Exhibit B Sample Master Task Order Agreement.docx

Agreement number:

Solicitation number:

Agreement number:

SAMPLE MASTER AGREEMENT

This Master Agreement (“Master Agreement”) is entered into by and between company name at address (“Contractor”) and the Board of Trustees of the Colorado School of Mines, for and on behalf of the Colorado School of Mines, a public institution of higher education located at 1500 Illinois Street, Golden, Colorado 80401 (“Mines”). Contractor and Mines hereby agree to the following terms and conditions.

AGREEMENT

1. EFFECTIVE DATE AND NOTICE OF NONLIABILITY

This Master Agreement shall not be enforceable until it is approved and signed by both parties and is effective upon the date of final signature (the “Effective Date”). Mines shall not be liable to pay or reimburse Contractor for any performance hereunder including, but not limited to, costs or expenses incurred, or be bound by any provision hereof prior to the Effective Date.

2. RECITALS

A. Authority, Appropriation, and Approval Authority to enter into this Agreement exists in the law. Funds will be budgeted, appropriated and made available with each Task Order.

B. Consideration The parties acknowledge that the mutual promises and covenants contained herein and other good and valuable consideration are sufficient and adequate to support this Agreement.

C. Inclusion of Task Orders All references to Master Agreement are meant to include the terms of this Master Agreement and all subsequent and future Task Orders that fall under this Master Agreement.

D. Purpose To set up a zero-dollar Master Agreement for future Task Orders that will: Briefly describe the Agreement's purpose

3. TERM

Initial Term The parties’ respective performances under this Master Agreement shall commence on the later of either the Effective Date or start date. This Master Agreement shall terminate on end date unless sooner terminated or further extended as specified elsewhere herein.

Two Month Extension [Delete if not applicable] If the parties are negotiating a replacement Agreement (and not merely seeking a term extension) at or near the end of any individual term or renewal term, Mines, at its sole discretion may unilaterally extend the term of this Master Agreement for a period not to exceed two months. Such extension shall become effective upon written notice, to Contractor at least 5 days prior to the termination date, addressed and in form as provided in §14.The provisions of this Master Agreement shall remain in effect during the two month extension beginning on the date when such notice is given, including, but not limited to prices, rates, and delivery requirements. The two month extension shall immediately terminate when and if a replacement Agreement is approved and signed by Mines.

Mines’ Option to Extend Mines may require continued performance at the same rates and same terms specified in the Agreement. If Mines exercises this option, it shall provide written notice to Contractor at least 30 days prior to the end of the current contract term in a form substantially equivalent to Exhibit C (the “Option Letter”). If exercised, the provisions of the Option Letter shall become part of and be incorporated into this Master Agreement. The total duration of this Master Agreement, including the exercise of any options under this clause, shall not exceed ___ [Insert number of years not to exceed five years].

4. STATEMENT OF WORK

A. Scope The intent of this Master Agreement is to set forth the general and controlling contract terms and conditions between the parties. This Master Agreement defines how the parties will contract with each other in the future for the goods and services discussed in this Section. Individual Task Orders will be executed to document statements of work and budgets for specific projects related to these goods and services. Task Orders must be completed in accordance with this Master Agreement and the Additional Provisions set forth in Exhibit A.

Contractor shall provide Mines with the following on an as needed basis for the purpose of this Master Agreement and subsequent Task Orders:

[Include brief details of goods and services to be provided by Contractor under future task orders]

B. Completion Contractor shall complete the requirements defined herein and within all existing Task Orders issued under this Master Agreement and all other obligations as described herein on or before end date, unless otherwise stated in a Task Order that is effective before such date. Mines shall not be liable to compensate Contractor for any work performed prior to the Effective Date or after the termination of this Master Agreement.

C. Goods and Services Contractor shall procure goods and services necessary to complete the requirements of this Master Agreement and all Task Orders. Mines will not be responsible for payment of additional funds beyond the maximum amount payable under each Task Order.

D. Employees All persons employed by Contractor or subcontractors to perform work under this Master Agreement shall be Contractor’s or subcontractors’ employee(s) for all purposes hereunder and shall not be employees of Mines for any purpose as a result of this Master Agreement.

5. PAYMENTS TO CONTRACTOR

The contract price for the Agreement Term, through end date, is $0.00, for purchased services. Budgets are to be included in Task Orders.

A. Maximum Amount The maximum amount payable under this Master Agreement to Contractor by the Mines is $0.00. Payments to Contractor are limited to the unpaid obligated balance of any outstanding Task Order. There is no guarantee of work under this Master Agreement. Each Task Order will list the amount for the services provided and the maximum amount payable under each Task Order.

