The Following Terms and Conditions Are Incorporated Into and Form a Part of the NAME OF

The following terms and conditions are incorporated into and form a part of the [NAME OF AGREEMENT] to which they are attached (the “Agreement”) for all purposes. “University” means The University of Texas Medical Branch at Galveston and “Contractor” means [OTHER PARTY].

1.Representations and Warranties by Contractor. If Contractor is a corporation or a limited liability company, Contractor warrants, represents, covenants, and agrees that it is duly organized, validly existing and in good standing under the laws of the state of its incorporation or organization and is duly authorized and in good standing to conduct business in the State of Texas, that it has all necessary power and has received all necessary approvals to execute and deliver the Agreement, and the individual executing the Agreement on behalf of Contractor has been duly authorized to act for and bind Contractor.

2.Tax Certification. If Contractor is a taxable entity as defined by Chapter 171, Texas Tax Code (“Chapter 171”), then Contractor certifies that it is not currently delinquent in the payment of any taxes due under Chapter 171, or that Contractor is exempt from the payment of those taxes, or that Contractor is an out-of-state taxable entity that is not subject to those taxes, whichever is applicable.

3.Eligibility Certifications. Pursuant to Sections 2155.004 and 2155.006, Texas Government Code, Contractor certifies that the individual or business entity named in the Agreement is not ineligible to receive the award of or payments under the Agreement and acknowledges that the Agreement may be terminated and payment withheld if these certifications are inaccurate.

4.Payment of Debt or Delinquency to the State. Pursuant to Sections 2107.008 and 2252.903, Texas Government Code, Contractor agrees that any payments owing to Contractor under the Agreement may be applied directly toward any debt or delinquency that Contractor owes the State of Texas or any agency of the State of Texas regardless of when it arises, until such debt or delinquency is paid in full.

5.Texas Family Code Child Support Certification. Pursuant to Section 231.006, Texas Family Code, Contractor certifies that it is not ineligible to receive the award of or payments under the Agreement and acknowledges that the Agreement may be terminated and payment may be withheld if this certification is inaccurate.

6.Access by Individuals with Disabilities. Contractor represents and warrants (the “EIR Accessibility Warranty”) that the electronic and information resources and all associated information, documentation, and support that it provides to University under the Agreement (collectively, the “EIRs”) comply with the applicable requirements set forth in Title 1, Chapter 213 of the Texas Administrative Code and Title 1, Chapter 206, Rule §206.70 of the Texas Administrative Code (as authorized by Chapter 2054, Subchapter M of the Texas Government Code). To the extent Contractor becomes aware that the EIRs, or any portion thereof, do not comply with the EIR Accessibility Warranty, then Contractor represents and warrants that it will, at no cost to University, either (1) perform all necessary remediation to make the EIRs satisfy the EIR Accessibility Warranty or (2) replace the EIRs with new EIRs that satisfy the EIR Accessibility Warranty. In the event that Contractor fails or is unable to do so, then University may terminate the Agreement and Contractor will refund to University all amounts University has paid under the Agreement within thirty (30) days after the termination date.

7.Notice. Except as otherwise provided in this Section, all notices, consents, approvals, demands, requests or other communications provided for or permitted to be given under any of the provisions of the Agreement will be in writing and will be deemed to have been duly given or served when delivered by hand delivery or when deposited in the U.S. mail by registered or certified mail, return receipt requested, postage prepaid, and addressed as follows:

If to University:The University of Texas Medical Branch at Galveston

Attn: Chief Purchasing Agent

301 University Blvd., Mail Route 0905

Galveston, Texas 77555-0905

cc:The University of Texas Medical Branch at Galveston

Attn:Executive Vice President and Chief

Business and Finance Officer

301 University Blvd., Mail Route 0128

Galveston, Texas 77555-0128

If to Contractor:

Attention:

or such other person or address as may be given in writing by either party to the other in accordance with the aforesaid.

