G-030

G-030

Section 1

GENERAL INSTRUCTIONS ON FORM AND EXECUTION OF CONTRACTS

I. Approval Required. In general, the President of an institution or the Vice Chancellor for the Tennessee Technology Centers or designee is the final approving authority within the system for any contract which is prepared consistent with this guideline; except that the approval of the Chancellor or designee shall be required for i.) contracts, including grant agreements, which do not conform to this guideline, ii.) dual services agreements in which the Tennessee Board of Regents (“TBR”) Central Office is the vending or procuring party, iii.) certain real property agreements (as provided in other policies and guidelines), iv.) any agreement required to be approved by the Chancellor under TBR Policy 1:03:02:10 Section 6, v.) the primary operating agreement between an institution and its foundation and any other agreement between the institution and its foundation which does not conform to the requirements of this guideline, vi.) banking and other financial services agreements required by the vendor which do not conform to the requirements of this guideline, and vii) any other agreement, including purchase orders, for more than $249,999.99 in annual revenue or expense (Renewals of such agreements do not require approval at the Central Office if no substantive changes have been made; in addition, purchase orders issued pursuant to purchase orders and/or contracts which have already received approval by the Central office do not require additional submission to the Central Office); however, grants which conform to the requirements of this guideline do not have to be approved at the Central Office.

Agreements must be processed in compliance with applicable legislative fiscal review requirements, as they may be amended from time to time.

Articulation agreements should be developed in compliance with instructions or guidance from the Central Office, Office of Academic Affairs.

The President or Director of the institution must sign contracts required to be submitted to the Central Office. If the President or Director’s signature has been omitted from contracts prepared and delivered to the Central Office, such contracts may be returned to the campus.

Generally, it is the responsibility of the institution to negotiate with the other party to bring an agreement into conformity with this guideline and determine that the terms are acceptable to the vendor before the agreement is sent to the Central Office for approval.

Each institution and technology center shall maintain a written contracts manual (may be in electronic format) which sets forth any procedures of the institution or technology center which are in addition to and necessary to comply with this guideline.

A. The purpose of a written contract is to embody the complete agreement in writing. Whether the document is called an agreement, contract, memorandum of agreement (or memorandum of understanding), or purchase order (see TBR Policy 4:02:10:00), it is subject to the requirements of this guideline. No relevant terms should be left to an unwritten "understanding" or verbal agreement; no oral representation of any official agent, or employee of either party, either before or after the execution of an agreement is binding on the parties. The document should be explicit and clearly state the rights and duties of each party and clearly identify all parties.

B. All relevant documents should be incorporated by reference, with the order of interpretation clearly set forth.

C. Amendments and addenda to existing contracts shall clearly state the additions, deletions and modifications to the contract, including a statement as to whether the new terms are in place of or in addition to terms expressed in the original contract. The Institution shall negotiate the terms, draft the amendments and/or addenda, execute them properly, then forward them to the Central Office for approval, if required, along with a copy of the original agreement and any prior amendment or addendum. If a signature from the Central Office is required before the other party and/or the institution have signed an agreement, the institution should include an explanation on the Contract Summary Sheet.

D. All necessary signature approval lines should be prepared by the institution, including that for the TBR.

1. If the other party or contractor is a corporation, its name must be stated in the contract exactly as it appears in its charter. The person signing on behalf of the corporation must have legal authority to do so, and his/her title/position should be shown on the signature page. If the other party is a state agency, signature approval lines are necessary for the Department Commissioner or official of equivalent rank.

2. The President/Director or designee must sign all institution contracts.

3. When approval by the Chancellor is not required, that signature blank should be marked "not applicable" or should be deleted.

E. Other Approvals Which May be Required

All inter-agency agreements (with other Tennessee state agencies; does not apply to agreements with other TBR schools or UT), including dual service agreements for over $1,500.00, with other state agencies must be approved by the Commissioner of the Department of Finance and Administration. Only Dual Service Agreements in which the Central Office is the vending or procuring party or which do not comply with the requirements of this guideline are required to be submitted to the Central Office.

F. Institutions should prepare a sufficient number of originals of all contracts as desired/required by the parties and an original for the Central Office if Central Office approval is required. Each of the originals of the contract shall bear the original signatures of the parties.

G. All contracts required to be submitted to the Central Office should be submitted prior to the beginning of the contract's original term or renewal.

All contracts from the technology centers which require Central Office approval shall be first submitted to the Office of the Vice Chancellor for Tennessee Technology Centers.

H. A contract cannot be extended or amended after the original term has expired.

I. A Contract Summary Sheet as well as all relevant attachments must accompany all agreements submitted to the Central Office for review. Contract Summary Sheets must be signed by an institution official verifying purchasing compliance, and a justification of non-competitive purchase form must be completed, if applicable.

J. Agreements containing blank spaces or omitting required contract provisions will be returned to the institution for correction and must be resubmitted to the Central Office for approval.

K. Food and Vending Services Contracts

Section 3 of this guideline and bidding requirements outlined in Guideline B-030 for the Acquisition of Hardware, Software and Related Services should be used, when applicable, for food and vending services contracts.

Note that State law prohibits an institution from establishing a vending contract for new or existing vending facilities, nor may the institution perform these services itself, without first notifying the Division of Blind Services for the State of Tennessee.

L. Telephone Systems

Guideline B-030 for Acquisition of Hardware, Software and related services should be adapted and used when applicable for telephone systems and services contracts.

M. Real property lease agreements are covered by separate procedures found in Guidelines B-025 and B-026.

II. Required Contract Provisions. Whenever possible, one of the form contracts in the following sections of this guideline should be followed in order to assure that an agreement conforms to the requirements of TBR policy and this guideline.

A. Purpose/Duties

Every contract must contain language regarding its purpose and the duties of the parties.

B. Term of Agreement

“Contract Term - A contract shall be entered into for a period or contract term sufficient to adequately accomplish the state’s procurement objectives, provided that the contract contains appropriate termination provisions for performance failures, funding changes, and state convenience. However, no contract term shall exceed sixty (60) months.” Finance and Administration Regulations, Chapter 0620-3-3 and General Services Regulations, Chapter, 0690-3-1-03.

Every agreement must provide a beginning and ending date or clear language as to how these dates will be determined. No contract may provide for automatic renewal unless the agreement is cancelable for convenience upon a specified period of days notice by the institution; in which case, the contract may renew automatically for up to five years total term if the agreement also contains annual legislative appropriation language or requires no expenditure of state funds.

Institutions are encouraged to seek terms of longer than one year but not more than five years for clinical affiliation agreements (See Section 2 of this guideline).

If a contract calls for payments or expenditures by the institution from funds appropriated for more than a single fiscal year, the following language (or equivalent language) must be added:

“Continuation of this Agreement is subject to annual allotment of state and/or federal funds.”

C. Payments

All agreements must provide that payments are to be made only upon submittal of invoices by the contractor, and after performance of the portion of the services which the invoiced amount represents, except that agreements with tax-exempt non-profit organizations may provide for periodic advance payments (see also III. D. of this Section for additional exceptions).

If the contractor is a non-resident alien, payment for any portion of the contract from any source will not be made by the institution until an Internal Revenue Service Individual Taxpayer Identification Number has been assigned to the contractor by the Internal Revenue Service and presented to the institution. Final payment shall not be made until the contractor has completed performance. Adequate documentation to support all payments must be maintained by the institution.

Sales/Ownership/Ethnicity Information. As part of the purchasing and contracting process, institutions shall attempt to collect: type of business, annual sales, business ownership and ethnicity information before payment is made to the vendor. Information shall be collected in accordance with TCA § 2-3-8 and Purchasing Policy No. 4:02:10:00.

D. Conflict of Interest

If the Contractor is an individual:

"The Contractor warrants that he/she is not and during the term of the contract will not become an employee of the State of Tennessee."

If the Contractor is an organization:

"The Contractor warrants that no part of the total contract amount provided herein shall be paid directly or indirectly to any officer or employee of the State of Tennessee as wages, compensation, or gifts in exchange for acting as officer, agent, employee, subcontractor, or consultant to the Contractor in connection with any work contemplated or performed relative to this contract." (Note that this provision must be omitted if the personal, professional and consultant service contract form in Section 3 of this guideline is used between institutions or between an institution and another state entity.)

E. Civil Rights Clause

“The parties agree to comply with Titles VI and VII of the Civil Rights Act of 1964, Title IX of the Education Amendments of 1972, Section 504 of the Rehabilitation Act of 1973, Executive Order 11,246, the Americans with Disabilities Act of 1990 and the related regulations to each. Each party assures that it will not discriminate against any individual including, but not limited to, employees or applicants for employment and/or students because of race, religion, creed, color, sex, age, disability, veteran status or national origin.

The parties also agree to take affirmative action to ensure that applicants are employed and that employees are treated during their employment without regard to their race, religion, creed, color, sex, age, disability, veteran status or national origin. Such action shall include, but not be limited to, the following: employment, upgrading, demotion or transfer, recruitment or recruitment advertising, layoff or termination, rates of pay or other forms of compensation, and selection available to employees and applicants for employment.”

(The second paragraph may be omitted if the other party does not receive federal or state funds in excess of $50,000.00 annually.)

F. Audit and Documentation Clause

"The Contractor shall maintain documentation for all charges against the state under this contract. The books, records and documentation of the Contractor insofar as they relate to work performed or money received under this contract, shall be maintained in conformity with generally accepted accounting principles for a period of three full years from the date of the final payment, and shall be subject to audit, at any reasonable time and upon reasonable notice, by the Institution or the State Comptroller of the Treasury, or their duly appointed representatives, or a licensed independent public accountant."

(See Section 3 of this guideline for audit language for grants.)

No audit clause is required for a one time, fixed payment agreement.

G. Payment for Travel, Meals, Lodging

If a contractor is to be paid/reimbursed for travel, meals or lodging, such payment shall be in the amount of actual cost/per diem, and shall be expressly subject to the limits and rules set forth in TBR’s General Travel Policies and Procedures, Policy No. 4:03:03:00.

H. Governing Law

Language shall be included which provides that the agreement is subject to the governing law of Tennessee, unless the other party will not accept this provision. In that case, the contract may be silent as to governing law.

I. Maximum payment clause

If the institution is required to make payments, the agreement must state the maximum dollar amount that may be paid under the agreement.

III. Unacceptable Provisions. The Director of Purchasing and Contracts in the Central Office and the Office of General Counsel are available for assistance in negotiating modifications with the vendor when the institution has been unable to secure agreement of the vendor. The institution may consult with the Director of Purchasing and Contracts in the Central Office or the Office of General Counsel prior to contacting the vendor regarding modification.

The following provisions should not be included in any contracts:

A. Provisions requiring the institution to pay taxes (TCA §§ 67-5-203 and

67-6- 322), late penalties, cancellation fees, liquidated damages, incidental or consequential damages, or punitive or exemplary damages (Institution is liable for actual damages only TCA § 9-8-101 et seq.).

B. Payment of travel/per diem expenses in excess of maximum limitations set forth in TBR Policy 4:03:03:00.

C. Provisions designating the governing law of a state other than Tennessee.

D. Provisions requiring the institution to make deposits or payments before goods are received or services are performed (TCA § 12-4-703), except that the institution may pay for computer software or computer software/hardware maintenance and other similar maintenance services upon the signing of an agreement. (Such maintenance services are considered fully delivered upon execution of a contract because they are available regardless of whether or not the service is ever used.) Institutions may also make payment for subscriptions upon execution of an agreement. See also Section II. C. above.

E. Provisions requiring the institution to purchase or obtain liability, property or other insurance or a performance bond. If the institution is unable to negotiate for the deletion of such provisions, the Office of the General Counsel should be consulted as it may be possible to purchase insurance or a performance bond in appropriate circumstances.

F. Provisions requiring the institution to insure, guarantee, or indemnify or hold harmless any party from claims which may arise out of the agreement or be brought by third parties. (Tenn. Const. Art. l, §17; Tenn. Const. Art. ll, §31; and Tennessee Rules of Finance and Administration Chapter 0620-3-3-.07 (13)).

G. Provisions requiring the institution to obtain or pay for outside labor of persons not employed by the institution (for example, union stage-hands, teamsters, etc.) are prohibited unless such cost is included as part of the total contract price.

H. Provisions requiring the institution to consent to binding arbitration by a third party of claims arising out of or relating to the agreement. (TCA §§ 8-6-301 and 20-13-103.)

