1.1 Relationship of the Parties
The parties to the Agreement (each a “Party” and collectively the “Parties”) acknowledge that Lone Star College System District (the “College”) is retaining other party (“Contracting Party”) as an independent contractor, and their relationship is contractual. Unless otherwise provided for in the Agreement, Contracting Party has no authority to commit, act for or on behalf of the College, or to bind the College to any obligation or liability. Contracting Party shall not be eligible for and shall not receive any employee benefits from the College and shall be solely responsible for the payment of all its required taxes, FICA, federal and state unemployment insurance contributions, state disability premiums, and all similar taxes and fees.
1.2 Confidentiality
Unless otherwise public information under Section 1.12, Confidential Information, including, but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts, or rebates disclosed by the College to Contracting Party, whether disclosed orally or accessed in written, electronic, or other form or media, and whether or not marked, designated, or otherwise identified as “confidential,” in connection with the Agreement is confidential, solely for Contracting Party’s use in performing the Agreement and may not be disclosed or copied unless authorized by the College in writing. Confidential Information does not include any information that: (a) is or becomes generally available to the public other than as a result of Contracting Party’s breach of the Agreement; (b) is obtained by Contracting Party on a non-confidential basis from a third-party that was not legally or contractually restricted from disclosing such information; (c) Contracting Party establishes by documentary evidence was in Contracting Party’s possession prior to College’s disclosure hereunder; or (d) was or is independently developed by Contracting Party without using any Confidential Information. Upon College’s request, Contracting Party shall promptly return all documents and other materials received from the College. The College shall be entitled to injunctive relief for any violation of this Section.
1.3 Dispute Resolution
The dispute resolution process provided for in Chapter 2260 of the Texas Government Code governs any claim for breach of contract Contracting Party makes after the Effective Date, to the extent it is applicable to the Agreement and not preempted by other law. Nothing herein is a waiver by the College of the right to seek redress in a court of law.
1.4 Rights and Obligations
Contracting Party acknowledges that because College is an institution of higher education of the State of Texas, College’s rights and obligations under the Agreement and its approval thereof are subject to and limited by the laws of the State of Texas.
1.5 Indemnification by Contracting Party
CONTRACTING PARTY TO THE EXTENT ALLOWED UNDER THE LAWS AND CONSTITUTION OF THE STATE OF TEXAS, SHALL INDEMNIFY AND HOLD THE COLLEGE, ITS TRUSTEES, OFFICERS, EMPLOYEES, AGENTS, AND COMPONENT CAMPUSES HARMLESS FROM ANY AND ALL MANNER OF SUITS, CLAIMS, OR DEMANDS ARISING OUT OF CONTRACTING PARTY’S NEGLIGENT OR INTENTIONAL ACTS OR OMISSIONS PURSUANT TO THE AGREEMENT (COLLECTIVELY, “INDEMNIFYING ACTS”). CONTRACTING PARTY SHALL REIMBURSE THE COLLEGE FOR ANY AND ALL COSTS, DAMAGES, AND EXPENSES, INCLUDING REASONABLE ATTORNEY’S FEES, TO WHICH THE COLLEGE MAY BE SUBJECT AS A RESULT OF THE OCCURRENCE OF ANY INDEMNIFYING ACT. CONTRACTING PARTY AKNOWLEDGES THE AMOUNT OF ANY INSURANCE REQUIRED TO BE MAINTAINED BY CONTRACTING PARTY HEREUNDER SHALL NOT CONSTITUTE A LIMITATION ON ITS INDEMNIFICATION OBLIGATION. THE PARTIES INTEND FOR THIS PROVISION TO SURVIVE ANY TERMINATION OF THE AGREEMENT.
1.6 Indemnification by College
CONTRACTING PARTY ACKNOWLEDGES THAT ANY INDEMNIFICATION AND OR HOLD HARMLESS OBLIGATIONS MADE BY THE COLLEGE IN THE AGREEMENT ARE ENFORCEABLE ONLY TO THE EXTENT PERMITTED BY THE CONSTITUTION AND LAWS OF THE STATE OF TEXAS AND WITHOUT WAIVER OF GOVERNMENTAL IMMUNITY BY THE COLLEGE.
