“In-Kind Product” means those Beverages provided by the Vendor at no charge to the University to be used by University employees during work-related activities and distributed at the discretion of the University.
“Isotonic” means all beverages (i) specifically marketed or labeled as a “sports drink,” “fitness drink,” “isotonic drink,” or some similar designation or (ii) that are formulated and intended to be consumed primarily for fluid replacement or to enhance, sustain, or recover from physical activity. All “Isotonics” shall be considered sports drinks, whether carbonated or non-carbonated, and whether or not they include vitamins, minerals, caffeine, amino acids, or other nutritive ingredients. For clarity, examples of Isotonics include ______, ______, ______, and __________. The Vendor understands and agrees that the University’s official sideline Isotonic provider will advertise and be utilized in the player bench areas, practice facilities, sidelines, and locker rooms for Athletics and that nothing in this Agreement should be deemed to grant to the Vendor such sponsorship or advertising rights as are conveyed in the University’s sideline isotonic rights agreement.
“Multi-Media Rights Holder” means the company with which Athletics has contracted to market multi-media Athletics-related inventory. As of the date of execution of this Agreement, such company is IMG College.
“NCAA” means the National Collegiate Athletic Association.
“Negotiated Exclusivity” means the range and extent of the exclusivity for the provision of the Beverages and Vended Snacks by the Vendor and rights granted to the Vendor, as specifically contained in Article 3 of this Agreement, but excluding any rights associated with sideline isotonic rights agreement and any other beverages for which another vendor has been granted Negotiated Exclusivity.
“New Product” means any new Company Beverage which is (a) not within Vendor’s Exclusive Categories; (b) not in the same category as a Beverage listed on Exhibit A; and is (c) in a new and different category (in the University’s reasonable discretion) from the Beverages listed on Exhibit A; and is (d) subsequently offered for sale by the Vendor or the market otherwise suggests that there is an opportunity.
“Party” or “Parties” mean(s) the University and the Vendor, collectively or individually.
“Pass-Through Rights” means conveyance of the University’s endorsement or intellectual property rights to a third party for commercial or promotional purposes.
“Premium” means any article bearing the University’s trademarks that is given away or sold at less than the usual selling price for the purpose of increasing the sale of, promoting or publicizing any other product, or any service, including incentives for the sales force, trade, or consumers.
“Royalty Bearing Packaging and Product Rights” means any product or packaging using the trademarks of the University in such a way that commemorates or celebrates an athletic championship or athletic or university event anniversary or deemed collectible. All products or packaging that uses University trademarks to promote information or a program sponsored by Athletics shall be royalty bearing to the University unless specifically excluded in this Agreement.
“SEC” means the Southeastern Conference of the National Collegiate Athletic Association.
“Snacks” means vended snack/food items and vended hot drinks.
“Stakeholder Organization” means Auxiliary Services, Dining Services, Athletics, Housing, or another constituent organization of the University, or any combination thereof.
“Vending Location” means any location on Campus at which the Vendor will vend Beverages and/or Vended Snacks in accordance with the terms and covenants of this Agreement, as designated by the University from time to time and as listed on Exhibit B to this Agreement.
“Vendor’s Exclusive Categories” means the following five (5) categories for which Vendor has been granted Negotiated Exclusivity: i) Bottled Water, ii) Carbonated Soft Drinks (CSD), iii) Energy Drinks; iv) Isotonics; and (v) Vended Snacks.
1.30 “Vended Snacks” means food and other items sold through an electronic machine without the assistance of a human being.
Term. This Agreement shall become effective on January 1, 2016 (the “Effective Date”), and shall continue for a period of ten (10) years following the Effective Date (the “Term”) or until terminated in accordance with the provisions of Article 19 of this Agreement.
Commencement of Services. Installation or replacement of equipment and first delivery of Beverages/Vended Snacks by the Vendor may be permitted by the University immediately upon execution of this Agreement.
Negotiated Exclusivity; Provision of Beverages. The University hereby grants the Vendor Negotiated Exclusivity for Vendor’s Exclusive Categories, and the Vendor shall have the exclusive right, privilege, and obligation to provide the Company Beverages listed on Exhibit A according to the terms and conditions contained herein. On a continuing basis throughout the Term and any agreed-upon extension, the University, through the Stakeholder Organizations, and the Vendor shall mutually determine the flavors and brands of the Beverages and Vended Snacks to be dispensed on Campus, including vending, fountain, retail, and other locations on Campus, with the University having final authority for the decision.
No Competitive Beverages on Campus. University shall not permit Competitive Beverages to be sold, dispensed, served, distributed, sampled, or otherwise made available on Campus or advertised, displayed, represented, or promoted on Campus unless any such activity is expressly permitted pursuant to the provisions of this Agreement, including, but not limited to, the provisions of Section 3.5 below regarding retail shelf space. This covenant does not apply to 1) Competitive Beverages purchased off-Campus by students, faculty, or their guests for personal consumption and not for distribution on Campus or 2) advertising by third parties contained in newspapers, periodicals, or other publications sold or otherwise distributed, electronically or in print, on Campus.
No Third Party Promotions on Campus. University shall grant no third party the right to conduct promotions in or on the grounds of the Campus involving Competitive Beverages or Competitive Beverage containers, on a branded or unbranded basis, as a purchase requirement or promotional fulfillment, unless any such activity is expressly permitted pursuant to the provisions of this Agreement.
Steps to Stop Ambush Marketing on Campus. If any third party with whom University has ongoing relationships tries without Vendor’s consent to actively promote Competitive Beverages on the Campus, University will take reasonable steps to stop this “ambush marketing” and to protect Vendor’s Negotiated Exclusivity. These steps shall include the following, as circumstances warrant:
(A) complaining in person or in writing to the violating party; or
(B) participating (including as a named party to the extent required by law), at Vendor’s request and expense, in legal action instituted by Vendor, including suits for temporary and permanent injunctive relief.
Retail Shelf Space. Notwithstanding the provisions of Section 3.1 above, the University reserves the right to maintain 20% of all its existing and future retail shelf space on Campus for Competitive Beverages. Retail shelf space shall include fountain, refrigerated sales, and store pallet or shelf space but not in drink vending machines.
University-Branded Bottled Water. The University reserves the right to appoint a bottler or bottlers to produce University-branded Bottled Water, including but not limited to water emphasizing a single division or department of the University, during the Term. In such case, the University shall first offer to the Vendor the right to be the provider of the University-branded Bottled Water. Should the Vendor not accept, within thirty (30) days, the terms proffered by the University for the production of the University-branded Bottled Water, the University may contract with such other party or parties for the production of University-branded Bottled Water.