Notwithstanding any other requirements for notices given by a party under the Agreement, if Contractor intends to deliver written notice to University pursuant to Section 2251.054, Texas Government Code, then Contractor will send that notice to University as follows:

The University of Texas Medical Branch at Galveston

301 University Boulevard (mail route 0905)

Galveston, Texas 77555-0905

Fax: 281-554-5368

Email:

Attention: Chief Purchasing Agent

with copy to:

The University of Texas Medical Branch at Galveston

301 University Boulevard (mail route 0171)

Galveston, Texas 77555-0171

Fax: 409-772-1904

Email:

Attention: VP & Chief Legal & Regulatory Affairs Officer

or such other person or address as may be given in writing by University to Contractor in accordance with this Section.

8.Venue; Governing Law. Galveston County Texas will be the proper place of venue for suit on or in respect of the Agreement. The Agreement and all of the rights and obligations of the parties hereto and all of the terms and conditions hereof will be construed, interpreted and applied in accordance with and governed by and enforced under the laws of the State of Texas.

9.Breach of Contract Claims. To the extent that Chapter 2260, Texas Government Code, is applicable to the Agreement and is not preempted by other applicable law, the dispute resolution process provided for in Chapter 2260 and the related rules adopted by the Texas Attorney General pursuant to Chapter 2260, will be used by University and Contractor to attempt to resolve any claim for breach of contract made by Contractor that cannot be resolved in the ordinary course of business. The chief business officer of University will examine Contractor's claim and any counterclaim and negotiate with Contractor in an effort to resolve such claims. The parties specifically agree that (i) neither the execution of the Agreement by University nor any other conduct, action or inaction of any representative of University relating to the Agreement constitutes or is intended to constitute a waiver of University’s or the state's sovereign immunity to suit; and (ii) University has not waived its right to seek redress in the courts.

10.Entire Agreement; Modifications. The Agreement supersedes all prior agreements, written or oral, between Contractor and University and will constitute the entire Agreement and understanding between the parties with respect to the subject matter hereof. The Agreement and each of its provisions will be binding upon the parties and may not be waived, modified, amended or altered except by a writing signed by University and Contractor.

11.Loss of Funding. Performance by University under the Agreement may be dependent upon the appropriation and allotment of funds by the Texas State Legislature (the "Legislature") and/or allocation of funds by the Board of Regents of The University of Texas System (the "Board"). If the Legislature fails to appropriate or allot the necessary funds, or the Board fails to allocate the necessary funds, then University will issue written notice to Contractor and University may terminate the Agreement without further duty or obligation hereunder. Contractor acknowledges that appropriation, allotment, and allocation of funds are beyond the control of University.

12.State Auditor’s Office. Contractor understands that acceptance of funds under the Agreement constitutes acceptance of the authority of the Texas State Auditor’s Office, or any successor agency (collectively, “Auditor”), to conduct an audit or investigation in connection with those funds pursuant to Sections 51.9335(c), 73.115(c) and 74.008(c), Texas Education Code. Contractor agrees to cooperate with the Auditor in the conduct of the audit or investigation, including without limitation providing all records requested. Contractor will include this provision in all contracts with permitted subcontractors.

13.Limitations. The Parties are aware that there are constitutional and statutory limitations on the authority of University (a state agency) to enter into certain terms and conditions of the Agreement, including, but not limited to, those terms and conditions relating to liens on University’s property; disclaimers and limitations of warranties; disclaimers and limitations of liability for damages; waivers, disclaimers and limitations of legal rights, remedies, requirements and processes; limitations of periods to bring legal action; granting control of litigation or settlement to another party; liability for acts or omissions of third parties; payment of attorneys’ fees; dispute resolution; indemnities; and confidentiality (collectively, the “Limitations”), and terms and conditions related to the Limitations will not be binding on University except to the extent authorized by the laws and Constitution of the State of Texas.

14.University’s Premises Rules. If the Agreement requires the presence on University’s premises of Contractor’s employees, subcontractors or other under Contractor’s control they must be escorted by a University employee at all times. Contractor shall comply with all applicable rules of such premises, including without limitation those relative to environmental quality, safety, security, fire prevention, no smoking, traffic and parking.