B. Payment

i. Advance, Interim and Final Payments Any advance payment allowed under this Master Agreement or under any Task Order shall comply with Colorado School of Mines Financial Policies and be made in accordance with the provisions of this Master Agreement or such Exhibit. Contractor shall initiate any payment requests by submitting invoices to Mines in the form and manner set forth and approved by Mines.

ii. Interest Mines shall fully pay each invoice within 45 days of receipt thereof if the amount invoiced represents performance by Contractor previously accepted by Mines. Uncontested amounts not paid by Mines within 45 days shall bear interest on the unpaid balance beginning on the 46th day at a rate not to exceed one (1%) percent per month until paid in full; provided, however, that interest shall not accrue on unpaid amounts that are subject to a good faith dispute. Contractor shall invoice Mines separately for accrued interest on delinquent amounts. The billing shall reference the delinquent payment, the number of day’s interest to be paid and the interest rate.

iii. Payment Disputes If Contractor disputes any calculation, determination or amount of any payment, Contractor shall notify Mines in writing of its dispute within 30 days following the earlier to occur: 1) Contractor’s receipt of the payment; or, 2) notification of the determination or calculation of the payment by Mines. Mines will review the information presented by Contractor and may make changes to its determination based on this review. The calculation, determination or payment amount that results from Mines’ review shall not be subject to additional dispute under this subsection. No payment subject to a dispute under this subsection shall be due until after Mines has concluded its review, and Mines shall not pay any interest on any amount during the period it is subject to dispute under this subsection.

iv. Available Funds-Contingency-Termination Financial obligations of Mines payable after the current fiscal year are contingent upon funds for that purpose being appropriated, budgeted and otherwise made available. If federal funds are used to fund this Master Agreement, in whole or in part, Mines’ performance hereunder is contingent upon the continuing availability of such funds. Payments pursuant to this Master Agreement shall be made only from available funds encumbered for this Master Agreement and Mines’ liability for such payments shall be limited to the amount remaining of such encumbered funds. If Mines funds are not appropriated, or otherwise become unavailable to fund this Master Agreement, Mines may terminate this Master Agreement immediately, in whole or in part, without further liability in accordance with the provisions hereof.

v. Erroneous Payments At Mines’ sole discretion, payments made to Contractor in error for any reason, including, but not limited to overpayments or improper payments, and unexpended or excess funds received by Contractor, may be recovered from Contractor by deduction from subsequent payments under this Master Agreement or other contracts, grants or agreements between Mines and Contractor or by other appropriate methods and collected as a debt due to Mines. Such funds shall not be paid to any person or entity other than Mines.

vi. Use of Funds Agreement funds shall be used only for eligible costs identified herein and/or in the budget.

6. REPORTING - NOTIFICATION

Reports, Evaluations, and Reviews required under this contract section shall be in accordance with the procedures of and in such form as prescribed by Mines and in accordance with the Statement of Work. If Federal Funds are used for any portion of this Master Agreement, Federal Fund Reporting requirements shall be further detailed in Addendum One to this Master Agreement and incorporated herein by reference. If no Federal Funds are used, there shall be no Addenda to this Master Agreement, other than those Exhibits referred to and incorporated herein.

A. Litigation Reporting Within 10 days after being served with any pleading in a legal action filed with a court or administrative agency, related to this Master Agreement or which may affect Contractor’s ability to perform its obligations hereunder, Contractor shall notify Mines of such action and deliver copies of such pleadings to Mines’ Legal Department.

B. Subcontracts Copies of any and all subcontracts entered into by Contractor to perform its obligations hereunder shall be submitted to Mines or its principal representative upon request by Mines. Any and all subcontracts entered into by Contractor related to its performance hereunder shall comply with all applicable federal and state laws and shall provide that such subcontracts be governed by the laws of the State of Colorado.

7. CONTRACTOR RECORDS

A. Maintenance Contractor shall make, keep, maintain, and allow inspection and monitoring by Mines of a complete file of all records, documents, communications, notes and other written materials, electronic media files, and communications, pertaining in any manner to the Work or the delivery of Services or Goods hereunder. Contractor shall maintain such records until the last to occur of: (i) a period of three years after the date this Master Agreement expires or is sooner terminated, or (ii) final payment is made hereunder, or (iii) the resolution of any pending Agreement matters, or (iv) if an audit is occurring, or Contractor has received notice that an audit is pending, until such audit has been completed and its findings have been resolved (collectively, the “Record Retention Period”).

B. Inspection Contractor shall permit Mines, the federal government and any other duly authorized agent of a governmental agency to audit, inspect, examine, excerpt, copy and/or transcribe Contractor's records related to this Master Agreement during the Record Retention Period for a period of three years following termination of this Master Agreement or final payment hereunder, whichever is later, to assure compliance with the terms hereof or to evaluate performance hereunder. Mines reserves the right to inspect the Work at all reasonable times and places during the term of this Master Agreement, including any extensions or renewals. If the Work fails to conform to the requirements of this Master Agreement, Mines may require Contractor promptly to bring the Work into conformity with Agreement requirements, at Contractor’s sole expense. If the Work cannot be brought into conformance by re-performance or other corrective measures, Mines may require Contractor to take necessary action to ensure that future performance conforms to Agreement requirements and exercise the remedies available under this Master Agreement, at law or in equity, in lieu of or in conjunction with such corrective measures.

