ESBD_484586_1769033800016_Sample - Lamar Services Agreement.pdf

Agmt #Insert Number

AGREEMENT BETWEEN

LAMAR UNIVERSITY

AND

INSERT CONTRACTOR NAME

This non-exclusive agreement (Agreement) is entered into between Insert Contractor Name (Contractor), Federal Tax Identification Number Insert Contractor’s FEIN #, located in Insert City, State, and Lamar University (The University), an agency and institution of higher education established under the laws of the State of Texas, and located in Beaumont, Texas. The number associated with this Agreement (Agreement Number) is: Insert Agreement Number.

In consideration of the mutual promises and covenants contained in the Agreement, The University and Contractor agree as follows:

1. Services

Contractor will perform the services (Services) set forth in Exhibit A, Scope of Work, to the satisfaction of The University [Option 1: and in accordance with The University’s Request for Proposal (RFP) #758-XX-XXXXX Insert Name of RFP and Contractor’s response to said RFP or Option 2: and in accordance with Contractor’s agreement # insert contract number if applicable with insert name of contract source ]. Services will be provided to, and on behalf of, The University. Time is of the essence in connection with this Agreement. The University will have no obligation to accept late performance or waive timely performance by Contractor.

2. Contract Term

This Agreement is effective as of the later of insert month, day, year, or the date Agreement is fully executed by both parties (Effective Date). The base contract term (Initial Term) of this Agreement shall be for ______ (__) years beginning on the Effective Date, unless earlier terminated in accordance with Section 18. The 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.

For limited auto-renewals use of this language instead of the paragraph above is advised:

[This Agreement is effective as of the later of insert month, day, year, or the date Agreement is fully executed by both parties (Effective Date). The base contract term (Initial Term) of this

Agreement shall be for ______ (__) years beginning on the Effective Date, unless earlier terminated in accordance with Section 18. This Agreement shall automatically renew for _______

(___) additional ______ (____) year terms (each a Renewal Term) unless either party provides thirty (30) days’ written notice of its intent to terminate this Agreement before the commencement of the Renewal Term. The Initial Term and each Renewal Term are collectively referred to as the Term. ]

Commented [DJF1]: Guide to text in this document:

PURPLE text = Text to be provided by Procurement Officer before execution of agreement.

RED text = Text to be completed by Procurement Officer once vendor has been selected or text to be completed by the vendor during the solicitation process.

YELLOW HIGHLIGHTED text = Needs to be completed / reviewed / finalized before sending agreement draft to vendor for review or before posting with the solicitation.

BLUE HIGHLIGHTED text = Notes or general instructions to help explain a section or to indicate optional text.

3. Compensation

The University will compensate Contractor for services in accordance with Exhibit B, Pricing for Services. Total compensation to Contractor will not exceed the Contract Amount (ref. Exhibit B, Section 1.5) inclusive of all fees and expenses during the life of the Agreement.

The Agreement will not be effective for amounts exceeding one million dollars ($1,000,000) unless preapproved by the Board of Regents of The Texas State University System. [Option: Use this sentence instead if the BOR has already approved: The Board of Regents of The Texas State University System has approved the Contract Amount (ref. Exhibit B, Section 1.5) for this Agreement. ]

4. Contractor's Obligations

4.1 Permits, Certifications, and Licenses. 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 the Services.

4.2 Contractor will perform Services in compliance with (a) all Applicable Laws, and (b) the

Board of Regents of The Texas State University System Rules and Regulations, the policies of The Texas State University System; and the institutional rules, regulations and policies of The University (collectively, The System 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 The 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.

4.3 Contractor will call to The University’s attention in writing all information in any materials supplied to Contractor (by The 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 The University at all times is relying on Contractor's skill and knowledge in performing

Services. Contractor represents and warrants that Services 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 The University. Contractor will not be released from any liability by reason of any approval by The University. [OPTIONAL – for A/E Services only: In the event services are performed by an architect or engineer, contractor further represents and warrants that such services will be performed with the professional skill and care ordinally provided by competent architects or engineers practicing under the same or similar circumstances and professional license. ] http://www.statutes.legis.state.tx.us/Docs/BC/htm/BC.15.htm

4.5 Contractor will (a) use commercially reasonable efforts to perform Services in a good and workmanlike manner and in accordance with commercially reasonable standards of Contractor’s profession or business, and (b) all Services to be performed will be of the quality that prevails among similar businesses engaged in providing similar services in major urban areas of the United States under the same or similar circumstances.