I. Disclaimer of vendor's liability for incidental, exemplary, or consequential damages.

J. Disclaimer by vendor of express or implied warranties of merchantability and fitness for a particular purpose. Certain warranty disclaimers are permissible subject to the approval of the Office of General Counsel.

K. Limitation on dollar amount of damages recoverable by state from vendor.

L. Unless vendor or institution provides shipment protection in the institution's interest, passing of risk of loss or title to institution before delivery and/or installation of products.

M. Right of vendor to enter institution's premises without notice to remove equipment or product upon alleged default by institution.

N. Award of attorneys' fees or costs to vendor in the event of legal action against institution. (TCA § 9-8-307(d)).

O. Consent to jurisdiction in courts outside Tennessee.

P. Provisions requiring the institution to pay late charges, finance charges or interest in excess of that provided under the Tennessee Prompt Pay Act (TCA § 12-4-701 et seq.).

Q. Provisions permitting the vendor to take a secured interest in personal property under the agreement.

R. Limitation on time in which state may bring suit. (TCA § 28-3-109).

S. Provisions requiring confidentiality and nondisclosure that violate the Tennessee Open Records Act. (TCA § 10-7-101 et seq.).

IV. Reporting Requirements

Institutions shall report quarterly to the Office of Purchasing and Contracts at the Central Office the following information (in the format provided by the Central Office):

A. Small/Minority/Woman-Owned Business Report - in accordance with

TCA § 12-3-8.

B. RFP Diversity Report – report of contracts issued from requests for proposal for goods and/or services pursuant to TCA § 12 -3-807(b).

C. Quarterly Contracts Report for Personal, Professional, and Consulting Contracts – in accordance with Fiscal Review Requirements, institutions shall submit the following two (2) reports*:

1. Contracts Ranging from $2,000.00 to $50,000.00

2. Contracts Ranging from $50,000.00 to $249,999.99

D. Senate Finance, Ways, and Means Report – institutions shall submit an annual report of all existing service contracts.

*dollar amounts reported for each contract shall be based on total term of contract, including all renewals.

V. The Chancellor or designee may approve exceptions to the requirements of this guideline in appropriate cases.

Section 2

CLINICAL AFFILIATION CONTRACTS

I. SCOPE

Clinical affiliation agreement - an agreement whereby an institution in the Tennessee Board of Regents System ("Institution") desires to enter into a mutually beneficial agreement with another party ("Affiliate") providing for the training of students enrolled at the Institution at the other party's facility ("Facility").

II. GENERAL RULES

A. Generally, these agreements do not provide for monetary compensation to either the Institution, the other party or to any student; however, the form can be modified if any payment is to be made.

B. Health Records and Insurance. The Institution may provide health records of students (and faculty, if necessary) upon request by the Affiliate. Note: The Institution must give students/faculty prior written notice that they will be required by the Affiliate to obtain and provide health records in order to participate in clinical experience. The Affiliate may also require written evidence of professional liability insurance coverage from individual students (and faculty) participating in the experience. The Institution may give notice of the minimum amount of coverage that is required by the Affiliate of the students/faculty and that this coverage is required during the term of the student's/faculty’s assignment at the clinical Facility.

C. Background Checks (faculty/staff and/or students). If criminal background checks of students are required by the Affiliate, the Institution shall notify students of this requirement prior to enrollment in the program or as soon as the requirement is known. Students will be informed by the Institution that the check must be completed within the 90 day period immediately prior to the student’s initial clinical placement. It shall be the student’s responsibility to make timely arrangements for the background check and to pay all costs associated with such checks.

If criminal background checks are required for Institutional faculty or staff, it shall be the Institution’s responsibility to arrange for the background check, to pay all costs associated with such checks and to provide the results to the Affiliate.

It shall be the responsibility of Affiliate to set the eligibility standards for participation and to evaluate the results of the background checks. If Affiliate determines that a student or faculty /staff member shall not participate at its facility, Affiliate shall so notify that individual and the Institution. Institution shall take steps to ensure that this individual does not participate in the clinical program at the Affiliate.

If an Institutional faculty/staff member is also an employee of Affiliate or is an employee at another hospital, health care facility or health care organization, Affiliate will allow the faculty/staff member to provide on-site supervision and instruction for its clinical program without the necessity of undergoing an additional background check.

Recognizing that students enrolled in the ___________program at Institution will potentially participate in multiple clinical placements at multiple facilities, Affiliate agrees to accept the results of the background check done prior to the student’s initial clinical placement if the student maintains continuous enrollment in the health care program and if the results of the background check are archived by the background check agency.

Institution shall inform students or faculty/staff members excluded from clinical placement on the basis of a criminal background check of any review or appeal process available pursuant to the Fair Credit Reporting Act or any other law or policy, if any.

Institutions may agree to language in clinical agreements regarding background checks in accordance with the guidance set out in this section II. C.

D. HIPAA Compliance. Institutions are not business associates of the clinical Affiliates to which students are assigned for clinical experience; nor, under HIPAA, is a member of the Affiliate’s workforce a business associate. For purposes of HIPAA, students are trainees and are, by definition, considered to be the “workforce” of the Affiliate. Therefore, entering into business associate agreements is not appropriate (at the same time, it should be noted that students are employees of neither the Institution nor the Affiliate).

Note – although HIPAA language is included in the form contract as the second and third paragraph of II. E.1., this HIPAA language may be omitted upon the request of the Affiliate. However, no HIPAA language which differs in substance may be included in the agreement without prior review by the Office of the General Counsel.

E. Agreements which comply with this guideline and which do not deviate in substance from the attached standard agreement may be executed by the Institution and should not be submitted to the Central Office for approval. In addition, agreements previously approved by the Central Office may be renewed without Central Office approval if no substantive changes are made.

III. UNACCEPTABLE PROVISION(S)

Any provision requiring students or faculty of the Institution to sign releases, waivers or hold harmless agreements relieving the Affiliate from legal liability for personal injury or property damage resulting from the negligence of the Affiliate or its employees.

Source and authority: TBR Policy 1:03:02:10

CLINICAL AFFILIATION AGREEMENT

BETWEEN (INSTITUTION) AND

(AFFILIATE)

This Agreement is made this _____ day of ____________________, 20___, by and between (Institution), hereinafter referred to as "Institution" and (Affiliate), hereinafter referred to as "Affiliate".

Whereas, it is to the mutual benefit of the parties to provide clinical experience for students enrolled in certain programs of the Institution, the parties have agreed to the terms and provisions set forth below:

I. Purpose - the purpose of this Agreement shall be to provide clinical experience to students enrolled in the _____________________________ program of the Institution.

A. Consideration for this Agreement shall consist of the mutual promises contained herein, the parties agreeing that monetary compensation shall neither be expected nor received by either party.

B. The clinical experience shall be provided at the Affiliate's Facility located at ___________________________________________________________________________________________________, hereinafter referred to as "Facility".

C. The specific experience to be provided students is described as follows:

(Detailed description of specific experience, including, but not limited to, activities to be required of students and special services/physical facilities available to students.)

II. Terms and Conditions - pursuant to the above-stated purpose, the parties agree as follows:

A. Term - the term of this Agreement shall be (from one to five years) commencing __________________and ending _______________.

Either party may terminate this Agreement upon giving ______ days written notice to the other party. Such termination shall have no effect on students receiving clinical experience during the current academic term.

This Agreement may be renewed with written approval of all parties for a total term of up to five years.

B. Placement of Students – As mutually agreed between the parties, the Institution will place an appropriate number of students at the Facility each academic term.

C. Discipline - While enrolled in clinical experience at the Facility, students (and faculty, if applicable), will be subject to applicable policies of the Institution and the Affiliate.

Students shall be dismissed from participation in the Institution’s program only after the appropriate disciplinary or academic policies and procedures of the Institution have been followed. However, the Affiliate may immediately remove from the Facility any student who poses an immediate threat or danger.

D. Specific Responsibilities - The following duties shall be the specific responsibility of the designated party (Institution and/or Facility):

1. Institution shall be responsible for the selection of students to be placed at the Facility.

2. _________________________ shall provide orientation to the Facility for students beginning clinical experience.

3. _________________________ shall be responsible for scheduling training activities for students.

4. __________________________ shall be responsible for supervising students at all times while present at the Facility for clinical experience.

5. __________________________ shall evaluate the performance of individual students as appropriate.

6. The Affiliate shall retain complete responsibility for patient care providing adequate supervision of students (and faculty, if applicable) at all times.

7. The Affiliate shall maintain a sufficient level of staff employees to carry out regular duties. Students will not be expected nor allowed to perform services in lieu of staff employees.

8. The Affiliate shall provide emergency medical treatment to students (and faculty, if applicable) if needed for illness or injuries suffered during clinical experience. Such treatment shall be at the expense of the individual treated.

9. The Affiliate shall maintain all applicable accreditation requirements and certify such compliance to the Institution or other entity as requested by the Institution. The Affiliate shall also permit authorities responsible for accreditation of the Institution's curriculum to inspect the Affiliate's clinical facilities and services as necessary.

10. The Institution shall provide health records of students (and faculty, if applicable) upon request by the Affiliate.

11. The Institution shall establish a procedure for notifying the Affiliate if a student (or faculty, if applicable) is/are unable for any reason to report for clinical training.

12. The Affiliate requires written evidence of professional liability insurance coverage from individual students and faculty and staff (if applicable) participating in the experience. The minimum amount of coverage per individual shall be _______________.

The coverage shall extend through the term of the student's and faculty or staff’s (if applicable) participation.

13. The State of Tennessee is self-insured and does not carry or maintain commercial general liability insurance or medical, professional or hospital liability insurance. Any and all claims against the State of Tennessee, including the Institution or its employees, shall be heard and determined by the Tennessee Claims Commission in the manner prescribed by law. Damages recoverable against the Institution shall be expressly limited to claims paid by the Claims Commission pursuant to T.C.A. Section 9-8-301 et seq.

E. Mutual responsibilities - the parties shall cooperate to fulfill the following mutual responsibilities:

1. Each party shall comply with all federal, state and municipal laws, advice, rules and regulations which are applicable to the performance of this Agreement, which shall include but not be limited to:

HIPAA Requirements: To the extent required by federal law, the parties agree to comply with the Health Insurance Portability and Accountability Act of 1996, as codified at 42 U.S.C. Section 1320d (“HIPAA”) and any current and future regulations promulgated thereunder, including without limitation, the federal privacy regulations, the federal security standards, and the federal standards for electronic transactions, all collectively referred to herein as “HIPAA Requirements.” The parties agree not to use or further disclose any Protected Health Information or Individually Identifiable Health Information, other than as permitted by HIPAA Requirements and the terms of this Agreement.

Each party will make its internal practices, books, and records relating to the use and disclosure of Protected Health Information available to the Secretary of Health and Human Services to the extent required for determining compliance with the Federal Privacy Regulations.

2. Background Checks: If criminal background checks of students are required by the Affiliate, the Institution shall notify students of this requirement prior to enrollment in the program or as soon as the requirement is known. Students will be informed by the Institution that the check must be completed within the 90 day period immediately prior to the student’s initial clinical placement. It shall be the student’s responsibility to make timely arrangements for the background check and to pay all costs associated with such checks.

(If desired, a list of the checks to be run, along with the disqualifying criteria of the Affiliate can be referenced and affixed as an Addendum.)

3. Students shall be treated as trainees who have no expectation of receiving compensation or future employment from the Affiliate or the Institution.

4. Any courtesy appointments to faculty or staff by either the Institution or the Affiliate shall be without entitlement of the individual to compensation or benefits from the appointing party.

5. The parties agree to comply with Titles VI and VII of the Civil Rights Act of 1964, Title IX of the Education Amendments of l972, and Section 504 of the Rehabilitation Act of 1973, Executive Order 11,246, the Americans with Disabilities Act of 1990 and the related regulations to each. Each party assures that it will not discriminate against any individual including, but not limited to, employees or applicants for employment and/or students because of race, religion, creed, color, sex, age, disability, veteran status or national origin.

The parties also agree to take affirmative action to ensure that applicants are employed and that employees are treated during their employment without regard to their race, religion, creed, color, sex, age, disability, veteran status, or national origin. Such action shall include, but not be limited to, the following: employment, upgrading, demotion or transfer, recruitment or recruitment advertising, layoff or termination, rates of pay or other forms of compensation, and selection available to employees and applicants for employment.

