WEX Stacked.pdf

WEX BANK

wexinc.com 111 East Sego Lily Drive, Suite 250

Sandy, Utah 84070 October 16, 2023

RFP No. 6819 Z1 Attn: Matthew Hansen and Connie Heinrichs State Purchasing Bureau

1526 K Street, Suite 130

Lincoln, NE 68508

Dear Matthew Hansen and Connie Heinrichs, WEX Bank thanks you for the opportunity to respond to the State of Nebraska’s Request for Proposal No. 6819 Z1 for Fleet Fuel Card Services. WEX Bank, incorporated in Utah and formerly known as Wright Express Financial Services Corporation, is an industrial bank and wholly-owned subsidiary of WEX Inc., a Delaware corporation formerly known as Wright Express Corporation.

Unless context dictates otherwise, WEX Bank and WEX Inc. are collectively referred to herein as WEX.

WEX is proposing the WEX Universal Fleet Card Program for the State of Nebraska/University of Nebraska’s retail fueling needs. The WEX Universal program and pricing proposal allows the State, University, and any other municipal entities within Nebraska to maximize savings anywhere the card is accepted. Nationally, the card is accepted at 95% of domestic retail fuel sites – approximately 138,000, with over 2,150 in Nebraska.

WEX has been in the fleet card business since 1983. Over those 40 years, we have diversified into travel and corporate payments, and health and employee benefit solutions, but never forgot our roots as a fleet and mobility provider. WEX has built a proprietary, closed-loop, data-rich network of accepting locations. While true that WEX is a multi-billion company, comprised of more than 6,600 team members, with deep fleet and mobility industry experience, and a passion for technological innovation and investment, WEX is also more than that. We achieve growth and secure top talent by placing Diversity, Equity, and Inclusion at the forefront of our culture. We look to the future of mobility by leveraging our network building and payment technology in places like EV and security, drive sustainable growth by deploying up to $100 million in capital to early-stage commercial EV start-ups, while also reducing our own carbon footprint by investing in our own EV and hybrid fleets, and reducing data center energy use by 64 percent.

Globally, WEX services over 18 million fuel cards, approximately 1.2 million of which are held by public sector organizations at every level of government - federal, state, and local.

Our experience with state fleets is simply unequaled. WEX currently holds 36 statewide fleet card contracts and provides fuel card programs for over 13 federal government agencies, including the GSA Fleet, who operate a card program of over 225,000 vehicles. Starting with the program implementation and continuing throughout the contract, WEX works diligently to understand the details of your fleet operations and become a strategic partner.

WEX is an active Corporate Member of NCSFA, where we are constantly learning and collaborating with State Fleet

Administrators to help solve fleet related issues.

Highlights of WEX’s Fuel Card program include:

• Acceptance at more than 95% of fuel stations nationwide.

• Award-winning, in-house customer service, available 24 hours a day, 365 days a year.

• Level Ill transaction data capture on 99.8% of your transactions, ensuring data integrity for advanced controls and better detection of fraud, misuse, and abuse.

• Clearview, our Data Analytics Platform, allows State Fleet Manager to more easily detect fraud and misuse.

• Web-based program management through WEXOnline; including real-time account maintenance, real-time card authorization information (usually within seconds of the transaction), and the ability to activate, deactivate, and reactivate fuel cards and driver ID numbers.

• A customizable online reporting tool, including the ability to create and schedule custom reports.

• A transparent and competitive pricing solution, making it easy to calculate savings.

WEX provides support that is unmatched in the industry. In addition to 24/7 in-house customer service, Martha Kneeland would be your Premium Fleet Services Account Manager and daily contact for your program administrators.

WEX also supports your program at a strategic level with an experienced Strategic Relationship Manager, Janet Parker. Janet will provide regular program reviews and share best practices based on learnings from our other government and commercial fleets. Janet is your primary point of contact during the RFP process, and may be reached at:

Janet Parker, Strategic Relationship Manager, Public Sector 1 Hancock St Portland, ME 04101 M: 207-749-6176 E: Janet.parker@wexinc.com

WEX thinks of our state relationships more as partnerships, and hopes the State of Nebraska agrees, along with 36 of your state fleet colleagues, that WEX is the fleet and mobility partner of choice. Thank you for allowing us to present our program capabilities. We look forward to speaking with you, and are happy to answer any questions you may have.

Sincerely, Jason Price President/CEO WEX Bank

W441202 , 10/16/2023, 3:09:09 PM

mailto:Janet.parker@wexinc.com

Response to RFP 6819Z1

State of Nebraska October 18, 2023

Table of Contents

1. Executive Summary 3

2. Section II: Terms and Conditions 7

3. Section III: Contractor Duties 25

4. Section IV: Payment 33

5. Section V: Project Description and Scope of Work 36

6. Section VI: Proposal Instructions 48

○ Acceptance 54

○ Level III Data Capture and Transmission 55

○ WEXOnline 60

○ WEX ClearView 64

○ Alternative Fuels 67

○ WEX Mobile Apps 69

7. Attachment A, Form A.1a: Mandatory Project Requirements 71

8. Attachment A, Form A.1b: Project Requirements 71

9. Attachment A, Form A.2: Baseline Functional Requirements 72

10.Attachment A, Form A.3: State of Nebraska Specific Functional

Requirements 98

11. Attachment A, Form A.4: University of Nebraska Specific Functional

Requirements 104

12. Form A.5: Rebate Proposal 111

13.Form A - Bidder Proposal Point of Contact 114

Confidential and Proprietary Information of WEX Inc. and WEX Bank // wexinc.com

Executive Summary This response to The State of Nebraska’s (the State) RFP 6819 Z1, Fleet Fuel Card Services, is presented by WEX Bank, formerly known as Wright Express Financial Services Corporation, a Utah industrial bank and wholly-owned subsidiary of WEX Inc., a Delaware corporation formerly known as Wright Express Corporation. Unless context dictates otherwise, WEX Bank and WEX Inc. are collectively referred to herein as WEX.

