| 4.1. General
These General Terms
and Conditions shall govern and be made a part of any Contract
resulting from this E-RFP. Respondents must be willing to accept
these terms and conditions.
4.2 Definitions
Whenever the
following terms are used in these General Terms and Conditions or in
the other Contract Documents the intent and meaning shall be
interpreted as follows:
Contract Documents
shall mean the documents that form the Contract between The
University and the Contractor. The Contract Documents will consist
of an Agreement, Conditions of the Contract (this Informational
Section 4 - General Terms and Conditions and any Additional or
Special Conditions issued for this E-RFP), Execution of Offer,
Respondent's Response Volumes, and all Addenda and Amendments issued
prior to and after the execution of the Contract.
The University
shall mean the University of Texas System.
Respondent
shall mean the individual, partnership, corporation, or other entity
responding to this E-RFP.
Contractor
shall mean the individual, partnership, corporation, or other entity
awarded a Contract for the University of Texas System under this
E-RFP, in accordance with the terms, conditions, and requirements
herein.
Project
shall mean the complete undertaking by Contractor to provide the
goods and/or services contemplated by the Contract.
4.3 Entire Agreement
The Contract
Documents, for all intents and purposes, are intended as the
complete and exclusive statement of the Agreement between The
University and the Contractor and supersede all prior or
contemporaneous agreements, negotiations, course of prior dealings,
or oral representations relating to the subject matter hereof.
The terms and
conditions of any Agreement, amendments, modifications, or other
documents submitted by either party which conflict with, or in any
way purport to amend or add to any of the terms and conditions of
the Contract are specifically objected to by the other party and
shall be of no force or effect, nor shall govern in any way the
subject matter hereof, unless set forth in writing and signed by
both parties, subject to the provisions stated herein.
4.4 Time of
Performance
Time is of the
essence in the rendering of services hereunder. Contractor agrees to
perform all obligations and render services set forth per this
Contract in accordance with the schedules herein and as mutually
agreed upon between The University and Contractor during the term of
this Contract.
4.5 Default
In the event that the
Contractor fails to carry out or comply with any of the terms and
conditions of the Contract with The University, The University may
notify the Contractor of such failure or default in writing and
demand that the failure or default be remedied within ten (10) days;
and in the event that the Contractor fails to remedy such failure or
default within the ten (10) day period, The University shall have
the right to cancel the Contract.
Without limiting the
foregoing, the following shall constitute a material breach by the
Contractor, upon the occurrence of which the Contractor shall
immediately notify The University: the Contractor ceases its
business operation, makes a general assignment for the benefit of
creditors, is adjudged bankrupt, or becomes insolvent.
The cancellation of
the Contract, under any circumstances whatsoever, shall not effect
or relieve Contractor from any obligation or liability that may have
been incurred or will be incurred pursuant to the Contract and such
cancellation by The University shall not limit any other right or
remedy available to The University at law or in equity.
4.6 Termination
4.6.A.
For Convenience:
The Contract may be
terminated, without penalty, by The University without cause by
giving ninety (90) days written notice of such termination to the
Contractor.
4.6.B. In no
event shall such termination by The University as provided for under
this Section give rise to any liability on the part of The
University including, but not limited to, any claims of Contractor
for compensation for anticipated profits, unabsorbed overhead, or
interest on borrowing. The University's sole obligation hereunder is
to pay Contractor for products and/or services ordered and received
prior to the date of termination.
4.6.C. The
dispute resolution process provided for in Chapter 2260, Texas
Government Code, must be used by the parties to this agreement to
attempt to resolve all disputes arising under this agreement.
4.7 Payment
4.7.A. Contractor
shall promptly pay all bills for labor and material performed and
furnished by others in connection with the performance of its
obligations pursuant to this Contract.
4.7.B.
The University shall have the right to verify the details set forth
in Contractor's billings, certificates, and statements, either
before or after payment therefor, by (1) inspecting the books and
records of Contractor at mutually convenient times; (2) examining
any reports with respect to this Project; (3) interviewing
Contractor's business employees; (4) visiting any place where
performance of all or a portion of the Project occurs; and (5) other
reasonable action.