6. The confidentiality of patient records and student records shall be maintained at all times.

F. Miscellaneous Terms - The following terms shall apply in the interpretation and performance of this Agreement:

1. Neither party shall be responsible for personal injury or property damage or loss except that resulting from its own negligence or the negligence of its employees or others for whom the party is legally responsible.

2. The delay or failure of performance by either party shall not constitute default under the terms of this Agreement, nor shall it give rise to any claims against either party for damages. The sole remedy for breach of this Agreement shall be immediate termination.

3. This Agreement shall in no way be interpreted as creating an agency or employment relationship between the parties.

In witness whereof, the parties, through their authorized representatives, have affixed their signatures below.

(INSTITUTION) (AFFILIATE)

BY: _______________________ BY:__________________________

TITLE: _____________________ TITLE:__________________________

DATE: _____________________ DATE:__________________________

Approved by TBR: (If required; contracts which materially differ from this form require approval of the Chancellor.)

_____________________________

Chancellor

_____________________________

Date

Section 3

PERSONAL SERVICE, PROFESSIONAL SERVICE,

AND CONSULTANT SERVICE CONTRACTS

I. SCOPE

A contract for personal service, professional service, or consulting service shall be used when the vendor's discretion or the form of the end product or service is critical to the performance. The following procedures shall not apply to:

A. Contracts for services required to be approved by the State Building Commission;

B. Contracts for legal services which are subject to T.C.A. Sections 8-6-106 and 8-6-301; all such contracts must originate in the Office of General Counsel prior to any action being taken to retain any legal or legally related services;

C. Contracts for utility services (see TBR Policy 4:02:10:00);

II. PROCEDURES FOR ENTERING INTO PERSONAL, PROFESSIONAL AND CONSULTANT SERVICE CONTRACTS

A. All purchases of personal, professional, and consultant services should be based, to the maximum extent practicable, on evaluation and consideration of vendor qualifications and cost, following the procedures and reporting requirements provided in TBR Purchasing Policy 4:02:10:00. Proposals for such services shall be analyzed on the basis of factors pertinent to the service in question. Contracts shall be awarded to the vendor who offers the best terms, and neither the price nor technical factors shall be the sole criterion, although price may be the criterion for determining which proposals to consider. (If more than five proposals are received, those quoting prices higher than the fifth lowest may be disregarded.)

Some factors which may be considered in evaluating proposals:

1. Prior experience;

2. Organization size and structure of vendor in relation to services to be performed;

3. Qualifications of staff to be assigned to perform the services;

4. Vendor's understanding of service to be performed;

5. Price by unit (or other measurement) of service. Cost must be weighed at least 25%.

III. RULES GOVERNING PERSONAL, PROFESSIONAL AND CONSULTANT CONTRACTS

A. Outside Contractors

A contract for services with a person or professional organization outside state government shall not be approved unless it is determined that the services are in fact needed, and they cannot be satisfactorily and economically performed by an agency of the state government. State policy prohibits personal, professional, or consulting contracts from creating an employer/employee relationship.

B. Contracts with Former and Present State Employees

Contracts with former state employees within six months of termination are prohibited. Institutions will not be allowed to contract with an individual who is, or within the past six months has been, a state employee. An individual shall be deemed a state employee until such time as all compensation and terminal leave has been paid. Contracts with a company or corporation in which a controlling interest is held by any state employee or the employee's spouse shall be considered, for the purpose of applying this rule, to be a contract with the individual. See also TBR Policy 1:02:03:10

C. Payments

All agreements must provide that payments are to be made only upon submittal of invoices by the contractor, after performance of the portion of the services which the invoiced amount represents, except that agreements with tax-exempt non-profit organizations may provide for periodic advance payments (see also Section I of this guideline). All agreements must require that periodic (monthly or quarterly) progress reports be submitted to the institution, which reports must be evaluated and the work found to be sufficient according to the terms of the contract prior to approval of the next payment; provided that in the case of agreements with individuals where the services to be provided are brief in nature, and adequate performance of the

services may be satisfactorily determined in the absence of progress reports, payments may be made after performance of the agreed upon services upon submission of invoices or other appropriate requests for payment indicating the services performed, the date of performance, and the amount payable pursuant to the agreement.

Sales/Ownership/Ethnicity Information.

As part of the purchasing and contracting process, institutions shall attempt to collect: type of business, annual sales, business ownership and ethnicity information before payment is made to the vendor. Information shall be collected in accordance with TCA § 12-3-8 and TBR Purchasing Policy No. 4:02:10:00.

D. In appropriate cases, the institution shall require the contractor to demonstrate proof of appropriate forms of insurance, and/or to provide a performance bond.

E. Institutions are responsible for monitoring the Title VI compliance of

sub-recipients of federal funds.

F. Appropriate language regarding intellectual property rights should be included in contracts developed under Section 3. (TBR Policy 5:01:06:00.)

G. Any part of this guideline may be waived by the Chancellor or designee in the event of conflict with applicable federal regulations or provisions governing the use of federal grant funds.

H. Each institution shall maintain all necessary records to reflect compliance with this guideline and TBR Purchasing Policy, including records of all bids, proposals, or other offers for services submitted for each service contract.

I. Gramm Leach Bliley Act (GLBA) Language.

All contracts with service providers that, pursuant to the terms and/or nature of the agreement, will have access to the institution’s customers’ non-public financial information (e.g., personal information that is maintained by the institution to provide a financial product or service, such as a student loan) must include the following clause:

“Throughout the term of this Agreement, Service Provider shall implement and maintain ‘appropriate safeguards,’ as that term is used in § 314.4(d) of the FTC Safeguard Rule, 16 C.F.R. § 314, for all ‘customer information,’ as that term is defined in § 314.2(b) of the FTC Safeguard Rule, delivered to Service Provider by Institution pursuant to this Agreement. The Service Provider shall implement an Information Security Program (‘the Program’) as required by the FTC Safeguard Rule. Service Provider shall promptly notify the Institution, in writing, of each instance of (i) unauthorized access to or use of that nonpublic financial customer information that could result in substantial harm or inconvenience to a customer of the Institution or (ii) unauthorized disclosure, misuse, alteration, destruction or other compromise of that nonpublic financial customer information.

Service Provider shall forever defend and hold Institution harmless from all claims, liabilities, damages, or judgments involving a third party, including Institution’s costs and attorney fees, which arise as a result of Service Provider’s failure to meet any of its obligations under this provision. Service Provider shall further agree to reimburse the Institution for its direct damages (e.g., costs to reconstruct lost or altered information) resulting from any security breach, loss, or alteration of nonpublic financial customer information caused by the Service Provider or its subcontractors or agents.

Service Provider grants Institution the right to conduct on-site audits, as deemed necessary by the Institution, of the Service Provider’s Program to ensure the integrity of the Service Provider’s safeguarding of the Institution’s customers’ nonpublic financial information.

Institution retains the right to unilaterally terminate the Agreement, without prior notice, if Service Provider has allowed a material breach of its Program in violation of its obligations under the GLBA, if Service Provider has lost or materially altered nonpublic financial customer information, or if the Institution reasonably determines that Service Provider’s Program is inadequate.

Within thirty (30) days of the termination or expiration of this Agreement, Service Provider shall, at the election of Institution, either: (1) return to the Institution or (2) destroy (and shall cause each of its agents to destroy) all records, electronic or otherwise, in its or its agent’s possession that contain such nonpublic financial customer information and shall deliver to the Institution a written certification of the destruction.”

J. The form contract in this Section 3 may be adapted for many purposes. For example, when a service contract is with another Tennessee state agency, the following items are not essential and may be omitted: the second paragraph of B. 3 and C. 1, 2, 3, 4, and 13.

IV. GRANT AGREEMENTS

A. The President or designee of an institution is authorized to approve applications for grants from agencies or organizations; provided that, when matching funds or services in lieu of funds are required by the institution, no application shall be made unless the operating budget provides the funds and/or resources necessary for the project. The President is further authorized to accept the award of a grant and enter into agreements confirming grants, provided that the acceptance of grants and agreements confirming the award of grants shall be subject to the requirements of this guideline. Grants which conform to the requirements of this guideline do not require the approval of the Chancellor regardless of the amount of the grant.

B. The following procedures shall govern expenditures for personal, professional or consulting services pursuant to grant contracts:

Procedures

1. The institution shall conduct negotiations when possible to ensure that payments are appropriate to support the activity contemplated.

2. A written budget and work program shall be prepared and included in the grant agreement.

C. Contracts Representing Grants. Grant contracts not involving federal money must include the following provision:

"The contractor shall cause to be performed, in accordance with auditing standards prescribed by the Comptroller of the Treasury of the State of Tennessee, an audit of all its program(s) funded by this contract; provided, however, that any contract for such audit shall be subject to prior approval of the Comptroller of the Treasury of the State of Tennessee, and must be submitted on the standard contract to audit accounts' form published by the Comptroller of the Treasury. The audit may include and be combined with an audit of other programs of the contractor, and the existence of more than one contract between the contractor and any agency of the State of Tennessee shall not necessitate more than one (1) audit of the contractor's programs to be performed every two years."

Grant contracts involving Federal money must include the following provision:

“The Grantee shall prepare and submit, within nine (9) months after the close of the reporting period, an annual report of its activities funded under this grant to the commissioner or head of the granting agency, the Tennessee Comptroller of the Treasury, and the Commissioner of Finance and Administration. The annual report for any Grantee that receives $300,000.00 or more in aggregate federal and/or state funding for all its programs shall include audited financial statements. All books of account and financial records shall be subject to annual audit by the Tennessee Comptroller of the Treasury or the Comptroller's duly appointed representative. When an audit is required, the Grantee may, with the prior approval of the Comptroller, engage a licensed independent public accountant to perform the audit. The audit contract between the Grantee and the licensed independent public accountant shall be on a contract form prescribed by the Tennessee Comptroller of the Treasury. Any such audit shall be performed in accordance with generally accepted auditing standards, the provisions of OMB Circular A-133, if applicable, and the Audit Manual for Governmental Units and Recipients of Grant Funds published by the Tennessee Comptroller of the Treasury. The Grantee shall be responsible for reimbursement of the cost of the audit prepared by the Tennessee Comptroller of the Treasury, and payment of fees for the audit prepared by the licensed independent public accountant. Payment of the audit fees of the licensed independent public accountant by the Grantee shall be subject to the provisions relating to such fees contained in the prescribed contract form noted above. Copies of such audits shall be provided to the State Granting Department, the Tennessee Comptroller of the Treasury, the Department of Finance and Administration, and shall be made available to the public.”

D. Grant Contracts. Procurement by grantee--grant contracts which provide for reimbursement for the cost of procuring goods, materials, supplies, equipment or services shall contain the following provision:

“If the terms of this contract allow reimbursement for the cost of procuring goods, materials, supplies, equipment or services, such procurement shall be made on a competitive basis (including the use of competitive bidding procedures), when practicable.”

E. Federally Funded Grant Contracts. Procurement by contractor--when a grant contract provides that the contractor may make purchases and be reimbursed for its cost with funds derived wholly or partially from federal sources, the following clause or one of substantially the same effect should be included:

"Reimbursement for the cost of procuring goods, materials or services shall be subject to the contractor's compliance with applicable federal procurement requirements."

F. Federally Funded Contracts. Compliance with federal regulations--if federal funds are used to support the contract, the following clause must be included:

"The contractor shall comply with all applicable federal regulations in the performance of duties under this contract."

Source: Finance and Administration Regulations, Chapter 0620-3-3

AGREEMENT BETWEEN

(NAME OF INSTITUTION)

AND

(NAME OF CONTRACTOR)

This Agreement is made this _____ day of ____________________, 20___, by and between the (name of institution), hereinafter referred to as the "Institution",

and (name of contractor), hereinafter referred to as "Contractor".

W I T N E S S E T H:

In consideration of the mutual promises herein contained, the parties have agreed and do hereby enter into this Agreement according to the provisions set out herein:

A. The Contractor agrees to perform the following services:

(Detailed description, including type, scope, duration, form, quality, quantity, place, time and purpose).

B. The Institution agrees to compensate the Contractor as follows:

1. (Rate of compensation - hourly, daily, etc.)

2. (Timetable for payments, monthly, quarterly, after full performance, etc.)

3. Payments to the Contractor shall be made according to the schedule set out above, provided that payments shall be made only upon submittal of invoices by the Contractor, and after performance of the portion of the services which the invoiced amount represents. The final payment shall be made only after the Contractor has completely performed its duties under this Agreement.

