5-Iron Mountain Negotiations Tracker_IM BAFO 12.15.2022.xlsx
XLSX spreadsheet 82 KB Posted
- Attached to
- Master Agreement AZ|CTR063770
- Contract number
- CTR063770
- Issued by
- Arizona
About this file
This document is a negotiation tracker for a state contract between the State of Arizona and Iron Mountain, detailing proposed changes and responses during the contract review process. The document appears to be a comprehensive negotiation log tracking proposed modifications to various contract terms and conditions, with input from both the state and Iron Mountain throughout the negotiation process.
The contract appears to cover information management and document services, with key negotiations focused on pricing, indemnification, insurance requirements, intellectual property rights, and service warranties. Iron Mountain proposed several modifications to standard contract language, particularly around pricing reviews, insurance endorsements, and service-specific terms, most of which were rejected by the state. The pricing terms include provisions for competitive benchmarking and price reductions, with the state maintaining strict standards about maintaining competitive pricing. The contract includes comprehensive provisions for service quality, data protection, and performance standards, with the state seeking robust protections and Iron Mountain seeking some flexibility in implementation.
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Iron Mountain
| Iron Mountain | ||||||||
| Article / Paragraph or Exhibit Reference | RFP Language | Proposed Changes / Alternate Language | Rationale | State Response (12/6/2022) | Supplier Response (12/15/2022) | State Response (Date) | Supplier Response (Date) | FINAL RESPONSE |
| Instructions to Offerors | ||||||||
| NO EXCEPTIONS TAKEN |
| Scope of Work |
| NO EXCEPTIONS TAKEN |
| Pricing Document | |||||
| 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. | 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. | 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 accurate or correct. Because it is impractical for us to enforce a price warranty, we cannot make one. | State Rejects. Allowing Iron Mountain to determine if pricing remains competitive or comparable is unacceptable. The best the State can accept is language that says if the State brings forth evidence that a similar entity has received lower pricing for a similar volume of work, then Iron Mountain agrees to match that price. | Iron Mountain accepts the State's standard language contained in the RFP. |
| 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. | 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. | State Rejects. This provision is not unreasonable and has been accepted by other participants in the RFP. | Iron Mountain accepts the State's standard language contained in the RFP. |
| Contract Terms & Conditions - Special Terms and Conditions | |||||
| 3.8 | 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. | None, however….. | 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.. | State rejects. This provision is part of the Arizona Revised Statutes and cannot be modified. | Iron Mountain accepts the State's standard language contained in the RFP. Iron Mountain acknowledges that in accordance with ARS 41-2547 the State may at reasonable times inspect the part of the plant or place of business of Iron Mountain or any subcontractor which is related to the performance of the contract awarded by the State. |
| 3.9 | 3.9. Ownership of Intellectual Property | 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 - Supplement 1”in lieu of the Intellectual Property Sections contained in the State’s Contract. | State rejects. The InSight Services Terms and Conditions shall not be made a part of this Contract. If the time comes that an Agency wishes to purchase this software from Iron Mountain, those terms and conditions can be negotiated at the time of that purchase. | Iron Mountain accepts the State's standard language contained in the RFP. | |||
| 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. | Exception: Iron Mountain objects to this section in regard to InSight Services only. | 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. | State rejects. The InSight Services Terms and Conditions shall not be made a part of this Contract. If the time comes that an Agency wishes to purchase this software from Iron Mountain, those terms and conditions can be negotiated at the time of that purchase. | Iron Mountain accepts the State's standard language contained in the RFP. |
| 6.2.1 | 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 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. | 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 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.. | RM: Requested change is rejected. Contractor must respond with a defense and indemnity to any claims alleging negligence or willful misconduct on the part of the contractor | Iron Mountain accepts the State's standard language contained in the RFP. |
| 6.2.3.3.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. | Exception: Iron Mountain proposes to strike this section in its entirety. |
OR
add "to the extent of Contractor's Liabilities in the Agreement" at the end of paragraph a.
