university of the pacific
HOSTED INFORMATION TECHNOLOGY SERVICES Agreement

This Hosted Information Technology ServicesAgreement (this “Agreement”) is made and entered into effective as of ______, 2015 (the “Effective Date”) by and between University of the Pacific, a California nonprofit public benefit corporation (“University”), and ______, [if an entity, describe state of organization and type of entity (i.e., a California corporation); if an individual, so state and include any applicable dba (i.e., an individual d/b/a XYZ Consulting)](“Contractor”).

Recitals

A.Universityis an independent, comprehensive university offering more than 80 undergraduate and graduate majors and degrees through nine schoolsand colleges at its campuses in Stockton, Sacramento, and San Francisco.

B.Subject to the terms and conditions of this Agreement, University desires to engage Contractor to provide certain hosted information technology services as set forth in this Agreement (the “Services”) [to its {name of School if applicable} located in {name of city}], and Contractor desires to provide such Services to the University.

In consideration of the promises and the mutual covenants and agreements set forth below, the parties hereto agree as follows:

Agreement

  1. Definitions. In addition to terms defined elsewhere in this Agreement, the following terms have the following meanings:

(a)“Data Breach” means any access, destruction, loss, theft, use, modification or disclosure of University Data by a party or individual that is in violation of this Agreement or applicable state or federal law.

(b)“Deliverables” means any tasks, work (including, without limitation, Contractor Work Product defined in Section 9(d) below) and activities identified as “Deliverables” in the specifications or requirements set forth or defined by University and performed by Contractor as part of the Services, together with all Updates thereto.

(c)“Documentation” means the following materials furnished by Contractor with respect to the Services, whether in printed or electronic format:(i) all documentation published by Contractor for the Services and (ii) all technical architecture documents, technical manuals, user guides, flow diagrams, operations guides, file descriptions, training materials and other documentation related to the Software and Deliverables, together, with all Updates thereto.

(d)“Downtime” means a Service Interruption that lasts for more than two continuous hours in any twenty-four (24) hour period (12:00 a.m. to 11.59 p.m. Pacific time).

(e)“License Year” means the twelve (12) month period beginning on July 1st and ending June 30th of each year during the Term of the Agreement.

(f)“Proprietary Rights” means the worldwide intellectual and proprietary property owned or properly licensed by a party and all intellectual or proprietary property rights subsumed therein, including copyright, patent, trademark (including goodwill), trade dress, trade secret and know-how rights.

(g)“Service Interruption” means University is unable to access the Services as provided herein, excluding: (i) scheduled maintenance windows of which University is notified at least twenty-four (24) hours in advance and which occur outside of normal business hours (8:00 a.m. to 5:00 p.m. Pacific); (ii) scheduled repairs of not more than two (2) hours duration in any one (1) week period of which University is notified at least four (4) hours in advance and which occur outside of normal business hours; (iii) critical repairs including security updates where advance notice cannot be reasonably provided as determined by University; (iv) and interruptions caused by transmission errors, Internet service providers, vandalism, User error or other factors beyond Contractor’s reasonable control as determined by University.

(h)“Services” means all work to be performed or provided by Contractor under this Agreement and for the avoidance of doubt shall include, without limitation, the Software, Deliverables, Documentation, and Updates.

(i)“Software” means the online software application(s) [insert name if applicable] provided by Contractor as part of the Services, and includes any Updates thereto.

(j)“University Data” means the information, formulae, algorithms, or other content provided, created, modified or inputted by or on behalf of University or any User in connection with their authorized use of the Services, including without limitation:all PersonallyIdentifiable Information (“PII”) (including, without limitation, bank account and credit card account information and personal information, such as name, address, and social security numbers), Protected Health Information (“PHI”) as defined in Section 7(c) below, other non-public information; student data; metadata; user content;University’s logo, name, trademark, and proprietary information; and the RFP.

