1. Defined Terms:
Agreement: The BSU SCT&C, the Statement of Work, and Sponsor Purchase Orders.
BSU SCT&C: These Boise State University Standard Contract Terms and Conditions.
Deliverables: The work described in the Statement of Work to be performed by University.
Party or Parties:University and Sponsor are defined individually as a “Party” and collectively as the “Parties.”
Registration Website: The website hosted by University where Sponsor may register for Services relating to the Learning Resource Site (the “LRS”). Services provided during calendar year 2019 will be at no cost to Sponsor, but registration is required.
Services: Support in the form of short courses, training tools, and information related to the transformation of healthcare in Idaho as described more fully in the Statement of Work.
Sponsor(s): The entity(ies) or individual(s) registering for or purchasing the Services via the Registration Website.
Sponsor Purchase Orders: Any purchase order submitted to University by Sponsor to pay for Services.
Statement of Work: University’s activities and deliverables described on the Registration Website.
University: Boise State University.
2. Invoices: Sponsor agrees to pay University within thirty (30) days following receipt of an invoice or immediately by credit/debit card via the Registration Website. Sponsor understands and expressly agrees that University is under no obligation to provide Sponsor with any kind of financial reporting, supporting documentation or justification of expenditures made in the performance of the Statement of Work as a condition of payment.
3. Publication: University, as an Idaho public institution of higher education, engages only in work that is compatible, consistent and beneficial to its academic role and mission. Therefore, significant results developed during the performance of the Statement of work must be reasonably available for publication. The Parties acknowledge that University shall have the right to publish results. University agrees that any Confidential Information supplied to it by Sponsor during the Term will not be included in any published material without prior written approval from Sponsor.
4. Equipment & Supplies: Unless otherwise provided in the Statement of Work, intangible property, equipment and supplies purchased with funds provided under this Agreement for use in connection with this Agreement shall be the exclusive property of University.
5. Liability; No Waiver: Each Party hereto agrees to be responsible and assume liability for its own wrongful or negligent acts or omissions, or those of its officers, agents, contractors, users, or employees, to the full extent required by law. Liability of University (and Sponsor, if Sponsor is a State of Idaho entity or political subdivision thereof), as an entity of the State of Idaho, is at all times herein strictly limited and controlled by the provisions of Idaho law, including, without limitation, the Idaho Tort Claims Act, Idaho Code §§ 6-901 et seq. as amended from time to time (the “Act”). Nothing herein shall be deemed to constitute a waiver of any privilege, immunity, protection or defense afforded University, as an entity of the State of Idaho, under the Idaho Constitution, the Act, Idaho statutes or any other applicable law.
6. Insurance: Each Party represents and warrants it maintains comprehensive general liability insurance and all coverages required by law sufficient for the purpose of carrying out the duties and obligations arising under this Agreement. University shall maintain, at all times applicable hereto, comprehensive liability coverage in such amounts as are prescribed by Idaho Code § 6-924 as amended from time to time, as well as worker’s compensation coverage for its employees as required by Idaho Code § 72-301 as amended from time to time. University’s liability coverage obligations shall be administered by the Administrator of the Division of Insurance Management in the Department of Administration for the State of Idaho, and may be covered, in whole or in part, by the State of Idaho’s Retained Risk Account. University shall cover its liability for worker’s compensation through the State of Idaho’s State Insurance Fund. Upon written request, a Party will furnish the other Party a certificate evidencing the insurance required by this Paragraph 6.
