9-Appendix 2 -Service Agreement.pdf

UTT

REVISED 5/2/2022

AGREEMENT BETWEEN UNIVERSITY AND CONTRACTOR

This Agreement between University and Contractor (Agreement) is made and entered into effective as of this , 20 (Effective Date), by and between The University of Texas at Tyler, an agency and institution of higher education established under the laws of the State of Texas (University), and Legal Name of Contractor, a [Note: Insert type of organization (corporation, partnership, etc.) and State in which Contractor is organized.] (Contractor) [Option: , Federal Tax Identification Number _______________________] [Note: If Contractor is an individual, delete the following text: “, Federal Tax Identification Number __________________”. DO NOT INCLUDE AN INDIVIDUAL’S SOCIAL SECURITY NUMBER IN THIS AGREEMENT. Please review UT System Policy UTS165 related to protecting the confidentiality of Social Security Numbers.].

University and Contractor hereby agree as follows:

1. Scope of Work.

1.1 Contractor will perform the scope of the work (Work) in Exhibit A, Scope of Work, to the satisfaction of University and in accordance with the schedule (Schedule) for Work in Exhibit B, Schedule. Time is of the essence in connection with this Agreement. University will have no obligation to accept late performance or waive timely performance by Contractor.

1.2 Contractor will obtain, at its own cost, any and all approvals, licenses, filings, registrations and permits required by federal, state or local, laws, statutes, regulations and ordinances (collectively, Applicable Laws), for the performance of Work.

1.3 [Option (Include if Contractor has performed Work for University before this Agreement is signed.): Upon execution of this Agreement, all goods or services previously provided by Contractor on behalf of University and included in the description of Work, will become a part of Work and will be subject to the terms and conditions of this Agreement.]

2. The Project.

The Work will be provided in connection with and all other related, necessary and appropriate services (Project).

3. Time for Commencement and Completion.

The term (Initial Term) of this Agreement will begin on the Effective Date and expire on , 20 . University will have the option to renew this Agreement for ( ) additional ( ) year terms (each a Renewal Term). The Initial Term and each Renewal Term are collectively referred to as the Term.

http://www.utsystem.edu/board-of-regents/policy-library/policies/uts165-information-resources-use-and-security-policy

4. Contractor's Obligations.

4.1 Contractor will perform Work in compliance with (a) all Applicable Laws, and (b) the Board of Regents of The University of Texas System Rules and Regulations (http://www.utsystem.edu/offices/board-regents/regents-rules-and-regulations), the rules, regulations, and policies of The University of Texas System (https://www.utsystem.edu/sites/policy-library), and the institutional rules, regulations and policies of University (collectively, University Rules). Contractor represents and warrants that neither Contractor nor any firm, corporation or institution represented by Contractor, or anyone acting for the firm, corporation or institution, (1) has violated the antitrust laws of the State of Texas, Chapter 15, Texas Business and Commerce Code, or federal antitrust laws, or (2) has communicated directly or indirectly the content of Contractor’s response to University’s procurement solicitation to any competitor or any other person engaged in a similar line of business during the procurement process for this Agreement.

4.2 Contractor represents and warrants that (a) it will use its best efforts to perform Work in a good and workmanlike manner and in accordance with the highest standards of Contractor’s profession or business, and (b) all Work performed will be of the quality that prevails among similar businesses of superior knowledge and skill engaged in providing similar services in major United States urban areas under the same or similar circumstances.

4.3 Contractor will call to University’s attention in writing all information in any materials supplied to Contractor (by University or any other party) that Contractor regards as unsuitable, improper or inaccurate in connection with the purposes for which the material is furnished.

4.4 University at all times is relying on Contractor's skill and knowledge in performing Work.

Contractor represents and warrants that Work will be accurate and free from any material defects. Contractor's duties and obligations under this Agreement will not be in any way diminished by reason of any approval by University. Contractor will not be released from any liability by reason of any approval by University.

4.5 Contractor will, at its own cost, correct all material defects in Work as soon as practical after

Contractor becomes aware of the defects. If Contractor fails to correct material defects in Work within a reasonable time, then University may correct the defective Work at Contractor’s expense. This remedy is in addition to, and not in substitution for, any other remedy for defective Work that University may have at law or in equity.

4.6 Contractor will maintain a staff of properly trained and experienced personnel to ensure satisfactory performance under this Agreement. Contractor will cause all persons connected with Contractor directly in charge of Work to be duly registered and licensed under all Applicable Laws. Contractor will assign to the Project a designated representative who will be responsible for administration and coordination of Work. [Option (Include if Contractor is paid on hourly fee basis.): Contractor will furnish efficient business administration and coordination and perform Work in an expeditious and economical manner consistent with the interests of University.]

4.7 Contractor represents and warrants it is duly organized, validly existing and in good standing under the laws of the state of its organization; it is duly authorized and in good standing to conduct business in the State of Texas; it has all necessary power and has received all necessary approvals to execute and deliver this Agreement; and the individual executing this Agreement on behalf of Contractor has been duly authorized to act for and bind Contractor.

4.8 [Option: Contractor represents and warrants that neither the execution and delivery of this

Agreement by Contractor nor the performance of its duties and obligations under this http://www.utsystem.edu/offices/board-regents/regents-rules-and-regulations https://www.utsystem.edu/sites/policy-library http://www.statutes.legis.state.tx.us/Docs/BC/htm/BC.15.htm

Agreement will (a) result in the violation of any provision of its organizational documents; (b) result in the violation of any provision of any agreement by which it is bound; or (c) conflict with any order or decree of any court or other body or authority having jurisdiction.]