NCAA and SEC Promotional Programs. The University reserves the right to participate in promotional programs involving SEC corporate partners when the program includes all fourteen SEC institutions. In the event that the University participates in an NCAA Championship event, University reserves the right to participate in promotional programs by NCAA corporate partners in which all participants are featured. In the event the University participates in a College Football Playoff (CFP) or other national pre-or post-season game, University reserves the right to participate in a promotion with CFP corporate partners if all participates are involved. In the event that the SEC or ESPN hosts a television show or event on Campus, which event includes a competing Beverage sponsor, the provisions of the SEC contract, and not the contract(s) resulting from this RFP, shall control all related sponsorship aspects.
INITIAL Signing Bonus; ANNUAL Pouring and Vending Rights Fee;
IN-KIND PRODUCT; VENDING COMMISSIONS
Signing Bonus. As consideration for the Negotiated Exclusivity and the other rights granted under this Agreement over the Term, the Vendor shall pay to the University, within thirty (30) days of the date of execution of this Agreement, a one-time initial signing bonus in the amount of ____________ Dollars ($________). [NOTE TO RFP RESPONDANTS – SIGNING BONUS IS PREFERRED BUT NOT REQUIRED AS PART OF THE RFP RESPONSE.]
Pouring and Vending Rights Fee. The Vendor agrees to pay to the University an annual Pouring and Vending Rights Fee (“Pouring and Vending Rights Fee”) in the amount of _______________________ Dollars ($_________). Vendor shall pay the Pouring and Vending Rights Fee to University on or before January 1 of each year during the Term without need for invoice from University, beginning with the first payment on January 1, 2016.
In-Kind Product. During each year of the Term and based upon orders received from the University from time to time, the Bottler agrees to provide to the University In-Kind Product selected by University and valued at _______________ Dollars ($_______), based upon the wholesale prices set forth on Exhibit C to this Agreement.
Payments; In-Kind Product Orders. All payments due to the University pursuant to Sections 4.1 and 4.2 shall be remitted to, and all orders for In-Kind Product pursuant to Section 4.3 shall be processed by:
Donald L. Large, Jr.
Executive Vice President
107 Samford Hall
Auburn, Alabama 36849-5113
or such other person as may be serving as Executive Vice President of the University at the time.
Vending Commissions and Reporting.
The Bottler agrees to pay to the University each month commissions on the gross revenues generated from the vending of Beverages and Vended Snacks as follows:
Beverages – ____% of total monthly sales revenue; and
Vended Snacks – ____% of total monthly sales revenue.
Commissions are paid based on cash collected less government mandated taxes, deposits, fees, etc. Vendor shall provide an electronic monthly report showing the beginning and ending meter readings from sales, including cash, student card, and credit card sales. This report shall be provided on the same date that the commissions are paid.
Payment for vending commissions earned by the University shall be paid by the Bottler and received by the University on or before the fifteenth (15th) day of the month following the month in which the sales revenue is collected by the Bottler. The Bottler shall include with the payment a report as required by Section 9.8(c). Bottler guarantees, as long as University is in full compliance with this Agreement, that such commissions shall not be less than _______________ Dollars ($_________) annually for all sales of vended Beverages and Snacks on Campus during the Term (the “Guaranteed Commissions”). At the end of each year of the Agreement, on or before February 1 of the following year, Bottler will pay any shortfall between the Guaranteed Commission and actual commissions paid in such year. Nothing in this Agreement will be construed to be a guarantee by Bottler of Snack vending commissions to the University.
Payments for vending commissions and the required reporting information shall be sent to:
Mr. Bob Ritenbaugh
Associate Vice President, Auxiliary Services
102 Samford Hall
Auburn, Alabama 36849-5171
or such other person as may be serving as the head of University Auxiliary Services at the time.
GENERAL TERMS FOR THE PROVISION OF BEVERAGES
Throughout the Term and any agreed-upon extension, the Vendor agrees that the prices charged to the University and/or its agents, such as Chartwells and Sodexo, shall remain at least as low as those offered to similarly situated customers under similar competitive conditions in the same geographical area as the University.
The Vendor shall be responsible for ensuring that all Stakeholder Organizations receive proper and consistent pricing.
Vendor Pricing of Employee Beverages. Upon depletion by the University of its annual allotment of In-Kind Product provided under Section 4.3 hereof, the Vendor agrees to maintain the pricing set forth on Exhibit C for any additional Beverages ordered by the University for use by University employees during work-related activities (“Employee Beverages”) for the first four (4) years of this Agreement. Following the fourth (4th) year, the Vendor agrees that any increase in the cost of the Employee Beverages shall not exceed 3% per annum.
Invoicing. The method of invoicing for Employee Beverages is subject to approval by the University. The chosen method of invoicing shall be uniformly applied to all University invoices. Invoices that are not corrected among the Parties within thirty (30) days after receipt of written notice by Vendor of need for correction will not be paid.
Order Authorization. Orders for Employee Beverages may only be placed by individuals expressly authorized to do so by the Executive Vice President of the University. Invoices containing charges for Beverages ordered by individuals who have not been expressly authorized to do so will not be paid by University.
Quality of Beverages and Snacks. The University shall be the sole judge of the quality and equivalency of the Vendor’s Beverages and Vended Snacks. With regard to vended and poured Beverages and Snacks, In-Kind Product, and Employee Beverages, should any difference of opinion arise regarding the quality of the Beverages, the reasonable decision of the University shall be final and binding. The Vendor will retrieve and issue credit for any Beverages and Snacks that are damaged, stale or that, in the University’s opinion, do not yield significant sales volume to justify continuance of use.
Should the Vendor decide, or the market suggests that there is an opportunity to provide a New Product on Campus pursuant to this Agreement, the Vendor shall notify the Contract Administrators and provide a proposal of New Product addition, which shall include a full description of the New Product(s) and the proposed compensation to the University for the addition of the New Product(s), if applicable. The University will consider the proposal and initiate good-faith discussions to determine if the proposal should be accepted. If the University accepts the New Product proposal, the Parties will work together to develop a mutually acceptable amendment to this Agreement.