4.6 Contractor will, at its own cost, correct all material defects in Services as soon as practical after Contractor becomes aware of the defects. If Contractor fails to correct material defects in Services within a reasonable time, then The University may correct the defective Services at Contractor’s expense. This remedy is in addition to, and not in substitution for, any other remedy for defective Services that The University may have at law or in equity.

4.7 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 Services 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 Services.

[Option (Include if Contractor is paid on hourly fee basis.): Contractor will furnish efficient business administration and coordination and perform Services in an expeditious and economical manner consistent with the interests of The University.]

4.8 Premise Rules. If this Agreement requires Contractor’s presence on The University’s premises or in The 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 The University Rules, including those relative to personal health, security, environmental quality, safety, fire prevention, noise, smoking, and access restrictions.

4.9 Records. Records of Contractor’s costs, reimbursable expenses pertaining to the Covered

Services and payments will be available to The University or its authorized representative during business hours and will be retained for four (4) years after final Payment or abandonment of the Covered Services, unless The University otherwise instructs Contractor in writing.

4.10 Responsibility for Individuals Performing Services; Criminal Background Checks. Each individual who is assigned to perform the Services under this Agreement will be an employee of Contractor or an employee of a subcontractor engaged by Contractor.

Contractor is responsible for the performance of all individuals performing Services under

Contractor will determine on a case-by-case basis whether each individual assigned to perform the Services is qualified to provide the Services. Contractor will not knowingly assign any individual to provide services on The University’s premises who has a history of criminal conduct unacceptable for a university campus, including violent or sexual offenses.

[Option: Include if Contractor’s employees will be placed on a campus:

Criminal Background Checks. Prior to commencing Services, Contractor will conduct the following background checks on its officers, employees, or other persons it causes to be on The University premises:

• Sex offender and criminal history databases where the above individuals will be placed on the campus, working with or around students; and

• Criminal history and credit history background checks where the above individuals will be handling money, informational technology, or other security-sensitive areas as determined by The University. ]

Prior to commencing performance of Services under this Agreement, Contractor will provide The University a letter signed by an authorized representative of Contractor certifying compliance with this Section. Contractor will be responsible for providing The

University an updated certification letters each time there is a change in the individuals assigned to perform the Services.

4.11 Records Retention Requirements for Agreements Over One Million. If the value of this

Agreement ever exceeds a total value of one million dollars, and in accordance with

Section 552.372 of the Texas Government Code, Contractor agrees to:

A. preserve all contracting information (as this term is defined in Texas Government

Code, Section 552.003 (7)) related to this Agreement in accordance with the records retention requirements applicable to The University for the duration of this Agreement;

B. promptly provide to The University any contracting information related to this

Agreement that is in the custody or possession of Contractor on request of The

University; and

C. on completion of this Agreement, either: (1) provide at no cost to The University all contracting information related to this Agreement that is in the custody or possession of Contractor, or (2) preserve the contracting information related to this Agreement in accordance with the records retention requirements applicable to The University.

Contractor further agrees that the requirements of Subchapter J, Chapter 552, Texas

Government Code, may apply to this Agreement and the Contractor agrees that the

Agreement can be terminated if the Contractor knowingly or intentionally fails to comply with a requirement of that subchapter.

[Option: Include if Contractor will have custody of any Vital State Records (defined in TGC 441.180(13) as records needed to: resume/continue agency operations in an emergency or disaster; re-creation of legal and financial status of the agency; or protect / fulfill obligations to the people of the state):

4.12 Disaster Recovery Plan. In accordance with 13 TAC § 6.94(a)(9), Contractor shall provide https://statutes.capitol.texas.gov/ https://statutes.capitol.texas.gov/ to The University the descriptions of its business continuity and disaster recovery plans. ]

5. Contractor’s Certifications

5.1 Entities that Boycott Israel. Pursuant to Chapter 2270.002 of the Texas Government Code, Contractor certifies that either (1) it meets an exemption criterion under Section

2270.002; or (2) it does not boycott Israel and will not boycott Israel during the term of the Agreement. Contractor shall state in this Agreement any facts that make it exempt from the boycott certification.

5.2 Foreign Terrorist Organizations. Pursuant to Chapter 2252.152 of the Texas Government

Code, Contractor certifies Contractor is not engaged in business with Iran, Sudan, or a foreign terrorist organization. Contractor acknowledges this Agreement may be terminated and payment withheld if this certification is inaccurate.

5.3 Excluded Parties. Contractor certifies that it is not listed in the prohibited vendors list authorized by Executive Order No. 13224, “Blocking Property and Prohibiting

Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism”, published by the United States Department of the Treasury, Office of Foreign Assets

Control.