1.7 General Indemnification
CONTRACTING PARTY ACKNOWLEDGES THAT THE COLLEGE, AS A PUBLIC JUNIOR COLLEGE DISTRICT PURSUANT TO TEXAS EDUCATION CODE 130.004, IS IMMUNE FROM ALL TORT CLAIMS, EXCEPT THOSE INVOLVING THE NEGLIGENT USE OR OPERATION OF A MOTOR VEHICLE OR AS OTHERWISE SPECIFIED BY LAW. CONTRACTING PARTY ACKNOWLEDGES THAT NOTHING CONTAINED WITHIN THE AGREEMENT CONSTITUTES A WAIVER OF IMMUNITY BY THE COLLEGE, NOR AN AGREEMENT TO ASSUME ANY LIABILITIES OF CONTRACTING PARTY FOR WHICH THE COLLEGE WOULD BE ENTITLED TO CLAIM IMMUNITY. THE COLLEGE WILL NOT BE LIABLE FOR ANY DAMAGE OR INJURY TO CONTRACTING PARTY OR ITS EMPLOYEES OR ITS PROPERTIES, EXCEPT TO THE EXTENT PERMITTED UNDER TEXAS LAWS.
THE PARTIES ACKNOWLEDGE THAT TO THE EXTENT PERMITTED BY THE LAWS AND CONSTITUTION OF THE STATE OF TEXAS, EACH PARTY SHALL DEFEND, INDEMNIFY AND HOLD HARMLESS THE OTHER PARTY AND ITS AFFILIATES AND THEIR RESPECTIVE AGENTS, SERVANTS, AND EMPLOYEES (COLLECTIVELY “THE INDEMNIFIED PARTIES”) FROM AND AGAINST ANY LOSSES, EXPENSES, AND LIABILITIES (INCLUDING REASONABLE ATTORNEY’S FEES) ARISING OUT OF, OR IN CONNECTION WITH, ANY NEGLIGENT OR WILLFUL ACT OR OMISSION OF THE INDEMNIFYING PARTY UNDER THE AGREEMENT. THE OBLIGATIONS OF THE INDEMNIFYING PARTY UNDER THIS SECTION SHALL SURVIVE THE TERMINATION OF THE AGREEMENT.
1.8 Damages
Nothing in the Agreement shall limit Contracting Party’s liability (a) in tort for its willful or intentional misconduct, (b) for bodily injury or death proximately caused by negligence, or (c) for loss or damage to real property or tangible personal property proximately caused by negligence.
1.9 Publicity
Contracting Party shall not use the College’s name, logo, or likeness in any press release, marketing materials, or public announcement without receiving the College’s prior written approval.
1.10 Severability
The Parties intend that if any one or more of the provisions contained in the Agreement is for any reason held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability will not affect any other provision, and the Agreement shall be construed as if such invalid, illegal or unenforceable provision(s) had never been contained in it. To this end, the provisions of the Agreement are declared to be severable. The Parties may mutually agree to renegotiate the Agreement to cure such illegality/invalidity or unconstitutionality if such may be reasonably accomplished.
1.11 Public Information
Contracting Party acknowledges that the College strictly adheres to all statutes, court decisions, and the opinions of the Texas Attorney General with respect to disclosure of public information under the TPIA. In accordance with Texas Government Code Sections 552.002 and 2252.907, and at no additional charge to the College, Contracting Party shall make any information created or exchanged with the College pursuant to the Agreement (and not otherwise exempt from TPIA disclosure) available promptly upon request in a format that is accessible by the public.
1.12 Section 552.372 Compliance
Contracting Party acknowledges that the requirements of the TPIA, Chapter 552 of the Texas Government Code, Subchapter J, may apply to the Agreement if it is valued at more than $1 million. Contracting Party acknowledges the Agreement can be terminated if Contracting Party knowingly or intentionally fails to comply with a requirement of that subchapter, including the preservation of all Contracting Information and the provision, upon the College’s request, of all Contracting Information. Contracting Information includes, but is not limited to, records, communications and other documents related to any bid process, contract, payments, receipts, scope of work/services, and performance.
1.13 Liability Limitation
The Parties intend that the parties shall not be liable under the Agreement for any indirect, incidental, special, or consequential damages of the other party resulting from such party’s performance or failure to perform under the Agreement.
1.14 Set Off
If Contracting Party fails to satisfactorily perform under the Agreement on a timely basis, then the College shall have the right, without prejudice to any other rights or remedies it may have under the Agreement or any applicable Statement of Work, to withhold payment otherwise due to Contracting Party in a corresponding set off against any related College-incurred damages.
1.15 Cumulative Remedies
All rights and remedies provided in the Agreement are cumulative and not exclusive, and the exercise by either party of any right or remedy does not preclude the exercise of any other rights or remedies that may now or subsequently be available at law, in equity, by statute, in any other agreement between the Parties, or otherwise.
