Attachment A_RFP202490000530.pdf

Attachment A

RFP #202490000530

The selected Proposer is expected to execute a WVU Service Agreement a draft of which is included in this Attachment A. WVU and Service Provider shall work together to formulate a Scope of Services and Compensation attachments for the Agreement. As a West Virginia State institution, WVU is prohibited from agreeing to certain prohibited provisions within an executed agreement. The attached Service Agreement memorializes the basis of the agreement which meets our statutory requirements.

DRAFT

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WEST VIRGINIA UNIVERSITY

SERVICE AGREEMENT

This Service Agreement (“Agreement”) is entered into and effective as of DATE, (the “Effective

Date”), by and between the West Virginia University Board of Governors on behalf of West Virginia

University, a State agency and institution of higher education governed under the laws of the State of West

Virginia, (“WVU”) located at [COLLEGE/DEPARTMENT ADDRESS], Morgantown, WV 26506 and

COMPANY NAME., located at [COMPANY ADDRESS], [COMPANY CITY], [COMPANY

STATE] [COMPANY ZIP] (hereinafter referred to as “Service Provider”). WVU and Service Provider are sometimes collectively referred to herein as “Parties”, or individually, as a “Party”.

In consideration of the mutual promises, conditions and undertakings set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

1. Scope of Work; Services. Subject to and in accordance with the provisions of this Agreement, Service Provider is willing to provide and WVU wishes to obtain those certain services described in Attachment A attached hereto and incorporated herein by this reference (the “Services”). All

Services provided by Service Provider under this Agreement shall be provided in a competent, prompt, and professional manner. Service Provider agrees to cooperate in good faith with WVU in connection with the resolution of any concerns that may arise with respect to any of the Services.

In rendering the Services performed hereunder, the Service Provider shall communicate with

WVU to the attention of WVU POINT OF CONTACT as the main point of contact for review of the Services and Work (defined herein) to be provided.

2. Compensation.

a. WVU agrees to pay Service Provider: (1) a (☐ fixed fee) in the amount of Enter

Compensation in Writing (Enter Compensation Numerically) or (2) ☐ See attached

Attachment B “Compensation”) as compensation for performing the Services under this

Agreement. Payment shall be made to the Party identified in the Preamble and remitted to the remittance address of Remittance Street Address, Remittance City, Remittance

State Remittance Zip. Upon request from WVU and upon execution of this Agreement, Service Provider shall provide WVU with a completed original Department of the

Treasury, Internal Revenue Service, Form W9 “Request for Taxpayer Identification

Number and Certification.”

b. Travel Expenses. If approved in writing by WVU, WVU will reimburse Service Provider for Service Provider’s travel expenses, such travel expenses will be subject to WVU travel regulations, including documentation, which are located at http://procurement.wvu.edu/employees/traveling. Unless otherwise agreed by the Parties, all Service Provider incurred travel expenses shall be billed and paid based on actuals.

Payment on a monthly basis, shall be supported by receipt, and shall be paid by the

University within thirty (30) days after invoice approval. Service Provider shall not bill

WVU for travel time unless agreed in advance by WVU in writing.

http://procurement.wvu.edu/employees/traveling

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c. All invoices must be submitted electronically. Invoices must be itemized, and include the invoice number, supplier name and remit to address, service dates, and purchase order number. Service Provider will respond timely to WVU’s requests for any additional information necessary to support the payment. WVU will make payment to the Service

Provider within forty-five (45) calendar days from the date of invoice. All payments will be made in US Dollar (USD). Service Provider will work with WVU to submit the required documentation to register for electronic payments.

d. Service Provider must complete online registration in WVU’s Total Supplier Manager system before any purchase orders or payments can be issued. Service Provider shall contact WVU’s Payment Services and establish electronic remittance and payment, via

WVU’s Supplier Portal or CXML, of invoice submittals within a reasonable time of execution of this Agreement. WVU Payment Services may be contacted via email at pcps@mail.wvu.edu or by phone at 304-293-5711.

3. Confidential Information.

a. Definition. “Confidential Information” means any confidential or proprietary information furnished by one Party to the other in connection with the Services that is specifically marked as confidential, or understood to be confidential, which may include all information provided to Service Provider by WVU in order to accomplish the deliverables defined in Attachment A.

b. Obligations. For three (3) years after disclosure of Confidential Information, the receiving

Party may only disclose Confidential Information to its directors, officers, employees, consultants, and contractors who are obligated to maintain its confidentiality and who need to know Confidential Information for the performance of the Services.

