make it difficult or impossible to fulfill ... - dvha...

Template QTerms & Conditions of this RFP

and Any Resulting Contract

Response Template

RFP #: 03410-143-15

Core MMISTemplate Q – Terms & Conditions of RFP / Resulting Contract

RFP#: 03410-143-15

Table of Contents

1. Instructions.....................................................................................................................................4

2. RFP Terms & Conditions.................................................................................................................4

2.1 Proposal Submission Requirements……………………………………………………………………………….4

2.2 Amendments and Announcements Regarding this RFP………………………………………………....4

2.3 External Factors……………………………………………………………………………………………………………..5

2.4 Right to Reject Proposals or Portions of Proposals………………………………………………………...5

2.5 RFP Cancellation/Partial/Non-Award……………………………………………………………………………..5

2.6 Incomplete Proposals…………………………………………………………………………………………………….5

2.7 Multiple Responses ……………………………………………………………………………………………………….5

2.8 State Use of Ideas…………………………………………………………………………………………………………..5

2.9 Confidentiality of Bid Materials; Access to Record Laws…………………………………………………6

2.10 Use of Subcontractors……………………………………………………………………………………………………6

2.11 Cost Incurred..………………………………………………………………………………………………………………..7

2.12 Conflicts of Interest………………………………………………………………………………………………………..7

2.13 News Releases……………………………………………………………………………………………………………….7

2.14 Remittance of Payments ……………………………………………………………………………………………….8

2.15 Contract Acceptance ……………………………………………………………………………………………….…….8

2.16 Vendor's Acknowledgment of RFP Terms & Conditions………………………………………………….8

3. Contract Information………………………………………………………………………………………………………………..10

3.1 Mandatory Contract Terms………………………………………………………………………………………….10

3.2 State and Agency Customary Contracting Provisions……………………………………………………11

3.3 Basic Philosophy: Contracting or Results………………………………………………………………………11

4. General Terms & Conditions……………………………………………………………………………………………………..13

4.1 Intellectual Property/Work Product Ownership………………………………………………..………….13

4.2 Insurance & Proof of Coverage……………………….……………………………………………………………15

4.3 Warranties…………………………….…………………………………………………………………………………….17

4.4 Security of State Information ………………………………………………………………………………………18

4.5 Security Breach Reporting ….……………………………………………………………………………………….19

4.6 Disaster Recovery Plan/Back-Up Plan Policies………………………………………………………………20

4.7 Confidentiality of Contractor Information…………………………………………………………………….20

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4.8 Confidentiality of State Information……………………………………………………………………………..21

4.9 Amendment/Change Orders…………………………………………………………………………………………23

4.10 Invoices………………………………………………………………………………………………………………………..23

4.11 Time is of the Essence………………………………………………………………………………………………....24

4.12 Prohibition of Advance Payments………………………………………………………………………………...24

4.13 Errors and Omissions…………………………………………………………………………………………………...24

4.14 Audit…………………………………………………………………………………………………………………………….25

4.15 Taxes……………………………………………………………………………………………………………………………26

4.16 Dispute Resolution……………………………………………………………………………………………………….26

4.17 Remedies for Default; Termination………………………………………………………………………………27

4.18 Assurances Before Breach…………………………………………………………………………………………….28

4.19 Retainage……………………………………………………………………………………………………………………..28

4.20 Liquidated Damages…………………………………………………………………………………………………….28

5. Additional Exceptions……………………………………………………………………………………………………………….29

5.1 Additional Proposed Changes to Terms & Conditions …………………………………….……………29

Remainder of this page intentionally left blank.

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1. INSTRUCTIONS The Vendor must sign and review Template Q, “Legal Contracting Requirements” in order to note the Vendor’s acknowledgement, intent of compliance, and exceptions to the following: (1) RFP Terms & Conditions; (2) Mandatory Contract Terms; (3) Standard State Provision for Contracts and Grants; and (4) General Terms & Conditions. If exceptions are not noted in Template Q of the RFP but raised during contract negotiations, the State reserves the right to cancel the negotiation if, at its sole discretion, if it deems that to be in the best interests of the State.

2. RFP TERMS & CONDITIONS Vendors must strictly adhere to the terms and conditions of this RFP. Failure to follow any instruction within this RFP may, at the State’s sole discretion, result in the disqualification of the Vendor’s Proposal.

2.1 PROPOSAL SUBMISSION REQUIREMENTS1. The State has no obligation to locate or acknowledge any information in the Vendor’s

Proposal that is not presented under the appropriate outline according to these instructions and in the proper location.

2. The Vendor’s Proposal must be received, in writing, at the address specified in this RFP, by the date and time specified. The State WILL NOT BE RESPONSIBLE FOR DELAYS IN THE DELIVERY OF QUESTION DOCUMENTS. Any proposal received after proposal opening time will be returned unopened.

3. Proposals or alterations by fax, e-mail, or phone will not be accepted. 4. Original signatures are required on one copy of the Submission Cover Sheet and

Template Q, and Vendor’s original submission must be clearly identified as the original. 5. The State reserves the right to waive any defect or irregularity in any proposal

procedure. 6. The Vendor must not alter or rekey any of the original text in this RFP. If the State

determines that the Vendor has altered any language in the original RFP, the State may, at its sole discretion, disqualify the Vendor from further consideration. The RFP issued by DVHA through the State of Vermont is the official version and will supersede any conflicting RFP language submitted by the Vendor.

7. To prevent opening by unauthorized individuals, all copies of the Proposal must be sealed in the package. A label containing the information on the cover page must be clearly typed and affixed to the package in a clearly visible location.

2.2 AMENDMENTS AND ANNOUNCEMENTS REGARDING THIS RFPThe State will post all official communication regarding this RFP on its website (http://www.vermontbidsystem.com), including any notice of tentative award. The State reserves the right to revise the RFP at any time. Any changes, amendments, or clarifications will be made in the form of written responses to Vendor questions, amendments, or addenda issued by the State on its website. Vendors should check the website frequently for notice of matters affecting the RFP. Any contract resulting from this RFP will be between the State of Vermont and the selected Vendor. Any requirements specified herein post award are specifically by and between the State of Vermont and the selected Vendor.

