APPENDIX A
The attorneys in the Office of University Counsel at the University of Colorado Denver |
Anschutz Medical Campus review many different types of contracts on behalf of the University.
Legal review is important because there are often terms included that are unfavorable to our
interests, that the University is prohibited from agreeing to pursuant to Regent, state or federal
laws and policies, or that are altogether missing from the contract and need to be added during
the contract negotiations.
The following is a list of contract terms that, when present in a contract, should be reviewed by
the Office of University Counsel prior to the contract execution. Included with each term is a
brief description of its meaning and an example of how the term may appear in a contract. The
examples included below contain language that is not acceptable. The purpose of providing
examples is only to show how these terms may appear. It is important to note that these are not
comprehensive; the terms may appear using slightly different language. If you find one of these
terms present in the contract you are reviewing, you should contact the Office of University
Counsel for guidance.
Arbitration
Binding arbitration is a method of resolving disputes by submitting the issue to a third party who
listens to the evidence and makes a determination of how the dispute will be resolved. This
process does not involve going to a court of law and the individual making the decision is not a
judge. We cannot agree to binding arbitration when no dispute yet exists between the
parties. Whether we may submit a dispute to binding arbitration is subject to constitutional
limits on the payment of money by the state. Under Article V, § 33 of the Colorado
Constitution, state funds shall only be disbursed "upon appropriations made by law, or otherwise
authorized by law, and any amount disbursed shall be substantiated by vouchers signed and
approved in the manner prescribed by law." Fiscal and procurement rules that implement how
monies may be disbursed under the Constitution require that a clear agreement governing the
ADR process and a stated maximum financial exposure for the state be entered into and
approved by fiscal and procurement officials before binding ADR commences. Because it is
impossible to know what issues may be in dispute or the maximum financial exposure to the
state for unknown future disputes, our contracts cannot include blanket provisions to submit to
binding arbitration.
Example: Any controversy or claim arising out of or relating to this Agreement, or the
parties' decision to enter into this Agreement or the breach thereof, shall be settled by
arbitration in accordance with the Commercial Arbitration Rules of the American
Arbitration Association, and judgment upon the award rendered by the arbitrator(s) may
be entered in any court having jurisdiction thereof. The arbitration shall be held in
New Jersey, and the arbitrators shall apply the substantive law of New Jersey except
that the interpretation and enforcement of this arbitration provision shall be governed by
the Federal Arbitration Act. The arbitrators shall not award either party punitive damages
and the parties shall be deemed to have waived any right to such damages.
Attorney’s Fees
The University will not agree to pay attorney fees for another party prospectively (i.e. when there
is no pending law suit rather as a contract term) for reasons similar to the reasons why we cannot
agree to Binding Arbitration.
Example: In the event there is any dispute concerning this Agreement, and any party
hereto retains counsel for the purpose of enforcing any of the provisions of this
Agreement or asserting the terms of this Agreement in defense of any suit filed against
said party, the prevailing party in such dispute shall be entitled to recover, in addition to
any other remedy to which such party may be entitled to recover, all of its costs and
attorney’s fees incurred in connection with the dispute irrespective of whether or not a
lawsuit is actually commenced or prosecuted to conclusion.
Choice of Law – State other than Colorado or International Laws
Because we are an Institute of the State of Colorado we have certain protections afforded to us
through Colorado law. Therefore we cannot agree to be subject to the laws of another state or
country.
Example: This contract shall be governed by and construed in accordance with New
Jersey law. By executing this agreement, CU Denver consents to the exercise of
personal jurisdiction over it by the courts of the State of New Jersey, and agrees that all
litigation regarding this contract shall be brought and maintained only in the courts of
Newark, New Jersey. In the event of litigation arising from or associated with this
contract, the parties agree that the prevailing party therein shall recover its attorneys'
fees and costs incurred therein.
Confidential Information
Anytime a vendor wants access to our confidential information (student records, patient records
or data, etc.) then we want to be assured that the vendor protects that information with at least as
much care as would the University. To that end, any contract that includes use of any
information that might be confidential in nature should be reviewed by the Office of University
Counsel so that we comply with our regulatory obligations.
FERPA – Federal Education Rights and Privacy Act (*this is an example of a
paragraph that should be included by the legal office if the contract includes student
information.)
All such student records shall be kept confidential in accordance with the requirements
of the Family Education Rights and Privacy Act (20 U.S.C. § 1232 g) and the rules
and regulations promulgated thereunder.
HIPAA – Health Insurance Portability and Accountability Act of 1996 (*this is an
example of a paragraph that should be included by the legal office if the contract
includes patient information.)
The parties may receive from or create on behalf of each other certain health or medical
information ("Protected Health Information" or "PHI", as defined in 45 C.F.R.
Section 164.501) in connection with the performance of this Agreement. Use or
disclosure of this PHI is subject to protection under state and federal law, including the
Health Insurance Portability and Accountability Act of 1996, Public Law 104-191
("HIPAA") and regulations promulgated there under by the U.S. Department of Health
and Human Services ("Regulations"). Although the parties may not presently know their
precise legal status and relationship under HIPAA, the parties nevertheless specifically
agree that they will take such action as is necessary, including amending this Agreement,
to implement in a timely manner the requirements of HIPPA, the Regulations, and other
applicable laws relating to the security and confidentiality of PHI.
