Standard WSU Contract Terms
Advance Payments Prohibited
Amendments
Assignment
Attorneys' Fees
Data Security and Confidentiality
Dispute Resolution
Entire Agreement
Force Majeure
Funding Contingency
Governing Law
Hold Harmless
Independent Capacity
License to Use University Trademarks and Logos
Licensing
Non-Discrimination
Public Records Act Language
Records Maintenance
Rights In Data
Severability
Signatures
Successors and Assigns
Termination For Cause
Termination For Convenience
Vendor Insurance
Waiver
WSU Insurance/Tort Claims
Standard WSU Contract Terms
Advance Payments Prohibited : No payments in advance or in anticipation of service(s) or supplies to be provided under this Agreement shall be made by WSU.
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Amendments: This Agreement may be amended or modified only upon the mutual written consent of the parties.
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Assignment : The rights and obligations of the parties hereunder may not be assigned in whole or in part without the express prior written consent of the other party.
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Attorneys’ Fees : In the event of litigation or other action brought to enforce the terms of this Agreement, each party shall bear its own attorneys fees and costs.
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Data Security and Confidentiality:
a) Confidential Data Defined
Each party acknowledges that by reason of its relationship to the other party under this Agreement it may have access to certain data and information of the other party of a special and unique nature and value (“Confidential Data”). “Confidential Data” shall mean any data and/or information that is identified by either party as confidential (either orally or in writing) or is of such a nature that a reasonable person would understand such data and/or information to be confidential. “Confidential Data” shall include, but is not limited to, (1) business methods and practices, financial data, business plans and opportunities, pricing, personnel, customers, prospective customers, or suppliers; (2) trade secrets, inventions, processes, methodologies, products, product plans, patent applications, and other proprietary rights, any specifications, tools, computer programs, source code, object code, documentation, technical information or other related confidential business information or data; (3) detailed financial reports, results and projections; (4) personal information of customers, employees, students, and/or donors, including but not limited to, na mes, addresses, Social Security numbers, e-mail addresses, telephone numbers, financial profiles, credit card information, driver’s license numbers, medical data, law enforce ment records, or other information identifiable to a specific individual that relates to any of these types of information (“Personal Information”) ; or (5) any other proprietary information or data of the parties that is maintained in confidence
Confidential Data shall not include information the receiving party can demonstrate (i) is or becomes a matter of public knowledge through no fault of the receiving party, (ii) was rightfully in the receiving party’s possession, without obligation of confidentiality, prior to disclosure by the disclosing party, as evidenced by written records of the receiving party, (iii) subsequent to disclosure, is rightfully obtained by the receiving party from a third party in lawful possession of such Confidential Data, as evidenced by written records of the receiving party, without obligation of confidentiality, (iv) is independently developed by the receiving party without reference to or use of such Confidential Data, or (v) is required to be disclosed by law, governmental or administrative process.
b) Use and Non-Disclosure of Confidential Data; Exceptions
Each party agrees to use the Confidential Data received from the other party only as expressly permitted in this Agreement and in furtherance of the purposed expressed herein. To the extent permitted by law, neither party will disclose to any third party the other party’s Confidential Data, in whole or in part, without the prior written consent of the party, or as provided for in this Agreement and in compliance with all applicable state and federal laws. Notwithstanding the foregoing, either party may disclose the Confidential Data or portions thereof to their respective attorneys or accountants when seeking legal or financial advice.
Vendor specifically warrants and represents that it will not in any manner disclose, disseminate, copy, sell, resell, sublicense, transmit, assign, or otherwise make available any of WSU’s Confidential Data to any third party without the prior written permission of WSU, and further warrants and represents that it will take all reasonable steps necessary to ensure that its authorized agents, employees, contractors or subcontractors having access to the Confidential Data shall not copy, disclose or transmit any of the Confidential Data, or any portion thereof, in any form, to a third party.