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2.3 EXTERNAL FACTORSExternal factors may affect the Project, including budgetary and resource constraints. Any Contract or Contracts resulting from this RFP shall be subject to the availability of state and federal funds. As of the issuance of this RFP, the State anticipates that budgeted funds will be available to reasonably fulfill the Project requirements. If, however, funds are not available, the State reserves the right to withdraw the RFP or terminate the resulting Contract or Contracts without penalty.

2.4 RIGHT TO REJECT PROPOSALS or PORTIONS OF PROPOSALS The State of Vermont may, at its sole discretion, reject any and all proposals or portions thereof.

2.5 RFP CANCELLATION/PARTIAL/NON-AWARDThe State of Vermont reserves the right to cancel this RFP, to make a partial award, or to make no award for any reason or no reason if it determines that such action is in the best interest of the State.

2.6 INCOMPLETE PROPOSALSThe State may reject without further consideration a Proposal that does not include a complete, comprehensive, or total solution as requested by the RFP.

2.7 MULTIPLE RESPONSES If there is a successful joint proposal for either of the two RFP Components, or for both components by two (2) or more organizations, one (1) organization must be designated as the Prime Bidder. The Prime Bidder will be the State’s sole point of contact for the RFP Components being awarded and will bear sole responsibility for performance under any resulting agreement.

2.8 STATE USE OF IDEASThe State reserves the right to use any and all ideas presented in a Proposal unless the Vendor presents a valid legal case that such ideas are trade secrets or confidential information, and identifies the information as such in its Proposal. A Vendor may not object to the use of ideas that are not the Vendor’s intellectual property and so designated in the proposal that: (1) were known to the State before the submission of the Proposal, (2) were in the public domain through no fault of the State, or (3) became properly known to the State after Proposal submission through other sources or through acceptance of the Proposal.

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2.9 CONFIDENTIALITY OF BID MATERIALS; ACCESS TO RECORDS LAWS All RFP Responses shall become the property of the State and, once the resulting Contract is finalized, may be subject to disclosure under the State’s Access to Public Records Law, 1 V.S.A. § 315 et seq. In accordance therewith, the State will not disclose information for which a reasonable claim of exemption can be made pursuant to 1 V.S.A. § 317(c), including, but not limited to, trade secrets, proprietary information or financial information, including any formulae, plan, pattern, process, tool, mechanism, compound, procedure, production data, or compilation of information which is not patented, which is known only to the vendor, and which gives the vendor an opportunity to obtain business advantage over competitors who do not know it or use it.

If the response includes material that is considered by the Vendor to be proprietary and confidential under 1 V.S.A. § 317(c), the Vendor shall clearly designate the material as such prior to bid submission, as follows:

1. In the cover letter to any RFP Response, the Vendor must identify each page or section of the response that it believes is proprietary and confidential and provide a written explanation relating to each marked portion to justify the denial of a public record request should the State receive such a request. The letter must address the proprietary or confidential nature of each marked section, provide the legal authority relied on, and explain the harm that would occur should the material be disclosed.

2. The vendor shall also include a redacted copy of its RFP Response. Redactions must be limited so that the reviewer may understand the nature of the information being withheld. It is typically inappropriate to redact entire pages, or to redact the titles/captions of tables and figures. Under no circumstances can the entire response or price information be marked confidential. Responses so marked may not be considered and will be returned to the bidder.

2.10 USE OF SUBCONTRACTORS Subject to the conditions listed in this RFP, the Vendor may propose to use a Subcontractor(s) to make a complete offer to perform all services. Any prospective Subcontractor that is not a wholly owned subsidiary of the Vendor will be subject to these conditions.

The conditions for proposing to use Subcontractors include, but are not limited to, the following:

1. A Vendor shall not provide any State confidential information to a potential Subcontractor or another entity without the prior written approval of the State. Prior to any communication or distribution of State confidential information to the potential Subcontractor, the Vendor must provide the State with the name and contact information of the potential Subcontractor in advance and in writing.

2. If selected, the Vendor will be the Prime Bidder for services provided to the State by approved Subcontractors.

3. The Vendor will be ultimately responsible for the provision of all services, including Subcontractor’s compliance with the service levels, if any.

4. Any Subcontractor’s cost will be included within the Vendor’s pricing and invoicing.

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No subcontract under the Contract must relieve the Vendor of the responsibility for ensuring the requested services are provided. Vendors planning to subcontract all or a portion of the Work to be performed must identify the proposed Subcontractors.

2.11 COSTS INCURREDIssuance of this RFP in no way constitutes a commitment by the State to award a contract or to pay any costs incurred by a Vendor in the preparation of a response to this RFP. The State is not liable for any costs incurred by a Vendor prior to issuance of or entering into a formal agreement, contract, or purchase order. Costs of developing proposals, preparing for, or participating in oral presentations and site visits, or any other similar expenses incurred by a Vendor are entirely the responsibility of the Vendor, and will not be reimbursed in any manner by the State.

2.12 CONFLICTS OF INTERESTA conflict of interest is a set of facts or circumstances in which either a Vendor or anyone acting on its behalf in connection with this procurement has past, present, or currently planned personal, professional, or financial interests or obligations that, in the State’s determination, would actually or apparently conflict or interfere with the Vendor’s contractual obligations to the State. A conflict of interest would include circumstances in which a Vendor’s personal, professional or financial interests or obligations may directly or indirectly:

Make it difficult or impossible to fulfill its contractual obligations to the State in a manner that is consistent with the best interests of the State of Vermont;

Impair, diminish, or interfere with that Vendor’s ability to render impartial or objective assistance or advice to the State; or

Provide the Vendor with an unfair competitive advantage in future State procurements.

Neither the Vendor nor any other person or entity acting on its behalf, including but not limited to Subcontractors, employees, agents and representatives, may have a conflict of interest with respect to this procurement. Before submitting a Proposal, a Vendor must certify that it does not have personal or business interests that present a conflict of interest with respect to the RFP and resulting Contract. Additionally, if applicable, the Vendor must disclose all potential conflicts of interest. The Vendor must describe the measures it will take to ensure that there will be no actual conflict of interest and that its fairness, independence and objectivity will be maintained. The State will determine to what extent, if any, a potential conflict of interest can be mitigated and managed during the term of the Contract. Failure to identify potential conflicts of interest may result in disqualification of a proposal or termination of the Contract.