5.4 Suspension and Debarment. Pursuant to and in compliance with Executive Orders 12549 and 12689 and Section 180.300 of the Code of Federal Regulations, The University cannot purchase goods and / or secure services from vendors that have been debarred, suspended, proposed for debarment, or otherwise excluded from or ineligible to participate in Federal or State assistance programs or activities. Contractor certifies that, to the best of its knowledge, Contractor and / or its Principals are not suspended, debarred, proposed for debarment, declared ineligible, or voluntarily excluded from the award of contracts by the Federal government and / or the State of Texas. Contractor further certifies that it is not subject to a vendor hold by the State of Texas and / or that it is not subject to debarment or suspension by the Texas Comptroller. If it is ever determined that Contractor is suspended or debarred from doing business with the State of Texas or U.S. Federal government, The University may immediately terminate the

Agreement and will not issue any payment for goods / services rendered.

5.5 Eligibility Certifications (Financial Participation Prohibited / Prior Disaster Relief Contract Violation). Pursuant to Sections 2155.004 and 2155.006, Texas Government Code, Contractor certifies that the individual or business entity named in the Agreement is not ineligible to receive the award of or payments under the Agreement and acknowledges that the Agreement may be terminated and payment withheld if these certifications are inaccurate.

5.6 Human Trafficking. Under Section 2155.0061 of the Texas Government Code, Contractor certifies that the individual or business entity named in this Agreement is not ineligible to https://statutes.capitol.texas.gov/ https://statutes.capitol.texas.gov/ https://statutes.capitol.texas.gov/ https://www.federalregister.gov/presidential-documents/executive-orders https://www.govinfo.gov/app/collection/cfr https://statutes.capitol.texas.gov/ receive the specified contract and acknowledges that this Agreement may be terminated, and payment withheld if this certification is inaccurate.

5.7 Restricted Employment for Certain State Personnel. Pursuant to Section 572.069 of the

Texas Government Code, Contractor certifies that it has not employed and will not employ a former state officer or employee who participated in a procurement or contract negotiations for The University involving Contractor within two (2) years after the date that the Agreement is signed or the procurement is terminated or withdrawn. This certification only applies to former state officers or employees whose state service or employment ceased on or after September 1, 2015.

5.8 Child Support Obligation 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.

5.9 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.

5.10 Computer Equipment Recycling Program. If applicable, Contractor certifies that it is in compliance with Subchapter Y, Chapter 361 of the Texas Health and Safety Code related to the Computer Equipment Recycling Program and the Texas Commission on Environmental Quality rules in 30TAC Chapter 328.

5.11 Firearm Entities and Trade Associations Discrimination. Pursuant to Chapter 2274 of the

Texas Government Code, for Agreements that exceed $100,000 Contractor verifies that it:

(1) does not have a practice, policy, guidance, or directive that discriminates against a firearm entity or firearm trade association; and

(2) will not discriminate during the term of the Agreement against a firearm entity or firearm trade association.

5.12 Energy Company Boycotts. Pursuant to Chapter 2274 of the Texas Government Code, for

Agreements that exceed $100,000, Contractor certifies that it:

(1) does not boycott energy companies as defined in Section 809.001 (1)(A) Texas Government Code (i.e., fossil fuel companies); and

(2) will not boycott energy companies during the term of the Agreement.

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 https://statutes.capitol.texas.gov/

5.13 Vaccine Passport Prohibition. Contractor certifies that it does not require its customers to provide any documentation certifying the customer’s COVID-19 vaccination or post-transmission recovery on entry to, to gain access to, or to receive service from the Contractor's business. Contractor acknowledges that such a vaccine or recovery requirement would make Contractor ineligible for a state-funded contract.

5.14 Critical Infrastructure Affirmation. Pursuant to Section 2274.0102 of Texas Government

Code, Contractor certifies that neither it nor its parent company, nor any affiliate of Contractor or its parent company, is:

(1) majority owned or controlled by citizens or governmental entities of China, Iran, North Korea, Russia, or any other country designated by the Governor under Section 2274.0103 of Texas Government Code, or

(2) headquartered in any of those countries.

5.15 Hardening of Texas’s Critical Infrastructure. Pursuant to Executive Order GA-48 (2024), Contractor certifies that it, and, if applicable, any of its holding companies or subsidiaries, is not:

(1) Listed in Section 889 of the 2019 National Defense Authorization Act (NDAA); or

(2) Listed in Section 1260H of the 2021 NDAA; or

(3) Owned by the government of a country listed on US Department of Commerce’s foreign adversaries list under 15 C.F.R. Section 791.4; or

(4) Controlled by any governing or regulatory body located in a country on the US Department of Commerce’s foreign adversaries list under 15 C.F.R. Section 791.4.

