5-BPM004546 Solicitation Attachment 4 - Conformance Statements_IRM_signed.pdf

Request for Proposal

Solicitation No. BPM004656

Document Management Services

Arizona Department of Administration State Procurement Office

100 N 15th Avenue Phoenix, AZ 85007

Solicitation Offer Form Page 1 of 4

Conformance Statements

If taking exceptions, the Attachment Supplements must be uploaded as a separate word doc. file titled “Attachment Supplement -”

STATE WILL NOT CONSIDER ANY EXCEPTIONS UNLESS DESIGNATED ON THIS FORM.

READ PARAGRAPH 6.8 OF THE INSTRUCTIONS TO OFFERORS BEFORE TAKING ANY EXCEPTIONS – TAKING

EXCEPTIONS CAN BE GROUNDS FOR STATE REJECTING OR DOWN-GRADING YOUR OFFER IN EVALUATION.

CONFORMANCE TO THE INSTRUCTIONS TO OFFERORS

Check one of the following – if neither is checked, State will assume that as equivalent to “YES”:

YES – Offeror acknowledges that it has read and understands the Special Instructions to Offerors and

Uniform Instructions to Offerors of the Solicitation Documents and attests that its Offer complies.

NO – Offeror acknowledges that it has read and understands the Instructions to Offerors in the

Solicitation Documents, and attests that its Offer complies with both EXCEPT FOR the exceptions listed in Attachment Supplement 1.

CONFORMANCE TO SCOPE OF WORK AND PRICING

YES – Offeror acknowledges that it has read and understands the Scope of Work Document and the Pricing

Document of the Solicitation Documents and attests that its Offer complies with both.

NO – Offeror acknowledges that it has read and understands the Scope of Work Document and the Pricing

Document of the Solicitation Documents and attests that its Offer complies with both EXCEPT FOR the exceptions listed in Attachment Supplement 2.

CONFORMANCE TO THE CONTRACT TERMS AND CONDITIONS

YES – Offeror acknowledges that it has read and understands the Special Terms and Conditions and the

Uniform Terms and Conditions, along with their respective Exhibits and Appendices of the Solicitation

Documents and attests that its Offer complies with both.

NO – Offeror acknowledges that it has read and understand the Special Terms and Conditions and the

Uniform Terms and Conditions, along with their respective Exhibits and Appendices 2 of the Solicitation

Documents and attests that its Offer complies with both EXCEPT FOR the exceptions listed in Attachment

Supplement 3.

Company Name Signature of Person Authorized to Sign

Iron Mountain Information Management, LLC

State Procurement Office

Solicitation Offer Form Page 2 of 4

Conformance Statements - Supplement 1

Exceptions to Instructions

Article / Paragraph or Exhibit Reference

Proposed Changes / Alternate Language RFP Language (Copy and Paste from Solicitation)

Special Instructions to Offerors x X Exception:

X Rationale:

x

Uniform Instructions to Offerors

State Procurement Office

Solicitation Offer Form Page 3 of 4

Conformance Statements – Supplement 2

Exceptions to Scope of Work and Pricing

Article / or Exhibit Reference

Proposed Changes / Alternate Language RFP Language (Copy and Paste from Solicitation)

Scope of Work

Pricing Document

Section 2.1

Exception: Iron Mountain proposes to strike this section in its entirety and replace with the following:

BENCHMARKING. Each year at Customer's request, the

Parties will meet to review Iron Mountain's Services and the pricing to ensure they remain competitive with comparable service offerings and the pricing then available in the marketplace for similar services and under similar terms and profiles. Such reviews may include competitive benchmarking, the use of comparative information available from independent third parties

(such as consultants and industry publications), and other market based information the Parties deem reasonably reliable and accurate. If the review shows that pricing for a

Service offered by Iron Mountain under this Agreement is less favorable than the price or service level for comparable products or services available in the marketplace under similar terms and profiles, the Parties will mutually agree in writing on pricing adjustments, which adjustments will be made only on a going forward basis.