2.13 NEWS RELEASES Prior to tentative award, a Vendor may not issue a press release or provide any information for public consumption regarding its participation in the procurement. After tentative award, a Vendor must receive prior written approval from the State before issuing a press release or providing information for public consumption regarding its participation in the procurement. Requests should be directed to the State point of contact identified in Section 1 of the RFP.

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This does not preclude business communications necessary for a Vendor to develop a Proposal, or required reporting to shareholders or governmental authorities.

2.14 REMITTANCE OF PAYMENT Vendor must specify the address to which payments will be sent and provide a current W-9 to DVHA; these requirements must be submitted with the proposal package.

2.15 CONTRACT ACCEPTANCE If the Successful Bidder(s) refuses to sign the agreement within ten (10) business days of delivery, DVHA may cancel the selection and award to the next highest-ranked bidder(s).

2.16 Please provide a signature stipulating the vendor’s acknowledgement of these RFP Terms & Conditions.

Print Name/Signature of Authorized Personnel Date


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3. CONTRACT INFORMATION

3.1 MANDATORY CONTRACT TERMSThe selected Vendor(s) will sign a contract with the State to provide the items named in its response, at pricing agreed to by the State. Minimum support levels, and terms and conditions derived from this RFP and the Vendor’s response will be included in the contract as requirements. The contract will be subject to review throughout its term.

3.1.1 Required Contract Elements The term “Contract” means the Contract awarded as a result of this RFP and all Attachments and exhibits thereto. VENDORS MAY HAVE STANDARD TERMS AND CONDITIONS WHICH ARE REQUIRED TO BE SUBMITTED WITH A VENDOR’S BID, HOWEVER PLEASE NOTE THAT THE STATE WILL REQUIRE NEGOTIATION OF CONTRACTOR’S TERMS AND CONDITIONS AND WILL NOT ACCEPT THE VENDOR’S STANDARD FORM IN LIEU OF THE STANDARD STATE PROVISIONS FOR CONTRACTS AND GRANTS.

In no event shall the State agree to terms which (a) require indemnification by the State of the Contractor; (b) waive the State’s right to a jury trial; (c) establish applicable law anywhere other than the State of Vermont, or jurisdiction in any venue other than the Superior Court of the State of Vermont, Civil Division, Washington Unit; (d) designate a governing law other than the laws of the State of Vermont; (e) constitute an implied or deemed waiver of the immunities, defenses, rights or actions arising out of State’s sovereign status or under the Eleventh Amendment to the United States Constitution; or (f) limit the time within which an action may be brought. Vendors who are not able to enter into a contract under these conditions should not submit a bid.

3.1.2 Contract RequirementsDVHA reserves the right to incorporate standard contract provisions which can be mutually agreed upon into any contract negotiated as a result of any proposal submitted in response to this RFP. These provisions may include such things as the normal day-to-day relationships with the Vendor, but may not substantially alter the requirements of this RFP. Further, the successful Vendor is to be aware that all material submitted in response to this RFP, as well as the RFP itself, may be included in the final contract. The selected Vendor(s) will sign a contract with DVHA to provide the items named in their responses, at the prices agreed by the State. The resulting Contract will be subject to review throughout its term. DVHA will consider cancellation upon discovery that the selected Vendor is in violation of any portion of the resulting Contract, including an inability by the Vendor to provide the products, support and/or service required under the offered in their response. If two or more organizations' joint proposal is apparently successful, one organization must be designated as the Prime Bidder. The Prime Bidder will be DVHA's sole point of contact and will bear sole responsibility for performance under any resulting Contract.

3.1.3 Amendments

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No changes, modifications, or amendments in the terms and conditions of a contract shall be effective unless reduced to writing, numbered, and signed by the duly authorized representative of the State and Contractor.

3.1.4 Business RegistrationTo be awarded a contract by the State of Vermont, a Vendor (other than an individual doing business in his/her own name) must be registered with the Vermont Secretary of State’s office, http://www.sec.state.vt.us/tutor/dobiz/forms/fcregist.htm, and must obtain a Vendor’s Business Account Number issued by the Vermont Department of Taxes: http://www.state.vt.us/tax/pdf.word.excel/forms/business/s-1&instr.pdf

3.1.5 Contract ReviewAll contracts are subject to review and approval by the Attorney General, the Secretary of Administration and the State Chief Information Officer. The terms and conditions of a Vendor’s software license, maintenance support agreement and service level agreement, if applicable, will be required for purposes of contract negotiations for this project. Failure to provide the applicable Vendor terms as part of this RFP response may result in rejection of the Vendor’s proposal.

3.1.6 Independent Review Per Vermont statute 3 V.S.A. 2222, The Secretary of Administration shall obtain independent expert review of any recommendation for any information technology initiated after July 1, 1996, as information technology activity is defined by subdivision (a)(10), when its total cost is $1,000,000 or greater or when required by the State Chief Information Officer. Documentation of this independent review shall be included when plans are submitted for review pursuant to subdivisions (a)(9) and (10) of this section. The independent review shall include:

An acquisition cost assessment

A technology architecture review

An implementation plan assessment

A cost analysis and model for benefit analysis

A procurement negotiation advisory services contract

An impact analysis on net operating costs for the agency carrying out the activity

3.1.7 Contract Type and TermDVHA will award one (1) fixed price contract for the technical solution. Tentatively, the resulting contract period of performance as an outcome of this RFP for the Technology Solution shall be five (5) years. The State may renew the Contract(s) for an additional two (2) two year renewals; therefore, resulting in a maximum contract term of nine (9) years. The Contract(s) shall be subject to and contingent upon the discretionary decision of the Vermont Legislature to appropriate funds for this Contract in each new fiscal year. The State may renew all or part of any Contract subject to the satisfactory performance of the Vendor and the needs of the State of Vermont. The Vendor shall guarantee its rate offerings, over the term of the Contract, are comparable to other

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customers of similar size and requirements. If offerings are rendered to a comparable customer, which improve the pricing agreed to in the Contract, the Vendor agrees to apply those same discounts and offerings to the State of Vermont.