4.9 [Option (Include if Contractor will create software, training materials or other Work

Material (ref. Section 7) protectable by copyright, trademark, patent or other intellectual property rights. Contact OGC with questions.): Contractor represents and warrants that all of Contractor’s Personnel contributing to Work Material (ref. Section 7) under this Agreement will be required to (i) acknowledge in writing the ownership of Contractor (for the benefit of University) of Work Material produced by Personnel while performing services pursuant to this Agreement, and (ii) make all assignments necessary to effectuate such ownership. Personnel means any and all persons associated with Contractor who provide any work or work product pursuant to this Agreement, including officers, managers, supervisors, full-time employees, part-time employees, and independent contractors.

4.10 Contractor represents and warrants that: (i) Work will be performed solely by Contractor, its full-time or part-time employees during the course of their employment, or independent contractors who have assigned in writing all right, title and interest in their work to Contractor (for the benefit of University); (ii) University will receive free, good and clear title to all Work Material developed under this Agreement; (iii) Work Material and the intellectual property rights protecting Work Material are free and clear of all encumbrances, including security interests, licenses, liens, charges and other restrictions; (iv) Work Material will not infringe upon or violate any patent, copyright, trade secret, trademark, service mark or other property right of any former employer, independent contractor, client or other third party; and (v) the use, reproduction, distribution, or modification of Work Material will not violate the rights of any third parties in Work Material, including trade secret, publicity, privacy, copyright, trademark, service mark and patent rights.]

[Option (Premises Rules.): 4.11 If this Agreement requires Contractor’s presence on University's premises or in University’s facilities, Contractor agrees to cause its employees, representatives, agents, or subcontractors to become aware of, fully informed about, and in full compliance with all applicable University Rules, including those relative to personal health, security, environmental quality, safety, fire prevention, noise, smoking, and access restrictions.]

[Option (Include only if Contractor performs Work at University and provides Work to University, and Contractor is not paid for with appropriated money. See §2252.061(1), Texas Government Code, for definition of “auxiliary enterprise.”

Contact OGC with questions.): 4.12 Contractor, at its sole cost and expense, will comply with all requirements of Subchapter C, Chapter 2252, Texas Government Code, including the provision of financial statements, payment statements derived from sales tax reports, and bonds.

4.12.1 In accordance with §2252.062, Texas Government Code, Contractor will submit to

University two (2) copies of Contractor’s most recent financial statement prepared by a certified public accountant on the Effective Date.

4.12.2 In accordance with §2252.063, Texas Government Code, Contractor will submit to

University, no later than the 15th day after the end of each contract year, an annual payment statement derived from all of Contractor’s sales tax reports for its operations during the preceding contract year. The annual payment statement must be certified by a certified public accountant licensed in the State of Texas.

Contract year means that period of time beginning on the Effective Date and ending [Note: Insert date that is 12 months after Effective Date (i.e., if http://www.statutes.legis.state.tx.us/Docs/GV/htm/GV.2252.htm#2252.061 http://www.statutes.legis.state.tx.us/Docs/GV/htm/GV.2252.htm#C http://www.statutes.legis.state.tx.us/Docs/GV/htm/GV.2252.htm#2252.062 http://www.statutes.legis.state.tx.us/Docs/GV/htm/GV.2252.htm#2252.063

Effective Date is January 1, 2007, then insert December 31, 2007).] and each twelve (12) month period thereafter, during the Term.

4.12.3 In accordance with §2252.064, Texas Government Code, Contractor will provide University with a performance bond for each contract year during the Term.

The amount of the performance bond for the first contract year during the Term will be equal to ($____________). [Note: Amount of performance bond may not exceed the contract price.]. [Option (Include only if the performance bond amount should be adjusted each contract year.): Thereafter, the amount of the performance bond will be adjusted at the beginning of each contract year to __________.] The performance bond will be issued by a surety company authorized to do business in the State of Texas and acceptable to University in all respects. The performance bond will be made payable to University and conditioned upon the prompt and faithful performance of Work and all of Contractor’s other duties and obligations under this Agreement.]

5. The Contract Amount.

5.1 So long as Contractor has provided University with its current and accurate Federal Tax Identification Number in writing, University will pay Contractor for the performance of Work in accordance with Exhibit C, Payment for Services.

5.2 The Contract Amount includes all applicable federal, state or local sales or use taxes payable as a result of the execution or performance of this Agreement.

5.3 University (a State agency) is exempt from Texas Sales & Use Tax on Work in accordance with §151.309, Texas Tax Code and 34 Texas Administrative Code (TAC) §3.322. Pursuant to 34 TAC §§3.322(c)(4) and (g)(3), this Agreement is sufficient proof of University’s tax exempt status and University is not required to provide further evidence of its exempt status.

6. Payment Terms.

6.1 At least [Option: ten (10)] [Alternate Option: _____ (____)] days before the end of each month during the Term, Contractor will submit to University an invoice covering Work performed for University to that date, in compliance with Exhibit C, Payment for Services.