Notwithstanding the foregoing, the obligation to maintain confidentiality extends indefinitely for any trade secrets agreed to be received under this Agreement WVU may refuse to accept any Confidential Information offered by Service Provider.

c. Exceptions. The obligations of Section 3.2(b) do not apply to information that the receiving Party can demonstrate (i) is publicly available; (ii) is independently known, developed, or discovered without use of Confidential Information; (iii) is made available by a third Party without a known obligation of confidentiality to the disclosing Party; (iv) is required to be disclosed to comply with a law, regulation, or court or administrative order provided that the receiving Party uses reasonable efforts to provide prior written notice of the disclosure.

d. Ownership and Return. The disclosing Party (or a third party entrusting its information to the disclosing Party) owns its Confidential Information. Upon expiration or termination of this Agreement or at the request of the disclosing Party, the receiving Party shall return all originals, copies, and summaries of Confidential Information in its possession or control, except that legal counsel of the receiving Party may retain one (1) copy of the Confidential Information for the purpose of monitoring its obligations under this Agreement.

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4. Materials. All materials, equipment, and instruments purchased using funds provided by WVU shall at all times remain under the sole ownership and control of WVU, unless otherwise provided for in this agreement or Attachment A.

5. Intellectual Property.

a. Definition. All inventions, discoveries, improvements, developments, data, analyses.

concepts, trade secrets, original works of authorship, formulas, work products, drawings, images, photographs, prototypes and other materials, know-how, designs, algorithms, computer programs, (including, but not limited to, source code, object code routines, macros, apps, etc.), databases, strategies, processes, procedures, methodologies, and techniques, and all documentation relating to the foregoing, whether or not patentable or registrable under copyright or similar laws, which Service Provider, alone or jointly, while operating within the scope of Services listed on Attachment A, creates, conceives, develops, reduces to practice, or causes another to create, conceive, develop, or reduce to practice for WVU, will collectively and individually be referred to as the “Work.”

b. Work Made For Hire. Service Provider and WVU understand and agree that (i) the Work shall be deemed a “work made for hire” within the meaning of that term under the United

States Copyright Act, 17 U.S.C. §§ 101 et seq., as amended or superseded, and (ii) each

Party considers the Work that results from the Services to be rendered by Service Provider hereunder and all rights therein, including, without limitation, copyright and other proprietary rights (both tangible and intangible), including the right to revise, edit and distribute the same, belongs to WVU and (iii) WVU shall be deemed the sole and exclusive owner of all right, title and interest in and to such Work in any and all media, languages, territories, jurisdictions throughout the world, now known or hereafter devised, including but not limited to, any and all work of authorship, copyrights, and copyright registrations. To the extent that any portion of the Work does not constitute a “work-made-for-hire” owned by WVU, Service Provider hereby assigns and agrees to assign and transfer all of its right, title and interest in such Work to WVU pursuant to paragraph 5(c) hereof.

c. Assignment. Service Provider agrees to assign and does hereby irrevocably assign and transfer to WVU, its successors and assigns, the entire right, title and interest in and to the

Work, (including, but not limited to, any Work not deemed, for whatever reason, to have been created as a work made for hire), products, results, deliverables, and materials of the

Services provided by Service Provider in any and all media, languages, territories, and jurisdictions throughout the world, now known or hereafter devised, including, but not limited to any and all inventions, patents, patent applications, copyright registrations, copyright applications, trade secrets, know-how, and other intellectual property rights in the Work, and any renewals and extensions thereof, and in and to all works based upon, derived from, or incorporating the Work, and to all income, royalties, damages, claims and payments now or hereafter due or payable with respect thereto, and in and to the right to prosecute all causes of action, either in law or in equity to recover damages for past, present, or future infringement, and in and to all rights corresponding to the foregoing throughout the world.

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d. Use of the Work. WVU shall have the unrestricted right to use, display, publish, perform, record, copy, broadcast, transmit, distribute, augment, subtract from, modify, distort, translate, transfer, combine with other information or materials, create derivative works based on, sell, or otherwise exploit for any purpose, the Work and any portion thereof, in any manner or media throughout the world, as WVU may in its sole discretion determine.

Service Provider hereby irrevocably waives and assigns to WVU any and all so-called moral rights or “droit moral” Service Provider may have in or with respect to any Work and agrees not to assert any moral rights against WVU with respect to the Work.