4.8 Contract
Amendments
The Contract may be
amended within the Contract period by mutual consent of the parties.
No modification or amendment to the Contract shall become valid
unless in writing and signed by both parties. All correspondence
regarding modifications or amendments to the Contract must be
forwarded to The University's Office of Business Affairs for prior
review and approval.
4.9 Independent
Contractor Status
Contractor recognizes
that it is engaged as an independent contractor and acknowledges
that The University will have no responsibility to provide
transportation, insurance or other fringe benefits normally
associated with employee status. The Contractor shall have no
authority to incur any obligations in the name of The University.
Contractor, in accordance with its
status as an independent contractor, covenants and agrees that it
shall conduct itself consistent with such status, that it will
neither hold itself out as nor claim to be an officer, partner,
employee or agent of The University by reason hereof, and that it
will not by reason hereof make any claim, demand or application to
or for any right or privilege applicable to an officer, partner,
employee or agent of The University, including, but not limited to,
unemployment insurance benefits, social security coverage or
retirement benefits. Contractor hereby agrees to make its own
arrangements for any of such benefits as it may desire and agrees
that it is responsible for all income taxes required by applicable
law.
4.10 Compliance with
Law
Contractor is aware
of, is fully informed about, and is in full compliance with its
obligations under existing applicable law and regulations, including
Title VI of the Civil Rights Act of 1964, as amended (42 USC
2000(D)); Executive Order 11246, as amended (41 CFR 60-1 and 60-2);
Vietnam Era Veterans Readjustment Act of 1974, as amended (41 CFR
60-250); Rehabilitation Act of 1973, as amended (41 CFR 60-741); Age
Discrimination Act of 1975 (42 USC 6101 et seq.); Non-segregated
Facilities (41 CFR 60-1); Omnibus Budget Reconciliation Provision,
Section 952; Fair Labor Standards Act of 1938, Sections 6, 7, and
12, as amended; Immigration Reform and Control Act of 1986;
Utilization of Small Business Concerns and Small Business Concerns
Owned and Controlled by Socially and Economically Disadvantaged
Individuals (PL 96-507); the Americans with Disabilities Act of 1990
(42 USC 12101 et seq.); the Civil Rights Act of 1991; and all laws
and regulations and executive orders as are applicable.
4.11 The University's
Right to Audit
At any time during
the term of this Contract and for a period of four (4) years
thereafter The University or a duly authorized audit representative
of The University, or the State of Texas, at its expense and at
reasonable times, reserves the right to audit Contractor's records
and books relevant to all services provided under this Contract. In
the event such an audit by The University reveals any
errors/overpayments by The University, Contractor shall refund The
University the full amount of such overpayments within thirty (30)
days of such audit findings, or The University, at its option,
reserves the right to deduct such amounts owing The University from
any payments due Contractor.
4.12 The University’s Right to
Audit Fares During Contract
The University reserves the right
to conduct an audit via a University-selected third-party auditor (e.g., Topaz,
Jenkins and Associates, etc.) to verify that the Agency provided The University
with the lowest logical available airfare according to University policy. In the
second Agreement year, this audit will be paid for by The University unless the
Agency’s score falls below 90%. (There would be no audit in the first contract
year). In the third Agreement year, the threshold percentage will be raised to
92%. The audit’s frequency, length, and number of PNRs to be audited will be
at The University’s discretion, with a capping cost to the Agency of $3,000
per year. Should The University-desired frequency, length, and/or number of PNRs
to be audited result in audit costs in excess of $3,000 per year, the difference
between the actual costs and $3,000 will be borne by The University. However,
the Agency is still liable for those costs under $3,000 should the
above-mentioned performance standards not be met. Selection of auditor will be
at The University’s full discretion. The University reserves the right to not
conduct an annual audit.
4.13 Title and
Risk of Loss
For services to be
provided by Contractor hereunder, the title and risk of loss
of the services shall not pass to The University until The University
actually receives, takes possession, and accepts the services at the
point or points of delivery.