If the Contractor is a non-resident alien, payment of any portion of the contract from any source will not be made by the Institution until an Individual Taxpayer Identification Number or Social Security Number has been assigned to the Contractor by the Internal Revenue Service and Immigration Naturalization Service and presented to the Institution.

4. In no event shall the liability of the Institution under this contract exceed $_______________.

C. The parties further agree that the following shall be essential terms and conditions of this Agreement.

1. The Contractor warrants that no part of the total contract amount provided herein shall be paid directly or indirectly to any officer or employee of the state of Tennessee as wages, compensation, or gifts in exchange for acting as officer, agent, employee, sub-Contractor, or consultant to the Contractor in connection with any work contemplated or performed relative to this Agreement.

If the Contractor is an individual, the Contractor warrants that within the past six months he/she has not been and during the term of this contract will not become an employee of the State of Tennessee.

2. The parties agree to comply with Titles VI and VII of the Civil Rights Act of 1964, Title IX of the Education Amendments of 1972, Section 504 of the Rehabilitation Act of 1973, Executive Order 11,246, the Americans with Disabilities Act of 1990 and the related regulations to each. Each party assures that it will not discriminate against any individual including, but not limited to, employees or applicants for employment and/or students because of race, religion, creed, color, sex, age, disability, veteran status or national origin.

The parties also agree to take affirmative action to ensure that applicants are employed and that employees are treated during their employment without regard to their race, religion, creed, color, sex, age, disability, veteran status, or national origin. Such action shall include, but not be limited to, the following: employment, upgrading, demotion or transfer, recruitment or recruitment advertising, layoff or termination, rates of pay or other forms of compensation, and selection available to employees and applicants for employment.

3. (Include this provision ONLY if the Contractor will receive Federal funds under this agreement.)

Contractor agrees to complete a TBR Annual Title VI Survey or cooperate with a TBR Title VI compliance audit if it received Federal funds under this Agreement.

4. The Contractor, being an independent contractor and not an employee of this Institution, agrees to carry adequate public liability and other appropriate forms of insurance, to pay all taxes incident hereunto, and otherwise protect and hold the Institution harmless from any and all liability not specifically provided for in this agreement.

5. The term of this contract shall be from (beginning date) to (ending date.)

6. This Agreement may be terminated by either party by giving written notice to the other, at least ___ days before the effective date of termination. In that event, the Contractor shall be entitled to receive just and equitable compensation for any satisfactory authorized work completed as of the termination date.

7. If the Contractor fails to fulfill in a timely and proper manner its obligations under this Agreement, or if the Contractor shall violate any of the terms of this Agreement, the Institution shall have the right to immediately terminate this Agreement and withhold payments in excess of fair compensation for work completed.

Notwithstanding the above, the Contractor shall not be relieved of liability to the institution for damages sustained by virtue of any breach of this Agreement by the Contractor.

8. This Agreement may be modified only by written amendment executed by all parties hereto.

9. The Contractor shall maintain documentation for all charges against the Institution under this Agreement. The books, records, and documents of the Contractor, insofar as they relate to work performed or money received under this Agreement, shall be maintained for a period of three full years from the date of the final payment, and shall be subject to audit, at any reasonable time and upon notice, by the Institution or the Comptroller of the Treasury, or their duly appointed representatives.*

10. The Contractor shall not assign this Agreement or enter into sub-contracts for any of the work described herein without obtaining the prior written approval of the Institution or Tennessee Board of Regents, as appropriate. Approval shall not be given if the proposed subcontractor was or is currently ineligible to bid on the contract.

11. The Contractor shall submit to the Institution (monthly) (quarterly) progress reports if requested by the Institution.

12. This Agreement shall not be binding upon the parties until it is approved by the president or designee, the Vice Chancellor for the Tennessee Technology Centers or designee or the Tennessee Board of Regents, as appropriate.

13. Payment to the Contractor for travel, meals or lodging shall be in the amount of actual cost or per diem, subject to maximum amounts and limitations specified in the Tennessee Board of Regents policies, as they may be from time to time amended.

*If applicable, use appropriate audit language from IV. C. above for grant contracts.

[If applicable, add GLBA language from III. H. above.]

In witness whereof, the parties have by their duly authorized representatives set their signatures.

(NAME OF CONTRACTOR) (NAME OF INSTITUTION)

BY: _____________________________ BY:_____________________________

TITLE: __________________________ TITLE: __________________________

DATE: __________________________ DATE: __________________________

APPROVED: TENNESSEE BOARD OF REGENTS (When required)

BY: _____________________________

TITLE: ___________________________

DATE: ____________________________

Section 4

DUAL SERVICES AGREEMENTS

I. SCOPE

This guideline is applicable to agreements whereby an institution in the Tennessee Board of Regents System or any agency of state government desires to procure the services of an employee of another institution or state agency or to provide the services of one of its employees to other institutions or state agencies. See TBR Policy 5:01:05:00.

II. GENERAL RULES

A. Job priorities. It is the policy of the Tennessee Board of Regents that a full-time employee of an institution must devote his or her full working time to his or her position; therefore, any agreement which diminishes an employee's availability for the performance of his or her duties will not be approved, except as provided in this guideline. In general, the services to be performed are of an infrequent or short term nature.

B. Overtime. If the work to be performed constitutes overtime or extra services for the employee involved and if the vendor institution receives payment from the procuring agency or institution and desires that the employee be compensated for such work, then compensation must be made pursuant to one of the following methods: (i) for faculty workload reduction or extra compensation; or (ii) for other employees, compensatory time, overtime payment, workload reduction, or temporary salary adjustment.

III. ESSENTIAL CONTENTS OF THE AGREEMENT

The form agreement at the end of this section contains all required elements; however, a few elements are described below:

A. A brief description of the services provided or secured from the state agency concerned.

B. Include the name and social security number of the employee providing the services.

C. In describing the terms of the agreement, include a statement of the rate and means of compensation to be paid by the procuring agency or institution to the employer agency or institution (the vending party), including when payment will be made and to what address invoices are to be sent.

D. Conditions governing employee services and methods of compensation.

A letter or other notice from the procuring party that the services have been provided and the submission of an invoice from the vendor party are required prior to payment for services rendered when:

1. An employee of another institution is to be compensated for services other than as a temporary part-time employee; or

2. Compensation is to be paid to another institution or state agency for services to be performed pursuant to an agreement.

E. Number 7 of the form agreement may be omitted in dual services agreements: between TBR institutions, between TBR and UT, and between TBR and any other state entity; however, some state entities may require this provision.

IV. RULES, GOVERNING DUAL SERVICES AGREEMENTS WITH OTHER STATE AGENCIES (OTHER THAN THE UNIVERSITY OF TENNESSEE AND TENNESSEE BOARD OF REGENTS INSTITUTIONS)

A. No payment shall be made by a Tennessee Board of Regents institution directly to an employee of another state agency for services of any nature. Any payment or transfer of funds for such services shall be between the institution and the state agency.

B. Approvals - all dual services agreements of this kind require the signature of:

1. An authorized official of the institution or agency procuring the services.

2. In addition, if compensation exceeds $l,500.00 to any state agency employee, other than UT or between TBR institutions, approval is required by the Department of Finance and Administration.

3. Regardless of amount involved, a copy of each agreement must be filed with the Department of Personnel and the Department of Finance and Administration.

C. No dual services agreement which conforms to the requirements of this guideline shall require the approval of the Central Office, except dual services agreements in which the Central Office is either the vendor or procuring party.

V. RULES GOVERNING DUAL SERVICES AGREEMENTS WITH THE UNIVERSITY OF TENNESSEE INSTITUTIONS

A. When the agreement concerns an institution in the Tennessee Board of Regents System and a University of Tennessee institution, the agreement may take one of two forms. The contract may be either:

1. Between the employee involved and the other institution pursuant to the provisions in B. below; or

2. Between the two institutions involved, pursuant to the provisions in G. below.

B. Contracts between an employee of one system and a procuring institution in the other system are permitted only in the following situations:

1. When the services to be performed are of an infrequent or short term nature.

2. Payment will not exceed the maximum rate provided in TBR Policy No. 5:01:05:00 (Outside Employment and Extra Compensation).

3. When the services to be performed involve teaching or instruction by an employee, the maximum services permitted shall be as provided in TBR Policy No. 5:01:05:00 (Outside Employment and Extra Compensation).

Contracts under this Section B. may be between the employee and the institution or between institutions. If payment is made directly to the employee, the employee shall be treated as a temporary part-time employee of the procuring institution.

Dual services agreements under this Section V B., between an employee and the procuring institution, are the only dual services agreements in which an employee may be a party, and the employee’s signature is only required on dual services agreements in which an employee is a party.

C. When an agreement is made directly between the employee and the institution as discussed in V B., the employee must obtain the written approval of his or her supervisor and dean or director; and the procuring institution must provide written notice of the agreement to the employer institution. A copy of the agreement must be forwarded to the vendor party’s Human Resource Office.

D. Any payment made to an exempt employee of a TBR institution by a University of Tennessee institution should be treated as, and counted toward the maximum of, extra compensation for such employee as described in TBR Policy No. 5:01:05:00.

E. Any compensation paid shall not exceed the rate the procuring institution or agency normally pays for such services.

F. Conflicts of interest must be avoided.

G. In all dual services agreements covered by Section V other than those set forth in paragraph V B.:

1. A memorandum of agreement must be signed between the two institutions involved.

2. Any payment or transfer of funds for such services must be between the two institutions, and must not involve the individual employee.

3. No employee of an institution may be a party to such agreement.

VI. RULES GOVERNING DUAL SERVICES AGREEMENTS BETWEEN TENNESSEE BOARD OF REGENTS INSTITUTIONS

A. When one TBR institution procures the services of an employee of another TBR institution, the agreement shall take the following form:

1. The agreement shall be between the institutions involved, pursuant to the provisions in B. below.

2. Blanket dual services agreements are allowed. For example, if an institution is employing twenty (20) individuals from another TBR institution, one blanket agreement which includes the names and rates of compensation may be used.

3. Payment shall only be made after performance. The procuring institution shall be required to send a copy of the agreement and notice to the vending institution that the services have been completed, and the vendor institution will then invoice the procuring institution for payment.

B. Contracts between the TBR institutions are permitted in the following situations:

1. When the services are of an infrequent or short term nature; and

2. When the services to be performed involve teaching or instruction by an employee not in excess of the maximum permitted under TBR Policy No. 5:01:05:00.

C. Any payment made by the procuring institution to another institution shall be treated as, and counted toward the maximum of, extra compensation for an exempt employee as described in TBR Policy No. 5:01:05:00.

D. Any compensation paid shall not exceed the rate the procuring institution normally pays for such services.

E. Conflicts of interest must be avoided.

Source and Authority: TBR Policy No. 5:01:05:00; Section 36 of Chapter 732 of the Public Acts of l976, and the rules of the Department of Finance and Administration.

DUAL SERVICES

MEMORANDUM OF AGREEMENT

FOR EMPLOYEE SERVICES

_________________________ __________________________

VENDOR PARTY PROCURING PARTY

This memorandum signifies agreement of the above parties concerning the provision of employee services. The agreement is as follows:

1. Vendor agrees to furnish the services of its full-time employee, _____________________, Social Security No. _____________________, who will perform the following services for procuring party:

___________________________________________________________

2. Compensation to vendor party:

______________Base Amount

______________FICA

______________Medicare

______________Retirement

Total: ______________

Maximum liability of procuring party $____________.

3. Payment will be made by procuring party after completion of service and after receipt of invoice from vendor party, mailed to the following address:

__________________________________

4. Contract term: ____________________________________________.

5. Either party may terminate this agreement by giving written notice to the other at least ____ days before the effective date of termination. In that event, vendor shall be entitled to receive just and equitable compensation for any satisfactory work completed as of the termination date. In addition, procuring party shall have the right to immediately terminate this agreement and withhold payments in excess of fair compensation for work completed in the event that the employee fails to perform in a timely and proper manner or breaches any material term of this agreement.

6. This agreement cannot be assigned or subcontracted without the written consent of all parties.

7. During the performance of this contract both parties warrant that they will not discriminate against any employee or applicant for employment because of race, age, religion, creed, color, sex, disability, veteran status or national origin. The parties will take affirmative action to ensure that applicants are employed and that employees are treated during employment without regard to their race, religion, creed, color, sex, age disability, veteran status or national origin. Such action shall include, but not be limited to, the following: employment, upgrading, demotion, transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection available to employees and applicants for employment.*

* Number 7 may be omitted from agreements: between TBR institutions, between TBR and UT, and between TBR and any other state entity; however, some state entities may require this provision.