Notwithstanding the foregoing, nothing contained herein will require WVU to exercise or exploit any of WVU’s rights in or to the Work.

e. Delivery and Disclosure. Service Provider shall deliver to WVU all deliverables and

Work, whether in physical or electronic form, to WVU according to the requirements in

Attachment A or upon completion. Service Provider agrees to report promptly in writing to WVU any discovery or invention developed under this Agreement.

f. Cooperation. Upon WVU’s request, Service Provider agrees to promptly execute and deliver to WVU all papers and to perform such other proper acts as WVU may deem necessary to secure for WVU or its designee the rights herein assigned, including, but not limited to, assignments, declarations for patent applications, copyright registrations, or such other documents as are necessary to effectuate the purposes of this Agreement and to vest in WVU ownership of all Work. Service Provider hereby irrevocably appoints

WVU as Service Provider’s attorney-in-fact with full power to execute, acknowledge, deliver and record any and all such documents Service Provider fails to execute within five (5) business days after WVU’s request therefor.

g. License to Prior Work. Nothing herein conveys or transfers ownership of or rights to

Service Provider’s Prior Works. If Service Provider incorporates into any Services any original work or authorship created or owned by Service Provider prior to this Agreement

("Prior Works"), Service Provider hereby grants to WVU a non-exclusive, assignable, irrevocable, perpetual, worldwide, sub-licensable (through one or multiple tiers), royalty-free, unlimited license to use, copy, reproduce, distribute, publish, modify, adapt, alter, translate, improve, create derivative works of, practice, publicly perform, publicly display and digitally perform and display such Prior Works as incorporated into the Services in any media now known or hereafter known.

h. Other Agreements. For clarity, in the event Service Provider is also involved in research collaboration with WVU pursuant to subcontracts or sponsored research agreements administered by the West Virginia University Office of Sponsored Programs, intellectual property rights may be governed by the terms of the separate grant or contract with the

University to the extent such grant or contract includes conflicting intellectual property terms.

6. Subcontractors. Service Provider shall provide written notice to WVU prior to entering into any third-party subcontracts to accomplish the Services under this Agreement. Service Provider must cause its third party subcontractors and their employees to comply with all relevant terms and

Ver1.June2022 Page 5 of 10 Office of General Counsel Approved 6/2022 conditions of this Agreement, including without limitation Section 3 (Confidential Information), Section 4 (Materials), Section 5 (Intellectual Property), Section 8 (Use of Name for Publicity), Section 9 (Record Keeping, Audit Rights, and Reports), and Section 13 (Independent Contractor).

7. Indemnification. Service Provider shall hold harmless, defend and indemnify WVU and its board of governors, officers, employees, and agents from and against any and all claims, losses, causes of action, judgments, damages and expenses, including, but not limited to, reasonable attorneys’ fees, because of bodily injury, sickness, disease or death, or injury to or destruction of tangible property or any other injury or damage resulting from or arising out of: (a) performance or breach of this Agreement by Service Provider, or (b) Service Provider’s use of WVU’s premises, (c) any claim of patent, trademark, copyright, franchise or other intellectual property infringement by the

Work and/or Services provided by Service Provider hereunder or (d) any act, error, or omission on the part of Service Provider, or its agents, employees, invitees, participants, or subcontractors, except where such claims, losses, causes of action, judgments, damages or expenses result solely from the negligent acts or omissions or willful misconduct of WVU, or its board of directors, officers, employees, or agents.

8. Use of Name for Publicity. Neither Party shall use the name of the other Party in any advertising, publicity, news release, or promotional material without the prior written approval of the other

Party.

9. Record Keeping, Audit Rights, and Reports. Service Provider shall maintain accurate accounting records for all goods and services provided pursuant to this Agreement and shall retain all such records for a period of at least three (3) years following termination of this Agreement. Upon reasonable notice and during normal business hours, WVU, or any of its duly authorized representatives, shall have access to and the right to audit any records or other documents pertaining to the provision of goods and services under this Agreement. WVU’s audit rights shall extend throughout the Term of this Agreement and for a period of at least three (3) years thereafter.

During the Term, upon request, Service Provider shall summarize and concisely report to WVU in a timely manner information requested by WVU pertaining to the Services.

10. Notices. All notices under this Agreement shall be in writing and shall be given by (i) established express delivery service which maintains delivery records, (ii) hand delivery, or (iii) certified or registered mail, postage prepaid, return receipt requested, to the Parties at the following addresses, or such other addresses as the Parties may designate from time to time by written notice in the above manner:

For WVU: Technical POC College/Dept.

College/Dept. Address

Morgantown, WV 26506

304-Phone Email

Copy to: Office of the General Counsel

105 Stewart Hall P.O. Box 6204

Morgantown, WV 26506

304-293-5841

LegalServices@mail.wvu.edu

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For Service Provider: [NAME & TITLE]

[ADDRESS]

[ADDRESS]

[CITY, STATE ZIP CODE]

[PHONE] [EMAIL]

11. Compliance with Law. The Parties shall comply with all applicable federal, state, local laws and regulations and nothing in this Agreement shall be construed to require either Party to violate such provisions of law or subject either Party to liability for adhering to such provisions of law.

