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The Write Class Boise State University Standard Contract Terms and Conditions (7376 and NSP-0146 Non-Idaho)

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 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 WRITE CLASSTM.
  • Scope of Services:  University’s services described on the Registration Website as “Standard Site” (i.e., including the “Initial Site Build – Scope of Services” and “Annual Site Renewals – Scope of Services”).
  • Services:  Those services described in the Scope of Services and purchased by Sponsor for performance by University.
  • Sponsor:  That entity purchasing the Services from University.
  • Sponsor’s Authorized Official: The official authorized by Sponsor to enter into the Agreement with University as identified in the Registration Website.  Sponsor’s Authorized Official may delegate the responsibility to complete the requested information on the Registration Website to another authorized individual who is also identified in the Registration Website.
  • Sponsor Purchase Orders:  Any purchase orders or other documents submitted to University by a Sponsor to pay for Services.
  • THE WRITE CLASSTM: The web-based program designed by University to select the most suitable class placement for students based on their responses to various questions and tasks presented by the program.
  • University: Boise State University.

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 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 Services.

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 (other than Sponsor’s Confidential Information) supplied to University by Sponsor in connection with the Services may be included in any published material without prior approval from Sponsor.  University shall not publish any information subject to privacy laws, including without limitation, the Family Educational Rights Privacy Act (“FERPA”), without complying with applicable statutory and regulatory requirements governing such information.

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; 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 or employees, to the full extent required by law.  Liability of University (and Sponsor 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 the Parties under 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. Upon written request, a Party will furnish the other Party a certificate evidencing the insurance required by this Paragraph 6.

7. Intellectual Property:

“Intellectual Property,” as used herein, shall mean all discoveries, inventions, designs, methodologies, improvements, software, data and works of authorship, conceived, made, discovered, written or first reduced to practice in performance of the Services (“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 Services.

(a) IP shall be owned and licensed as follows:

  1. University’s Background IP shall be owned by University and licensed to Sponsor in accordance with Paragraph 7(b), and Sponsor’s Background IP, if any, shall be owned by Sponsor;
  2. IP created pursuant to this Agreement (“University IP”) shall be owned by University and licensed to Sponsor in accordance with Paragraph 7(b);
  3. Sponsor shall promptly sign and deliver any necessary documents and take any necessary actions that University reasonably requests to establish and perfect the rights herein assigned to University.

(b) “Licensed Works and Marks” as used herein shall expressly include the rights and interests to University IP, Intellectual Property, and Background IP associated with THE WRITE CLASSTM that are expressly granted to Sponsor herein, including in the designs, trademarks, service marks, logos, graphics, symbols, and other indicia such as the words “THE WRITE CLASS” associated with THE WRITE CLASSTM.

  1. Grant of License.  University hereby grants to Sponsor, its employees, agents and contractors, a limited, non-transferable, non-sublicensable and non-exclusive license to use the Licensed Works and Marks for assisting in the placement of students in college classes consistent with the Scope of Services (“License”).
  2. The License granted herein is for one-time implementation of the Licensed Works and Marks for non-commercial purposes only.
  3. Sponsor shall not create derivative works of the Licensed Works and Marks without the prior written approval of University. Sponsor acknowledges that University requires high quality and accurate reproduction of the Licensed Works and Marks.  No change may be made to the Licensed Works and Marks without the prior written permission of University. Sponsor agrees that it will not alter, modify, dilute, or otherwise misuse the Licensed Works and Marks, or bring them into disrepute.
  4. University reserves all other rights and interest in the Licensed Works and Marks including, without limitation, copyright and trademark. Sponsor, except for the rights granted herein, has no interest in or ownership of the Licensed Works and Marks, and agrees not to register or attempt to register, in any jurisdiction, any of the Licensed Works and Marks. Each copy of the Licensed Works and Marks and every written documentation, description, marketing piece, advertisement, or other representation of or concerning the Licensed Works and Marks shall conspicuously bear the appropriate trademark identification (i.e., “THE WRITE CLASSTM”) and a notice of University’s copyright (i.e.,  “Copyright 2014 Boise State University. All rights reserved.”).

