Core Laboratories Terms & Conditions

By clicking “Accept”, Recipient agrees to the terms and conditions set forth herein and to UT MD Anderson providing the services (the “Work”) and pricing outlined in the related quote in iLabs (the “Quote”) to Recipient (these terms and conditions and the Quote are, collectively, this “Agreement”), effective as of the date hereof (the “Effective Date”).

“UT MD Anderson” means The University of Texas M. D. Anderson Cancer Center, an institution of higher education and one of the institutions of The University of Texas System (“System”).  “Recipient” means the recipient of the Work as identified in the Quote.  UT MD Anderson and Recipient may each be referred to herein as a “Party” and collectively as the “Parties.”

I.        TERMINATION: Either Party may terminate this Agreement and the Work at any time and for any reason whatsoever upon thirty (30) days’ prior written notice to the other Party.  Notwithstanding anything to the contrary herein, UT MD Anderson will have the right to terminate this Agreement immediately if at any time UT MD Anderson reasonably believes, in its sole and absolute discretion, that the Work or Recipient’s use of the Work, does not or will not comply with any Laws.  The Party terminating this Agreement will send the other Party a “Notice of Termination” which will specify the basis for termination and the effective date of the termination (“Termination Date”).  Neither Party hereto shall by the termination of this Agreement be relieved of its respective obligation and liabilities in any way arising out of or related to the Work performed prior to the Termination Date, including all reasonable expenses incurred by UT MD Anderson.

II.        CONSIDERATION AND INVOICING:  Recipient will compensate UT MD Anderson for the Work in accordance with the fee schedule set forth on the Quote.  Recipient shall pay UT MD Anderson within thirty (30) days after the date of each invoice.  Recipient agrees that from each invoice due date until paid such amount shall bear interest at a rate not in excess of the lesser of (i) the “Prime Rate” published in the Wall Street Journal, from time to time, plus one percent (1%), or (ii) the maximum rate permitted by law, and Recipient shall pay all reasonable attorney fees and costs of UT MD Anderson in enforcing collection of such amounts owing under this Agreement.

III.        REPRESENTATIONS AND WARRANTIES:

A.     Recipient represents, warrants, covenants, and agrees that:

1. there are no obligations, commitments, third party rights, or impediments of any kind that will limit or prevent Recipient’s performance under this Agreement or UT MD Anderson’s use of the Materials.
2. all persons performing on behalf of Recipient under this Agreement are duly registered and/or licensed under the laws, rules, and regulations of any authority having jurisdiction (collectively, “Governmental Authorities”).
3. Recipient is duly organized, validly existing, and in good standing under the laws of the State of Texas, or is a foreign entity duly authorized and in good standing to conduct business in the State of Texas, and Recipient has all necessary power and has received all necessary approvals to execute and deliver this Agreement, and the individual executing this Agreement on behalf of Recipient has been duly authorized to act for and bind Recipient.
4. the execution and delivery of this Agreement by Recipient, any product, materials, samples, specimens, data, technology, or information provided by or on behalf of Recipient (collectively, “Materials”), and Recipient’s or any intended user’s use thereof shall not infringe or misappropriate the intellectual property rights of any third party, or otherwise conflict with the rights of any third party.
5. Recipient will notify UT MD Anderson in writing within thirty (30) days of any changes in facts or circumstances that render any of Recipient’s representations and warranties under this Section incorrect.

B.     MD Anderson represents and warrants that:

1. System was established by the Texas Constitution in 1876 and currently consists of multiple academic universities and health institutions, including UT MD Anderson, and the Board of Regents of The University of Texas System (the “Board”) is the governing body for System.
2. UT MD Anderson has all the requisite authority to enter into this Agreement and perform its obligations hereunder.
3. the execution and delivery of this Agreement does not, and consummation of the transactions contemplated herein will not, violate any of the provisions of UT MD Anderson’s organizational documents, any agreements pursuant to which UT MD Anderson or its property is bound, or, to its knowledge, any Laws.