12. Termination.

a. Term. This Agreement shall commence on the Effective Date, and will terminate on

Termination Date, or as otherwise stated in this Agreement. This Agreement can be renewed upon mutual written agreement by both parties.

b. Termination. This Agreement may be suspended or terminated by either Party at any time by giving thirty (30) days written notification to the appropriate contact of the other Party.

c. Termination for Breach. In the event that either Party shall be in breach, violation or default of any of its obligations under this Agreement and shall fail to remedy such default within thirty days (30) after receipt of written notice thereof, the Party not in default

(reserving cumulatively all other remedies and rights under this Agreement and at law and in equity) shall have the option of terminating this Agreement upon written notice thereof.

d. Surviving Terms. Expiration or termination of this Agreement by either Party does not affect the rights and obligations of the Parties that accrued prior to the effective date of termination. Expiration or termination of this Agreement does not affect the Parties’ rights and obligations under Articles 3, 5, 9, 17, 19, 21.

e. Payments on Termination. If this Agreement is terminated prior to its expiration for any reason other than a material breach by WVU, then on the effective date of termination, WVU shall pay Service Provider (a) for costs that were incurred by Service Provider through the date of termination or for the work that was performed through the date of termination, documented by verifiable receipts, and (b) for all uncancellable financial commitments that Service Provider intended to pay through WVU’s funding under this

Agreement. On the other hand, if Service Provider retains WVU funding on the effective date of termination that has not been committed or expended, Service Provider shall return the remaining unobligated balance to WVU within five (5) business days of the termination date.

13. Independent Contractor. Service Provider shall perform the Services as an independent contractor.

WVU is interested only in the results to be achieved and compliance by Service Provider with the terms and conditions of this Agreement and all applicable laws. The conduct and control of the

Services shall lie solely and exclusively with Service Provider. Neither Service Provider nor any

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Employees”) shall be considered an agent or employee of WVU, nor shall anything in this

Agreement be construed as creating a single enterprise or joint venture, for any purpose. Service

Provider Employees are not entitled to any benefits provided by WVU for its employees.

However, the work is subject to the right of inspection and approval by Service Provider and all applicable governmental authorities. Service Provider shall be solely responsible for the acts of

Service Provider and its Employees during the performance of the Services.

14. Insurance. During the term of the Agreement, Service Provider shall procure, at its own expense, and maintain for the duration of the Agreement, the following insurance coverage from insurers licensed or registered to do business in the State of West Virginia: (a) Commercial general liability insurance of not less than $1,000,000 per occurrence and $2,000,000 general aggregate; (b)

Worker’s Compensation insurance in accordance with applicable statutory limits; and, if applicable, (c) professional liability insurance of $1,000,000 per claim/loss and $2,000,000 annual aggregate, with proof that coverage shall remain in effect for a minimum of three years from the date of completion of the project, Service Provider shall provide such other insurance as may be required by law. All applicable liability insurance carried by Service Provider in connection with the Services shall list WVU as an additional insured and such insurance shall be primary and not contributory as to any other insurance WVU may have in effect. The Service Provider shall provide a certificate of insurance to WVU evidencing required coverage prior to commencement of the Services. All policies shall provide a minimum of thirty (30) calendar day's written notice prior to cancellation or material change. The insurance company(ies) providing the above described coverage shall have an AM Best Rating of no less than (A-) excellent.

15. Representation and Warranty. Service Provider does hereby represent and warrant that all Services to be provided hereunder shall be performed in a competent, professional, and satisfactory manner in accordance with the standards prevalent in the industry for such Services. By executing this

Agreement, Service Provider represents and warrants that Service Provider (i) has thoroughly investigated and considered the work to be performed, (ii) if applicable, has investigated the site of the work and fully acquainted itself with the conditions there existing, (iii) has carefully considered how the work should be performed, (iv) fully understands the facilities, difficulties and restrictions in the performance of the Services under this Agreement, and (v) to the extent Service

Provider utilizes third-party licenses to develop the Work, including Prior Works, the Service

Provider has acquired all of the rights and licenses necessary from said third-party to convey the rights required by Section Five (5), Intellectual Property, herein. Should the Service Provider discover any latent or unknown conditions materially differing from those inherent in the Services or as represented by WVU, Service Provider shall immediately inform WVU of such fact and shall not proceed except at Service Provider’s risk until written instructions are received from WVU.