C. Monitoring Contractor shall permit Mines, the federal government, and governmental agencies having jurisdiction, in their sole discretion, to monitor all activities conducted by Contractor pursuant to the terms of this Master Agreement using any reasonable procedure, including, but not limited to: internal evaluation procedures, examination of program data, special analyses, on-site checking, formal audit examinations, or any other procedures. All monitoring controlled by Mines shall be performed in a manner that shall not unduly interfere with Contractor’s performance hereunder.

D. Final Audit Report If an audit is performed on Contractor’s records for any fiscal year covering a portion of the term of this Master Agreement, Contractor shall submit a copy of the final audit report to Mines or its principal representative at the address specified herein.

8. CONFIDENTIAL INFORMATION-MINES RECORDS

Contractor shall comply with the provisions of this section if it becomes privy to confidential information in connection with its performance hereunder. Confidential information includes, but is not necessarily limited to, any Mines records, personnel records, and information concerning individuals. Such information shall not include information required to be disclosed pursuant to the Colorado Open Records Act, CRS §24-72-101, et seq.

A. Confidentiality Contractor, and Contractors employees and subcontractors shall keep all Mines records and information confidential at all times and comply with all laws and regulations concerning confidentiality of information. Any request or demand by a third party for Mines records and information in the possession of Contractor shall be immediately forwarded to Mines’ principal representative.

B. Notification Contractor shall notify its agent, employees, subcontractors and assigns who may come into contact with Mines records and confidential information that each is subject to the confidentiality requirements set forth herein, and shall provide each with a written explanation of such requirements before permitting them to access such records and information.

C. Use, Security, and Retention Confidential information of any kind shall not be distributed or sold to any third party or used by Contractor or its agents in any way, except as authorized by this Master Agreement or approved in writing by Mines. Contractor shall provide and maintain a secure environment that ensures confidentiality of all Mines records and other confidential information wherever located. Confidential information shall not be retained in any files or otherwise by Contractor or its agents, except as permitted in this Master Agreement or approved in writing by Mines.

D. Disclosure-Liability Disclosure of Mines records or other confidential information by Contractor for any reason may be cause for legal action by third parties against Contractor, Mines or their respective agents. Contractor shall indemnify, save, and hold harmless Mines, its employees and agents, against any and all claims, damages, liability and court awards including costs, expenses, and attorney fees and related costs, incurred as a result of any act or omission by Contractor, or its employees, agents, Subcontractors, or assignees pursuant to this §8.

E. Family Education Rights and Privacy Act If, and only if, in the course of providing services during the term of the Agreement, Contractor is to receive or have access to student education records, then such records will be subject to the Family Education Rights and Privacy Act (FERPA), 20 U.S.C. 1232g, et seq. and the regulations promulgated thereunder. Such information is considered confidential. If and to the extent Contractor has access to or receives education records under this Master Agreement, it is deemed a “school official,” as defined under FERPA. Contractor agrees that it shall not use education records for any purpose other than in the performance of this Master Agreement. Except as required or permitted by law, Contractor shall not disclose or share education records with any third party unless permitted by the terms of the Agreement.

9. CONFLICTS OF INTEREST

Contractor shall not engage in any business or personal activities or practices or maintain any relationships which conflict in any way with the full performance of Contractor’s obligations hereunder. Contractor acknowledges that with respect to this Master Agreement, even the appearance of a conflict of interest is harmful to Mines’ interests. Absent Mines’ prior written approval, Contractor shall refrain from any practices, activities or relationships that reasonably appear to be in conflict with the full performance of Contractor’s obligations to Mines hereunder. If a conflict or appearance exists, or if Contractor is uncertain whether a conflict or the appearance of a conflict of interest exists, Contractor shall submit to Mines a disclosure statement setting forth the relevant details for Mines’ consideration. Failure to promptly submit a disclosure statement or to follow Mines’ direction in regard to the apparent conflict constitutes a breach of this Master Agreement.

10. REPRESENTATIONS AND WARRANTIES

Contractor makes the following specific representations and warranties, each of which was relied on by Mines in entering into this Master Agreement.

A. Standard and Manner of Performance Contractor shall perform its obligations hereunder in accordance with the highest standards of care, skill and diligence in Contractor’s industry, trade, or profession and in the sequence and manner set forth in this Master Agreement.

B. Legal Authority – Contractor Signatory Contractor warrants that it possesses the legal authority to enter into this Master Agreement and that it has taken all actions required by its procedures, and by-laws, and/or applicable laws to exercise that authority, and to lawfully authorize its undersigned signatory to execute this Master Agreement, or any part thereof, and to bind Contractor to its terms. If requested by Mines, Contractor shall provide Mines with proof of Contractor’s authority to enter into this Master Agreement within 15 days of receiving such request.