IV.        COVENANTS:

A.     Compliance with Laws, Regulations, and Policies:

1. Compliance with Applicable Law:  Each of UT MD Anderson and Recipient is aware of, is fully informed about, and is in full compliance with its obligations under all applicable laws, rules, and regulations.  Recipient warrants, represents, covenants, and agrees that Recipient has all permits, licenses, and approvals required for Recipient to receive the Work and to provide the Materials to UT MD Anderson, and Recipient will otherwise comply with all laws, rules, regulations, ordinances, judgments, orders, and other official acts of all Governmental Authorities that are now or may, in the future, become applicable to Recipient, Recipient’s business, equipment, and personnel engaged in Recipient’s business, Recipient’s receipt of the Work, or Recipient’s performance under this Agreement, or arising out of or incident to such performance (collectively, “Laws”).
2. HIPAA:  UT MD Anderson and Recipient will cooperate fully in meeting any obligations imposed upon UT MD Anderson or Recipient by any Governmental Authority with respect to the Work performed under the terms of this Agreement.  This obligation will specifically include, but not be limited to, compliance with the Health Insurance Portability and Accountability Act (“HIPAA”).  Recipient warrants, represents, covenants, and agrees that all Materials provided by Recipient to UT MD Anderson in connection with the Work to be performed shall be de‑identified and aggregated so as to conceal Protected Health Information (“PHI”), as that term is defined in HIPAA.
3. Anti‑Bribery:  Recipient has neither given, offered to give, and has no intention to give at any time hereafter, any economic opportunity, future employment, gift, loan, gratuity, special discount, trip, favor, or service to a public servant in connection with this Agreement.
4. Anti‑Kickback:  Recipient affirms that: (a) Recipient is not a party to any agreement with UT MD Anderson whereby it has licensed from UT MD Anderson any technology, invention, or other intellectual property that relates to or is used with any goods or services being acquired by UT MD Anderson hereunder; and (b) as a result of the sale to UT MD Anderson of the goods or services hereunder, Recipient will not owe, directly or indirectly, any royalties, fees, or other consideration of any kind to UT MD Anderson or any employee of UT MD Anderson under the terms of any license agreement with UT MD Anderson.  Recipient will advise UT MD Anderson in writing of any change in status with respect to the foregoing subsections (a)‑(b), by sending written notice within ten (10) days of such status change to: LegalNotice@mdanderson.org.
5. Federal Healthcare Requirements:  Recipient warrants, represents, covenants, and agrees that: (a) Recipient is not excluded from participation under any state or federal health care program, as defined in 42 U.S.C. §1320a‑7b(f), or listed in the U.S. System for Award Management’s (“SAM”) List of Parties Excluded From Federal Procurement or Non‑Procurement Programs, or the United States Office of Inspector General’s List of Excluded Individuals/Entities (“LEIE”); and (b) no final adverse action, as such term is defined under 42 U.S.C. Section 1320a‑7e(g), has occurred or is pending or threatened against Recipient (collectively, “Excluded/Adverse Actions”).  Recipient shall notify UT MD Anderson of any Excluded/Adverse Actions or any basis therefore within two (2) days of Recipient’s learning of any such Excluded/Adverse Action or any basis therefore.  If Recipient is excluded from a state or federal health care program, UT MD Anderson may, in addition to any other remedies it may have, immediately terminate this Agreement.
6. UT MD Anderson Policies; Conflicts of Interest:
   1. If Recipient accesses UT MD Anderson’s campus, other facilities, or network, Recipient agrees to abide by all applicable UT MD Anderson policies, including, without limitation, UT MD Anderson policies related to environmental quality, safety, fire prevention, noise, information security, and architectural barriers issued by UT MD Anderson’s Department of Environmental Health and Safety and UT MD Anderson policies that restrict the use of alcohol or tobacco on UT MD Anderson’s campus.
   2. Recipient agrees to abide by UT MD Anderson’s Ethics Policy, Conflicts of Interest Policy, and Standards of Conduct Guide (which are available at https://www.mdanderson.org/about-md-anderson/business-legal/doing-business/vendors-and-suppliers.html and at https://www.mdanderson.org/about-md-anderson/business-legal/conflict-of-interest.html) and applicable state ethics laws and rules available at www.utsystem.edu/offices/systemwide-compliance/ethics.  Neither Recipient nor its employees, agents, representatives, or subcontractors will assist or cause UT MD Anderson employees to violate UT MD Anderson’s Ethics Policy, Conflicts of Interest Policy, Standards of Conduct Guide, or applicable state ethics laws or rules.  Recipient represents and warrants that no member of the Board has a direct or indirect financial interest in the transaction that is the subject of this Agreement.  Recipient affirms that: (1) no relationship (whether by blood, marriage, business association, capital funding agreement, or by any other kinship or connection) exists between Recipient and an employee of UT MD Anderson; and (2) Recipient has not been an employee of UT MD Anderson within the twelve (12) month period immediately prior to the Effective Date; or (3) in the event such a relationship does exist, full written disclosure of the relationship has been made by Recipient to UT MD Anderson prior to the Effective Date.  Recipient understands that all such disclosures will be subject to administrative review and approval by UT MD Anderson prior to the Effective Date.  Subsection (2) of this subsection does not prohibit UT MD Anderson from entering into a contract with a corporation, firm, or other business entity that employs a former or retired employee of UT MD Anderson within twelve (12) months of the employee’s leaving UT MD Anderson, provided that the former or retired employee does not perform services on projects for the corporation, firm, or other business entity that the employee worked on while employed by UT MD Anderson.