WEX Bank WEX Inc.

111 East Sego Lily Drive, Suite 250 Sandy, UT 84070

(888) 842-0075 Year of Organization: 1997

1 Hancock St.

Portland, Maine 04101

(800) 761-7181 Year of Organization: 1983

WEX processes transactions on 18 million fuel cards around the world, and over 40 years have built our proprietary closed-loop network that includes acceptance at 95 percent of the retail fuel locations in the United States. Our network gives fleets the ability to control purchases in the field, and delivers comprehensive information and analysis tools for effective operational management and cost reduction.

When discussing our solution we often talk about “the WEX Advantage,” which includes our industry longevity, and innovative approach to fleet and mobility solutions. But the WEX Advantage is also:

Our People: We are 6,100 associates building partnerships and strategic relationships in the United States, and around the world. We are a diverse group of forward thinkers, problem solvers, and lifelong learners. Our culture didn’t happen by accident. WEX is dedicated to cultivating a diverse, equitable, and inclusive (DE&I) space as part of our overall business strategy, which aims to achieve growth expectations, deliver innovative offerings, and be a positive force in our community.

Sustainability: WEX understands the shift toward a low-carbon future requires widespread adoption of emerging technologies, as well as development of new resources. We encourage low-carbon commutes, support flexible working models, and are converting our small fleet to electric or hybrid vehicles as leases renew. Additionally, we reduced our internal data center energy use by 64% from 2019 to 2022.

Social Impact: We work to enhance the health and well-being of our communities, customers, partners, and employees through the products and services we offer, community involvement, and philanthropy. Recently, we launched our Global Giving Framework, which shifted our philanthropic focus to more effectively engage employees and better align with WEX culture, and gave more than $980,000 through our corporate philanthropy program.

WEX Simplifies the Business of Running a Business across three segments:

Healthcare and Employee Benefit Solutions

WEX simplifies administration of benefits for employees, including consumer directed health accounts in the United States both directly and through partners. We serve more than half the Fortune 1000 companies in the U.S.

Simplify Employee Benefits

Benefits Administration

Benefits Accounts

COBRA/Billing Solutions

Travel and Corporate Solutions

WEX is both one of the largest commercial payment companies in the world as well as a trusted technology partner for some of the largest organizations in the world. WEX is unique in our space as we couple wholly owned market leading technology with a global issuing and funding capability.

Streamline Making & Receiving Payment

Expense Management

Workflow Automation

Travel Booking

Fleet and Mobility Solutions

WEX reimagines mobility across fleets of all sizes as we partner with nine of the top 10 U.S. fuel retailers, service over 650,000 global fleet customers, and administer over 18 million fuel cards worldwide.

Manage Fleets & Mobility

Controls & Fraud Prevention

Proprietary Network

EV & Mixed Fleets

Government experience

Our experience in the government and municipal space is unmatched. WEX currently provides fleet fuel cards for 36 states, and has governmental and tax exempt customers in all 50 states. Our State customers represent more than 811,000 cards.

WEX also provides fleet card services as a subcontractor to Citibank under the Federal Government’s GSA SmartPay 3 Charge Card Program for 13 federal agencies, including the GSA Fleet, and the Departments of Homeland Security, Agriculture, State, Treasury, Commerce, Energy and Justice.

These federal government customers have more than 315,000 cards. In total, WEX services approximately 1.2 million tax-exempt cards.

WEX also holds cooperative contracts with Sourcewell and NASPO ValuePoint.

We are an active member of the National Conference of State Fleet Administrators, continually attending educational seminars and focus groups to better understand the industry so we can meet and exceed the needs of our customers.

The WEX Fleet Card Program

The WEX Fleet Card program offers superior card functionality, reporting, and customer service.

Highlights of our program include:

● Level III data capture on 99.8% of transactions, including remote sites that may only transmit Level I or II using Mastercard or Visa, for greater insight and fraud detection

● Nine levels of hierarchy for flexible reporting and billing options

● Advanced card to Prompt ID number functions; ability to tie one card to one Prompt ID, etc.