3.1.8 Non-Collusion The State of Vermont is conscious of and concerned about collusion. It should therefore be understood by all that in signing bid and contract documents, they agree that the prices quoted have been arrived at without collusion and that no prior information concerning these prices has been received from or given to a competitive company. If there is sufficient evidence to warrant investigation of the bid/contract process by the State, all bidders should understand that this paragraph might be used as a basis for litigation.

3.1.9 Other Contract ElementsThe State reserves the right to negotiate additional Contract terms and conditions.

3.1.10 Please provide a binding signature of intent to comply with the Mandatory Contract Terms.


3.2 STATE AND AGENCY CUSTOMARY CONTRACTING PROVISIONSThe following attachments shall be included in any contract(s) resulting from this RFP:

Attachment C: http://dvha.vermont.gov/administration/attachment-c-rev-6-9-2014.pdf Attachment E: http://dvha.vermont.gov/administration/attachment-e-092113.pdf Attachment F: http://dvha.vermont.gov/administration/attachment-f-121010.pdf

3.2.1 Please provide a signature stipulating the vendor’s acknowledgement of these Attachments.


3.3 BASIC PHILOSOPHY: CONTRACTING FOR RESULTSThe State of Vermont’s fundamental commitment is to contract for results. The State defines a successful result as the generation of defined, measurable, and beneficial outcomes that satisfy the Contract requirements and support the missions and objectives of the State. This RFP describes what is required of any potential Vendor(s) in terms of services, deliverables, performance measures and outcomes, and unless otherwise noted in the RFP, places the responsibility for how they are accomplished on the Vendor.

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http://dvha.vermont.gov/administration/attachment-f-121010.pdf

http://dvha.vermont.gov/administration/attachment-e-092113.pdf

http://dvha.vermont.gov/administration/attachment-c-rev-6-9-2014.pdf


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The State encourages strategic partnerships from Vendors to ensure the capabilities necessary to achieve the results required for the MMIS and the Contact Center.


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4. GENERAL TERMS AND CONDITIONS

Bidders are expected to closely read the following Terms and Conditions of and the State and Agency Customary Contracting Provisions (outlined in Attachments C, E, and F) and provide a binding signature of intent to comply with the Terms and Conditions. Vendors shall affirmatively indicate acceptance of, or note any exception to, each of the Terms and Conditions where space is provided below. Any exceptions must include an explanation for the bidder’s inability to comply with such term or condition and, if applicable, alternative language the bidder would find acceptable. Rejection of the Terms and Conditions, in whole or in part, or without any explanation, may be cause for the State’s rejection of a bidder’s proposal. If an exception concerning the Terms and Conditions is not noted in this Template Q but is raised during contract negotiations, the State reserves the right to cancel the negotiation, at its sole discretion, if it deems that to be in the best interests of the State.

The terms and conditions of a Vendor’s software license, maintenance support agreement and service level agreement, if applicable, will be required for purposes of contract negotiations for this project. Failure to provide the applicable Vendor terms, if any, as part of the RFP response may result in rejection of the Vendor’s proposal.

4.1 INTELLECTUAL PROPERTY/WORK PRODUCT OWNERSHIP

Accept (Initial)

Reject (Initial)

Vendor’s Explanation (required for any rejection/exception)

Vendor’s Proposed Alternative Language (if applicable)Cross-reference to specific section of Vendor terms, if any provided as part of the RFP Response.

1.

NOTES/COMMENTS: <FOR STATE USE ONLY>

The State shall retain all right, title and interest in and to all data content provided by the State, and to all information that is created under a Contract, including, but not limited to, all data that is generated under a Contract as a result of the use by a Contractor, the State or any third party of any technology systems or knowledge bases that are developed for the State and used by a Contractor (“State Information”), and all other rights, tangible or intangible (collectively, “State Intellectual Property”). A Contractor may not use State Intellectual Property for any purpose other than as specified in a Contract. Upon expiration or termination of a Contract, Contractor shall return or destroy all State Intellectual Property and all copies thereof, and Contractor shall have no further right or license to such State Intellectual Property.

All Work Product shall belong exclusively to the State, with the State having the sole and exclusive right to apply for, obtain, register, hold and renew, in its own name and/or for its own benefit, all patents and copyrights, and all applications and registrations, renewals and continuations thereof and/or any and all other appropriate protection. To the extent exclusive

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title and/or complete and exclusive ownership rights in and to any Work Product may not originally vest in the State by operation of law or otherwise as contemplated hereunder, a Contractor shall be required to immediately upon request, unconditionally and irrevocably assign, transfer and convey to the State all right, title and interest therein. Without any additional cost to the State, a Contractor shall be required to promptly give the State all reasonable assistance and execute all documents the State may reasonably request to assist and enable the State to perfect, preserve, enforce, register and record its rights in and to all Work Product.

“Work Product” shall mean any tangible or intangible work product, creation, material, item or deliverable, documentation, information and/or other items created by Contractor, either solely or jointly with others, and which are developed, conceived of, prepared, procured, generated or produced by Contractor specifically for a Contract. Work Product may include ideas, inventions, improvements, discoveries, methodologies or processes, or writings, designs, models, drawings, photographs, reports, formulas, algorithms, patterns, devices, compilations, databases, computer programs, specifications, operating instructions, procedures manuals, or other documentation, whether or not protectable under Title 17 of the U.S. Code and whether or not patentable or otherwise protectable under Title 35 of the U.S. Code, that are developed, conceived of, prepared, arise, procured, generated or produced in connection with a Contract, whether as individual items or a combination of components and whether or not the services or the deliverables are completed or the same are reduced to practice during a Contract term. For the avoidance of doubt, Work Product shall not be deemed to include Contractor Intellectual Property, provided the State shall be granted a license to any such Contractor Intellectual Property that is incorporated into Work Product.

To the extent the State will not have rights of ownership, the State of Vermont will require royalty-free, nonexclusive, and irrevocable licenses to reproduce, publish, or otherwise use and authorize others to use for state and federal government purposes, the copyright in any software and associated documentation developed under the resulting contract.

The Contractor shall not sell or copyright a work product or item produced under a Contract without explicit permission from the State.

If a Contractor is operating a system or application on behalf of the State of Vermont, then the Contractor shall not make information entered into the system or application available for uses by any other party than the State of Vermont, without express written prior authorization by the State.