B.     RECIPIENT ACKNOWLEDGES AND AGREES THAT THE WORK IS TO BE USED FOR RESEARCH PURPOSES ONLY AND NOT IN ANY DIAGNOSTIC OR TREATMENT PROCEDURES.  UT MD ANDERSON HAS NOT MADE AND DOES NOT MAKE ANY WARRANTY OR REPRESENTATION WHATSOEVER, EITHER EXPRESS OR IMPLIED, AS TO THE FITNESS, CONDITION, MERCHANTABILITY, DESIGN, OR OPERATION OF THE WORK, THEIR FITNESS FOR ANY PARTICULAR PURPOSE, THE QUALITY OR CAPACITY OF THE WORK, OR WORKMANSHIP IN THE WORK, NOR ANY OTHER REPRESENTATION OR WARRANTY WHATSOEVER; RECIPIENT ASSUMES ALL RISK AND LIABILITY RESULTING FROM THE USE OF THE WORK, INCLUDING RISKS OF DAMAGES, WHETHER USED SINGLY OR IN COMBINATION WITH OTHER PRODUCTS, MATERIALS, OR PERSONAL PROPERTY.

C.     IN NO EVENT SHALL UT MD ANDERSON BE LIABLE FOR ANY LOSS, CLAIM, DAMAGE, OR LIABILITY, OF WHATSOEVER KIND OR NATURE, REGARDLESS OF THE LEGAL THEORY ASSERTED (INCLUDING, WITHOUT LIMITATION, BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR ANY TORT CLAIM), WHICH MAY ARISE FROM OR IN CONNECTION WITH THIS AGREEMENT OR THE USE, HANDLING, OR STORAGE OF THE WORK.  NOTWITHSTANDING ANY OTHER PROVISION CONTAINED HEREIN, RECIPIENT HEREBY RELEASES UT MD ANDERSON, SYSTEM, THEIR REGENTS, OFFICERS, AGENTS, AND EMPLOYEES FROM ANY AND ALL LIABILITIES, LOSSES, CLAIMS, OR DAMAGES INCURRED IN CONNECTION WITH THE WORK, THE MATERIALS, AND THIS AGREEMENT.