7. Confidential Information: (a) Each Party has certain documents, data, information and/or methodologies that are confidential and proprietary to that Party (collectively, the “Confidential Information”). Confidential Information shall not include, and Recipient (defined below) shall have no obligation to refrain from disclosing or using, information which: (i) is generally available to the public prior to the date of disclosure; (ii) becomes part of the public domain or publicly known or available by publication or otherwise, not through any unauthorized act or omission of Recipient; (iii) is lawfully disclosed to the Recipient by third parties without breaching any obligation of non-use or confidentiality; or (iv) has been independently developed by persons in Recipient’s employ or otherwise who have no contact with the Confidential Information, as proven with written records. (b) During the Term of this Agreement, either Party may, as the “Disclosing Party,” disclose its Confidential Information to the other Party (the “Recipient”), in writing, visually or orally; provided, however, the Disclosing Party shall, at the time of disclosure, clearly identify to the Recipient what constitutes the Disclosing Party’s Confidential Information. Recipient shall receive and use the Confidential Information for the sole purpose of the performance of the Statement of Work, and for no other purpose (except as may be specifically authorized by the Disclosing Party in writing). Recipient agrees not to: (i) make use of the Confidential Information except for the performance of the Statement of Work (or as otherwise authorized by the Disclosing Party in writing); or (ii) disclose the Confidential Information to any third party or parties (including, without limitation, Recipient’s affiliates), unless required by law, without the prior written consent of the Disclosing Party. In the event that Recipient is required by law to disclose the Confidential Information, it will promptly notify the Disclosing Party, and the Disclosing Party may, at its sole discretion and expense, initiate legal action to prevent, limit or condition such disclosure. (c) Recipient shall use its reasonable best efforts to preserve the confidentiality of the Confidential Information (using the same or similar protections as it would as if the Confidential Information were Recipient’s own, and in any event, not less than reasonable care). (d) Notwithstanding any other provision of this Agreement, Recipient may retain one (1) copy of the Disclosing Party’s Confidential Information in its confidential files, for the sole purpose of establishing compliance with the terms hereof.
8. Intellectual Property: “Intellectual Property,” as used herein, shall mean all discoveries, inventions, designs, methodologies, derivatives, improvements, software, data and works of authorship, conceived, made, discovered, written or first reduced to practice in performance of the Statement of Work by University (“IP”) and any related rights such as patents, copyrights (including moral rights), mask works and trade secrets. “Background IP,” as used herein, shall mean Intellectual Property created externally to this Agreement and the performance of the Statement of Work; provided, however, for purposes of this Agreement, Background IP shall not include any of the copyrighted creative works, content, data, tools, materials, and trainings provided by the Statewide Healthcare Innovation Plan and available on the LRS (collectively, the “SHIP Content”). (a) All IP shall be owned by University. (b) “Licensed Materials” as used herein shall expressly include certain rights and interests in the SHIP Content and IP on the LRS, but shall not include any rights to the Background IP of any entity, including any of University’s third party vendors. University hereby grants to Sponsor, its employees, agents and contractors, a nontransferable, non-sublicensable and non-exclusive license to use the Licensed Materials for Sponsor’s internal training purposes only (“License”). Sponsor shall not create derivative works of the Licensed Materials without the prior written approval of University. Sponsor shall not utilize the Background IP of University’s third party vendors without the prior written approval of University. Sponsor acknowledges that University requires high quality and accurate reproduction of the Licensed Materials. No change may be made to the Licensed Materials without the prior written permission of University. Sponsor agrees that it will not alter, modify, dilute, or otherwise misuse the Licensed Materials, or bring them into disrepute. (c) Each copy of the Licensed Materials and every written documentation, description, or other representation of or concerning the Licensed Materials shall conspicuously bear any notice of copyright that appears on the Licensed Materials. (d)University reserves all other rights and interest in the Licensed Materials. Sponsor, except for the rights granted herein, has no interest in or ownership of the Licensed Materials, and agrees not to register or attempt to register, in any jurisdiction, any of the Licensed Materials. (e) Sponsor acknowledges that it is not the owner of the Licensed Materials. Sponsor further acknowledges that its use of the Licensed Materials inures to the benefit of the applicable intellectual property owner and that Sponsor shall not acquire any rights therein.