By execution of this Agreement, Service Provider warrants that it is a registered vendor with the

State of West Virginia and in good standing.

16. No Debarment by Federal Agency. Service Provider does hereby warrant, represent and certify, to the best of Service Provider’s knowledge and belief, after reasonable inquiry that no principal, officer, director, employee, agent, consultant, independent contractor or other person associated with Service Provider (i) is presently debarred, suspended, proposed for debarment, declared ineligible or voluntarily excluded from covered transactions by any Federal department or agency;

(ii) has, within the three year period preceding the Effective Date, been convicted of, or had a civil

Ver1.June2022 Page 8 of 10 Office of General Counsel Approved 6/2022 judgment rendered against them for, commission of fraud or any other criminal offense in connection with obtaining, attempting to obtain, or performing a public (Federal, State or local) transaction or contract under a public transaction; for violation of a Federal or State antitrust statute; for commission of embezzlement, theft, forgery, bribery, falsification or destruction of records; or for making false statements or receiving stolen property; (iii) is presently indicted or otherwise criminally or civilly charged or under investigation by any governmental entity

(Federal, State or local) with regard to the commission of any of the offenses enumerated herein;

nor (iv) has, within the three year period preceding the Effective Date, had any public transaction

(Federal, State, or local) terminated for cause or default.

17. Governing Law. This Agreement is governed and construed in accordance with the laws of the

State of West Virginia. The Parties shall bring any action in connection with this Agreement in courts of competent jurisdiction in the State of West Virginia.

18. Survival of Terms. The terms, conditions and warranties contained in this Agreement that by their sense and context are intended to survive the completion of the performance, cancellation or termination of this Agreement shall so survive.

19. Force Majeure. Neither Party is responsible for delays resulting from causes reasonably beyond its control, including fire, explosion, flood, tropical storm, hurricane, war, strike, epidemic, pandemic, or riot, provided that the nonperforming Party uses commercially reasonable efforts to avoid or remove causes of nonperformance and continues performance under this Agreement with reasonable dispatch after the causes are removed.

20. Export Controls. The Parties shall comply with United States export control laws and regulations that apply to information and materials that are exchanged under this Agreement. Service Provider shall notify WVU before providing WVU with any export-controlled information or materials by referencing this Agreement and a description of the export-controlled information to exportcontrol@mail.wvu.edu.

21. Equal Opportunity; Non-Discrimination. Neither Party shall discriminate against any employee, applicant for employment, or recipient of Services on the basis of race, religion, color, creed, sex, age, disability, national origin, marital status, ancestry, sexual orientation, or gender identity.

22. Taxes. Service Provider shall pay all taxes which may be levied or incurred in connection with the performance of any services under this Agreement, including taxes levied or incurred against

Service Provider’s income, inventory, property, sales, or other taxes.

23. Agreement Construction. The Parties to this Agreement recognize that each of them have independently initiated this Agreement and the terms within this document. As such, ambiguities within this Agreement may not be construed against either Party. Furthermore, each Party has had the opportunity to have this Agreement reviewed by its own legal counsel.

24. Miscellaneous. This Agreement (a) may not be assigned or transferred by either party without the other party’s prior written consent; (b) constitutes the entire understanding of the Parties with respect to the subject matter hereof; (c) may be modified or amended only in a writing signed by duly authorized representatives of both Parties; any waiver of rights or failure to act in a specific

Ver1.June2022 Page 9 of 10 Office of General Counsel Approved 6/2022 instance relates only to that instance and is not an agreement to waive any rights or fail to act in any other instance; (d) the Parties may execute this Agreement in one or more counterparts, each of which is an original, and all of which together are the same instrument; and (e) headings are for convenience and do not affect the meaning of any provision of this Agreement. WVU may assign this Agreement to a successor board, agency, or commission of the State of West Virginia by providing written notice to Service Provider.

25. Entire Agreement. This Agreement with its exhibits constitutes the entire agreement between the

Parties and supersedes and replaces any and all previous understandings, commitments, or agreements, whether oral or written, relating to the performance of this Agreement.

IN WITNESS WHEREOF, the Parties have caused this agreement to be executed by their duly authorized representatives.

West Virginia University Board of Governors on behalf of West Virginia University

X Signature (Authorized representative)

Signatory: WVU Signatory

Title: WVU Signatory Title

Date:_____________________

Company Name

X Signature (Authorized representative)

Signatory: Service Provider Signatory

Title: SP Signatory Title

Date:______________________________

ATTACHMENT A

SCOPE OF SERVICES

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Service Provider shall perform the following Scope of Services:

Enter Scope of Services