Each invoice will be accompanied by documentation that University may reasonably request to support the invoice amount. [Option: University will pay Contractor for Work in accordance with Chapter 2251, Texas Government Code.] [Alternate Option: University will, within twenty-one (21) days from the date it receives an invoice and supporting documentation, approve or disapprove the amount reflected in the invoice. If University approves the amount or any portion of the amount, University will promptly pay (each a Progress Payment) to Contractor the amount approved so long as Contractor is not in default under this Agreement.

If University disapproves any invoice amount, University will give Contractor specific reasons for its disapproval in writing.]

6.2 Within [Option: ten (10)] [Alternate Option: _____ (____)] days after final completion and acceptance of Work by University or as soon thereafter as possible, Contractor will submit a final invoice (Final Invoice) setting forth all amounts due and remaining unpaid to Contractor.

Upon approval of the Final Invoice by University, University will pay (Final Payment) to Contractor the amount due under the Final Invoice.

6.3 Notwithstanding any provision of this Agreement to the contrary, University will not be obligated to make any payment (whether a Progress Payment or Final Payment) to Contractor if Contractor is in default under this Agreement.

http://www.statutes.legis.state.tx.us/Docs/GV/htm/GV.2252.htm#2252.064 http://www.statutes.legis.state.tx.us/Docs/TX/htm/TX.151.htm#151.309 http://texreg.sos.state.tx.us/public/readtac$ext.TacPage?sl=R&app=9&p_dir=&p_rloc=&p_tloc=&p_ploc=&pg=1&p_tac=&ti=34&pt=1&ch=3&rl=322 http://www.statutes.legis.state.tx.us/Docs/GV/htm/GV.2251.htm

6.4 The cumulative amount of all Progress Payments and the Final Payment (defined above) will not exceed the Contract Amount in Exhibit C, Payment for Services.

6.5 No payment made by University will (a) be construed to be final acceptance or approval of that part of the Work to which the payment relates, or (b) relieve Contractor of any of its duties or obligations under this Agreement.

6.6 The acceptance of Final Payment by Contractor will constitute a waiver of all claims by

Contractor except those previously made in writing and identified by Contractor as unsettled at the time of the Final Invoice for payment.

6.7 University will have the right to verify the details in Contractor's invoices and supporting documentation, either before or after payment, by (a) inspecting the books and records of Contractor at mutually convenient times; (b) examining any reports with respect to the Project;

and (c) other reasonable action.

6.8 Section 51.012, Texas Education Code, authorizes University to make payments through electronic funds transfer methods. Contractor agrees to accept payments from University through those methods, including the automated clearing house system (ACH). Contractor agrees to provide Contractor’s banking information to University in writing on Contractor letterhead signed by an authorized representative of Contractor. Prior to the first payment, University will confirm Contractor’s banking information. Changes to Contractor’s bank information must be communicated to University in accordance with Section 12.14 in writing at least thirty (30) days before the effective date of the change and must include an IRS Form W-9 signed by an authorized representative of Contractor.

6.9 [Option (Include if University is entitled to a prompt payment discount.): Notwithstanding any other provision of this Agreement, University is entitled to a discount of enter % (Prompt Payment Discount) off of each payment that University submits within # days after University’s receipt of Contractor’s invoice for that payment.]

7. Ownership and Use of Work Material.

7.1 All tools, software, programs, drawings, specifications, plans, computations, sketches, data, photographs, tapes, renderings, models, publications, statements, accounts, reports, studies, and other materials prepared by Contractor or any subcontractors in connection with Work (collectively, Work Material), whether or not accepted or rejected by University, are the sole property of University and for its exclusive use and re-use at any time without further compensation and without any restrictions.

7.2 Contractor grants and assigns to University all rights and claims of whatever nature and whether now or hereafter arising in and to Work Material and will cooperate fully with University in any steps University may take to obtain or enforce patent, copyright, trademark or like protections with respect to Work Material.

7.3 Contractor will deliver all Work Material to University upon expiration or termination of this

Agreement. University will have the right to use Work Material for the completion of Work or otherwise. University may, at all times, retain the originals of Work Material. Work Material will not be used by any person other than University on other projects unless expressly authorized by University in writing.

7.4 Work Material will not be used or published by Contractor or any other party unless expressly authorized by University in writing. Contractor will treat all Work Material as confidential.

http://www.statutes.legis.state.tx.us/Docs/ED/htm/ED.51.htm#51.012 https://www.irs.gov/uac/about-form-w9 https://www.irs.gov/uac/about-form-w9

7.5 [Option (Include if Contractor will create software, training materials or other Work Material (ref. Section 7) protectable by copyright, trademark, patent or other intellectual property rights. Contact OGC with questions.): All title and interest in Work Material will vest in University and will be deemed to be work made for hire and made in the course of Work rendered under this Agreement. To the extent that title to any Work Material may not, by operation of law, vest in University or Work Material may not be considered works made for hire, Contractor irrevocably assigns, conveys and transfers to University and its successors, licensees and assigns, all rights, title and interest worldwide in and to Work Material and all proprietary rights therein, including all copyrights, trademarks, service marks, patents, trade secrets, moral rights, all contract and licensing rights and all claims and causes of action with respect to any of the foregoing, whether now known or hereafter to become known. In the event Contractor has any rights in Work Material which cannot be assigned, Contractor agrees to waive enforcement worldwide of the rights against University, its successors, licensees, assigns, distributors and customers or, if necessary, to exclusively license the rights, worldwide to University with the right to sublicense. These rights are assignable by University.]

