provide alternative language to the specific clause within the solicitation response.

By signing the solicitation, bidder agrees to be legally bound by all the accepted terms and conditions, and any proposed alternative terms and conditions submitted with the solicitation response. The State reserves the right to negotiate rejected or proposed alternative language. If the State and bidder fail to agree on the final Terms and Conditions, the State reserves the right to reject the solicitation response. The State reserves the right to reject solicitation responses that attempt to substitute the bidder’s commercial contracts and/or documents for this solicitation.

Accept All Terms and Conditions

Within Section as

Written (Initial)

Exceptions Taken to

Terms and Conditions

Within Section as

Written (Initial)

Exceptions:

(Bidder must note the specific clause, including section reference, to which an exception has been taken, an explanation of why the bidder took exception to the clause, and provide alternative language to the specific clause within the solicitation response.)

KK Please refer to Exhibit 3 for additional provisions required to support the PBM.

KK Exception: C. Buyer’s representative The State reserves the right to appoint a Buyer's Representative to manage or assist the Buyer in managing the contract on behalf of the State. The Buyer's Representative will be appointed in writing, and the appointment document will specify the extent of the Buyer's Representative authority and responsibilities. If a Buyer's Representative is appointed, the bidder will be provided a copy of the appointment document and is expected to cooperate accordingly with the Buyer's Representative. The Buyer's Representative has no authority to bind the State to a contract, amendment, addendum, or other change or addition to the contract. If the Buyer’s Representative is not an employee of the State, the State will also complete the bidder’s authorization form for such appointments and the Buyer’s Representative will execute a non-disclosure agreement with bidder.

Rationale: If the Buyer’s Representative is not an employee of the State, but rather a third party, MedImpact would require a NDA to be executed by the Buyer’s Representative for the protection of Medimpact’s trade secrets as well as signed authorization from the State conforming with Medimpact’s policies to protect the State from unauthorized disclosures.

KK Exception: E. Beginning of Work & Suspension of Services, paragraph 2 The State may, at any time and without advance notice, require the Vendor to suspend any or all performance or deliverables provided under this Contract.

In the event of such suspension, the Contract Manager or POC, or their designee, will issue a written order to stop work. The written order will specify which activities are to be immediately suspended and the reason(s) for the suspension. Upon receipt of such order, the Vendor shall immediately comply with its terms and take all necessary steps to mitigate and eliminate the incurrence of costs allocable to the work affected by the order during the period of suspension. The suspended performance or deliverables may only resume when the State provides the Vendor with written notice that such performance or deliverables may resume, in whole or in part. Notwithstanding the foregoing, the State shall be responsible for payment for any services rendered up and until such suspension including but not limited to the payment of Claims incurred prior to such suspension of services. In the event of any such suspension, the guarantees provided for in this may be adjusted or voided by Bidder in order to preserve the economic benefit of the agreement.

Rationale: In the event of a suspension the guarantees would need to be adjusted and may need to be voided in order to preserve the economic benefit of this agreement.

Claims incurred prior to suspension would be required by law to be paid. The State would be responsible for the payment of those Claims.

KK Exception: II G. change Orders or Substitutions

The Vendor shall prepare a written description of the work required due to the change and an itemized cost sheet for the change. Changes in work and the amount of compensation to be paid to the Vendor shall be determined in accordance with applicable unit prices if any, a pro-rated value, or through negotiations. The State shall not incur a price increase for changes that should have been included in the Vendor’s solicitation response, were foreseeable, or result from difficulties with or failure of the Vendor’s solicitation response or performance.The Vendor may, from time to time, add new programs or services, or make material modifications to existing programs or Services, provided that Vendor shall give the State written notice of such new programs or services or such material modifications, and the pricing related thereto, at least thirty (30) days prior to their implementation. Such written notice shall include an opportunity for State to decline to participate in, or “opt out” of, the new or modified program or service. If State does not opt out of the new or modified program or service pursuant to the instructions in the written notice, then State shall be deemed to have accepted such new or modified program or service, and this Contract shall be deemed so modified without further writing or signature.

Rationale: Recommend striking this section as it is not applicable to a pharmacy benefit services agreement.

Recommend inserting the language provided in redline. Note: This can be changed to an opt in version if requested.