Rationale:

Iron Mountain has hundreds of thousands of Customers, and it would be virtually impossible to determine whether a price warranty made in any one agreement is in fact

2.1. Contractor’s Best Pricing.

Supplier warrants that, for the term of the Contract, the prices and discounts set out in BPM004656 Solicitation Attachment 11 – Pricing Document, including any subsequent agreed amendment to it (the “Contract Pricing”), will be equal to or better than the lowest prices and largest discounts, both separately and in combination, at which Contractor sells equivalent services, items of equipment and materials.

2.1.1. That price-plus-discount

equivalence (“Contractor’s Best Pricing”) is intended to be irrespective of whether or not those other sales have special purchase terms, conditions, rebates or allowances.

2.1.2. If Contractor’s Best

Pricing for equivalent services, items of equipment and materials

State Procurement Office

Solicitation Offer Form Page 4 of 4 accurate or correct. Because it is impractical for us to enforce a price warranty, we cannot make one.

is better than the Contract Pricing, then Contractor agrees to adjust the Contract Pricing to match the Contractor’s Best Pricing for all sales related to the Contractor made after the date when the Contractor’s Best Pricing was first better than the Contract Pricing.

2.1.3. For clarification of intent, that date is intended to be the date when the difference first occurred, which might have been before the difference was first identified. If it was before, then

Supplier agrees to charge at less than the Contract Pricing until the extended difference that would have been realized (i.e., if the

Contractor’s Best Pricing had been applied when it should have been) has been settled.

2.4

Exception: Iron Mountain proposes to strike this section in its entirety.

Rationale: As above, it would not be possible for us to comply with this requirement. In Section 2.1, Iron

Mountain has proposed a period review of the pricing in lieu.

2.4. Price Reductions. Price

reductions shall be immediately passed along to State and may be submitted in writing to State for consideration at any time during the Contract period. The contractor shall offer State a price reduction on the Contract product(s) concurrent with a published price reduction made to other customers. The State at its own discretion may accept a price reduction. The price reduction request shall be in writing and include documentation showing the actual reduction of cost. Sales promotions requests shall include difference in pricing, begin, and end date of promotion along with the products covered.

Solicitation No. BPM4656

State Procurement Office

Solicitation Offer Form Page 4 of 4

Conformance Statements – Supplement 3

Exceptions to Contract Terms & Conditions

Article/ or Exhibit Reference

Proposed Changes / Alternate Language RFP Language (Copy and Paste from Solicitation)

Special Terms & Conditions

Section 3.6 Exception: None.

Rationale: Iron Mountain does not wish to take exception, but instead would like to clarify that while we can agree to accept this requirement we would like confirmation through contract amendment pursuant to the Special Terms and Conditions, Section 2.2.2 that this clause will not apply to industry standard user acceptance testing environments used by Iron Mountain to ensure that all requirements are met under an applicable SOW for services.

Inspection and Testing. By A.R.S.

§41-2547, State may at reasonable times inspect the part of Contractors’ or Subcontractors’ plant or places of business related to performance under the Contract.

Accordingly, Contractor agrees to permit (for itself) and ensure (for Subcontractors) access for inspection at any reasonable time to its facilities, processes, and services.

State may inspect or test, at its own cost, any finished goods, work-in-progress, components, or unfinished materials that are to be supplied under the Contract or that will be incorporated into something to be supplied under the Contract. If the inspection or testing shows non-conformance or defects, then Contractor will owe State reimbursement or payment of all costs it incurred in carrying out or contracting for the inspection and testing, as well as for any reinspection or retesting that might be necessary. Neither inspection of facilities nor testing of goods, work, components, or unfinished materials will of itself constitute acceptance by State of those things.

Section 3.9 Exception: Iron Mountain objects to this section in regard to

InSight Services only.

