Sales and Services Agreement (this “Agreement”), dated ________ ,
20__ (the “Effective Date”), is by and between The Regents of the
University of California (“University”), a California public
corporation, on behalf of [CAMPUS/DEPARTMENT], and [COMPANY ]
(“Client”), having a principal place of business at
In consideration of the
mutual agreements in this Agreement, the parties agree to the
Section 1 –
Term and Termination.
The Term of this Agreement shall be the period set forth in
the Statement of Work, which is attached hereto as Exhibit A
and incorporated herein by reference (hereinafter, “Exhibit
Termination for Convenience.
Either party may
terminate this Agreement for any reason upon thirty (30) days’
written notice [LOCATION:
May change number of days]. When
this Agreement is terminated for convenience under this provision,
Client shall pay University the pro rata fees for the Services
through the date the notice of termination was effective, and all
costs and any non-cancelable obligations incurred by University up
to and including the date of termination.
Termination for Cause.
party may terminate this Agreement upon the material breach of this
Agreement by the other party, by giving the other party thirty (30)
days’ prior written notice specifying the breach and expressing
its intent to terminate. If such breach is not cured by the
breaching party within thirty (30) days of receipt of the notice,
this Agreement may be immediately terminated at the option of the
non-breaching party upon written notice to the breaching party. If
Client is more than thirty (30) days delinquent in any payment due
under this Agreement, such delinquency shall constitute a “material
breach” of this Agreement for the purposes of this provision.
Section 2 – Statement of Work.
University shall perform the services set forth in Exhibit A
2.2.Ownership/License of Deliverables.
Client shall own the Deliverables (as defined in Exhibit A)
upon payment in full to University for the Services; provided,
however, that University reserves and retains an irrevocable,
fully-paid, worldwide right to use the Deliverables for educational
and/or research purposes. Notwithstanding the foregoing, University
does not transfer, and hereby retains and reserves, all rights in
Background Intellectual Property (as defined below). Furthermore,
any and all improvements in University’s Background Intellectual
Property, which are conceived or reduced to practice by University
during the course of the Services, shall remain the sole property of
“Background Intellectual Property” shall mean all intellectual
property, including without limitation, technical information,
know-how, copyrights, trademarks, patents and trade secrets, ideas,
thoughts, concepts, processes, techniques, data, models, drawings
inventions and software, that is or was conceived, created or
developed prior to, or independent of, the Services.
Client shall indemnify, defend, and hold harmless University, its
officers, agents, and employees against all losses, damages,
liabilities, costs, and expenses (including but not limited to
attorneys’ fees) resulting from any judgment or proceeding in which
it is determined, or any settlement agreement arising out of the
allegation, that Client’s furnishing or supplying University with
parts, goods, components, programs, practices, methods or other
property under this Agreement (collectively, “Client Materials”)
or University’s use of Client Materials constitutes an infringement
of any patent, copyright, trademark, trade name, trade secret, or
other proprietary or contractual right of any third party.
University retains the right to participate in the defense against
any such suit or action, and Client shall not settle any such suit or
action without University’s consent.
Client shall provide to University Information/Materials listed in
Exhibit A, if any, in a timely and secure manner so as to
allow University to perform the Services.
No Liability for Delay.
University offers priority to its faculty, researchers and students
for the use of University facilities and services. Accordingly,
University shall not be responsible for any delay caused by
University faculty, researchers and students having priority in the
use of University facilities and services, and Client’s exclusive
remedy for University’s delay or failure to perform any of its
obligations hereunder shall be limited to a refund of any
unallocated/unexpended funds paid by Client to University under this
2.5. Shipment and Delivery.
Client shall be responsible for the cost of shipping all Deliverables
specified herein (including, without limitation, costs of insurance
and other related costs). Shipments shall be sent FOB (Client or
University, as applicable). University, at its option, may not
tender delivery of any Deliverables for which Client has not provided
shipping instructions, payment and other required information. If
Client postpones or delays delivery of Deliverables for any reason
(for example, if Client requests a delay in delivery), Client agrees
to reimburse University for any and all storage costs and other
additional expenses resulting therefrom.
Unless otherwise stipulated herein, for all shipments of
Deliverables, legal title shall pass from University to Client upon
University’s delivery to the carrier at the shipping point, at
which time Client shall take possession of the Deliverables, bearing
all risk of loss, paying all insurance, storage and transportation
expenses and acting as the importer of record (if applicable).
Any claims for shortages of or damages to
Deliverables suffered in transit are the responsibility of Client and
shall be submitted by Client directly to the carrier. Client shall
identify any shortages or damages at the time of delivery; claims of
shortages or damages after the date of delivery are hereby waived.
–Fees and Payment Schedule.
Schedule and Invoicing.
Client shall pay University for the Services in accordance with the
Fees and Payment Schedule set forth in Exhibit A. Client
shall pay University within thirty (30) days of the date on the
applicable invoice. University shall submit all invoices to Client
at the Invoicing Address specified in Exhibit A.
3.2 Service Charge. Client agrees to pay University a
one-percent (1%) service charge per month for any payments that are
not made within thirty (30) days.
