Attachment 08 Written Inquiry Responses - Idaho.docx

Electronic Benefits Transfer (EBT) Service, RFP #2022000005

In order to offer the best possible price, Offeror respectfully requests a cap on liability consistent with industry standards and reasonable apportionment of risk on programs of similar size and complexity.

Limitation of Liability. Contractor’s liability for damages to the State for any cause whatsoever is limited to __________; provided, however, that the following shall not be subject to the foregoing limit:

Offeror seeks standard payment return times in order to offer the best pricing possible to our customers and to meet our payment obligations to our own employees and vendors.

In accordance with equitable principles and industry standards, Contractor respectfully requests that its indemnification liability be commensurate to its failure to perform in accordance with its contractual duties.

Idaho Standard Contract Terms and Conditions paragraph 12

Contractor’s Indemnification. Contractor shall indemnify, defend, and save harmless the State, its officers, agents, and employees (collectively State Indemnitees), and volunteers from and against any and all liability, cClaims (as defined in this Section 12A.) asserted by a third party against the State Indemnitees and indemnify and hold harmless the State Indemnitees ,from and against any damages, costslosses, and expenses of such third party awarded against the State, actions, settlements, attorneys’ fees, and suits whatsoever caused by, arising out of, or in connection with Contractor’s acts or omissions under this Contract or Contractor’s failure to comply with any state or federal statute, law, regulation, or rule during performance or applicable to the performance of the Contract. by a final court judgment or an agreement settling such Claims in accordance with this Section 12A. As used in this Section 10.2, the term “Claim” means any action, litigation, or claim by a third party alleging (i) personal injury or property damage caused by FIS’ gross negligence or willful misconduct in connection with the Agreement; (ii) Contractor’s failure to comply with all federal Laws applicable to Contractor as a provider of a Service; or (iii) that a Service or Software infringes an effective U.S. Patent or a registered trademark or copyright; provided, however, that Contractor shall not be liable for any infringement or alleged infringement that results, in whole or in part, from: (a) use of a Service or Software in a manner or for a purpose not specifically described in the Agreement; (b) use of a Service or Software in combination with computer programs, processes, hardware, software, data, systems, or services owned, licensed or provided by someone other than Contractor; (c) the State’s or the State Indemnitee’s products or services; (d) modification, change, amendment, customization, or adaptation of any Service or Software not made wholly by Contractor; or (e) State or any State Indemnitee’s failure to implement corrections or changes provided by Contractor. If a claim of infringement has been asserted, or in Contractor's opinion is about or likely to be asserted, Contractor may, at its option: (1) procure for the State the right to continue using the Service or Software; (2) replace or modify the Service or Software; or (3) terminate the applicable portion of the Agreement and refund all pre-paid fees covering future use of the Service or Software.

A.B. Actions on Tender; Limitations. The obligation to indemnify under the Agreement is contingent upon: (i) the indemnified party promptly notifying the indemnifying party in writing of any Claim subject to such indemnity obligation; (ii) the indemnifying party having sole control over the defense and settlement of the Claim; (iii) the indemnified party reasonably cooperating during defense and settlement efforts; (iv) the Claim(s) not arising, in whole or in part, out of the action or inaction of the indemnified party; and (v) the indemnified party not making any admission, concession, consent judgment, default judgment or settlement of the Claim or any part thereof. Upon receipt of the State's tender of indemnity and defense, Contractor shall promptlyimmediately take all reasonable actions necessary, including, but not limited to, providing a legal defense for the State, to begin fulfilling its obligation to indemnify, defend, and save harmless the State. Contractor's indemnification and defense liabilities described herein shall apply regardless of any allegations that a claim or suit is attributable in whole or in part to any act or omission of the State under the Contract. Contractor shall not be required to hold the State harmless for damages attributed to the State in a final order issued by a court of competent jurisdiction. If it is determined by a final judgment that the State’s negligent act or omission is the sole proximate cause of a suit or claim, the State, to the extent funds are legally available therefore, shall reimburse Contractor for reasonable defense costs attributable to the defense provided by any Special Deputy Attorney General appointed pursuant to section 12.C Idaho will not make the requested modifications.

a. the contract price for performance of work, which is accepted by the State, up to the effective date of the termination.

b. reasonable and necessary costs incurred in preparing to perform the terminated portion of the contract

c. reasonable profit on the completed but undelivered work up to the date of termination

d. the costs of settling claims arising out of the termination of subcontracts or orders, not to exceed 30 days’ pay for each subcontractor

e. reasonable accounting, legal, clerical, and other costs arising out of the termination settlement.

The Offeror respectfully requests that in the event of any termination for reasons other than default by the Contractor, the relevant State reimburse the Contractor in a fair and equitable manner.

Relatedly, will the WSEA States also confirm that, in the event that the creation of intellectual property ever does become part of the scope of work, all intellectual property developed prior to or independently of this project shall continue to be owned by the Contractor or any relevant third parties?

The Offeror respectfully seeks confirmation that title to and licensing of intellectual property that the Contractor or third parties have developed prior to or independently of this project will be sufficiently protected.

The Offeror respectfully requests that in accordance with industry standards, common business practice, and the principles of equity and fairness, the Contractor be granted the opportunity to correct any alleged default prior to termination.

The Offeror’s policies, while offering good protection, provide standard wording to cover thousands of customers and projects. While the Offeror is often able to retain riders to adjust such language, the Offeror’s best pricing can be obtained without requiring such riders. The Offeror is happy to contact any State’s insurance contact post-award to work through and explain any divergent wording.

The Offeror affirms its intention of meeting all deadlines in a timely manner but seeks to distinguish between catastrophic failures and de minimis infractions.

The Offeror respectfully requests the insertion of a force majeure clause, common in the industry, for the protection of both parties as well as other scenarios of excused non-performance that are just and equitable.

Idaho Standard Contract Terms and Conditions paragraph 21

Idaho Standard Contract Terms and Conditions paragraph 24

Idaho Standard Contract Terms and Conditions paragraph 25

Insert the following at the conclusion of the paragraph:

To the extent the State receives or has access to any Contractor confidential, proprietary information exempt from public disclosure, the State shall keep such information confidential.

Idaho will not make the requested modifications. Under Idaho Standard Contract Terms and Conditions paragraph 28, it is the contractor’s responsibility to identify portions of records that are exempt from release under the Idaho Public Records Act, specify the exemption and defend that claim. If a contractor requires confidentiality outside of a record such as confidentiality of a verbal discussion, that is addressed on a case-by-case basis consistent with the terms of state employee rights as civil servants.

Idaho Standard Contract Terms and Conditions paragraph 27

Idaho Standard Contract Terms and Conditions paragraph 34