(c) License Fees. In consideration for the granting of the License, Sponsor shall pay to University the License Fees set forth in the Scope of Services. Other than as set forth herein, no other fees, royalties, expenses or amounts shall be incurred by Sponsor in exchange for, or as a condition of receiving the rights granted herein to the Licensed Works and Marks. The License rights set forth herein shall not become effective until payment of all fees set forth herein have been received and accepted by University.  All amounts remitted hereunder shall be paid in U.S. dollars.

(d) Abandonment by Licensee.  In case of abandonment of the License by Sponsor, Sponsor shall give notice to University of its intent to abandon, and the Licensed Works and Marks shall thereupon be free and clear of the License and of all rights and privileges attaching thereto shall immediately revert to University. No refund of License Fees will be given in case of abandonment.

(e) Goodwill.  Sponsor acknowledges that University is the owner of the Licensed Works and Marks, including all goodwill associated therewith. Sponsor further acknowledges that its use of the Licensed Works and Marks inures to the benefit of University and that Sponsor shall not acquire any rights therein. University will retain all right, title, and interest in and to the Licensed Works and Marks, including any goodwill associated therewith, subject to the limited License granted to Sponsor hereunder.

8. Confidentiality.

Information provided by one Party (“Disclosing Party”) to another Party (“Receiving Party”) pursuant to this Agreement that is clearly identified by the Disclosing Party as confidential (“Confidential Information”) shall remain confidential and proprietary to the Disclosing Party and the Receiving Party shall receive and use the Confidential Information for the sole purpose of assisting in the implementation and use of the Licensed Works and Marks.  The Receiving Party agrees to protect the proprietary nature of the Confidential Information and agrees not to disclose the Confidential Information to any third party or parties without the prior written consent of the Disclosing Party, unless required by law.  In the event the Receiving Party 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, initial legal action to prevent, limit or condition such disclosure. WITHOUT LIMITING THE FOREGOING, THE BUSINESS TERMS OF THIS AGREEMENT, INCLUDING PRICING INFORMATION, ARE HEREBY DEEMED TO BE CONFIDENTIAL INFORMATION.

Unless otherwise specifically provided, whenever consent or approval of the University or Sponsor is required under the terms of this Agreement or the License, such consent or approval shall not be unreasonably withheld or delayed.  If either Party withholds any consent or approval, such Party on written request shall promptly deliver to the other Party a written statement giving the reasons therefore.

10. Services:

Deliverables; Disclaimers; Waiver of Claims: University will make reasonable efforts to ensure its performance of the Services, including all deliverables provided under this Agreement, are provided substantially in accordance with the Scope of Services. 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 WRITE CLASSTM 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. THE LICENSED WORKS AND MARKS, SERVICES, REGISTRATION WEBSITE, TECHNICAL DATA, RESULTS, DELIVERABLES, REPORTS, IP DISCLOSURES, IP, INTELLECTUAL PROPERTY AND BACKGROUND IP PROVIDED BY UNIVERSITY ARE ALL PROVIDED 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, NOVELTY OF INTELLECTUAL PROPERTY AND NON‑INFRINGEMENT.  UNIVERSITY DOES NOT MAKE ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, THAT THE USE OF LICENSED WORKS AND MARKS WILL NOT INFRINGE ANY PATENT, COPYRIGHT OR OTHER INTELLECTUAL PROPERTY RIGHTS, AND NOTHING CONTAINED IN THIS AGREEMENT IS TO BE CONSTRUED AS PERMISSION, A RECOMMENDATION OR AN INDUCEMENT TO USE OR PRACTICE ANY PRODUCT, PROCESS, PROCESS, EQUIPMENT OR FORMULATION THAT MAY INFRINGE UPON ANY OTHER INTELLECTUAL PROPERTY RIGHTS WITHOUT THE PRIOR WRITTEN PERMISSION OF THE INTELLECTUAL PROPERTY OWNER.  SPONSOR HEREBY ACKNOWLEDGES THE SERVICES AND LICENSED WORKS AND MARKS MAY NOT SATISFY THE REQUIREMENTS OF: (I) NON-UNITED STATES LAWS INCLUDING, WITHOUT LIMITATION, PRIVACY LAWS; AND/OR (II) LAWS REQUIRING ACCOMMODATIONS FOR INDIVIDUALS WITH DISABILITIES. SPONSOR HEREBY WAIVES ITS RIGHTS TO ANY AND ALL CLAIMS, SUITS AND/OR ACTIONS AGAINST UNIVERSITY BASED ON, ARISING OUT OF OR RELATING TO ANY OF THE MATTERS DESCRIBED IN THIS PARAGRAPH 10, AND IN NO EVENT, SHALL UNIVERSITY 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).