[Option (Include if Contractor objects to ownership of all Work Material by University. Contact

OGC with questions.):

7.6 Contractor IP is the sole property of Contractor (or its licensor) and Contractor (or its licensor) will at all times retain sole and exclusive title to and ownership of Contractor IP. Contractor grants University a non-exclusive, worldwide, perpetual, irrevocable, sub-licensable, royalty-free license to use Contractor IP in connection with the Work and Contractor’s services related to the Work. “Contractor IP” means all tools, software and programs owned by Contractor (licensed to Contractor by a third party licensor) that (1) existed prior to the Effective Date and the commencement of the Work; (2) are not related to the Work or to Contractor’s services in connection with the Work; or (3) were created by Contractor (or its licensor) totally separate from the Work or Contractor’s services in connection with the Work.

7.7 University grants Contractor a non-exclusive, worldwide, perpetual, irrevocable, sub-licensable, royalty-free license to the Work Product Improvements to Contractor IP.

“Work Product Improvements to Contractor IP” means Work Material comprising an improvement, enhancement or modification to Contractor IP, whether or not patentable, copyrightable as a derivative work, or otherwise protectable as intellectual property.]

8. Default and Termination

8.1 In the event of a material failure by a party to this Agreement to perform in accordance with its terms (default), the other party may terminate this Agreement upon [Option: fifteen (15)] [Alternate Option: _____ (____)] days’ written notice of termination setting forth the nature of the material failure; provided, that, the material failure is through no fault of the terminating party. The termination will not be effective if the material failure is fully cured prior to the end of the [Option: fifteen-day (15-day) period] [Alternate Option: _____-day (____-day) period].

[Note: Pursuant to §2261.101, Texas Government Code, consider whether an additional remedies or sanctions schedule would be beneficial and appropriate in this Agreement.

If so, please contact OGC for assistance.]

8.2 University may, without cause, terminate this Agreement at any time upon giving [Option:

seven (7)] [Alternate Option: _____ (____)] days’ advance written notice to Contractor. Upon termination pursuant to this Section, Contractor will be entitled to payment of an amount that will compensate Contractor for Work satisfactorily performed from the time of the last payment date to the termination date in accordance with this Agreement; provided, that, Contractor has delivered all Work Material to University. Notwithstanding any provision in this Agreement to the contrary, University will not be required to pay or reimburse Contractor for any services http://www.statutes.legis.state.tx.us/Docs/GV/htm/GV.2261.htm#2261.101 performed or for expenses incurred by Contractor after the date of the termination notice, that could have been avoided or mitigated by Contractor.

8.3 Termination under Sections 8.1 or 8.2 will not relieve Contractor from liability for any default or breach under this Agreement or any other act or omission of Contractor.

8.4 If Contractor fails to cure any default within [Option: fifteen (15)] [Alternate Option: _____

(____)] days after receiving written notice of the default, University will be entitled (but will not be obligated) to cure the default and will have the right to offset against all amounts due to Contractor under this Agreement any and all reasonable expenses incurred in connection with University’s curative actions.

8.5 [Option (Include if University will make pre-payments to Contractor under this

Agreement.): In the event that this Agreement is terminated, then within [Option: thirty (30)] [Alternate Option: _____ (____)] days after termination, Contractor will reimburse University for all fees paid by University to Contractor that were (a) not earned by Contractor prior to termination, or (b) for goods or services that University did not receive from Contractor prior to termination.] [Note: Section 50 of Article 3 of the Texas Constitution prohibits the State of Texas or its agencies from lending the credit of the State. “Lending the credit of the State” has been broadly construed to include the making of payment prior to receipt of goods or complete performance of services. Rhoads Drilling co. v. Allred, 70 S.W. 2d 576, 582 (Tex. 1934); Attorney General Opinions WW-790 (1960) and WW- 153 (1957). Nevertheless, according to relevant Attorney General Opinions MW-373 (1981) and JM-1229 (1990), pre-payments for goods and services may be made by the State of Texas so long as the pre-payment serves a public purpose and the State maintains controls over the transaction, contractual or otherwise, to ensure that the public purpose is actually achieved.

Based on Texas law related to pre-payments, the representative of U.T. with delegated authority to execute contracts containing pre-payment provisions, should analyze the transaction and make a determination regarding whether the facts lead to the conclusion that (1) there is in fact a public purpose for any pre-payments required by the contract and (2) there are sufficient controls over the transaction, contractual or otherwise, to ensure that the public purpose is actually achieved. This determination should be documented in a memorandum to U.T.'s file by setting forth the facts which lead to a conclusion of public purpose and sufficient controls to ensure the public purpose is achieved.]

