TRADE-OUT AGREEMENT
This Agreement is between The University of Texas at San Antonio
("University"), an institution of higher education of the State of Texas,
and_____________________, a [insert type of entity and state of incorporation, if
applicable] , having offices located at __________________. [Instructions to
Preparer: Check Vendor ID info & Comptroller vendor info as for any
procurement. Confirm the nature of the business entity to ensure proper
execution.
For
more
info
on
proper
execution,
go
to:
http://www.utsystem.edu/purchas/contractexecutioninstructions.pdf ]
RECITALS
WHEREAS, University supports and maintains an intercollegiate athletics
program administered by its Athletics Department ("Department");
WHEREAS, Supplier operates a business that provides ________; and
WHEREAS, Supplier desires to provide certain of its services or products to
University for the use and benefit of the Department in exchange for University
providing Supplier certain benefits from or related to the Department.
NOW THEREFORE, for and in consideration of the mutual benefits set forth
herein, the parties agree as follows:
TERMS AND CONDITIONS
I. TERM
This Agreement shall be effective as of ________, 20__ and expire on
________, 20__ (“Term”).
II. OBLIGATIONS OF SUPPLIER
Supplier shall during the Term and on a schedule to be determined by the
Department and agreeable to Supplier provide the following specified quantity or
number of Supplier's products or services listed below with a total retail value of
__________________ Dollars ($__________). Supplier shall provide the specified
quantity or number of the listed products or services without monetary cost to
University.
[Describe the consideration provided by Supplier, specifying quantity & value of
services or items provided to UTSA.
Description of consideration must be
specific enough to be enforceable.
Athletic Dept. should consult with
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procurement office to ensure that there is no conflict with services being
provided under other non-athletic UTSA agreements.]
III. OBLIGATIONS OF UNIVERSITY
The University, through the Department shall provide Supplier with the following
specified benefits related to the Department with a total retail value not exceeding the
value of the products or services provided to University by Supplier as described in
Section II of this Agreement:
([Describe consideration provided by University, using language that has been
standardized. Note: standardized language is found in the other attachment. If
consideration provided by University is different from the types described in the
standard listing, then approval should be obtained from the VP for Business
Affair (or the appropriate official). ]
University’s obligation under this Section to produce and to display signs or
banners is conditioned upon Supplier submitting all artwork for such signs or banners
for University’s approval pursuant to Section IV ________ after Supplier executes the
Agreement. University’s obligation under this Section to print, announce, broadcast,
display or distribute any other information or materials is conditioned upon Supplier
obtaining approval of all such information and materials pursuant to Section IV and
submitting such approved information and materials to University on or before
________ . Unless University receives written instructions to the contrary on or before
____________, University will print or mention Supplier’s name exactly as it appears in
this Agreement.
IV. ADVERTISING APPROVAL
All advertising and promotional material of Supplier related to the performance of
this Agreement, including but not limited to radio and television broadcasts and print
media, artwork, media advertising, and the advertising to be displayed or announced at
athletic events (collectively the “Advertising and Promotional Materials”) must comply
with the Policies and Rules and Regulations of the Board of Regents of The University
of Texas System, the rules and regulations and policies of the University, and with the
constitution, bylaws, and rules of the NCAA, and any athletic conference of which
University is a member. All such Advertising and Promotional Materials must be
submitted by Supplier for University’s written approval prior to use. Requests for written
approval shall be in writing, accompanied by the material requested to be approved,
shall be transmitted by e-mail, facsimile, express mail, overnight carrier, or regular mail,
and shall be addressed as follows:
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Marketing Coordinator
The University of Texas at San Antonio
Convocation Center
Room 2.02.08
One UTSA Circle
San Antonio, TX 78249-1644
University will notify Supplier via e-mail or facsimile of University’s approval or
disapproval of Advertising and Promotional Materials. Reasonable effort will be made
to notify Supplier of approval or disapproval within fifteen (15) days from the date of
Supplier’s submission; however, as University must also obtain approval from a
University of Texas System representative for certain Advertising and Promotional
Materials, Supplier should make every effort to submit all Advertising and Promotional
Materials for approval as early as practicable.