4.14 Acceptance of Services
All services performed under this Contract shall be to
the satisfaction of The University and in accordance with the
specifications, terms, and conditions of the Contract. The
University reserves the right to inspect the services performed, and to determine the
quality and acceptability of such services.
4.15 Sales and Use
Tax
The University, as an
agency of the State of Texas, qualifies for exemption from State and
Local Sales and Use Taxes pursuant to the provisions of the Texas
Limited Sales, Excise, and Use Tax Act. The Contractor may claim
exemption from payment of applicable State taxes by complying with
such procedures as may be prescribed by the State Comptroller of
Public Accounts.
The Contractor shall comply fully
with the provisions of Sections 2252.061 - 2252.064, Texas Government Code,
which require the Contractor to present a financial statement prepared by a
certified public accountant to The University at the time of executing the
contract; require the Contractor to provide The University with certified
payment statements derived from sales tax reports; requires the Contractor to
execute a bond issued by a surety company authorized to do business in the State
of Texas in an amount determined by the university but not to exceed the
contract price and said bond to be payable to the State of Texas and conditioned
upon the faithful performance of the terms of the contract.
4.16 Insurance
For any Contract
which requires the Contractor to provide on-site services, the
Contractor shall, prior to commencement of work, provide The
University with Certificates of Insurance in the below amounts and
shall maintain such coverage in effect for the full duration of the
Contract.
- Workers' Compensation:
Employer's Liability
Comprehensive General Liability
- Comprehensive Automobile
Liability
(Any auto, hired auto, non-owned auto)
Bodily Injury:
Property Damage:
|
Statutory
$500,000
$300,000 each occurrence
$500,000 in the aggregate
$300,000 each person
$500,000 each occurrence
$300,000 each occurrence |
Contractor shall
deliver to The University:
- Certificates evidencing the
existence of all such insurance promptly after the execution and
delivery hereof and prior to the continued or additional
performance of any services to be performed by Contractor
hereunder from or after the date of any Agreement or purchase
order; and
- Replacement Certificates not less
than thirty (30) days prior to the expiration of any such
insurance. If, however, Contractor fails to pay any of the
renewal premiums for the expiring policies, The University shall
have the right to make such payments and set off the amount
thereof against the next payment coming due to Contractor under
any purchase order or Agreement; and
- Such Certificates shall name The
University as an Additional Insured, with the exception of
Workers' Compensation and Employer's Liability, and shall
provide that the policies will not be canceled until after
thirty (30) days' unconditional, unqualified written notice to
The University, giving The University the right to pay the
Premium to maintain coverage, in which event Paragraph 4.16.B.2
shall apply.
The insurance
policies required in this E-RFP shall be kept in force for the
periods specified below:
- Commercial General Liability
Insurance shall be kept in force until receipt of final payment
by the Contractor;
- Workers' Compensation Insurance
shall be kept in force until the Contractor's obligations have
been fully performed and accepted by The University in writing.
Contractor shall
provide The University a full and complete copy of any insurance
policy promptly upon request by The University, and without charge
to The University.