Care for University patients is the first priority. When patients are being transported in University elevators, Contractor’s employees, agents, representatives, and subcontractors should exit the elevator and wait for the next available one to arrive.

Additionally, if Contractor’s employees, agents, and/or subcontractors are performing work on University’s premises for a period longer than three (3) days or twenty (20) hours, Contractor will be subject to University’s Security Requirements, which will require Contractor to perform a security clearance check and a urine drug test on each individual. Please contact University’s Purchasing Compliance Officer at 409.747.8000 if your work meets these criteria.

15.Acknowledgement of HIPAA Obligation. To the extent Contractor comes into contact with information considered Individually Identifiable Health Information, Protected Health Information or Electronic Protected Health Information (collectively, “Protected Information”), as defined by the Health Insurance Portability and Accountability Act of 1996 (42 U.S.C. §1320(D)) (“HIPAA”), as amended by the Health Information Technology for Economic and Clinical Health Act of 2009 (“HITECH Act”) and as regulated by the Department of Health and Human Services (“DHHS”) through the adoption of standards 45 CFR Parts 160 and 164 (Privacy Rule) and 45 CFR Parts 160, 162 and 164 (Security Rule), collectively referred to herein as “the HIPAA Rules,” Contractor agrees to keep private and to secure any information considered Protected Information in accordance with federal law.

(a)Contractor agrees to only use and disclose Protected Information as required to perform the services outlined in this Agreement. Contractor may use and disclose Protected Information for the proper management and administration of the Contractor’s operations and for data aggregation services to the extent permitted by the HIPAA Rules.

(b)Contractor will not use or further disclose Protected Information other than as permitted or required under this Agreement or as required by law.

(c)Contractor will use appropriate safeguards to prevent the use or disclosure of Protected Information for any reason other than as provided by this Agreement. Contractor shall implement administrative, physical, and technical safeguards that reasonably and appropriately protect the confidentiality, integrity, and availability of the electronic Protected Information that it creates, receives, maintains or transmits on behalf of University.

(d)Contractor agrees to promptly notify University of any use or disclosure of Protected Information not provided for in this Agreement of which it becomes aware. Contactor shall report to University any instances, including security incidents, of which it is aware in which Protected Information is used or disclosed for a purpose that is not otherwise provided for in this Agreement or for a purpose not expressly permitted by the HIPAA Rules.

(e)Contractor shall require any agents or subcontractors who receive Protected Information to be bound by the same restrictions and conditions outlined in this Agreement. Additionally, Contractor shall ensure that any agent, including a subcontractor, agrees to implement reasonable and appropriate safeguards to protect the confidentiality, integrity and availability of electronic Protected Information that Contractor creates, receives, maintains, or transmits on behalf of University.

(f)To the extent it is determined Contractor maintains a Designated Record Set, Contractor agrees to follow 45 CFR §§ 164.524 (Access of Individuals to PHI), 164.526 (Amendment of PHI) and 164.528 (Accounting of Disclosures of PHI) of the HIPAA Rules.

(g)Contractor agrees to make its internal practices, books, and records relating to the use and disclosure of PHI received from University available to the Secretary of Health and Human Services or the Secretary’s designee for purposes of determining University’s compliance with the HIPAA Rules.

(h)After completion and/or termination of this Agreement, Contractor agrees to return or destroy all Protected Information, if feasible, and, if not feasible, Contractor agrees to continue to protect the Protected Information from wrongful uses and disclosures.

(i)Contractor understands that University may terminate this Agreement immediately if University determines Contractor violated a material term of this Agreement and Contractor’s actions are not successful in remedying the breach. If termination is not feasible University may report the problem to the Secretary of DHHS.

(j)Contractor may use and disclose de-identified Protected Information if University approves of the use of de-identified Protected Information and the Protected Information is de-identified in compliance with the HIPAA Rules.