Rationale: As is customary with industry standard, all InSight Services shall be subject to the InSight Services Terms and Conditions attached as “Attachment 10 -

3.9. Ownership of Intellectual

Property

3.9.1. Rights In Work Product. All

intellectual property originated or prepared by Contractor pursuant to

State Procurement Office

Solicitation Offer Form Page 4 of 4

Supplement 1”in lieu of the Intellectual Property Sections contained in the State’s Contract.

the Contract, including but not limited to, inventions, discoveries, intellectual copyrights, trademarks, trade names, trade secrets, technical communications, records reports, computer programs and other documentation or improvements thereto, including Contractor’s administrative communications and records relating to the Contract, are considered work product and Contractor’s property, provided that, State has Government Purpose Rights to that work product as and when it was delivered to State.

3.9.1.1. “Government Purpose Rights” are:

3.9.1.1.1. the unlimited, perpetual, irrevocable, royalty free, non-exclusive, worldwide right to use, modify, reproduce, release, perform, display, sublicense, disclose and create derivatives from that work product without restriction for any activity in which State is a party;

3.9.1.1.2. the right to release or disclose that work product to third parties for any State government purpose; and

3.9.1.1.3. the right to authorize those to whom it rightfully releases or discloses that work product to use, modify, release, create derivative works from the work product for any State government purpose; such recipients being understood to include the federal government, the governments of other states, and various local governments.

3.9.1.2. “Government Purpose Rights” do not include any right to use, modify, reproduce, perform, release, display, create derivative works from, or disclose that work

State Procurement Office

Solicitation Offer Form Page 4 of 4 product for any commercial purpose or to authorize others to do so.

3.9.2. Joint Developments. The

parties may each use equally any ideas, concepts, know- how, or techniques developed jointly during the course of the Contract, and may do so at their respective discretion, without obligation of notice or accounting to the other party.

3.9.3. Pre-existing Material. All

pre-existing software and other materials developed or otherwise obtained by or for Contractor or its affiliates independently of the Contract or applicable Purchase Orders are not part of the work product to which rights are granted State under subparagraph 3.9.1 above, and will remain the exclusive property of Contractor, provided that:

3.9.3.1. any derivative works of such pre-existing material or elements thereof that are created pursuant to the Contract are part of that work product;

3.9.3.2. any elements of derivative work of such pre-existing material that was not created pursuant to the Contract are not part of that work product; and

3.9.3.3. except as expressly stated otherwise, nothing in the Contract is to be construed to interfere or diminish Contractor’s or its affiliates’ ownership of such pre-existing materials.

3.9.4. Developments Outside Of

Contract. Unless expressly stated otherwise in the Contract, does not preclude Contractor from developing competing materials outside the Contract, irrespective of any similarity to materials delivered or to be delivered to State hereunder.

State Procurement Office

Solicitation Offer Form Page 4 of 4

3.10.3

Exception: Iron Mountain objects to this section in regard to

Rationale: Iron Mountain’s InSight platform has existing sub-contractors (including Hosts). We are happy to remain responsible and liable for all Subcontractor activity but we cannot retroactively amend these agreements. We can agree that there are materially similar terms in our agreements with Subcontractors.

3.10.3. Flow-down. Contractor

shall incorporate the provisions, terms, and conditions of the Contract into every Subcontract by inclusion or by reference, as appropriate. When making any post-execution consent requests, Contractor shall include its warrant that it will do the same for the pending Subcontracts covered by the request. Entering into Subcontracts will not relieve Contractor of any of its obligations or duties under the Contract, including, among other things, the duty to supervise and coordinate the work of Subcontractors. Nothing contained in any Subcontract will create or is to be construed as creating any contractual relationship between State and the Subcontractor.