No additional compensation will be due to the University should the Vendor offer a New Product in a category for which the Vendor has been granted Negotiated Exclusivity. Said New Product shall be added to Exhibit A, identified by SKU. However, should the Vendor offer any New Product that the University reasonably determines to be clearly distinguishable and outside the categories for which the Vendor is granted Negotiated Exclusivity, the University may require an additional signing bonus and percentage of Pouring and Vending Rights Fee from the Vendor, in an amount that is proportionate to the expected sales revenue of the New Product as compared to the sales revenue of the existing Beverages.
Special Events and Circumstances
From time to time, for promotional purposes and in recognition of the partnership, the Vendor agrees to make available on terms mutually acceptable by the Parties either bottled, canned, or fountain Beverages and cups for outdoor functions held by the University. Beverages will be provided by the Vendor using special event trailers or other mutually agreed-upon methods of special event distribution. It is anticipated that special event services will be needed for events such as new student orientation, the President’s Picnic / “Popsicles with the President”, and Dining Services Special Events. In return for the donated Beverages, University shall allow Vendor to display signage or other advertisements deemed appropriate for the venue and circumstances by University.
Pursuant to Section 10.1 below, for all University football games during which the temperature or heat index within Jordan-Hare Stadium (the “Stadium”) is expected to meet or exceed ninety degrees (90°) Fahrenheit, the Vendor agrees to provide Concessions Enhancements Funds (as defined in Section 10.1 below) for ten thousand (10,000) bottles of Bottled Water to be distributed by the University to the first ten thousand (10,000) University students entering the student section of the Stadium. The University shall use reasonable efforts to notify the Vendor no less than three (3) days prior to the event (if possible) in order to trigger this obligation.
Athletics Exposure. Any Athletics exposure rights shall be granted only through the Multi-Media Rights Holder. Payment of the Pouring and Vending Rights Fee shall not entitle the Vendor to any specific advertising exposure in Athletics. If such exposure is desired, the Vendor will enter into an advertising agreement, separate from this Agreement, the terms and conditions of which shall be subject to the review and approval by the Multi-Media Rights Holder.
University represents that, pursuant to the terms of its Multi-Media Rights Agreement with the Multi-Media Rights Holder, IMG College, it has licensed to IMG all rights to use all of the University’s marks associated with its Athletics teams. University further represents that IMG has the right, power, and authority to sublicense all or any such marks to Vendor. It is the University’s understanding that IMG, or such other entity as may then be performing the duties of the Multi-Media Rights Holder, shall grant to Vendor the rights to utilize such Athletics team-related marks during the Term. In the event that, during the Term, University reacquires such rights from IMG, or develops or acquires new University Athletics team-related marks which are not assigned to the Multi-Media Rights Holder, then University will either grant such additional rights to Vendor directly, in exchange for market value, or grant such rights to the Multi-Media Rights Holder to sublicense to Vendor, for no additional fees or other consideration.
Merchandising Rights. University will use its legal and commercial leverage to attempt to ensure that all Beverages sold, distributed, or served on Campus (excluding Athletics facilities) in disposable vessels will be served in cups bearing Company’s marks or Company and University’s marks on one-hundred percent (100%) of the exterior cup surface. Company’s marks will be prominently displayed on all menu boards and all dispensing equipment at all food service/concession locations, and on all Beverage and Snack vending machines on Campus. Point-of-sale materials, including translites and pictorials on dispensing equipment, will be clearly visible to the purchasing public at all food service and concession locations on Campus.
Promotional Activities on Campus. The Vendor may request additional exposure opportunities on Campus, which shall be granted at the University’s discretion. Such opportunities may include Hey Day, new product launches, sampling, surveys, distribution of Premiums, or merchandise subject to Section 12.1 below, etc. Any requests of the Vendor under this Section shall be submitted through the Assistant Vice President for Auxiliary Services or such other person who is the head of University Auxiliary Services.
General Advertising. The Vendor agrees to provide equipment and other advertising materials that are necessary to properly merchandise the Beverages and Snacks, all of which shall be subject to the University’s reasonable review and approval. The University will cooperate with the Vendor to place advertising materials on Campus in order to feature the Beverages and Snacks and stimulate sales. The University reserves the right to reject any advertising that interferes with its operations, that is not consistent with the University’s subjective determination of the image and character of the University, or that causes potential safety concerns.
Equipment Requirements; Equipment Investment.
During the Term, Vendor will loan at no cost to University all Beverage and Snack dispensing equipment which is reasonably required, as mutually determined by Vendor and University, to dispense Beverages and Snacks at the Campus. The Vendor shall furnish and install new or like new, uniformly branded University-specified coolers, fountain units, vending machines, and such other equipment necessary for the sale and dispensing of the Beverages and Snacks at no charge to the University. All vending and cooler equipment shall be Energy Star rated, equipped with Vending Miser or equivalent devices, and approved by the University prior to delivery or installation. Throughout the Term, all equipment utilized by the Vendor must be and remain attractive, sanitary, safe, reliable, of a type approved by a recognized state or local health department or testing laboratory, consistent with industry standards and in compliance with all city, county, state, and federal regulations, all as determined from time-to-time by the University in its reasonable discretion. The Vendor agrees to place equipment only at the locations on Campus approved by the University.
The Bottler agrees to invest no less than $______ during the first year of this Agreement and no less than $________ during each year thereafter for the remainder of the Term in implementing the equipment requirements set forth in Section 7.1(a) above. The Vendor shall maintain records of its expenditures and operational transition information evidencing the Vendor’s compliance with this section and shall produce said information to the University upon request. On or before February 1 of each year of the Term, Bottler shall send to University a detailed account of where it has invested the amounts specified above for the previous year.
Within sixty (60) days following the Effective Date, the University shall provide to the Vendor a list of equipment that the University requires to be replaced. The Vendor and the University shall meet to discuss and agree upon the priority for replacement of all listed equipment.
Responsibility for Equipment.
Vendor Equipment. All equipment furnished by the Vendor to the University in connection with this Agreement shall remain the property of the Vendor. Expenses resulting from any damage, including acts of vandalism or accidents, shall be the responsibility of the Vendor. In the event that the Vendor’s equipment is damaged or vandalized frequently in a particular location on Campus, the Vendor may request that the University consent to the relocation of said equipment, and said consent shall not be unreasonably withheld. Should any equipment in use experience a malfunction that is not expected to be remedied within the time required by Section 7.3(a) below, the Vendor agrees to promptly deliver and install comparable replacement or temporary loaner equipment at no charge to the University to be utilized by the University until such equipment can be permanently replaced or repaired.