Each party shall protect the other’s Confidential Information, from unauthorized
dissemination and use with the same degree of care that such party uses to protect its own
like information. Neither party will use the other’s Confidential Information for
purposes other than those necessary to directly further the purposes of this Agreement.
Neither party will disclose to third parties, other than the parties’ respective financial and
legal advisors, the other’s Confidential Information without the prior written consent of
the other party when possible; such consent shall not be unreasonably withheld.
Confidential information does not include:
Exclusive Purchase Agreements
The University cannot agree to contracts that would create an exclusive relationship between the
vendor and the University. Language that creates this relationship might include terms such as
“sole provider”, “exclusive provider”, or similar.
Example: The University agrees that Company will be the sole provider of handheld
devices. The University will not contract with any other party for procurement of these
products.
Indemnification
The University is prohibited from agreeing to take responsibility for the actions of the other party
to an agreement. Therefore, we cannot agree to indemnification. Using the words “to the extent
permitted by law” does not make it appropriate.
Example: CU Denver shall indemnify, defend and hold harmless Hotel and its officers,
directors, partners, agents, members and employees from and against any and all
demands, claims, damages to persons or property, losses and liabilities, including
reasonable attorney’s fees (collectively “claims”) arising out of or caused by CU
Denver’s negligence and/or its members’, agents’, employees’, independent contractors’
or Exhibitors’ negligence in connection with the use of the Hotel facilities. CU Denver
shall not have waived or be deemed to have waived, by reason of this paragraph, any
defense which it may have with respect to such claims.
The indemnification may not always appear in an insurance section; it may be contained in
sections that contain language about intellectual property, confidentiality, warranty, etc.
Example: Company warrants that any and all software code incorporated in the
Agreement, the Company trademark and trade names, each shall not infringe any third
party’s intellectual property rights. In the event any such infringement is found to exist,
Company shall indemnify and hold CU Denver harmless against any claim, loss or
damage judged to have resulted from the infringement. Company further warrants that
any and all information submitted to it by CU Denver or its users in connection with the
services to be provided hereunder shall be kept strictly confidential and stored in a secure
environment not accessible by third parties. Company shall indemnify and hold CU
Denver harmless against any claim, loss or damage judged to have resulted from a
breach of the foregoing warranty. Company further warrants that the service it provides
will be conducted in a professional and workmanlike manner and that Company will
correct at its expense in a timely manner any services that CU Denver reports to
Company in writing are non-conforming to the foregoing standards. These warranties are
the exclusive warranties provided by Company and are in lieu of all other representations
or warranties of any kind, either express or implied, including any statutory warranties of
merchantability or fitness for a particular purpose.
Insurance Requirements
The University carries insurance at specific levels that are dictated, in part, by the Colorado
Governmental Immunity Act. Therefore, language specifically requiring levels of insurance
should be reviewed and agreed upon prior to signature. Additionally, the University cannot
agree to name another party as an “additional insured” on our insurance policies and will not
agree to do so by contract.
Example: CU Denver agrees to carry and maintain and provide evidence of liability and
other insurance in amounts sufficient to provide coverage against any claims arising from
any activities arising out of or resulting from the obligations which may arise or be
incurred pursuant to or associated with this contract, and not less than the amounts set
forth in the preceding section. A certificate of insurance shall be submitted to Hotel prior
to the meeting evidencing sufficient insurance coverage, as noted above, showing that
CU Denver’s insurance policy names Hotel as additional insured’s.
Intellectual Property
It is important that the University does not give away any of its intellectual property rights to a
third party vendor without adequate consideration – i.e. if the University and a vendor will codevelop software, it is important that the University owns the resulting software, not the third
party. If an agreement contains any language under which the University may be giving up its
intellectual property rights, the agreement should be sent to the legal office for review.
A third party vendor that is asked to create something “intangible” such as software or a video
recording, etc. may not waive any warranties that the deliverable will not infringe any third party
intellectual property rights. These vendors also may not waive any warranties that their
deliverables will perform as promised under the terms of the agreement. If an agreement contains
any blanket warranty disclaimer or any disclaimer of these specific warranties, the agreement
should be sent to the legal office for review.
A third party vendor may not use the University’s name, logo, or other trademarks for any
purpose without the express, written permission of the University for a specific
purpose. Currently, only the media relations office may provide this permission to a third party.
A third party vendor may not use the University’s name, logo, or other trademarks in any
advertising to state or imply that the University endorses any particular product or service. If an
agreement contains any provisions allowing for the use of the University’s name, logo, or other
trademarks, the agreement should be sent to legal for review.
Limitation of Liability
We ask that the parties with whom we are contracting take responsibility for their liability and
therefore we don’t agree to language that limit’s the other party’s liability for damages.
Example: In no event shall Company or its affiliates be liable for any direct, indirect,
punitive, incidental, special, or consequential damages arising out of, or in any way
connected with, the services provided by them whether based on a theory of negligence,
contract, tort, strict liability, or otherwise.
Work for Hire
If the University is contracting with an outside party to create something “intangible” that the
University intends to own, i.e. software, a white paper that will be part of a larger document or
report, musical composition, video, etc., the agreement must specify that the University will own
the deliverable. Please contact University Counsel who can provide this contract language. If
there is any question regarding University ownership of a deliverable, the agreement should be
sent to the legal office for review.