Contract between the board of regents of the unversity system of georgia and

FUNDING

Notwithstanding any other provision of this Contract, the Parties hereto acknowledge that institutions of the State of Georgia are prohibited from pledging the credit of the State. At the sole discretion of the BOR, this Contract shall terminate without further obligation of the State if the source of payment for the BOR’s obligation no longer exists or is insufficient. The certification by the BOR of the events stated above shall be conclusive and not subject to appeal.

5. PAYMENT OF TAXES AND EXPENSES

Contractor will promptly pay all taxes lawfully imposed upon it with respect to this Contract or any product delivered in accordance herewith. The BOR makes no representation whatsoever as to the liability or exemption from liability of Contractor to any tax imposed by any governmental entity. Furthermore, Contractor shall be responsible for payment of all expenses related to, based on, or arising from salaries, benefits, employment taxes (whether State or federal), and insurance (whether health, disability, personal, or retirement) for its employees, designees, or assignees.

5. RELATIONSHIP OF PARTIES

Neither Party is an agent, employee, assignee, or servant of the other. It is expressly agreed that Contractor and any subcontractors and agents, officers, and employees of Contractor or any subcontractor in the performance of this Contract shall act as independent contractors and not as officers or employees of the BOR. The Parties acknowledge, and agree, that Contractor, its agents, employees, and servants shall in no way hold themselves out as agents, employees, or servants of the BOR. It is further expressly agreed that this Contract shall not be construed as a partnership or joint venture between Contractor or any subcontractor and the BOR.

5. INSPECTION OF WORK

The BOR, the State Auditor, the U.S. Department of Health and Human Services, the General Accounting Office, the Comptroller General of the United States, if applicable, or any other State or federal authorized representatives, shall have the right to enter into the premises of Contractor and/or all subcontractors, or such other places where duties under this Contract are being performed or records are being held for the BOR, to inspect, monitor or otherwise evaluate the services or any work performed pursuant to this Contract. Contractor shall bear all costs associated with inspections and evaluations of work when Contractor’s or Subcontractor’s deficiency is the reason for the inspection. Unless State or federal officials determine that there are reasons that certain procedures should occur without advance warning, all inspections and evaluations of work being performed shall be conducted with prior notice and during normal business hours. All inspections and evaluations shall be performed in such a manner as will not unduly delay work.

5. STATE PROPERTY

Contractor is responsible for the proper custody and care of any State-owned property furnished for Contractor’s use in connection with the performance of this Contract. Contractor will reimburse the BOR for loss or damage to such property, normal wear and tear excepted, while such property is in Contractor’s custody or use.

5. OWNERSHIP AND USE OF WORK PRODUCT, DATA AND RELATED MATTERS; ACCEPTANCE OF SYSTEM CHANGES

1. 
   Ownership and Use of Work Product. All Work Product shall be the exclusive property of the BOR, for whatever use the BOR deems appropriate, and Contractor shall execute any and all documents necessary to effectuate this provision fully. For example, if the Work Product or Administrative Services includes the taking of photographs or videotapes of individuals, Contractor must obtain the written consent from such individuals authorizing the use by the BOR of such photographs, videotapes, and names in conjunction with such use. Contractor shall also obtain necessary written releases from such individuals, releasing the BOR from any and all claims or demands arising from such use. Contractor hereby transfers and assigns all rights in the Work Product to the BOR. Contractor shall, at the expense of the BOR assist the BOR or its nominees to obtain copyrights, trademarks, or patents for all such works in the United States and any other countries. Contractor agrees to execute all papers and to give all facts known to it necessary to secure United States or foreign country copyrights and patents, and to transfer or cause to transfer to the BOR right, title, and interest in and to such works. Contractor also agrees to waive and not assert any moral rights in and to such works. Contractor shall provide all assistance reasonably requested by the BOR in the establishment, preservation, and enforcement of its right in the Work Products, without any additional compensation to Contractor. Contractor agrees to and hereby, to the extent permissible, waives all legal and equitable rights relating to the Work Products, including without limitation any and all rights of identification of authorship and any and all rights of approval, restriction, or limitation on use or subsequent modifications.
   

Contractor may retain a copy of the Work Product for its business records and in accordance with the Business Associate Agreement. Contractor shall retain all proprietary rights to all software, data systems, methodologies, or formats used by Contractor to prepare the Work Product that are made, developed, or reduced to practice solely by Contractor.

2. 
   Ownership and Use of BOR Data. BOR Data shall be the exclusive property of the BOR, except that Contractor may retain a copy of the BOR Data for its business records and in accordance with the Business Associate Agreement. In the event of a dispute regarding what is or is not BOR Data, the BOR shall make such determination, which determination shall be final, binding and not subject to appeal.
   

Contractor shall not share or publish BOR Data without the prior written consent of the BOR.

3. 
   Software and Other Upgrades. The Parties also understand and agree that any upgrades or enhancements to Software programs, hardware, or other equipment, whether electronic or physical, shall be made at Contractor’s expense only, unless the upgrade or enhancement is made at the BOR’s request and solely for the BOR’s use. Any upgrades or enhancements requested by and made for the BOR’s sole use shall become the BOR’s property without exception or limitation. Contractor agrees that it will facilitate the BOR’s use of such upgrade or enhancement and cooperate in the transfer of ownership, installation, and operation by the BOR.
   

