ESBD_551182_1787086190092_Appendix D - Sample Contract.pdf

Contract Number:

Products and Services Agreement

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_________ PRODUCTS AND SERVICES AGREEMENT

This __________ Products and Services Agreement (“Contract”) is entered into as of the date of last signature

(“Effective Date”) between ______________, a Texas public institution of higher education located in City, Texas

(“University”) and Full Legal Name of Contractor, a Type of Entity (e.g., a Texas corporation) with a principal office located at Contractor’s Address (“Contractor”). University and Contractor may be referred to herein individually each as a “Party” or together as the “Parties.”

Background

• University sought a qualified vendor to provide the products and services described in this Contract.

• Contractor is a qualified vendor that provides the products described in Section 2.1 and services described in Section

2.2 of this Contract and submitted a proposal (“Proposal”) to University’s Solicitation.

• University has selected Contractor to provide the products and services described in this Contract based on its best value to University.

Agreement

Now therefore, for good and valuable consideration, the sufficiency and receipt of which are hereby acknowledged, the Parties agree as follows:

Article 1

Incorporated Terms and Order of Precedence

1.1 Incorporated Terms. The Parties acknowledge and agree that the Required Contract Terms set forth at https://www.texastech.edu/ogc/required-contract-terms.pdf and the MSU purchase order terms and conditions are incorporated by reference into this Agreement. They are found at https://msutexas.edu/purchasing/_assets/files/purchasing-general/msu-tcs-rev-01-24-2025.pdf

1.2 Order of Precedence. To the extent they do not conflict with the terms of this Contract, Section(s) _ of the Solicitation and Contractor’s Proposal are incorporated as if stated verbatim herein. In the event of any conflict between the terms and requirements of this Contract (including the terms incorporated in Section 1.1) and the Solicitation, the terms and requirements of this Contract shall control. In the event of any conflict between the terms and requirements of the

Solicitation and the Proposal, the terms and requirements of the Solicitation shall control. The Parties agree that any conflict in terms not resolved by the order of precedence set forth herein shall be resolved at the University’s discretion.

1.3 Goods/Services: List description of purchase or service here. If there is a quote/bid, reference it here as Exhibit A.

1.4 Compensation: Check one box only:

This is a fixed price contract. University will pay Contractor the amount of $_____________.

This is not a fixed price contract. University will pay Contractor an amount not to exceed $ based on an hourly fee and /or other method of calculation as follows:

This is not a fixed price contract and will be performed on a service-order basis. University will pay

Contractor an amount not to exceed $_________ (based on service order form(s) to be completed and signed by the Parties, a version of which will be provided to Contractor by University). University will engage

Contractor on an "as-needed if needed" basis and does not guarantee the purchase of any quantity or dollar amount of services.

https://www.texastech.edu/ogc/required-contract-terms.pdf https://msutexas.edu/purchasing/_assets/files/purchasing-general/msu-tcs-rev-01-24-2025.pdf

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Article 2

Contractor’s Product and Service Requirements

2.1 Products. Contractor agrees to provide and deliver the following products to University (collectively, the “Products”).

2.1.1 [Describe products]; and

2.1.2 All other products required for Contractor to perform the Services.

2.2 Services. Contractor agrees to provide the services described in this Section 2.2 and in Section 2.3 and Section 2.4 of this Contract (collectively, the “Services”).

2.2.1 Contractor shall provide Services to University under the terms of this Contract on an as-needed basis.

2.2.2 The Parties agree that this Contract shall not necessarily be for only one (1) specific project.

2.2.3 [Customize this section to specifically describe the services to be provided by Contractor].

2.3 Quality Measures.

2.3.1 All Services provided by Contractor are subject to inspection and approval by University.

2.3.2 If University is not satisfied with the Services, Contractor shall coordinate with University to resolve the problem(s) at no additional cost to University, unless otherwise agreed upon in writing by University.

2.4 Labor, Supervision, and Coordination.

2.4.1 Materials and Equipment. Contractor shall provide all necessary labor, materials, and equipment required for Services, including but not limited to special tools.

2.4.2 Location. Contractor shall provide Services to University, at its main campus, at regional University campus sites, and/or at other University-affiliated locations as requested by University.

2.4.3 Scope. Contractor shall coordinate Services with University prior to beginning any Services.

2.4.3.1 Contractor shall confirm the scope of work and requirements for Services by consulting with

University.

2.4.3.2 Contractor shall submit a written quote for Services to University detailing Services to be provided, all rates, fees, and expenses, and referencing this University Agreement number (“Quote”).