University shall have no obligation to produce, print, announce, broadcast,
display or otherwise utilize any Advertising and Promotional Materials to fulfill any
obligation under this Agreement unless University approval has been obtained as
required herein.
V. USE OF UNIVERSITY MARKS
The Board of Regents of The University of Texas System owns all rights to the
name, logos, and symbols of the University ("University Marks"). Any use of University
Marks by the Supplier (a) must be pursuant to a license issued by The Collegiate
Licensing Company or any successor identified by the University or (b) must be
specifically included in an obligation of University listed in Section III and approved in
writing by University as required in Section IV.
VI. ACCOUNTING
Each party providing goods or services under this Agreement shall maintain
written records reflecting the quantity, type, and value of such goods or services. Such
written records shall also reflect the date such goods or services are delivered or
performed. Each party shall make copies of such written records available to the other
party within five (5) business days after receiving a written request from the other party
or within ten (10) business days after the termination of this Agreement under Section
VIII, below. Such written records shall be retained for two (2) years after the end of the
Term and shall be available to the other party or its authorized representative and the
Texas State Auditor during business hours.
VII. INDEMNIFICATION
Supplier shall indemnify and hold the University harmless from any and all
claims, damages, causes of action, and judgments (including any attorneys’ fees)
(“Claims”) for the injury or death of any person or the damage to property that result
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from the negligent or willful acts or omissions of Supplier, its agents or employees
pertaining to the activities to be carried out pursuant to the obligations under this
Agreement; provided, however, that Supplier will not hold University harmless from
claims arising out of the negligence or willful misconduct of University, its employees
and agents. In addition, Supplier will defend, indemnify and hold University harmless
from any Claims related to the infringement or alleged infringement of any patent,
copyright, or trademark or other proprietary interest and arising by or out of the activities
carried out pursuant to the obligations under this Agreement.
VIII. TERMINATION
A.
The parties may terminate this Agreement by mutual written consent.
B.
In the event of a default by either party in the performance of its
obligations under this Agreement, the non-defaulting party shall have the
right to terminate this Agreement by delivery of a written termination notice
to the party who is default in the performance of this Agreement when the
party in default does not cure a default to the satisfaction of the nondefaulting party within thirty (30) days after the written notice.
C.
If, on the date of a termination under this Section, the value of goods and
services the University has provided to the Supplier exceeds the value of
goods and services the University has received from Supplier, then,
notwithstanding such termination, Supplier shall provide University
additional goods and services in the quantity necessary to ensure that the
total value of the goods and services received by University under this
Agreement equals the total value of goods and services the University has
provided under this Agreement.
IX. NOTICES
Any notice or other communication under this Agreement, including without limitation
notice pursuant to Section 2251.054, Texas Government Code, will be in writing, and
will be sent via registered or certified mail, overnight courier, or confirmed facsimile
transmission and will be deemed given (i) if mailed, when deposited, postage prepaid, in
the United States mail, (ii) if sent by overnight courier, one business day after delivery to
such courier, and (iii) if sent by facsimile, when transmitted. Any notice or other
communication will be addressed as set forth below, or to such other address as any
party will advise the other in writing:
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To University:
Pamela S. Bacon
Associate Vice President for Business Affairs
The University of Texas at San Antonio
One UTSA Circle
San Antonio, TX 78249-1644
FAX: 210-458-4201
Email: pamela.bacon@utsa.edu
with copy to:
Ms. Lynn Hickey
Athletic Director
The University of Texas at San Antonio
One UTSA Circle
San Antonio, TX 78249-1644
Fax: 210-458-4813
Email: lynn.hickey@utsa.edu
and
Dr. Gage E. Paine
Vice President for Student Affairs
The University of Texas at San Antonio
One UTSA Circle
San Antonio, TX 78249-1644
Fax: 210-458-5880
Email: gage.paine@utsa.edu
or such other person or address as may be specified in writing by University to Supplier in
accordance with this Section.
To Supplier:
ATTN: _________________________
________________________________
________________________________
________________________________
The persons to be notified or the addresses for notification under this Section may
be changed by giving notice as provided in this Section.