D.     NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN AND SUBJECT TO THE STATUTORY DUTIES OF THE TEXAS ATTORNEY GENERAL, RECIPIENT SHALL INDEMNIFY, DEFEND, PROTECT, AND HOLD HARMLESS UT MD ANDERSON, SYSTEM, THEIR REGENTS, OFFICERS, AGENTS, AND EMPLOYEES FROM AND AGAINST ANY LIABILITY, INCLUDING, BUT NOT LIMITED TO, ANY AND ALL LOSSES, CLAIMS, FINES, PENALTIES, DAMAGES OF EVERY KIND AND CHARACTER, MONETARY LOSSES, PROPERTY DAMAGE (INCLUDING DAMAGE TO AND COSTS OF ENVIRONMENTAL REMEDIATION), BODILY INJURY, ILLNESS OR DEATH, ALL EXPENSES OF LITIGATION, COURT COSTS, AND ATTORNEYS’ FEES INCURRED IN CONNECTION WITH UT MD ANDERSON’S RECEIPT AND HANDLING OF ANY MATERIALS AND WITH THE WORK.  IF RECIPIENT OR ITS REPRESENTATIVES VISIT OR ACCESS ANY PREMISES OWNED, LEASED, OR OPERATED BY UT MD ANDERSON, RECIPIENT (ON BEHALF OF RECIPIENT AND ITS REPRESENTATIVES) HEREBY (i) AGREES TO ASSUME ALL LIABILITY, RISK, AND EXPENSE ASSOCIATED THEREWITH, AND (ii) WAIVES, RELEASES, AND HOLDS HARMLESS UT MD ANDERSON FROM ALL CLAIMS, LOSSES, DAMAGES, AND EXPENSES, OF WHATEVER KIND, INCLUDING, BUT NOT LIMITED TO, DEATH, PERSONAL INJURY, AND PROPERTY DAMAGE, ARISING OUT OF OR RELATED TO SUCH VISIT OR ACCESS, EXCEPT TO THE EXTENT CAUSED BY UT MD ANDERSON’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.

E.     Work Transport and Courier Service:  Recipient shall be responsible for transporting all Work from UT MD Anderson to any Recipient facility at Recipient’s sole cost and expense.  UT MD Anderson will not be responsible for any transportation costs, materials, or otherwise.

F.     Materials:  If included in the Work, the Materials are considered the proprietary property of Recipient, and Recipient has all rights necessary to allow UT MD Anderson to use the Materials to perform the Work.  When Recipient provides Materials to UT MD Anderson, Recipient will simultaneously provide to UT MD Anderson a material transfer sheet along with current, correct, and complete Material Safety Data Sheets (“MSD Sheets”), or, if an MSD Sheet is not applicable, then a safety summary sheet that outlines the storage and handling requirements and other characteristics with respect to any Materials that can be reasonably hazardous in nature (i.e., corrosive, toxic, ignitable, etc.) in order for UT MD Anderson to safely and properly store and handle such Materials.  UT MD Anderson reserves the right to refuse any Materials and not perform the Work related to such Materials if UT MD Anderson reasonably determines that it does not have complete and correct information as required by this Section.

G.     Confidentiality:  During the term of this Agreement, neither Party will at any time, except as required to perform the Work or as authorized in writing by the Party disclosing information (“Disclosing Party”), supply, disclose, use, or otherwise permit access to any information, in whole or in part, that the other Party (“Receiving Party”) may acquire by reason of its performance under this Agreement and that concerns or in any way relates to the Disclosing Party, its affiliates, and their respective regents, directors, officers, employees, or agents, including, without limitation, any information, data, or records pertaining to UT MD Anderson’s faculty, staff, patients, business, or financial affairs (“Confidential Information”).  The obligations in this Section shall not apply to any Confidential Information that (i) is rightfully already in the Receiving Party’s possession at the time of disclosure by Disclosing Party, (ii) is or later becomes part of the public domain through no fault of Receiving Party, (iii) is received from a third party having no obligations of confidentiality to Disclosing Party, (iv) is independently developed by Receiving Party without use of the Confidential Information, or (v) is required by law to be disclosed, provided that (a) Receiving Party provides Disclosing Party prompt written notice before any such disclosure so that it may seek a protective order or other appropriate remedy, and (b) Receiving Party complies with any such protective order (or equivalent) imposed on such disclosure.  In the event that a protective order or other remedy is not obtained, Receiving Party shall furnish only that portion of the Confidential Information that is legally required to be disclosed.  UT MD Anderson will have the right to audit and otherwise verify the security of Confidential Information in the possession of or being managed by Recipient.  Within ten (10) Business Days after the termination of this Agreement or the request of UT MD Anderson, Recipient will return or destroy all Confidential Information.  “Business Day” means any weekday except a weekday on which a national or Texas state holiday occurs.  Upon request, Receiving Party shall provide written confirmation, signed by an officer or other authorized representative of Receiving Party, that all such Confidential Information has been destroyed or deleted as required herein.  Notwithstanding anything to the contrary herein, (A) Receiving Party shall be permitted to retain one (1) copy of any Confidential Information for legal or regulatory compliance purposes, and (B) Receiving Party shall not be required to alter or destroy backup tapes or other media containing Confidential Information made in the ordinary course of business pursuant to automated archival processes; provided, however, that any Confidential Information retained shall be kept confidential subject to the confidentiality obligations set forth herein.  Without prejudice to the rights and remedies otherwise available to the Parties under this Agreement, the Parties shall be entitled to equitable relief by way of injunction if the other Party breaches or threatens to breach any of the provisions of this Section, without the necessity of posting bond or other security.  The provisions of this Section shall expressly survive the termination or expiration of this Agreement for one (1) year.