Dated this ___________ day of __________________________, 20__

(VENDOR PARTY) (PROCURING PARTY)

BY: ____________________________ BY:_____________________

TITLE: __________________________ TITLE:___________________

APPROVED:

FINANCE AND ADMINISTRATION

(If the other party is not a TBR/UT institution)

BY:_____________________________

TITLE:__________________________

DATE: ________________________

Section 5

USE OF CAMPUS FACILITIES

(General use by non-affiliated organizations)

I. SCOPE

Use this guideline for agreements for short-term rental or use of campus facilities for activities by non-affiliated organizations. Such agreements include, but are not limited to, those for musical performances, speakers, conventions, exhibits, etc. This guideline does not apply to lease of property for residential use and/or commercial lease of property (See TBR Guideline B-026). See also Section 6 of this guideline.

II. GENERAL RULES

A. All use of campus facilities and agreements providing for such use must comply fully with TBR Policy No. 3:02:02:00.

B. All agreements providing for campus-based performances and any other agreements subject to Sections 5 and 6 of this guideline with a value exceeding $249,999.99 must be submitted to the Central Office for approval.

C. Agreements which deviate from this guideline must be submitted to the Central Office for approval.

D. All use of campus facilities must be related to the mission of the institution.

E. The agreement should include as parties, each non-affiliated individual or organization who has direct responsibility for fulfilling terms of the agreement or who is to share in the revenue.

F. The agreement may not require the institution to make future commitments beyond the end of the agreement for exclusive dealing.

Source and authority: TBR Policy No: 3:02:02:00

AGREEMENT BETWEEN

(NON-AFFILIATED ORGANIZATION)

AND (INSTITUTION)

This Agreement is made this ______ day of ____________, 20___, by and between _________________________ ("Institution") and ________________ ("User") for the use of the institution's facility as defined below.

W I T N E S S E T H:

In consideration of the mutual promises herein contained, the parties have agreed and do hereby enter into this Agreement according to the provisions set forth herein:

1. The specific use of the facility for which the parties enter into this Agreement is (describe activity):

____________________________________________________________________________________________________________________________________

2. The User shall have use of the facility from (time) on (date) to (time) on (date). Additional times and purposes for which the User shall have access to the facility are as follows:

________________________________________________________

3. In its use of the facility, the User shall have access to the following: (description/location of specific areas/services of the facility available to the User including any restrictions on such use).

_________________________________________________________

________________________________________________________

4. Payment for use of the facility is to be made as follows: (include amount, method, time, place, and source, if applicable).

5. The following duties shall be the responsibility of the designated party:

A. Promotion and publicity shall be provided by: __________________________________________________.

B. The Institution shall provide equipment/services as follows:

__________________________________________________________________________________________________________________________________________________________________

C. The User shall provide equipment/services as follows:

_______________________________________________________________________________________________________________________________________________________________

D. Advance ticket sales shall be the responsibility of _____________________________________________________

E. The User shall register with the State of Tennessee sales tax division of the Department of Revenue and shall issue to the Institution a certificate of resale for the rental of the facility.

F. The User will be responsible for the payment of all applicable amusement tax and sales tax.

6. This Agreement may be terminated by either party upon giving _____ days written notice to the other party prior to termination. This Agreement may be terminated without the above described notice upon grounds that the facility has been rendered unusable or the activity has been canceled due to an act of God. The Institution may also terminate this Agreement if it becomes aware of any threat to personal or public safety arising from the intended use. In all other events of cancellation of the activity, the User shall pay to the institution all actual costs and/or "out of pocket" expenses incurred by the Institution, including the expenses associated with any ticket refunds.

7. Concession rights for the activity shall be as follows: (designate specific concession, party having right to each concession, restrictions on right to and conduct of each concession and method of dividing revenue, if applicable.)

8. If music is to be performed, the parties agree to abide by the following copyright and performance provisions:

A. The User hereby assures that all necessary copyright and royalty licenses have been obtained from ASCAP, BMI, SESAC and any other performing rights organization or the copyright owner for the performance to be presented under the terms of this Agreement.

B. The User agrees to provide the Institution the prior written consent of SESAC, Inc. or the copyright owner for copyrighted music or work for which SESAC is the licensing agent.

C. The User agrees to indemnify, hold harmless and defend the Institution and the State of Tennessee from and against any and all claims, demands or suits which may be brought for copyright infringement allegedly arising in the course of the performance presented under the terms of this Agreement. Such indemnification shall extend to both criminal and civil actions and shall include any and all loss, damage, penalty, court costs or attorneys' fees incurred by the Institution as a result of such infringement.

D. The Institution shall promptly notify the User of any such claim brought against the Institution or the State of Tennessee. The settlement or compromise of any claim brought against the Institution or the state shall be subject to the approval of the appropriate state officials, as required by T.C.A. Section 20-13-103.

9. The User hereby agrees to indemnify and hold the Institution harmless from any and all liabilities arising out of its use of the facility, including, but not limited to, personal injury, property damage, court costs and attorneys' fees.

10. The User agrees to comply with all federal, state and municipal laws, rules and regulations.

11. The User agrees to furnish proof of insurance or performance bond upon request by the Institution as required by TBR Policy 3:02:02:00.

12. The parties agree to comply with Titles VI and VII of the Civil Rights Act of 1964, Title IX of the Education Amendments of 1972, Section 504 of the Rehabilitation Act of 1973, Executive Order 11,246, the Americans with Disabilities Act of 1990 and the related regulations to each. Each party assures that it will not discriminate against any individual including, but not limited to, employees or applicants for employment and/or students because of race, religion, creed, color, sex, age, disability, veteran status or national origin.

The parties also agree to take affirmative action to ensure that applicants are employed and that employees are treated during their employment without regard to their race, religion, creed, color, sex, age, disability, veteran status or national origin. Such action shall include, but not be limited to, the following: employment, upgrading demotion or transfer, recruitment or recruitment advertising, layoff or termination, rates of pay or other forms of compensation, and selection available to employees and applicants for employment.

13. This Agreement may be modified only by written amendment executed by all parties hereto.

14. The User warrants that no part of the total contract amount provided herein shall be paid directly or indirectly to an officer or employee of the State of Tennessee as wages, compensation, or gifts in exchange for acting as officer, agent, employee, subcontractor or consultant to the User in connection with work contemplated or performed relative to this Agreement.

15. Any and all claims against the Institution under the terms of this Agreement shall be submitted to the Board of Claims or the Claims Commission of the State of Tennessee. Damages recoverable against the Institution shall be expressly limited to claims paid by the Board of Claims or Claims Commission pursuant to T.C.A. Section 9-8-30l, et. seq.

16. The User shall maintain documentation for all charges against the Institution under this Agreement. The books, records, and documentation of the User, insofar as they relate to work performed or money received under this Agreement, shall be maintained in conformity with generally accepted accounting principles for a period of three full years from the date of the final payment and shall be subject to audit, at any reasonable time and upon reasonable notice, by the Institution or the state Comptroller of the Treasury, or their duly appointed representatives or a licensed independent public accountant.

17. This Agreement shall not be effective until approved by the President or designee, the Vice Chancellor for Tennessee Technology Centers or designee, or the TBR, as appropriate.

In witness whereof, the parties, through their authorized representatives, have affixed their signatures below.

(USER) (INSTITUTION)

BY: ________________________ BY: _____________________________

TITLE: _____________________ TITLE: __________________________

DATE: _____________________ DATE: __________________________

APPROVED: TENNESSEE BOARD OF REGENTS (When required)

BY: ________________________________

TITLE: _____________________________

DATE: _____________________________

Section 6

ADDITIONAL FORMS FOR USE OF SPACE

(Special alternative agreement forms)

I. SCOPE

Below are additional/alternative approved, forms for short-term lease or use of TBR space, and the applicable terms and conditions for each are available at the TBR web site in the Facilities section. Instructions for these forms are also in the Facilities section under “Completing Continuing Use Agreements”.

A. MUTUAL USE AGREEMENT

Involving a Tennessee Board of Regents Institution

B. TRANSIENT USE AGREEMENT

Involving a Tennessee Board of Regents Institution

C. TENANT USE AGREEMENT

Between Two Tennessee Board of Regents Institutions

D. MUTUAL OR TRANSIENT USE

Terms and Conditions

For an Agreement Involving a Tennessee Board of Regents Institution

E. TENANT USE

Terms and Conditions

For an Agreement between Two Tennessee Board of Regents Institutions

II. TYPES OF AGREEMENTS NOT COVERED:

A. Leases subject to State Building Commission oversight, identified at TBR web site in the Facilities section.

B. Event-Oriented Use Agreements

For short-term use of facilities for a specific event, such as a concert, festival, special competition, or single-day educational events, the requirements continue to be those set forth in TBR Policy 3:02:02:00 and in Section 5 (above) of this guideline.

III. TYPES OF AGREEMENTS COVERED:

A. Tenant Use Agreements

Which are arrangements similar to a lease, but occurring between two TBR

institutions.

B. Transient Use Agreements

1. Provide short-term, continuing, non-exclusive use of facilities, such as evening use of high school space as a teaching extension site for a semester.

2. Distinct from the event-oriented Use Agreement under TBR Policy 3:02:02:00 and Section 5 of this guideline.

3. Can be for TBR use of non-TBR facilities, or non-TBR use of TBR facilities.

C. Mutual Use Agreements

1. Similar to Transient Use, except that both parties make use of each other’s spaces.

2. Between two TBR institutions or one TBR institution and a non-TBR entity.

3. Instead of financial compensation, the consideration is the mutual use of each other’s facilities.

IV. APPROVALS

Tenant, Transient, and Mutual Use Agreements are simplified versions of the standard lease, designed for the less-formal arrangements described above. They are not subject to most SBC and TBR lease approval processes when properly used in their intended circumstances, but may still be subject to review and/or approval in the TBR Central Office (as provided in TBR Policy 1:03:02:10, TBR Policy 3:01:02:10, TBR Guideline

B-026 and TBR Guideline G-030), and are subject to the signature requirements set forth in TBR Policy 1:03:02:10, TBR Policy 3:01:02:10, TBR Guideline B-026 and TBR Guideline G-030 for other use agreements.

V. APPLICABLE TERMS AND CONDITIONS

Standard Terms and Conditions are provided containing the “boilerplate” fixed provisions, so that the agreement forms focus on the permissible variables, and editing is less likely to result in the insertion of unacceptable clauses or removal of necessary ones.

Section 7

CONTRACTS FOR ACQUISITION OF HARDWARE, SOFTWARE

AND RELATED SERVICES

I. SCOPE

This guideline applies to purchases, rentals, leases, licenses, trades or gifts of computer hardware (equipment) and software or related services for data processing or audio visual purposes and music performance license agreements. Acquisition of computer systems involving the purchase of hardware with the development of application software shall be made in accordance with TBR Guideline B-030, Acquisition of Data Processing Equipment/ Software/Services, and Guideline B-035, Procedures for Multi-Step Sealed Bidding.

II. GENERAL RULES

A. Each acquisition by an institution should be documented in writing in the form of a purchase order issued by the institution and/or a contractual agreement to formalize acceptance of a vendor’s bid and delivery of products or services.

B. All institutional acquisitions of hardware, software, and related services must comply with this guideline. It is the responsibility of the institution to negotiate changes in all vendor provided agreements so that such agreements comply with this guideline.

If vendor does not provide an agreement, the attached standard agreement may be used for software licenses and, with appropriate adaptation, for equipment purchases. If maintenance contractors do not provide an agreement, the standard agreement for personal service contracts should be adapted for use as a maintenance contract.

The Office of General Counsel is available for assistance in negotiating modifications with the vendor. The institution may wish to consult General Counsel prior to contacting the vendor regarding modification.

C. All agreements subject to this Section 7 which exceed $249,999.99 or which do not comply with this guideline shall be subject to the express approval of the Chancellor of the Tennessee Board of Regents. Institutions must negotiate deletion of all unacceptable provisions and must attempt to secure the agreement of the vendor prior to submission to the TBR Central Office for approval.

D. The TBR Central Office has negotiated master agreements with several vendors permitting purchases thereunder by all institutions in the TBR system. These agreements contain terms and conditions that have already been approved by the TBR Central Office. Whenever acquiring data processing related products, TBR institutions should first consult the Director of Purchasing and Contracts in the TBR Central Office to see what may be available pursuant to any existing agreements. Whenever acquiring audio visual related software, TBR institutions may wish to first consult the TBR media consortium.