Contractor’s maximum fee rates and chargeable costs are attached hereto as “Exhibit A.”

2.4.3.3 Once a Quote for Services has been reviewed and approved, University shall submit a purchase order (“Purchase Order”) to Contractor prior to Contractor’s commencement of Services.

2.4.3.4 University shall not pay for any portion of Services not specifically detailed on Contractor’s Quote and formalized by the issuance of a University-approved Purchase Order.

2.4.3.5 Any alterations or modifications of Services shall be requested by University by change order and approved in writing by both University and Contractor. Said change order shall be processed by

University’s procurement office prior to commencement of any alterations or modifications.

2.4.4 Supervision. University shall not be responsible for the performance of the Services or the quality of Services provided. Contractor shall provide identification badges or other forms of identification for all its employees, subcontractors, agents, and affiliate personnel performing or supervising Services on University property.

No employee of Contractor shall be permitted on University property without proper identification.

2.5 No Guarantee. University does not guarantee minimum or maximum compensation or requests for Products or

Services under this Contract.

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Article 3

Financial Arrangement

3.1 Fees/Billing Rates. Unless otherwise mutually agreed upon in writing by the Parties, Contractor shall be compensated by University for Products and Services in accordance with the schedule of costs and fees described on the attached

Exhibit A. No modifications, revisions, amendments, or other changes to Exhibit A shall be enforceable against

University without University’s prior written approval and signed authorization.

3.2 Invoice. Upon delivery of Products and completion of Services, Contractor shall submit an invoice by electronic means to University for all Products delivered and Services completed and each itemized expense. Each invoice shall include supporting documentation for the invoiced amounts. Invoices should be submitted as follows:

By Mail:

Midwestern State University

ATTN: Purchasing

3410 Taft Blvd

Wichita Falls, TX 76308

By Email:

Accounts.payable@msutexas.edu

3.3 Payment. Invoices will be paid net thirty (30) days in compliance with Texas law. All invoices must reference a valid

Purchase Order, or the invoice will be returned as non-compliant. In the event University is making payment on funds appropriated by the State of Texas, payment may be made net thirty (30) days as required by law. University will submit an electronic check remittance to the email address on record for all Automated Clearing House and Single

Use Account payments.

Article 4

Term and Termination

4.1 Term: The term of this Agreement ("Term") will begin on __________ and end on__________, unless terminated earlier pursuant to the terms of this Agreement or extended by mutual written agreement of the Parties. unless the

Contract is earlier terminated pursuant to its terms. The Contract may renew for one (1) additional one (1) year terms, unless either Party provides written notice of its intent to not renew this Contract at least sixty (60) days prior to the end of the then-current term. The provisions of this Section shall not limit any Party’s right to terminate expressly provided elsewhere in this Contract.

4.2 Termination for Material Breach. Either Contractor or University may terminate this Contract upon thirty (30) days prior written notice to the other, if the other Party fails to perform or comply with any of the material terms, covenants, agreements, or conditions hereof, and such failure is not cured during such thirty (30) day period.

4.3 Termination upon Contractor’s Insolvency. University may terminate this Contract immediately and without notice if Contractor: (i) petitions for reorganization under the United States Bankruptcy Code or is adjudged bankrupt; (ii) becomes insolvent or a receiver is appointed due to insolvency; or (iii) makes a general assignment or sale of

Contractor’s assets or business for the benefit of creditors.

4.4 Termination for Convenience. University may terminate this Contract for any reason by giving Contractor thirty

(30) days prior written notice.

4.5 Effect of Termination. In no event shall termination by University as provided for under this Contract give rise to any liability on University’s part including, but not limited to, Contractor’s claims for compensation for anticipated profits, unabsorbed overhead, or interest on borrowing. University’s sole obligation hereunder is to pay Contractor for

Products and Services received prior to the date of termination.

4.6 FERPA. If given access to personally identifiable information about any student during performance of the

Contract, Contractor agrees to abide by the limitations on re-disclosure of personally identifiable information from student records as set forth in the Family Educational Rights and Privacy Act (“FERPA”) 34 CFR § 99.3. To the extent Contractor has access to or creates “education records” (“FERPA Records”) under the Contract or is deemed mailto:Accounts.payable@msutexas.edu

OGC Form 2020-003-1, Effective 2024-05-09 IT Terms 03.05.26 Page 4 of 7 a “school official”, as these terms are defined in FERPA, Contractor represents, warrants, and agrees it will: (1) hold

FERPA Records in strict confidence and will not use or disclose FERPA Records except as (a) permitted or required by this Contract, (b) required by law, or (c) otherwise authorized by University in writing; (2) safeguard FERPA

Records according to commercially reasonable administrative, physical, and technical standards that are no less rigorous than the standards by which Contractor protects its own confidential information; and (3) continually monitor its operations and take any action necessary to assure that FERPA Records are safeguarded in accordance with the terms of this Contract. At University’s request, Contractor agrees to provide University with a written summary of procedures Contractor uses to safeguard FERPA Records. Contractor agrees to include same provision in subcontracts and affiliate agreements where such parties may have access to or create FERPA Records.