4.17 Indemnification
4.17.A. TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE CONTRACTOR AND
ITS AGENTS, PARTNERS, EMPLOYEES, AND CONSULTANTS (COLLECTIVELY
"INDEMNITORS") SHALL AND DO AGREE TO INDEMNIFY, PROTECT,
DEFEND WITH COUNSEL APPROVED BY UNIVERSITY, AND HOLD HARMLESS THE
UNIVERSITY AND THE UNIVERSITY OF TEXAS SYSTEM, ITS AFFILIATED
ENTERPRISES, REPRESENTATIVES OF THE UNIVERSITY, AND THEIR RESPECTIVE
OFFICERS, DIRECTORS, REGENTS, PARTNERS, EMPLOYEES AND AGENTS
(COLLECTIVELY "INDEMNITEES") FROM AND AGAINST ALL CLAIMS,
DAMAGES, LOSSES, LIENS, CAUSES OF ACTION, SUITS, JUDGMENTS AND
EXPENSES, INCLUDING ATTORNEY FEES, OF ANY NATURE, KIND, OR
DESCRIPTION (COLLECTIVELY "LIABILITIES") OF ANY PERSON OR
ENTITY WHOMSOEVER ARISING OUT OF, CAUSED BY, OR RESULTING FROM THE
PERFORMANCE OF SERVICES, OR PROVISION OF GOODS, BY CONTRACTOR
PURSUANT TO THIS CONTRACT, OR ANY PART THEREOF, WHICH ARE CAUSED IN
WHOLE OR IN PART BY ANY NEGLIGENT ACT OR OMISSION OF THE CONTRACTOR,
ANYONE DIRECTLY OR INDIRECTLY EMPLOYED BY IT OR ANYONE FOR WHOSE
ACTS IT MAY BE LIABLE EVEN IF IT IS CAUSED IN PART BY THE NEGLIGENCE
OR OMISSION OF ANY INDEMNITEE, SO LONG AS IT IS NOT CAUSED BY THE
SOLE NEGLIGENCE OR WILLFUL MISCONDUCT OF ANY INDEMNITEE. IN THE
EVENT MORE THAN ONE OF THE INDEMNITORS ARE CONNECTED WITH AN
ACCIDENT OR OCCURRENCE COVERED BY THIS INDEMNIFICATION, THEN EACH OF
SUCH INDEMNITORS SHALL BE JOINTLY AND SEVERALLY RESPONSIBLE TO THE
INDEMNITEES FOR INDEMNIFICATION AND THE ULTIMATE RESPONSIBILITY
AMONG SUCH INDEMNITORS FOR THE LOSS AND EXPENSE OF ANY SUCH
INDEMNIFICATION SHALL BE SETTLED BY SEPARATE PROCEEDINGS AND WITHOUT
JEOPARDY TO ANY INDEMNITEE. THE PROVISIONS OF THIS ARTICLE SHALL NOT
BE CONSTRUED TO ELIMINATE OR REDUCE ANY OTHER INDEMNIFICATION OR
RIGHT WHICH UNIVERSITY OR ANY OF THE INDEMNITEES HAS BY LAW.
4.17.B. CONTRACTOR
SHALL PROTECT AND INDEMNIFY THE UNIVERSITY FROM AND AGAINST ALL
CLAIMS, DAMAGES, JUDGMENTS AND LOSS ARISING FROM INFRINGEMENT OR
ALLEGED INFRINGEMENT OF ANY UNITED STATES PATENT, OR COPYRIGHT,
ARISING BY OR OUT OF ANY OF THE SERVICES PERFORMED OR GOODS PROVIDED
HEREUNDER OR THE USE BY CONTRACTOR, OR BY UNIVERSITY AT THE
DIRECTION OF CONTRACTOR, OF ANY ARTICLE OR MATERIAL, PROVIDED THAT
UPON BECOMING AWARE OF A SUIT OR THREAT OF SUIT FOR PATENT OR
COPYRIGHT INFRINGEMENT, UNIVERSITY SHALL PROMPTLY NOTIFY CONTRACTOR
AND CONTRACTOR SHALL BE GIVEN FULL OPPORTUNITY TO NEGOTIATE A
SETTLEMENT. CONTRACTOR DOES NOT WARRANT AGAINST INFRINGEMENT BY
REASON OF UNIVERSITY'S DESIGN OF ARTICLES OR THE USE THEREOF IN
COMBINATION WITH OTHER MATERIALS OR IN THE OPERATION OF ANY PROCESS.
IN THE EVENT OF LITIGATION, UNIVERSITY AGREES TO COOPERATE
REASONABLY WITH CONTRACTOR AND PARTIES SHALL BE ENTITLED, IN
CONNECTION WITH ANY SUCH LITIGATION, TO BE REPRESENTED BY COUNSEL AT
THEIR OWN EXPENSE.
4.17.C.
The indemnities contained herein shall survive the termination of
any Agreement or purchase order for any reason whatsoever.