E. Testing of Hardware, Software or Related services

Agreements authorizing the institution to conduct experimentation or testing of hardware, software or related services shall require the written approval of the Chief Information Officer in the TBR Central Office. This category includes agreements which permit the experimental use of such products or services without warranty at little or no cost to the institution and for the benefit of the vendor. In relation to such agreements:

1. The institution may not agree to use such experimental products or services in place of existing ones for ordinary academic or administrative purposes.

2. The institution may not agree to hold the vendor harmless from any liability, notwithstanding the fact that the state may not be paying for the use of the experimental products or services.

F. Bidding Process

Generally, contracts for the acquisition of hardware should be awarded pursuant to the bidding process. Service agreements are also subject to the bidding process.

1. All requests for proposals (bids), invitations to bid and bid specifications must comply with TBR Policy 4:02:10:00 and this guideline and must clearly state all contractual provisions and requirements including the mandatory provisions.

2. The bidding process must comply with TBR Policy 4:02:10:00 and TBR Guideline B-030. Provisions required by TBR Policy 4:02:10:00 and TBR Guideline B-030 must also be clearly stated in all requests for proposals (bids), invitations to bid and bid specifications.

3. All bid specifications must be incorporated by reference in all contracts awarded pursuant to the bidding process. The following language should be included in the contract:

The contract documents consist of this Agreement, the Institution's purchase order no. ______, the Institution's request for bids no. ________ (or Institution's request for proposals no. _______), Contractor’s bid dated ________________________ (or Contractor's proposal dated __________________________) and any addenda and/or amendments to this Agreement hereafter executed. In the event that provisions of the contract documents conflict, priority for interpretation shall be as follows: addenda and/or amendments (latest addendum or amendment with first priority), the Agreement, the Institution's purchase order, the Institution's request for bid (or Institution's request for proposals), and the Contractor's bid (or the Contractor's proposal).

4. All bid specifications and all other relevant contract documents must be attached to contracts that are submitted to the TBR Central Office for approval.

G. Software Licensing and Warranties

1. Generally, the legal right to use software is obtained in the form of a license agreement. The permissible use of the software is governed solely by the terms and conditions stated in the license agreement. A standard form software license agreement is attached and should be used when the vendor does not provide an agreement. Vendor provided license agreements must be amended to conform to this guideline.

2. Limited warranty. Unless internet service / access is a specific service to be paid for and provided under an agreement, no warranty regarding the internet is required, and the vendor may disclaim warranties regarding the internet. In such a contract, the vendor must warrant something in relation to / in proportion to what is being paid for under the agreement, and the agreement cannot contain impermissible clauses other than the disclaimer regarding the internet.

3. If software is provided at absolutely no cost (free), an acceptable warranty would provide that the vendor warrants that the vendor has the right to license the software as provided in the agreement. However, the agreement cannot contain impermissible clauses other than a disclaimer of warranties (as long as the vendor warrants that the vendor has the right to license the software as provided in the agreement).

4. Agreements authorizing the institution to conduct experimentation or testing of hardware, software or related services shall require written approval of the TBR Central Office. This category includes agreements which permit the experimental use of such products or services without warranty, at little or no cost to the institution and for the benefit of the vendor. In relation to such agreements:

a. The institution may not agree to use such experimental products or services in place of existing ones for ordinary academic or administrative purposes.

b. The institution may not agree to hold the vendor harmless from any liability, notwithstanding the fact that the state may not be paying for the use of the experimental products or services.

H. Related Services

Agreements for related services include those for maintenance and support services.

1. Service agreements may be included as part of an acquisition agreement for hardware or software or may be a totally separate agreement with the same vendor or with a non-related vendor.

2. Service agreements are in the nature of personal services. Irrespective of the form of the service agreement, it must comply fully with Section 3 of this guideline for personal service agreements as well as this Section.

I. Music performance license agreements

1. A music performance license agreement grants a non-exclusive license to perform publicly or permit the public performance of copyrighted musical compositions to which BMI, ASCAP, or SESAC (music licensing organizations) has the right to grant a license. Music performances which are under the sponsorship, control, authority or receive direct or indirect approval of the institution will require a license.

2. In the event that an affiliated or non-affiliated group wishes to perform or sponsor a performance on campus of such music, the following provisions or equivalent language must be included in the contract:

a. The performer hereby gives assurances that he/she has obtained all necessary copyright and royalty licenses from ASCAP, BMI, SESAC, any other performing rights organization or the copyright owner for the performance(s) presented under the terms of this agreement.

b. The performer agrees to indemnify, hold harmless, and defend the institution and the State of Tennessee from and against any and all claims, demands or suits which may be brought for copyright infringement allegedly arising in the course of the performance(s) presented under the terms of this agreement. Such indemnification shall extend to both criminal and civil actions and shall include any loss, damage, penalty, court costs or attorneys' fees incurred by the institution.

c. The institution/state shall promptly notify the performer of any such claim brought against the state. The settlement or compromise of any claim brought against the state shall be subject to the approval of the appropriate state officials, as required by T.C.A. § 20-13-103.

SOFTWARE LICENSE AGREEMENT

BETWEEN

(Institution)

AND

(VENDOR)

This Agreement is made this day of ____, 20__ , by and between (institution) ,

(Licensee), and (vendor) (Licensor).

W I T N E S S E T H

The parties agree to the terms and conditions set forth below.

1. Licensor hereby grants to Licensee a nonexclusive license to use the software described below subject to the terms and conditions set forth herein:

2. In addition to the software described above, Licensor shall provide the following documentation/instruction:

3. Licensee agrees to the following restrictions on use of the software:

4. This agreement shall be effective upon execution by all parties.

5. In consideration for the license granted, Licensee shall pay to Licensor the total sum of ______, pursuant to the payment schedule set forth below:

6. Licensor shall deliver the software according to the following terms:

7. Licensor hereby warrants and represents as follows:

a. Licensor is the owner of the software system or otherwise has the right to grant to Licensee the license granted herein without violating the rights of any third party, and there is no actual or threatened suit by any such third party based on an alleged violation of such right by Licensor;

b. Licensor understands the purposes for which the Software shall be used by Licensee and warrants that the software is fit for such intended use;

c. For a period of ______ from the date of Licensee's acceptance of the software, the software shall not contain any defects and shall function properly and in conformity with the product description and specifications.

d. In addition, Licensor makes the following warranty:

____________________________________________________________________________________________________________________________________

e. Licensor makes no other express or implied warranties.

8. Unless otherwise specified herein, Licensee shall be permitted to make one copy of the Software for archival purposes only. Said copy shall bear all copyright, trademark and other proprietary notices included in the original Software package.

9. Neither party may assign this agreement without the other party's prior written consent, which shall not be unreasonably withheld.

10. a. The Licensor shall, at his own expense, be entitled to and shall have the duty to defend any suit which may be brought against the State of Tennessee to the extent that it is based on a claim that the products or services furnished infringe a United States copyright or patent. The Licensor shall further indemnify the State against any award of damages and costs made against the State by a final judgment of a court of last resort in any such suit. The Licensee or Tennessee Board of Regents shall provide Licensor immediate notice in writing of the existence of such claim and full right and opportunity to conduct the defense thereof, together with all available information and reasonable cooperation, assistance and authority to enable Licensor to do so. No costs or expenses shall be incurred for the account of the Licensor without its written consent. The Attorney General for the State of Tennessee reserves the right to participate in the defense of any such action. Licensor shall not be liable for any award of judgment against Licensee or the State of Tennessee reached by compromise or settlement unless the Licensor accepts the compromise or settlement. Licensor shall have the right to enter into negotiations for and the right to effect settlement or compromise of any such action, but no such settlement or compromise shall be binding upon the Licensee and the State of Tennessee unless approved by the Attorney General.

b. If, in Licensor's opinion, the products or services furnished under the contract are likely to, or do become, the subject of a claim of infringement of a United States copyright or patent, then without diminishing the Licensor's obligation to satisfy the final award, the Licensor may at its option and expense:

1. Procure for the Licensee the right to continue using the products or services.

2. Replace or modify the alleged infringing products or services with other equally suitable products or services that are satisfactory to the Licensee, so that they become non-infringing.

3. Remove the products or discontinue the services and cancel any future charges pertaining thereto.

Provided, however, that the Licensor will not exercise option b. 3. until the Licensor and Licensee have determined that options b. 1. and b. 2. are impractical.

c. The Licensor shall have no liability to the Licensee, however, if any such copyright or patent infringement or claim thereof is based upon or arises out of:

1. The use of the products or services in combination with apparatus or devices not supplied or approved by Licensor.

2. The use of the products or services in a manner for which the products or services were neither designated nor contemplated.

3. The claimed infringement of any copyright or patent in which Licensee or the State of Tennessee has any direct or indirect interest by license or otherwise (apart from this License).

11. Licensor shall maintain records pertaining to this agreement for a period of three years from final payment. Such records shall be subject to audit by the State of Tennessee.

12. The Licensor warrants that no part of the total contract amount provided herein shall be paid directly or indirectly to any officer or employee of the State of Tennessee as wages, compensation, or gifts in exchange for acting as officer, agent, employee, subcontractor or consultant to the Licensor in connection with any work contemplated or performed relative to this contract.

13. All notices required or permitted to be given by one party to the other under this Agreement shall be sufficient if sent by certified mail, return receipt requested, to the parties at the respective addresses set forth below or to such other address as the party to receive the notice has designated by notice to the other party.

Licensee: __________________ Licensor: ___________________

__________________________ ___________________________

14. This Agreement shall be governed by and construed under the laws of the State of Tennessee.

15. The parties agree to comply with Titles VI and VII of the Civil Rights Act of 1964, Title IX of the Education Amendments of 1972, Section 504 of the Rehabilitation Act of 1973, Executive Order 11,246, the Americans with Disabilities Act of 1990, and the related regulations to each. Each party assures that it will not discriminate against any individual including, but not limited to, employees or applicants for employment and/or students because of race, religion, creed, color, sex, age, disability, veteran status or national origin.

The parties also agree to take affirmative action to ensure that applicants are employed and that employees are treated during their employment without regard to their race, religion, creed, color, sex, age, disability, veteran status or national origin. Such action shall include, but not be limited to, the following: Employment, upgrading, demotion or transfer, recruitment or recruitment advertising, layoff or termination, rates of pay or other forms of compensation, and selection available to employees and applicants for employment.

16. The entire contract between the parties consists of this agreement, the Licensee's Purchase Order No. __________, the Licensee's Request for Bids No. __________, Licensor's Bid dated __________ and any addenda and/or amendments to this agreement hereafter executed. In the event of conflicting provisions, the documents shall be construed according to the following priority: Addenda and/or amendments (most recent with first priority), this Agreement, Purchase Order, Request for Bids and Bid.

17. If any provision of this Agreement is held invalid or otherwise unenforceable, the enforceability of the remaining provisions shall not be impaired thereby.

18. The failure by any party to exercise any right provided for herein shall not be deemed a waiver of any right hereunder.

(This space intentionally left blank.)

19. (Additional provisions, if any.)

In witness whereof, the parties, through their authorized representatives, have affixed their signatures below.

(Name of Licensor) (Name of Institution/Licensee)

BY: BY:

Title: Title:

Date: Date:

Approved: TBR (When Required)

Chancellor Date

Section 8

INTELLECTUAL PROPERTY AGREEMENTS

I. SCOPE

TBR Policy 5:01:06:00, Intellectual Property, sets out the approved procedures governing TBR intellectual property issues. In addition, resource information and approved form/sample agreements are provided at the TBR web site in the General Counsel section.

II. FORM CONTRACTS

A list of form/sample contracts provided in the General Counsel section of the TBR web page follows:

IP Agreement - Employee Intellectual Property Disclosure and Assignment Agreement

Forms pertinent to Digital Distance Education and Copyright:

A. Employee Work for Hire Agreement

B. Copyright License Agreement

C. Partial Assignment of Copyright Ownership Agreement

D. Independent Contractor Work Made for Hire Agreement

E. Joint Ownership of Copyright Agreement

III. RESEARCH AGREEMENT

An agreement form which may be used for sponsored research contracts and which contains key provisions / issues that should be covered / considered if the other party proposes to use its own contract form is provided below.