Section 6.2.1 Exception:

To the fullest extent permitted by law, Contractor shall defend, indemnify, and hold harmless the State of Arizona, and its departments, agencies, boards, commissions, universities, and any jurisdiction or agency issuing permits for any work included in the project, and their respective directors, officers, officials, agents and employees

(hereinafter referred to as "Indemnitee") from and against any and all claims, actions, liabilities, costs, losses, or expenses, (including reasonable attorney's fees), (hereinafter collectively referred to as "Claims") arising out of actual or alleged bodily injury or personal injury of any person

(including death) or loss or damage to tangible or intangible property caused, or alleged to be caused, in whole or in part, by the negligent or willful acts or omissions of Contractor or any of Contractor's directors, officers, agents, employees, volunteers or subcontractors but only to the extent of the

Contractor’s negligence under the Agreement. This indemnity includes any claim or amount arising or recovered under the Workers' Compensation Law or arising out of the failure of Contractor to conform to any federal, state or local law, statute, ordinance, rule, regulation or court decree. It is the specific intention of the parties that the Indemnitee shall, in all instances, except for Claims arising solely from the negligent or willful acts or omissions of the Indemnitee, be indemnified by Contractor from and against any and all

Claims. It is agreed that Contractor will be responsible for primary loss investigation, defense and judgment costs

To the fullest extent permitted by law, Contractor shall defend, indemnify, and hold harmless the State of Arizona, and its departments, agencies, boards, commissions, universities, and any jurisdiction or agency issuing permits for any work included in the project, and their respective directors, officers, officials, agents and employees (hereinafter referred to as "Indemnitee") from and against any and all claims, actions, liabilities, costs, losses, or expenses, (including reasonable attorney's fees), (hereinafter collectively referred to as "Claims") arising out of actual or alleged bodily injury or personal injury of any person (including death) or loss or damage to tangible or intangible property caused, or alleged to be caused, in whole or in part, by the negligent or willful acts or omissions of Contractor or any of Contractor's directors, officers, agents, employees, volunteers or subcontractors. This indemnity includes any claim or amount

State Procurement Office

Solicitation Offer Form Page 4 of 4 where this indemnification is applicable. This indemnification will survive the termination of the above listed contract with the Contractor.

Under this Indemnification clause, Iron Mountain will agree to be responsible for any and all claims caused under the Agreement with the State, only to the extent of Iron Mountain’s negligence..

arising or recovered under the Workers' Compensation Law or arising out of the failure of Contractor to conform to any federal, state or local law, statute, ordinance, rule, regulation or court decree. It is the specific intention of the parties that the Indemnitee shall, in all instances, except for Claims arising solely from the negligent or willful acts or omissions of the Indemnitee, be indemnified by Contractor from and against any and all Claims. It is agreed that Contractor will be responsible for primary loss investigation, defense and judgment costs where this indemnification is applicable. This indemnification will survive the termination of the above listed contract with the Contractor.

Section 6.2.3.3.a

Exception: Iron Mountain proposes to strike this section in its entirety.

Rationale: With regard to Workers’ Compensation and Employers’ Liability Iron Mountain proposes to strike paragraph (a) and cannot agree to a waiver of subrogation as written. Contractor offers as an alternative adding “to the extent of Contractor’s Liabilities in the Agreement” at the end of paragraph a.

a. Policy shall contain a waiver of subrogation endorsement, as required by this written agreement, in favor of the State of Arizona, and its departments, agencies, boards, commissions, universities, officers, officials, agents, and employees for losses arising from work performed by or on behalf of the Contractor.

Section 6.2.3.4.c-d

Exception: Iron Mountain proposes to strike these sections in their entirety.

Rationale: Iron Mountain proposes to strike these subparagraphs and cannot agree to a waiver of subrogation for cyber insurance. Contractor’s underwriter does not allow additional insured status or waiver of subrogation on

Contractor’s Cyber/E&O Policies.

c. The policy shall be endorsed, as required by this written agreement, to include the State of Arizona, and its departments, agencies, boards, commissions, universities, officers, officials, agents, and employees as additional insureds with respect to vicarious liability of the insured arising out of the activities performed by or on behalf of the Contractor.

d. Policy shall contain a waiver of subrogation endorsement, as required by this written agreement, in favor of the State of Arizona, and its departments, agencies, boards, commissions, universities, officers, State Procurement Office

Solicitation Offer Form Page 4 of 4 officials, agents, and employees for losses arising from work performed by or on behalf of the Contractor.