[Option: Use when purchasing or leasing covered television equipment as defined by Section 361.91(3) of the Health and Safety Code:

5.16 Television Equipment Recycling Program. Contractor certifies its compliance with Subchapter Z, Chapter 361 of the Texas Health and Safety Code, related to the Television Equipment Recycling Program. ]

[Option: Use if agreement is for consulting services:

5.17 Disclosure of Prior State Employment. In accordance with Section 2254.033 of the Texas

Government Code, relating to consulting services, Contractor certifies that it does not employ an individual who has been employed by The University or another state agency at any time during the two years preceding the Agreement or, in the alternative, Contractor has disclosed in its Response the following: (i) the nature of the previous employment with The University or the other agency; (ii) the date the employment was terminated; and (iii) the annual rate of compensation for the employment at the time of its termination. ] https://statutes.capitol.texas.gov/

6. Representations and Warranties by Contractor.

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

6.2 Lobbying Prohibition. Contractor represents and warrants that The University’s payments to Contractor and Contractor’s receipt of appropriated or other funds under the contract are not prohibited by Sections 556.005 or 556.0055 of the Texas Government Code.

6.3 Ethics Matters; No Financial Interest. Contractor and its employees, agents, representatives and subcontractors have read and understand The System's Conflicts of

Interest Policy and Code of Ethics at https://www.tsus.edu/about-tsus/policies.html and applicable state ethics laws and rules. Neither Contractor nor its employees, agents, representatives, or subcontractors will assist or cause The University employees to violate

The System's Conflicts of Interest Policy, The System’s Ethics Code, or applicable state ethics laws or rules. Contractor represents and warrants that no member of the Board has a direct or indirect financial interest in the transaction that is the subject of this

Agreement.

[Option: Include if Agreement requires TSUS Board of Regents Approval prior to execution or has a value of at least $1M:

Further, Contractor agrees to comply with §2252.908, Texas Government Code (Disclosure of Interested Parties Statute), and 1 TAC §46.1 through 46.5 (Disclosure of Interested Parties Regulations), as implemented by the Texas Ethics Commission (TEC), including, among other things, providing the TEC and The System with information required on the form promulgated by TEC. Contractor may learn more about these disclosure requirements, including the use of TEC’s electronic filing system, by reviewing the information on TEC’s website at: https://www.ethics.state.tx.us/filinginfo/1295/ ]

[Option (Include Sections 6.4 and 6.5 if Contractor will create software, training materials or other Work Material (ref. Section 7) protectable by copyright, trademark, patent or other intellectual property rights.):

6.4 Contractor represents and warrants that all of Contractor’s Personnel contributing to Work Material (ref. Section 7.1) under this Agreement will be required to (i) acknowledge in writing the ownership of Contractor (for the benefit of The 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.

https://www.tsus.edu/about-tsus/policies.html https://www.ethics.state.tx.us/filinginfo/1295/

6.5 Contractor represents and warrants that: (i) Services 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 The University); (ii) The 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: This only applies to employment contracts, professional service contracts and consulting contracts:

6.6 In accordance with Section 2252.901 of the Texas Government Code, Contractor represents and warrants that none of its employees including, but not limited to, those authorized to provide services under the contract, were former employees of The University during the twelve (12) month period immediately prior to the date of execution of the Agreement. ]

7. Ownership and Use of Work Material (Property Rights)

7.1 Work Material. All tools, software, programs, renderings, drawings, specifications, plans, computations, data, photographs, records, models, statements, reports, studies, and other deliverables or materials prepared or produced by Contractor Parties in connection with the Services (collectively, the Work Material), whether or not accepted or rejected by The University, are the property of The University and for The University’s exclusive use and re-use at any time without further compensation and without any restriction.

Contractor grants and assigns to The University all rights in and claims to the Work Material and will cooperate with The University in obtaining or enforcing The University’s rights and claims. Contractor will not use the Work Material except as expressly authorized by this Agreement.

7.2 Patents or Copyrights. Contractor will not apply for any copyright, patent or other property right related to the Work Material. Contractor agrees to protect The University from claims involving infringement of patents or copyrights.