Source: TBR Policy 5:01:06:00

INTELLECTUAL PROPERTY / Research Agreement

THIS AGREEMENT, effective this ___ day of ________, 20__, is made by and between:

(company name)

(street address)

a ( insert state of incorporation]corporation), (hereinafter referred to as “Sponsor”)

and

( institution name)

(street address)

a member of the Tennessee Board of Regents, (hereinafter jointly referred to as “Institution”).

WITNESSETH:

WHEREAS, the research project contemplated by this Agreement is of mutual interest and benefit to Sponsor and to Institution, will further the instructional and research objectives of Institution in a manner consistent with its status as a non-profit, tax-exempt, public institution of higher education, and may derive benefits for both Sponsor and Institution through inventions, improvements, and/or discoveries;

NOW, THEREFORE, in consideration of the promises and mutual covenants herein contained, the parties hereto agree to the following:

Article 1 - Definitions

As used herein, the following terms shall have the following meanings:

1.1 “Project” shall mean the project described in Appendix A hereof, under the direction of ( ), as principal investigator. The principal investigator is responsible for directing research activity.

1.2 “Contract Period” is _________________ until _________________.

Article 2 - Research Work

2.1. Institution shall commence the performance of Project promptly after the effective date of this Agreement, and shall use reasonable efforts to perform such Project substantially in accordance with the terms and conditions of this Agreement. Anything in this Agreement to the contrary notwithstanding, Sponsor and Institution may at any time amend the scope of the Project by mutual written agreement.

2.2 In the event that the principal investigator becomes unable or unwilling to continue Project, and a mutually acceptable substitute is not available, Institution and/or Sponsor shall have the option to terminate said Project.

2.3 Sponsor understands that the Institution’s primary mission is education and advancement of knowledge and the Project will be designed to carry out this mission. The manner of performance of the Project will be determined solely by the Principal Investigator. The Institution will perform the Project on a “best efforts” research basis only and does not guarantee specific results. The Institution specifically disclaims all warranties or representations, either express or implied, for implied merchantability or for warranty of fitness for a particular purpose, including, without limitation, that any product does not infringe any patent, copyright or trademark right, as to any work performed under this Agreement, except as expressly set forth herein.

2.4 Sponsor understands that the Institution may be involved in similar research through other researchers on behalf of itself and others. Institution shall be free to continue such research provided that, during the term of this Agreement, it is conducted separately and by different investigators from the Project, and Sponsor shall not gain any rights via this Agreement to other research.

Article 3 - Reports and Conferences

3.1 If so requested, a final written report shall be submitted by Institution within 60 days of the conclusion of the Contract Period, or early termination of this Agreement.

3.2 If so requested by the Sponsor during the term of this Agreement, representatives of Institution will meet with representatives of Sponsor at times and places mutually agreed upon to discuss the progress and results, as well as ongoing plans, or changes therein, of Project to be performed hereunder.

Article 4 - Cost, Billings and Other Support

4.1 As consideration for the Institution’s performance, Sponsor will pay the Institution an amount equal to its expenditures and reasonable overhead in conducting the Project. It is agreed to and understood by the parties hereto that, pursuant to Section 2.1, the total costs to Sponsor hereunder shall not exceed the sum of _________________________ Dollars ($ ______________). Payment shall be made by Sponsor according to the following schedule:

(insert payment schedule).

4.2 In the event of early termination of this Agreement by Sponsor for convenience, Sponsor shall pay all costs accrued by the Institution as of the date of termination, including non-cancelable obligations, which shall include all non-cancelable contracts and fellowships or post-doctoral associates, which shall end no later than the end of the Institution’s academic year following termination.

4.3 Institution shall retain title to all equipment purchased and/or fabricated by it with funds provided by Sponsor under this Agreement.

4.4 Sponsor agrees to obtain, at Sponsor’s expense, a non-exclusive license for the Institution, the Principal Investigator, and any research assistant engaged by the Institution to work on the Project, to practice and/or use any patented technology or copyrighted material necessary to carry out the research contemplated by the scope of the Project. In the event that Sponsor is the owner of any patents or copyrights the practice of use of which is necessary for carrying out the Project, the Sponsor hereby grants the Institution, the Principal Investigator, and any research assistant engaged by the Institution to work on the Project, a non-exclusive license to practice and/or use any such patented technology or copyrighted materiaI.

Article 5 - Publicity

Sponsor and Institution agree to cooperate, each with the other, in the preparation of any publicity, advertising, or news release related to the Project. At least seven days prior to any release or publication, the issuing party will provide the other party with a copy of the proposed material for approval. Sponsor will not thereafter make any use of the name of the Institution or or any employee within the institution without the prior written approval of an authorized representative of the Institution. Authorized institution representatives include but are not limited to: (___________________________________________)

Article 6 - Publications

6.1 Sponsor recognizes that under Institution policy, the results of Project must be publishable and agrees that Researchers engaged in Project shall be permitted to present at symposia, national or regional professional meetings, and to publish in journals, theses, dissertations, or otherwise of their own choosing, the methods and results of Project; provided, however, that Sponsor shall have been furnished copies of any proposed publication or presentation at least thirty days in advance of the submission of such proposed publication or presentation to a journal, editor, or other third party to permit Sponsor to object to such proposed presentation or proposed publication if Sponsor believes there is patentable subject matter or proprietary information which needs protection. Sponsor shall provide the Institution with such objection in writing within thirty days of receiving a proposed publication or forever waive its rights in this regard.

In the event that Sponsor makes objection, Institution shall refrain from making such publication or presentation for a maximum of three months from date of receipt of such objection in order for patent application(s) to be filed by the appropriate party and/or for the proprietary information to be removed or redacted.

6.2 In the event that the results of the Project are published or any product resulting from the Project is marketed to third parties, the Institution and/or the Project Director shall, at their option, have the right to receive attribution for their contribution to the published material or to have the Institution’s and Project Director’s names displayed on the product, (in the case of published works, books CDs, DVDs or similar media), or the product packaging or literature in the case of other types of products.

Article 7 - Intellectual Property

It is understood that during the course of the Sponsored Research valuable intellectual property may be generated by Institution personnel alone or jointly with Sponsor personnel. The following terms concerning intellectual property and inventions shall apply to this Agreement:

7.1 All rights and title to inventions and intellectual property, including but not limited to US and foreign patent applications and patents resulting therefrom, which are invented solely by Institution personnel, will belong to Institution. All rights and title on inventions and intellectual property, including but not limited to US and foreign patent applications and patents resulting therefrom, which are invented jointly by Institution and Sponsor personnel shall belong jointly to Sponsor and Institution.

7.2 At Sponsor’s option, Institution and Sponsor agree to negotiate in good faith regarding the transfer of rights to inventions or other intellectual property held by the Institution that may have arisen from Project. Sponsor shall have three (3) months from disclosure of any invention or discovery to notify Institution that it wants to enter into such a license agreement. The parties shall negotiate in good faith for a period not to exceed six (6) months from Sponsor’s notification or a longer period of time if the parties mutually agree to extend negotiations. If Sponsor and Institution fail to enter into such an agreement, the rights to such inventions or other intellectual property shall be disposed of in accordance with Institution policies, with no obligation to Sponsor. In the event that Sponsor elects to obtain said license, Sponsor shall bear the expense of the prosecution of any related patent applications, including without limitation, patentability investigation expenses, on behalf of Institution and Institution personnel.

7.3 In the event that Institution declines to file patent applications in the US or in any foreign countries on any patentable inventions, the rights to file will, with prior agreement of all persons who will be engaged in the Project, and to the extent that any Inventions growing out of the Project also relied upon governmental sponsored research, the appropriate governmental agency, be transferred by Institution and those persons to Sponsor, if Sponsor so requests. Under these circumstances, patent applications filed by Sponsor will be made with the understanding that a share in royalties equivalent to that provided to the inventor(s) under the current Institution patent policy will be provided to the inventor(s) by Sponsor and provided further that the Institution shall be granted a world wide, fully paid-up, non-exclusive license to any Inventions so patented.

Article 8 - Term and Termination

8.1 This agreement shall become effective upon the date first herein above written and shall continue in effect for the full duration of the Contract Period unless sooner terminated in accordance with the provisions of this Article. The parties hereto may, however, extend the term of this Agreement for additional periods as desired under mutually agreeable terms and conditions that the parties reduce to writing and sign.

8.2 Either party may terminate this Agreement for convenience upon ____ days prior written notice to the other, subject to Section 4.2 hereof.

8.3 If the Sponsor fails to fulfill in a timely and proper manner its obligations under this Agreement or if the Sponsor shall violate any of the terms of this Agreement, the Institution shall have the right to immediately terminate this Agreement and withhold payment in excess of fair compensation for work completed. Notwithstanding the foregoing, the Sponsor shall not be relieved of liability to the Institution for damages sustained by virtue of any breach of this Agreement by the Sponsor.

8.4 Any provisions of this Agreement which by their nature extend beyond termination, e.g., without limitation, Articles 4-7, 10-11, shall survive such termination.

Article 9 - Independent Contractor

In the performance of services hereunder:

9.1 Institution shall be deemed to be and shall be an independent contractor and, as such, neither Institution or its employees shall be entitled to any benefits applicable to employees of Sponsor, nor shall Sponsor or its employees be entitled to any benefits applicable to employees of Institution;

9.2 Neither party is authorized or empowered to act as agent for the other for any purpose and shall not on behalf of the other enter into any contract, warranty, statement, commitment or representation as to any matter. Neither shall be bound by the acts or conduct of the other.

Article 10 - Indemnification

Sponsor shall indemnify and hold harmless Institution against any and all actions, claims, costs, or liabilities, including attorneys’ fees and court costs at both trial and appellate levels, for any loss, damage, injury, or loss of life caused by (a) the actions of Sponsor, its officers, servants, agents or of any third party acting under authorization from Sponsor, or (b) for products developed or made by or as a result of information or materials received from the Institution. Article 10 shall apply with the proviso that (a) Institution promptly notifies Sponsor in writing after Institution receives notice of any claim, (b) Sponsor shall defend the Institution or may be given the opportunity, at Institution’s option, to participate and associate with Institution in control, defense, and trial of any claim and any related settlement negotiations, (c) Institution fully cooperates with Sponsor in the defense of any such claim, and (d) no settlement shall binding against the Institution without the consent of the Tennessee Attorney General. The defense and indemnity provisions of Sponsor shall survive the termination or natural expiration of this Agreement.

Article 11 - Insurance

Sponsor shall procure and maintain the following insurance coverage:

11.1 Workers’ compensation and employers liability insurance at statutory limits for workers’ compensation and no less than $1,000,000 for employers liability.

11.2 Commercial general liability insurance, including contractual liability coverage and products and completed operations liability coverage, and, if necessary, commercial umbrella insurance, with a limit of not less than $1,000,000 each occurrence. If such insurance includes a general aggregate limit, it shall apply separately to this Project. The Institution shall be included as an additional insured under the CGL policy.

Article 12 - Governing Law

This Agreement shall be governed by and construed in accordance with the laws of the State of Tennessee, without resort to its choice or conflict of laws principles. Sponsor hereby submits to the jurisdiction of the State of Tennessee.

Article 13 - Assignment

This Agreement shall not be assigned by either party without the prior written consent of the other.

Article 14 - Agreement Modification

Any agreement to change the terms of this Agreement in any way shall be valid only if the change is made in writing and executed by authorized representatives of the parties hereto.

Article 15 - Notices

Notices, invoices, communications, and payments hereunder shall be deemed made if given by United States registered or certified mail, postage prepaid, and addressed to the party to receive such notice, invoice, or communication at the address given below, or such other address as may hereafter be designated by notice in writing:

If to Sponsor: (insert information)

If to Institution: (insert information)

Article 16 - Non-discrimination

The parties agree to comply with Titles VI and VII of the Civil Rights Act of l964, Title IX of the Education Amendments of l972, Section 504 of the Rehabilitation Act of 1973, Executive Order 11,246, the Americans with Disabilities Act of 1990 and the related regulations to each. Each party assures that it will not discriminate against any individual including, but not limited to, employees or applicants for employment and/or students because of race, religion, creed, color, sex, age, disability, veteran status or national origin.

The parties also agree to take affirmative action to ensure that applicants are employed, and that employees are treated during their employment, without regard to their race, religion, creed, color, sex, age, disability, veteran status or national origin. Such action shall include, but not be limited to, the following: employment, upgrading, demotion or transfer, recruitment or recruitment advertising, layoff or termination, rates of pay or other forms of compensation, and selection available to employees and applicants for employment.