Vendor acknowledges that WSU, as a state agency, is at all times is subject to the Washington Public Records Act, RCW 42.56.010 et seq. as now existing or as amended. If WSU receives a public records request for this Agreement and/or for documents and/or materials provided to WSU under this Agreement, generally such information will be a public record and must be disclosed to the public records requester. However, WSU agrees to notify Vendor if it receives such a public records request and the date WSU plans to release the records. If Vendor fails to obtain a protective order from the applicable court prior to the time WSU releases the records to the public records requester, Vendor gives WSU full authority to release the records on the date specified, and Vendor understands it has thereby given up all rights to challenge the disclosure in any forum.
c) Obligations to Secure Confidential Data
Vendor warrants and represents that it will imple ment industry-standard physical, electronic, and managerial safeguards to prevent unauthorized access to and disclosure of WSU’s Confidential Data, including but not limited to, the security of the physical environment in which the Confidential Data is stored, and the security of any transmission of the Confidential Data. Vendor further warrants and represents that such safeguards will in no event be less than the level of security Vendor uses to protect its own Confidential Data, and that Vendor will implement additional reasonable precautions that WSU may request from time to time. Vendor shall require its contractors and subcontractors authorized to access WSU’s Confidential Data pursuant to this Agreement to take similar industry-standard precautions in safeguarding the Confidential Data.
Vendor agrees to comply with all applicable statutes and regulations governing non-disclosure of the Confidential Data, including, but not limited to, the requirements of FERPA (12 U.S.C. 1232g and implementing regulations), and WSU’s own data policies, including but not limited to, Executive Policy #8, a copy of which is attached hereto and incorporated herein by reference.
If applicable, Vendor agrees to provide evidence of certification for the Payment Card Industries Data Security Standard (PCI DSS). Proof of compliance shall be provided to WSU by Vendor on an annual basis for the duration of this Agreement. WSU reserves the right to monitor, audit or investigate said certification. If Vendor fails to achieve or maintain PCI DSS status, Vendor will cease the acceptance and processing of payment cards or any other form of electronic payment pursuant to this Agreement, as well as the acceptance of any other Confidential Data or other proprietary data on behalf of WSU.
d) Obligations upon Breach of Security
The Confidential Data, including any Personal Information, is subject to the provisions of RCW 19.255.010 and RCW 42.56.590. In the event of a breach of security resulting in the unauthorized disclosure of the Confidential Data, Vendor agrees to comply with these provisions as applicable. If a data compromise and/or identity theft occurs and is found to be the result of Vendor’s non-compliance with the PCI-DSS, if applicable, Vendor will assume complete responsibility for customer notification, and be liable for all associated costs incurred by WSU in responding to or recovering from said breach.
e) Survival of Obligations
The obligation to maintain the confidentiality of the Confidential Data received by the other party will survive termination or expiration of this Agreement, and shall survive for a period of five (5) years thereafter. Immediately upon expiration or termination of this Agreement, Vendor shall, at WSU’s option: (i) certify to WSU that Vendor has destroyed all Confidential Data in its possession; or (ii) return all Confidential Data to WSU; or (iii) take whatever other steps WSU requires of Vendor to protect WSU’s Confidential Data. WSU reserves the right to monitor, audit, or investigate the use of Confidential Data collected, used, or acquired by Vendor or its employees, contractors or subcontractors pursuant to this Agreement.
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Dispute Resolution: In the event that a dispute arises under this Agreement that the parties can’t resolve, they shall allow the dispute to be decided by a Dispute Panel in the following manner: each party to this Agreement shall appoint one member to the Dispute Panel, and the members so appointed shall jointly appoint an additional member to the Dispute Panel. The Dispute Panel shall review the facts, contract terms and applicable statutes and rules and make a determination of the dispute. The determination of the Dispute Panel shall be final and binding on the parties hereto. The parties shall equally share the costs, if any, for the services of the Dispute Panel.
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Entire Agreement: This Agreement contains all the terms and conditions agreed upon by the parties. No other understandings, oral or otherwise, regarding the subject matter of this agreement shall be deemed to exist or to bind any of the parties hereto.
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Force Majeure: In the event that the parties’ obligations under this Agreement are substantially delayed, prevented or rendered impractical by fire, flood, riot, earthquake, civil commotion, war, strike, lockout, labor disturbances, exposition, sabotage, accident or other casualty, act of GOD, any law ordinance, rule or regulation which becomes effective after the date of this Agreement, or any other cause beyond thereasonable control of either party, then the parties shall be released from performance under this Agreement. Both parties hereby waive any claim for damages or compensation for such delay or failure to perform, other than obligations incurred up to the date of such force majeure.