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

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

[Option: Include if Contractor will create software, training materials or other Work Material (ref. Section 5.9) protectable by copyright, trademark, patent or other intellectual property rights. Contact OGC with questions:

7.5 All title and interest in Work Material will vest in The 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 The University or Work Material may not be considered works made for hire, Contractor irrevocably assigns, conveys and transfers to The 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 The University, its successors, licensees, assigns, distributors and customers or, if necessary, to exclusively license the rights, worldwide to The University with the right to sublicense.

These rights are assignable by The University.]

8. Right to Audit

8.1 Right to Audit. Contractor agrees that The University, or any of its duly authorized representatives, at any time during the term of the Agreement, will have access to, and the right to audit and examine, any relevant books, documents, papers, and records of

Contractor and related Contractor charges incurred in its performance under this

Agreement. Such records will be kept by Contractor for a period of four years after Final

Payment under this Agreement. Contractor agrees to refund The University within thirty days of being notified by The University of any overpayments disclosed by any audits.

8.2 State Auditor’s Right to Audit. Contractor understands that acceptance of funds under this Agreement constitutes acceptance of the authority of the State of Texas Auditor's

Office or any successor agency (Auditor), to conduct an audit or investigation in connection with those funds. Contractor shall cooperate with the State Auditor’s Office in the conduct of the audit or investigation, including providing all records requested.

Contractor shall ensure that this paragraph concerning the State’s authority to audit funds received indirectly by subcontractors through Contractor and the requirement to cooperate is included in any subcontract it awards. Additionally, the State Auditor’s Office shall at any time have access to and the rights to examine, audit, excerpt, and transcribe any pertinent books, documents, audit documentation, and records of the Contractor relating to this contract for any purpose.

9. Notices

Except as otherwise provided by this Section, notices, consents, approvals, demands, requests or other communications required or permitted under this Agreement, will be in writing and sent via certified mail, hand delivery, overnight courier, facsimile transmission (to the extent a facsimile number is provided below), or email (to the extent an email address is provided below) as indicated below, and notice will be deemed given (i) if delivered by certified mailed, when deposited, postage prepaid, in the United States mail, or (ii) if delivered by hand, overnight courier, facsimile (to the extent a facsimile number is provided below) or email (to the extent an email address is provided below), when received:

If to The University: Lamar University

Attention: Cynthia Dean, Director – Contract Services

P.O. Box 10003

Beaumont, TX 77710

Or via email: cadean1@lamar.edu

If to Contractor: INSERT CONTRACTOR NAME

Attn: INSERT “ATTENTION TO” NAME

INSERT ADDRESS

INSERT CITY, ST, ZIP

Or via email: INSERT CONTACT EMAIL or other person or address as may be given in writing by either party to the other in accordance with this Section.

10. Indemnification

CONTRACTOR WILL AND DOES HEREBY AGREE TO INDEMNIFY, PROTECT, DEFEND WITH

COUNSEL APPROVED BY THE UNIVERSITY, AND HOLD HARMLESS THE UNIVERSITY AND THEIR

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, INCLUDING REASONABLE ATTORNEYS' FEES INCURRED IN INVESTIGATING,

DEFENDING OR SETTLING ANY OF THE FOREGOING (COLLECTIVELY "CLAIMS") BY ANY PERSON

OR ENTITY, ARISING OUT OF, IN CONNECTION WITH, OR RESULTING FROM THIS AGREEMENT

OR THE GOODS OR SERVICES PROVIDED UNDER THIS AGREEMENT, TO THE EXTENT CAUSED, IN

WHOLE OR IN PART, BY THE ACTS, OMISSIONS, OR WILLFUL MISCONDUCT OF CONTRACTOR,

OR IT AGENTS, EMPLOYEES, SUBCONTRACTORS, SUPPLIERS OR ANYONE DIRECTLY EMPLOYED

BY CONTRACTOR OR ANYONE FOR WHOSE ACTS CONTRACTOR MAY BE LIABLE. THE

FOREGOING SHALL NOT APPLY IF DUE TO THE NEGLIGENCE OR WILLFUL MISCONDUCT OF THE

INDEMNITEES. IN ADDITION, CONTRACTOR WILL INDEMNIFY, PROTECT, DEFEND WITH

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

AND AGAINST ALL CLAIMS ARISING FROM INFRINGEMENT OR ALLEGED INFRINGEMENT OF ANY

PATENT, COPYRIGHT, TRADEMARK OR OTHER INTELLECTUAL PROPERTY RIGHTS ARISING OUT

OF, IN CONNECTION WITH, OR RESULTING FROM THIS AGREEMENT OR THE GOODS OR

SERVICES PROVIDED UNDER THIS AGREEMENT. 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. IN THE EVENT OF LITIGATION, THE UNIVERSITY

AGREES TO COOPERATE REASONABLY WITH CONTRACTOR. ALL PARTIES WILL BE ENTITLED TO

BE REPRESENTED BY COUNSEL AT THEIR OWN EXPENSE.