● More flexible prompting options at point of sale

● Acceptance at 95% of the retail fuel sites in the U.S., and expanded acceptance through virtual Mastercard technologies

● Comprehensive Federal and State tax exemption, reporting, and recovery program

● Robust online reporting tools through WEXOnline, including the ability to schedule and share custom reports

● Ability to customize data fields and add GL codes for accounts, drivers, vehicles or cards

● Control over user access to the online system, with advanced administrative functions

Section II: Terms andConditions WEXResponse: As a subsidiary of a Utah bank regulated by the U.S. Federal Deposit Insurance Commission (FDIC), and as a financial institution using its own contracts related to the provision of payment processing/financial services, it is important for regulatory and operational purposes to include WEX’s standard terms and conditions (see attachedWEXUniversal T&Cs for NebraskaGovt RFP Final 11 OCT2023). Further, general form agreements related to the provision of goods or services are not adequate or appropriate for the provision of financial services. We would assume the State does not use its own form of agreement with its other banks. WEX has attached its standard terms and conditions, which would serve as the starting point for any contract negotiation resulting from this solicitation and our response.

Any contract is contingent on credit approval and underwriting standards.

Please see our response to the State’s Terms and Conditions, below.

Bidders should complete Sections II through VI as part of their proposal. Bidder is expected to read the Terms and Conditions and should initial either accept, reject, or reject and provide alternative language for each clause. The bidder should also provide an explanation of why the bidder rejected the clause or rejected the clause and provided alternate language. By signing the Request for Proposal, bidder is agreeing to be legally bound by all the accepted terms and conditions, and any proposed alternative terms and conditions submitted with the proposal. The State reserves the right to negotiate rejected or proposed alternative language. If the State and bidder fail to agree on the final Terms and Conditions, the State reserves the right to reject the proposal. The State of Nebraska is soliciting proposals in response to this Request for Proposal. The State of Nebraska reserves the right to reject proposals that attempt to substitute the bidder’s commercial contracts and/or documents for this Request for Proposal.

The bidders should submit with their proposal any license, user agreement, service level agreement, or similar documents that the bidder wants incorporated in the Contract. The State will not consider incorporation of any document not submitted with the bidder’s proposal as the document will not have been included in the evaluation process. These documents shall be subject to negotiation and will be incorporated as addendums if agreed to by the Parties.

If a conflict or ambiguity arises after the Addendum to Contract Award have been negotiated and agreed to, the Addendum to Contract Award shall be interpreted as follows:

1. If only one Party has a particular clause then that clause shall control,

2. If both Parties have a similar clause, but the clauses do not conflict, the clauses shall be read together,

3. If both Parties have a similar clause, but the clauses conflict, the State’s clause shall control.

WEX Response: Please see attached:

● WEX Universal T&Cs for Nebraska Govt RFP Final 11 OCT 2023

● WEX Inc Tax Package 22

● WEX Fleet ClearView End User License Agreement

● WEXOnline End User License Agreement

● WEX Private Site Overview

A. GENERAL

Accept (Initial)

Reject (Initial)

Reject & Provide Alternative within RFP Response

(Initial)

NOTES/COMMENTS:

J.P. The “four corners” of the contract should be the extent of the contract, as amended, which should govern for ease of administration.

1. The contract resulting from this Request for Proposal shall incorporate the following documents:

a. Request for Proposal, including any attachments and addenda;

b. Amendments to the Request for Proposal;

c. Questions and Answers;

d. Bidder’s properly submitted proposal, including any terms and conditions or agreements submitted by the bidder; and

e. Amendments and Addendums to the Contract.

These documents constitute the entirety of the contract.

Unless otherwise specifically stated in a future contract amendment, in case of any conflict between the incorporated documents, the documents shall govern in the following order of preference with number one (1) receiving preference over all other documents and with each lower numbered document having preference over any higher numbered document: 1) Amendment or Addendum to the executed Contract with the most recent dated amendment or addendum having the highest priority, 2) Amendments to the Request for Proposal, 3) Questions and Answers, 4) the original Request for Proposal document and any Addenda or attachments, and 5) the Contractor’s submitted Proposal, including any terms and conditions or agreements that are accepted by the State.

Unless otherwise specifically agreed to in writing by the State, the State’s standard terms and conditions, as executed by the State, shall always control over any terms and conditions or agreements submitted or included by the Contractor.

Any ambiguity or conflict in the contract discovered after its execution, not otherwise addressed herein, shall be resolved in accordance with the rules of contract interpretation as established in the State of Nebraska.

B. NOTIFICATION

Accept (Initial)

Reject (Initial)

Reject & Provide Alternative within RFP Response

(Initial)

NOTES/COMMENTS:

J.P.

Suggest Section 23.9 in the attached WEX Universal T&Cs for Nebraska Govt RFP Final 11 OCT 2023:

“Except as otherwise provided in this Agreement, all notices will be in writing and deemed effective when personally delivered or mailed, first class postage prepaid to the appropriate Party at the address set forth in the application for credit or at such other address as the Parties may indicate from time to time. In addition to the notice methods provided above, the Parties agree that a communication: (a) by facsimile to a number identified by the recipient as appropriate for communication under this Agreement; or (b) by email to or from an address normally used by an Account User for business communications, shall be considered to be a “writing” and to be “signed” by the Party transmitting it for all purposes. The Parties agree to waive any claim that a transmission does not satisfy any writing or signature requirements under applicable law. The Parties agree that a photocopy or printed copy of a facsimile or email constitutes the “best evidence” and an “original” of such a writing.”

Bidder and State shall identify the contract manager who shall serve as the point of contact for the executed contract.

Communications regarding the executed contract shall be in writing and shall be deemed to have been given if delivered personally; electronically, return receipt requested; or mailed, return receipt requested. All notices, requests, or communications shall be deemed effective upon receipt.

