Office of General Counsel

University and State Required Provisions

General Information

State of Arizona Revised Statutes and ABOR Policy

How to Apply the University and State Required Provisions

University and State Required Provisions

Questions

 

General Information

There are certain University and State Required Provisions that with very few exceptions must be included in every contract or agreement that ASU enters into.

Note: As of July 1, 2013, the University and State Required Provisions have been updated to remove the former paragraph entitled "Prohibited Business Operations with Sudan and Iran." Such provision is no longer required under the applicable Arizona state law.

These provisions may be included directly into the contract or may be incorporated by reference by attaching a copy of the provisions and adding a paragraph that reads: "The University and State Required Provisions attached hereto are incorporated herein by reference."

For an explanation of the source and use of these provisions, refer to the information below.

State of Arizona Revised Statutes and ABOR Policy

Links to the State statutes and procedures cited in the University and State Required Provisions can be found below. The statutes can be printed from the link if a copy of the statute or procedure is requested.

How to Apply the University and State Required Provisions

  1. Every contract must include:
    • "Nondiscrimination"
    • "Conflict of Interest"
    • "Arbitration in Superior Court"
    • "Records"
    • "Failure of Legislature to Appropriate" and
    • "Student Educational Records."
  2. In addition to the above:

  3. All procurement contracts and contracts in which ASU pays for goods or services must include:
    • "Dispute Resolution"
    • "Authorized Presence Requirements"
    • "Indemnification by Entity" and
    • "Intellectual Property Ownership."
  4. If the contract requires ASU to maintain any level of confidentiality, and the requirement cannot be deleted, the "Confidentiality" provision must be included.
  5. If the contract contains any type of indemnification or "hold harmless" provision, and the provision cannot be deleted, contact OGC for instructions.
  6. If the contract contains the use of any ASU names or trademarks, the "ASU Names and Marks" provision must be included.
  7. If a third party (including contractors, lessees, and licensees) will be present on or perform its obligations on any ASU owned, leased, or controlled property, the "Weapons, Explosive Devices and Fireworks" and "Tobacco-Free University" provisions must be included.
  8. Regarding the notice of arbitration, this provision does not, by itself, require arbitration. There are two state statutes that require that ASU put notice of these statutes in all ASU contracts to provide notice that in the event an action is filed in superior court, the court's arbitration rules will apply.

University and State Required Provisions

ASU is required to include certain contract clauses in all contracts. For guidance on what provisions must always be included and what to include depending on the circumstances of the contract, see How to Apply the University and State Required Provisions.

To the extent any provisions of the foregoing contract (the "Contract") with the Arizona Board of Regents, acting for and on behalf of Arizona State University ("ASU"), conflict with any of the provisions of this Exhibit, the provisions of this Exhibit will control. References herein to "this Contract" include the foregoing Agreement and this Exhibit. All provisions of this Agreement that by their terms anticipate performance after the termination of this Agreement, and all provisions necessary or appropriate to interpret and enforce such provisions, will survive termination of this Agreement. Surviving provisions include, but are not limited to, the following paragraphs of this Exhibit: Dispute Resolution, Records, Confidentiality, Indemnification Limitation, Indemnification by Entity, ASU Names and Marks, Student Educational Records, Intellectual Property Ownership, and Governing Law and Venue.

  1. Nondiscrimination
    The parties will comply with all applicable state and federal laws, rules, regulations, and executive orders governing equal employment opportunity, immigration, and nondiscrimination, including the Americans with Disabilities Act. If applicable, the parties will abide by the requirements of 41 CFR §§ 60-1.4(a), 60-300.5(a), and 60-741.5(a). These regulations prohibit discrimination against qualified individuals based on their status as protected veterans or individuals with disabilities, and prohibit discrimination against all individuals based on their race, color, religion, sex, or national origin. Moreover, these regulations require that covered prime contractors and subcontractors take affirmative action to employ and advance in employment individuals without regard to race, color, religion, sex, national origin, protected veteran status, or disability.