X. RESOLUTION OF CERTAIN CLAIMS
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To the extent that Chapter 2260 of the Texas Government Code, as it may be
amended from time to time ("Chapter 2260"), is applicable to this Agreement and is not
preempted by other applicable law, the dispute resolution process provided for in
Chapter 2260 shall be used, as further described herein, by University and Supplier to
attempt to resolve any claim for breach of contract made by Supplier:
(1) Supplier’s claims for breach of this Agreement that the parties cannot resolve
pursuant to other provisions of this Agreement or in the ordinary course of
business shall be submitted to the negotiation process provided in subchapter B
of Chapter 2260. To initiate the process, Supplier shall submit written notice, as
required by subchapter B of Chapter 2260, to University in accordance with the
notice provisions in this Agreement. Supplier‘s notice shall specifically state that
the provisions of subchapter B of Chapter 2260 are being invoked, the date and
nature of the event giving rise to the claim, the specific contract provision that
University allegedly breached, the amount of damages Supplier seeks, and the
method used to calculate the damages. Compliance by Supplier with subchapter
B of Chapter 2260 is a required prerequisite to Supplier‘s filing of a contested
case proceeding under subchapter C of Chapter 2260. The Vice President for
Business Affairs of University, or such other officer of University as may be
designated from time to time by University by written notice thereof to Supplier in
accordance with the notice provisions in this Agreement, shall examine
Supplier’s claim and any counterclaim and shall negotiate with Supplier in an
effort to resolve such claims.
(2) If the parties are unable to resolve a claim for breach of this Agreement
through the negotiations specified in subsection (1) of this Section, then the
contested case process provided in subchapter C of Chapter 2260 is Supplier’s
sole and exclusive process for seeking a remedy for any and all claims for
breach of this Agreement by University.
(3) Compliance with the contested case process provided in subchapter C of
Chapter 2260 is a required prerequisite to seeking consent to sue from the
Legislature under Chapter 107 of the Texas Civil Practices and Remedies Code.
The parties hereto specifically agree that (i) neither the execution of this
Agreement by University nor any other conduct, action or inaction of any
representative of UNIVERSITY relating to this Agreement constitutes or is
intended to constitute a waiver of University's or the state's sovereign immunity to
suit and (ii) University has not waived its right to seek redress in the courts.
The submission, processing and resolution of Supplier’s claim is governed by the
published rules adopted by the Texas Attorney General pursuant to Chapter 2260, as
currently effective, hereafter enacted, or subsequently amended.
University and Supplier agree that any periods set forth in this Agreement for notice and
cure of defaults are not waived, delayed, or suspended by Chapter 2260 or this section.
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XI. GENERAL TERMS
A. This Agreement constitutes the entire agreement between the parties with
respect to the subject matter and no prior or contemporaneous agreement,
written or oral, will be effective to vary the terms of this Agreement. No
amendment to this Agreement will be effective unless reduced to writing and
signed by an authorized representative of each party.
B. The parties shall be independent contractors in the performance of this
Agreement and nothing herein is intended or may be construed to make
either party the employee, agent, partner, or representative of the other.
Neither party shall represent to any third party that they are the employee,
agent, partner, or representative of the other party.
C. The validity, interpretation, performance, and enforcement of this Agreement
will be governed by the laws of the State of Texas.
D. Neither party may assign this Agreement, in whole or in part, without the prior
written consent of the other party. Either party may enter into contracts for
the purpose of obtaining services, equipment, materials, merchandise, or
products required for the performance of this Agreement and such contracts
will not be considered an assignment. The party entering into such contracts
shall not be relieved from the performance of any obligation or duty required
of that party by this Agreement.
E.
The University of Texas at San Antonio
[ Insert NAME OF SUPPLIER]
By: _________________________
Authorized Signature
By: _______________________
Authorized Signature
Pamela S. Bacon
Associate Vice President for Administration
[ Insert NAME OF AUTHORIZED SIGNER
[ Insert TITLE]
____________________
Date Signed
____________________
Date Signed
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