Either party may change its address for notification purposes by giving notice of the change and setting forth the new address and an effective date.

C. BUYER’S REPRESENTATIVE

Accept (Initial)

Reject (Initial)

Reject & Provide Alternative within

RFP

Response (Initial)

NOTES/COMMENTS:

J.P.

The State reserves the right to appoint a Buyer's Representative to manage or assist the Buyer in managing the contract on behalf of the State. The Buyer's Representative will be appointed in writing, and the appointment document will specify the extent of the Buyer's Representative authority and responsibilities. If a Buyer's Representative is appointed, the bidder will be provided a copy of the appointment document and is expected to cooperate accordingly with the Buyer's Representative. The Buyer's Representative has no authority to bind the State to a contract, amendment, addendum, or other change or addition to the contract.

D. GOVERNING LAW (Nonnegotiable)

Notwithstanding any other provision of this contract, or any amendment or addendum(s) entered into contemporaneously or at a later time, the parties understand and agree that, (1) the State of Nebraska is a sovereign state and its authority to contract is therefore subject to limitation by the State’s Constitution, statutes, common law, and regulation; (2) this contract will be interpreted and enforced under the laws of the State of Nebraska; (3) any action to enforce the provisions of this agreement must be brought in the State of Nebraska per state law; (4) the person signing this contract on behalf of the State of Nebraska does not have the authority to waive the State's sovereign immunity, statutes, common law, or regulations; (5) the indemnity, limitation of liability, remedy, and other similar provisions of the final contract, if any, are entered into subject to the State's Constitution, statutes, common law, regulations, and sovereign immunity; and, (6) all terms and conditions of the final contract, including but not limited to the clauses concerning third party use, licenses, warranties, limitations of liability, governing law and venue, usage verification, indemnity, liability, remedy or other similar provisions of the final contract are entered into specifically subject to the State's Constitution, statutes, common law, regulations, and sovereign immunity.

The Parties must comply with all applicable local, state, and federal laws, ordinances, rules, orders, and regulations.

WEXResponse: WEX acknowledges and can comply.

E. DISCOUNTS

Accept (Initial)

Reject (Initial)

Reject & Provide Alternative within RFP Response

(Initial)

NOTES/COMMENTS:

J.P.

Not applicable to the fuel card services WEX provides.

Prices quoted shall be inclusive of ALL trade discounts. Cash discount terms of less than thirty (30) days will not be considered as part of the proposal. Cash discount periods will be computed from the date of receipt of a properly executed claim voucher or the date of completion of delivery of all items in a satisfactory condition, whichever is later.

F. PRICES

Accept (Initial)

Reject (Initial)

Reject & Provide Alternative within RFP Response

(Initial)

NOTES/COMMENTS:

J.P. Suggest Sections 5, 7, 8, and Schedule B of the attached WEX Universal T&Cs for Nebraska Govt RFP Final 11 OCT 2023:

Section 5: Billing and Payments.

5.1 Customer shall make payment in accordance with, and within the time specified in, any specific prompt payment laws to which Customer is subject.]Issuer will provide Customer with a billing statement for each Billing Cycle in which the Account has activity. Customer agrees to pay Issuer in full on or before the relevant cutoff time on or before the Due Date.

5.2 Customer will pay Issuer for all credit extended under the Account, as well as any fees and charges, as provided in this Agreement. Customer is liable for all Transactions on the Account to the fullest extent permitted by applicable law, except as expressly provided in this Agreement. Customer may pay the entire balance of the Account or a portion of it, at any time prior to its Due Date without penalty.

5.3 All payments must be made in United States dollars, using checks or similar payment instruments drawn on financial institutions in the United States or by payment through the Automated Clearing House network in accordance with Issuer’s requirements.

5.4 Payments made via paper check are posted to the Account after processing and must arrive at Issuer at least two Business Days before the Due Date on the billing statement. It can take up to two Business Days to process a check from the time the envelope containing a check arrives at Issuer’s facility to posting of the check amount to the Account.

5.5 For payments not made by paper check, payments on a Business Day before the cut-off time in this Section 5.5 (the “Cut-off Time”) will be posted on that Business Day. Payments after the Cut-off Time on a Business Day, or on a day other than a Business Day, will be posted on the following Business Day.

The Cut-off Times for payments not made by check are as follows: a payment transaction made via Issuer’s online payment portal must be completed by 3:00 p.m. ET; a payment transaction made via IVR must be completed by 3:00 p.m.

ET; and a payment transaction made via ACH must arrive to Issuer by 3:00 p.m. ET.

5.6 Regardless of payment method, Customer must ensure that Customer’s account number is provided with the payment. Failure to do so will cause processing delays in posting the payment to the Account. Payments that are received at locations other than the address specified on the billing statement, or that do not otherwise comply with instructions on the billing statement or the Agreement, may be delayed in posting.

5.7 Payments will be applied first to fees and then to other amounts owing on the Account. Issuer, in its sole discretion, may determine when to restore available credit in the Credit Limit after crediting a payment to an Account.

Section 7: Late Fees.

7.1 Late fees to be applied and paid in accordance with any specific prompt payment laws to which Customer is subject.”

Section 8: Other Fees.