C. Licenses, Permits, Etc.

Contractor represents and warrants that as of the Effective Date it has, and that at all times during the term hereof it shall have and maintain, at its sole expense, all licenses, certifications, approvals, insurance, permits, and other authorizations required by law to perform its obligations hereunder. Contractor warrants that it shall maintain all necessary licenses, certifications, approvals, insurance, permits, and other authorizations required to properly perform this Master Agreement, without reimbursement by Mines or other adjustment in contract funds. Additionally, all employees, agents, and subcontractors of Contractor performing services under this Master Agreement shall hold all required licenses or certifications, if any, to perform their responsibilities. If Contractor is a foreign corporation, limited liability company, partnership or other foreign entity transacting business in the State of Colorado, Contractor further warrants that it currently has obtained and shall maintain any applicable certificate of authority to transact business in the State of Colorado and has designated a registered agent in Colorado to accept service of process. Such certificate of authority and designation of a registered agent for a foreign entity shall be disclosed immediately to Mines upon request. Any revocation, withdrawal or non-renewal of licenses, certifications, approvals, insurance, permits or any such similar requirements necessary for Contractor to properly perform the terms of this Master Agreement is a material breach by Contractor and constitutes grounds for termination of this Master Agreement.

11. INSURANCE

Contractor shall obtain and maintain, and ensure that each Subcontractor shall obtain and maintain, insurance as specified in this section at all times during the term of this Agreement. All insurance policies required by this Agreement shall be issued by insurance companies as approved by the State.

0. Workers’ Compensation Workers’ compensation insurance as required by state statute, and employers’ liability insurance covering all Contractor or Subcontractor employees acting within the course and scope of their employment.

0. General Liability Commercial general liability insurance covering premises operations, fire damage, independent contractors, products and completed operations, blanket contractual liability, personal injury, and advertising liability with minimum limits as follows:

1. $1,000,000 each occurrence;

1. $1,000,000 general aggregate;

1. $1,000,000 products and completed operations aggregate; and

1. $50,000 any one fire.

0. Automobile Liability Automobile liability insurance covering any auto (including owned, hired and non-owned autos) with a minimum limit of $1,000,000 each accident combined single limit.

0. Protected Information Liability insurance covering all loss of Mines Confidential Information, such as PII, PHI, PCI, Tax Information, and CJI, and claims based on alleged violations of privacy rights through improper use or disclosure of protected information with minimum limits as follows:

3. $1,000,000 each occurrence; and

3. $2,000,000 general aggregate.

0. Professional Liability Insurance Professional liability insurance covering any damages caused by an error, omission or any negligent act with minimum limits as follows:

4. $1,000,000 each occurrence; and

4. $1,000,000 general aggregate.

0. Crime Insurance Crime insurance including employee dishonesty coverage with minimum limits as follows:

5. $1,000,000 each occurrence; and

5. $1,000,000 general aggregate.

0. Additional Insured The Board of Trustees of the Colorado School of Mines for and on behalf of the Colorado School Mines shall be named as additional insured on all commercial general liability policies (leases and construction contracts require additional insured coverage for completed operations) required of Contractor and Subcontractors.

0. Primacy of Coverage Coverage required of Contractor and each Subcontractor shall be primary over any insurance or self-insurance program carried by Contractor or Mines.

0. Cancellation The above insurance policies shall include provisions preventing cancellation or non-renewal, except for cancellation based on non-payment of premiums, without at least 30 days prior notice to Contractor and Contractor shall forward such notice to Mines in accordance with §14 within seven days of Contractor’s receipt of such notice.

0. Subrogation Waiver All insurance policies secured or maintained by Contractor or its Subcontractors in relation to this Agreement shall include clauses stating that each carrier shall waive all rights of recovery under subrogation or otherwise against Contractor or Mines, its agencies, institutions, organizations, officers, agents, employees, and volunteers.

0. Public Entities If Contractor is a "public entity" within the meaning of the Colorado Governmental Immunity Act, §24-10-101, et seq., C.R.S. (the “GIA”), Contractor shall maintain, in lieu of the liability insurance requirements stated above, at all times during the term of this Agreement such liability insurance, by commercial policy or self-insurance, as is necessary to meet its liabilities under the GIA. If a Subcontractor is a public entity within the meaning of the GIA, Contractor shall ensure that the Subcontractor maintain at all times during the terms of this Agreement, in lieu of the liability insurance requirements stated above, such liability insurance, by commercial policy or self-insurance, as is necessary to meet the Subcontractor’s obligations under the GIA.

0. Certificates Contractor shall provide to Mines certificates evidencing Contractor’s insurance coverage required in this Agreement within seven Business Days following the Effective Date. Contractor shall provide to Mines certificates evidencing Subcontractor insurance coverage required under this Agreement within seven Business Days following the Effective Date, except that, if Contractor’s subcontract is not in effect as of the Effective Date, Contractor shall provide to Mines certificates showing Subcontractor insurance coverage required under this Agreement within seven Business Days following Contractor’s execution of the subcontract. No later than 15 days before the expiration date of Contractor’s or any Subcontractor’s coverage, Contractor shall deliver to Mines certificates of insurance evidencing renewals of coverage. At any other time during the term of this Agreement, upon request by Mines, Contractor shall, within seven Business Days following the request by Mines, supply to Mines evidence satisfactory to Mines of compliance with the provisions of this section.