H.     Public Information:  UT MD Anderson strictly adheres to all statutes, court decisions, and the opinions of the Texas Attorney General with respect to disclosure of public information under the Texas Public Information Act (“TPIA”), Chapter 552, Texas Government Code.  In accordance with §§552.002 and 2252.907, Texas Government Code, and at no charge to UT MD Anderson, Recipient will make any information created or exchanged with UT MD Anderson pursuant to this Agreement (and not otherwise exempt from disclosure under TPIA) available in a format reasonably requested by UT MD Anderson that is accessible by the public.

I.      Publicity:  Recipient will not state or imply that UT MD Anderson endorses any of Recipient’s products or services.  All materials utilizing the name, trademarks, service marks, or symbols of UT MD Anderson, System, or The University of Texas for any purpose, including, but not limited to, the use in advertising, marketing, and sales promotion materials or any other materials or mediums (such as the internet, domain names, or URL addresses), must be submitted to UT MD Anderson’s Public Relations team for prior written approval at the following email address: PublicRelations@mdanderson.org, or to such other person or contact as indicated by UT MD Anderson in writing.

J.      Insurance:

1. Recipient Insurance:  During the term of this Agreement, Recipient will carry commercial general liability insurance and business auto liability insurance in amounts of not less than $1,000,000 per occurrence with companies authorized to conduct the business of insurance in the State of Texas.  The required policies will (a) be issued on a form that insures Recipient’s liability for bodily injury (including death), property damage, personal, and advertising injury and (b) be primary and non‑contributory.
2. MD Anderson Insurance:  UT MD Anderson is a self‑insured agency of the State of Texas.  UT MD Anderson will maintain professional liability insurance coverage for medical staff physicians pursuant to The University of Texas System Professional Medical Liability Benefit Plan as authorized by Chapter 59 of the Texas Education Code.  Liability for the tortious conduct of UT MD Anderson employees and agents (other than medical liability of medical staff physicians) or for injuries caused by conditions of tangible state property is provided by the provisions of the Texas Tort Claims Act (Texas Civil Practice and Remedies Code, Chapters 101, 104, and 108).  UT MD Anderson will provide Workers’ Compensation Insurance coverage for employees of UT MD Anderson as mandated by, and in compliance with, the provisions of the Texas Labor Code, Chapter 503.  UT MD Anderson will carry no insurance other than as set forth in this Section.

K.     Ownership of Intellectual Property:

1. All deliverables, results, and data generated by UT MD Anderson, whether patentable or not, in the course of performing the Work hereunder (including, without limitation, all intellectual property therein) shall be owned by Recipient.
2. Notwithstanding the foregoing, UT MD Anderson shall own all of its processes and procedures in performing the Work, including any improvements or modifications in and to such processes and procedures arising in the course of performing the Work, and all intellectual property therein (“UT MD Anderson IP”), and nothing in this Agreement shall result in a transfer of ownership of any such UT MD Anderson IP.