Contractor will indemnify and hold harmless University from and against all claims, actions, and proceedings resulting from Contractor’s or its subcontractor’s or affiliate’s breach of any obligations under this paragraph.

4.7 HIPAA. When applicable, it is the parties’ intent to comply with all provisions of the Health Insurance Portability and Accountability Act of 1996, now codified at Title XI, Part C of the Social Security Act and as it may be amended, and all regulations promulgated thereunder (“HIPAA”), as may change from time to time. Contractor shall not, and shall require that its employees and agents shall not, disclose to any third party, except where permitted or required by law or where such disclosure is expressly approved by University in writing, any individually identifiable patient or medical record information regarding University patients, and the Contractor shall comply, and shall ensure that each of its employees and agents providing services under this Contract complies, with all federal and state laws and regulations, and all HIPAA rules, regulations and policies of University regarding the confidentiality of such information. If required, Contractor agrees to execute University’s business associate agreement.

4.8 Access to Documents; Audits. Contractor shall maintain and allow University to access records generated pursuant to this Contract for at least two (2) years after submission of the last accounting report date on which services were rendered, or until final resolution of any proceeding arising out of this Contract, whichever is later. Contractor understands acceptance of funds under this Contract constitutes acceptance of the authority of the Texas State

Auditor's Office (and any successor), TTUS, and University (collectively, “Auditor”) to conduct an audit or investigation in connection with those funds pursuant to Texas Education Code § 51.9335(c). Contractor agrees to cooperate with Auditor in the conduct of the audit or investigation, including without limitation providing requested records. University has the right, at University’s cost, to audit Contractor’s financial records pertaining to the

Contract for the preceding twelve (12) month period either using University’s personnel or an independent third party. University will complete such audit at Contractor’s office, on reasonable advance notice, and on dates and times mutually agreed to by the parties. If the audit reveals Contractor owes University money, Contractor will pay the amount due within thirty (30) days of the date University notifies Contractor of the audit results. If the audit reveals University owes Contractor money, University will pay Contractor within thirty (30) days of the date the audit is complete.

4.9 Return or Destruction of Data. Upon expiration or termination of this Contract, and at University’s discretion, all

University data will be (a) returned to University (and any copies remaining with Contractor destroyed with confirmation of destruction provided to University), or (b) destroyed with written confirmation of destruction provided to University. University data includes all University information, database, confidential information, backup copies, and copies stored on external/third party-hosted storage.

Article 5

Required IT Terms

5.1 Accessibility. Contractor will comply with all federal and state accessibility requirements, including without limitation Section 508 of the Rehabilitation Act of 1973 and technical standards contained in 1 Texas

Administrative Code §§ 206 and 213. Contractor shall complete, maintain, or provide Voluntary Product

Accessibility Templates (“VPATs”) attesting to any electronic and information resources’ (“EIR”) accessible features and capabilities, or provide a similarly formatted document attesting to the EIRs’ accessible features and capabilities. University reserves the right to perform testing on Contractor's deliverables to ensure accuracy of their

VPAT response regarding conformance with federal or state standards.

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5.2 Uptime. Contractor will use commercially reasonable efforts to make its solution available at least 99.99% of the time, except for scheduled maintenance (performed outside normal business hours to the extent possible), unscheduled maintenance required for repairs, and events beyond Contractor’s reasonable control.

5.3 System Access. Any access to University’s computer systems must be approved and coordinated through the

University’s Information Security Officer. No automated tools may be installed by Contractor without prior written authorization from the University’s Office of the Chief Information Officer (“CIO”).

5.4 Vulnerability Management. If any systems or applications are connected to the University network, they may be scanned for vulnerabilities on a weekly basis per University’s vulnerability management program. Contractor consents to timely vulnerability assessment and mitigation and shall be subject to other University IT policies.