12. BREACH

A. Defined In addition to any breaches specified in other sections of this Master Agreement, the failure of either Party to perform any of its material obligations hereunder, in whole or in part or in a timely or satisfactory manner, constitutes a breach. The institution of proceedings under any bankruptcy, insolvency, reorganization or similar law, by or against Contractor, or the appointment of a receiver or similar officer for Contractor or any of its property, which is not vacated or fully stayed within 20 days after the institution or occurrence thereof, shall also constitute a breach.

1. Notice of Creditor Bankruptcy or Receiver Contractor shall notify Mines within 5 days after Contractor becomes aware of any proceeding in bankruptcy or of an action where a receiver of Contractor’s business or assets has been requested. Contractor shall promptly notify Mines of any pending legal action against Contractor which may impede Contractor’s ability to satisfy this Master Agreement.

1. Notice and Cure Period In the event of a breach, notice of such shall be given in writing by the aggrieved Party to the other Party in the manner provided in §14. If such breach is not cured within 30 days of receipt of written notice, or if a cure cannot be completed within 30 days, or if cure of the breach has not begun within 30 days and pursued with due diligence, Mines may exercise any of the remedies set forth in §13. Notwithstanding anything to the contrary herein, Mines, in its sole discretion, need not provide advance notice or a cure period and may immediately terminate this Master Agreement in whole or in part if reasonably necessary to preserve public safety or to prevent immediate public crisis.

13. REMEDIES

If Contractor is in breach under any provision of this Master Agreement, Mines shall have all of the remedies listed in this §13 in addition to all other remedies set forth by law and in other sections of this Master Agreement following the notice and cure period set forth in §12(C). Mines may exercise any or all of the remedies available to it, in its sole discretion, concurrently or consecutively.

A. Termination for Cause and/or Breach Mines may terminate this entire Agreement or any part of this Master Agreement. Exercise by Mines of this right shall not be a breach of its obligations hereunder. Contractor shall continue performance of this Master Agreement to the extent not terminated, if any.

i. Obligations and Rights To the extent specified in any termination notice, Contractor shall not incur further obligations or render further performance hereunder past the effective date of such notice, and shall terminate outstanding orders and subcontracts with third parties. However, Contractor shall complete and deliver to Mines all Work, Services and Goods, not cancelled by the termination notice and may incur obligations as are necessary to do so within this Master Agreement’s terms. At the sole discretion of Mines, Contractor shall assign to Mines all of Contractor’s right, title, and interest under such terminated orders or subcontracts. Upon termination, Contractor shall take timely, reasonable and necessary action to protect and preserve property in the possession of Contractor in which Mines has an interest. All materials owned by Mines in the possession of Contractor shall be immediately returned to Mines. All Work Product, at the option of Mines, shall be delivered by Contractor to Mines and shall become Mines’ property. Work Product means the tangible and intangible results of the Work, whether finished or unfinished, including drafts. Work Product includes, but is not limited to, documents, text, software (including score code), research reports, proposals, specifications, plans, notes, studies, data, images, photographs, negatives, pictures, drawings, designs, models, surveys, maps, materials, ideas, concepts, know-how, and any other results of Work. Work Product does not include any material that was developed prior to the Effective Date that is used, without modification, in that performance of the Work.

ii. Payments Mines shall reimburse Contractor only for accepted performance up to the date of termination. If, after termination by Mines, it is determined that Contractor was not in breach or that Contractor's action or inaction was excusable, such termination shall be treated as a termination in the public interest and the rights and obligations of the parties shall be the same as if this Master Agreement had been terminated in the public interest, as described herein.

iii. Damages and Withholding Notwithstanding any other remedial action by Mines, Contractor shall remain liable to Mines for any damages sustained by Mines by virtue of any breach under this Master Agreement by Contractor or by Contractors’ acts of negligence, and Mines may withhold any payment to Contractor for the purpose of mitigating Mines’ damages, until such time as the exact amount of damages due to Mines from Contractor is determined. Mines may withhold any amount that may be due Contractor as Mines deems necessary to protect Mines against loss, including loss as a result of Contractors’ negligence, outstanding liens, claims of former lien holders, or for the excess costs incurred in procuring similar goods or services. Contractor shall be liable for excess costs incurred by Mines in procuring from third parties replacement Work, Services or substitute Goods as cover.

B. Early Termination in the Public Interest Mines is entering into this Master Agreement for the purpose of carrying out the mission of Mines. If this Master Agreement ceases to further the mission of Mines, Mines, in its sole discretion, may terminate this Master Agreement in whole or in part. Exercise by Mines of this right shall not constitute a breach of Mines’ obligations hereunder. This subsection shall not apply to a termination of this Master Agreement by Mines for cause or breach by Contractor, which shall be governed by §12(A) or as otherwise specifically provided for herein.

3. Method and Content Mines shall notify Contractor of such termination in accordance with §13. The notice shall specify the effective date of the termination and whether it affects all or a portion of this Master Agreement.

