ALUMNI COUNCIL & THE ALUMNI SUMMIT
Any person or organization desiring to sell products on the Oakwood University campus during Alumni Homecoming weekend, whether as fundraising project or as an entrepreneur venture, MUST receive permission, in advance of the sale, from the office of Alumni Relations. Only one booth space per listed fee.
This SERVICES AGREEMENT (this “Agreement”) is made as of the date of a completed and submitted application, 2020 (the “Effective Date”), by and between OAKWOOD UNIVERSITY, INC., an Alabama non-profit corporation (the “University”), and VENDOR listed on the Vendor Mall application during Alumni Weekend (AW) April 21st, 2020 Oakwood Village, an individual, company, or organization listed on the Vendor Mall (the “Service Provider”). The University and the Service Provider are sometimes hereinafter referred to individually as a “Party” and together as the “Parties.”
WHEREAS, the Service Provider has substantial knowledge and expertise in the conduct of the business as indicated on the completed and submitted application, and the University desires to retain the knowledge, expertise and experience of the Service Provider as hereinafter set forth;
WHEREAS, the Service Provider acknowledges that the University expends substantial resources establishing long term relationships with its customers, clients and suppliers and the Service Provider may from time to time during the course of their performance hereunder be exposed to such customers, clients and suppliers and prospective customers, clients and suppliers; WHEREAS, the Service Provider acknowledges that in connection with their performance hereunder the Service Provider will have access to valuable Confidential Information (as defined in Section 6) including, but not limited to, the University’s methods of doing business, business plans and trade secrets; and
WHEREAS, all of the foregoing recitals are incorporated into the covenants of this Agreement as if set forth herein at length.
NOW THEREFORE, in consideration of the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereto, intending to be legally bound, agree as follows:
1. Engagement; Term. The University will engage the Service Provider, and the Service Provider hereby accepts engagement with the University, upon the terms and conditions set forth in this Agreement for the period beginning on the Effective Date and, unless sooner terminated as provided in Section 5 hereof, ending on the Effective Date and ending on April 21, 2020 (the “Service Period”). The Service Provider’s engagement with the University is at-will, and under no circumstances shall the Service Provider be deemed to be an employee of the University.
2. Scope of Services.
(a) The Service Provider will report directly to the Board of Trustees of the University (the “Board”), or such other person or entity that the Board will designate, and will perform those services listed on Schedule 1, attached hereto and incorporated by reference herein.
(b) The Service Provider will act in the best interest of the University. The Service Provider will perform [his/her] duties, responsibilities and functions on behalf of the
University hereunder to the best of their abilities in a diligent, trustworthy, businesslike and efficient manner. For purposes of clarity, under no circumstances shall the Service Provider be deemed to be an employee of the University.
(a) Subject to the terms of Section 5 below, the Service Provider will be paid as set forth on Schedule 2, attached hereto and incorporated by reference herein (the “Service Fee”).
(b) To the extent required by law, all amounts payable to the Service Provider hereunder will be subject to all required withholding by the University. The University will report the amounts paid to the Service Provider pursuant to this Agreement on IRS Form 1099 to the extent required under the Internal Revenue Code of 1986, as amended. The University shall not pay any unemployment or workers compensation taxes or premiums on behalf of or regarding the Service Provider. The Service Provider shall file all tax returns and reports required to be filed by the Service Provider on the basis that the Service Provider is an independent contractor rather than an employee. The Service Provider shall timely pay in full all applicable taxes in connection with the Service Provider’s engagement and remuneration under this Agreement, including any federal, state and local income taxes and social security (FICA) taxes.
4. Expense Reimbursement; No Other Benefits.
(a) The University will reimburse the Service Provider for all pre-approved, reasonable expenses incurred by [him/her] in the course of performing [his/her] duties and responsibilities under this Agreement which are consistent with the University’s policies in effect from time to time with respect to travel, entertainment and other business expenses, subject to the University’s requirements with respect to reporting and documentation of such expenses.
(b) The Service Provider will not be entitled to participate in any health or welfare benefit programs, vacation or other benefit programs of the University.