Property Damage. The Vendor shall be responsible for any property damage that results from the installation or removal of any equipment, and the Vendor shall reimburse the University if repairs to any University property are required. The Vendor shall be responsible for the proper custody and care of any University-owned property that is furnished for use in connection with the performance of this Agreement and shall reimburse the University for any loss or damage thereto.
(c) Fountain and Juice Equipment. Company will lease to University without charge during the Term the Company approved dispensing equipment reasonably necessary to enable University to dispense a quality fountain Beverage and a quality juice Beverage. Any equipment provided by Company under the Agreement will at all times remain the property of Company, and shall be subject to the terms and conditions of Company's standard lease agreement, except that no lease payment will be charged. The standard lease terms, attached hereto as Exhibit D, are hereby made a part of the Agreement. If there is a conflict between the terms and conditions of Company’s standard lease agreement and this Agreement, the terms and conditions of this Agreement shall govern.
To the extent that fountain Beverage or juice Beverage dispensing equipment leased from Company under this Agreement is located on premises that are owned or controlled by Dining Services or concessionaires of University, University and Company will provide notice to such concessionaires or third parties that the equipment is owned by Company and shall direct the concessionaires or third parties to honor the terms and conditions of the Lease.
(d) Bottle/Can Equipment. University agrees (i) it will execute documents evidencing Bottler’s ownership of the bottle/can equipment; (ii) upon request of Bottler, University will execute an agreement indicating Bottler’s ownership of the equipment, the form of which is attached hereto as Exhibit E, however, if any of the terms of such agreement are in conflict with the terms of this Agreement, this Agreement will control; (iii) the bottle/can equipment may not be removed from the Campus without Vendor’s written consent; and (iv) University will not encumber the bottle/can equipment in any manner or permit any attachment thereto except as authorized by Bottler for the equipment.
All equipment service will be provided during normal business hours. Vendor shall not be obligated to provide service hereunder during periods in which it is prevented from doing so due to strikes, civil disturbances, unavailability of parts, or other causes beyond the control of Vendor. Vendor shall not be liable for damages of any kind arising out of delays in rendering service, which delays are caused by the events specified in the immediately preceding sentence. The Vendor shall be responsible for preventive maintenance and remedial service for all of the equipment supplied by the Vendor, in accordance with the manufacturer’s recommendations and guidelines. A maintenance schedule, acceptable to the University for preventive maintenance, will be determined to provide optimum trouble-free service and to minimize downtime that diminishes sales and quality of service and will be provided to the Contract Administrator. The Vendor shall make available technical service personnel who shall respond to requests to replace or repair malfunctioning equipment. Unless otherwise provided by this Agreement or agreed to by the Parties, an appropriately trained technician shall be on site and working diligently to return malfunctioning equipment to normal operation within four (4) hours of service call for a given incident and will have the equipment back in service within twenty-four (24) hours of the service call.
At its discretion, the University may require replacement or upgrading of equipment that frequently malfunctions or exhibits excessive downtime. If, during the Term, any piece or type of equipment becomes outdated as to function or, because of the advent of a significantly improved technology, is no longer acceptable to the University in its reasonable judgment, the Vendor will address the University’s concerns and/or replace or update such equipment.
Duration and Scope of Equipment Obligations. The requirement to provide the equipment as described in this Article 7 shall continue throughout the Term and any agreed-upon extension. At the reasonable request of the University, the Vendor shall, within three (3) business days, move any equipment provided in connection with this Agreement to other locations on Campus designated by the University.
Retirement of Equipment. Vendor shall have a recycle/reuse/repurpose program in place for all equipment removed or retired from the Campus as it relates to this Agreement. Written verification of implementation shall be provided by Vendor upon request.
SPECIAL FOUNTAIN ISSUES
Service; Deliveries. The Company will service all fountain Beverage dispensing equipment on Campus at intervals necessary to keep each such fountain Beverage dispensing equipment fully operational and supplied with syrup and CO2 gas. Volumes may vary at each location. University shall use reasonable efforts to monitor performance of all Beverage fountains and lines, and inform Company of discovered hazardous conditions arising from the Beverage fountain and line performance. The Company agrees to maintain records of volumes and their trends and fluctuations in order to ensure appropriate deliveries to the locations on Campus with fountains to maintain adequate stock levels. These records will be made available to the University upon request.
The University will furnish space, water, and electricity necessary for the operation of fountain Beverage dispensing equipment. The Company will be responsible for making and maintaining the connections of the fountain Beverage dispensing equipment.
The Company will be required, at the inception and throughout the Term and any agreed-upon extension, to supply, install, service, and maintain all display and other equipment used to sell, dispense, or display fountain Beverages, at no cost to the University. All equipment used to sell, dispense, or display fountain Beverages must be new or like new and of the highest quality, and must remain of the highest quality for the entire Term and any agreed-upon extension. The Company shall furnish the University racks, CO2 handling components, and other equipment reasonably necessary at no cost to the University. Some areas may require self-contained refrigeration dispensers and stands. The selection of Beverages to be dispensed and the versatility of equipment required shall be determined by each Stakeholder Organization and the Company, based upon customer needs. Dispensing equipment shall have a secured locking mechanism. Equipment provided must be compatible with the existing equipment or must be an acceptable replacement agreed to by the Stakeholder Organization.
The Bottler shall supply portable pre-mix fountain service equipment for Campus events, as requested by the University.
All dispensers shall be equipped with locks and/or shut-off valves at no cost to the University. The dispensers shall be filtered with a stainless steel, vented, double check backflow valve. All dispensers shall be equipped with separate water supply shut-off.
The Company will supply and install necessary fountain syrup lines for the equipment in a manner that will not detract from the decor of the location of the equipment. The Company must coordinate and have approval of the Stakeholder Organization for placement. University shall use reasonable efforts to monitor performance of all fountain syrup lines and shall inform Company of discovered hazardous conditions arising from the fountain syrup line performance.
The Company will be responsible for installing or facilitating the installation of CO2 gas lines for CO2 tanks to dispensing equipment where such installation is necessary. The University will be responsible for providing passage through walls, ceilings, or other construction if required at installation sites. The University reserves the right to withhold approval of dispensing equipment installation, depending upon the total investment required. CO2 and bulk CO2 shall be purchased by the University’s food service and stadium concessions providers.
Fountain Beverage Dispensing Equipment Servicing. With respect to any and all University facilities providing multiple meals per day, repair of Fountain Beverage Dispensing equipment must occur before the next scheduled meal service if critical repairs are deemed necessary. Company will provide service that is at a minimum consistent with its national standards set forth below for serious problems or problems prohibiting proper use of fountain dispensing equipment for which service is required immediately. Company shall provide service within twelve (12) hours of the call being placed for problems that do not require same day service. Preventative maintenance service calls will be scheduled by mutual agreement of the Parties, but in any event within fourteen (14) days of a request for such service.