KK Exception II. G. change Orders or Substitutions

No change shall be implemented by the Vendor until approved by the State, and the Contract is amended to reflect the change and associated costs, if any. If there is a dispute regarding the cost, but both parties agree that immediate implementation is necessary, or it required by law or a change in circumstance out side of the control of the parties, the change may be implemented, and cost negotiations may continue with both

Parties retaining all remedies under the contract and law.

Notwithstanding the above, Vendor may make changes to its

Services, without notice to State, so long as such changes do not materially alter any of the provisions of this Contract.

Rationale: MedImpact must have the ability to change its services if there is a change in law or circumstance beyond its control. An example of this would be a change in the prompt pay laws to pharmacies. It could cause a required change to the invoicing schedule that would be required to be implemented to ensure compliance by both the State and Vendor with the law. A change in Circumstance example would be if a certain class of drugs was no longer subject to rebates due to government or manufacturer action, then guarantees would have to be adjusted.

KK Exception II. G. change Orders or Substitutions In the event any good or service is discontinued or replaced upon mutual consent during the contract period or prior to delivery, the State reserves the right to amend the contract to include the alternate product at the same price, if available..

***Vendor will not substitute any Service item that has been awarded without prior written approval of SPB***

Rationale: This service must be available.

KK Exception: Record of Vendor Performance The State may document the vendor’s performance, which may include, but is not limited to, the customer service provided by the vendor, the ability of the vendor, the skill of the vendor, and any instance(s) of products or services delivered or performed which fail to meet the terms of the purchase order, contract, and/or specifications. In addition to other remedies and options available to the State, the State may issue one or more notices to the vendor outlining any issues the State has regarding the vendor’s performance for a specific contract (“Contract Compliance Request”). The State may also document the Vendor’s performance in a report, which may or may not be provided to the vendor (“Contract Non-Compliance Notice”). The Vendor shall respond to any Contract Compliance Request or Contract Non-Compliance Notice in accordance with such notice or request. At the sole discretion of the State, such Contract Compliance Requests and Contract Non-Compliance Notices may be placed in the State’s records regarding the vendor and may be considered by the State and held against the vendor in any future contract or award opportunity. The record of vendor performance will be considered in any suspension or debarment action. .Any such Notice shall be sent to

Vendor’s Compliance email address with a copy to Senior Vice President, Corporate Services and General Counsel at Vendor’s Corporate Office overnight courier.

Rationale: This is our required notice provision language.

KK Exception: J. Breach Either Party may terminate the contract, in whole or in part, if the other Party breaches its duty to perform its obligations under the contract in a timely and proper manner. Termination requires written notice of default and a thirty (30) calendar day (or longer at the non-breaching Party’s discretion considering the gravity and nature of the default) cure period. Said notice shall be delivered by email, delivery receipt requested; certified mail, return receipt requested; over-night courier or in person with proof of delivery. Allowing time to cure a failure or breach of contract does not waive the right to immediately terminate the contract for the same or different contract breach which may occur at a different time.

The State’s failure to make payment shall not be a breach, and the Vendor shall retain all available statutory remedies. Notwithstanding the above, If forty-eight (48) hours have elapsed from the time any amount due under this AgreementContract was due Vendor, and payment in full (including any accrued interest) has not been received at the Vendor designated bank account, then Vendor may suspend its services and system operations for State upon written notice to State provided all past due amounts (including interest) have not been cured in full within forty-eight (48) hours after receiving such a notice.

Rationale: MedImpact does not accept notice of termination by email. It needs to be sent in accordance with our Notice provision to ensure proper handling. In writing, addressed to the CEO at the corporate office, with a copy to the Senior Vice President, Corporate Services and General Counsel at the same address.

In the event that the State fails to pay Claims invoices timely, Vendor would not be able to pay the pharmacies on the State’s behalf, resulting in non-compliance with law.

Vendor cannot float the State’s Claims fees. Therefore, Vendor must have the ability to suspend services until payment is received.

KK Exception: M. Indemnification; 2. Intellectual Property The Vendor agrees it will, at its sole cost and expense, defend, indemnify, and hold harmless the indemnified parties from and against any and all claims, to the extent such claims arise out of, result from, or are attributable to, the actual or alleged infringement or misappropriation of any patent, copyright, trade secret, trademark, or confidential information of any third party by the Vendor or its employees, Subcontractors, consultants, representatives, and agents;

provided, however, the State gives the Vendor prompt notice in writing of the claim. The Vendor may not settle any infringement claim that will affect the State’s use of the Licensed Software without the State’s prior written consent, which consent may not be unreasonably withheld. for any reason.