(a) Notwithstanding anything to the contrary contained in Section 1, the Service Provider’s engagement with the University and the Service Period will end on the earlier of (i) if the Service Provider is an individual, the Service Provider’s death or mental or physical disability or incapacity (as determined by a physician reasonably selected by the Board); (ii) if the Service Provider is an entity, upon the filing of any notice or petition of bankruptcy or insolvency; (iii) the Service Provider’s resignation, or (iv) termination by the University at any time with or without cause. Except as otherwise provided herein, any termination of this Agreement by the University or by the Service Provider will be effective as specified in a written notice from the terminating Party to the other Party.
(b) If, during the Service Period, the Service Provider’s engagement with the University is terminated pursuant to this Section 5, then the Service Provider will only be entitled
to receive a pro rata portion of the Service Fee based upon the number of days that the Service Provider was engaged prior to the date of termination less any amounts of the Service Fee previously paid to the Service Provider pursuant to the terms of this Agreement and will not be entitled to any other compensation or payments from the University.
6. Confidential Information. The Service Provider recognizes and acknowledges that the continued success of the University depends upon the use and protection of a large body of confidential and proprietary information and that the Service Provider will have access to certain Confidential Information of the University and its affiliates and companies with which the University does business, and that such Confidential Information constitutes valuable, special and unique property of the University and its affiliates and such other companies. “Confidential Information” will be interpreted to include all information of any sort (whether merely remembered or embodied in a tangible or intangible form) that is: (a) related to the University’s or its affiliates’ (including their predecessors) current or potential business; and (b) not generally or publicly known. Confidential Information includes, without limitation, the information, observations and data obtained by the Service Provider while engaged by the University (or any of its predecessors) concerning the business or affairs of the University or its affiliates, including information concerning acquisition opportunities in or reasonably related to the University’s or its affiliates’ business or industry, the identities of the current, former or prospective employees, suppliers and customers of the University, development, transition and transformation plans, methodologies and methods of doing business, strategic, marketing and expansion plans, financial and business plans, financial data, pricing information, employee lists and telephone numbers, locations of sales representatives, new and existing customer or supplier programs and services, customer terms, customer service and integration processes, requirements and costs of providing service, support and equipment. The Service Provider agrees that their will use the Confidential Information only as necessary and only in connection with the performance of [his/her] duties hereunder. The Service Provider agrees that they will not disclose to any unauthorized person or use for their own or any other purposes (except as described in the immediately preceding sentence) any Confidential Information without the prior written consent of the Board or such other person or entity to whom the Service Provider reports pursuant to the designation of the Board, unless and to the extent that: (y) the Confidential Information becomes generally known to and available for use by the public other than as a result of the Service Provider’s acts or omissions; or (z) the Service Provider is ordered by a court of competent jurisdiction to disclose Confidential Information, provided that in such circumstance the Service Provider must: (i) provide prompt written notice of such order to the University; and (ii) cooperate with the University, at the University’s expense, when revealing such Confidential Information to such court.
7. Return of University Property. The Service Provider acknowledges and agrees that all notes, records, reports, sketches, plans, unpublished memoranda or other documents, whether in paper, electronic or other form (and all copies thereof), held by the Service Provider concerning any information relating to the business of the University, whether confidential or not, are the property of the University. The Service Provider will deliver to the University at the expiration or termination of this Agreement, or at any other time the University may request, all equipment, files, property, memoranda, notes, plans, records, reports, computer tapes, printouts and software and other documents and data (and all electronic, paper or other copies thereof)
belonging to the University which includes, but is not limited to, any materials that contain, embody or relate to the Confidential Information, Work Product (as hereinafter defined) or the business of the University, which [he/she] may then possess or have under their control. The Service Provider will take any and all actions reasonably deemed necessary or appropriate by the University from time to time in its sole discretion to ensure the continued confidentiality and protection of the Confidential Information. The Service Provider will notify the University promptly and in writing of any circumstances of which the Service Provider has knowledge relating to any disclosure to or possession or use of any Confidential Information by (a) any person other than those authorized by the terms of this Agreement or (b) an authorized person in an unauthorized manner.