11. Limitations

THE PARTIES ARE AWARE THAT THERE ARE CONSTITUTIONAL AND STATUTORY LIMITATIONS ON THE AUTHORITY OF

THE UNIVERSITY (A STATE AGENCY) TO ENTER INTO CERTAIN TERMS AND CONDITIONS OF THE AGREEMENT, INCLUDING, BUT NOT LIMITED TO, THOSE TERMS AND CONDITIONS RELATING TO LIENS ON THE UNIVERSITY’S

PROPERTY; DISCLAIMERS AND LIMITATIONS OF WARRANTIES; DISCLAIMERS AND LIMITATIONS OF LIABILITY FOR

DAMAGES; WAIVERS, DISCLAIMERS AND LIMITATIONS OF LEGAL RIGHTS, REMEDIES, REQUIREMENTS AND PROCESSES;

LIMITATIONS OF PERIODS TO BRING LEGAL ACTION; GRANTING CONTROL OF LITIGATION OR SETTLEMENT TO

ANOTHER PARTY; LIABILITY FOR ACTS OR OMISSIONS OF THIRD PARTIES; PAYMENT OF ATTORNEYS’ FEES; DISPUTE

RESOLUTION; INDEMNITIES; AND CONFIDENTIALITY (COLLECTIVELY, THE “LIMITATIONS”), AND TERMS AND

CONDITIONS RELATED TO THE LIMITATIONS WILL NOT BE BINDING ON THE UNIVERSITY EXCEPT TO THE EXTENT

AUTHORIZED BY THE LAWS AND CONSTITUTION OF THE STATE OF TEXAS.

12. Sovereign Immunity

Notwithstanding any provision of the Agreement, nothing herein shall be construed as a waiver by The University of its constitutional, statutory or common law rights, privileges, immunities or defenses. To the extent the terms of this paragraph conflicts with any other provision in the Agreement, the terms of this paragraph shall control.

13. Cybersecurity Training Program

Pursuant to Section 2054.5192, Texas Government Code, Contractor and its subcontractors, officers, and employees, who are provided credentials granting access to The University’s computer system also known as The University’s information system, must complete a cybersecurity training program certified under Section 2054.519, Texas Government Code as selected by The University. The cybersecurity training program must be completed during the

Initial Term and any renewal period of this Agreement. Contractor shall verify in writing completion of the program to The University within the first thirty (30) calendar days of the Term and any renewal period of this Agreement. Failure to comply with the requirements of this section are grounds for termination for cause of this Agreement.

14. Undocumented Workers / Immigration

The Immigration and Nationality Act (8 USC §1324a) (Immigration Act) makes it unlawful for an employer to hire or continue employment of undocumented workers. The United States https://statutes.capitol.texas.gov/ http://uscode.house.gov/view.xhtml?req=(title:8%20section:1324%20edition:prelim)%20OR%20(granuleid:USC-prelim-title8-section1324)&f=treesort&edition=prelim&num=0&jumpTo=true

Immigration and Customs Enforcement Service has established the Form I-9 Employment

Eligibility Verification Form (I-9 Form) as the document to be used for employment eligibility verification (8 CFR §274a). Among other things, Contractor is required to: (1) have all employees complete and sign the I-9 Form certifying that they are eligible for employment; (2) examine verification documents required by the I-9 Form to be presented by the employee and ensure the documents appear to be genuine and related to the individual; (3) record information about the documents on the I-9 Form, and complete the certification portion of the I-9 Form; and (4) retain the I-9 Form as required by Applicable Laws. It is illegal to discriminate against any individual

(other than a citizen of another country who is not authorized to work in the United States) in hiring, discharging, or recruiting because of that individual's national origin or citizenship status.

If Contractor employs unauthorized workers during performance of this Agreement in violation of the Immigration Act, then, in addition to other remedies or penalties prescribed by Applicable

Laws, The University may terminate this Agreement in accordance with Section 18 Contractor represents and warrants that it is in compliance with and agrees that it will remain in compliance with the provisions of the Immigration Act.

15. Independent Contractor

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 The University. Contractor will not bind nor attempt to bind The 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.