3.3 Form of Payment.
All payments from Client to
University shall be made payable to “The Regents of the University
of California” in a form specified in Exhibit A.
Section 4 –
Insurance. IF APPLICABLE
Section 4.1 Client Insurance. Client shall provide proof
of insurance, endorsing The Regents of the University of California
as additional insured, showing amounts of coverage set forth below.
If the insurance is written on a claims-made form, it shall continue
for a period of three years following termination of this Agreement.
Coverage required herein shall not in any way limit the liability of
Commercial Form General Liability Insurance
Each party shall
defend, indemnify, and hold the other party, its officers, employees,
and agents harmless from and against any and all liability, loss,
expense, including attorneys’ fees, or claims for injury or damages
arising out of the performance of this Agreement, but only in
proportion to and to the extent such liability, loss, expense,
attorneys’ fees, or claims for injury (including death) or damages
are caused by or result from the negligent or intentional acts or
omissions of the indemnifying party, its officers, employees or
agents. The party seeking indemnification agrees to provide the other
party with prompt notice of any such claim or action and to permit
the indemnifying party to defend any claim or action, and to
cooperate fully in such defense. The indemnifying party shall not
settle or consent to the entry of any judgement in any action, suit
or proceeding without the consent of the indemnified party, and such
consent to any settlement, which consent shall not be unreasonably
withheld, conditioned, or delayed.
–Disclaimer of Warranty and Limitation of Liability.
MAKES NO WARRANTIES, EITHER EXPRESS OR IMPLIED, AS TO THE SERVICES,
THE DELIVERABLES, OR THE RESULTS PROVIDED UNDER THIS AGREEMENT,
INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS
FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. CLIENT ACKNOWLEDGES
THAT THE SERVICES, THE DELIVERABLES, AND THE RESULTS ARE PROVIDED ON
AN "AS IS" BASIS AND WITHOUT WARRANTIES OF ANY KIND. CLIENT
FURTHER ACKNOWLEDGES THAT IT USES SUCH SERVICES, DELIVERABLES, AND
RESULTS AT ITS OWN RISK. UNIVERSITY SHALL BEAR NO RESPONSIBILITY FOR
THE SUCCESS OR FAILURE OF THE SERVICES OR DELIVERABLES.
SHALL NOT BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL,
SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES OF ANY KIND ARISING OUT OF OR
IN ANY WAY RELATED TO THIS AGREEMENT, WHETHER IN WARRANTY, TORT,
CONTRACT, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, LOSS OF
PROFITS OR LOSS OF GOOD WILL, WHETHER OR NOT UNIVERSITY HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND WHETHER OR NOT SUCH
DAMAGES WERE FORESEEABLE. UNIVERSITY’S AGGREGATE LIABILITY SHALL
NOT EXCEED THE FEES RECEIVED BY UNIVERSITY FROM CLIENT PURSUANT TO
THIS AGREEMENT DURING THE TWELVE (12) MONTHS PRECEDING CLIENT’S
CLAIM. CLIENT EXPRESSLY ACKNOWLEDGES THAT UNIVERSITY SHALL HAVE NO
LIABILITY WITH RESPECT TO ANY LOSS OF PROPERTY, MATERIALS, DATA, OR
INFORMATION THAT CLIENT PROVIDES TO UNIVERSITY UNDER THIS AGREEMENT.
Section 7 –
University Name and Trademarks.
that it will not use the name of the University of California, or any
abbreviation thereof, or any name of which “University of
California” is a part, or any trademarks (including, but not
limited to, logo, seal, landmarks, acronyms, campus department names,
and graphic images) of the University (“University Marks”) in a
commercial context, such as may appear on products, in media
(including websites) and print advertisement, without the prior
written consent of University’s authorized representative. This
provision is in compliance with California Education Code section
are and shall remain exclusively the property of University. Client
shall, neither directly nor indirectly, obtain or attempt to obtain
during the Term hereof or at any time thereafter, any right, title or
interest in or to University Marks, and Client hereby expressly
waives any right which it may have in University Marks. Client
recognizes University’s exclusive ownership of University Marks.
Section 8 –
Export Control and Biohazardous Materials.
any of the materials and/or information provided to University by
Client (“Client Materials”) are: export-controlled under the
International Traffic in Arms Regulations (22 CFR 120-130), the
United States Munitions List (22 CFR 121.1), or Export Administration
Regulations (15 CFR 730-774) 500 or 600 series; controlled on a
military strategic goods list; Select Agent(s) under 42 CFR Part 73,
et seq.; or subject to regulations governing access to such Client
Materials, Client shall provide the University Contact (listed on
with written notification that identifies such Client Materials,
including their export classification.
Section 9 –
Protected Health Information and Personally Identifiable Information.
represents that all materials provided to University in connection
with this Agreement are de-identified in accordance with the Health
Insurance Portability and Accountability Act (HIPAA). Client
shall not exchange, reveal, or otherwise share protected health
information or personally identifiable information with University.