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Funding Contingency: In the event funding from state, federal, or other sources is withdrawn, reduced, or limited in any way after the effective date of this Agreement and prior to normal completion, WSU may terminate this Agreement under the “Termination for Convenience” clause without advance notice, subject to renegotiation under those new funding limitations and conditions.
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Governing Law: This Agreement shall be governed by and construed in accordance with the laws of the state of Washington, and venue for any action brought hereunder shall be in the Superior Court for Whitman County.
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Hold Harmless: Each party to this Agreement shall be responsible for its own acts and/or omissions and those of its officers, employees and agents in the performance of this Agreement. No party to this Agreement shall be responsible for the acts and omissions of those entities or individuals not a party to this Agreement.
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Independent Capacity: The employees or agents of each party who are engaged in the performance of this Agreement shall continue to be employees and agents of that party and shall not be considered for any purpose to be employees or agents of the other party.
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License to Use University Trademarks and Logos: WSU hereby grants to Vendor a non-exclusive, royalty-free, limited right and license to use WSU’s name, trademarks and logos solely for the purposes of identifying WSU in Vendor’s promotional materials and for marketing and advertising purposes pursuant to and consistent with the terms of this Agreement. Vendor hereby grants to WSU a non-exclusive, royalty-free limited right and license to use Vendor’s name, trademarks and logo solely for the purpose of identifying Vendor in WSU’s promotional materials and for marketing and advertising purposes pursuant to and consistent with the terms of this Agreement. Except for the limited licenses granted above, both parties are prohibited from using, and agree not to use, directly or indirectly, any name, trademark or logo of the other party in any manner whatsoever without first obtaining prior written approval from the other party. All rights not expressly granted herein are reserved by the parties.
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Licensing: Vendor shall comply with all applicable local, state and federal licensing, accreditation and registration requirements and standards necessary for the performance of this Agreement, including, but not limited to, registration with the Washington State Department of Revenue, and shall be responsible for payment of all fees and taxes due on payments made to Vendor under this Agreement.
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Non-Discrimination: Each party certifies that it will not discriminate in the performance of this Agreement on the basis of race, color, national origin, gender, sexual orientation (to include gender identity), religion, honorably discharged veteran or military status, or physical or mental disability, in compliance with (a) Presidential Executive Order 11246, as amended, including the Equal Opportunity Clause contained therein; (b) Section 503 of the Rehabilitation Act of 1973, as amended, and the Vietnam Era Veterans Readjustment Act of 1974, as amended, and the Affirmative Action Clauses contained therein; (c) the Americans with Disabilities Act of 1990, as amended; and (d) Washington state civil rights and nondiscrimination laws. The parties further agree they will not maintain facilities which are segregated on the basis of race, color, religion or national origin in compliance with Presidential Executive Order 11246, as amended, and will comply with the Americans with Disabilities Act of 1990, as amended, regarding programs, services, activities and employment practices.
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Public Records Act Language: The parties to this Agreement understand and acknowledge that WSU is an institution of higher education and agency of the state of Washington, and as such, is subject to the Public Records Act, RCW 42.56 et seq. If WSU receives a public records request for this agreement and/or for documents and/or materials provided to WSU under this agreement, generally such information will be a public record and must be disclosed to the public records requester. However, WSU agrees to notify Licensor if it receives such a public records request and the date WSU plans to release the records. If Company/Vendor fails to obtain a protective order from the applicable court prior to the time WSU releases the records to the public records requester, Company/Vendor gives WSU full authority to release the records on the date specified, and Company/Vendor understands it has thereby given up all rights to challenge the disclosure in any forum.
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Records Maintenance: The parties to this Agreement shall each maintain books, records, documents and other evidence which sufficiently and properly reflect all direct and indirect costs expended by either party in the performance of the services described herein. These records shall be subject to inspection, review or audit by personnel of either party, other personnel duly authorized by either party, the Office of the State Auditor, and federal officials so authorized by law. All books, records, documents, and other material relevant to this Agreement will be retained for six year after expiration and the Office of the State Auditor, federal auditors, and any persons duly authorized by the parties shall have full access and the right to examine any of these materials during this period.