16. Confidentiality and Safeguarding of University Records; Press Releases; Public Information.

Under this Agreement, Contractor may (1) create, (2) receive from or on behalf of The 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, including student records and protected health information as defined by the Health Insurance Portability and Accountability

Act and 45 Code of Federal Regulations (CFR) Part 160 and subparts A and E of Part 164

(collectively, HIPAA). 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 19.23. Contractor represents, warrants, and agrees that it will: (1) hold University Records in strict confidence and will not use or disclose University Records except as (a) permitted or required by this Agreement, (b) required by Applicable Laws, or (c) otherwise authorized by The University in writing; (2) safeguard

University Records according to reasonable administrative, physical and technical standards (such as standards established by the National Institute of Standards and Technology and the Center for Internet Security) that are no less rigorous than the standards by which Contractor protects its own confidential information; (3) continually monitor its operations and take any action necessary to assure that University Records are safeguarded and the confidentiality of University https://www.uscis.gov/i-9 https://www.uscis.gov/i-9 https://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-11261/0-0-0-28757.html https://www.gpo.gov/fdsys/pkg/PLAW-104publ191/content-detail.html https://www.gpo.gov/fdsys/pkg/PLAW-104publ191/content-detail.html http://www.ecfr.gov/cgi-bin/text-idx?tpl=/ecfrbrowse/Title45/45cfr160_main_02.tpl http://www.ecfr.gov/cgi-bin/text-idx?tpl=/ecfrbrowse/Title45/45cfr164_main_02.tpl 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 is maintained in accordance with all Applicable Laws and the terms of this Agreement;

and (4) comply with the TSUS Information Security Policy detailed in Appendix A-3, The Texas

State University System Rules and Regulations at https://www.tsus.edu/about-tsus/policies.html.

At the request of The University, Contractor agrees to provide The University within ten (10) calendar days with a written summary of the procedures Contractor uses to safeguard and maintain the confidentiality of University Records.

16.1 Notice of Impermissible Use. If an impermissible use or disclosure of any University

Records occurs, Contractor will provide written notice to The University within one (1) business day after Contractor’s discovery of that use or disclosure. Contractor will promptly provide The University with all information requested by The University regarding the impermissible use or disclosure.

16.2 Return of The University’s Records. Contractor agrees that within thirty (30) days after the expiration or termination of this Agreement, for any reason, all University Records created or received from or on behalf of The University will be (1) returned to The

University, with no copies retained by Contractor; or (2) if return is not feasible, destroyed. Twenty (20) days before destruction of any University Records, Contractor will provide The University with written notice of Contractor’s intent to destroy University

Records. Within five (5) days after destruction, Contractor will confirm to The University in writing the destruction of University Records.

16.3 Disclosure. If Contractor discloses any University Records to a subcontractor or agent, Contractor will require the subcontractor or agent to comply with the same restrictions and obligations as are imposed on Contractor by this Section.

16.4 Media / Press Releases. Except when defined as part of the Services provided under this

Agreement, Contractor will not make any press releases, public statements, or advertisement referring to the Services or the engagement of Contractor as an independent contractor of The University in connection with the Services or release any information relative to the Services for publication, advertisement, or any other purpose without the prior written approval of The University.

16.5 Public Information Act. The University strictly adheres to all statutes, court decisions and the opinions of the Texas Attorney General with respect to disclosure of public information under the Texas Public Information Act (TPIA), Chapter 552, Texas

Government Code. In accordance with §§552.002 and 2252.907, Texas Government

Code, and at no additional charge to The University, Contractor will make any information created or exchanged with The University pursuant to this Agreement (and not otherwise exempt from disclosure under TPIA) available in a format reasonably requested by The

University that is accessible by the public.

16.6 Termination. In addition to any other termination rights in this Agreement and any other rights at law or equity, if The University reasonably determines that Contractor has https://www.tsus.edu/about-tsus/policies.html breached any of the restrictions or obligations in this Section, The University may immediately terminate this Agreement without notice or opportunity to cure.

16.7 Duration. The restrictions and obligations under this Section will survive expiration or termination of this Agreement for any reason.

17. Insurance Requirements

Prior to commencement of any work, and at all times, during the term of this Agreement, Contractor must obtain and maintain the minimum insurance coverages set forth below.

Contractor is not relieved of any liability or other obligations assumed or pursuant to the

Agreement by reason of its failure to obtain or maintain insurance in sufficient amounts, duration, or types.

17.1 Workers’ Compensation Insurance with statutory limits for the State of Texas, and

Employer’s Liability Insurance with limits of not less than:

Employers Liability - Each Accident - $1,000,000

Employers Liability - Each Employee - $1,000,000

Employers Liability - Policy Limit - $1,000,000

Policies must include (a) Other States Endorsement to include TEXAS if business is domiciled outside the State of Texas, and (b) a waiver of all rights of subrogation and other rights in favor of The University.

