addendum-4-rfp-doit-2026-13.pdf

STATE OF NEW HAMPSHIRE

DEPARTMENT OF SAFETY

DIVISION OF MOTOR VEHICLES

33 HAZEN DRIVE CONCORD, NEW HAMPSHIRE 03301

ADDENDUM # 4 TO RFP: DoIT 2026-013

PROPOSAL DUE DATE: November 20, 2025 TIME OF CLOSING: 4:00 pm EST

FOR: DOS Automated Driver License Testing Software

Request for Clarification:

Accepts the Standard Contract Terms provided by the Agency and proposes the following revisions:

Form P-37, Section 13, Pg. 6

13. INDEMNIFICATION

The Contractor shall indemnify, defend, and hold harmless the State, its officers, and employees from and against all actions, claims, damages, demands, judgments, fines, liabilities, losses, and other expenses, including, without limitation, reasonable attorneys’ fees, arising out of or relating to this Agreement directly or indirectly arising from death, personal injury, property damage, intellectual property infringement, or other claims asserted against the State, its officers, or employees to the extent caused by the acts or omissions of negligence, reckless or willful misconduct, or fraud by the Contractor, its employees, agents, or subcontractors. The State shall not be liable for any costs incurred by the Contractor arising under this paragraph 13.

Notwithstanding the foregoing, nothing herein contained shall be deemed to constitute a waiver of the State’s sovereign immunity, which immunity is hereby reserved to the State.

This covenant in paragraph 13 shall survive the termination of this Agreement.

Response: The State is willing to negotiate this clause during the contract phase with the awarded vendor, however, cannot agree to specific language changes at this time.

Form P-37, Exhibit D, Section 2, Pg.33

2. Software Title

Title, right, and interest (including all ownership and intellectual property rights) in the

Software provided under this agreement including any derivative works thereof, and its associated documentation, shall remain with the Contractor.

Response: The State is willing to negotiate this clause during the contract phase with the awarded vendor and does not see an issue with the language proposed.

Form P-37, Exhibit D, Section 3, Pg.33

3. Software and Documentation Copies

Contractor shall provide the State with one (1) electronic version (Microsoft Word and PDF format) of the Software’s associated Documentation. The State shall have the right to copy the Software and its associated Documentation within its possession for its internal business needs. To the extent that the State does not have possession of the Software, Contractor shall provide a copy of the Software and associated Documentation upon request. The State agrees to include copyright and proprietary notices provided to the State by the Contractor on such copies.

Response: The State is willing to negotiate this clause during the contract phase with the awarded vendor and does not see an issue with the language proposed.

Form P-37, Exhibit D, Section 7, Pg.34

7. Software Non-Infringement

Contractor warrants that it has good title to, or the right to allow the State to use all

Services, equipment, and Software, including any and all component parts thereof such as third-party software or programs that may be embedded in the Software (“Contracted

Resources”) provided under this Contract, and that such Services, equipment, and

Software do not violate or infringe any patent, trademark, copyright, trade name or other intellectual property rights or misappropriate a trade secret of any third party.

The warranty of non-infringement shall be an on-going and perpetual obligation that shall survive termination of the Contract. In the event that someone makes a claim against the

State that any Contracted Resources infringe their intellectual property rights, Contractor shall defend and indemnify the State against the claim provided that the State:

a. Promptly notifies Contractor in writing, not later than 30 days after the State receives actual written notice of such claim.

b. Gives Contractor control of the defense and any settlement negotiations.

c. Gives Contractor the information, authority, and assistance reasonably needed to defend against or settle the claim.

Provided, however, that Contractor shall have no obligations under this section with respect to claims to the extent arising out of (a) any instruction, information, designs, specifications, or other materials provided by State in writing to Contractor; (b) State's use of the deliverables in combination with any materials or equipment not supplied to State or authorized by Contractor in writing; or (c) any modifications or changes made to the deliverables other than by Contractor.

Notwithstanding the foregoing, the State’s counsel may participate in any claim to the extent the State seeks to assert any immunities or defenses applicable to the State.

If Contractor believes or it is determined that any of the Contracted Resources may have violated someone else’s intellectual property rights, Contractor may choose to either modify the Contracted Resources to be non-infringing or obtain a license to allow for continued use, or if these alternatives are not commercially reasonable, Contractor may end the license, and require return of the applicable Contracted Resources and refund all fees the State has paid Contractor under the Contract.

Response: The State is willing to negotiate this clause during the contract phase with the awarded vendor and does not see an issue with the language proposed.

Form P-37, Exhibit D, Section 10, Pg.35

Requesting that Section 10 be removed from the Agreement.

Software Escrow Contractor agrees to provide to the State the currently existing source code and any other tools and requirements necessary to create executable or interpretive programs. This information may be provided to the State either directly, with any such protections as required by the Contractor or through a mutually agreed upon Escrow

Agreement. Contractor shall be responsible for all costs associated with the Escrow

Agreement and the State shall not assume any liability to the Company or Escrow Agent as a result of the Agreement. Contractor agrees that the State shall be entitled to utilize the source code in its possession and/or demand a release of the source code from the Escrow

Agent upon the occurrence of any of the following events ("Release Events"): a. Contractor has made an assignment for the benefit of creditors. b. Contractor institutes or becomes subject to a liquidation or bankruptcy proceeding of any kind. c. A receiver or similar officer has been appointed to take charge of all or part of Contractor’s assets. d. Contractor terminates its maintenance and operations support services for the State for the Software or has ceased supporting and maintaining the Software for the State whether due to its ceasing to conduct business generally or otherwise, except in cases where the termination or cessation is a result of the non-payment or other fault of the State. e. Contractor defaults under the Contract. Page 35 of 49 Contractor Initials: Date: STATE OF NEW HAMPSHIRE

<DEPARTMENT> 20XX-XXX <TITLE> EXHIBIT D – SOFTWARE LICENSE AGREEMENT f.

Contractor ceases its on-going business operations or that portion of its business operations relating to the licensing and maintenance of the Software. Upon the occurrence of a Release Event, Contractor hereby grants the State the right to use, copy, modify, display, distribute, and prepare derivative works of the source code, and to authorize others to do the same on behalf of the State (Contractors, agents, etc.), solely for the purpose of completing the performance of Contractor’s obligations under the Contract, including, but not limited to, providing maintenance and support for the Software and subject to the rights granted in this Contract.

Response: The State is willing to negotiate this language, however, not strike it completely.

The Escrow provision ensures the State retains the ability to maintain continuity of service for critical systems ONLY in the event the Contractor cannot or will not fulfill its obligations.

Form P-37, Exhibit D-1, Section 1, Pg.37

1. Software Title

The Contractor agrees that any and all work product created pursuant to this Agreement, including but not limited to all Software, are deemed to be “works for hire” within the meaning of the Copyright Act of 1976. To the extent Contractor is deemed to have retained any legal title, rights and interest in these works, Contractor hereby assigns any and all such title, rights, and interest (including all ownership and intellectual property rights) in the Software and related work product to the State of New Hampshire in consideration for the promises set forth within this Agreement. For clarity, nothing in this Agreement will be construed to transfer Contractor’s pre-existing intellectual property or any derivative works thereof.

Response: The State is willing to negotiate this clause during the contract phase with the awarded vendor, however, cannot agree to specific language changes at this time.