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Rights in Data: Any data that originates from this Agreement shall be “works for hire” as defined by the U.S. Copyright Act of 1976 and shall be owned by WSU. Data shall include, but not be limited to, reports, documents, pamphlets, advertisements, books, magazines, surveys, studies, computer programs, films, tapes, and/or sound reproductions. Ownership includes the right to copyright, patent, and register, and the ability to transfer these rights.
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Severability: If any provision of this Agreement or any provision of any document incorporated by reference shall be held invalid, such invalidity shall not affect the other provisions of this Agreement which can be given effect without the invalid provision, if such remainder conforms to the requirements of applicable law and the fundamental purpose of this agreement, and to this end the provisions of this Agreement are declared to be severable.
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Signatures: The parties affirm they have designated the persons below to have signature authority for the parties. By their signatures on this Agreement, the parties agree to comply with all of its terms and conditions.
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Successors and Assigns: This Agreement shall inure to the benefit of and be binding upon the heirs, successors and assigns of the parties hereto.
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Termination for Cause: Either party may terminate this Agreement for cause. “For cause” shall mean the default of either party in fulfilling any term or condition of this Agreement. Written notice of the default shall be provided by the non-defaulting party, after receipt of which, the defaulting party shall have thirty (30) days to cure such default. If the default is not cured, the non-defaulting party may thereafter elect to terminate this Agreement upon written notice to the defaulting party, such termination to be effective on the date of such written notice.
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Termination for Convenience: Either party may terminate this Agreement for any reason upon not less than thirty (30) days prior written notice to the other party, and the parties shall be liable only for obligations incurred up to the date of such termination.
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Vendor Insurance: At all times this Agreement is in effect, Vendor shall maintain the following insurance:
Commercial General Liability Insurance on an occurrence basis, with combined single limits (CSL) of not less than $3,000,000 per occurrence and $5,000,000 in the annual aggregate. The policy shall include coverage for dram shop or liquor liability. The policy shall contain, or be endorsed with, language that WSU, its officers, agents, and employees are additional insured’s, that the policy shall not be canceled or modified without thirty (30) days prior written notice, that the policy will provide primary coverage to WSU and be non-contributory, and that the policy has a severability of interest clause.
Workers’ Compensation Insurance in the statutorily required amounts providing benefits to Vendor’s employees in accordance with Title 51, Revised Code of Washington, Industrial Insurance.
Automobile Liability Insurance for vehicles used in the performance of this Agreement with limits of not less than $1,000,000 per accident combined single limit (CSL). The policy shall contain, or be endorsed with, language that WSU, its officers, agents, and employees are additional insured’s, that the policy shall not be canceled or modified without thirty (30) days prior written notice, that the policy will provide primary coverage to WSU and be non-contributory, and that the policy has a severability of interest clause.
Commercial Crime Insurance which includes, without limitation, employee dishonesty, in the amount of $XXXXXXX and coverage for theft, disappearance and destruction of monies and securities in or on the Premises in the amount of $XXXXX and outside the Premises in the amount of $XXXXX.
WSU shall be named as an additional insured on all the above insurance coverage, and this coverage shall be primary and non-contributory to any self-insurance or insurance policy available to WSU. Vendor shall provide to WSU a certificate of insurance coverage for the above insurance prior to commencement of the Agreement, and shall maintain the above insurance at all times this Agreement is in effect. WSU reserves the right to change the coverage limits of the insurance policies set forth above as WSU may deem advisable, in WSU’s sole and absolute discretion. Vendor shall make no claims against WSU for any claim for which Vendor is covered by the insurance described herein.
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Waiver: A failure by either party to exercise its rights under this Agreement shall not preclude that party from subsequent exercise of such rights and shall not constitute a waiver of any other rights under this Agreement unless stated to be such in writing signed by an authorized representative of the party and attached to this Agreement.
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WSU Insurance/Tort Claims:WSU and its officers, employees, and agents, while acting in good faith within the scope of their official WSU duties, are covered by the State of Washington Self-Insurance Program and the Tort Claims Act (RCW 4.92.060 et seq.), and successful claims against WSU and its employees, officers, and agents in the performance of their official WSU duties in good faith under this Agreement will be paid from the tort claims liability account as provided in RCW 4.92.130.
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Standard WSU Contract Terms