Trained Technicians. The Company shall provide appropriately trained technicians on-site during Athletics events in a number predetermined by the University and the Company, based on expected attendance, at least forty-eight (48) hours prior to the particular Athletics event.
Point-of-Sale Materials. All point-of-sale locations will require menu boards as needed. All menu boards will be provided to the University by request at no additional cost to the University. University and Contractor shall inspect all facilities upon award of the Agreement, and Contractor shall replace all menu boards deemed inadequate by University.
SPECIAL VENDING ISSUES
Beverage and Snack Vending; Vending Locations.
The Bottler, by and through its representatives, agents, subcontractors, or independent contractors, will be responsible for all product, equipment, service, and revenue capture for Beverage and Snack vending. In the event that University is not satisfied with any Subcontractor, then Bottler will be responsible for addressing University’s concerns or engaging another subcontractor reasonably acceptable to University.
The product mix offered in the snack vending machines will be subject to the University’s review and approval. With regard to certain machines on Campus where the University wishes to include an Athletics sponsor’s product, the Vendor shall be required to distribute such product as the University specifies.
The Bottler shall be responsible for any upgrading or expansion needs that may arise during the Term. So long as the total number of Vending Locations, as set forth on Exhibit B, does not decrease, the University reserves the right to add or delete any specific Vending Location from this Agreement or change the equipment necessary at any Vending Location as the need arises.
Machine Vending of Bottles. With the exception of Energy Drinks, which may be contained in cans, Beverage vending machines shall vend only polyethylene terephthalate (PET) or aluminum bottles with the capability of being re-capped, so as to minimize spills within Campus classrooms and facilities.
Debit Card Technology. The Bottler shall purchase, install, and maintain debit card readers as specified by University on all vending equipment that enables said vending equipment to accept bank debit and bank credit cards, as well as University-issued student cards. The Vending equipment technology will remain the property of the Bottler.
Equipment Identification for Issue Reporting. Each vending machine must be clearly identified with a number on its front so that reports of malfunctions can refer to a particular machine. In a manner that is acceptable to the University, each machine is to be clearly labeled, in the vicinity of the coin/bill acceptor, with the campus telephone number to report malfunctions and the University location at which to receive refunds when money is accepted and no Beverage or Snack or an unsatisfactory Beverage or snack is vended. Beverages and Snack Vending Equipment shall be kept reasonably full at all times with fresh items for sale. Written notification by University to Vendor of its failure to keep Snacks and Beverages fresh and re-supplied, on two (2) or more occasions in any seven (7) day period shall be a material breach of this Agreement.
Refunds. Refunds to the customer will be available through an on-site University location. The Bottler will reimburse the University for money lost in the Beverage vending machines. Reconciliation of refunds from the University and reimbursement to the refund account by the Bottler shall occur every two (2) weeks or as mutually determined in writing by Bottler and University. Vendor shall reimburse University for any labor expense incurred in placing stickers on vending equipment, manning any office for refunds, or for handling the refund process contemplated in this section 9.5. In the event that University is not satisfied with the refunding process at any point, Vendor shall meet with University and mutually determine a better method for handling the issue reporting and refund process.
All vending equipment must operate on 110-115 volts and must be U/L listed and approved. Vending machines must include coin mechanisms and bill acceptors that accept current U.S. coin and currency and must be promptly updated, as needed, to accept future U.S. coin and currency. All electrically operated machines shall be equipped with non-resettable cash metering devices and/or sales metering devices. The required capacity of each machine shall depend on the needs and requirements of each Vending Location.
The University will furnish space and electricity necessary for the operation of all vending equipment. The Bottler will be responsible for providing the necessary equipment and for maintaining the electronic communication access point to keep the vending equipment, including debit readers, fully functioning.
Throughout the Term, all vending machines must be in compliance with the then-current standards of the Americans with Disabilities Act.
Any parts of a vending machine that are broken, or noticeably scratched or dented are to be repaired or replaced to maintain a clean appearance and prevent vandalism.
The Bottler shall supply, install, fill, service, and maintain all vending equipment during the Term. The Bottler shall keep full service machines stocked so as to provide sufficient amounts of Beverages and Snacks dispensed in conformity with all applicable federal, state, and local laws. Bottler shall increase efforts on high-traffic days, such as home football games, to ensure that machines stay stocked and operational. The University shall have the final authority to require increased service levels to deal with unacceptable frequencies of Beverage and/or Snack “outages.”
The Bottler shall establish a recurring inspection and preventative maintenance program to ensure that vending machines remain in sound operating condition. Throughout the Term, the Bottler shall make periodic inspection visits with a University representative to evaluate machines for replacement or upgrade.
A log of calls reporting malfunctioning equipment and refund requests is to be kept by the Bottler showing the time and date the report is received and the time and date the problem is corrected. A copy of that log is to be accessible to the University and presented at the Annual Business Review. Service technicians shall be on-site within twenty-four (24) hours of a report of malfunction to begin repairs of vending equipment. Replacement equipment shall be provided if equipment is unable to be operational within three (3) business days.
Volume and Accounting Reporting.
The Bottler must maintain complete and accurate records of collections, meter, or counter readings and Beverages and Snacks stocked for each machine in accordance with industry accepted accounting practices.
The Bottler shall take cash receipts to its place of business where records must be maintained for each machine and each Vending Location. The Bottler is required to maintain accurate records of gross receipts and collections for each machine installed on Campus. Those records are to be made available for audit and inspection by the University upon request.
A monthly report showing beginning and ending meter readings from sales, cash, and card sales must be furnished to the University on or before the fifteenth (15th) day of the following month. The report must be sorted by Vending Location showing the gross receipts on each machine, the commission thereon, the total commission for each building, and the grand total for Campus operations. An electronic resortable copy of the report shall also be submitted, along with the hard-copy. Causes of abnormal revenues or meter readings are to be noted and explained. Losses incurred from the operation of vending equipment due to theft, fire, vandalism or other damage, unless such damage is as a result of the University’s gross negligence or willful misconduct, will be absorbed by the Bottler and are not to be factors in the computation of the University’s commissions.
[ROBOTIC CONVENIENCE STORE]. [Proposers should include covenants and any other proposed provisions / terms regarding University’s RFP request for ideas and proposals regarding a robotic convenience store. See RFP for description of what University is seeking.]