Section 6.2.4.1

Exception:

6.2.4.1. In regard to Commercial General Liability and

Business Automobile Liability only, the Contractor's policies, as applicable, shall stipulate that the insurance afforded the

Contractor shall be primary and that any insurance carried by the Department, its agents, officials, employees or the

State of Arizona shall be excess and not contributory insurance, as provided by A.R.S. § 41-621 (E).

Rationale: Iron Mountain can agree to primary/non-contributory status for General Liability and Automobile policies only. Iron Mountain cannot agree to agree to primary/non-contributory status for Iron Mountain’s Cyber

Insurance and Workers Compensation policies. For any cyber related issues under this agreement that the State seeks primary/non-contributory status under the

Agreement, Iron Mountain notes that the State has rights under the IP Indemnification located in Sections 6.3

6.2.4.1. The Contractor's policies, as

applicable, shall stipulate that the insurance afforded the Contractor shall be primary and that any insurance carried by the Department, its agents, officials, employees or the State of Arizona shall be excess and not contributory insurance, as provided by A.R.S. § 41-621 (E).

Section 6.2.7.1

Exception:

6.2.7.1. All such certificates of insurance and blanket policy endorsements must be received by the State before work commences. The State’s receipt of any certificates of insurance or policy endorsements that do not comply with this written agreement shall not waive or otherwise affect the requirements of this agreement.

Iron Mountain cannot provide policy endorsements, we can only provide standard blanket endorsements.

6.2.7.1. All such certificates of

insurance and policy endorsements must be received by the State before work commences. The State’s receipt of any certificates of insurance or policy endorsements that do not comply with this written agreement shall not waive or otherwise affect the requirements of this agreement.

Section 6.2.7.3

Exception:

6.2.7.3. All certificates required by this Contract shall be

sent directly to the Department. The State of Arizona project/contract number and project description shall be noted on the certificate of insurance. The State of Arizona reserves the right to require complete copies of all insurance policies required by this Contract at any time.

Iron Mountain cannot agree to provide copies of proprietary insurance policies but can provide coverage certificates as evidence of insurance.

6.2.7.3. All certificates required by

this Contract shall be sent directly to the Department. The State of Arizona project/contract number and project description shall be noted on the certificate of insurance.

The State of Arizona reserves the right to require complete copies of all insurance policies required by this Contract at any time.

State Procurement Office

Solicitation Offer Form Page 4 of 4

Section 6.3 Exception: Iron Mountain objects to this section in regard to

Terms and Conditions attached as “Attachment 10 -

Supplement 1” in lieu of the Intellectual Property Sections contained in the State’s Contract..

6.3. Patent and Copyright

Indemnification.

[CONTRACTOR/VENDOR (NOT

PUBLIC AGENCY)]. With respect to Materials or Services provided or proposed by a Contractor Indemnitor for performance under the Contract, Contractor shall indemnify, defend and hold harmless State Indemnitees against any third-party claims for liability, costs, and expenses, including, but not limited to reasonable attorneys' fees, for infringement or violation of any patent, trademark, copyright, or trade secret by the Materials and the Services. With respect to the defense and payment of claims under this subparagraph:

6.3.1. State shall provide

reasonable and timely notification to Contractor of any claim for which Contractor may be liable under this paragraph;

6.3.2. Contractor, with reasonable

consultation from State, shall have control of the defense of any action on an indemnified claim including all negotiations for its settlement or compromise;

6.3.3. State may elect to

participate in such action at its own expense; and

6.3.4. State may approve or

disapprove any settlement or compromise, provided that, (i) State shall not unreasonably withhold or delay such approval or disapproval and (ii) State shall cooperate in the defense and in any related settlement negotiations.

If Contractor is a public agency, this paragraph 6.4 does not apply.