9. Deliverables; Disclaimer: University will make best efforts to ensure that all Deliverables provided under this Agreement are provided substantially in accordance with the Statement of Work. UNIVERSITY USES THIRD PARTY VENDORS AND HOSTING PARTNERS TO PROVIDE THE NECESSARY HARDWARE, SOFTWARE, NETWORKING, STORAGE, AND RELATED TECHNOLOGY REQUIRED TO RUN AND MANAGE THE SERVICES RELATING TO THE LRS AND SPONSOR ACKNOWLEDGES THAT UNIVERSITY CANNOT AND DOES NOT GUARANTEE THE SECURITY OF SPONSOR’S DATA WHILE IT IS BEING TRANSMITTED OVER THE INTERNET OR WHEN THE DATA IS BEING UTILIZED, STORED, HOSTED, OR IS OTHERWISE IN THE CONTROL OF THIRD PARTIES, NOR SHALL UNIVERSITY BE LIABLE FOR ANY BREACH OF SPONSOR’S DATA. RESEARCH RESULTS, TECHNICAL DATA, RESULTS, DELIVERABLES, REPORTS, INTELLECTUAL PROPERTY, LICENSED WORKS AND MARKS, IP DISCLOSURES, IP AND UNIVERSITY IP PROVIDED BY UNIVERSITY ARE PROVIDED STRICTLY “AS IS, WHERE IS” WITHOUT ANY WARRANTY OR GUARANTY OF ANY KIND. ALL WARRANTIES, EXPRESS AND IMPLIED, ARE HEREBY EXPRESSLY DISCLAIMED INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON‑INFRINGEMENT. UNIVERSITY SHALL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE LOSS OR DAMAGE OF ANY KIND INCLUDING, WITHOUT LIMITATION, LOST PROFITS (REGARDLESS OF WHETHER OR NOT UNIVERSITY KNOWS OR SHOULD KNOW OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES).
10. Use of Tradenames and Service Marks: Neither Party obtains by this Agreement any right, title or interest in, or any right to reproduce or to use for any purpose, the name, tradenames, trade- or service marks, or logos (collectively, the “Marks”) of the other Party. Neither Party will include the name of the other Party or of any employee of that Party in any advertising, sales promotion or other publicity matter without the prior written approval of that other Party. In the case of University, prior written approval is required from the Director of Trademark Licensing and Enforcement. In the case of Sponsor, prior written approval is required from an authorized representative of Sponsor.
11. Termination/Cancellation: Either Party may terminate this Agreement, without cause, upon not less than thirty (30) days’ written notice to the other Party. In the unlikely event University cancels the Statement of Work (or a portion of the Statement of Work) due to lack of participation, University will refund a pro-rated amount of funds paid by Sponsor. Termination of this Agreement shall not relieve a Party from its obligations incurred prior to the termination date. Upon termination of this Agreement by Sponsor within thirty (30) days of the date set for performance of the Statement of Work, Sponsor shall pay its proportional share of the reasonable costs accrued by University as of the date of termination, including, without limitation, non-cancelable obligations incurred for performance of the Statement of Work (which shall include all appointments of staff incurred prior to the effective date of the termination). University shall exert its best efforts to limit or terminate any outstanding financial commitments for which Sponsor is to be liable.
12. Default: A Party will be considered in default of its obligations under this Agreement if such Party should fail to observe, to comply with or to perform any term, condition or covenant contained in this Agreement and such failure continues for thirty (30) days after the non-defaulting Party gives the defaulting Party written notice thereof. In the event of default, the non-defaulting Party, upon written notice to the defaulting Party, may terminate this Agreement as of the date specified in the notice, and may seek such other and further relief as may be provided by law.
13. Notices: Except as explicitly stated otherwise in this Agreement, all notices and other correspondence related to this Agreement shall be in writing and shall be effective when delivered by: (i) certified mail with return receipt requested; or (ii) hand delivery with signature or delivery receipt provided by a third party courier service (e.g., FedEx, UPS) to a designated representative of the Parties as indicated below. A Party may change its designated representative for notice purposes at any time by written notice to the other Party. The initial representatives of the Parties are: (i) for Sponsor, the “Administrator” identified in the Registration Website; and (ii) for University, Karen Henry (or her authorized designee), Office of Sponsored Programs, Boise State University, 1910 University Drive, Boise, ID 83725-1135.