SPECIAL ATHLETICS ISSUES
Ancillary Athletics Concessions Issues. On or before April 30 of each year of the Term, the Vendor agrees to meet with the Senior Associate Athletics Director for External Affairs to discuss the enhancement by both Parties of Athletics concessions through the University’s purchase of equipment, changes to the infrastructure of Athletics facilities, customer service enhancements or capital expenditures (such as the University’s placement of new carts or for the provision of hawkers for specific Athletics events, and collectively, “Concessions Enhancements”). Vendor shall pay to University a sum equal to ___________ Dollars ($______) per year (“Concessions Enhancements Funds”) for this purpose. The Vendor agrees to pay such Concessions Enhancements Funds directly to Athletics on or before May 1 of each year during the Term.
Athletics Concessions Equipment. In addition to the Vendor’s other equipment obligations set forth in this Agreement, the Vendor shall ensure, throughout the Term and any agreed-upon extension, that equipment used in conjunction with Athletics concessions enables concessionaires to provide Beverages in as expeditious and efficient manner as any other college or professional athletics program in the country.
Packaging. The Vendor agrees to feature three (3) Athletics promotional campaigns per year on its can panels or product packaging, with distribution across the State of Alabama and Southwest Georgia. Each promotional campaign will be conducted in a manner that will reach the market for a minimum of fourteen (14) consecutive days through a maximum of thirty (30) consecutive days. The dates and content of the packaging promotional campaign shall be agreed to by the Parties.
National Championship Event. In the event that the University’s specified team below wins a National Championship during the Term, the Vendor shall pay an additional fee to the University (“National Championship Event Fee”) in the amounts stated below:
Men’s and Women’s Basketball
Baseball, Softball, and Gymnastics
In exchange for such National Championship Event Fee, the Vendor may, but shall not be required to, create and distribute a commemorative bottle or packaging program memorializing the team achievement and bearing a specially created mark. Additionally, the University and the Vendor may from time-to-time, but shall not be required to, create and distribute a commemorative bottle or packaging programs memorializing some other team or University anniversary or special event, whereupon the Vendor shall pay to the University an agreed-upon amount to help promote same.
Athletics Materials Management. The Vendor shall work with University’s athletics operations staff and Stakeholder Organizations to provide public-facing waste stations in a quantity that can provide comprehensive recycling coverage for Athletics’ venues at no additional cost to the University. The waste stations shall meet the requirements and style of the waste management program of the University.
BEVERAGE ORDERING AND DELIVERY
Orders. Orders of Beverages shall only be valid if made by the Contract Administrators or their expressly authorized representatives.
Scheduled routine deliveries and re-stocking by the Vendor on class days should be completed prior to 8:00 a.m. or commenced after 1:30 p.m. The University reserves the right to increase or decrease frequencies of deliveries as warranted by demand. A minimum of three (3) delivery days per week is required. Due to campus traffic conditions and loading dock limitations, deliveries will be difficult or impossible if made by tractor-trailer truck. The Vendor shall be responsible for any necessary modifications to its normal delivery scheme to account for this limitation.
Delivery schedules shall be coordinated by the Vendor with each Stakeholder Organization to ensure delivery at the requested time. In the event that deliveries are delayed due to abnormal weather conditions or other reasons, it is the responsibility of the Vendor to notify the affected Stakeholder Organization prior to the expected delivery time.
Each delivery shall be accompanied by an official delivery ticket showing the number assigned to this Agreement, a purchase order number and the quantity delivered for each item. Delivery tickets must be priced and extended with a grand total. Each delivery ticket will be presented to and signed by the individual authorized by the University to accept deliveries.
Stocking; Inventory. Bottler agrees to stock, clean, and face any displayed Beverages. Bottler will manage the inventory of Beverages and Snacks at each location.
Risk of Loss. All Beverages and Snacks shall be delivered F.O.B. destination.
Campus Access; Parking.
The Vendor is hereby granted a non-exclusive license for purposes of ingress and egress to and from the Campus over Campus roadways, including common use roadways. All use of such roadways shall be subject to any rules or regulations that have been established or that shall be established in the future by the University, the City of Auburn, Alabama, or Lee County, Alabama. Such rights of ingress and egress shall apply to the Vendor’s employees, guests, patrons, invitees, suppliers, and other authorized individuals. The rights of ingress and egress likewise apply to the transport of equipment, material, machinery, and other property used by the Vendor in the performance of its obligations under this Agreement.
Vehicles used by the Vendor on Campus for the delivery of Beverages or Snacks or for the completion of service on Campus must be clearly identifiable as those of the Vendor. The Vendor’s unmarked vehicles must be registered with University Parking Services. Unregistered, unmarked vehicles on Campus are subject to parking citations and/or towing. Parking regulations are strictly enforced by parking enforcement officers. Towing will be at the Vendor’s or the vehicle’s registered owner’s expense.
Anti-idling. No vendor vehicles shall be allowed to idle on University grounds more than three minutes, except in the following circumstances: (1) it is forced motionless because of traffic conditions or mechanical difficulties, (2) it is necessary to operate to ensure the health and/or safety of its occupants, (3) it is necessary to operate auxiliary equipment located in or on the vehicle, or (4) it is necessary to maintain communications with central operations.
Use of Marks. Subject to the written approval of the University, the Vendor is expected to promote the fact it is a corporate partner of the University. Such promotion means approved activity by the Vendor involving the presentation of University trademarks through advertising, publicity, or other means of exposure, in or on Premiums, point of purchase displays, print media, electronic media, or any other media, as limited by the University and the Multi-Media Rights Partner. The Vendor may request approval from the University to engage in additional promotional activities involving University trademarks (all uses of the word “trademark” or “marks” in this Article 12 shall be deemed to include trademarks, trade names, service marks, trade dress, and domain names). All Premiums used in any type of promotion activity that bear University trademarks must be approved by University, royalty bearing, and must be purchased from a vendor that has a premium license agreement in place with the University’s Office of Trademark Management and Licensing and/or the University’s designated licensing agent. The University conveys no Pass-Through Rights to the Vendor through this Agreement. This Agreement does not give any Party any interest in or the right to use the trademarks of another Party except as specifically authorized in this Agreement. Even if use of a Party's trademarks is specifically authorized, the trademarks remain solely that Party’s property, and no joint ownership can arise because of the other Party’s use under this Agreement.