Contractor shall provide the BOR with a copy of a written plan thirty (30) Calendar Days prior to upgrade that describes and set forth how Contractor’s control will be systematically assessed to determine the need to modify, upgrade and/or replace application software, operating hardware and software, telecommunications capabilities, information management policies and procedures.

4. 
   Infringement and Misappropriation. Contractor warrants that all Work Products provided by Contractor do not and will not infringe or misappropriate any right of any third party based on copyright, patent, trade secret, or other intellectual property rights. In case the Work Products or any one or part thereof is held or alleged to constitute an infringement or misappropriation, or the use thereof is enjoined or restricted or if a proceeding appears to Contractor to be likely to be brought, Contractor will, at its own expense, either:
   

1. 
   Procure for the BOR the right to continue using the Work Products; or,
   

2. 
   Modify or replace the Work Products to comply with the specifications so that no violation of any intellectual property right occurs.
   

If Contractor fails to comply with the terms and conditions set forth in this Section 13.4, the BOR will have the option to terminate the Contract, in whole or in part, and receive a refund of amounts paid for the infringing or misappropriated Work Products and other Work Products returned by the BOR in addition to any other remedies available to the BOR. The BOR’s acceptance of a refund does not preclude the BOR from availing itself of its other rights and remedies under this Contract, or under equity or at law.

5. 
   System Changes. All system changes required to comply, enable, and operate data transfers pursuant to this Contract, including, but not limited to those changes due to changes in State or federal law, rules, and/or regulations, shall be enabled, completed, and operated at no cost to the BOR. The Parties agree that the required system changes are not complete until they are fully implemented and tested and receive the BOR’s Acceptance prior to the deadline for use. In any event, the BOR’s determination on whether the system changes are complete and satisfactory shall be conclusive and final. Contractor shall, at no charge, provide the BOR with any revisions, updates, upgrade versions, modifications, enhancements, and changes as necessary to keep the Systems used by the BOR for activities related to this Contract in conformity with the then-current industry standard.
   

Contractor must give confirmation for each system change prior to the BOR beginning Acceptance Tests. Upon delivery of a system change and receipt of confirmation from the BOR that the system meets its Specifications, the BOR will, with Contractor’s assistance, promptly review or perform Acceptance Test on the system changes, as applicable, to determine whether the system changes conform to Acceptance Criteria.

6. 
   Contractor’s Confidential/Proprietary Information. Because the BOR is a public agency of the State of Georgia, any information received by the BOR is subject to disclosure under the Georgia Open Records Act, O.C.G.A. § 50-18-70 et seq. (the “Open Records Act”).
   

7. 
   Disaster Recovery.
   

1. 
   Disaster Recover Plan. As part of this Contract, Contractor will be required to maintain a written disaster Recovery Plan (the “Recovery Plan”) for review and approval by the BOR designed to minimize any disruption of Contractor’s services. Any updates to the Recovery Plan must meet or exceed the requirements of the original Recovery Plan, as determined in the sole discretion of the BOR. Contractor shall prepare and present to the BOR for its approval the initial Recovery Plan within ten (10) Calendar Days of the Effective Date of this Contract. The Recovery Plan will be implemented in the event that one or more of Contractor’s facilities experiences a disaster (e.g., power outages, computer virus infections, natural disasters, etc.) that impacts, or could reasonably be expected to impact, Contractor’s ability to provide the Administrative Services.
   

2. 
   Liability for Costs. It is the sole responsibility of Contractor to maintain adequate backup so as to ensure continued automated and manual processing of services and transactions required to be conducted under this Contract. Any claims, demands, liabilities, losses, costs or expenses, and attorneys' fees suffered by the BOR pursuant to Contractor’s failure to comply with the requirements of this section may result in Contractor’s being deemed liable to the BOR for the actual amount of such loss, cost or expense sustained by the BOR as the result of Contractor’s failure. Contractor shall indemnify the BOR for any loss or damage suffered by the BOR related to this Contract as a result of any disaster.
   

3. 
   Requirements of the Recovery Plan. The Recovery Plan and procedures will provide, at a minimum, for the following:
   

(a) Assuming the loss of Contractor’s primary processing or operational site, resumption of the processing of Contractor’s services within two (2) Business Days;

4. 
   Annual Submission. Contractor shall submit an update Recovery Plan by January 31^st of each year of the Term of this Contract.
   

5. 
   Annual Review. Contractor shall conduct on at least an annual basis a disaster recovery plan review and exercise at Contractor’s expense. The review must test all components of Contractor’s operation, including but not limited to, services provided by third parties. A written report of the findings must be delivered to the BOR within fifteen (15) Calendar Days of the date the test is conducted. Contractor must develop a written corrective action plan for any deficiencies and provide a copy of the corrective action plan to the BOR. Contractor must thoroughly re-test until satisfactory results are achieved and maintained and will provide certification of these results to the BOR.
   

6. 
   Site Visit. The BOR, federal auditors, and/or the State Auditor reserves the right to conduct a site visit of Contractor’s disaster recovery location with not less that one (1) Calendar Day prior notice.
   

7. 
   Survival. This Section shall survive termination of this Contract for any reason.
   

5. 
   
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