14. Legal Authority: Each Party to this Agreement warrants that it possesses the legal authority to enter into this Agreement and that it has taken all actions required by its procedures, articles of incorporation/organization, bylaws and/or applicable law to exercise that authority, and to lawfully authorize its undersigned signatory(ies) to execute this Agreement and to bind it to its terms. The person(s) executing this Agreement on behalf of a Party warrant(s) that such person(s) has/have full authorization to execute this Agreement.
15. Entire Agreement; Changes and Amendment: This Agreement constitutes the entire agreement between the Parties and supersedes all previous contracts, understandings or agreements of the Parties, whether verbal or written, concerning the subject matter of this Agreement. No amendment to this Agreement shall be valid unless it is made in a writing signed by the authorized representatives of the Parties.
16. Compliance with Law, Licensing and Certifications: Each Party hereby represents, warrants and covenants that it does comply and shall continue to comply during the Term of this Agreement with all applicable federal, state and local laws, codes, regulations, rules and orders.
17. Governing Law, Jurisdiction and Venue: This Agreement shall be governed by and construed under the laws of the State of Idaho without regard to its principles or rules of conflicts of laws. Any claim arising under or related to this Agreement shall be filed and tried in the State District Court, Ada County, State of Idaho.
18. Assignment: This Agreement shall not be assigned without the prior written consent of the other Party, which consent shall not be unreasonably withheld or delayed. Subject to the foregoing, this Agreement shall inure to the benefit of and be binding on the successors, heirs, legal representatives and permitted assigns of the Parties.
19. Waiver and Severability: No waiver of any breach of any provision of this Agreement shall operate as a waiver of any other or subsequent breach thereof or of the provision itself, or of any other provision. No provision of this Agreement shall be deemed to have been waived unless such waiver be in writing and signed by the Party waiving the same, with the signature on behalf of University being that of a vice president of University. If any provision of this Agreement is determined to be invalid or unenforceable in whole or in part, such invalidity or unenforceability shall attach only to such provision or part thereof and the remaining part of such provision and all other provisions hereof shall continue in full force and effect.
20. Independent Contractors: It is understood and agreed by the Parties that University is an independent contractor with respect to Sponsor and that this Agreement is not intended and shall not be construed to create an employer/employee, partnership or a joint venture relationship between University and Sponsor. University shall be free from the direction and control of Sponsor in the performance of University’s obligations under this Agreement.
21. Conflict of Interest: Except as set forth herein, Sponsor certifies that no officer, employee, student, contractor or agent of University has been employed, retained or paid a fee, or has otherwise received or will receive during or after the Term of this Agreement any personal compensation or consideration by or from Sponsor or any of Sponsor’s directors, officers, employees, contractors or agents in connection with the obtaining, arranging, negotiating or conducting of this Agreement without advance, written notification to University.
22. Headings: Paragraph headings are for reference and convenience only and shall not be determinative of the meaning or the interpretation of the language of this Agreement.
23. Time Periods: All time periods in this Agreement shall be deemed to refer to calendar days unless the time period specifically references business days; provided, if the last date on which to perform any act or give any notice under this Agreement shall fall on a Saturday, Sunday or local, state or national holiday, such act or notice shall be deemed timely if performed or given on the next succeeding business day.
24. Electronic Signature: Sponsor consents and agrees that its authorized official’s use of a key pad, mouse or other device to select an item, button, icon or similar act/action while using any electronic service University offers including, without limitation, the Registration Website, or in accessing or making any transactions regarding any document, agreement, acknowledgement, consent, term, disclosure or condition constitutes signature, acceptance and agreement by Sponsor as if actually signed by an authorized official of Sponsor in writing. Further, Sponsor and Sponsor’s authorized representative agree that no certification authority or other third party verification is necessary to validate Sponsor’s electronic signature, and that the lack of such certification or third party verification will not in any way affect the enforceability of Sponsor’s signature or resulting contract between Sponsor and University. Consistent with Idaho Code § 28-50-107 as amended from time to time, Sponsor understands and agrees that the electronic signature executed in conjunction with the electronic submission of its registration for the Statement of Work will be legally binding and such transaction will be considered authorized by Sponsor.