9. Indemnification

9.1 TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAWS, CONTRACTOR WILL AND DOES

HEREBY AGREE TO INDEMNIFY, PROTECT, DEFEND WITH COUNSEL APPROVED BY UNIVERSITY, AND

HOLD HARMLESS UNIVERSITY, THE UNIVERSITY OF TEXAS SYSTEM, AND THEIR ]RESPECTIVE

AFFILIATED ENTERPRISES, REGENTS, OFFICERS, DIRECTORS, ATTORNEYS, EMPLOYEES,

REPRESENTATIVES AND AGENTS (COLLECTIVELY, INDEMNITEES) FROM AND AGAINST ALL

DAMAGES, LOSSES, LIENS, CAUSES OF ACTION, SUITS, JUDGMENTS, EXPENSES, AND OTHER

CLAIMS OF ANY NATURE, KIND, OR DESCRIPTION, [Option (Delete when Work is capable of being re-characterized as “construction” even if University does not believe Work is a “public work.”): INCLUDING REASONABLE ATTORNEYS’ FEES INCURRED IN INVESTIGATING, DEFENDING OR SETTLING ANY OF THE FOREGOING](COLLECTIVELY, CLAIMS) BY ANY PERSON OR

ENTITY, ARISING OUT OF, CAUSED BY, OR RESULTING FROM CONTRACTOR’S PERFORMANCE

UNDER OR BREACH OF THIS AGREEMENT AND THAT ARE CAUSED IN WHOLE OR IN PART BY ANY

NEGLIGENT ACT, NEGLIGENT OMISSION OR WILLFUL MISCONDUCT OF CONTRACTOR, ANYONE

DIRECTLY EMPLOYED BY CONTRACTOR OR ANYONE FOR WHOSE ACTS CONTRACTOR MAY BE

LIABLE. THE PROVISIONS OF THIS SECTION WILL NOT BE CONSTRUED TO ELIMINATE OR REDUCE ANY OTHER INDEMNIFICATION OR RIGHT WHICH ANY INDEMNITEE HAS BY LAW OR EQUITY. ALL

PARTIES WILL BE ENTITLED TO BE REPRESENTED BY COUNSEL AT THEIR OWN EXPENSE.

9.2 IN ADDITION, CONTRACTOR WILL AND DOES HEREBY AGREE TO INDEMNIFY, PROTECT, DEFEND

WITH COUNSEL APPROVED BY UNIVERSITY, AND HOLD HARMLESS INDEMNITEES FROM AND

AGAINST ALL CLAIMS ARISING FROM INFRINGEMENT OR ALLEGED INFRINGEMENT OF ANY PATENT, COPYRIGHT, TRADEMARK OR OTHER PROPRIETARY INTEREST ARISING BY OR OUT OF THE

PERFORMANCE OF SERVICES OR THE PROVISION OF GOODS BY CONTRACTOR, OR THE USE BY

INDEMNITEES, AT THE DIRECTION OF CONTRACTOR, OF ANY ARTICLE OR MATERIAL; PROVIDED, THAT, UPON BECOMING AWARE OF A SUIT OR THREAT OF SUIT FOR INFRINGEMENT, UNIVERSITY

WILL PROMPTLY NOTIFY CONTRACTOR AND CONTRACTOR WILL BE GIVEN THE OPPORTUNITY TO

NEGOTIATE A SETTLEMENT. IN THE EVENT OF LITIGATION, UNIVERSITY AGREES TO REASONABLY

COOPERATE WITH CONTRACTOR. ALL PARTIES WILL BE ENTITLED TO BE REPRESENTED BY

COUNSEL AT THEIR OWN EXPENSE.

10. Relationship of the Parties.

For all purposes of this Agreement and notwithstanding any provision of this Agreement to the contrary, Contractor is an independent contractor and is not a state employee, partner, joint venturer, or agent of University. Contractor will not bind nor attempt to bind University to any agreement or contract. As an independent contractor, Contractor is solely responsible for all taxes, withholdings, and other statutory or contractual obligations of any sort, including workers’ compensation insurance.

11. Insurance. [Note: These are minimum insurance requirements developed by the UT System Office of Risk Management. Depending on the type of goods or services covered by this Agreement, consideration should be given to increasing the types of insurance coverages and the limits. In particular, services related to health and safety concerns, hazardous chemicals, or the disposal of hazardous wastes require increased types of insurance coverages and increased limits; therefore, please refer your contract to your institution’s designated risk management contact for assistance. For contracts with professionals, consider requiring professional liability insurance of not less than $1,000,000 per claim.

Contact your institution’s designated risk management contact for assistance with review of all Certificates of Insurance.]

11.1 Contractor, consistent with its status as an independent contractor will carry and will cause its subcontractors to carry, at least the following insurance, with companies authorized to do insurance business in the State of Texas or eligible surplus lines insurers operating in accordance with the Texas Insurance Code, having an A.M. Best Rating of A-:VII or better, and in amounts not less than the following minimum limits of coverage:

11.1.1 Workers’ Compensation Insurance with statutory limits, and Employer’s Liability

Insurance with limits of not less than $1,000,000:

Employers Liability - Each Accident $1,000,000 Employers Liability - Each Employee $1,000,000 Employers Liability - Policy Limit $1,000,000

Workers’ Compensation policy must include under Item 3.A. on the information page of the Workers’ Compensation policy the state in which Work is to be performed for University.

[Option: In the event watercraft is used in the course of performing Work, the maritime coverage endorsement must be added unless separate Protection & Indemnity coverage is maintained. In the event operations are conducted in relation to navigable waters which may qualify employees for United States Longshore & Harbor Workers Compensation Act (USL&H) benefits, the USL&H endorsement must be added.]

11.1.2 Commercial General Liability Insurance with limits of not less than:

Each Occurrence Limit $1,000,000 Damage to Rented Premises $ 300,000 Personal & Advertising Injury $1,000,000 General Aggregate $2,000,000 Products - Completed Operations Aggregate $2,000,000

The required Commercial General Liability policy will be issued on a form that insures Contractor’s and subcontractor’s liability for bodily injury (including death), property damage, personal, and advertising injury assumed under the terms of this Agreement.