8. Intellectual Property Rights. The Service Provider acknowledges and agrees that all inventions, technology, processes, innovations, ideas, improvements, developments, methods, designs, analyses, trademarks, service marks, and other indicia of origin, writings, audiovisual works, concepts, drawings, reports and all similar, related, or derivative information or works (whether or not patentable or subject to copyright), including but not limited to all patents, copyrights, copyright registrations, trademarks, and trademark registrations in and to any of the foregoing, along with the right to practice, employ, exploit, use, develop, reproduce, copy, distribute copies, publish, license, or create works derivative of any of the foregoing, and the right to choose not to do or permit any of the aforementioned actions, which relate to the University’s or its affiliates’ actual or anticipated business, research and development or existing or future products or services and which are conceived, developed or made by the Service Provider while engaged by the University (collectively, the “Work Product”) belong to the University. All Work Product created by the Service Provider while engaged by the University will be considered “work made for hire,” and as such, the University is the sole owner of all rights, title, and interests therein. All other rights to any new Work Product and all rights to any existing Work Product, including but not limited to all of the Service Provider’s rights to any copyrights, patents, and registrations related thereto, are conveyed, assigned and transferred to the University pursuant to this Agreement. The Service Provider will promptly disclose and deliver such Work Product to the University and, at the University’s expense, perform all actions reasonably requested by the University (whether during or after the Service Period) to establish, confirm and protect such ownership (including, without limitation, the execution of assignments, copyright registrations, consents, licenses, powers of attorney and other instruments). All Work Product made within six (6) months after expiration or termination of this Agreement will be presumed to have been conceived during the Service Period, unless the Service Provider can prove conclusively that it was created after the Service Period.
9. Independent Contractor Status.
(a) The Service Provider shall, at all times, be an independent contractor and not an employee of the University or any of its affiliates and shall, therefore, be liable for [his/her] own debts, obligations, acts and omissions, including the payment of all required withholding, social security, and other taxes on behalf of their employees. The University shall not direct the method, scheduling or means of the rendering of services by the Service Provider, or if applicable, any employees of the Service Provider. Neither the Service Provider nor any of their employees shall in any way hold themselves out as an
employee of the University.
(b) Nothing in this Agreement shall be construed as (i) giving Service Provider any rights as a partner, manager, director, member, agent, employee, shareholder or owner of the University or any of its respective affiliates or (ii) entitling Service Provider to control in any manner the conduct of the business of the University or any of its respective affiliates.
© Service Provider shall indemnify, defend and hold the University and its affiliates, and their respective officers, directors, managers, partners, agents, employees, members, shareholders, successors, assigns and affiliates harmless from and against all taxes, costs, losses, liabilities, penalties, interest, claims, demands, actions, causes of action, proceedings, amounts paid in settlement and expenses (including attorneys’ fees and expenses) arising from or in connection with any claim by the Internal Revenue Service or any other person or entity that any payments made by the University under this Agreement should be treated (for any purposes) as other than fees paid to an independent contractor (including any claim that tax withholding should have been made, that the employer portion of FICA taxes should have been paid, or that unemployment or workers compensation taxes or premiums should have been paid).
10. Service Provider’s Representations. The Service Provider hereby represents and warrants to the University that: (a) they have entered into this Agreement of their own free will for no consideration other than as referred to herein; (b) the execution, delivery and performance of this Agreement by the Service Provider does not and will not conflict with, breach, violate or cause a default under any contract, agreement, instrument, order, judgment or decree to which the Service Provider is a party or by which the Service Provider is bound; (c) the Service Provider is not a party to or bound by any engagement, non-competition, confidentiality or other similar agreement with any other person or entity; and (d) upon the execution and delivery of this Agreement by the University, this Agreement will be the valid and binding obligation of the Service Provider, enforceable in accordance with its terms. The Service Provider hereby acknowledges and represents that the Service Provider has had the opportunity to consult with independent legal counsel regarding the Service Provider’s rights and obligations under this Agreement and that the Service Provider fully understands the terms and conditions contained herein.
11. Survival. Sections 6 through 24 will survive and continue in full force in accordance with their terms notwithstanding the expiration or termination of this Agreement.
12. Limitation of Liability. The Parties hereto acknowledge and agree that in no event shall the University’s liability hereunder exceed the Service Fee actually paid by the University to the Service Provider hereunder.
13. Indemnification. The Service Provider (the “Indemnifying Party”) agrees to defend, indemnify and hold harmless the University, its Board, officers, directors, employees, agents and contractors (collectively, the “Indemnified Party”), from and against any and all claims, losses, demands, damages, liabilities, costs, expenses (including attorneys’ fees), obligations, causes of action or suits for or arising out of: (1) injury, including death, to any
person, including employees of the Indemnifying Party or Indemnified Party, or damage to or loss of any property, including property of the Indemnified Party, arising out of or resulting from the performance of the Indemnifying Party, its employees, agents, or subcontractors under this Agreement; (2) the Indemnifying Party’s breach of this Agreement; and/or (3) any of the products or services provided by the Indemnifying Party hereunder. The Indemnifying Party shall promptly notify the Indemnified Party in writing of any matter covered above, and shall do all things required to protect the Indemnified Party’s interests.