5.5 Information Security. Contractor shall abide by and implement the controls specified in NIST Special Publications

800-53 Appendix F safeguards, including but not limited to: (1) firewalls, (2) vulnerability scanning, (3) anti-virus scanning software, (4) regular backups including off-site transfer to facilitate disaster recovery, (5) up-to-date installation of all current patches, (6) encrypting all communications containing personally identifiable information and, if required by University, (7) encryption in the Contractor’s database of all passwords and personally identifiable information such as Social Security Numbers and Driver’s License numbers.

5.6 Monitoring. Contractor personnel shall regularly monitor server security logs and firewall event logs for potential breaches of security. Contractor will audit the security measures on all servers and the network equipment no less than monthly and take appropriate measures to maintain the integrity and security of those systems.

5.7 Username and Password Security. If the product(s) provided by Contractor, at University’s discretion, require integration with any University enterprise system (i.e., SSO), the Contractor shall coordinate with the University

CIO in implementing such integration. When authenticating University users, Contractor may be required to integrate with University’s authentication system using a method approved by University. Under certain mutually agreed-upon circumstances, Contractor may issue and manage usernames and passwords for University users. Passwords must use suitable hashing algorithms with salts applied and be at least as strong as the standard used by University.

5.8 Breach Notification. Contractor and University share responsibility for being alert for breaches of security.

Contractor shall notify University immediately of each instance of an actual or suspected (i) unauthorized access to or use of University data that could result in substantial harm or inconvenience to University or (ii) unauthorized disclosure, misuse, alteration, destruction, or other compromise of University information. Contractor shall cooperate with reasonable requests by University in enforcing its rights. Both parties shall cooperate in the investigation of such breach, sharing all evidence and findings.

5.9 eCommerce. For eCommerce purchases, if a PCI SSC validated P2PE solution is available, it must be used unless an exception is granted by the University CIO.

5.10 Audit of Systems and Data. With advance notice and coordination, University reserves the right to conduct a security assessment on any of Contractor’s systems that stores any University information. If University’s assessment finding is that the confidentiality, security, and integrity of University information is insecure, University will notify

Contractor in writing of the deficiencies identified in the assessment and Contractor will utilize prevailing industry recognized security controls and best practices to correct such deficiencies within thirty (30) days or within a mutually agreed-upon timeframe following such written notice. Contractor’s failure to correct the deficiencies within such timeframe is a material breach of this Contract. University will be responsible for all expenses associated with the aforementioned assessments.

Article 6

General Terms

6.1 Standard of Care. Contractor agrees that it possesses the requisite experience and skills to perform the Services under this Contract and it shall do so with the professional care, diligence, and skill that a reasonable professional performing the same task would use.

6.2 Contractor Insurance. If an Insurance Addendum is attached hereto, Contractor shall obtain and maintain the minimum insurance coverage set forth therein. If no such addendum is attached, Contractor shall obtain and maintain the minimum insurance coverages required by the Texas Tech University System Office of Risk Management, set

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6.3 Indemnification. Contractor agrees to indemnify and hold harmless University, the Texas Tech University System, and their respective affiliated enterprises, regents, attorneys, employees, representatives, and agents, against any and all liability, claims, suits, losses, costs, and legal fees caused by, arising out of, or resulting from any act or omission of Contractor in the performance or failure to perform within the Contract including but not limited to the negligent acts or omission of any subcontractor or any direct or indirect employees of the Contractor or subcontractors. The indemnification obligations set forth in the Contract shall survive termination or expiration of the Contract.

6.4 Force Majeure. “Event of Force Majeure” means an event beyond the control of Contractor or University which prevents or makes a party’s compliance with any of its obligations under this Contract illegal or impracticable, including but not limited to: act of God (including, without limitation, fire, explosion, earthquake, tornado, drought, and flood);

war, act or threats of terrorism, hostilities (whether or not war be declared), invasion, act of enemies, mobilization, requisition, or embargo; rebellion, insurrection, military or usurped power, or civil war; contamination or destruction from any nuclear, chemical, or biological event; riot, commotion, strikes, go slows, lock outs, or disorder; epidemic, pandemic, viral outbreak, or health crisis; or directive of governmental authority. No party will be considered in breach of this Contract to the extent that performance of their respective obligations is prevented or made illegal or impracticable by an Event of Force Majeure that arises during the term (or after execution of the Contract but prior to the beginning of the term). A party asserting an Event of Force Majeure hereunder (“Affected Party”) will give reasonable notice to the other party of an Event of Force Majeure upon it being foreseen by, or becoming known to, Affected Party. In the event of an Event of Force Majeure, Affected Party will endeavor to continue to perform its obligations under the Contract only so far as reasonably practicable

6.5 Acceptance of Services. Services to be provided under this Contract shall be to the satisfaction of University and in accordance with the specifications, terms, and conditions of the Contract and any resulting Purchase Order. University reserves the right to inspect the Services provided and to determine the quality, acceptability, and fitness of such

Services.