3. Obligations and Rights Upon receipt of a termination notice, Contractor shall be subject to and comply with the same obligations and rights set forth in §13(A)(i).

3. Payments If this Master Agreement is terminated by Mines pursuant to this §13(B), Contractor shall be paid an amount which bears the same ratio to the total reimbursement under this Master Agreement as Contractor’s obligations that were satisfactorily performed bear to the total obligations set forth in this Master Agreement, less payments previously made. Additionally, if this Master Agreement is less than 60% completed, Mines may reimburse Contractor for a portion of actual out-of-pocket expenses (not otherwise reimbursed under this Master Agreement) incurred by Contractor which are directly attributable to the uncompleted portion of Contractor’s obligations hereunder; provided that the sum of any and all reimbursement shall not exceed the maximum amount payable to Contractor hereunder.

C. Remedies Not Involving Termination Mines, in its sole discretion, may exercise one or more of the following remedies in addition to other remedies available to it:

3. Suspend Performance Suspend Contractor’s performance with respect to all or any portion of this Master Agreement pending necessary corrective action as specified by Mines without entitling Contractor to an adjustment in price/cost or performance schedule. Contractor shall promptly cease performance and incurring costs in accordance with Mines’ directive and Mines shall not be liable for costs incurred by Contractor after the suspension of performance under this provision.

3. Withhold Payment Withhold payment to Contractor until corrections in Contractor’s performance are satisfactorily made and completed.

3. Deny Payment Deny payment for those obligations not performed, that due to Contractor’s actions or inactions, cannot be performed or, if performed, would be of no value to Mines; provided, that any denial of payment shall be reasonably related to the value to Mines of the obligations not performed.

3. Removal Notwithstanding any other provision herein, Mines may demand immediate removal of any of Contractor’s employees, agents, or Subcontractors whom Mines deems incompetent, careless, insubordinate, unsuitable, or otherwise unacceptable, or whose continued relation to this Master Agreement is deemed to be contrary to the public interest or Mines’ best interest.

3. Intellectual Property If Contractor infringes on a patent, copyright, trademark, trade secret or other intellectual property right while performing its obligations under this Master Agreement, Contractor shall, at Mines’ option (a) obtain for Mines or Contractor the right to use such products and services; (b) replace any Goods, Services, or other product involved with non-infringing products or modify them so that they become non-infringing; or, (c) if neither of the foregoing alternatives are reasonably available, remove any infringing Goods, Services, or products and refund the price paid therefore to Mines.

14. NOTICES and REPRESENTATIVES A. Notices Each individual identified below is the principal representative of the designating Party for contractual notices. All notices required to be given hereunder shall be hand delivered with receipt required, sent by certified or registered mail to such Party’s principal representative at the address set forth below. In addition to, but not in lieu of a hard-copy notice, notice also may be sent by e-mail to the e-mail addresses, if any, set forth below. Either Party may from time to time designate by written notice substitute addresses or persons to whom such notices shall be sent. Unless otherwise provided herein, all notices shall be effective upon receipt.

Mines:

Colorado School of Mines

Purchasing Department

1500 Illinois Street

Golden, CO 80401

Email: procurement@mines.edu

Contractor:

company_name

Department Name

Address 1

City, State Zip

Email:

B. Representative For the purpose of this Master Agreement, the individuals identified below are hereby designated representatives of the respective parties. With respect to the representative of Mines, such individual shall have the authority to inspect and reject services, approve invoices for payment, and act otherwise for Mines, except with respect to the execution of formal Agreement amendments to or termination of this Master Agreement. Either party may from time to time designate in writing new or substitute representatives Mines:

Colorado School of Mines

1500 Illinois Street

Golden, CO 80401

Email:

Phone:

company_name legal_street_address, city, state

Email:

Phone:

15. RIGHTS IN DATA, DOCUMENTS, AND COMPUTER SOFTWARE

Any, software, research, reports, studies, data, photographs, negatives or other documents, drawings, models, materials, or Work Product, including copyrights to Work Product, of any type, including drafts, prepared by Contractor in the performance of its obligations under this Master Agreement shall be the exclusive property of Mines and, all Work Product shall be delivered to Mines by Contractor upon completion or termination hereof. Mines’ exclusive rights in such Work Product shall include, but not be limited to, the right to copy, publish, display, transfer, and prepare derivative works without obligation of royalty or future payment for such works unless otherwise defined herein. Contractor shall not use, willingly allow, cause or permit such Work Product to be used for any purpose other than the performance of Contractor’s obligations hereunder without the prior written consent of Mines.

Any user information or any other data Mines sends to the vendor or enters into an application/system is owned by Mines (“Mines Data”). All rights, title and interest in the Mines Data remains with Mines. Mines agrees to grant Contractor a non-transferable, non-exclusive right and license (with limited right to sub-license to its related entities and subcontractors) to use the Mines Data, solely for the purposes of performing the scope contemplated by this Master Agreement. The Contractor will not share or sell any email or contract information, nor use such information for marketing.