14. Notices. Any notice provided for in this Agreement will be in writing and will be either personally delivered, sent by reputable overnight courier service, sent by facsimile (with hard copy to follow by regular mail) or mailed by first class mail, return receipt requested, to the recipient at the address below indicated:
Notices to the Service Provider: LISTED ON COMPLETED AND SUBMITTED VENDOR MALL APPLICATION
Notices to the University: Oakwood University 7000 Adventist Boulevard NW Huntsville, AL 35896 Attn: Vice President for Financial Affairs
with a copy (which shall not constitute notice) to:
Maynard, Cooper & Gale, P.C. 655 Gallatin Street SW Huntsville, Alabama 35801 Attn: Christopher E. Smith, Esq. Fax: (256) 512-5712 Email: email@example.com
or such other address or to the attention of such other person or entity as the recipient Party will have specified by prior written notice to the sending Party. Any notice under this Agreement will be deemed to have been given when so delivered, sent or mailed.
15. Severability. Whenever possible, each provision of this Agreement will be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held to be invalid, illegal or unenforceable in any respect under any applicable law or rule in any jurisdiction, such invalidity, illegality or unenforceability will not affect any other provision or any action in any other jurisdiction, but this Agreement will be reformed, construed and enforced in such jurisdiction as if such invalid, illegal or unenforceable provision had never been contained herein.
16. Complete Agreement. This Agreement embodies the complete agreement and understanding among the Parties and supersedes and preempts any prior understandings, agreements or representations by or among the Parties, written or oral, which may have related to the subject matter hereof in any way. Upon the Effective Date, the Service Provider hereby releases and waives any claims or rights they may have under any prior agreement or understanding they may have with the University, its affiliates or predecessors, including, but not limited to, any claim for severance or other benefits.
17. Counterparts. This Agreement may be executed in separate counterparts (including by facsimile and electronic signature pages or completed and submitted Vendor Mall application), each of which is deemed to be an original and all of which taken together constitute one and the same agreement.
18. Neutral Construction. The Parties jointly participated in the negotiation and drafting of this Agreement. The language used in this Agreement will be deemed to be the language chosen by the Parties to express their collective mutual intent, this Agreement will be construed as if drafted jointly by the Parties, and no rule of strict construction will be applied against either Party.
19. Successors and Assigns. This Agreement is intended to bind and inure to the benefit of and be enforceable by the Service Provider, the University and their respective heirs, successors and assigns. The Service Provider may not assign [his/her] rights or delegate [his/her] duties or obligations hereunder without the prior written consent of the University. The University may assign its rights and obligations hereunder, without the consent of, or notice to, the Service Provider, to any of the University’s affiliates or to any person or entity that acquires the University or any portion of its business or its assets, in which case all references to the University will refer to such assignee.