6.6 Warranties. With respect to Services to be provided under this Contract, Contractor warrants to University that (i)

Contractor shall provide the Services using personnel of requisite skill, experience, and qualifications and in a professional and workmanlike manner in accordance with general recognized industry standards for similar services and in accordance with any and all specifications of the Solicitation, Proposal, Quote, and/or Purchase Order, as applicable, an (ii) Contractor shall devote adequate resources to meet its obligations under the Contract. University may provide Contractor with notice of any defect or nonconformance on or before the time period set forth the

Contract. Contractor shall correct or reperform, at no cost to University, any work that does not conform to the requirements of the Contract.

6.7 Time of Performance. Contractor agrees to perform all obligations and provide Services on the schedules set by

University. University shall have no obligation to accept late performance by Contractor.

6.8 Additional Fees. Any reference to payment or reimbursement of additional, future, or undefined Contractor fees in the Contract (e.g., travel expenses) is agreed to only if pre-approved in writing by University prior to invoicing.

6.9 Limitations. THE PARTIES ARE AWARE THAT THERE MAY BE CONSTITUTIONAL AND

STATUTORY LIMITATIONS ON THE AUTHORITY OF UNIVERSITY TO ENTER INTO CERTAIN

TERMS AND CONDITIONS, INCLUDING TERMS AND CONDITIONS (IF ANY) RELATING TO LIENS

ON UNIVERSITY’S PROPERTY; DISCLAIMERS AND LIMITATIONS OF WARRANTIES;

DISCLAIMERS AND LIMITATIONS OF LIABILITY FOR DAMAGES; WAIVERS, DISCLAIMERS

AND LIMITATIONS OF UNIVERSITY’S 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; ANY

PROVISION THAT CREATES AN UNKNOWN OR UNFUNDED LIABILITY; AND

CONFIDENTIALITY (COLLECTIVELY, THE “LIMITATIONS”), AND TERMS AND CONDITIONS

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

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

http://www.texastech.edu/offices/risk-management/Vendor%20Agreement%20Guides_TTUS%20ORM.PDF http://www.texastech.edu/offices/risk-management/Vendor%20Agreement%20Guides_TTUS%20ORM.PDF

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6.10 Venue; Governing Law. Pursuant to Texas Education Code § 109.005, the County in which University’s main campus or primary office in the State of Texas is located shall be the sole proper place of venue for any legal action or proceeding arising out of this Contract or the enforcement of any provision in this Contract. This Contract and all of the rights and obligations of the parties and any claims arising from this Contract will be construed, interpreted, and governed by the laws of the State of Texas.

6.11 Entire Contract; Modifications; Amendments. The Contract supersedes all prior agreements, written or oral, between Contractor and University and will constitute the entire Contract and understanding between the parties with respect to the subject matter hereof. The Contract and each of its provisions will be binding upon the parties and may not be waived, modified, amended, or altered except in writing signed by representatives of University and Contractor with valid signature authority. All correspondence regarding amendments to the Contract must be forwarded to the

University’s contracting office for prior review and approval.

6.12 Foreign Adversaries. Pursuant to Executive Order No. GA-48, as amended and/or codified, Contractor certifies that it, and—if applicable—its holding companies or subsidiaries, are not:

a. Listed in Section 889 of the 2019 National Defense Authorization Act (“NDAA”); or

b. Listed in Section 1260H of the 2021 NDAA; or

c. Owned by the government of a country on the U.S. Department of Commerce's foreign adversaries list under 15 C.F.R. § 791.4; or

d. Controlled by any governing or regulatory body located in a country on the U.S. Department of

Commerce's foreign adversaries list under 15 C.F.R. § 791.4

6.13 Notices. Notices shall be effective under this Contract when they are reduced to writing and delivered by next day delivery service, with proof of delivery, or mailed certified or registered mail, return receipt requested, to the appropriate Party at the address stated below. Notice shall be deemed given on the date delivered or the date of attempted delivery if service is refused.

Contractor Midwestern State University

Department Attn: Contract Management

Address 3410 Taft Blvd

Address Wichita Falls, TX 76308

6.14 Execution. This Contract may be executed in any number of counterparts (including electronically scanned and emailed PDF copies, faxed copies, and any similarly signed and electronically transmitted copies), each of which shall be deemed to be an original and all of which shall constitute together one and the same agreement.

University: Contractor:

Signature Signature

Name Name

Title Title

Date Date