L.     Referrals:  It is understood and agreed by the Parties that: (i) there is no agreement hereunder that either Party refer business to the other Party or any of its affiliates; (ii) no part of the Work provided or payments made hereunder are intended or should be construed to be in exchange for referrals or arranging referrals; and (iii) payments hereunder represent fair market value determined by the Parties through good faith, arms‑length bargaining.

M.    UT MD Anderson Campus Visits/Network Access:  If Recipient Personnel enter UT MD Anderson’s campus or other facilities, have direct contact with UT MD Anderson patients or laboratory animals, or have access to UT MD Anderson’s network, the requirements set forth below in subsections (A) and (B) will apply.  “Recipient Personnel” is any individual who is compensated by Recipient or by a subcontractor engaged by Recipient and may include consultants, service vendor employees, construction workers, and temporary personnel needed for staff augmentation.

Recipient certifies that no Recipient Personnel will have direct contact with any UT MD Anderson patients or access to UT MD Anderson patient “protected health information” (as defined in 45 C.F.R. §160.103 (as such provision is currently drafted and as it is subsequently updated, amended, or revised)).

1. Drug Testing Requirements:  Recipient will ensure that all Recipient Personnel have tested negative on a five (5) panel drug test.  The test must include the following: (a) Amphetamines; (b) Cocaine; (c) Opiates (2000 ng/ml); (d) PCP; and (e) THC.
2. Criminal Background Checks:  Each Recipient Personnel will be an employee of Recipient or an employee of a subcontractor engaged by Recipient.  Recipient is responsible for all Recipient Personnel under this Agreement.  Recipient will have the following criminal background checks and screenings performed on Recipient Personnel: (a) Positive Identification Check – Social Security Number Trace, Maiden and Alias Name Search; (b) Criminal Record Search – County, Statewide, and Nationwide Level (past seven (7) years); (c) Employment Verification (all previous employers for past seven (7) years); and (d) Sex Offender Registry Search.  Recipient will maintain all documentation, including the results of any background checks, during the term of this Agreement and will provide The University of Texas Police Department investigators copies of such documentation upon request.  Recipient will ensure that all Recipient Personnel do not have a felony conviction or convictions of theft, embezzlement, fraud, or property crime offenses of any grade, or a history of criminal conduct and that all Recipient Personnel otherwise comply with UT MD Anderson’s Criminal and Personal Background Check Policy (ADM0312).  Upon request, Recipient will provide UT MD Anderson a letter signed by an authorized officer of Recipient that certifies compliance with this Section.  Recipient should send any questions regarding investigations to The University of Texas Police at Houston at UTPD-SSR@mdanderson.org.

N.     Co‑authorship: In the event that the Work, or any deliverables, results, or data derived from the Work, is published in any journal, publication, or other medium, UT MD Anderson and UT MD Anderson employees who perform the Work shall each be identified as co‑authors for the Work performed in the initial publication of that Work.

V.        GENERAL PROVISIONS:

A.     Entire Agreement:  This Agreement is the only agreement between the Parties with regard to the subject matter hereof.  This Agreement supersedes any prior agreements or understandings, whether written or oral, between the Parties with respect to the Work.  No course of prior dealings, no usage of trade, and no course of performance will be used to modify, supplement, or explain any terms used in this Agreement.  In the event of any conflict between the terms of this Agreement and any other document constituting part of this Agreement, the terms of this Agreement will control and govern.  This Agreement completely supplants, replaces, and overrides all other terms and conditions or agreements, written or oral, including, but not limited to, any purchase orders issued by Recipient, concerning Recipient’s performance under this Agreement (“External Terms”).  External Terms are null and void and will have no effect under this Agreement, even if UT MD Anderson or its employees, contractors, or agents express assent or agreement to External Terms.  External Terms include any shrinkwrap, clickwrap, browsewrap, web‑based terms and conditions of use (including hyperlinks), and any other terms and conditions displayed in any format that UT MD Anderson or its employees, contractors, or agents are required to accept or agree to before or in the course of performance under this Agreement.