Section 7 Exception: Iron Mountain objects to this section in regard to

7. Warranties

7.1. Conformity to

Requirements. Contractor warrants that, unless expressly provided

State Procurement Office

Solicitation Offer Form Page 4 of 4

InSight Services shall be subject to the InSight Services

Terms and Conditions attached as “Attachment 10 -

Supplement 1”.

otherwise elsewhere in the Contract, the Materials and Services will for 1 (one) year after acceptance and in each instance: (1) conform to the requirements of the Contract, which by way of reminder include without limitation all descriptions, specifications, and drawings identified in the Scope of Work and any Contractor affirmations included as part of the Contract; (2) be free from defects of material and workmanship; (3) conform to or perform in a manner consistent with current industry standards; and (4) be fit for the intended purpose or use described in the Contract. Mere delivery or performance does not substitute for express acceptance by the State. Where inspection, testing, or other acceptance assessment of Materials or Services cannot be done until after installation, the forgoing warranty will not begin until State’s acceptance.

7.2. Contractor Personnel.

Contractor warrants that its personnel will perform their duties under the Contract in a professional manner, applying the requisite skills and knowledge, consistent with industry standards, and in accordance with the requirements of the Contract. Contractor further warrants that its key personnel will maintain any certifications relevant to their work, and Contractor shall provide individual evidence of certification to State’s authorized representatives upon request.

7.3. Intellectual Property.

Contractor warrants that the Materials and Services do not and will not infringe or violate any patent, trademark, copyright, trade secret, or other intellectual property rights or laws, except only to the extent the Specifications do not permit use of any other product and Contractor is not and cannot

State Procurement Office

Solicitation Offer Form Page 4 of 4 reasonably be expected to be aware of the infringement or violation.

7.4. Licenses and Permits

Contractor warrants that it will maintain all licenses required under paragraph 3.7 [Contractor Licenses] and all required permits valid and in force.

7.5. Operational Continuity

Contractor warrants that it will perform without relief notwithstanding being sold or acquired; no such event will operate to mitigate or alter any of Contractor’s duties hereunder absent a consented delegation under paragraph 5 [Assignment and Delegation] that expressly recognizes the event.

7.6. Performance in Public

Health Emergency Contractor warrants that it will:

7.6.1. have in effect, promptly after commencement, a plan for continuing performance in the event of a declared public health emergency that addresses, at a minimum:

7.6.1.1. identification of response personnel by name;

7.6.1.2. key succession and performance responses in the event of sudden and significant decrease in workforce; and

7.6.1.3. alternative avenues to keep sufficient product on hand or in the supply chain;

7.6.2. provide a copy of its current plan to State within 3 (three) business days after State’s written request. If Contractor claims relief under paragraph 6.5 [Force Majeure] for an occurrence of force majeure that is a declared public health emergency, then that relief will be conditioned on Contractor

State Procurement Office

Solicitation Offer Form Page 4 of 4 having first implemented its plan and exhausted all reasonable opportunity for that plan implementation to overcome the effects of that occurrence, or mitigate those effects to the extent that overcoming entirely is not practicable.

7.6.3. A request from the State

related to this Section does not necessarily indicate that there has been an occurrence of force majeure, and the Contractor will not be entitled to any additional compensation or extension of time by virtue of having to implement a plan.

7.6.4. Failure to have or

implement an appropriate plan will be a material breach of contract.

7.7. Lobbying

7.7.1. Prohibition. Contractor

warrants that it will not engage in lobbying activities, as defined in 40 Code of Federal Regulations (CFR) part 34 and A.R.S. § 41-1231, et seq., using monies awarded under the Contract, provided that, the foregoing does not intend to constrain Contractor's use of its own monies or property, including without limitation any net proceeds duly realized under the Contract or any value thereafter derived from those proceeds; and upon award of the Contract, it will disclose all lobbying activities to State to the extent they are an actual or potential conflict of interest or where such activities could create an appearance of impropriety. Contractor shall implement and maintain adequate controls to assure compliance with

(a) above. Contractor shall obtain an equivalent warranty from all Subcontractors and shall include an equivalent no-lobbying provision in all Subcontracts.

State Procurement Office

Solicitation Offer Form Page 4 of 4

7.7.2. Exception. This paragraph

does not apply to the extent that the Services are defined in the Contract as being lobbying for State’s benefit or on State’s behalf.