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

Each Occurrence Limit - $1,000,000

Damage to Rented Premises - $300,000

Medical Expenses (any one person) - $10,000

Personal & Advertising Injury - $1,000,000

General Aggregate - $2,000,000

Products - Completed Operations Aggregate - $2,000,000

Policy must include independent contractor’s liability, covering, but not limited to, the liability assumed under the indemnification provision of this contract, fully insuring

Contractor’s (or Subcontractor’s) liability for bodily injury (including death) and property damage.

17.3 Business Auto Liability Insurance covering all owned, non-owned or hired automobiles, with limits of not less than $1,000,000 Combined Single Limit Bodily Injury and Property

Damage.

[Option: Require Umbrella/Excess Liability if Agreement should require higher limits than $1,000,000. The scope of work, size of contract, and potential for loss may require higher or lower limits.

17.4 Umbrella and/or Excess Liability Insurance with limits of not less than $5,000,000. This policy shall provide excess coverage over all underlying policies required above. ]

[Option: Require Professional Liability Insurance if either applies: (1) The Contractor is professionally licensed/certified (i.e. architect, consultant, paramedic, attorney, engineer, etc.);

or (2) the Contractor will develop information that will be used in a decision making process within the institution that could create liability (i.e. clinical trials, building construction, etc.).

The scope of work, size of contract, and potential for loss may require higher limits.

17.5 Professional Liability Insurance (Errors and Omissions) with limits of not less than

$1,000,000 per claim and $2,000,000 annual aggregate. ]

[Option: Require Cyber Liability Insurance if there are potential risks related to data privacy, network or information security associated with the Agreement]

17.6 Cyber Liability Insurance with limits of not less than $10,000,000 for each wrongful act is required. The policy must cover:

A. Liability for network security failures or privacy breaches, including loss or unauthorized access, use or disclosure of The University’s data, whether by

Contractor or any of subcontractor or cloud service provider used by Contractor;

B. 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;

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

D. Liability for technological products and services;

E. PCI fines, fees, penalties and assessments;

F. Cyber extortion payment and response costs;

G. First and Third-Party Business Interruption Loss resulting from a network security failure;

H. Liability for technological products and services;

I. Costs of restoring, updating or replacing data; and

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

[Option: Require Pollution Liability insurance when the work at issue involves the handling of hazardous material or the Contractor’s operation may create or exasperate an environmental hazard. The scope of work, size of contract, and potential for loss may require higher limits.

17.7 Pollution Liability Insurance (including Contractors’ Pollution Liability Coverage) with limits of not less than $1,000,000 per loss and $2,000,000 annual aggregate. ]

[Option: Require Builders Risk if Agreement is for construction/renovation.]

17.8 Builders Risk/Installation Floater Insurance Please contact Risk Management for language if scope of work contemplates construction. ]

[Option: Require if Agreement is for the use of drones by third parties on campus.]

17.9 Aviation Insurance (including coverage for Drones) with limits of not less than

$1,000,000 and coverage extended to Bodily Injury, Property Damage, Personal Injury and

Advertising Injury. ]

17.10 Additional insurance requirements:

A. Insurance must be placed with insurers duly licensed or authorized to do business in the state of Texas and with an “A.M. Best” rating of not less than A- VII.

B. Upon request, Contractor must furnish an original, latest edition Certificate of

Insurance written on a standard ACORD form acceptable to The University, evidencing that it has procured the insurance required herein. The University reserves the right to require Contractor to provide certificates of insurance, declaration pages, and/or endorsements evidencing the terms and conditions required herein at any time. Each insurance policy required by this Agreement must be in effect at or prior to commencement of work under this Agreement and remain in effect for the duration of the project.

C. With the exception of Workers’ Compensation, Employer’s Liability, and Professional

Liability, The University, its officers, employees, agents, and volunteers must be included as additional insureds with respect to liability arising out of the activities performed by, or on behalf of, the Contractor. Commercial General Liability must include The University and its officers, employees, agents, and volunteers as additional insureds for both on-going and completed operations.

D. All policies must be endorsed to provide a waiver of subrogation in favor of The

University.

E. All policies of insurance must be endorsed to be primary and non-contributory with any insurance coverages and/or self-insurance maintained by The University.

F. All insurance policies must provide for written notice of cancellation to be sent to The

University in accordance with policy provisions. In the event of notice of cancellation of or material change in any insurance required herein, within two (2) days upon…