B.     Amendment:  No modification, alteration, waiver, or supplement of this Agreement will be effective unless it is set forth in a written instrument that is signed by all Parties.

C.     Independent Contractor:  UT MD Anderson is an independent contractor with respect to the performance of all Work, and neither UT MD Anderson nor anyone employed by UT MD Anderson will be deemed for any purpose to be the employee, agent, servant, or representative of Recipient in the performance of any Work or any part thereof in any manner dealt with herein.  Recipient will have no direction or control of UT MD Anderson or its employees and agents.  Recipient will not represent itself to be an agent or representative of UT MD Anderson or System or the State of Texas.

D.     Assignment:  No rights and privileges granted to any Party under this Agreement may be transferred or assigned without obtaining the prior written consent of the other Party.  The foregoing prohibition will also apply to any change in control of Recipient.  Any attempt to transfer or assign any rights or privileges under this Agreement without having first obtained written consent from the other Party will be null and void and will entitle the other Party to immediately terminate this Agreement.  Notwithstanding anything to the contrary herein, any assignment of this Agreement shall not relieve the assigning Party of its obligations hereunder.

E.     Severability:  If any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable, this Agreement shall be deemed to be amended to the extent necessary to make such provision enforceable, or, if necessary, this Agreement shall be deemed to be amended to delete the unenforceable provision or portion thereof.  In the event any provision is deleted or amended, the remaining provisions shall remain in full force and effect.

F.     Non‑Waiver of Defaults:  Failure of any Party to declare any default by any other Party immediately upon occurrence thereof, or delay by any Party in taking any action in connection therewith, will not waive such default or a potential remedy for such default.

G.     Force Majeure:  Except for the duty to make payments when due and any indemnification provisions under this Agreement, neither Party will be liable or responsible to the other for any loss or damage or for any delays or failure to perform due to causes beyond its reasonable control, including, but not limited to, acts of God, employee strikes, epidemics, pandemics, public health emergencies, war, riots, flood, fire, sabotage, or any other circumstances of like character.

H.     Notices:  Any notice required or permitted to be sent under this Agreement will be (i) delivered by hand, or (ii) mailed by a nationally recognized overnight courier service (delivery receipt requested) with charges paid by the dispatching Party, or (iii) mailed by registered or certified mail, return receipt requested, or (iv) sent via email (to the extent an email address is set forth below), to Recipient or to UT MD Anderson, as the case may be, at the respective notice addresses identified in this Section.  Notice so mailed will be deemed effective (a) upon hand delivery, (b) on the date of delivery by a nationally recognized overnight courier service, (c) on the third (3rd) day following the date of deposit into the United States mail, or (d) on the date the email is sent (or the next Business Day if sent (x) after 5:00 p.m. Central Time on a Business Day or (y) on a non‑Business Day).

If to UT MD Anderson, to:

The University of Texas M. D. Anderson Cancer Center
Division of CCSG & Extramural Research Development
Attention:  Director, Administration & Finance
1515 Holcombe Blvd.
Unit 1439
Houston, Texas 77030
Email:  CCSG@mdanderson.org

With a copy to:

The University of Texas M. D. Anderson Cancer Center
Legal Services
Attention:  Chief Legal Officer
Email:  LegalNotice@mdanderson.org

If to Recipient, to: Recipient’s contact information in the Quote.

A Party may change its notice address(es) set forth in this Section by providing written notice to the other Party in accordance with this Section.

I.      Taxes:  UT MD Anderson is a tax‑exempt State of Texas agency and an institution of higher education.  Notwithstanding its exemption from certain state and federal taxes, UT MD Anderson will be responsible for any taxes it may be liable for and from which UT MD Anderson is not exempt.  Recipient will be responsible for any and all taxes due under this Agreement.  Should any taxes be due but not charged by UT MD Anderson to Recipient for any goods or services under this Agreement, the prices for such goods and/or services will be adjusted upwards to add such taxes, and Recipient will indemnify UT MD Anderson for all such tax liabilities and any related costs and/or penalties.