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4.2 INSURANCE & PROOF OF COVERAGE

Accept (Initial)

Reject (Initial)



1.


Before commencing work on this Agreement the Party must provide certificates of insurance to show that the following minimum coverage is in effect. It is the responsibility of the Party to maintain current certificates of insurance on file with the state through the term of the Agreement. No warranty is made that the coverage and limits listed herein are adequate to cover and protect the interests of the Party for the Party’s operations. These are solely minimums that have been established to protect the interests of the State.

The Parties expressly understand and agree that any insurance coverage and limits furnished by the Vendor will in no way expand or limit the Vendor’s liabilities and responsibilities specified within the contract documents or by applicable law.

The Vendor and each Subcontractor agree that insurer will waive their rights of subrogation against the State.

The Vendor expressly understands and agrees that any insurance maintained by the State will apply in excess of and not contribute with insurance provided by Vendor under the Contract.

If the Vendor, or its Subcontractor(s), desire additional coverage, higher limits of liability, or other modifications for its own protection, the Vendor and each of its Subcontractors will be responsible for the acquisition and cost of such additional protection.

A. WORKERS’ COMPENSATION INSURANCEWith respect to all operations performed, the Party shall carry workers’ compensation insurance in accordance with the laws of the State of Vermont. The Vendor will require all Subcontractors operating in Vermont to carry Worker’s Compensation coverage in the amounts required by Vermont law.

B. GENERAL LIABILITY INSURANCE With respect to all operations performed under the Agreement, the Party shall carry general liability insurance having all major divisions of coverage including, but not limited to:

Premises — Operations Products and Completed Operations Personal Injury Liability Contractual Liability

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Party shall name the State of Vermont and its officers and employees as additional insured for liability arising out of this Agreement.

Subcontractors. The Vendor will also require Subcontractors to carry Comprehensive Liability Insurance including Bodily Injury coverage. The Vendor may provide the coverage for any or all Subcontractors, and, if so, the evidence of insurance submitted will so stipulate.

C. AUTOMOBILE LIABILITY INSURANCEThe Party shall carry automotive liability insurance covering all motor vehicles, including hired and non-owned coverage, used in connection with the Agreement. Party shall name the State of Vermont and its officers and employees as additional insured for liability arising out of this Agreement.

D. PROFESSIONAL LIABILITY INSURANCEAs required in the Standard State Provisions for Contracts and Grants (Attachment C), Contractor agrees to procure and maintain Technical Professional Liability Insurance; including third party coverage and first party Breach Notification Coverage for any and all services performed under this Contract, with the actual coverage amounts to be determined in the State’s discretion.

E. MINIMUM INSURANCE COVERAGE AMOUNTS 1. WORKERS' COMPENSATION

Coverage A StatutoryCoverage B -- Subcontractor(s) Statutory

2. GENERAL LIABILITY AND PROPERTY DAMAGEThe policy shall be on an occurrence form and limits shall not be less than: General Aggregate $1,000,000Per Occurrence $1,000,000 Products/Completed Operations Aggregate $1,000,000Fire Damage/Legal Liability $50,000

Subcontractor(s) General Aggregate $1,000,000Bodily Injury Coverage $1,000,000 per occurrenceProperty Damage $25,000

3. AUTOMOBILE LIABILITY Limits of coverage shall not be less than:Bodily Injury/Property Damage $1,000,000 combined single limit

4. TECHNOLOGY PROFESSIONAL LIABILITYPer Claim $2,000,000 Aggregate $4,000,000First Party Breach Notification Coverage $2,000,000

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EVIDENCE OF COVERAGEThe Vendor will furnish the State Contract Manager original Certificates of Insurance evidencing the required coverage to be in force on the date of award, and renewal certificates of insurance, or such similar evidence, if the coverage has expiration or renewal date occurring during the term of the Agreement. The Vendor will submit evidence of insurance prior to Contract award. The failure of the State to obtain such evidence from the Vendor before permitting the Vendor to commence work will not be deemed to be a waiver by the State and the Vendor will remain under continuing obligation to maintain and provide proof of the insurance coverage.

The insurance specified above will be carried until all services required to be performed under the terms of the Contract are satisfactorily completed. Failure to carry or keep such insurance in force will constitute a violation of the Contract, and the State maintains the right to stop work until proper evidence of insurance is provided. The insurance will provide for thirty (30) calendar days prior written notice to be given to the State in the event coverage is substantially changed, canceled, or non-renewed. The Vendor must submit a new coverage binder to the State to ensure no break in coverage.

4.3 WARRANTIES

Accept (Initial)

Reject (Initial)



1.


Contractors will be expected to make the following warranties:

1. The Vendor has all requisite power and authority to execute, deliver and perform its obligations under the Contract and the execution, delivery and performance of the Contract by the Vendor has been duly authorized by the Vendor.

2. There is no outstanding litigation, arbitrated matter or other dispute to which the Vendor is a party which, if decided unfavorably to the Vendor, would reasonably be expected to have a material adverse effect on the Vendor’s ability to fulfill its obligations under the Contract.

3. The Vendor will comply with all laws applicable to its performance of the services and otherwise to the Vendor in connection with its obligations under the Contract.

4. All deliverables will be free from material errors and shall perform in accordance with the specifications therefor.

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5. The Vendor owns or has the right to use under valid and enforceable agreements, all intellectual property rights reasonably necessary for and related to delivery of the services and provision of the deliverables as set forth in the Contract and none of the deliverables or other materials or technology provided by the Vendor to the State will infringe upon or misappropriate the intellectual property rights of any third party.

6. Each and all of the services shall be performed in a timely, diligent, professional and workpersonlike manner, in accordance with the highest professional or technical standards applicable to such services, by qualified persons with the technical skills, training and experience to perform such services in the planned environment. At its own expense and without limiting any other rights or remedies of the State hereunder, the Vendor shall re-perform any services that the State has determined to be unsatisfactory in its reasonable discretion, or the Vendor will refund that portion of the fees attributable to each such deficiency.

7. The Vendor has adequate resources to fulfill its obligations under the Contract.

8. Virus Protection. Any time software is delivered to the State, whether delivered via electronic media or the internet, no portion of such software or the media upon which it is stored or delivered will have any type of software routine or other element which is designed to facilitate unauthorized access to or intrusion upon; or unrequested disabling or erasure of; or unauthorized interference with the operation of any hardware, software, data or peripheral equipment of or utilized by the State.