12.2 The Company’s Marks. The University recognizes the value of the Company’s marks. The Company owns all right, title, and interest in and to the Company’s marks. The University shall act in no manner that is inconsistent with the Company’s ownership of the Company’s marks. The University will not file any application to register, in any jurisdiction, any of the Company’s marks (whether as a trademark, domain name, or otherwise) in connection with any beverage or other bottled, consumable liquid, in whole or in part, or any mark that is intentionally confusingly similar to any of the Company’s marks, at any time during the Term or thereafter. The University will not, during the Term or thereafter, attack title to or rights in the Company’s marks. Should Company grant written permission for the use of the Company’s marks by the University, the goodwill associated therewith shall inure to the benefit of the Company and such use shall (a) conform to Company’s policies, (b) be in strict accordance with any guidelines for the use of such marks as prescribed by Company, and (c) be only exact reproductions of the marks as supplied by the Company.
12.3 The University’s Marks.
During the Term, the University hereby grants to the Vendor a non-exclusive, limited, non-transferable License to use the University’s marks to promote the relationship between the Vendor and the University, specifically as stated in the Designations. All such use of the University’s marks by the Vendor shall conform to NCAA and SEC regulations. The Vendor shall submit to the University’s Office of Trademark Management and Licensing, and the University shall have the right to approve, all proposed uses of the University’s marks by the Vendor. The University shall not unreasonably withhold, condition or delay approval of such intended uses of the University’s marks. If the University does not approve/disapprove a request for approval in writing within twenty-one (21) days of receipt thereof, such materials shall be deemed approved. If the University disapproves any materials submitted by the Vendor, the University shall provide the Vendor with written reasons as to why such materials were disapproved. The Vendor acknowledges that the University’s disapproval of its use of the University’s marks shall be deemed reasonable if such use tends to shock, insult, or offend the general community standards of Auburn, Alabama.
The Vendor recognizes the value of the University’s marks. The University owns all right, title, and interest in and to the University’s marks, and the University has the right to grant the Vendor the license to use the University’s marks as set forth in this Agreement. The Vendor shall act in no way that is inconsistent with the University’s ownership of the University’s marks. The Vendor will not file any application to register, in any jurisdiction, any of the University’s marks (whether as a trademark, domain name, or otherwise), in whole or in part, or any mark that is confusingly similar to any of the University’s marks at any time during the Term or thereafter. The Vendor will not, during the Term or thereafter, attach title to or rights in the University’s marks. Use of the University’s marks by the Vendor and the goodwill associated therewith shall inure to the benefit of the University. All use of the University’s marks by the Vendor shall (a) conform to NCAA and SEC regulations, (b) be in strict accordance with any guidelines for the use of such marks as prescribed by the University, and (c) be only exact reproductions of the marks as supplied by the University.
12.4 Quality Control.
During the Term, the University shall cooperate with the Vendor to assure that the nature and quality of its use of the Company’s marks and the quality of its goods and services in connection with which the Company’s marks are used are consistent with the requirements of this Agreement. To that end, the University shall provide samples of its use of the Company’s marks to the Company upon the Company’s request and shall make reasonable efforts as may be requested by the Company to assure that the nature and quality of the University’s use of the Company’s marks and the level of quality of its goods and services provided in connection with the Company’s marks are consistent with and do not detract from the goodwill associated with the Company’s Marks.
During the Term, the Vendor shall cooperate with the University to assure that the nature and quality of its use of the University’s marks and the quality of its goods and services in connection with which the University’s marks are used are consistent with the requirements of this Agreement. To that end, the Vendor shall provide samples of its use of the University’s marks to the University upon the University’s reasonable request and shall make reasonable efforts as may be requested by the University to assure that the nature and quality of the Vendor’s use of the University’s marks and the level of quality of its goods and services provided in connection with the University’s marks are consistent with and do not detract from the goodwill associated with the University’s marks.
12.5 Equitable Relief. The Parties acknowledge that any use of the other Party’s intellectual property, other than in accordance with this Agreement, will cause irreparable damage to the other Party. Therefore, in the event of any such breach or threatened breach of this Article 12, the non-breaching Party will be entitled, in addition to and not in lieu of all other rights and remedies available at law or in equity, to seek specific relief, including, without limitation, an injunction enjoining any such breach or threatened breach, and costs included in connection therewith.
The Vendor shall employ only competent and satisfactory personnel and shall provide a sufficient number of employees to perform the services required under this Agreement efficiently and in a manner satisfactory to the University. If a Contract Administrator or designee notifies the Vendor in writing that any person employed by the Vendor is incompetent, disorderly or otherwise unsatisfactory, such person shall not again be employed in the execution of this Agreement without the written consent of the University. Employees of the Vendor handling cash shall be sufficiently bonded to cover potential theft. Vendor’s employees shall be suitable by training, appearance, and habits for working on Campus and should be clearly identified by appropriate uniform or other markings that would identify them as employees of the Vendor.
Any services supplied under this Agreement shall comply with all Federal Occupational Safety and Health Administration (OSHA) requirements and with all Alabama safety and health requirements, including those related to Workers’ Compensation.
13.3 It shall be the responsibility of the Vendor to have all concessionaires with Beverage and Snack Vending operations on Campus comply with all applicable provisions of the Agreement.
13.4 Vendor and all subcontractors shall offer their employees fair wages and safe working conditions.
ANNUAL BUSINESS REVIEW; AUDIT; REPORTING
Annual Business Review. Throughout the Term and any agreed-upon extension, the Vendor shall be required to have a team of appropriately authorized individuals present on Campus at least semi-annually to perform a review of the relationship among the Parties, as well as the Vendor’s performance of its obligations under this Agreement (the “Annual Business Review”). In connection with the Annual Business Review, the Vendor shall prepare a complete sales summary, showing the volume of Beverages, Snacks and any related products offered by Vendor for sale on Campus and through any additional retail and vending opportunities that are contractually or operationally affiliated with the University, as well as an audited profit and loss statement for operations at the University. Additionally, as part of the Annual Business Review, the Vendor shall provide a listing of all equipment in use on Campus and review the listing to make suggestions for any upgrades or replacements to ensure that all equipment remains of the highest quality.
Access to Records; Audit.
The Vendor shall maintain books, records, documents and other evidence and accounting procedures and practices sufficient to properly reflect all costs of whatever nature claimed to have been incurred and anticipated to be incurred in the performance of this Agreement. The Auburn University Board of Trustees, the State of Alabama, the Federal Government and their duly authorized representatives shall have access to any books, documents, papers and records of the Vendor that are related to this Agreement for the purposes of auditing, examination, taking excerpts and making transcripts. Such books and records shall be maintained by the Vendor for three (3) years from the date of the expiration of this Agreement unless a shorter period is authorized in writing.