Section 10 –
Neither party shall
be liable for delays due to causes beyond the party’s control
(including, but not restricted to, war, civil disturbances,
earthquakes, fires, floods, epidemics, quarantine restrictions,
freight embargoes, and unusually severe weather). With respect to
any delays on the part of University, this Section shall apply in
addition to the provision in Section 2.4.
Section 11 –
Any notice or
communication required by this Agreement shall be in writing and
shall be deemed to have been duly given if delivered personally, or
sent by overnight mail, or prepaid registered mail addressed to the
other party at the address set forth on Exhibit A[LOCATION:
May add e-mail if willing to accept notice in that manner. If so,
include the following: “Additionally,
notices by Email will be considered legal notice if such
communications include the following text in the Subject field:
FORMAL LEGAL NOTICE – [insert, as the case may be, Supplier name or
University of California]”].
Section 12 –
Relationship of the Parties.
performance of this Agreement, the parties, and their officers,
agents and employees, shall act as independent contractors. Nothing
in this Agreement shall create, or be construed to be, a joint
venture, association, partnership, franchise or other form of
business relationship. At no time will the employees, agents or
assigns of one party be considered the employees of the other party
for any purpose, including but not limited to workers’ compensation
Section 13 –
Third Party Beneficiary.
There are no
intended third-party beneficiaries to this Agreement.
Section 14 –
Conflict of Interest.
that, to the best of Client’s knowledge, no University employee who
has participated in University’s decision-making concerning this
Agreement has an “economic interest” in this Agreement or Client.
A University employee’s “economic interest” means:
investment worth $2,000 or more in Client or its affiliate;
position as director, officer, partner, trustee, employee or manager
of Client or its affiliate;
during the past 12 months of $500 in income or $440 in gifts from
Client or its affiliate; or
personal financial benefit from this Agreement in the amount of $250
In the event of a
change in these economic interests, Client shall provide written
notice to UC within thirty (30) days after such change, noting such
changes. Client shall not be in a reporting relationship to a
University employee who is a near relative, nor shall a near relative
be in a decision-making position with respect to Client.
Section 15 –
for University’s ability to assign any payment due hereunder,
neither party may assign this Agreement without the prior written
consent of the other party. In case such consent is given, the
assignee shall agree, in writing, to be subject to all of the terms
of this Agreement that are applicable to the assignor.
Section 16 –
If any term,
condition, or provision of this Agreement is held by a court of
competent jurisdiction to be invalid, void, or unenforceable, the
remaining provisions shall nevertheless continue in full force and
effect, and shall not be affected, impaired or invalidated in any
Section 17 –
or non-enforcement by either party of a term or condition shall not
constitute a waiver or a non-enforcement of any other term or
condition or of any subsequent breach of the same or similar term or
18 – Survival.
of this Agreement, which by their express terms, or by necessary
implication, apply for period of time other than specified herein,
shall be given effect, notwithstanding termination or expiration.
Section 19 –
changes, additions or other amendments to this Agreement must be made
in a writing, signed by the authorized representatives of Client and
Section 20 –
Governing Law and Venue.
law shall control this Agreement and any document to which it is
appended. The exclusive jurisdiction and venue for any and all
actions arising out of or brought under this Agreement is in a state
court of competent jurisdiction, situated in the county in the State
of California in which the University campus is located or, where
this Agreement covers more than one campus or the Office of the
President, the exclusive venue is Alameda County, California.
Section 21 –
Signatures and Counterparts.
This Agreement may
be executed in two or more counterparts, which may be transmitted via
facsimile or electronically, each of which shall be deemed an
original and all of which together shall constitute one instrument.
22 – Entire Agreement/Integration.
Agreement, including Exhibit
which is hereby incorporated by reference and made a part hereof,
sets forth the entire agreement of the parties with respect to the
subject matter herein and supersedes any prior or contemporaneous
agreements, oral and written, and all other communications between
the parties with respect to such subject matter. Any terms and
conditions contained in Client’s purchase order, and any NDA or
separate scope of work or similar document, shall have no force and
23 - Authority of Parties/Signatories.
person signing this Agreement represents and warrants that he or she
is duly authorized and has legal capacity to execute this Agreement.
Each party represents and warrants to the other that the execution of
this Agreement and the performance of such party’s obligations
hereunder have been duly authorized and that this Agreement is a
valid and legal agreement binding on such party and enforceable in
accordance with its terms.
NOTICES SHOULD BE SENT TO (IF DIFFERENT THAN ABOVE):
Name (of Campus/Department):
Additional Payee Information (if applicable):
NOTICES SHOULD BE SENT TO (IF DIFFERENT THAN ABOVE):
II. TERM OF
This Agreement begins on ______ and ends on _______, unless
terminated earlier by either of the parties pursuant to this
Agreement (the “Term”).
provided by Client:
IV. FEES AND
Terms of Payment: [Location –
please consider setting up terms requiring payment in full before (or
at the same time that) deliverables are provided, so that we have
leverage to get the final payment from the Client. If all services
are provided before the UC receives final payment, it may be
difficult to collect outstanding fees from the Client. Also, if the
UC is performing services before payment is due, consider running a
credit check on the Client, to determine whether the Client pays its