4.4 SECURITY OF STATE INFORMATION

Accept (Initial)

Reject (Initial)



1.


The Contractor represents and warrants that it has implemented and it shall maintain during the term of this Contract the highest industry standard administrative, technical, and physical safeguards and controls consistent with NIST Special Publication 800-53 (version 3 or higher) and Federal Information Processing Standards Publication 200 and designed to (i) ensure the security and confidentiality of State Data; (ii) protect against any anticipated security threats or hazards to the security or integrity of the State Data; and (iii) protect against unauthorized access to or use of State Data. Such measures shall include at a minimum: (1) access controls on information systems, including controls to authenticate and permit access to State Data only to authorized individuals and controls to prevent the Contractor employees from providing

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State Data to unauthorized individuals who may seek to obtain this information (whether through fraudulent means or otherwise); (2) industry-standard firewall protection; (3) encryption of electronic State Data while in transit from the Contractor networks to external networks; (4) measures to store in a secure fashion all State Data which shall include multiple levels of authentication; (5) dual control procedures, segregation of duties, and pre-employment criminal background checks for employees with responsibilities for or access to State Data; (6) measures to ensure that the State Data shall not be altered or corrupted without the prior written consent of the State; (7) measures to protect against destruction, loss or damage of State Data due to potential environmental hazards, such as fire and water damage; (8) staff training to implement the information security measures; and (9) monitoring of the security of any portions of the Contractor systems that are used in the provision of the services against intrusion on a twenty-four (24) hour a day basis.

4.5 SECURITY BREACH REPORTING

Accept (Initial)

Reject (Initial)



1.


The Contractor acknowledges that in the performance of its obligations under this Contract, it will be a “data collector” pursuant to Chapter 62 of Title 9 of the Vermont Statutes (9 V.S.A. §2430(3)). In addition to the requirements set forth in any Business Associate Agreement as may be attached to this Contract, in the event of any actual or suspected security breach the Contractor either suffers or learns of that either compromises or could compromise State Data (including PII, PHI or ePHI) in any format or media, whether encrypted or unencrypted (for example, but not limited to: physical trespass on a secure facility; intrusion or hacking or other brute force attack on any State environment; loss or theft of a PC, laptop, desktop, tablet, smartphone, removable data storage device or other portable device (; loss or theft of printed materials; or failure of security policies) (collectively, a “Security Breach”), and in accordance with 9 V.S.A. § 2435(b)(2), the Contractor shall immediately notify appropriate State personnel of such Security Breach.

The Contractor’s report shall identify: (i) the nature of the Security Breach; (ii) the State Data used or disclosed; (iii) who made the unauthorized use or received the unauthorized disclosure; (iv) what the Contractor has done or shall do to mitigate any deleterious effect of the unauthorized use or disclosure; and (v) what corrective action the Contractor has taken or shall take to prevent future similar unauthorized use or disclosure. The Contractor shall provide such other information, including a written report, as reasonably requested by the State.

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The Contractor agrees to comply with all applicable laws, as such laws may be amended from time to time (including, but not limited to, Chapter 62 of Title 9 of the Vermont Statutes, HIPAA and/or HITECH) that require notification in the event of unauthorized release of personally-identifiable information or other event requiring notification. In the event of a breach of any of the Contractor’s security obligations or other event requiring notification under applicable law (“Notification Event”), the Contractor agrees to fully cooperate with the State, assume responsibility for such notice if the State determines it to be appropriate under the circumstances of any particular Security Breach, and assume all costs associated with a Security Breach and Notification Event, including but not limited to, notice, outside investigation and services (including mailing, call center, forensics, counsel and/or crisis management), and/or credit monitoring, in the sole determination of the State.

In addition to any other indemnification obligations in this Contract, the Contractor shall fully indemnify and save harmless the State from any costs, loss or damage to the State resulting from a Security Breach or the unauthorized disclosure of State Data by the Contractor, its officers, agents, employees, and subcontractors.

4.6 DISASTER RECOVERY PLAN/BACK-UP PLAN POLICIES

Accept (Initial)

Reject (Initial)



1.


The vendor shall propose a disaster recovery and back-up plan, of which a copy should be provided to the State, which includes, but is not limited to equipment, personnel, facilities, and transportation, in order to continue services as specified under these specifications in the event of a disaster. The Contractor shall provide the State with not less than thirty (30) days advance written notice of any material amendment or modification of such policies.

4.7 CONFIDENTIALITY OF CONTRACTOR INFORMATION

Accept (Initial)

Reject (Initial)



1.


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The State will not disclose information for which a reasonable claim of exemption can be made pursuant to 1 VSA § 317(c), including, but not limited to, trade secrets, proprietary information or financial information, including any formulae, plan, pattern, process, tool, mechanism, compound, procedure, production data, or compilation of information which is not patented, which is known only to the Contractor, and which gives the Contractor an opportunity to obtain business advantage over competitors who do not know it or use it.

The State shall immediately notify Contractor of any request made under the Access to Public Records Act, or any request or demand by any court, governmental agency or other person asserting a demand or request for Contractor information. Contractor may, in its discretion, seek an appropriate protective order, or otherwise defend any right it may have to maintain the confidentiality of such information under applicable State law within three business days of the State’s receipt of any such request. Each Contractor shall agree that it will not make any claim against the State if the State makes available to the public any information in accordance with the Access to Public Records Act or in response to a binding order from a court or governmental body or agency compelling its production.

In addition to any other obligation to indemnify the State set forth in the Contract, a Contractor shall indemnify the State for any costs or expenses incurred by the State, including attorneys’ fees awarded in accordance with 1 V.S.A. § 320, or otherwise incurred by the State, in connection with any action brought by Contractor or a third party in connection with Contractor’s attempts to prevent public disclosure of Contractor’s information.

4.8 CONFIDENTIALITY OF STATE INFORMATION

Accept (Initial)

Reject (Initial)



1.