16. GOVERNMENTAL IMMUNITY

Liability for claims for injuries to persons or property arising from the negligence of the State of Colorado, its departments, institutions, agencies, boards, officials, and employees is controlled and limited by the provisions of the Governmental Immunity Act §24-10-101, et seq. and the risk management statutes, CRS §24-30-1501, et seq., as amended.

17. GENERAL PROVISIONS

A. Assignment and Subcontracts Contractor’s rights and obligations hereunder are personal and may not be transferred, assigned or subcontracted without the prior, written consent of Mines. Any attempt at assignment, transfer, subcontracting without such consent shall be void. All assignments, subcontracts, or Subcontractors approved by Contractor or Mines are subject to all of the provisions hereof. Contractor shall be solely responsible for all aspects of subcontracting arrangements and performance.

B. Binding Effect Except as otherwise provided herein, all provisions herein contained, including the benefits and burdens, shall extend to and be binding upon the parties’ respective heirs, legal representatives, successors, and assigns.

C. Captions The captions and headings in this Master Agreement are for convenience of reference only, and shall not be used to interpret, define, or limit its provisions.

D. Counterparts and Electronic Signatures This Master Agreement may be executed by original signature or electronic signature in multiple identical original counterparts, all of which shall constitute one agreement.

E. Entire Understanding This Master Agreement represents the complete integration of all understandings between the parties and all prior representations and understandings, oral or written, are merged herein. Prior or contemporaneous additions, deletions, or other changes hereto shall not have any force or effect whatsoever, unless embodied herein.

F. Indemnification Contractor shall indemnify, save, and hold harmless Mines, its employees and agents, against any and all claims, damages, liability and court awards including costs, expenses, and attorney fees and related costs, incurred as a result of any act or omission by Contractor, or its employees, agents, Subcontractors, or assignees pursuant to the terms of this Master Agreement; however, the provisions hereof shall not be construed or interpreted as a waiver, express or implied, of any of the immunities, rights, benefits, protection, or other provisions, of the Colorado Governmental Immunity Act, CRS §24-10-101 et seq., or the Federal Tort Claims Act, 28 U.S.C. 2671 et seq., as applicable, as now or hereafter amended.

G. Jurisdiction and Venue All suits or actions related to this Master Agreement shall be filed and proceedings held in the State of Colorado and exclusive venue shall be in the City of Golden, in Jefferson County, Colorado.

Except as specifically provided in this Master Agreement, modifications of this Master Agreement shall not be effective unless agreed to in writing by the parties in an amendment to this Master Agreement, properly executed and approved in accordance with applicable Colorado State law and the Colorado School of Mines Financial Polices. Modifications permitted under this Master Agreement, other than contract amendments, shall conform to the policies of the Mines and include, but not be limited to, Option Letters, Task Orders and Consent to Assignments.

ii. By Operation of Law This Master Agreement is subject to such modifications as may be required by changes in Federal or Colorado State law, or their implementing regulations. Any such required modification automatically shall be incorporated into and be part of this Master Agreement on the effective date of such change, as if fully set forth herein.

I. Order of Precedence – Priority of Interpretation The provisions of this Master Agreement shall govern the relationship of Mines and the Contractor. In the event of conflicts or inconsistencies between this Master Agreement and its exhibits or attachments, such conflicts or inconsistencies shall be resolved by reference to the documents in the following order of priority: first, the Special Provisions incorporated within this Master Agreement; second, the Additional Provisions of this Master Agreement, attached hereto as Exhibit A and incorporated herein by this reference; the terms and provisions of this Master Agreement, other than the Special Provisions; and third, any Task Order issued under this Master Agreement, a sample of which is attached hereto as Exhibit B. Any Addenda or additional exhibit to this Master Agreement shall be stated below and be interpreted and resolved in the following order of priority, with Addenda taking precedence over all exhibits:

3. Colorado School of Mines Special Provisions, as provided for in §18 below;

3. The provisions of the main body of this Master Agreement;

iii. Any Addenda to this Master Agreement;

iv. Exhibit A;

v. Exhibit B; and,

vi. Exhibit C. [Add additional items/exhibits as that are included in this Master Agreement here] J. Severability Provided this Master Agreement can be executed and performance of the obligations of the parties accomplished within its intent, the provisions hereof are severable and any provision that is declared invalid or becomes inoperable for any reason shall not affect the validity of any other provision hereof, provided that the parties can continue to perform their obligations under this Master Agreement in accordance with its intent.

K. Survival of Certain Agreement Terms Notwithstanding anything herein to the contrary, provisions of this Master Agreement requiring continued performance, compliance, or effect after termination hereof, shall survive such termination and shall be enforceable by Mines if Contractor fails to perform or comply as required.