Rationale: Consent should be mutual between the parties.

KK Exception: M. Indemnification; 3. Personnel The Parties agree that they are not Joint Employers. The Vendor shall, at its expense, indemnify and hold harmless the indemnified parties from and against any claim with respect to withholding taxes, worker’s compensation, employee benefits, or any other claim, demand, liability, damage, or loss of any nature relating to any of the personnel, including subcontractor’s and their employees, provided by the Vendor related to Vendor’s employment practices.

Rationale: The purpose of this change is to limit the indemnification to all wage and hour type of claims from our employees.

KK Exception: N. Attorney’s Fees In the event of any litigation, appeal, or other legal action to enforce any provision of the contract, the Parties agree to pay all reasonable expenses of such action, as permitted by law and if ordered by the court, including reasonable attorney's fees and costs, if the other Party prevails.

Rationale: MedImpact respectfully requests the word reasonable to added.

KK O. Performance Bond The Awarded Bidder will be required to supply a bond executed by a corporation authorized to contract surety in the State of Nebraska, payable to the State of Nebraska, which shall be valid for the life of the contract to include any renewal and/or extension periods. The amount of the bond must be $2 million. The bond will guarantee that the Awarded Bidder will faithfully perform all requirements, terms and conditions of the contract. Failure to comply shall be grounds for forfeiture of the bond as liquidated damages. Amount of forfeiture will be determined by the agency based on loss to the State. The bond will be returned when the contract has been satisfactorily completed as solely, in good faith, determined by the State, after termination or expiration of the contract.

Rationale: MedImpact requests this addition as part of our partnership as this determination is determined solely by the State.

KK R. Force Majeure Except for payment obligations set forth in the AgreementContract, nNeither Party shall be liable for any costs or damages, or for default resulting from its inability to perform any of its obligations under the contract due to a natural or manmade event outside the control and not the fault of the affected Party (“Force Majeure Event”) that was not foreseeable at the time the Contract was executed. The Party so affected shall immediately make a written request for relief to the other Party and shall have the burden of proof to justify the request. The other Party may grant the relief requested; relief may not be unreasonably withheld. Labor disputes with the impacted Party’s own employees will not be considered a Force Majeure Event.

Rationale: The payment obligations need to continue in order to process Claims.

KK S. Confidentiality State shall require its advisors, consultants, and subcontractors to enter into a Vendor standard non-disclosure agreement with Vendor prior to the State’s disclosure of Confidential Information to such advisors, consultants, and subcontractors. Without limiting the generality of the foregoing, State will not, and will not permit any advisors, consultants, or subcontractors to attempt to access Vendor’s systems or networks connected to Vendor’s systems by circumventing Vendor’s system access control measures (e.g., hacking, password mining, etc.) or breach the security or authentication measures of Vendor’s systems and networks. The Receiving Party shall be responsible for any failure of its employees and other individuals within such Receiving Party’s organization, and its advisors, consultants, and subcontractors, to comply with the terms of this Contract. Receiving Party may make disclosures required by Law or court order provided Receiving Party has given the Disclosing Party immediate written notice of the request so that the Disclosing Party can object or otherwise intervene and provided that the Receiving Party uses diligent, reasonable efforts to limit disclosure and to obtain confidential treatment or a protective order Receiving Party acknowledges that it shall not acquire any rights or title to any Confidential Information merely by virtue of its use or access to such Confidential Information hereunder. Neither the execution of this Contract nor the furnishing of any Confidential Information hereunder shall be construed as granting the Receiving Party, either expressly, by implication, or otherwise, any license under any invention or patent now or hereafter owned by or controlled by the Disclosing Party. None of the information that may be submitted or exchanged by the parties shall constitute any representation, warranty, assurance, guarantee, or inducement by a party to the other with respect to the infringement of patents, copyrights, trademarks, trade secrets, or any other rights of third persons.

Rationale: We request the addition language as added additional clarification on what it considers to be confidential information.

KK T. Early Termination, item 2

1. The State, in its sole discretion, may terminate the contract after

________, in whole or in part, for any reason upon thirty (30) calendar day’s’ written notice shall be delivered by emailover night , courier, or delivery receipt requested; certified mail, return receipt requested; or in person with proof of delivery to the Vendor’s CEO at its corporate headquarters, with a copy to its Senior Vice President, General Counsel Corporate Services at the same address. Such termination shall not relieve the Vendor of warranty or other service obligations incurred under the terms of the contract. In the event of termination, the Vendor shall be entitled to payment, determined on a pro rata basis, for products or services satisfactorily performed or provided.