11.1.3 Business Auto Liability Insurance covering all owned, non-owned or hired automobiles, with limits of not less than $1,000,000 single limit of liability per accident for Bodily Injury and Property Damage;

[Option: If a separate Business Auto Liability policy is not available, coverage for hired and non-owned auto liability may be endorsed on the Commercial General Liability policy.] http://www.statutes.legis.state.tx.us/

[Option: Contractors transporting hazardous materials must provide the MCS-90 endorsement and CA9948 Broadened Pollution Liability endorsement on the Business Auto Liability policy. Policy limits must be in line with Federal requirements.]

[Option:11.1.4 Umbrella/Excess Liability Insurance with limits of not less than $2,000,000 per occurrence and aggregate with a deductible of no more than $10,000. The Umbrella/Excess Liability policy will be excess over and at least as broad as the underlying coverage as required under sections 11.1.1 Employer’s Liability; 11.1.2 Commercial General Liability; [Option: and] 11.1.3 Business Auto Liability [Option: ; and 11.1.5 Liquor Liability]. Inception and expiration dates will be the same as the underlying policies. Drop down coverage will be provided for reduction or exhaustion of underlying aggregate limits and will provide a duty to defend for any insured.] [Note: Limit amount should be adequate to cover University’s exposure. Appropriate limit will depend on the subject matter of this Agreement.]

[Option:11.1.5 Liquor Liability Insurance, with limits of not less than $1,000,000 per occurrence, $2,000,000 aggregate for bodily injury and property damage arising from selling, serving or furnishing of any alcoholic beverage by Contractor or Contractor’s employees, representatives, agents, or subcontractors in the performance of this Agreement.]

[Option:11.1.6 Professional Liability (Errors & Omissions) Insurance with limits of not less than $1,000,000 each occurrence, $3,000,000 aggregate. Such insurance will cover all Work performed by or on behalf of Contractor and its subcontractors under this Agreement. Renewal policies written on a claims-made basis will maintain the same retroactive date as in effect at the inception of this Agreement.

If coverage is written on a claims-made basis, Contractor agrees to purchase an Extended Reporting Period Endorsement, effective twenty-four (24) months after the expiration or cancellation of the policy. No Professional Liability policy written on an occurrence form will include a sunset or similar clause that limits coverage unless such clause provides coverage for at least twenty-four (24) months after the expiration or termination of this Agreement for any reason.]

[Option:11.1.7 Contractor’s Employee Dishonesty Insurance will be endorsed with a

Client’s Property Endorsement (or equivalent) to protect the assets and property of University with limits of not less than [Option: $500,000] [Alternate Option:

$1,000,000] per claim. If Contractor has property of University in its care, custody or control away from University’s premises, Contractor will provide bailee coverage for the replacement cost of the property. Contractor’s Employee Dishonesty policy will name University as Loss Payee. [Note: Limit amount should be adequate to cover University’s exposure. Appropriate limit will depend on the subject matter of this Agreement.]

[Option:11.1.8 Directors’ and Officers’ Liability Insurance with limits of not less than

$1,000,000 per claim. The coverage will be continuous for the duration of this Agreement and for not less than twenty-four (24) months following the expiration or termination of this Agreement.]

[Note: If this Agreement involves construction on property owned by the Board of Regents of The University of Texas System, please contact the UT System Office of Risk Management for guidance and relevant insurance requirements.]

[Note: If this Agreement poses potential risks related to data privacy, network or information security, please contact the UT System Office of Risk Management for guidance on relevant insurance requirements and seek review of the contract by the Institution’s Information Security Officer.]

[Option:11.1.9 Cyber Liability Insurance with limits of not less than $10,000,000 for each wrongful act. This policy must cover:

• Liability for network security failures or privacy breaches, including loss or unauthorized access, use or disclosure of University data, whether by Contractor or any of subcontractor or cloud service provider used by Contractor;

• Costs associated with a privacy breach, including notification of affected individuals, customer support, forensics, crises management / public relations consulting, legal services of a privacy attorney, credit monitoring and identity fraud resolution services for affected individuals;

• Expenses related to regulatory compliance, government investigations, fines, fees assessments and penalties;

• Liability for technological products and services;

• PCI fines, fees, penalties and assessments;

• Cyber extortion payment and response costs;

• First and Third Party Business Interruption Loss resulting from a network security failure;

• Liability for technological products and services;

• Costs of restoring, updating or replacing data; and

• Liability losses connected to network security, privacy, and media liability.

If this policy is written on a claims-made basis, (a) the “retroactive date” must be prior to the commencement of Work under this Agreement; and (b) if this policy is cancelled, terminated or non-renewed at any time during the Term, Contractor will purchase an “extended reporting period” for at least [Option: _________________________] [Alternate Option: a period of two (2) years beyond the termination or expiration of the Term].

Contractor’s policy will provide a carve-back to the “Insured versus Insured” exclusion for claims brought by or on behalf of additional insureds.]

11.2 Contractor will deliver to University:

11.2.1 After the execution and delivery of this Agreement and prior to the performance of any Work by Contractor, evidence of insurance on a Texas Department of Insurance (TDI) approved certificate form (the Acord form is a TDI-approved form) verifying the existence and actual limits of all required insurance policies; and, if the coverage period shown on the current certificate form ends during the Term, then prior to the end of the coverage period, a new certificate form verifying the continued existence of all required insurance policies.

11.2.1.1 All insurance policies (with the exception of workers’ compensation, employer’s liability and professional liability) will be endorsed and name the Board of Regents of The University of Texas System [Option (Delete only if contracting party is UT System.): , The University of Texas System] and University as Additional Insureds for liability caused in whole or in part by Contractor’s acts or omissions with respect to its on-going and completed operations up to the actual liability limits of the required insurance policies maintained by Contractor. Commercial General Liability Additional Insured endorsement including ongoing and completed operations coverage will be submitted with the Certificates of Insurance. Commercial General Liability and Business Auto Liability will be endorsed to provide primary and non-contributory coverage.

11.2.1.2 Contractor hereby waives all rights of subrogation against the Board of

Regents of The University of Texas System [Option (Delete only if contracting party is UT System.): , The University of Texas System] and University. All insurance policies will be endorsed to provide a waiver of subrogation in favor of the Board of Regents of The University of Texas System [Option (Delete only if contracting party is UT System.): , The University of Texas System] and University. No policy will be canceled until after thirty (30) days' unconditional written notice to University. All insurance policies will be endorsed to require the insurance carrier providing coverage to send notice to University thirty (30) days prior to any cancellation, material change, or non-renewal relating to any insurance policy required in this Section 11.

11.2.1.3 Contractor will pay any deductible or self-insured retention for any loss.

Any self-insured retention must be declared to and approved by University prior to the performance of any Work by Contractor under this Agreement. All deductibles and self-insured retentions will be shown on the Certificates of Insurance.

11.2.1.4 Certificates of Insurance and Additional Insured Endorsements as required by this Agreement will be mailed, faxed, or emailed to the following University contact:

Name: Click or tap here to enter text.

Address: Click or tap here to enter text.

Facsimile Number: Click or tap here to enter text.

Email Address: Click or tap here to enter text.

11.3 Contractor’s or subcontractor’s insurance will be primary to any insurance carried or self-insurance program established by University or [Option (Delete only if contracting party is UT System.): The University of Texas System]. Contractor’s or subcontractor’s insurance will be kept in force until all Work has been fully performed and accepted by University in writing. [Option: , except as provided in this Section 11.3.]

[Option:11.3.1 Professional Liability Insurance coverage written on a claims-made basis requires Contractor to purchase an Extended Reporting Period Endorsement, effective for twenty-four (24) months after the expiration or cancellation of the policy.]

[Option:11.3.2 Directors and Officers Liability Insurance coverage written on a claims-made basis requires Contractor to purchase an Extended Reporting Period Endorsement, effective for twenty-four (24) months after the expiration or cancellation of the policy.]

12. Miscellaneous.

12.1 Assignment and Subcontracting. [Option (Include if the value of this Agreement is expected to equal or exceed $100,000 or if University has requested a HUB Subcontracting Plan.): Except as specifically provided in Exhibit E, Historically Underutilized Business Subcontracting Plan,] Contractor's interest in this Agreement (including Contractor’s duties and obligations under this Agreement, and the fees due to Contractor under this Agreement) may not be subcontracted, assigned, delegated, or otherwise transferred to a third party, in whole or in part, and any attempt to do so will (a) not be binding on University;

and (b) be a breach of this Agreement for which Contractor will be subject to all remedial actions provided by Applicable Laws, including Chapter 2161, Texas Government Code, and 34 TAC §§20.285(g)(5), 20.585 and 20.586. The benefits and burdens of this Agreement are assignable by University.

12.2 Texas Family Code Child Support Certification. Pursuant to §231.006, Texas Family Code, Contractor certifies it is not ineligible to receive the award of or payments under this Agreement, and acknowledges this Agreement may be terminated and payment withheld if this certification is inaccurate.

12.3 Tax Certification. If Contractor is a taxable entity as defined by Chapter 171, Texas Tax

Code, then Contractor certifies it is not currently delinquent in the payment of any taxes due under Chapter 171, Contractor is exempt from the payment of those taxes, or Contractor is an out-of-state taxable entity that is not subject to those taxes, whichever is applicable.

12.4 Payment of Debt or Delinquency to the State. Pursuant to §§2107.008 and 2252.903, Texas Government Code, Contractor agrees any payments owing to Contractor under this Agreement may be applied directly toward any debt or delinquency Contractor owes the State of Texas or any agency of the State of Texas, regardless of when it arises, until paid in full.

12.5 Loss of Funding. Performance by University under this Agreement may be dependent upon the appropriation and allotment of funds by the Texas State Legislature (Legislature) and/or allocation of funds by the Board of Regents of The University of Texas System (Board). If Legislature fails to appropriate or allot necessary funds, or Board fails to allocate necessary funds, then University will issue written notice to Contractor and University may terminate this Agreement without further duty or obligation. Contractor acknowledges that appropriation, allotment, and allocation of funds are beyond University’s control.