L. Taxes Mines is exempt from all federal excise taxes under IRC Chapter 32 (No. 84-730123K) and from all State and local government sales and use taxes under CRS §§39-26-101 and 201 et seq. Such exemptions apply when materials are purchased or services are rendered to benefit Mines; provided however, that certain political subdivisions (e.g., City of Denver) may require payment of sales or use taxes even though the product or service is provided to Mines. Contractor shall be solely liable for paying such taxes as Mines is prohibited from paying or reimbursing Contractor for such taxes.

M. Third Party Beneficiaries Enforcement of this Master Agreement and all rights and obligations hereunder are reserved solely to the parties. Any services or benefits which third parties receive as a result of this Master Agreement are incidental to the Agreement, and do not create any rights for such third parties.

N. Waiver Waiver of any breach under a term, provision, or requirement of this Master Agreement, or any right or remedy hereunder, whether explicitly or by lack of enforcement, shall not be construed or deemed as a waiver of any subsequent breach of such term, provision or requirement, or of any other term, provision, or requirement.

O. CORA Disclosure To the extent not prohibited by federal law, this Master Agreement and the performance measures and standards under CRS §24-103.5-101, if any, are subject to public release through the Colorado Open Records Act, CRS §24-72-101, et seq. Therefore, the company acknowledges that any Confidential Information may be subject to the legal requirements of CORA. Provided, however, that should the State receive a request for disclosure of Confidential Information pursuant to CORA, the State shall notify the Contractor within a reasonable period. The Contractor shall assume exclusive responsibility for defending its position as to the confidentiality of the requested information. Neither the State nor any of its agencies is or shall be obligated to assist in the company's defense. Further, the State agrees that disclosure of such Confidential Information shall only be made consistent with and to the extent allowable under law.

P. Force Majeure Neither the Contractor nor Mines shall be liable to the other for any delay in, or failure of performance of, any covenant or promise contained in this Master Agreement, nor shall any delay or failure constitute default or give rise to any liability for damages if, and only to the extent that, such delay or failure is caused by "force majeure". As used in this Master Agreement “force majeure” means acts of God; acts of the public enemy; acts of Mines and any governmental entity in its sovereign or contractual capacity; fires; floods; epidemics; quarantine restrictions; strikes or other labor disputes; freight embargoes; or unusually severe weather.

18. COLORADO SCHOOL OF MINES SPECIAL PROVISIONS

In the event of conflicts or inconsistencies between this Master Agreement and the Special Provisions, the Special Provisions shall control. The Special Provisions apply to all contracts except where noted in italics.

A. FUND AVAILABILITY. CRS §24-30-202(5.5). Financial obligations of the State payable after the current fiscal year are contingent upon funds for that purpose being appropriated, budgeted, and otherwise made available.

B. GOVERNMENTAL IMMUNITY. No term or condition of this Master Agreement shall be construed or interpreted as a waiver, express or implied, of any of the immunities, rights, benefits, protections, or other provisions, of the Colorado Governmental Immunity Act, CRS §24-10-101 et seq., or the Federal Tort Claims Act, 28 U.S.C. §§1346(b) and 2671 et seq., as applicable now or hereafter amended.

C. INDEPENDENT CONTRACTOR. Contractor shall perform its duties hereunder as an independent contractor and not as an employee. Neither Contractor nor any agent or employee of Contractor shall be deemed to be an agent or employee of the State. Contractor and its employees and agents are not entitled to unemployment insurance or workers compensation benefits through the State and the State shall not pay for or otherwise provide such coverage for Contractor or any of its agents or employees. Unemployment insurance benefits will be available to Contractor and its employees and agents only if such coverage is made available by Contractor or a third party. Contractor shall pay when due all applicable employment taxes and income taxes and local head taxes incurred pursuant to this Master Agreement. Contractor shall not have authorization, express or implied, to bind the State to any agreement, liability or understanding, except as expressly set forth herein. Contractor shall (a) provide and keep in force workers' compensation and unemployment compensation insurance in the amounts required by law, (b) provide proof thereof when requested by the State, and (c) be solely responsible for its acts and those of its employees and agents.

D. COMPLIANCE WITH LAW. Contractor shall strictly comply with all applicable federal and State laws, rules, and regulations in effect or hereafter established, including, without limitation, laws applicable to discrimination and unfair employment practices.

E. CHOICE OF LAW. Colorado law, and rules and regulations issued pursuant thereto, shall be applied in the interpretation, execution, and enforcement of this Master Agreement. Any provision included or incorporated herein by reference which conflicts with said laws, rules, and regulations shall be null and void. Any provision incorporated herein by reference which purports to negate this or any other Special Provision in whole or in part shall not be valid or enforceable or available in any action at law, whether by way of complaint, defense, or otherwise. Any provision rendered null and void by the operation of this provision shall not invalidate the remainder of this Master Agreement, to the extent capable of execution.

F. BINDING ARBITRATION PROHIBITED. The State of Colorado does not agree to binding arbitration by any extra-judicial body or person. Any provision to the contrary in this contact or incorporated herein by reference shall be null and void.

G. SOFTWARE PIRACY PROHIBITION. Governor's Executive Order D 002 00. State or other public funds payable under this Master Agreement shall…