In addition to Late Fees, Customer agrees to pay the additional fees in the amounts and as described on the Fee Schedule.

Schedule B: List of Fees Set Up Fee Waived Monthly Card Fee Waived Replacement Card Fee Waived International Currency Conversion Fee 2% of the total transaction value Reproduced Reports $25.00 per request General Research Fee $15.00 per hour Expedited Shipping Fee Cost varies Returned Payment Fee $50.00 per occurrence Reactivation Fee $50.00 per occurrence (maximum monthly fee or $50.00) Truck Stop Fee Up to $3.00 per card swipe at a diesel pump* Private Site Transaction Fee $0.35 per transaction Paper Delivery Fee $10.00 per month for paper invoicing and reporting

*Actual charges to be applied to your account will be disclosed on your billing statement

Pricing for additional products and services is available upon request or reflected on the enrollment forms or in the terms of use that Customer must agree to in order to receive the additional products and services.

Prices quoted shall be net, including transportation and delivery charges fully prepaid by the bidder, F.O.B.

destination named in the Request for Proposal. No additional charges will be allowed for packing, packages, or partial delivery costs. When an arithmetic error has been made in the extended total, the unit price will govern. For the purpose of the RFP, the term “price” includes rebates offered by bidders.

All prices, costs, and terms and conditions submitted in the proposal shall remain fixed and valid commencing on the opening date of the proposal until the contract terminates or expires.

The State reserves the right to deny any requested price increase. No price increases are to be billed to any State Agencies prior to written amendment of the contract by the parties.

The State will be given full proportionate benefit of any decreases for the term of the contract.

G. BEGINNING OF WORK & SUSPENSION OF SERVICES

Accept (Initial)

Reject (Initial)

Reject & Provide Alternative within RFP Response

(Initial)

NOTES/COMMENTS:

J.P.

Not applicable to the payment card services WEX provides.

The bidder shall not commence any billable work until a valid contract has been fully executed by the State and the successful Contractor. The Contractor will be notified in writing when work may begin.

The State may, at any time and without advance notice, require the Contractor to suspend any or all performance or deliverables provided under this Contract. In the event of such suspension, the Contract Manager or POC, or their designee, will issue a written order to stop work. The written order will specify which activities are to be immediately suspended and the reason(s) for the suspension. Upon receipt of such order, the Contractor shall immediately comply with its terms and take all necessary steps to mitigate and eliminate the incurrence of costs allocable to the work affected by the order during the period of suspension.

The suspended performance or deliverables may only resume when the State provides the Contractor with written notice that such performance or deliverables may resume, in whole or in part.

H. AMENDMENT

(Initial)

Reject (Initial)

Reject & Provide Alternative within

RFP

Response (Initial)

NOTES/COMMENTS:

J.P.

This Contract may be amended in writing, within scope, upon the agreement of both parties.

I. CHANGE ORDERS OR SUBSTITUTIONS

Accept (Initial)

Reject (Initial)

Reject & Provide Alternative within RFP Response

(Initial)

NOTES/COMMENTS:

J.P.

Not applicable to the payment card services WEX provides.

The State and the Contractor, upon the written agreement, may make changes to the contract within the general scope of the Request for Proposal. Changes may involve specifications, the quantity of work, or such other items as the State may find necessary or desirable. Corrections of any deliverable, service, or work required pursuant to the contract shall not be deemed a change. The Contractor may not claim forfeiture of the contract by reasons of such changes.

The Contractor shall prepare a written description of the work required due to the change and an itemized cost sheet for the change. Changes in work and the amount of compensation to be paid to the Contractor shall be determined in accordance with applicable unit prices if any, a pro-rated value, or through negotiations. The State shall not incur a price increase for changes that should have been included in the Contractor’s proposal, were foreseeable, or result from difficulties with or failure of the Contractor’s proposal or performance.

No change shall be implemented by the Contractor until approved by the State, and the Contract is amended to reflect the change and associated costs, if any. If there is a dispute regarding the cost, but both parties agree that immediate implementation is necessary, the change may be implemented, and cost negotiations may continue with both Parties retaining all remedies under the contract and law.

***Contractor will not substitute any item that has been awarded without prior written approval of

SPB***

J. RECORD OF VENDOR PERFORMANCE

Accept (Initial)

Reject (Initial)

Reject & Provide Alternative within

RFP

Response (Initial)

NOTES/COMMENTS:

J.P.

The State’s internal review process need not be in the contract.

The State may document the vendor’s performance, which may include, but is not limited to, the customer service provided by the vendor, the ability of the vendor, the skill of the vendor, and any instance(s) of products or services delivered or performed which fail to meet the terms of the purchase order, contract, and/or Request for Proposal specifications. In addition to other remedies and options available to the State, the State may issue one or more notices to the vendor outlining any issues the State has regarding the vendor’s performance for a specific contract (“Vendor Performance Notice”). The State may also document the Vendor’s performance in a report, which may or may not be provided to the vendor (“Vendor Improvement Request”). The Vendor shall respond to any Vendor Performance Notice or Vendor Improvement Request in accordance with such notice or request. At the sole discretion of the State, such Vendor Performance Notices and Vendor Improvement Requests may be placed in the State’s records regarding the vendor and may be considered by the State and held against the vendor in any future contract or award opportunity.