(k)Contractor shall ensure that all uses and disclosures of Protected Information are subject to the principle of “minimum necessary use and disclosure,” i.e., that only Protected Information that is the minimum necessary to accomplish the intended purpose of the use, or disclosure is used or disclosed.

16.Ethics Matters; No Financial Interest. Contractor and its employees, agents, representatives and subcontractors have read and understand University’s Conflicts of Interest Policy available at http://research.utmb.edu/Comp-COI/default.shtm, University’s Standards of Conduct Guide available at http://www.utmb.edu/compliance/socg_2005_3rded/soc_guide2005.pdf and applicable state ethics laws and rules available at www.utsystem.edu/ogc/ethics. Neither Contractor nor its employees, agents, representatives or subcontractors will assist or cause University employees to violate University’s Conflicts of Interest Policy, provisions described by University’s Standards of Conduct Guide, or applicable state ethics laws or rules. Contractor represents and warrants that no member of the Board has a direct or indirect financial interest in the transaction that is the subject of this Agreement.

17.Undocumented Workers. The Immigration and Nationality Act (8 United States Code 1324a) (“Immigration Act”) makes it unlawful for an employer to hire or continue employment of undocumented workers. The United States Immigration and Customs Enforcement Service has established the Form I-9 Employment Eligibility Verification Form (“I-9 Form”) as the document to be used for employment eligibility verification (8 Code of Federal Regulations 274a). Among other things, Contractor is required to: (1) have all employees complete and sign the I-9 Form certifying that they are eligible for employment; (2) examine verification documents required by the I-9 Form to be presented by the employee and ensure the documents appear to be genuine and related to the individual; (3) record information about the documents on the I-9 Form, and complete the certification portion of the I-9 Form; and (4) retain the I-9 Form as required by law. It is illegal to discriminate against any individual (other than a citizen of another country who is not authorized to work in the United States) in hiring, discharging, or recruiting because of that individual’s national origin or citizenship status. If Contractor employs unauthorized workers during performance of this Agreement in violation of the Immigration Act then, in addition to other remedies or penalties prescribed by law, University may terminate this Agreement. Contractor represents and warrants that it is in compliance with and agrees that it will remain in compliance with the provisions of the Immigration Act.

18.Right to Protect Information Resource Security. University shall reserve the right to change or modify without consent any information resource, including but not limited to operating systems, hardware, and/or network configuration, in order to protect University’s information resources against any security vulnerabilities and unauthorized access or abuse.

In the event that maintenance is provided by the Contractor, Contractor warrants that upon routine maintenance and/or notification by University of security vulnerability that maintenance shall include installation of operating system and/or application patches and upgrades that will protect University’s information resources against any security vulnerabilities and unauthorized access or abuse.

19.Warranty Against Spyware, Malware, and Collection of Private Information. Contractor warrants that products purchased by University do not contain spyware, malware, and/or that the products do not collect and/or distribute information that could be considered private without University’s and the actual users’ express consent.

20.Remote Network Access for Maintenance or Repairs. Access to University’s information resources for remote maintenance or repairs by Contractor or other authorized vendors shall be limited to use of approved network connectivity access methods such as Virtual Private Network or 3rd party remote dial up access. Access requests to University’s Information Services on behalf of the Contractor or other authorized vendors shall be the responsibility of the information resource owner.

21.Implementation and/or Maintenance of Information Systems. Any implementation and/or maintenance of information systems shall be performed in accordance with University’s Information Resources policies and practice standards as defined by Texas Administrative Code. These standards are published at http://www.utmb.edu/infosec/PoliciesStandards/Index.asp.

22.Compliance with UTS 165, UT System Information Resources Use and Security Policy. Contractor agrees to adhere to all state and federal laws and Regents’ Rules and policies, including UTS 165 (http://www.utsystem.edu/policy/policies/uts165.pdf),pertaining to the protection of Information Resources and privacy of Sensitive Data, as those terms are defined in UTS 165. Further, Contractor represents and warrants that it will: