UNIVERSITY OF PITTSBURGH

PROFESSIONAL SERVICES AGREEMENT

This Professional Services Agreement (this “Agreement”) is made and entered into as of the       day of       , 20      (the “Effective Date”), by and between the University of Pittsburgh – Of the Commonwealth System of Higher Education (the “University”), 4200 Fifth Avenue, Pittsburgh, PA 15260, and       , with an office located at       (the “Service Provider”).

WHEREAS, the University is desirous of obtaining the professional services of the Service Provider; and,

WHEREAS, the Service Provider has the knowledge, skill and capability to perform such services for the University.

THEREFORE, in consideration of the foregoing, the parties, intending to be legally bound, hereby covenant and agree to the following:

1. Services. The Service Provider is hereby retained by the University and Service Provider agrees to provide the services set forth on Exhibit A attached hereto and incorporated herein by this reference (the “Services”). Services shall be performed in accordance with the timeline set forth in Exhibit A, or any supplemental schedule prepared by the Service Provider and agreed to in writing by an authorized representative of the University.

2. Service Requirements. The Services delivered hereunder shall conform in all material respects to (i) the specifications set forth in Exhibit A, (ii) the terms and conditions set forth in this Agreement, and (iii) any other requirements agreed upon by the parties in writing. Service Provider agrees to use sound and professional principles and practices in accordance with normally accepted industry standards in rendering Services hereunder, and Service Provider further agrees that performance shall reflect the best professional knowledge, skill and judgment of Service Provider. Service Provider shall furnish competent personnel for fulfillment of its obligations. If University deems Service Provider personnel unsatisfactory to perform Services due to a failure by such personnel to comply with the terms and conditions imposed on Service Provider as set forth herein, such personnel shall be removed immediately.

3. Nature of Services.

(a) Work Product. Any and all reports, documentation, files, media and other materials created or produced by Service Provider in connection with the Services rendered hereunder shall be deemed “Work Product.”

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(b) Work Made for Hire. The Work Product shall constitute works-made-for-hire belonging exclusively to the University. To the extent that any Work Product does not constitute a work-made-for-hire owned by the University, Service Provider agrees to assign and transfer all of its right, title and interest in such Work Product to the University.

(c) Modifications to Work Product. The University retains the right to modify the Work Product or to merge the Work Product into other documents or other materials owned or utilized by the University.

(d) Service Provider Proprietary Material. University does not under this Agreement acquire any ownership rights in and/or to any software, documentation, tools, techniques, methodologies or other material which has not or is not created as part of the Services to be rendered hereunder which is proprietary to Service Provider (“Service Provider Proprietary Material”). However, if Service Provider incorporates any Service Provider Proprietary Material into any Work Product, or any of the Work Product requires Service Provider Proprietary Material in order to operate or otherwise be useable by the University, Service Provider hereby grants the University a non-exclusive, royalty free, fully paid, perpetual, irrevocable license to use the Service Provider Proprietary Material as part of the Work Product.

(e) Third Party Proprietary Material. University does not under this Agreement acquire any ownership rights in and/or to any software, documentation, tools, techniques, methodologies or other material which is proprietary to any third party (“Third Party Proprietary Material”). The University shall be responsible for obtaining any necessary licenses for Third Party Proprietary Material. Service Provider may not incorporate any Third Party Proprietary Material into the Work Product without the prior written consent of the University.

4. Service Provider’s Representations, Warranties and Covenants.

(a) Service Provider shall comply with all applicable laws, ordinances, codes and regulations of any federal, state, county or municipal government, bureau or department relative to all of its activities and shall obtain and maintain all necessary licenses, permits and approvals at its sole cost and expense. Service Provider shall have sole responsibility for any fines, penalties or other amounts due pertaining to Services rendered hereunder due to acts or omissions of the Service Provider, its employees, agents, contractors or invitees. Service Provider certifies that it does not and will not during the performance of this Agreement employ, recruit or refer for employment illegal alien workers or otherwise violate the provisions of section 274a  Federal Immigration Reform and Control Act of 1986.

(b) Service Provider, its employees, agents, contractors and/or invitees shall be responsible for reviewing and complying with applicable University policies and procedures (http://www.pitt.edu/HOME/PP/pp_handbooks.html) in connection with rendering the Services hereunder. In additions, Service Provider, its employees, agents, contractors and/or invitees shall comply with any other requirements imposed by the University

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relating to access, safety and security in connection with the Services from the time the University gives Service Provider notice of the same.

(c) Service Provider shall take reasonable steps to safeguard any data, files, reports or other information provided by the University or collected by Service Provider in connection with the Services rendered hereunder from loss, destruction or erasure.

(d) Service Provider warrants that: (1) the Work Product shall not infringe or misappropriate any patent, copyright, trademark, trade secret or other proprietary right of any person; (2) it owns or has the necessary rights to license any Service Provider Proprietary Material provided to University pursuant to the terms of this Agreement; and (3) it will not violate any agreement with any third party in performing Services pursuant to this Agreement.

(e) Service Provider shall assume full responsibility for the acts and/or inactions or its employees, agents, contractors and/or invitees performing Services hereunder. Service Provider shall be responsible for all damage to persons or property caused by Service Provider or any of its employees, agents, contractors and/or invitees and licensees, specifically including, but not limited to, acts of negligence, recklessness, vandalism or other willful, destructive behavior.

5. Payment. The University agrees to pay Service Provider a fixed fee in the amount of       ($      ) for Services completed in accordance with the terms of this Agreement. The fee shall be due and payable as specified in Exhibit A. The fee shall be payable within thirty (30) days after receipt and approval by the University of Service Provider’s invoice. Except as otherwise specified in Exhibit A, Service Provider shall not incur or charge the University any other fees or expenses without the prior written authorization of the University. Performance beyond the limitations set forth in this Agreement (either financial or time period) shall be at the sole risk and responsibility of the Service Provider, and the University shall not be obligated to pay for Services exceeding the funding or contract period of this Agreement.

6. Term. The term of this Agreement shall commence on the Effective Date and shall continue until       , 20      , unless this Agreement is otherwise extended or terminated in accordance with the terms specified herein.

7. Independent Contractor Status. All individuals furnishing Services pursuant to this Agreement shall be employed by or contractors of the Service Provider. Such employees or contractors shall be engaged solely by the Service Provider and shall not be deemed for any purposes whatsoever employees or agents acting for or on behalf of the University. The Service Provider shall perform all Services as an independent contractor and shall assume all liabilities as such. The Service Provider shall be solely responsible for employees on its payroll and shall withhold and pay all applicable federal and state employment taxes and payroll insurance falling due, including any income, social security and unemployment taxes and workers’ compensation costs. In rendering Services hereunder, the Service Provider agrees that the Service Provider shall not have the authority to enter into any contract or agreement to bind the University and shall not represent to anyone that the Service Provider has such authority.

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8. Insurance. During the term of this Agreement, Service Provider agrees to carry, at its own expense, and with satisfactory insurance companies, as determined by the Office of Risk Management of the University of Pittsburgh, insurance in the minimum limits set forth on Exhibit B attached hereto and incorporated herein by this reference. The University shall be named as an additional insured for insurance listed on Exhibit B.

Certificates of insurance evidencing all insurance coverage shall be provided to the University prior to the commencement of Services by Service Provider. Such certificates shall be provided to the University representative with whom the Service Provider is negotiating this Agreement. Such policies shall contain a provision that the insurance shall not be canceled without thirty (30) days prior written notice to University. As specified in Section 4(e) above, the Service Provider shall be responsible for the acts and/or inactions of itself and certain others resulting from the performance of the Services. The fact that Service Provider has evidenced insurance as required by this Section 8 shall in no manner lessen nor affect the Service Provider’s obligations set forth in any other provision of this Agreement.

9. Indemnification Claims.

(a) Service Provider shall indemnify, defend and hold harmless the University, its trustees, officers, employees and agents, from and against any and all claims, liabilities, damages, injuries, expenses or losses including, but not limited to, attorneys’ fees or costs (a “Loss”) by reason of any suit, claim, demand, judgment or cause of action (an “Action”) initiated by any person resulting from any act or omission of Service Provider, its directors, officers, employees, agents, contractors and/or invitees arising out of or in connection with (i) any breach or failure of observance or performance of any representation, warranty or covenant or other provision of this Agreement, (ii) the use and/or occupancy of University premises in connection with the Services to be rendered hereunder, or (iii) any violation of law.

(b) The University agrees to notify Service Provider promptly, in writing, of any Action brought against it in connection with this Agreement. The University agrees that it shall provide to the Service Provider such information and assistance as reasonably requested by the Service Provider, at Service Provider’s expense, necessary for Service Provider to defend any such Action.

10. Confidentiality. As of the Effective Date hereof, the parties hereto consent to the terms and conditions of the Confidentiality Provisions as set forth on Exhibit C attached hereto and incorporated herein by this reference (the “Confidentiality Provisions”).