It would then read as follows:
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, to the extent of Contractor's Liabilities in the Agreement."
| 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. | RM: Requested change is rejected. State requires a full waiver of subrogation. Additionally, proposed language is unworkable and ambiguous. | Iron Mountain accepts the State's standard language contained in the RFP. | |||
| 6.2.3.4.c-d | Exception: 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, officials, agents, and employees for losses arising from work performed by or on behalf of the Contractor. | 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. | RM: Request to delete requirements for AI and WOS endorsements is rejected. If contractor carries a combined Cyber/Tech E&O policy, contractor must provide AI endorsement and WOS endorsement for third-party coverage portion of liability policy. | Iron Mountain accepts the State's standard language contained in the RFP. |
| 6.2.4.1 | 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). | 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 | RM:Request is rejected. Primary/non-contributory status is required. IP indemnification obligations do not substitute for primary status under cyber coverage. | Iron Mountain accepts the State's standard language contained in the RFP. |
| 6.2.7.1 | 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. | 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. | Rationale: Iron Mountain cannot provide policy endorsements, we can only provide standard blanket endorsements. | RM: State can agree to the following language: "All such certificates of insurance and blanket policy endorsements must be received by the State before work commences. Acceptance of blanket policy endorsement forms is subject to approval of the State. 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 accepts the State's standard language contained in the RFP. |
| 6.2.7.3 | 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. | 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. | Rationale: Iron Mountain cannot agree to provide copies of proprietary insurance policies but can provide coverage certificates as evidence of insurance. | RM: The State proposes the following compromise language: "The State of Arizona reserves the right, with reasonable prior notice to Contractor, to review applicable insurance policies in the event of an occurrence the State reasonably believes could result in the tender of a claim under a policy required by this Contract. Review will be conducted at a mutually convenient location and subject to protection of Contractor’s confidential or proprietary information under a confidentiality agreement acceptable to Contractor." | Iron Mountain accepts the State's standard language contained in the RFP. |
| 6.3 | 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;
| (continues to 6.3.4) | 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 - Supplement 1” in lieu of the Intellectual Property Sections contained in the State’s Contract.. | State rejects. The InSight Services Terms and Conditions shall not be made a part of this Contract. If the time comes that an Agency wishes to purchase this software from Iron Mountain, those terms and conditions can be negotiated at the time of that purchase. | Iron Mountain accepts the State's standard language contained in the RFP. | ||
| Section 7 | 7. Warranties 7.1. Conformity to Requirements. Contractor warrants that, unless expressly provided 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. | |||||
| (continues till 7.8) | 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 - Supplement 1”. | State rejects. The InSight Services Terms and Conditions shall not be made a part of this Contract. If the time comes that an Agency wishes to purchase this software from Iron Mountain, those terms and conditions can be negotiated at the time of that purchase. | Iron Mountain accepts the State's standard language contained in the RFP. | ||
| 12.2.1 | 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 | 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 | Rationale: 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. | State accepts | State accepts | |
| 12.4.3 | 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. | 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. | Rationale: Iron Mountain cannot agree to comply with requirements that we have not reviewed. | State accepts | State accepts | |
| 13.4.1 | 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 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. | 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 - Supplement 1” in lieu of the Intellectual Property Sections contained in the State’s Contract. | State rejects. The InSight Services Terms and Conditions shall not be made a part of this Contract. If the time comes that an Agency wishes to purchase this software from Iron Mountain, those terms and conditions can be negotiated at the time of that purchase. | Iron Mountain accepts the State's standard language contained in the RFP. | |
| Contract Terms & Conditions - Uniform Terms and Conditions | ||||||
| 3.8 | 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 | Mountain objects to this section in regard to InSight Services only. | ||||
| As is customary with industry standard, all InSight Services shall be subject to the InSight Services Terms and Conditions attached as Attachment 10 - Supplement 1.Further, Iron Mountain notes that there will be no Intellectual Property created under this Procurement. | State rejects. The InSight Services Terms and Conditions shall not be made a part of this Contract. If the time comes that an Agency wishes to purchase this software from Iron Mountain, those terms and conditions can be negotiated at the time of that purchase. | Iron Mountain accepts the State's standard language contained in the RFP. |
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