25. Official, Agent and Employees of University Not Personally Liable: In no event shall any official, officer, employee or agent of the University be in any way personally liable or responsible for any covenant or agreement herein contained whether expressed or implied, nor for any statement, representation or warranty made herein or in any connection with this Agreement.
26. Term: This Agreement shall be effective commencing on the date when Sponsor completes its registration for the Statement of Work on the Registration Website, or January 1, 2019, whichever is later (the “Effective Date”) and shall terminate on December 31, 2019 unless sooner terminated as provided herein (the “Term”).
27. Force Majeure: The Parties shall not be liable for any failure of or delay in the performance of this Agreement for the period that such failure or delay is due to causes beyond its reasonable control including, without limitation, acts of God, war, strikes or labor disputes, embargoes, government orders, sickness or any other force majeure event.
28. Order of Precedence: The Agreement consists of and precedence is established by the following order of documents, in descending order of importance: (1) BSU SCT&C, (2) Statement of Work on the Registration Website, and (3) Sponsor Purchase Orders. In the case of any conflict or inconsistency arising under the documents, a lower numbered document shall supersede a higher numbered document to the extent necessary to resolve such inconsistency (for example, the BSU SCT&C shall supersede a Sponsor Purchase Order). In the event an issue is addressed in one of the above mentioned documents but is not addressed in another, no conflict or inconsistency shall be deemed to occur; provided, however, where terms and conditions specified in a Sponsor Purchase Order supplement the terms and conditions in the BSU SCT&C or Statement of Work, the supplemental terms and conditions shall apply only if specifically accepted by University in writing.
29. No Other Terms: Subject to Paragraph 28, where terms and conditions specified in a Sponsor Purchase Order or other writing between the Parties differ from those specifically stated in the BSU SCT&C (including the Statement of Work), the terms and conditions of the BSU SCT&C or Statement of Work, as applicable, shall apply. The University hereby specifically objects to and rejects any terms and conditions that are in conflict with these terms and conditions. In the event University honors one or more terms in a Sponsor Purchase Order or other writing that conflict with these terms and conditions, such action does not constitute University’s acceptance of any other terms in such writing or Sponsor Purchase Order. Any reference to terms and conditions other than the BSU ST&C (including the Statement of Work) in any subsequent invoice, purchase order, or other writing, shall be void unless specifically accepted by University in writing in accordance with Paragraph 28.
30. Use of Third Party Application Program Interface; EULA; Indemnity: University uses third party vendors and hosting partners to provide the necessary Application Program Interface required to run and manage the services relating to the LRS (“Third Party API”). Sponsor shall not: (i) sell, rent, lease, lend, sublicense, distribute, or otherwise transfer or provide access to the Third Party API to any person, firm, or entity, access the Third Party API to build a competitive service or product, or copy any feature, function or graphic of the Third Party API for competitive purposes; (ii) modify, adapt, alter or create derivative works from the Third Party API or to merge the Third Party API or any subpart thereof (including proprietary markings) with other services or software, or (iii) remove or modify any proprietary markings or restrictive legends in the Third Party API. Sponsor is responsible for all content its users place on the Third Party API and for use of the Third Party API by its users. Prior to first use of the Third Party API, the third party vendor will require that Sponsor users enter into an End User License Agreement (“Third Party API EULA”). Notwithstanding anything herein, Sponsor will indemnify and hold harmless University and the State of Idaho from any and all liability, claims, damages, costs, expenses, and actions, including reasonable attorney fees, caused by or arising from the content the Sponsor places on the Third Party API, the Sponsor’s misuse of the Third Party API, or the Sponsor’s violation of the Third Party API EULA; provided, however, if Sponsor is a State of Idaho entity or political subdivision thereof, its liability is limited to the maximum extent allowable by applicable law.