11. Use of Marks. Except as necessary for rendering Services pursuant to the terms of this

Agreement and approved in writing, in advance, by the authorized representative of the University, the Service Provider shall not make use of the University’s trademarks, trade names and service marks, nor shall it publicize the Service Provider’s performance of Services without the University’s prior written consent.

12. Survival of Terms. The Service Provider agrees that the obligations of Sections 9, 10 and 11 hereof will survive the termination of this Agreement.

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13. Termination.

(a) Default. Either party may immediately terminate this Agreement if the other party hereto shall breach or fail to comply with any representation, covenant, warranty or other obligation pursuant to this Agreement and such failure shall continue for a period of thirty (30) days after written notice of breach has been provided to such other party.

(b) Insolvency/Bankruptcy. Either party may terminate this Agreement if the other party hereto shall become insolvent or voluntarily commences any proceedings or files any petition seeking liquidation, reorganization or other relief under any federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, (ii) consents to the institution of, or fails to contest in a timely and appropriate manner, any involuntary proceeding or petition above, (iii) applies for or consents to the appointment or a receiver, trustee, custodian, sequestrator, conservator or similar official for itself or for a substantial part of its assets, (iv) files an answer admitting the material allegations of a petition filed against it in any proceeding, (v) makes a general assignment for the benefit of creditors, or (vi) takes any action for the purpose of effecting any of the foregoing.

(c) Convenience. Notwithstanding any other provision of this Agreement, the University shall have the right to suspend or terminate this Agreement for its convenience, in whole or in part, at any time by providing fifteen (15) days written notice to the Service Provider. In the event of such termination, Service Provider shall promptly comply with the directions of the University and shall, subject to direction, take such action as may be necessary to minimize costs and expenses incurred with respect to the Services. The University shall pay to Service Provider its fee through the effective date of termination.

14. Miscellaneous.

(a) Force Majeure. Performance of this Agreement by each party shall be pursued with due diligence in all requirements hereof; however, neither party shall be liable for any loss or damage for delay or nonperformance due to causes not reasonably within its control; provided, however, that work stoppages, labor disputes or other labor issues shall not be deemed to be force majeure events. In the event of any delay resulting from such causes, the time for performance and payment hereunder shall be extended for a period of time reasonably necessary to overcome the effect of such delays, so long as the party affected exercises its best efforts to overcome the delay or nonperformance and to mitigate any negative consequences arising therefrom. In the event of any delay or nonperformance caused by such uncontrollable forces, the party affected shall promptly notify the other in writing of the nature, cause, date of commencement thereof and the anticipated extent of such delay, and shall indicate whether it is anticipated that the completion dates would be affected thereby.

(b) Assignment; Subcontracting. The Service Provider may not assign its obligations under this Agreement without the University’s prior written consent. Service Provider may

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perform its obligations with respect to any or all of the Services under this Agreement through one or more qualified subcontractors, provided that Service Provider shall (i) notify the University in writing of the name of the subcontractor and University has not notified Service Provider of any objections to such subcontractor, (ii) ensure that subcontractor assume toward the Service Provider all obligations and responsibilities that the Service Provider assumes toward the University under the terms of the Agreement, (iii) ensure that the terms and conditions of this Agreement are adhered to by all persons fulfilling Service Provider’s obligations under this Agreement, (iv) not be relieved of any of its legal obligations under this Agreement, and (v) be responsible for any breach of this Agreement by any party utilized by Service Provider with respect to this Agreement.

(c) Entire Agreement. This Agreement, including the exhibits hereto, represents the entire agreement between the parties hereto and supersedes all prior and contemporaneous written or oral agreements and all other communications between the parties relating to the Services to be rendered hereunder. Any additions, deletions or modifications shall not be binding on either party unless accepted and approved in writing by duly authorized representatives of both parties. In the event of any contradictory provisions between this Agreement and the terms of any Exhibits, attachments or schedules hereto or any purchase order or other documents issued by the University or Service Provider in connection herewith, the terms set forth in the body of this Agreement shall prevail.

(d) Remedies. Pursuit by either party of any remedies described herein, or otherwise available at law or in equity, shall not preclude pursuit by that party of any other remedy or remedies provided herein or otherwise available at law or in equity. All remedies, rights, undertakings, obligations and agreements shall be cumulative and none of them shall be in limitation of any other remedy, right, undertaking, obligation or agreement of either party.

(e) Waiver. Except as otherwise specifically provided in this Agreement, a waiver by either party of any breach of any provision of this Agreement, or either party’s decision to invoke or enforce any right under this Agreement, shall not be deemed a waiver of any right or subsequent breach, and all provisions of this Agreement shall remain in force.