  2. Conflict of Interest
    If within three years after the execution of this Contract, Entity hires as an employee or agent any ASU representative who was significantly involved in negotiating, securing, drafting, or creating this Contract, then ASU may cancel this Contract as provided in Arizona Revised Statutes (ARS) § 38-511. Notice is also given of ARS §§ 41-2517 and 41-753.

  3. Arbitration in Superior Court
    As required by ARS § 12-1518, the parties agree to make use of arbitration in disputes that are subject to mandatory arbitration pursuant to ARS § 12-133.

  4. Dispute Resolution
    If a dispute arises under this Contract, the parties will exhaust all applicable administrative remedies provided for under Arizona Board of Regents Policy 3-809.

  5. Records
    To the extent required by ARS § 35-214, the non ASU parties to this Contract (jointly and severally, "Entity") will retain all records relating to this Contract. Entity will make those records available at all reasonable times for inspection and audit by ASU or the Auditor General of the State of Arizona during the term of this Contract and for a period of five years after the completion of this Contract. The records will be provided at Arizona State University, Tempe, Arizona, or another location designated by ASU on reasonable notice to Entity.

  6. Failure of Legislature to Appropriate
    In accordance with ARS § 35-154, if ASU's performance under this Contract depends on the appropriation of funds by the Arizona Legislature, and if the Legislature fails to appropriate the funds necessary for performance, then ASU may provide written notice of this to Entity and cancel this Contract without further obligation of ASU. Appropriation is a legislative act and is beyond the control of ASU.

  7. Weapons, Explosive Devices and Fireworks
    ASU prohibits the use, possession, display, or storage of any weapon, explosive device, or fireworks on all land and buildings owned, leased, or under the control of ASU or its affiliated or related entities, in all ASU residential facilities (whether managed by ASU or another entity), in all ASU vehicles, and at all ASU or ASU affiliate sponsored events and activities, except as provided in ARS § 12-781, or unless written permission is given by the Chief of the ASU Police Department or a designated representative. Notification by Entity to all persons or entities who are employees, officers, subcontractors, consultants, agents, guests, invitees, or licensees of Entity (Entity Notification Parties) of this policy is a condition and requirement of this Contract. Entity further agrees to enforce this contractual requirement against all Entity Notification Parties. ASU's policy may be accessed through the following web page: http://www.asu.edu/aad/manuals/pdp/pdp201-05.html.

  8. Confidentiality
    ASU is a public institution and, as such, is subject to ARS §§ 39-121 through 39-127 regarding public records. Accordingly, notwithstanding any other provision of this Contract, any provision regarding confidentiality is limited to the extent necessary to comply with the provisions of Arizona law.

  9. Indemnification Limitation
    ASU is a public institution and, as such, any indemnification, liability limitation, or hold harmless provision will be limited as required by Arizona law, including without limitation Article 9, Sections 5 and 7 of the Arizona Constitution and ARS §§ 35-154 and 41-621. Therefore, notwithstanding any other provision of this Contract, ASU's liability under any claim for indemnification is limited to claims for property damage, personal injury, or death to the extent caused by acts or omissions of ASU.

  10. Indemnification by Entity
    Entity will indemnify, defend, save and hold harmless the State of Arizona, its departments, agencies, boards, commissions, universities, and its and their officials, agents and employees (collectively, "Indemnitee") for, from, and against any and all claims, actions, liabilities, damages, losses, or expenses (including court costs, attorneys' fees, and costs of claim processing, investigation, and litigation) for bodily injury or personal injury (including death), or loss or damage to tangible or intangible property to the extent caused, or alleged to be caused, by (i) the negligence, acts or omissions of Entity or any of its owners, officers, directors, members, managers, agents, employees or subcontractors; (ii) a breach of this Contract; or (iii) failure to comply with any applicable law. Entity will be responsible for primary loss investigation, defense and judgment costs where this indemnification is applicable. In consideration of the award of this Contract, Entity waives all rights of subrogation against Indemnitee for losses arising from the services performed or deliverables provided by Entity under this Contract.