7.8. Survival of Warranty. All

representations and warranties made by Contractor under the Contract will survive the expiration or earlier termination of the Contract.

Section

12.2.1

Exception:

12.2.1. Contractor shall: (a) notify State immediately

promptly of any unauthorized access or inappropriate disclosures, whether stemming from an external security breach, internal breach, system failure, or procedural lapse;

(b) cooperate with State to identify the source or cause and respond to each unauthorized access or inappropriate disclosure; and (c) notify State promptly of any security threat that could result in unauthorized access or inappropriate disclosures; and

Iron Mountain needs to perform diligence to understand the facts surrounding any of the above activities to determine if there was in fact a security breach. The promptly standard gives Iron Mountain the time to do just that.

12.2.1. Contractor shall: (a) notify

State immediately of any unauthorized access or inappropriate disclosures, whether stemming from an external security breach, internal breach, system failure, or procedural lapse; (b) cooperate with State to identify the source or cause and respond to each unauthorized access or inappropriate disclosure; and (c) notify State promptly of any security threat that could result in unauthorized access or inappropriate disclosures; and

Section

12.4.3

Exception:

12.4.3. will sign any documents will negotiate in good faith any documents that are reasonably necessary to keep both

State and Contractor in compliance with the requirements in

(1) above, in particular “Business Associate Agreements” in accordance with the Privacy Rule.

Iron Mountain cannot agree to comply with requirements that we have not reviewed.

12.4.3. will sign any documents that are reasonably necessary to keep both State and Contractor in compliance with the requirements in

(1) above, in particular “Business

Associate Agreements” in accordance with the Privacy Rule.

Section 13.4.1

Exception: Iron Mountain objects to this section in regard to

Terms and Conditions attached as “Attachment 10 -

Supplement 1” in lieu of the Intellectual Property Sections contained in the State’s Contract.

14.4.1. INDEMNITY FROM

THIRD PARTY. For computer hardware or software included in the Work as discrete units that were manufactured or developed solely by a third party, Contractor may satisfy its indemnification obligations under the Contract by, to the extent permissible by law, passing through

State Procurement Office

Solicitation Offer Form Page 4 of 4 to State such indemnity as it receives from the third-party source (each a “Pass-Through Indemnity”) and cooperating with State in enforcing that indemnity. If the third party fails to honor its Pass-Through Indemnity, or if a Pass-Through Indemnity is insufficient to indemnify State Indemnitees to the extent and degree, Contractor is required to do by the Uniform Terms and Conditions, then Contractor shall indemnify, defend and hold harmless State Indemnitees to the extent the Pass- Through Indemnity does not.

Uniform Terms & Conditions

Section 3.8 Exception: Iron Mountain objects to this section in regard to

Terms and Conditions attached as “Attachment 10 -

Supplement 1”.Further, Iron Mountain notes that there will be no Intellectual Property created under this Procurement.

Any and all intellectual property, including but not limited to copyright, invention, trademark, trade name, service mark, and/or trade secrets created or conceived pursuant to or as a result of this contract and any related subcontract

(“Intellectual Property”), shall be work made for hire and the State shall be considered the creator of such Intellectual Property. The agency, department, division, board or commission of the State of

Arizona requesting the issuance of this contract shall own (for and on behalf of the State) the entire right, title and interest to the Intellectual

Property throughout the world.

Contractor shall notify the State, within thirty (30) days, of the creation of any Intellectual Property by it or its subcontractor(s).

Contractor, on behalf of itself and any subcontractor(s), agrees to execute any and all document(s) necessary to assure ownership of the

Intellectual Property vests in the

State and shall take no affirmative actions that might have the effect of vesting all or part of the Intellectual

Property in any entity other than the

State Procurement Office

Solicitation Offer Form Page 4 of 4

State. The Intellectual Property shall not be disclosed by contractor or its subcontractor(s) to any entity not the State without the express written authorization of the agency, department, division, board or commission of the State of Arizona requesting the issuance of this contract.