(k)“Updates” means maintenance revisions, improvements, modifications, bug fixes, patches, corrections, and enhancements to the Services that are provided by Contractor generally to its customers. The term “Updates” shall not include custom reports or enhancements for which the parties agree the Contractor shall charge a separate or additional fee.

(l)“User” means any single employee, contractor, service provider, agent, or student, of University who uses or accesses the Services.

  1. Services.

(a)Description of Services. Contractor agrees to provide the Software and perform the Services required under this Agreement and as specifically set forth in the applicable scope of work attached hereto and incorporated herein by reference asExhibit A(“Scope of Work and Fees”). Use of the term “Agreement” shall include the Scope of Work (“SOW”) and all other exhibits, schedules or attachments referenced herein.

(b)Service Levels. Contractoragrees to provide Services in accordance with the service level agreement attached hereto as Exhibit B (“Service Level Agreement” or “SLA”) and incorporated into this Agreement by this reference.

(c)Storage of University Data. University will store University Data through the Services as set forth in the Scope of Work. The University Data shall be stored within the United States and Contractor shall not modify its general practices relating to the security or storage of University Data, including the physical location of the University Data, without University’s prior written consent.

  1. Compensation and Expenses. Universityshall pay to Contractor the fees, costs and expenses(“Fees”) set forth in Exhibit A. Unless otherwise stated in the SOW, the Fees shall include, and Contractor shall be responsible for, all otherfees, costs, expenses and taxes incurred by Contractor in connection with providing the Services and not specifically set forth in Exhibit A (“Expenses”). Each order formor other ordering document is governed exclusively by the terms of this Agreement, whether or not this Agreement is specifically mentioned.
  1. Payment Terms.

(a)Invoices. Contractor shall submit to University on a [monthly/annual] basis an invoice listing in detail the Services provided to University and Fees incurred by Contractor in the [prior month/applicable year] (“Invoice”). University shall remit payment to Contractor on undisputed Invoices within forty-five (45) days(excluding holidays) of receiving the Invoice. The provisions of this Section 4 shall apply unless different payment terms are set forth in the Scope of Work.

(b)No Unexpected Incremental Fees.University is not responsible to pay Expenses of any type to Contractor other than the specific Fees set forth in Exhibit A, unless the parties have otherwise agreed in an amendment executed in accordance with this Agreement. If a SOW states an assumption, whether related to some responsibility of University or to any other fact or circumstance, the failure of that assumption will not result in additional payment obligations of University unless the SOW (or corresponding order form or other ordering document) states expressly that University must pay a particular amount upon the failure of that assumption.

(c)Retention Amount. University shall withhold ten percent (10%) from the Fees to be paid by University to Contractor from each Invoice during the implementation of the Services, until [insert name of Final Acceptance milestone] (as defined in the SOW). Upon [name of Final Acceptance milestone] at the conclusion of the implementation of the Services, Contractor may invoice University for the full amount withheld pursuant to this Section 4(c), which University agrees to pay within forty-five (45) days after receipt of such Invoice.

  1. Term and Termination.

(a)Term. The term of this Agreement (“Term”) shall commence on the Effective Date and shall expire [as set forth in the SOW/on {Insert Date}], provided that this Agreement may be terminated earlier as provided in this Section 5[, or extended as provided {in the Scope of Work/herein}].

(b)Termination Without Cause. Universitymay terminate this Agreement at any time, without cause or penalty, by giving at least thirty (30) days’ advance written notice to Contractor.

(c)Termination For Cause. Each party shall have the right to terminate this Agreement in the event of the other party’s material breach of an obligation, representation, or warranty set forth in this Agreement; provided, however, that such termination will not become effective unless and until (i) the party not in default has given the other party written notice of breach, which notice shall state in reasonable detail the nature of said breach, and (ii) the party allegedly in default shall have failed to remedy said default to the reasonable satisfaction of the party not in default within ten (10) business days following the giving of the notice. Material breach shall include, but not be limited to, Contractor’s failure to perform the Services in accordance with the terms set forth in this Agreement including theSOW (with time being deemed of the essence with respect to adherence to any timetable set forth in the SOW or otherwise agreed to in writing by Contractor), and any material change to the internal architecture of the hosted environment without prior University approval. If Contractor fails to meet the service levels provided in Exhibit B, University may terminate the Agreement effective upon the giving of written notice to Contractor.