(f) Choice of Law; Venue. This Agreement shall be governed by the laws of the Commonwealth of Pennsylvania. Any controversy, claim or dispute arising out of or relating to this Agreement or the breach thereof shall be adjudicated in the Court of Common Pleas of Allegheny County or in the United States District Court for the Western District of Pennsylvania.

(g) Headings and Construction. Paragraph headings are for reference only and shall not be considered as parts of this Agreement. Wherever the singular is used, it includes the plural, and, wherever the plural is used, the singular is included.

(h) Severability. If any provision or a portion of any provision of this Agreement is held to be unenforceable or invalid by a court of competent jurisdiction, the validity and

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enforceability of the enforceable portion of any such provision and/or the remaining provisions shall not be affected thereby.

(i) Notices. Any notice, consent, or other communication given pursuant to this Agreement shall be in writing and shall be effective either (i) when delivered personally to the party for whom intended, (ii) upon delivery by an overnight courier service that is generally recognized as reliable, and the written records maintained by the courier shall be prima facie evidence of delivery, or (iii) on delivery by certified or registered mail, return receipt requested, postage prepaid, as of the date shown by the return receipt; in any case addressed to such party as set forth below or as a party may designate by written notice given to the other party in accordance herewith.

To the University: Purchasing ServicesAttention: Director, Purchasing Services3328 Cathedral of LearningPittsburgh, PA 15260Facsimile: (412) 624-9339

with a copy to:University of PittsburghAttention: Office of General Counsel1710 Cathedral of LearningPittsburgh, PA 15260Facsimile: (412) 624-9165

To Service Provider:                         Facsimile:      

(j) Binding Effect. This Agreement shall be binding upon, and shall inure to, the benefit of the successors and assigns of the University and to such successors and assigns of Service Provider as are permitted to succeed Service Provider subject to the terms hereof.

(k) Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.

[The remainder of this page has been intentionally left blank.]

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IN WITNESS WHEREOF, this Professional Services Agreement has been duly executed by the authorized representatives of the parties hereto as of the date first set forth above.

UNIVERSITY OF PITTSBURGH – OF THECOMMONWEALTH SYSTEM OF HIGHEREDUCATION

By: __________________________

Name:      

Title:      

SERVICE PROVIDER

__________________________

By:      

Name:      

Title:      

Exhibit A – Scope of ServicesExhibit B – Insurance RequirementsExhibit C – Confidentiality Provisions

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Exhibit A

SCOPE OF SERVICES

1.1. Statement of Purpose     

1.2. Scope of Services     

1.3. Project Milestones

     

1.4. Deliverables and Acceptance Criteria

A-1

1.5. Place of Performance

     

A-1

Deliverables Acceptance Criteria                                                                             

Exhibit B

INSURANCE REQUIREMENTS

Commercial General Liability

$1,000,000 Each Occurrence $2,000,000 General Aggregate $1,000,000 Products and Completed Operations$1,000,000 Personal and Advertising Injury $100,000 Fire Damage (any one fire) $10,000 Medical Expense (any one person)

Including coverage for but not limited to contractual, products, broad form property damage, personal injury, host liquor, and independent service providers/contractors liability.

and

Automobile Liability

$1,000,000 Combined Single Limit for Bodily Injury and Property Damage per Accident. Coverage shall include hired car and non-owned automobiles.

Workers' Compensation

Statutory

Employer's Liability $1,000,000 Each Accident $1,000,000 Disease - Policy Limit $1,000,000 Disease - Each Employee

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Exhibit C

CONFIDENTIALITY PROVISIONS

In connection with the Professional Services Agreement (the “Services Agreement”) entered into by the University and the Service Provider, the Service Provider may be granted access or otherwise be permitted to prepare and/or collect certain non-public, confidential and/or proprietary information relating to the University’s business and affairs. The University is willing to engage the Service Provider to perform the Services as defined in such Services Agreement, but only upon the condition that the Service Provider agree to the Confidentiality Provisions set forth in this Exhibit C.