  11. ASU Names and Marks
    Entity will not use any names, service marks, trademarks, trade names, logos, or other identifying names, domain names, or identifying marks of ASU (ASU Marks), without in each case, the prior written consent of ASU. Entity's use of any ASU Marks must comply with ASU's requirements including using the ® indication of a registered trademark where applicable.

  12. Student Educational Records
    Student educational records are protected by the federal Family Educational Rights and Privacy Act, 20 U.S.C. § 1232g (FERPA). Entity will comply with FERPA and will not access or make any disclosures of student educational records to third parties without prior notice to and consent from ASU or as otherwise provided by law. If this Contract contains a scope of work or any provision that requires or permits Entity to access or release any student records, then, for purposes of this Contract only, ASU hereby designates Entity as a “school official” for ASU under FERPA, as that term is used in FERPA and its implementing regulations. As such, Entity will comply with FERPA and will not make any disclosures of ASU students' educational records to third parties without prior notice to, and consent from, ASU or as otherwise permitted by law. In addition, any access or disclosures of student educational records made by Entity or its employees and agents must comply with ASU’s definition of legitimate educational purpose, which definition can be found at: SSM 107-01: Release of Student Information (http://www.asu.edu/aad/manuals/ssm/ssm107-01.html). If Entity violates the terms of this section, Entity will immediately provide notice of the violation to ASU.

  13. Authorized Presence Requirements
    As required by ARS § 41-4401, ASU is prohibited from awarding a contract to any contractor or subcontractor that fails to comply with ARS § 23-214(A) (verification of employee eligibility through the e-verify program). Entity warrants that it and its subcontractors comply fully with all applicable federal immigration laws and regulations that relate to their employees and their compliance with ARS § 23-214(A). A breach of this warranty will be a material breach of this Contract that is subject to penalties up to and including termination of this Contract. ASU retains the legal right to inspect the papers of any contractor or subcontractor employee who works hereunder to ensure that the contractor or subcontractor is complying with the above warranty.

  14. Tobacco-Free University
    ASU is tobacco-free. For details visit www.asu.edu/tobaccofree.

  15. Intellectual Property Ownership
    All Intellectual Property that Entity or any of its employees, contractors, subcontractors or agents may make, conceive, discover, develop or create, either solely or jointly with any other person or persons including ASU, pursuant to or in connection with this Contract (Contract IP), will be owned by ASU, and where applicable, all copyrightable works will be considered "Work Made for Hire" under the U.S. Copyright Act, 17 U.S.C. § 101, et seq. To the extent that any Contract IP is not, by operation of law, considered work made for hire for ASU (or if ownership of all rights therein does not otherwise vest exclusively in ASU), Entity hereby irrevocably assigns, and will cause its employees, contractors, subcontractors and agents to so assign, without further consideration, to ASU all right, title and interest to all Contract IP. Intellectual Property means all ASU Data, any and all inventions, designs, original works of authorship, formulas, processes, compositions, programs, databases, data, technologies, discoveries, ideas, writings, improvements, procedures, techniques, know-how, and all patent, trademark, service mark, trade secret, copyright and other intellectual property rights (and goodwill) relating to the foregoing. Entity will make full and prompt disclosure of the Contract IP to ASU. During and after the term hereof, Entity will, and will cause its employees, contractors, subcontractors or agents, on request of ASU, to do such acts, and sign, and deliver all such instruments requested by ASU to vest in ASU the entire right, title and interest to the Contract IP, and to enable ASU to properly prepare, file, and prosecute applications for, and to obtain patents and/or copyrights on, the Contract IP, and, at ASU's cost and expense, to cooperate with ASU in the protection and/or defense of the Contract IP and any litigation arising in connection therewith.

  16. Governing Law and Venue
    This Agreement will be governed by the laws of the State of Arizona without regard to any conflicts of laws principles. ASU's obligations hereunder are subject to the regulations/policies of the Arizona Board of Regents. Any proceeding arising out of or relating to this Agreement will be conducted in Maricopa County, Arizona. Each party waives any objection it may now or hereafter have to venue or to convenience of forum.

Questions

If you encounter any problems or questions with regard to the provisions, please contact the Office of General Counsel.

 

Updated 8/25/14


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