K. CORRECTIVE ACTION PLAN

If Contractor is failing to meet the Scope of Work, in whole or in part, the State may require the Contractor to complete a corrective action plan (“CAP”). The State will identify issues with the Contractor’s performance and will set a deadline for the CAP to be provided. The Contractor must provide a written response to each identified issue and what steps the Contractor will take to resolve each issue, including the timeline(s) for resolution. If the Contractor fails to adequately provide the CAP in accordance with this section, fails to adequately resolve the issues described in the CAP, or fails to resolve the issues described in the CAP by the relevant deadline, the State may withhold payments and exercise any legal remedy available.

WEX Response: WEX takes exception. The State cannot withhold payment since WEX will have already paid the merchants the State will have bought fuel from; plus, the State can terminate for convenience under Section 14.1 of the WEX Terms and Conditions.

L. NOTICE OF POTENTIAL CONTRACTOR BREACH

Accept (Initial)

Reject (Initial)

Reject & Provide Alternative within RFP Response

(Initial)

NOTES/COMMENTS:

J.P.

Each party should be responsible for determining breach of the other;

Contractor and State should not be responsible for calling their own breach.

If Contractor breaches the contract or anticipates breaching the contract, the Contractor shall immediately give written notice to the State. The notice shall explain the breach or potential breach, a proposed cure, and may include a request for a waiver of the breach if so desired. The State may, in its discretion, temporarily or permanently waive the breach. By granting a waiver, the State does not forfeit any rights or remedies to which the State is entitled by law or equity, or pursuant to the provisions of the contract. Failure to give immediate notice, however, may be grounds for denial of any request for a waiver of a breach.

M. BREACH

Accept (Initial)

Reject (Initial)

Reject & Provide Alternative within RFP Response

(Initial)

NOTES/COMMENTS:

J.P. Suggest Sections 14 and 15 of the attached WEX Universal T&Cs for Nebraska Govt RFP Final 11 OCT 2023:

Section 14: Term and Termination

14.1 This Agreement is effective when a Card is issued to Customer or Issuer opens an Account for Customer and shall remain in effect until terminated by a Party. Customer and Issuer each shall have the right to terminate this Agreement for any reason. Issuer’s right to terminate this Agreement pursuant to this Section 14.1 are in addition to Issuer’s termination rights under Section 15 if Customer is in Default and under Section 14.5 in connection with the termination or modification of products or services.

14.2 Customer shall exercise its termination right under Section 14.1 by providing written notice to Issuer. Issuer shall have a reasonable amount of time to terminate the Account after receiving a notice of termination from Customer.

Issuer shall provide Customer with any notice required by applicable law in connection with the exercise of its termination right under Section 14.1.

14.3 Customer shall not use a Card or the Account to make a purchase after termination of this Agreement. Customer shall return to Issuer, or provide verification of the destruction of, all Account numbers or Cards. Customer may retain a copy of any records or Account information for archival or data retention purposes.

14.4 The terms and conditions of this Agreement shall continue to apply until all amounts owing with respect to the Account are paid in full and Customer has performed all of its obligations under this Agreement. As a result, after termination, Customer remains obligated to pay for all amounts owing on an Account and charged under this Agreement after termination. Section 19 (Arbitration), Section 20 (Confidentiality) and Section 21 (Program Information) shall survive indefinitely.

14.5 Issuer may, for any reason, elect to terminate or modify any product or service described in this Agreement, or provided in connection with the Account in which Customer or an Account User has enrolled, upon such notice (if any) as may be required by applicable law.

Section 15: Default by Customer

15.1 Customer will be in “Default” under this Agreement if: (a) Customer fails to perform any obligation under this Agreement; (b) a representation or warranty by Customer in connection with this Agreement was incorrect or misleading when made; (c) any petition in bankruptcy, insolvency, receivership, or reorganization or proceeding pursuant to any other debtor relief law is filed by or against Customer; (d) any order is entered appointing a receiver, custodian, trustee, liquidator, or any other person with similar authority over the assets of Customer; (e) there is an insolvency, dissolution, reorganization, or assignment for the benefit of creditors with respect to Customer, or any other material adverse change in the financial condition of Customer; (f) any adverse judgment, order or award is entered against Customer that has a material adverse impact on the financial condition of Customer or a detrimental effect on the ability of Customer to perform its obligations under this Agreement; (g) Customer is in default under any other agreement between Customer and Issuer or its affiliates; or (h) any event described in Section 15.1(a) through (g) occurs with respect to any Guarantor or any Guarantor repudiates or otherwise defaults in its obligations under a guaranty.

15.2 If Customer is in Default: (a) Customer will not have any further right to borrow under this Agreement; (b) Issuer may declare all outstanding amounts under the Account to be immediately due and payable; (c) Issuer may terminate this Agreement; and (d) Issuer will have the right to bring suit and exercise all rights and remedies available under applicable law. In addition, if Customer is in Default, Issuer may, in its sole discretion, suspend all services and obligations, shorten the billing cycle, and change the payment terms. A suspension of services or obligations will not be deemed a waiver of any right to terminate this Agreement, whether as a result of the Default to which such suspension of services or obligations relates or otherwise. Customer agrees to pay any and all costs (including reasonable attorneys’ fees) incurred by Issuer in enforcing Customer’s obligations under this Agreement. If Issuer suspends all services and obligations, Customer agrees to pay the Reactivation Fee shown in Schedule B.