(d)Termination Due to Insolvency. Either party may terminate this Agreement by written notice to the other party if the other party: (i) becomes insolvent or admits its inability to pay its debts generally as they become due; (ii) becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law, which is not fully stayed within seven (7) business days or is not dismissed or vacated within (forty-five) 45 days after filing; (iii) is dissolved or liquidated or takes any corporate action for such purpose; (iv) makes a general assignment for the benefit of creditors; or (v) has a receiver, trustee, custodian or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.

(e)Effect of Expiration or Termination. Any early termination of this Agreement, whether for a party’sbreach or otherwise, shall be without prejudice to any claims or damages or other rights of one party against the other party. In the event of expiration or early termination of this Agreement by either party:

(i)University shall pay Contractor all undisputed amounts due for Services rendered and, if applicable, non-refundable expenses incurred prior to the termination date; provided, however, that University may set off and apply all or any portion of the amount owing by University to Contractor against any and all damages or other amounts owed by Contractor to University.

(ii)If any Fees have been prepaid by University, Contractor shall refund to University the amount of any such prepaid Fees that exceeds the value of Services actually rendered by Contractor prior to the termination date. If the Agreement is terminated in the middle of the License Year, the Fees shall be prorated based on a twelve month period and the unused portion of the Fees shall be refunded to University.

(iii)Contractor shall deliver to University, at a time and in a manner acceptable to University, all Confidential Information of University (as defined below in Section 7) and copies of all finished or unfinished University Work Product (as defined below in Section 9), whether in paper, electronic, or any other form, and shall certify the destruction of such Confidential Information. For the avoidance of doubt, as part of this requirement, Contractor will at its expense provide electronic files (in a format mutually agreed by the parties) containing University Data and Contractor will return and/or destroy University Data as directed by University.

(f)Termination Assistance.

(i)Termination Assistance Defined. Termination Assistance means the services Contractor shall provide to University upon termination of the Agreement and at mutually agreeable rates (which rates shall be Contractor’s standard rates in the absence of another agreement), to:

(1)provide a complete copy of all University Data in a mutually agreed industry standard file format;

(2)take any steps necessary to perfect, as specifically and reasonably requested by University,the assignment all of the rights, title and interest of Contractor in all Work Product or other materials relating to Contractor’s obligations under the Agreement;

(3)take such action as may be reasonably necessary or as reasonably directed by University to preserve and protect the work previously performed by Contractor, and any property related to this Agreement in the possession of Contractor in which University has an interest;

(4)continue reasonable performance of any Services as directed by University in writing;

(5)provide University with a written list of all uncompleted tasks or services pertaining to this Agreement, specifically identifying the status of the tasks or services, and what tasks or services remain to be performed upon expiration or early termination of this Agreement or any SOW;

(6)ensure all Documentation properly reflects the current version or release of the Services and any Updates thereto; and

(7)take any other steps reasonably required by University with respect to the Agreement.

(ii)Term of Termination Assistance Period. Termination Assistance services will be provided to University by Contractor for a period of six (6) months following notice of termination (“Termination Assistance Period”) regardless of the reason for termination or expiration. At University’s option and election, it may extend the Termination Assistance Period for an additional six (6) months at the rates negotiated upon by the parties.

(iii)Breach of Obligation to Provide Termination Assistance. If Contractor breaches (or attempts or threatens to breach) its obligations to provide University with Termination Assistance services University will be irreparably harmed and may proceed directly to court. If a court should find that Contractor has breached (or attempted or threatened to breach) any such obligations, Contractor agrees that without any additional findings of irreparable injury or other conditions to injunctive relief, it will not oppose the entry of an order compelling performance by Contractor and restraining it from any further breaches (or attempted or threatened breaches).

