attachment-2-rfp-doe-2027-004--1-.pdf

Class Wallet Requested Contract Exceptions

RFP 2027-004-Digital Spend Management Platform

1. Section 8.2.4 - Rejected - The proposed revision would eliminate the State's ability to immediately terminate for material breaches that are technically capable of cure.

The State must preserve discretion to terminate where the nature or severity of the breach makes a cure period inappropriate.

2. Section 13 - Rejected - Section 13 already does what the proposed change is trying to do, "…caused by the acts or missions of negligence reckless or willful misconduct, or fraud by the Contractor, its employees, agents, or subcontractors.

3. Exhibit A, Section 9.3 – Open to negotiation. At this time, any changes to the DOIT P-

37 must be approved through the DOIT Contract team and the Department of Justice. Final negotiations will be completed during contract drafting.

4. Exhibit B, Section 11.4 – Rejected - Regarding the use of “promptly”, there is no difference because it is defined in the clause as within 24 hours.

Rejected - Regarding State Data, Section 11.4 paragraph 1 already limits notifications to State Data.

5. Exhibit D, Section 3 - Open to negotiation. At this time, any changes to the DOIT P-37 must be approved through the DOIT Contract team and the Department of Justice.

Final negotiations will be completed during contract drafting.

6. Exhibit D, Section 7 – Open to negotiation. At this time, any changes to the DOIT P-

7. Exhibit D, Section 10 - Open to negotiation. At this time, any changes to the DOIT P-

Exceptions to P-37 (RFP 2027-004-Digital Spend Management Platform)

Section

Number

Original Clause Modified Language Explanation

Section

8.2.4 give the Contractor a written notice specifying the Event of Default, treat the Agreement as breached, terminate the

Agreement and pursue any of its remedies at law or in equity, or both.

Solely to the extent that any Event of Default is incapable of cure, give the

Contractor a written notice specifying the

Event of Default, treat the Agreement as breached, terminate the

Agreement and pursue any of its remedies at law or in equity, or both.

The Agreement's material breach provision already includes a cure period, so this qualifier limits immediate termination to breaches that are incapable of cure by their nature, avoiding any conflict between the two provisions.

Section 13 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 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

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

We propose including

"to the extent" to ensure the Contractor's indemnification obligation is proportional to its own fault, so the Contractor is not exposed to liability for damages it did not cause.

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

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 Exhibit A

Section

9.3

9.3 Upon termination of

the Contract, the State, in addition to any other rights provided in the

Contract, may require

Contractor to deliver to the State any property, including without limitation, Software and

Written Deliverables, for such part of the Contract as has been terminated.

After receipt of a notice of termination, and except as otherwise directed by the

State, Contractor shall:

Transfer title to the State and deliver in the manner, at the times, and to the extent directed by the

State, any property which is required to be furnished to the State and which has been accepted or requested by the State;

9.3 Upon termination of

the Contract, the State, in addition to any other rights provided in the

Contract, may require

Contractor to deliver to the State any property, including without limitation, Software and

Written Deliverables, for such part of the Contract as has been terminated.

After receipt of a notice of termination, and except as otherwise directed by the

State, Contractor shall:

Transfer title to the State and deliver in the manner, at the times, and to the extent directed by the

State, any property which is required to be furnished to the State and which has been accepted or requested by the State;

Contractor’s software is a standard, out-of-the-box SaaS solution with no on-premise installation or customized code.

Contractor is therefore unable to provide functional copies of the software upon termination or expiration of the

Agreement.

Exhibit B

11.4

The Contractor, unless stipulated otherwise, shall immediately notify the appropriate State identified contact by telephone in accordance with the agreed upon security plan or security procedures if it reasonably believes there has been a

The Contractor, unless stipulated otherwise, shall immediately promptly notify the appropriate

State identified contact within 24 hours or sooner by telephone, unless shorter time is required by applicable law, if it confirms that there is, or

Contractor proposes narrowing this provision to focus on incidents that actually affect State Data, so neither party is burdened with notifications for security events that security incident. The

Contractor, unless stipulated otherwise, shall promptly notify the appropriate State identified contact within

24 hours or sooner by telephone, unless shorter time is required by applicable law, if it confirms that there is, or reasonably believes that there has been a Data

Breach the Contractor shall:

reasonably believes that there has been a Data

Breach has occurred that compromises or threatens the confidentiality, integrity, or availability of

State Data have no impact on the

State.

Exhibit D

Section 3

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.

Contractor shall provide the State with one (1) electronic version

(Microsoft Word and PDF format) of the Software’s associated Documentation that is regularly made available to Contractor’s customer base. 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.

As a standard SaaS provider, Contractor's documentation is not customized for individual clients, so this language clarifies that only Contractor's generally available documentation will be provided.

Exhibit D

Section 7

Contractor warrants that it has good title to, or the right to allow the State to use all Services, equipment, and Software, Contractor warrants it has good title to, or the right to allow the State to use all Services, equipment, and Software, including

The Agreement's existing intellectual property indemnification provision already 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.

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.

affords the State a comprehensive remedy in the event of any third-party infringement claim.

Stacking an open-ended warranty obligation on top of an indemnification can create overlapping and potentially conflicting obligations.

Exhibit D

Section 10

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

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

As Contractor provides a standard SaaS-based solution, source code escrow is not applicable. Unlike on-premise or custom software deployments, the State's access to and use of the Services is delivered entirely through Contractor's hosted environment.

The State does not install, operate, or maintain any software.

Source code escrow arrangements are designed for on-premise software where a licensee could theoretically step in to maintain the software independently, which is not the case with the software provided by

Contractor.

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.

f. Contractor ceases its on-going business operations or that portion of its business operations relating to the licensing and maintenance of the

Software.

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.

f. Contractor ceases its on-going business operations or that portion of its business operations relating to the licensing and maintenance of the

Software.

NH Exceptions 20260626.pdf