Article 17 – Conflict of Interest

The Sponsor warrants that no part of the total contract amount provided herein shall be paid directly or indirectly to any officer or employee of the State of Tennessee as wages, compensation, or gifts in exchange for acting as officer, agent, employee, subcontractor, or consultant to the Sponsor in connection with any work contemplated or performed relative to this contract. Notwithstanding anything to the contrary in the foregoing, nothing in this Paragraph shall be construed to prevent the Institution from paying any of its employees working on the Project from funds received from Sponsor.

Article 18 – Entire Agreement

This written Agreement constitutes the entire and only agreement between the parties relating to the Project and supersedes all prior negotiations, representations, agreements and understandings. The parties expressly disclaim reliance on any such prior negotiations, representations, agreements or understandings.

IN WITNESS WHEREOF, the parties have caused these presents to be executed in duplicate as of the day and year first above written.

AGREED TO AND ACCEPTED BY:

(Sponsor) ( Institution)

By: _________________________ By: ___________________________

Title: _______________ Date: _______ Title: _________________ Date: _____

Section 9

CONTRACTS FOR DEPOSIT AND INVESTMENT OF FUNDS

I. SCOPE

This guideline shall be used for the deposit and investment of all funds, regardless of source, which are received by a TBR institution or technology center. Where the term "bank" or "banking institution" is used in this guideline, it refers to all financial institutions including savings and loan associations.

II. GENERAL RULES

A. Each TBR institution is authorized by the TBR to enter into one contract for the deposit of funds for the institution's general operating account, one Tennessee insurance account, and one payroll account at a bank or banking institution authorized under Tennessee law to accept state deposits. Each Technology Center is authorized to have one imprest checking account. No additional accounts of this nature will be approved for opening or maintained by any Institution or technology center unless specifically approved by the Chancellor or designee.

B. Petty Cash Funds

1. The president of each Institution is authorized to establish one or more checking accounts for the deposit and disbursement of petty cash funds, provided that no such account shall exceed five hundred dollars ($500.00)

2. The president may designate a custodian of the funds. If the custodian has accepted responsibility for the funds in writing, and has agreed to repay any shortages or expended funds not properly accounted for from the account, then the custodian may be designated in the agreement as the signatory authority for the account, and the custodian or the chief business officer of the Institution shall be authorized to withdraw funds from the account.

C. Complimentary non-interest bearing accounts are prohibited and will not be approved.

D. All agreements between a banking institution and an institution of the TBR are subject to the express written approval of the President or designee, the Vice Chancellor for Tennessee Technology Centers or designee, or the Chancellor of the TBR, or designee, as appropriate. Except when deviation from this guideline requires approval by the Chancellor, such agreements shall take effect when signed by the President or designee, or the Vice Chancellor for Technology Centers or designee.

E. All documents required to be furnished by a banking institution shall be obtained and reviewed to ensure that the documentation complies with TBR policy.

III. ESSENTIAL CONTENTS OF THE AGREEMENT

The “Banking Agreement” at the end of this section should form the basis of the agreement; however, a few additional elements are described below:

A. Facsimile Signatures - Facsimile signatures may be used on instruments of withdrawal unless the withdrawal exceeds one percent (1%) of the State appropriation to the institution for the year or ten thousand dollars ($10,000.00), whichever is greater, in which case the withdrawal must bear the original signature of the president or the chief business officer.

B. A provision which states the purpose of the account and that the amount of funds to be deposited and maintained in the active (checking) account will be reasonably related to the number of checks to be processed through the account during any month and other servicing costs, if any.

C. A provision identifying the nature and level of services to be provided by the banking institution and the cost, if any, for these services. Such services should include but are not limited to:

1. the provision of standard services for processing checks and deposits in accounts;

2. the provision of the required collateral security for all deposits;

3. the provision of a branch office of the bank within a specified distance from the campus;

4. the provision of interest on savings accounts at a rate equal to the maximum rate offered by other banking Institutions in the county, with the ability to transfer funds between active and savings accounts upon a specified minimum notice;

5. the provision of investment services;

6. the provision of account reconciliation services;

7. the provision related to Automatic Clearing House debits and credits including direct deposit; and

8. the provision of safe deposit box services.

(Any additional services provided must also conform to TBR and state laws regulating public funds.)

D. A provision which states that funds of the institution will only be invested in a bank or savings and loan savings account or certificate of deposit or in bonds, notes or treasury bills of the United States which are backed by the full faith and credit of the United States or bonds or obligations guaranteed as to principal and interest by the United States or any of its agencies.

E. In addition, agreements with savings and loan associations must state that the savings and loan agrees to comply with the collateral security requirements of TBR Policy 4:01:01:10 and state law and that the savings and loan will provide upon request:

1. an opinion of legal counsel that the association has the authority to collateralize public funds;

2. a resolution adopted by the board of directors authorizing such investments; and

3. appropriate written instructions for the transfer of funds.

Source and Authority: TCA Chapter 4 of Title 9; TBR Policy 4:01:01:10.

BANKING AGREEMENT

BETWEEN

(Institution)

AND

(BANK)

THIS AGREEMENT is made this ____day of ______, 20___ by and between________

_________________ (INSTITUTION) hereinafter referred to as "Institution" and (BANK) _____________________________________hereinafter referred to as "Bank."

W I T N E S S E T H:

The parties have agreed and do hereby enter into this Agreement for the deposit of funds into a Petty Cash, Payroll and Operating Account, or an imprest checking account according to the provisions set out herein:

I. Agreement Provisions

(1) The initial period of this Agreement will cover the term from _______________________ through _____________________. By mutual agreement, this agreement may be renewed for additional twelve (l2) month periods under the same terms and conditions or duly authorized amendments thereto, not exceeding a total contract period of sixty (60) months.

(2) It is mutually understood and agreed that the handling of these funds and accounts are governed by the applicable provisions of T.C.A. Title 9 Chapter 4 and by the Tennessee Board of Regents Policy No. 4:01:01:10, both of which are incorporated by reference into this Agreement.

(3) The Bank shall comply with all applicable federal and state licensing and certificate requirements.

(4) This Agreement may be modified only by written amendments executed by all parties thereto.

(5) This Agreement may be terminated by either party by giving written notice to the other at least 90 days before the effective date of termination. In the event of cancellation, the Bank is entitled to receive just and equitable compensation for any satisfactory work completed as of the termination date.

(6) If the Bank fails to fulfill in a timely and proper manner its obligations under this Agreement or if the Bank shall violate any of the terms of this Agreement, the Institution shall have the right to immediately terminate this Agreement and withhold payment in excess of fair compensation for work completed.

Notwithstanding the above, the Bank shall not be relieved of liability to the Institution for damages sustained by virtue of any breach of this Agreement by the Bank.

(7) The Bank warrants that no part of the total Agreement amount provided herein shall be paid directly or indirectly to any officer or employee of the State of Tennessee as wages, compensation, or gifts in exchange for acting as officer, agent, employee, subcontractor, or consultant to the Bank in connection with any work contemplated or performed relative to this Agreement.

(8) The parties agree to comply with Titles VI and VII of the Civil Rights Act of 1964, Title IX of the Education Amendments of 1972, Section 504 of the Rehabilitation Act of 1973, Executive Order 11,246, the Americans with Disabilities Act of 1990, and the related regulations to each. Each party assures that it will not discriminate against any individual including, but not limited to, employees or applicants for employment and/or students because of race, religion, creed, color, sex, age, disability, veteran status or national origin.

The parties also agree to take affirmative action to ensure that applicants are employed and that employees are treated during their employment without regard to their race, religion, creed, color, sex, age, disability, veteran status, or national origin. Such action shall include, but not be limited to, the following: Employment, upgrading, demotion or transfer, recruitment or recruitment advertising, layoff or termination, rates of pay or other forms of compensation, and selection available to employees and applicants for employment.

(9) The Bank shall not assign this Agreement or enter into subcontracts for any of the work described herein without obtaining the prior written approval of all parties to the Agreement.

(10) Federal Funds will be housed and/or disbursed in the operating account and the payroll account and the account name will reflect “Federal and State Funds”.

(11) The Bank must provide collateral security as described in T.C.A. Section 9-4-103 for all accounts whether active (checking) or savings, and shall provide a description of the securities to be provided by the bank as collateral securities. If participating in the collateral pool administered by the Department of Treasury, the Bank must abide by the provisions set forth in T.C.A. Section 9-4-501 through Section 9-4-523.

(12) The following signatures will be needed to withdraw funds from Accounts:

a. Petty Cash Account

Requires any two signatures of the following:

________________________________, (Title)

b. Payroll Account

Requires two signatures of the following:

________________________________, President

________________________________, Business Officer

c. Operating Account

Requires two signatures of the following:

________________________________, President

________________________________, Business Officer

d. Imprest Checking Account

Requires any two signatures of the following:

_________________________________, Director

_________________________________, (Title)

(13) The Bank and the securities pledged by it shall be liable for payment of any losses incurred.

(14) The Bank shall provide documentation verifying the following, and shall attach the required documentation to the contract that all criteria outlined in TBR Policy 4:01:01:10 Section D.2 are met.

(15) The bank and Institution agree that the amount of funds deposited will not exceed one-fourth (1/4) of the paid in capital stock and surplus of the Bank. Should this event occur, the Bank will provide at its own cost a surety bond or collateral security sufficient to cover the entire deposit of state and federal funds in the Bank.

(16) Institution or The Department of Treasury (if participating in the collateral pool) must either be provided the actual bonds or other securities provided as collateral security for deposit, or trust receipts for the collateral in lieu of the actual delivery of the obligations.

(17) The Bank shall maintain documentation for all charges against the Institution under this Agreement. The books, records, and documents of the Bank, in so far as they relate to work performed or money received under this Agreement, shall be maintained in conformity with generally accepted accounting principles for a period of three full years from the date of the final payment and shall be subject to audit, at any reasonable time and upon reasonable notice, by Institution, by the Tennessee Board of Regents or the Comptroller of the State Treasury or their duly appointed representatives or a licensed independent public accountant.

(18) This Agreement is subject to the express approval of the President or designee, the Vice Chancellor for Tennessee Technology Centers or designee or the Chancellor of the Tennessee Board of Regents or designee, as appropriate.

IN WITNESS WHEREOF, the parties have by their duly authorized representatives set their signatures.

(BANK) (INSTITUTION)

BY: _________________________ BY: ___________________________

TITLE: ______________________ TITLE: _________________________

DATE: ______________________ DATE: _________________________

Authorized:

TENNESSEE BOARD OF REGENTS (if required)

BY: _____________________________________

TITLE: __________________________________

DATE: __________________________________

Section 10

NON-CREDIT INSTRUCTION AGREEMENT

SCOPE

This section is applicable to revenue-generating agreements whereby an institution in the TBR system provides non-credit instruction/training for business and industry.

II. GENERAL RULES

The institution is responsible for the administration of fees, charges, and refunds in accordance with TBR Guideline B-060.

III. ESSENTIAL CONTENTS OF THE AGREEMENT

The form agreement at the end of this section contains all required elements; however, a few elements are described below:

A. The program title name, a brief description of the program, Continuing education Units (CEUs) awarded, if applicable, the name of the instructor, if applicable, conducting the course, and the dates, times, and location of the course.

B. The minimum and maximum number of participants and the program fee that will be invoiced to company.

C. Other provisions should be specific to include such elements as deliverables by the institution including textbooks, instructional materials, CEU records/transcripts for participants, and/or certificates awarded, etc.

D. Specific requirements of the company should be included such as safety and security of institutional equipment, additional fee assessments outside of the instructional costs, documents/information necessary for instruction, etc.

NON-CREDIT INSTRUCTION AGREEMENT BETWEEN

(NAME OF TBR INSTITUTION)

AND

(NAME OF CONTRACTOR)

This Agreement is entered into by _____________, hereinafter referred to as the "Institution," and ________________, hereinafter referred to as the "Company."

In consideration of the mutual promises herein contained, the parties have agreed and do hereby enter into this Agreement according to the provisions set out herein:

A. The Institution agrees to provide:

Program Title: CEU:

Description:

Instructors:

Date(s) and Time:

Location:

Number of Participants: Minimum of ___ and maximum of ___ participants

Program Fee: $ _________

The Institution will provide all instructional materials deemed appropriate by the instructor.

A record of CEUs earned will be maintained in the Division of Continuing Education of the Institution. A transcript of record may be obtained by contacting that office.

B. The Company shall provide:

A suitable meeting facility to accommodate the instruction (if applicable describe here).