4.18 Force Majeure
If either The
University or Contractor (individually, a "Party") is
delayed at any time in the performance of its obligations hereunder
by economic industry-wide strikes, fire, unusual delay in
deliveries, unavoidable casualties, or other causes reasonably
beyond such Party's control and which could not have been reasonably
anticipated by such Party, then the time for performance of such
Party shall be extended by one (1) day for each day of such delay.
4.19 Other Benefits
It is understood and
agreed that no benefits, payments or considerations received by
Contractor for the performance of services associated with and
pertinent to the resultant Contract shall accrue, directly or
indirectly, to any employees, elected or appointed officers or
representatives, or any other person identified as agents of, or who
are by definition an employee of, the State of Texas.
4.20 Non-Disclosure
Contractor and The
University acknowledge that they or their employees may, in the
performance of the resultant Contract, come into the possession of
proprietary or confidential information owned by or in the
possession of the other. Neither party shall use any such
information for its own benefit or make such information available
to any person, firm, corporation, or other organization, regardless
of whether directly or indirectly affiliated with Contractor or The
University, unless (i) required by law, (ii) by order of any court
or tribunal, (iii) such disclosure is necessary for the assertion of
a right, or defense of an assertion of a right, by one party against
the other party hereto, or (iv) such information has been acquired
from other sources.
4.21 Publicity
Contractor agrees
that it shall not publicize this Contract or disclose, confirm or
deny any details thereof to third parties or use any photographs or
video recordings of The University's employees or use The
University's name in connection with any sales promotion or
publicity event without the prior express written approval of
University.
4.22 Severability
In case any provision
hereof, or of any resulting Agreement or purchase order, shall, for
any reason, be held invalid or unenforceable in any respect, such
invalidity or unenforceability shall not affect any other provision
thereof, and this Contract shall be construed as if such invalid or
unenforceable provision had not been included herein.
4.23 Non-Waiver of
Defaults
No delay or omission
by either of the parties hereto in exercising any right or power
accruing upon the non-compliance or failure of performance by the
other party hereto of any of the provisions of this Contract shall
impair any such right or power or be construed to be a waiver
thereof. A waiver by either of the parties hereto of any of the
covenants, conditions or agreements thereof to be performed by the
other party hereto shall not be construed to be a waiver of any
subsequent breach thereof or of any other covenant, condition or
agreement therein contained.
4.24 Assignment
The Agreement with
Contractor is a personal service Contract for the services of
Contractor, and Contractor's interest in such Agreement, duties
thereunder and/or fees due thereunder may not be assigned or
delegated to a third party. The benefits and burdens of this
Agreement are, however, assignable by The University.
4.25 Assignment of
Overcharge Claims
Contractor hereby
assigns to The University any and all claims for overcharges
associated with the Contract arising under the antitrust laws of the
United States, 15 U.S.C.A., Sec. 1 et seq. (1973), or arising under
the antitrust laws of the State of Texas, Texas Business and
Commerce Code Annotated, Sec. 15.01, et seq. (1967).
4.26 Patent and
Copyright
Contractor shall pay
for any royalties, license fees, copyrights or trade and service
marks required to perform the services required by this Contract.
4.27 Texas Public
Information Act
The University
considers all information, documentation and other materials
requested to be submitted in response to this solicitation to be of
a non-confidential and/or non-proprietary nature and therefore shall
be subject to public disclosure under the Texas Public Information
Act (Texas Government Code, Chapter 552.001, et seq) after a
Contract is awarded.
Respondents are
hereby notified that The University strictly adheres to all
statutes, court decisions, and opinions of the Texas Attorney
General regarding the disclosure of E-RFP information.
4.28 Freedom of
Access and Use of Facilities
Contractor's
employees shall have reasonable and free access to use only those
facilities of The University that are necessary to perform services
under this Contract and shall have no right of access to any other
facilities of The University.
4.29 Observance of
University Rules and Regulations
Contractor agrees that at all
times its employees will observe and comply with the provisions of the Regents
Rules and component institutional Handbook of Operating Procedures. |