(iv)Transition of Services. As may also be described in the SOW, during the Termination Assistance Period, Contractor shall also cooperate with the transition of services to University or to a third party designated by University, and assist University in extracting and/or transitioning all University Data in the format mutually agreed by the parties for purposes of transitioning the services. The parties may agree in writing to the scope of transition services to be provided by Contractor to University, or to a third party designated by University, at Contractor’s then-prevailing hourly rates (“Transition Agreement”). Such Transition Agreement, if any, shall be attached to and made a part of this Agreement as an additional SOW and the terms and conditions of this Agreement shall apply to such Transition Agreement. During the Termination Assistance Period, the Services shall continue to be made available to University pursuant to the terms and conditions of this Agreement. Upon the end of the transition period, Contractor shall destroy, and certify such destruction, of all University Data in its possession.

(g)Survival. The provisions of Sections 5(e) (Effect of Termination), 5(f) (Termination Assistance, 6 (Relationship of the Parties), 7 (Confidentiality), 9 (Services License Grant, License Restrictions; and Proprietary Rights), 10 (Contractor’s Representations and Warranties), 11(a)(iv) (Continuous Coverage for Professional Liability Insurance), 12 (Indemnification), 13 (Limitation on Damages), 17(a) (Governing Law), 17(b) (Dispute Resolution; Legal Fees and Costs; Forum for Legal Action), 17(c) (Use of Names and Logos), 17(f) (Notice), 17(j) (No Third Party Beneficiaries), 17(l) (Captions),17(m) (Construction), 17(o) (Severability of Terms) and 17(q) (Entire Agreement) shall survive termination of this Agreement.

  1. Relationship of the Parties.

(a)Independent Contractor. Contractor enters into this Agreement as, and shall continue to be, an independent contractor. Except as set forth in this Agreement, Contractorshall determine the method, details, and means of performing the Services. Neither Contractor nor Contractor’s employees or subcontractors shall be deemed to be employees or agents of University. Contractor is responsible for direct payment, when and as due, of any taxes incurred as a result of the compensation paid under this Agreement, including estimated taxes, as well as for any such payments with respect to Contractor’s employees or subcontractors, and Contractor shall provide University with proof of payment upon request. Nothing in this Agreement is intended to establish a partnership, joint venture, or agency relationship between the parties, and neither Contractornor Contractor’s employees or subcontractors are authorized to bind University or make any representations on its behalf in any matter.

(b)Acknowledgement of Ineligibility for Benefits. Contractorand Contractor’s employees or subcontractors will not be entitled to, and will not seek, any benefits made available to University employees, including, but not limited to: worker’s compensation, group health insurance, disability insurance, or participation in any employee retirement plan.

  1. Confidentiality. [Replace with reference to NDA if applicable.]

(a)Nondisclosure of Confidential orProprietary Information. Each party acknowledges and agrees that during the term of this Agreement, it may be furnished with or otherwise have access to Confidential Information (defined below) of the other party. The party that has received Confidential Information is referred to as the “Receiving Party” and the party that has disclosed Confidential Information to the Receiving Party is referred to as the “Disclosing Party.” At all times hereafter, Receiving Party will keep in confidence and trust and not disclose, reveal or divulge anyConfidential Information, directly or indirectly, intentionally or negligently to any person, company or other entity, for any purpose or reason, that Receiving Party learns of or receives during the Term of this Agreement, and will not use, reproduce, or disclose to others any Confidential Information without the Disclosing Party’s advance written consent, except (i) as may be directly necessary in the ordinary course of performance of the Services under this Agreement, or (ii) in accordance with a judicial or other governmental order, provided however, that, to the extent reasonably possible, Receiving Party shall give Disclosing Party reasonable notice prior to making any such disclosure in sufficient time so Disclosing Party may object to such disclosure if it so chooses, and provided further, that Receiving Party shall disclose only that portion of the Confidential Information that it is legally required to disclose.