Each Contractor shall acknowledge that certain State Data (as defined below), to which the Contractor may have access may contain individual federal tax information, personal protected health information and other individually identifiable information protected by State or federal law. In addition to the provisions of this Section, each Contractor shall execute the HIPAA Business Associate Agreement set forth in Attachment E. Before receiving or controlling State Data, the Party will have an information security policy that protects its systems and processes and media that may contain State Data from internal and external security threats and State Data from unauthorized disclosure, and a copy of such policy has been provided to the State. No State Data will be stored, accessed from, or transferred to any location outside the United States. Each Contractor shall agree to keep confidential all information received and collected by Contractor in connection with a Contract (“State Data”), unless otherwise instructed by the

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State. The Contractor agrees not to publish, reproduce, or otherwise divulge any such State Data in whole or in part, in any manner or form or authorize or permit others to do so. Contractor will take reasonable measures as are necessary to restrict access to State Data in the Contractor’s possession to those employees on his/her staff who must have the information on a “need to know” basis.

The Contractor shall promptly notify the State of any request or demand by any court, governmental agency or other person asserting a demand or request for State Data to which the Contractor or any third party hosting service of the Contractor may have access, so that the State may seek an appropriate protective order.

Each Contractor shall represent and warrant that it has implemented and it shall maintain during the term of its contract the highest industry standard administrative, technical, and physical safeguards and controls consistent with NIST Special Publication 800-53 and Federal Information Processing Standards Publication 200 and designed to (i) ensure the security and confidentiality of State Data; (ii) protect against any anticipated security threats or hazards to the security or integrity of the State Data; and (iii) protect against unauthorized access to or use of State Data. Such measures shall include at a minimum, as applicable: (1) access controls on information systems, including controls to authenticate and permit access to State Data only to authorized individuals and controls to prevent the Contractor employees from providing State Data to unauthorized individuals who may seek to obtain this information (whether through fraudulent means or otherwise); (2) industry-standard firewall protection; (3) encryption of electronic State Data while in transit from the Contractor networks to external networks; (4) measures to store in a secure fashion all State Data which shall include multiple levels of authentication; (5) dual control procedures, segregation of duties, and pre-employment criminal background checks for employees with responsibilities for or access to State Data; (6) measures to ensure that the State Data shall not be altered or corrupted without the prior written consent of the State; (7) measures to protect against destruction, loss or damage of State Data due to potential environmental hazards, such as fire and water damage; (8) staff training to implement the information security measures; and (9) monitoring of the security of any portions of the Contractor systems that are used in the provision of the services against intrusion on a twenty-four (24) hour a day basis.

4.9 AMENDMENTS/CHANGE ORDER PROCESS

Accept (Initial)

Reject (Initial)



1.


No changes, modifications, or amendments in the terms and conditions of a contract shall be effective unless reduced to writing, numbered, and signed by the duly authorized representative of the State and Contractor.

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The State and the Vendor must work together to develop a Change Order Procedures and a System Modification Authorization (SMA) form. A SMA form will be completed for every request for a System enhancement. It will serve as the tracking mechanism for the receipt of a Change Order request through completion of all required actions.

As soon as possible after receipt of a System Modification Authorization form, but not more than ten (10) business days (unless an extension is agreed to by the State) thereafter, the Vendor must provide a written statement defining the scope of work, estimating the time for completion, and whether the change has a price impact on the Contract. The statement must include a description of the work to be done and price increase or decrease involved in implementing the change. The cost or credit to the State resulting from a change in the work must be the total of the number of person-hours by level of expertise times the hourly Change Order rate bid by the Vendor. The State will approve or reject the SMA form or request more information within ten (10) business days of receipt of the completed SMA form.The provision for Change Orders does not include any corrections of deficiencies for any activities or deliverables for which the Vendor is responsible under the terms of the Contract. Such corrections and deliverables are the responsibility of the Vendor without charge to the State. Any costs associated with an investigation to determine the source of a problem requiring correction is also the responsibility of the Vendor.

Any Change Orders impacting the price, term, or scope of the project shall be formalized in an amendment to the contract.

4.10 INVOICES

Accept (Initial)

Reject (Initial)



1.


All invoices shall be rendered by a Contractor on the Contractor’s standard billhead and forwarded to the State Project Manager. Details such as name & and address will be determined during Contract negotiations. The bidder’s proposal must clearly specify the address for submitting payments. All payments are to be based on State of Vermont’s acceptance of agreed to, fixed price deliverables or time and materials terms, as the case may be.

4.11 TIME IS OF THE ESSENCE

Accept Reject Vendor’s Explanation Vendor’s Proposed Alternative Language (if applicable)

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(Initial) (Initial) (required for any rejection/exception)

Cross-reference to specific section of Vendor terms, if any provided as part of the RFP Response.

1.


Time is of the essence in this contract. The acceptance of late performance with or without objection or reservation by the State shall not waive any rights of the State nor constitute a waiver of the requirement of timely performance of any obligations on the part of the contractor remaining to be performed.

4.12 PROHIBITION AGAINST ADVANCE PAYMENTS

Accept (Initial)

Reject (Initial)



1.


Payments shall not be made until contractual deliverable(s) are received and accepted by the State.

4.13 ERRORS AND OMISSIONS

Accept (Initial)

Reject (Initial)



1.


The bidder shall not take advantage of any errors and/or omissions in this Request for Proposal or resulting contract. The bidder must promptly notify the State of any errors and/or omissions that are discovered.

4.14 AUDIT

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Accept (Initial)

Reject (Initial)



1.


A. Records Available for Audit. The Contractor shall maintain all records pertaining to performance under this agreement. “Records” means any written or recorded information, regardless of physical form or characteristics, which is produced or acquired by the Contractor in the performance of this agreement. Records produced or acquired in a machine readable electronic format shall be maintained in that format. The records described shall be made available at reasonable times during the period of the Agreement and for three years thereafter or for any period required by law for inspection by any authorized representatives of the State or Federal Government. If any litigation, claim, or audit is started before the expiration of the three year period, the records shall be retained until all litigation, claims or audit findings involving the records have been resolved.

B. Software Licensee Compliance Report. In lieu of any requirement in a Contractor Document that the State provide the Contractor with access to its system for the purpose of determining State compliance with the terms of the Contractor Document, upon request and not more frequently than annually, the State will provide Contractor with a certified report concerning the State’s use of any software licensed for State use pursuant this Contract. The parties agree that any non-compliance indicated by the report shall not constitute infringement of the licensor’s intellectual property rights, and that settlement payment mutually agreeable to the parties shall be the exclusive remedy for any such non-compliance.