Also, failure to pay should be a breach. The services being provided are fuel payment cards.

Either Party may terminate the contract, in whole or in part, if the other Party breaches its duty to perform its obligations under the contract in a timely and proper manner. Termination requires written notice of default and a thirty (30) calendar day (or longer at the non-breaching Party’s discretion considering the gravity and nature of the default) cure period. Said notice shall be delivered by email to the contractor’s point of contact with acknowledgement from the contractor, Certified Mail - Return Receipt Requested, or in person with proof of delivery. Allowing time to cure a failure or breach of contract does not waive the right to immediately terminate the contract for the same or different contract breach which may occur at a different time. In case of default of the Contractor, the State may contract the service from other sources and hold the Contractor responsible for any excess cost occasioned thereby.

The State’s failure to make payment shall not be a breach, and the Contractor shall retain all available statutory remedies and protections.

N. NON-WAIVER OF BREACH

Accept (Initial)

Reject (Initial)

Reject & Provide Alternative within RFP Response

(Initial)

NOTES/COMMENTS:

J.P. Suggest Section 23.7 of the attached WEX Universal T&Cs for Nebraska Govt RFP Final 11 OCT 2023, as it is more specific to the services provided:

23.7 No delay or omission by Issuer to exercise any right under the Agreement shall impair such right or be construed to be a waiver of any default. The authorization of Transactions shall not constitute any waiver, including of Issuer’s rights with respect to such Transaction. Any single or partial exercise of any such right by Issuer shall not preclude other or further exercise thereof or the exercise of any other right. No waiver, amendment, or other variation of the terms, conditions, or provisions of the Agreement shall be binding on Issuer unless in writing, and then only to the extent set forth in such writing.

The acceptance of late performance with or without objection or reservation by a Party shall not waive any rights of the Party nor constitute a waiver of the requirement of timely performance of any obligations remaining to be performed.

O. SEVERABILITY

(Initial)

Reject (Initial)

Reject & Provide Alternative within RFP Response

(Initial)

NOTES/COMMENTS:

J.P. Suggest Section 23.10 of the attached WEX Universal T&Cs for Nebraska Govt RFP Final 11 OCT 2023, due to carve out for arbitration in Section 19 of attached terms and conditions:

23.10 If any portion of this Agreement is held to be invalid, the remaining portions shall remain in full force and effect and shall continue to be binding upon the parties (except as specifically provided in Section 19 (Arbitration)).

If any term or condition of the contract is declared by a court of competent jurisdiction to be illegal or in conflict with any law, the validity of the remaining terms and conditions shall not be affected, and the rights and obligations of the parties shall be construed and enforced as if the contract did not contain the provision held to be invalid or illegal.

P. INDEMNIFICATION

Accept (Initial)

Reject (Initial)

Reject & Provide Alternative within RFP Response

(Initial)

NOTES/COMMENTS:

J.P.

1. General

The Contractor agrees to defend, indemnify, and hold harmless the State and its employees, volunteers, agents, and its elected and appointed officials (“the indemnified parties”) from and against any and all third party claims, liens, demands, damages, liability, actions, causes of action, losses, judgments, costs, and expenses of every nature, including investigation costs and expenses, settlement costs, and attorney fees and expenses (“the claims”), sustained or asserted against the State for personal injury, death, or property loss or damage, arising out of, resulting from, or attributable to the willful misconduct, negligence, error, or omission of the Contractor, its employees, Subcontractors, consultants, representatives, and agents, resulting from this contract in the amount up to 12 months of fees paid by the State and any other net revenue earned by contractor in such twelve (12) month period, except to the extent such Contractor liability is attenuated by any action of the State which directly and proximately contributed to the claims.

1. GENERAL

The Contractor agrees to defend, indemnify, and hold harmless the State and its employees, volunteers, agents, and its elected and appointed officials (“the indemnified parties”) from and against any and all third party claims, liens, demands, damages, liability, actions, causes of action, losses, judgments, costs, and expenses of every nature, including investigation costs and expenses, settlement costs, and attorney fees and expenses (“the claims”), sustained or asserted against the State for personal injury, death, or property loss or damage, arising out of, resulting from, or attributable to the willful misconduct, negligence, error, or omission of the Contractor, its employees, Subcontractors, consultants, representatives, and agents, resulting from this contract, except to the extent such Contractor liability is attenuated by any action of the State which directly and proximately contributed to the claims.

2. INTELLECTUAL PROPERTY

The Contractor agrees it will, at its sole cost and expense, defend, indemnify, and hold harmless the indemnified parties from and against any and all claims, to the extent such claims arise out of, result from, or are attributable to, the actual or alleged infringement or misappropriation of any patent, copyright, trade secret, trademark, or confidential information of any third party by the Contractor or its employees, Subcontractors, consultants, representatives, and agents; provided, however, the State gives the Contractor prompt notice in writing of the claim. The Contractor may not settle any infringement claim that will affect the State’s use of the Licensed Software without the State’s prior written consent, which consent may be withheld for any reason.

If a judgment or settlement is obtained or reasonably anticipated against the State’s use of any intellectual property for which the Contractor has indemnified the State, the Contractor shall, at the Contractor’s sole cost and expense, promptly modify the item or items which were determined to be infringing, acquire a license or licenses on the State’s behalf to provide the necessary rights to the State to eliminate the infringement, or provide the State with a non-infringing substitute that provides the State the same functionality. At the State’s election, the actual or anticipated judgment may be treated as a breach of warranty by the Contractor, and the State may receive the remedies provided under this Request for Proposal.

3. PERSONNEL

The Contractor shall, at its expense, indemnify and hold harmless the indemnified parties from and against any claim with respect to withholding taxes, worker’s compensation, employee benefits, or any other claim, demand, liability, damage, or loss of any nature relating to any of the personnel, including subcontractor’s and their employees, provided by the Contractor.

4. SELF-INSURANCE

The State of Nebraska is self-insured for any loss and purchases excess insurance coverage pursuant to Neb. Rev. Stat. § 81-8,239.01. If there is a presumed loss under the provisions of this agreement, Contractor may file a claim with the Office of Risk Management pursuant to Neb. Rev.

Stat. §§ 81-8,239.01 to 81-8,306 for review by the State Claims Board. The State retains all rights and immunities under the State Miscellaneous (Section 81-8,294), Tort (Section 81-8,209), and Contract Claim Acts (Section 81-8,302), as outlined in state law and accepts liability under this agreement only to the extent provided by law.

5. The Parties acknowledge that Attorney General for the State of Nebraska is required by statute to represent the legal interests of the State, and that any provision of this indemnity clause is subject to the statutory authority of the Attorney General.

Q. ATTORNEY'S FEES

(Initial)

Reject (Initial)

Reject & Provide Alternative within RFP Response

(Initial)

NOTES/COMMENTS:

J.P. Suggest Section 15.2 of the attached WEX Universal T&Cs for Nebraska Govt RFP Final 11 OCT 2023:

15.2 If Customer is in Default: (a) Customer will not have any further right to borrow under this Agreement; (b) Issuer may declare all outstanding amounts under the Account to be immediately due and payable; (c) Issuer may terminate this Agreement; and (d) Issuer will have the right to bring suit and exercise all rights and remedies available under applicable law. In addition, if Customer is in Default, Issuer may, in its sole discretion, suspend all services and obligations, shorten the billing cycle, and change the payment terms. A suspension of services or obligations will not be deemed a waiver of any right to terminate this Agreement, whether as a result of the Default to which such suspension of services or obligations relates or otherwise. Customer agrees to pay any and all costs (including reasonable attorneys’ fees) incurred by Issuer in enforcing Customer’s obligations under this Agreement. If Issuer suspends all services and obligations, Customer agrees to pay the Reactivation Fee shown in Schedule B.

In the event of any litigation, appeal, or other legal action to enforce any provision of the contract, the Parties agree to pay all expenses of such action, as permitted by law and if ordered by the court, including attorney's fees and costs, if the other Party prevails.

R. LIQUIDATED DAMAGES

Accept (Initial)

Reject (Initial)

Reject & Provide Alternative within RFP Response

(Initial)

NOTES/COMMENTS:

J.P. Amend 2.c. Transaction Authorization to read:

Upon being notified by a Fleet Program Director(s) or Staff that a cardholder was not able to receive an authorization for a transaction due to Contractor system failure (excluding any outages at the merchant level) ,the Contractor will either resolve the situation within two (2) hours after notification so the cardholder may use their card for purchases with a transaction authorization or pay liquidated damages.

The State and the Contractor(s) agree that actual damages from a failure to perform certain requirements in any contract(s) executed pursuant to this RFP are difficult to accurately estimate, that there has been a reasonable effort by parties to fix the amount of compensation that is due under the contract, and that it is possible to identify an amount of liquidated damages for the failure to perform those requirements that is proportionate to the actual damage that the State would anticipate as a result of the failure.

In lieu of actual damage, the State, and the Contractor(s) shall agree to a schedule of fees for failure to perform certain requirements in any contract(s) executed to this RFP.

The following is the required schedule of liquidated damages in the form of fees for failure to perform certain requirements.

The fees are categorized as follows:

Standard $ 500 per day High $1,500 per day Critical $3,000 per day

Liquidated damages may be charged by the State under this paragraph for each day or partial day the Contractor(s) has failed to perform or comply with certain requirements in the contract, other than failures caused by the State or circumstances beyond the control of the Contractor(s) or their agents (example:

natural disasters).

1. Unresolved requirements:

a. All standard and high category requirements will move to critical level of liquidated damages if not resolved within 48 business hours after notification to the Contractor.

b. All critical category requirements will double in liquidated damages if not resolved within

24 hours after notification to the Contractor.

2. Fleet Fuel Card Services:

a. Issuing cards:

Upon being notified by a Fleet Program Director(s) or Staff that a card or batch of cards were not issues within five business days of the program submitting the request, Contractor will pay to have the cards expedited to the agency. If the cards are not expedited to the agency within two days after the initial notice by the State that the cards were not issued, Contractor will pay liquidated damages.

Category: Standard

b. Required Electronic Data File Transfer:

Upon being notified by a Fleet Program Director(s) or Staff that the program was not able to download, retrieve or receive any card transaction file, the Contractor will either resolve the situations within 24 hours (excluding weekends or holidays) after…