Rationale: We request clarification on notice provision.

KK T. Early Termination, item 3. i.

In the event funding is no longer available, and in such instance, the State shall continue to be liable for monies due under the Contract and for the payment of outstanding Claims..

Rationale: We request the additional language as clarification of monies owed.

III. VENDOR DUTIES

Bidder should read the Vendor Duties within this section and must initial either “Accept All Terms and Conditions Within Section as Written” or “Exceptions Taken to Vendor Duties Within Section as Written” in the table below. If exception is not taken to a provision, it is deemed accepted as stated. If the bidder takes any exceptions, they must provide the following within the “Exceptions” field of the table below (Bidder may provide responses in separate attachment if multiple exceptions are taken):

By signing the solicitation, bidder agrees to be legally bound by all the accepted terms and conditions, and any proposed alternative terms and conditions submitted with the solicitation response. The State reserves the right to negotiate rejected or proposed alternative language. If the State and bidder fail to agree on the final Terms and Conditions, the State reserves the right to reject the solicitation response. The State reserves the right to reject solicitation responses that attempt to substitute

Vendor

Duties Within Section as

Written (Initial)

Exceptions Taken to

Vendor Duties Within

Section as Written (Initial)

Exceptions:

(Bidder must note the specific clause, including section reference, to which an exception has been taken, an explanation of why the bidder took exception to the clause, and provide alternative language to the specific clause within the solicitation response.)

KK A. Independent Vendor / Obligations If the Vendor intends to utilize any subcontractor, the subcontractor's level of effort, tasks, and time allocation should be clearly defined in the solicitation response. The Vendor shall agree that it will not utilize any subcontractors not specifically included in its solicitation response in the performance of the contract without the prior written authorization of the State. The State agrees that its written approval of additions/changes to the subcontractor lists shall not be unreasonably withheld, conditioned or delayed. If the Vendor subcontracts any of the work, the Vendor agrees to pay any and all subcontractors in accordance with the Vendor’s agreement with the respective subcontractor(s).

The State reserves the right to require request the Vendor to reassign or remove from the project any Vendor or subcontractor employee.

Rationale: We request mutual agreement related to the use of subcontractors.

KK E. Cooperation with Other Vendors Vendor may be required to work with or in close proximity to other Vendors or individuals that may be working on same or different projects. The Vendor shall agree to cooperate with such other Vendors or individuals and shall not commit or permit any act which may interfere with the performance of work by any other Vendor or individual. Vendor is not required to compromise Vendor’s intellectual property or proprietary information unless expressly required to do so by this contract. The parties agree that Vendor is the exclusive provider for the Services awarded under this contract.

Rationale: MedImpact requests exclusivity of PBM services.

KK I. Ownership of Information and Data/Deliverables The State shall have the unlimited right to publish, duplicate, use, and disclose all information and data developed or obtained by the Vendor on behalf of the State pursuant to this contract.

The State shall own and hold exclusive title to any deliverable developed as a result of this contract. Vendor shall have no ownership interest or title, and shall not patent, license, or copyright, duplicate, transfer, sell, or exchange, the design, specifications, concept, or deliverable.

Vendor Proprietary Software and Information . State acknowledges that Vendor owns, licenses, or otherwise holds the rights to the entire proprietary software system used by Vendor in processing Claims and preparing reports, including, without limitation, computer programs and applications, system and program documentation, and other documentation relating thereto (collectively the “MedImpact Software System”), and the MedImpact Software System is the exclusive and sole property of Vendor. State further acknowledges that Vendor owns, licenses, or otherwise holds all rights to its programs, reports, MAC Lists, pricing schedules, Formularies, and other services provided to State under this Contract (collectively “MedImpact Business Information”), and the MedImpact Business Information is the exclusive and sole property of Vendor. Vendor grants State (and State’s third-party vendors, if applicable, in accordance with Section 5.3) a limited, non-exclusive, non-transferable license to MedImpact Software System applications, as applicable to State. Vendor retains all license rights not expressly granted by this license grant. State disclaims any rights to the MedImpact Software System (including access to any applicable source codes), the MedImpact Business Information, and any resultant reports, procedures, or forms developed by Vendor, any development or modification of the MedImpact Software System and/or MedImpact Business Information as a result of any customization performed by any party, as well as any program, report, Vendor Formulary, or service provided hereunder, all of which shall be the property of Vendor and are protected by copyright which shall be owned by Vendor. In addition, State acknowledges and agrees that use of the MedImpact Software System is subject to the respective terms of use, disclaimer, and privacy policy and State hereby agrees with those terms and conditions prior to using the MedImpact Software System. If a conflict exists between terms and conditions of this Contract and terms and conditions of another agreement between State and Vendor specific to a particular MedImpact Software System application, the specific term or condition in the other agreement that is in conflict with this Contract shall supersede and control as it relates to the particular software or application. Vendor may provide hyperlinks to other websites for the convenience of State. State understands and agrees that by clicking on the links they will be taken to websites that may not be owned or operated by Vendor and are subject to the terms of use of those respective sites. When using the MedImpact Software System, these hyperlinks and related sites are for informational purposes only and should not be solely relied on when using the MedImpact Software System.