11. Use of Tradenames and Service Marks:

Except for those rights set forth herein, 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, other than as specifically required for carrying out the Scope of Services associated with this Agreement.  Notwithstanding the foregoing, University and/or its contractors may include the name and/or Marks of Sponsor or of any employee of that Party in advertising, sales promotion or other publicity matter, unless the other Party submits to University a written objection to such use. In the case of Sponsor using Marks of University, prior written approval is required from the Director of Trademark Licensing and Enforcement.

12. Termination:

Either Party may terminate this Agreement without cause, upon not less than one hundred (100) days’ written notice to the other Party.  Termination of this Agreement shall not relieve a Party from its obligations incurred prior to the termination date.  Upon early termination of this Agreement by Sponsor, Sponsor shall pay all 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 and obligations to contractors 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.

13. 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 seek such other and further relief as may be provided by law;  University may also terminate access to THE WRITE CLASSTM site.

14. 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, 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. 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 Website; 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 the Office of the General Counsel, contracts@boisestate.edu.

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 Sponsor 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.

16. 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.

17. Reserved.

18. Governing Law, Jurisdiction and Venue:

This Agreement shall be governed by and construed under the laws of the State of Idaho, United States of America, 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. Sponsor hereby consents to personal jurisdiction in the State of Idaho.

19. Assignment:

Sponsor shall not assign this Agreement and/or the License without the prior written consent of University, 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.

20. 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.

21. 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.

22. 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.

23. Headings:

Paragraph and subparagraph headings are for reference and convenience only and shall not be determinative of the meaning or the interpretation of the language of this Agreement.

24. 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.

25. Electronic Signature:

Sponsor consents and agrees that 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 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 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 hereby 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 shall be considered authorized by Sponsor.

26. 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.

27. Term:

This Agreement shall be effective commencing on the date when Sponsor completes its registration for the Services on the Registration Website (the “Effective Date”) and shall continue from year to year unless one of the Parties have provided written notice of its intent not to renew one hundred (100) days before the expiration of the then current term or the Agreement is otherwise terminated by a Party as provided herein (the “Term”).

28. Force Majeure:

Neither Party shall 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, appropriation acts, executive orders or any other force majeure event.

29. 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 and C, (2) Scope of Services (including the applicable description on the Registration Website), (3) License and (4) 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 and C shall supersede Sponsor Purchase Orders).  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 Sponsor Purchase Orders supplement the terms and conditions in the BSU SCT and C and/or Scope of Services, the supplemental terms and conditions shall apply only if specifically accepted by University in writing. This Order of Precedence shall survive the expiration or termination of this Agreement.

30. 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.

31. No Other Terms:

Subject to Paragraph 29, where terms and conditions specified in Sponsor Purchase Orders or other writings between the Parties differ from those specifically stated in the BSU SCT and C (including the Scope of Services), the terms and conditions of the BSU SCT and C and/or Scope of Services, as applicable, shall apply.  University hereby specifically objects to and rejects any terms and conditions that are in conflict with the BSU SCT and C and Scope of Services.  In the event University honors one or more terms in Sponsor Purchase Orders or other writings that conflict with the BSU SCT and C and/or Scope of Services, such action does not constitute University’s acceptance of any other terms in such writings or Sponsor Purchase Orders.  Any reference to terms and conditions other than the BSU ST and C and Scope of Services in any subsequent Sponsor Purchase Orders, checks or other writings, shall be void unless specifically accepted by University in writing in accordance with Paragraph 29.

The Write Class Boise State University Standard Contract Terms and Conditions (7376 and NSP-0146 Non-Idaho) (GC 11/21/2018) (Updated 7/12/2023)