C. Operations Security. The Contractor shall cause an SSAE 16 Type II audit certification to be conducted annually. The audit results and the Contractor’s plan for addressing or resolution of the audit results shall be shared with the State within sixty (60) days of the Contractor's receipt of the audit results. Further, on an annual basis, within 90 days of the end of the Contractor’s fiscal year, the Contractor shall transmit its annual audited financial statements to the State.

4.15 TAXES

Accept (Initial)

Reject (Initial)



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1.


Most state purchases are not subject to federal or state sales or excise taxes and must be invoiced tax- free. An exemption certificate will be furnished upon request covering taxable items. The Vendor agrees to pay all Vermont taxes, which may be due as a result of any Contract. If taxes are to be applied to the purchase it will be so noted in the response.

4.16 DISPUTE RESOLUTION

Accept (Initial)

Reject (Initial)



1.


The Contractor shall be in default under this Contract if:

Contractor institutes or has instituted against it insolvency, receivership or bankruptcy proceedings which are not withdrawn or dismissed within 60 days of their commencement, makes an assignment for the benefit of creditors, or ceases doing business on a regular basis; or

Commits any material breach of any covenant, warranty, obligation or certification under this Contract, fails to perform the Services in conformance with the specifications and warranties provided in this Contract, or clearly manifests an intent not to perform future obligations under this Contract, and such breach or default is not cured, or such manifestation of an intent not to perform is not corrected by reasonable written assurances of performance within thirty (30) days after delivery of the State’s notice period, or such longer period as the State may specify in such notice.

State shall be in default under this Contract if:

State fails to pay Contractor any undisputed amount pursuant to the terms of Attachment B to this Contract, and State fails to cure such failure within thirty (30) business days after delivery of Contractor’s notice or such longer period as Contractor may specify in such notice; or

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State commits any material breach or default of any covenant, warranty, or obligation under this Contract and State fails to cure such failure within thirty (30) business days after delivery of Contractor’s notice or such longer period as Contractor may specify in such notice.

Continuity of Performance. In the event of a dispute between the Contractor and the State, each party will continue to perform its obligations under this Contract during the resolution of such dispute unless and until this Contract is terminated in accordance with its terms.

4.17 REMEDIES FOR DEFAULT; TERMINATION

Accept (Initial)

Reject (Initial)



1.


A. Remedies. In the event either party is in default under this Contract, the non-defaulting party may, at its option, pursue any or all of the remedies available to it under this Contract, including termination for cause, and at law or in equity.

B. Return of Property. Upon termination of this Contract for any reason whatsoever, Contractor shall immediately deliver to State all State Materials and State Data (including without limitation any Deliverables for which State has made payment in whole or in part), that are in the possession or under the control of Contractor in whatever stage of development and form of recordation such State property is expressed or embodied at that time.

C. No Waiver of Remedies. No delay or failure to exercise any right, power or remedy accruing to either party upon breach or default by the other under this Contract shall impair any such right, power or remedy, or shall be construed as a waiver of any such right, power or remedy, nor shall any waiver of a single breach or default be deemed a waiver of any subsequent breach or default. All waivers must be in writing.

D. Contractor Bankruptcy. Contractor acknowledges that if Contractor, as a debtor in possession, or a trustee in bankruptcy in a case under Section 365(n) of Title 11, United States Code (the "Bankruptcy Code"), rejects this Contract, the State may elect to retain its rights under this Contract as provided in Section 365(n) of the Bankruptcy Code. Upon written request of the State to Contractor or the Bankruptcy Trustee, Contractor or such Bankruptcy Trustee shall not interfere with the rights of the State as provided in this Contract, including the right to obtain the State Materials.

4.18 ASSURANCES BEFORE BREACH

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Accept (Initial)

Reject (Initial)



1.


If any document or deliverable required pursuant to the contract does not fulfill the requirements of the Request for Proposal/resulting contract, upon written notice from the State, the contractor shall deliver assurances in the form of additional contractor resources at no additional cost to the project in order to complete the deliverable, and to ensure that other project schedules will not be adversely affected.

4.19 RETAINAGE

Accept (Initial)

Reject (Initial)



1.


The State will hold back at least 10% of each deliverable payment as retainage. Upon completion of all deliverables to the satisfaction of the State, all retainage withheld will be paid to a Contractor in full, subject to the terms and conditions of the Contract.

4.20 LIQUIDATED DAMAGES

Accept (Initial)

Reject (Initial)



1.


The State and the Vendor agree that liquidated damages are appropriate where a contractor’s failure to meet the performance standards and timelines will result in damages to the State that

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are difficult to quantify. The contract resulting from this RFP will establish the baseline schedule for measuring Vendor performance and may require the Vendor to pay liquidated damages to the State for untimely or inadequate performance. In no event shall Vendor be liable for liquidated damages arising from: (i) events that are directly caused by the failure of the State or any State Agency to perform any required activity, (ii) force majeure, or (iii) any other cause that is not the Vendor’s responsibility under this Contract.

5. ADDITIONAL EXCEPTIONS

Please list and clearly explain any additional exceptions to the General Terms and Conditions set forth in this RFP, including the State and Agency Customary Contracting Provisions (or state “No changes proposed”). If no proposed changes are listed, the Vendor is indicating that no changes to the Terms and Conditions are proposed, and that the Vendor intends to accept them as written if the Vendor’s Proposal is selected. Please refer to Section 3.2 of this Template in order to find State and Agency Customary Contracting Provisions.

■ The Vendor may add rows as appropriate. ■ Please do not submit Vendor’s Standard Terms and Contracting Provisions in lieu of

stipulating exceptions below. ■ Making revisions to State law provisions is disallowed. ■ The State has no obligation to accept any exception(s).

5.1 ADDITIONAL PROPOSED CHANGES TO TERMS & CONDITIONS

ITEM # ATTACHMENT VENDOR PROPOSED CHANGES EXPLANATION OF EXCEPTION

(Reference specific Attachment and Section in which exception is taken)

(Vendor’s proposed language to State and Agency Customary Contracting Provisions)

(Description of exception being made and rationale)

1.

2.

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