Vendor may, in its sole discretion, make changes to the MedImpact Software System including adding or removing software applications or reports provided through the MedImpact Software System. State acknowledges and agrees that Vendor may, in its sole discretion, eliminate or remove certain reports, software application, or MedImpact Software System components. In the event Vendor removes, eliminates, or discontinues a report, software application, or component from the MedImpact Software System, Vendor will provide State ninety (90) days prior written notice of such change. Vendor will provide State information about Vendor alternatives to replace the removed report, software application, or component, if available.

Notwithstanding anything in this Contract to the contrary, the parties acknowledge that in the event of any breach or threatened breach of this Section, any remedy at law is inadequate and Vendor will suffer irreparable injury if such conduct is not prohibited, and therefore Vendor is entitled, among other rights and remedies, to injunctive relief, enjoining or restraining such breach or threatened breach. The parties further agree that the existence of this remedy will not preclude Vendor from seeking or receiving other relief. In no event will State have the right to access the MedImpact Software System and/or MedImpact Business Information after termination of this Contract.

Rationale: Vendor is not developing software for the State. In the event that the State requests the development of software specifically for the State, the Vendor would be happy to engage in additional negotiations with the State regarding the terms and conditions of such development. Vendor is providing a limited license to the State with this contract and such language has been added.

KK J. Insurance Requirements Notwithstanding any other clause in this Contract, the State may recover up to the liability limits of the insurance policies required herein.

Rationale: MedImpact does not agree to this clause.

KK J. INSURANCE REQUIREMENTS

UMBRELLA/EXCESS LIABILITY

Over Primary Insurance $5,000,000 per occurrence

Professional Liability

Professional liability (Medical Malpractice)

$10,000,000 per occurrence $20,000,000 Aggregate

Qualification Under Nebraska Excess Fund

All Other Professional Liability (Errors & Omissions)

$1,000,000 Per Claim / Aggregate

Rationale: Medical malpractice is not applicable to the PBM.

KK R. Warranty Despite any clause to the contrary, the Vendor represents and warrants that its services hereunder shall be performed by competent personnel and shall be of professional quality consistent with generally accepted industry standards for the performance of such services and shall comply in all material respects with the requirements of this Agreement. For any breach of this warranty, the Vendor shall, for a period of ninety (90) days from performance of the service, perform the services again, at no cost to the State, or if Vendor is unable to perform the services as warranted, Vendor shall reimburse the State all fees paid to Vendor for the unsatisfactory services. The rights and remedies of the parties under this warranty are in addition to any other rights and remedies of the parties provided by law or equity, including, without limitation actual damages, and, as applicable and awarded under the law, to a prevailing party, reasonable attorneys’ fees and costs.

Rationale: This provision is unclear. In the event that a service is not performed to the satisfaction of the State, Vendor will meet with the State to resolve the issue. This clause implies the State may be entitled to 3 months of service at no charge.

IV. PAYMENT

Bidder should read the Payment clauses within this section and must initial either “Accept All Terms and Conditions Within Section as Written” or “Exceptions Taken to Payment clauses Within Section as Written” in the table below. If exception is not taken to a provision, it is deemed accepted as stated. If the bidder takes any exceptions, they must provide the following within the “Exceptions” field of the table below (Bidder may provide responses in separate attachment if multiple exceptions are taken):

By signing the solicitation, bidder agrees to be legally bound by all the accepted terms and conditions, and any proposed alternative terms and conditions submitted with the solicitation response.