1.16 Assignment
Neither party shall assign, delegate, or subcontract the Agreement or its obligations to third parties without the other party’s prior written consent signed by an authorized representative. The College’s approval shall not relieve Contracting Party of its obligations under the Agreement, and Contracting Party shall remain fully responsible for the performance of each permitted assignee, delegee, or subcontractor and its employees and for their compliance with the Agreement’s terms and conditions as if they were Contracting Party’s own employees. Nothing contained in the Agreement shall create any contractual relationship between the College and the Contracting Party’s subcontractors or suppliers. Further, Contracting Party shall require any permitted assignee, delegee, or subcontractor to be bound in writing by the confidentiality provisions of the Agreement, and, upon the College’s written request, to enter into a non-disclosure or intellectual property assignment or license agreement in a form that is reasonably satisfactory to the College.
1.17 No Third-Party Beneficiaries
Unless otherwise specified herein, the Agreement benefits solely the Parties and their respective successors and permitted assigns, and nothing in the Agreement, express or implied, confers on any third party any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of the Agreement.
1.18 Governing Law
The laws of the state of Texas govern all matters arising out of the Agreement. The Parties consent to jurisdiction and venue in the state courts for Montgomery County, Texas, for any action brought under the Agreement.
1.19 Immunity Reservation
The College intends to reserve all immunity or defenses on its behalf and that of its trustees, officers, employees, and agents.
1.20 Waivers
The Parties acknowledge that waivers, if any, are limited to the applicable occasion and only for the purpose given and are not to be construed as a waiver on any other occasion, for any other purpose, or against any other person.
1.21 Force Majeure
The Parties’ respective obligations under the Agreement may be suspended if: (1) the Parties mutually agree; (2) a party is prevented from performing by the wrongful or negligent acts or omissions of the other party; or (3) a Force Majeure Event occurs. The affected party shall give prompt notice of the Force Majeure Event to the other party, stating the period the occurrence is expected to continue. The affected party shall use diligent efforts to end the suspension and ensure the effects of such Force Majeure Event are minimized. The affected party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause. “Force Majeure Event(s)” means one or more of the following events: (a) acts of God; (b) flood, fire, earthquake, explosion, or other potential disasters or catastrophes such as epidemics or pandemics; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, law, or action; (e) embargoes or blockades in effect on or after the date of the Agreement; (f) national or regional emergency; and or (g) power outages or shortages.
1.22 Section Headings
The Parties acknowledge that the headings of articles, sections, and subsections are only convenience markers; section headings do not limit, define, extend, or construe the Agreement’s terms, provisions, obligations, representations, or warranties.
1.23 Merger Clause
The Agreement constitutes the entire agreement of the Parties and supersedes all previous negotiations, understandings, and agreements, both written and oral, between the Parties regarding the Agreement’s subject matter. In the event of any conflict between provisions in the body of the Agreement and any attachments, appendices, exhibits, amendments, addendums, or other documents incorporated by reference, the provisions in the body of the Agreement shall control.
1.24 Amendments
The Parties may amend the Agreement only by an agreement in writing executed by both Parties’ authorized representatives.
1.25 Counterparts
The Parties may execute the Agreement in counterparts, each of which constitutes an original, and all which, collectively, constitute only one agreement. The delivery of an executed counterpart signature page by facsimile or PDF is as effective as delivering the Agreement in the presence of the other party to the Agreement.
1.26 Tax Exemption
Contracting Party acknowledges that the College is exempt from payment of state and local sales tax under the Texas Limited Sales, Excise, and Use Tax Act.
1.27 Contracting Party Certification Regarding Business With Certain Countries and Organizations
Contracting Party represents and warrants, in accordance with Texas Government Code Chapter 2252, Subchapter F, that it does not engage in business with Iran, Sudan, or a Foreign Terrorist Organization. Contracting Party will not engage in business with Iran, Sudan, or a Foreign Terrorist Organization during the Agreement’s term. If Contracting Party breaches this warranty, the College may immediately terminate the agreement.
1.28 Family Code Certification
Contracting Party represents and warrants, in accordance with Texas Family Code Section 231.006, that it is not more than 30 days delinquent in paying child support if it a child support obligor.
1.29 Compliance
Contracting Party shall comply with all applicable laws, rules, regulations, and College policies and procedures, including security procedures concerning systems and data and remote access thereto, building security procedures, and general health and safety practices and procedures.
1.30 Definitions
Capitalized terms not otherwise defined herein have the meanings set forth in the applicable Agreement between the Parties.