The Service Provider, intending to be legally bound, agrees as follows:

1. The term "Confidential Information" of the University shall mean all information which is non-public, confidential or proprietary in nature, whether oral or written or via computer disk, electronic media or otherwise, to which the Service Provider is given access or which is made available to the Service Provider or its Authorized Representatives (as defined below). Confidential Information shall include, but shall not be limited to, any design, image, visual representation, logo, service mark, name, trade dress, trade name, trademarks or trade secrets of the University as well as all correspondence, memoranda, notes, legal documents and other written materials or tangible media contained in or in any manner relating to the University, its trustees, officers, employees, students, alumni and/or donors or its instructional programs, historical and projected financial information, business strategies, operating data, technology, processes, databases, contracts or other proprietary information, whether received before or after the date hereof. “Confidential Information” shall not include any information that the Service Provider can demonstrate by clear and convincing evidence:

(a) was known to the Service Provider prior to such disclosure by the University, as evidenced by documentary or other physical evidence predating the date of the Services Agreement;

(b) was public knowledge at the time of such disclosure to the Service Provider, or becomes public knowledge after such disclosure, through no action or omission by or on behalf of the Service Provider; or

(c) is lawfully disclosed or made available to the Service Provider by a third party having no obligation to the University to maintain the confidentiality of such information.

2. The Service Provider will maintain the confidentiality of all Confidential Information and hold it in trust for the exclusive benefit of the University. Service Provider agrees that it will protect the Confidential Information it receives from or on behalf of the University according to

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commercially acceptable standards and no less rigorously than it protects its own confidential information.

3. All Confidential Information will remain the exclusive property of the University, and will be used by the Service Provider exclusively for purposes contemplated by the Services Agreement. Unless previously authorized in writing by the University, the Service Provider will not use Confidential Information for any other purpose or for the benefit of itself or others, and will not disclose it to anyone (except its employees and authorized representatives, on a "need-to-know" basis pursuant to written confidentiality agreements containing terms substantially similar to these Confidentiality Provisions (an “Authorized Representative”)).

4. Without the prior written consent of the University, or as required under law, the Service Provider will not disclose to any third party (other than to their accountants, counsel, and Authorized Representatives, on a "need-to-know" basis) (i) the fact that any Confidential Information of the University has been disclosed or made available to it, or (ii)  any of the terms, conditions, or other facts relating to the services to be performed by Service Provider pursuant to the Services Agreement.

5. Service Provider shall develop, implement, maintain and use appropriate administrative, technical and physical security measures to preserve the confidentiality, integrity and availability of all electronically maintained or transmitted Confidential Information received from, or on behalf of, the University.

6. Service Provider shall report to the University any use, access, or disclosure of Confidential Information not authorized herein or in a separate writing by the University. Service Provider shall make the report to the University within one (1) business day after Service Provider learns of such use, access, or disclosure. Service Provider’s report shall identify: (i) the nature of the unauthorized use, access or disclosure, (ii) who made the unauthorized use or access or received the unauthorized disclosure, (iii) what Service Provider has done or shall do to mitigate any deleterious effect of the unauthorized use, access or disclosure, and (iv) what corrective action Service Provider has taken or shall take to prevent future similar unauthorized use, access or disclosure. Service Provider shall provide such other information, including a written report, as reasonably requested by the University. No public disclosure of such unauthorized use, access, or disclosure shall be made without the prior consultation with and consent of the University.

7. Service Provider shall defend and hold the University harmless from all claims, liabilities, damages, or judgments involving a third party, including the University’s costs and reasonable attorney fees, which arise as a result of Service Provider’s failure to meet any of its obligations under these Confidentiality Provisions.

8. The Service Provider will, upon request and as directed by the University, promptly deliver to the University or destroy all documents and other tangible media that contain or reflect Confidential Information of the University (including all copies, reproductions, digests, abstracts, analyses, and notes) in its possession or control, including any related computer files.

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9. If the Service Provider is required by law to disclose any Confidential Information of the University, the Service Provider will provide the University with prompt notice of such requirement so that the University may seek a protective order or take other appropriate action and/or waive compliance with these Confidentiality Provisions to the extent of such required disclosure. In the absence of such a waiver, if the Service Provider is, in the opinion of its counsel, compelled to disclose Confidential Information of the University upon pain of liability for contempt or other censure or penalty, Service Provider may disclose such Confidential Information to the relevant court or other tribunal without liability hereunder, but such information will remain confidential under these Confidentiality Provisions after such disclosure.

10. Service Provider acknowledges that monetary damages may not be a sufficient remedy for unauthorized disclosure of Confidential Information and that the University may be entitled, without waiving any other rights or remedies, to such injunctive or equitable relief as may be deemed proper by a court of competent jurisdiction with respect to its Confidential Information.

11. In the event that any provision of these Confidentiality Provisions is judicially or administratively determined to be invalid and unenforceable, such provision shall be construed to be enforceable to the maximum extent permitted by the laws of the construing jurisdiction or rules of the construing administrative authority, as applicable. If any provision or provisions of these Confidentiality Provisions shall be held to be illegal, invalid or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.

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