31. Use of Third Party Demand-driven Career Navigation Platform; EULA; Indemnity: University uses third party vendors and hosting partners to provide any applicable Demand-driven Career Navigation Platform (“Third Party DCNP”). Sponsor shall not: (i) sublicense, rent, lease, sell, loan, transfer, distribute, translate, reverse engineer, decompile, or disassemble or otherwise obtain or attempt to create, derive, or obtain the source code of the Third Party DCNP; (ii) modify, enhance or otherwise change the Third Party DCNP, or prepare derivative works based on the Third Party DCNP; (iii) copy or otherwise reproduce the Third Party DCNP or any materials provided in connection therewith; (iv) except to the extent required by applicable law including, without limitation, the Idaho Public Records Law, disclose or provide access to or permit use of the Third Party DCNP to any other person or entity; (v) remove, obscure, or alter any notice of copyright, trademark, or other proprietary right appearing in or on any item included with the Third Party DCNP; (vi) circumvent or attempt to circumvent any methods employed by the third party to control access to the components, features or functions of the Third Party DCNP, or to prevent unauthorized use of the Third Party DCNP; (vii) use the Third Party DCNP in any commercially hosted or service bureau environment; (viii) use or authorize or permit any third party to use any “robot,” “spider” or other automatic device, or a program, algorithm or methodology having similar processes or functionality, or any manual process, to monitor, copy or reverse engineer any of the web pages, data or content found on the Third Party DCNP; (ix) utilize any software, application, or algorithm, whether integrated in a browser or otherwise, that modifies or adds content to the layout, design, or content of the Third Party DCNP; (x) use any device, software or routine that interferes or attempts to interfere with the normal operation of the Third Party DCNP or take any action that imposes an unreasonable or disproportionate burden or load on the infrastructure of the Third Party DCNP; (xi) use any data, including any personal data, provided by third party users through the Third Party DCNP except for the purposes expressly authorized by the Third Party DCNP EULA; (xii) use the Third Party DCNP or any data contained therein to create, develop or enhance a competing product or service. Prior to first use of the Third Party DCNP, the third party vendor will require that Sponsor users enter into an End User License Agreement (“Third Party DCNP EULA”). Notwithstanding anything herein, Sponsor will indemnify and hold harmless University and the State of Idaho from any and all liability, claims, damages, costs, expenses, and actions, including reasonable attorney fees, caused by or arising from the content the Sponsor places on the Third Party DCNP, the Sponsor’s misuse of the Third Party DCNP, or the Sponsor’s violation of the Third Party DCNP EULA; provided, however, if Sponsor is a State of Idaho entity or political subdivision thereof, its liability is limited to the maximum extent allowable by applicable law.
32. Use of Third Party Adaptive Behavioral and Cognitive or Career Interest Assessments; EULA; Indemnity: University uses third party vendors and hosting partners to provide any applicable Online Adaptive Behavioral and Cognitive or Career Interest Assessments (“Third Party Assessments”). The Third Party Assessments shall be used solely for non-commercial purpose of providing the user with job-related competency evaluation and career development training. Prior to accessing any assessment(s), the third party vendor will require each user to agree to be bound by the terms and conditions of an End User License Agreement (“Third Party Assessment EULA”). Results, reports, or any other information related to, or generated by, any assessments shall not be used as a sole or as a significant measure to make employment-related decisions or in a manner that violates any applicable privacy law or regulation. Notwithstanding anything herein, Sponsor will indemnify and hold harmless University and the State of Idaho from any and all liability, claims, damages, costs, expenses, and actions, including reasonable attorney fees, caused by or arising from the Sponsor’s misuse of the Third Party Assessments, or the Sponsor’s violation of the Third Party Assessment EULA and Sponsor shall indemnify, defend and hold University and the State of Idaho harmless from and against any third party claims, demands, losses, damages or expenses (including reasonable attorneys’ fees and court costs) arising out of or in connection with any employment decision made by Sponsor including, without limitation, the evaluation of employees or candidates for employment, promotion or demotion; provided, however, if Sponsor is a State of Idaho entity or political subdivision thereof, its liability is limited to the maximum extent allowable by applicable law..
BSU SCT&C (GC 2/1/2019) – OSP No. 8627