1. Defined Terms:
- Agreement: The BSU SCT&C, the Scope of Services, and Sponsor Purchase Orders.
- BSU SCT&C: These Boise State University Standard Contract Terms and Conditions.
- Party or Parties:University and School are defined individually as a “Party” and collectively as the “Parties.”
- Registration Websites: The websites hosted by University for purpose of offering Services to Sponsor, where Sponsor may register for one or more of the “Math Education Collective – Professional Learning University Services” (“MEC PLUS”) services provided by University.
- Sponsor: Means that school district, entity, or individual purchasing the Services from University.
- Sponsor Purchase Orders: Any purchase order submitted to University by a Sponsor to pay for Services.
- Services: Means those services described in the Scope of Services and purchased by Sponsor for performance by University.
- Scope of Services: The University’s MEC PLUS services described on the Registration Websites as: “District Specific Math PD Initiatives.”
- University: Means Boise State University’s College of Education.
2. Invoices:
Sponsor agrees to pay University within thirty (30) days following receipt of an invoice for the Services, or immediately by credit/debit card via the Registration Websites. 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 Services 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 Services must be reasonably available for publication. The Parties acknowledge that University shall have the right to publish results. Sponsor agrees that any information supplied to University by Sponsor in connection with the Services may be included in any published material without prior approval from Sponsor.
4. Equipment & Supplies:
Unless otherwise provided in the Scope of Services, 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; Indemnity:
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 or employees, to the full extent required by law. Liability of University (and School to the extent it is applicable), 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 (and School to the extent it is applicable), 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 Section 6.
7. Services; Deliverables; Disclaimer:
University will make best efforts to ensure that its performance of the Services, including all deliverables provided under this Agreement, are provided substantially in accordance with the Scope of Services. TECHNICAL DATA, RESULTS, DELIVERABLES, REPORTS, INTELLECTUAL PROPERTY (“IP”) DISCLOSURES AND 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).
8. 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 School, prior written approval is required from an authorized representative of School.
9. Termination/Cancellation:
Either Party may terminate this Agreement, including cancellation of the Services by Sponsor, without cause, upon not less than thirty (30) days’ written notice to the other Party; provided, however, that University reserves the right to cancel or reschedule the Services (via e-mail, phone call and/or the “notice” methods described in Section 11 below to the designated representative of Sponsor to receive notices) for lack of participation up to seven (7) days before the performance of the Services. In the unlikely event University cancels the Services (or a portion of the Services) due to lack of participation, University will refund a pro-rated amount of registration fees 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 Services, 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 Services (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.
10. 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.
11. 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 certification, or (iii) email. For official email notice, (a) the email subject line must include at least “Official Agreement Notice” and (b) the email must include a PDF copy of this Agreement to a designated representative of the Parties as indicated below. Notice shall be deemed effective on the date received. 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, “Sponsor’s Authorized Official” identified in the Registration Websites; and (ii) for University, the Associate Vice-President for Sponsored Programs (or authorized designee), Office of Sponsored Programs, Boise State University, 1910 University Drive, Boise, ID 83725-1135, email: sponsoredagreements@boisestate.edu with a copy to Office of General Counsel, contracts@boisestate.edu.
12. 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 Sponsor’s Authorized Official (or an authorized individual on behalf of Sponsor’s Authorized Official) 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.
13. 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.
14. 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.
15. 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.
16. 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.
17. 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.
18. 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.
19. 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.
20. Headings:
Section headings are for reference and convenience only and shall not be determinative of the meaning or the interpretation of the language of this Agreement.
21. 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.
22. Electronic Signature:
Sponsor consents and agrees Sponsor’s Authorized Official’s (or an individual authorized by Sponsor’s Authorized Official) 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 Websites, 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 Sponsor’s Authorized Official in writing. Further, Sponsor and Sponsor’s Authorized Official 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 Services will be legally binding and such transaction will be considered authorized by Sponsor.
23. 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.
24. Term:
This Agreement shall be effective commencing on the date when School completes its registration for the Services on the Registration Websites (the “Effective Date”) and shall terminate on June 30, 2024, unless sooner terminated as provided herein or extended by written agreement of the Parties (the “Term”).
25. Force Majeure:
University 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.
26. Certifications:
University is prohibited by state law from entering into certain contractual agreements. Sponsor hereby certifies that: (a) pursuant to Idaho Code Section 67-2346, if payments under the Agreement exceed one hundred thousand dollars ($100,000) and it employs ten or more persons, it is not currently engaged in, and will not for the duration of the Agreement engage in, a boycott of goods or services from Israel or territories under its control; (b) pursuant to Idaho Code Section 67-2359, it is not currently owned or operated by the People’s Republic of China and will not for the duration of the Agreement be owned or operated by the People’s Republic of China; and (c) it is not an abortion provider or an affiliation of an abortion provider under the No Public Funds for Abortion Act. The terms in this section defined in Idaho Code Section 67-2346, Idaho Code Section 67-2359, and in Title 18, Chapter 87, Idaho Code, respectively, shall have the meanings defined therein.
27. 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) Scope of Services (including the applicable description on the Registration Websites), 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 Scope of Services, the supplemental terms and conditions shall apply only if specifically accepted by University in writing.
28. No Other Terms:
Subject to Paragraph 27, 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 applicable Scope of Services), the terms and conditions of the BSU SCT&C or Scope of Services, 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 applicable Scope of Services) in any subsequent invoice, purchase order, or other writing, shall be void unless specifically accepted by University in writing in accordance with Paragraph 27.
BSU SCT&C (MEC PLUS) (06-06-2022) REV 7-13-2023 – OSP 10580