12.6 Entire Agreement; Modifications. This Agreement (including all exhibits, schedules, supplements and other attachments (collectively, Exhibits)) supersedes all prior http://www.statutes.legis.state.tx.us/Docs/GV/htm/GV.2161.htm http://texreg.sos.state.tx.us/public/readtac$ext.TacPage?sl=R&app=9&p_dir=&p_rloc=&p_tloc=&p_ploc=&pg=1&p_tac=&ti=34&pt=1&ch=20&rl=285 http://texreg.sos.state.tx.us/public/readtac$ext.TacPage?sl=R&app=9&p_dir=&p_rloc=&p_tloc=&p_ploc=&pg=1&p_tac=&ti=34&pt=1&ch=20&rl=585 http://texreg.sos.state.tx.us/public/readtac$ext.TacPage?sl=R&app=9&p_dir=&p_rloc=&p_tloc=&p_ploc=&pg=1&p_tac=&ti=34&pt=1&ch=20&rl=586 http://www.statutes.legis.state.tx.us/Docs/FA/htm/FA.231.htm#231.006 http://www.statutes.legis.state.tx.us/Docs/TX/htm/TX.171.htm http://www.statutes.legis.state.tx.us/Docs/TX/htm/TX.171.htm http://www.statutes.legis.state.tx.us/Docs/GV/htm/GV.2107.htm#2107.008 http://www.statutes.legis.state.tx.us/Docs/GV/htm/GV.2252.htm#2252.903 agreements, written or oral, between Contractor and University and will constitute the entire agreement and understanding between the parties with respect to its subject matter. This Agreement and each of its provisions will be binding upon the parties, and may not be waived, modified, amended or altered, except by a writing signed by University and Contractor. All Exhibits are attached to this Agreement and incorporated for all purposes.

12.7 Force Majeure. Neither party hereto will be liable or responsible to the other for any loss or damage or for any delays or failure to perform due to causes beyond its reasonable control including acts of God, strikes, epidemics, war, riots, flood, fire, sabotage, or any other circumstances of like character (force majeure occurrence). Provided, however, in the event of a force majeure occurrence, Contractor agrees to use its best efforts to mitigate the impact of the occurrence so that University may continue to provide mission critical services during the occurrence.

12.8 Captions. The captions of sections and subsections in this Agreement are for convenience only and will not be considered or referred to in resolving questions of interpretation or construction.

12.9 Venue; Governing Law. Smith County, Texas, will be the proper place of venue for suit on or in respect of this Agreement. This Agreement, all of its terms and conditions, all rights and obligations of the parties, and all claims arising out of or relating to this Agreement, will be construed, interpreted and applied in accordance with, governed by and enforced under, the laws of the State of Texas.

12.10 Waivers. No delay or omission in exercising any right accruing upon a default in performance of this Agreement will impair any right or be construed to be a waiver of any right. A waiver of any default under this Agreement will not be construed to be a waiver of any subsequent default under this Agreement.

[Note: BEFORE A UT INSTITUTION EXECUTES THIS AGREEMENT, it is the UT Institution’s sole responsibility to (1) identify what categories and or sources of FERPA data, if any, Contractor will access, create or maintain on behalf of University pursuant to this Agreement, (2) ensure that the FERPA Confidentiality and Security Addendum made a part of this Agreement is accurate as of the Effective Date as well as the date this Agreement is signed by the UT Institution; (3) confirm the FERPA Confidentiality and Security Addendum is suitable given the terms of the contract to which it is attached; and (4) ensure that any modifications to the model FERPA Confidentiality and Security Addendum have been reviewed and approved for FERPA compliance by the UT Institution, as applicable.

12.11 Confidentiality and Safeguarding of University Records; Press Releases; Public

Information. Under this Agreement, Contractor may (1) create, (2) receive from or on behalf of University, or (3) have access to, records or record systems (collectively, University Records). Among other things, University Records may contain social security numbers, credit card numbers, or data protected or made confidential or sensitive by Applicable Laws.[Option (Include if University Records are subject to FERPA.):

Additional mandatory confidentiality and security compliance requirements with respect to University Records subject to the Family Educational Rights and Privacy Act, 20 United States Code (USC) §1232g (FERPA) are addressed in Section 12.42.] [Option (Include if Section 12.40 related to Payment Card Industry Data Security Standards is not included in this Agreement.):, as well as the Payment Card Industry Data Security Standards]) that are proportionate to the University’s risk under the Agreement based on the sensitivity of University’s Records, and no less rigorous than the standards by which Contractor protects its own confidential information, and periodically provide to University evidence that Contractor meets the security controls required under the Agreement; (3) continually monitor its operations and take any action necessary to assure that University http://uscode.house.gov/view.xhtml?req=(title:20%20section:1232g%20edition:prelim)%20OR%20(granuleid:USC-prelim-title20-section1232g)&f=treesort&edition=prelim&num=0&jumpTo=true http://uscode.house.gov/view.xhtml?req=(title:20%20section:1232g%20edition:prelim)%20OR%20(granuleid:USC-prelim-title20-section1232g)&f=treesort&edition=prelim&num=0&jumpTo=true

Records are safeguarded and the confidentiality of University Records is maintained in accordance with all Applicable Laws and the terms of this Agreement; and (4) comply with University Rules regarding access to and use of University’s computer systems, including UTS165 at http://www.utsystem.edu/board-of-regents/policy-library/policies/uts165-information-resources-use-and-security-policy. At the request of University, Contractor agrees to provide University with a written summary of the procedures Contractor uses to safeguard and maintain the confidentiality of University Records.

[Alternate Option (Use if University has confirmed that University will not provide Contractor any University Records that contain personally identifiable information regarding any individual that is not available to any requestor under the Texas Public Information Act.): Confidentiality and Safeguarding of University Records; Press Releases; Public Information. Under this Agreement, Contractor may (1) create, (2) receive from or on behalf of University, or (3) have access to, records or record systems (collectively, University Records).