The Vendor shall grant the University the right to access and audit all non-confidential information relating to this Agreement, through a designated auditor of the University’s choosing. All audits shall be conducted on Campus, and the University shall provide prior written notice to the Vendor of at least forty-eight (48) hours.
The Vendor shall be responsible for any audit discrepancies involving deviation from the terms of this Agreement and for any commitments or expenditures in excess of amounts authorized by the University.
Reporting. The Vendor will furnish the University with all requested daily, weekly, monthly and annual reports to verify pertinent financial information so requested. Separate and consolidated operational reports and other supporting data will be provided to the University for each Beverage and Snack Vending operation on Campus by the Vendor and/or any subcontractors.
Insurance. The Vendor shall, at its own expense, procure and maintain, without interruption during the entire term of this Agreement, insurance of the kinds and limits listed hereunder. Certificate(s) of insurance and an Additional Insured Endorsement issued by the contractor’s insurance carrier shall be furnished to Auburn before beginning work and shall name Auburn University, its Board of Trustees, Faculty, Staff, and Agents as Additional Insureds on the General Liability, Employers’ Liability, Automobile Liability and Umbrella Liability policies. The insurance coverages required under this contract are minimum insurance limits required and are not intended to limit the responsibility or liability of the Vendor.
General Liability Insurance. The Vendor shall obtain, at its own expense, and keep in effect during the Term and any agreed-upon extension, general liability insurance, written on an occurrence form. The contractual, product and completed operations liability combined single limit per occurrence shall not be less than Five Million Dollars ($5,000,000).
Workers’ Compensation. Workers’ Compensation insurance shall be written in accordance with statutory coverage required by the State of Alabama. A self-insurer must provide a certificate issued by the Alabama Department of Industrial Relations stating the contractor is qualified to pay its worker’s compensation claims. Employer’s Liability Insurance shall be written with minimum limits of $1,000,000 for each accident for Bodily Injury $1,000,000 for each employee for Bodily Injury by Disease.
Automobile Liability. Commercial Automobile Liability Insurance in the amount of Five Million Dollars ($5,000,000) Combined Single Limit shall be written to include coverage for bodily injury and property damage arising from ownership, maintenance or use of any and all owned, non-owned, leased, hired and employee non-owned automobiles.
15.5 Commercial Umbrella/Excess Liability Insurance. If a Commercial Umbrella/Excess Liability Insurance is used to provide excess coverage above the Commercial General Liability, Employer’s Liability, and Commercial Business Automobile Liability to satisfy the minimum limits set forth herein, the policy must be on an "occurrence" basis and must be a “Follow Form”.
Primary Coverage. Insurance carried by the Vendor under this Agreement shall be the primary coverage, and the University’s insurance shall be solely excess and for damages or losses for which the University is found to be legally responsible by a court of law in the State of Alabama.
Certificates of Insurance. As evidence of the insurance coverage required by this Agreement, the Vendor shall furnish Certificate(s) of Insurance to the University upon request, which certificates shall specify all of the parties who are “additional insureds” or “loss payees.” Insurance policies required under this Agreement shall be issued by an insurance company or insurance companies that are authorized to do business in the State of Alabama, which entities are acceptable to the University and have a minimum current A.M. Best rating of A. The Vendor shall be financially responsible for all deductibles, self-insured retentions and/or self-insurance associated with said insurance policies.
Notice of Cancellation or Change. Insurance policies meeting the requirements stated above shall be maintained for the duration of the Agreement. The Vendor shall not cancel, materially change, exhaust or fail to renew the insurance coverage(s) required by this Agreement without sixty (60) days’ written notice to the University. Any failure to comply with any insurance reporting provisions, except for the potential exhaustion of aggregate limits, shall not affect the coverage(s) provided to the University. Should any of the above described policies be canceled, non-renewed, changed or allowed to lapse for any reason before the expiration date thereof, notice shall be delivered to University in accordance with the policy provisions. Renewal certificates shall be sent to University ten (10) days prior to any expiration date of coverage.
Subcontractors. The Vendor shall ensure that any subcontractors comply with insurance requirements of this Agreement. The University reserves the right to obtain insurance certificates from subcontractors at any time during the Term.
INDEMNIFICATION; RESPONSIBILITY FOR DAMAGES
Company Obligations. Company agrees to defend, indemnify, and hold harmless University and its Board of Trustees, Faculty, Staff, and Agents, and Bottler and each of its respective officers, directors, employees, and agents from and against all claims, suits, liabilities, costs, and expenses (including reasonable attorneys’ fees and expenses) related to (i) Company’s material breach of this Agreement, or (ii) the injury or death of any person, or the loss of or damage to any property, arising from the negligence of Company, or its employees or agents (including Subcontractors) in the course of their duties to Company.
Bottler Obligations. Bottler agrees to defend, indemnify, and hold harmless each of University and its Board of Trustees, Faculty, Staff, and Agents, and Company and each of its respective officers, directors, employees, and agents from and against all claims, suits, liabilities, costs, and expenses (including reasonable attorneys’ fees and expenses) related to (i) Bottler’s material breach of this Agreement, or (ii) the injury or death of any person, or the loss of or damage to any property, arising from the negligence of Bottler, or its employees or agents (including Subcontractors) in the course of their duties to Bottler.
16.3 Limitation on Obligations. No Party has any obligation to indemnify, defend, or hold another Party harmless for any claims, suits, liabilities, costs, or expenses to the extent that they are caused by the acts, omissions or negligence or willful misconduct of the Party seeking indemnification.
16.4 Control of Defense. The Vendor shall have control of the defense and settlement of any claim that is subject to Section 16.1 or 16.2; however, neither the Vendor nor any attorney engaged by the Vendor shall defend the claim in the name of the State of Alabama or any instrumentality of the State of Alabama, nor purport to act as legal representative of the State of Alabama or any of its instrumentalities, without first receiving from the University, in a form and manner determined appropriate by the University, authority to act as legal counsel for the State of Alabama, nor shall the Vendor settle any claim on behalf of the State of Alabama without the approval of the University. The State of Alabama may, at its election and expense, assume its own defense and settlement in the event that the State of Alabama determines that the Vendor is prohibited from defending the State of Alabama; or is not adequately defending the State of Alabama’s interests; or that an important governmental principle is at issue, and the State of Alabama desires to assume its own defense.