J.      Counterparts; Facsimile Signature:  This Agreement may be executed in any number of counterparts, each of which will for all purposes be deemed an original of this Agreement, but all of which together will constitute one and the same document.  This Agreement also may be evidenced by facsimile signature or by email delivery of a “.pdf” format data file, and facsimile or “.pdf” signature page will be deemed to be an original signature, or may be signed by electronic means, including, but not limited to, DocuSign, and shall be valid and binding on the Parties.

K.     Survival:  Expiration or termination of this Agreement will not affect any right or obligation that either Party may have accrued prior to, or that expressly survives, the expiration or termination of this Agreement.

L.     Governing Law and Venue:  This Agreement will be construed under and in accordance with the laws of the State of Texas without reference to its conflicts of law provisions, and all obligations of the Parties created under this Agreement are performable in Harris County, Texas.  Subject to the sovereign immunity of the State of Texas, any lawsuit brought against UT MD Anderson under this Agreement may only be filed in the State District Court in Harris County, Texas.

M.    Dispute Resolution:  To the extent that Chapter 2260, Texas Government Code, as it may be amended from time to time (“Chapter 2260”), is applicable to this Agreement and is not preempted by other applicable law, the dispute resolution process provided for in Chapter 2260 and the related rules adopted by the Texas Attorney General pursuant to Chapter 2260 will be used by UT MD Anderson and Recipient to attempt to resolve any claim for breach of contract made by Recipient that cannot be resolved in the ordinary course of business.

N.     Loss of Funding:  Performance by UT MD Anderson under this Agreement may be dependent upon the appropriation and allotment of funds by the Texas State Legislature (the “Legislature”) and/or allocation of funds by the Board.  If the Legislature fails to appropriate or allot the necessary funds, or the Board fails to allocate the necessary funds, then UT MD Anderson will issue written notice to Recipient and UT MD Anderson may terminate this Agreement without further duty or obligation under this Agreement.

O.     Construction:  This Agreement shall not be construed either more favorably for or strongly against either of the Parties based upon which Party drafted it.  Every covenant, term, and provision of this Agreement shall be construed simply according to its fair meaning.

P.     Headings:  The headings used in this Agreement are used for reference purposes only and do not constitute substantive matters to be considered in construing the terms of this Agreement.

Q.     Non‑Exclusive Agreement:  Nothing in this Agreement is intended to prevent, or should be construed as preventing, UT MD Anderson from contracting with any third party for the provision of goods or services the same as or similar to the Work.  UT MD Anderson may, notwithstanding anything contained herein to the contrary, engage in whatever activities UT MD Anderson chooses, in UT MD Anderson’s sole and absolute discretion, whether the same are competitive with Recipient or otherwise.  Recipient acknowledges and agrees that this Section is a material part of the consideration for UT MD Anderson to enter into this Agreement and to provide the Work.

R.     Texas State Agency:

1. UT MD Anderson is an agency of the State of Texas and under the Constitution and laws of the State of Texas possesses certain rights and privileges, is subject to certain limitations and restrictions, and only has such authority as is granted to it under the Constitution and laws of the State of Texas.  Nothing in this Agreement is intended to be, or will be construed as, a waiver of the sovereign immunity of the State of Texas or a prospective waiver or restriction of any of the rights, remedies, claims, and privileges of the State of Texas.  Moreover, notwithstanding the generality or specificity of any provision of this Agreement (including, without limitation, any provision pertaining to indemnification, a cap on liability, a limitation of damages, or a waiver or limitation of rights, remedies, representations, or warranties), the provisions of this Agreement as they pertain to UT MD Anderson are enforceable only to the extent authorized by the Constitution and laws of the State of Texas.
2. Any provision of any applicable law, rule, or regulation that invalidates any provision of this Agreement or would cause one or both of the Parties hereto to be in violation of law will be deemed to have superseded the terms of this Agreement.  The Parties, however, will use their best efforts to accommodate the terms and intent of this Agreement to the greatest extent possible consistent with the requirements of the law and negotiate in good faith toward amendment of this Agreement in such respect.