20. Choice of Law; Exclusive Venue. THIS AGREEMENT, AND ALL ISSUES AND QUESTIONS CONCERNING THE CONSTRUCTION, VALIDITY, ENFORCEMENT AND INTERPRETATION OF THIS AGREEMENT, WILL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF ALABAMA, WITHOUT GIVING EFFECT TO ANY CHOICE OF LAW OR CONFLICT OF LAW RULES OR PROVISIONS (WHETHER OF THE STATE OF ALABAMA OR ANY OTHER JURISDICTION) THAT WOULD CAUSE THE APPLICATION OF THE LAWS OF ANY JURISDICTION OTHER THAN THE STATE OF ALABAMA. THE PARTIES AGREE THAT ALL DISPUTES, LEGAL ACTIONS, SUITS AND PROCEEDINGS ARISING OUT OF OR RELATING TO THIS AGREEMENT MUST BE BROUGHT EXCLUSIVELY IN FEDERAL COURT OR ALABAMA STATE COURT LOCATED IN MADISON COUNTY, ALABAMA (COLLECTIVELY THE “DESIGNATED COURTS”). EACH PARTY HEREBY CONSENTS AND SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE DESIGNATED COURTS. NO LEGAL ACTION, SUIT OR PROCEEDING WITH RESPECT TO THIS AGREEMENT MAY BE BROUGHT IN ANY OTHER FORUM. EACH PARTY HEREBY IRREVOCABLY WAIVES ALL CLAIMS OF IMMUNITY FROM JURISDICTION AND ANY OBJECTION WHICH SUCH PARTY MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUIT, ACTION OR PROCEEDING IN ANY
DESIGNATED COURT, INCLUDING ANY RIGHT TO OBJECT ON THE BASIS THAT ANY DISPUTE, ACTION, SUIT OR PROCEEDING BROUGHT IN THE DESIGNATED COURTS HAS BEEN BROUGHT IN AN IMPROPER OR INCONVENIENT FORUM OR VENUE. 21. Mutual Waiver of Jury Trial. THE UNIVERSITY AND THE SERVICE PROVIDER EACH WAIVE THEIR RESPECTIVE RIGHT TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF OR RELATED TO THIS AGREEMENT IN ANY ACTION, PROCEEDING OR OTHER LITIGATION OF ANY TYPE BROUGHT BY ANY OF THE PARTIES AGAINST ANY OTHER PARTY OR ANY AFFILIATE OF ANY OTHER SUCH PARTY, WHETHER WITH RESPECT TO CONTRACT CLAIMS, TORT CLAIMS OR OTHERWISE. THE UNIVERSITY AND THE SERVICE PROVIDER EACH AGREE THAT ANY SUCH CLAIM OR CAUSE OF ACTION WILL BE TRIED BY A COURT BY TRIAL WITHOUT A JURY. WITHOUT LIMITING THE FOREGOING, THE PARTIES FURTHER AGREE THAT THEIR RESPECTIVE RIGHT TO A TRIAL BY JURY IS WAIVED BY OPERATION OF THIS SECTION AS TO ANY ACTION, COUNTERCLAIM OR OTHER PROCEEDING WHICH SEEKS, IN WHOLE OR IN PART, TO CHALLENGE THE VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT OR ANY PROVISION HEREOF. THIS WAIVER WILL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT.
22. Assistance in Proceedings. During the Service Period and for twelve (12) months thereafter, the Service Provider will cooperate with the University in any internal investigation or administrative, regulatory or judicial proceeding as reasonably requested by the University (including, without limitation, the Service Provider being available to the University upon reasonable notice for interviews and factual investigations, appearing at the University’s request to give testimony without requiring service of a subpoena or other legal process, volunteering to the University all pertinent information and turning over to the University all relevant documents which are or may come into the Service Provider’s possession, all at times and on schedules that are reasonably consistent with the Service Provider’s other permitted activities and commitments). In the event the University requires the Service Provider’s cooperation in accordance with this Section 22, the University will pay the Service Provider a reasonable per diem as determined by the Board and reimburse the Service Provider for reasonable expenses incurred in connection therewith (including lodging and meals, upon submission of receipts).
23. Prevailing Party Fees and Expenses. If the University, on the one hand, or the Service Provider, on the other hand, (a) brings any action or proceeding to enforce any provision of this Agreement or to obtain damages as a result of a breach of this Agreement or to enjoin any breach of this Agreement and (b) prevails in such action or proceeding, then the non-prevailing Party will, in addition to any other rights and remedies available, reimburse the prevailing Party for any and all reasonable costs and expenses (including attorneys’ fees) incurred by the prevailing Party in connection with such action or proceeding.
24. Amendment and Waiver. The provisions of this Agreement may be amended or waived only with the prior written consent of the University and the Service Provider, and no course of conduct or course of dealing or failure or delay by any Party hereto in enforcing or
exercising any of the provisions of this Agreement will affect the validity, binding effect or enforceability of this Agreement or be deemed to be an implied waiver of any provision of this Agreement.
Payment MUST be postmarked by April 8th, 2020 for discounted rate to apply. Last day to submit all payment and forms is April 15, 2020. Any cancellation made after April 15, 2020 will result in a 50% charge to be deducted from the amount paid.
TERMS AND CONDITIONS
THE OAKWOOD UNIVERSITY POLICE DEPARTMENT IS AUTHORIZED TO ENFORCE THIS POLICY AND WILL REMOVE FROM THE CAMPUS ANYONE NOT IN COMPLIANCE.
All Village participants must reserve their booth by paying the
• $150 - General Fee before April 8th, 2020
• $175 - General Fee by April 15th, 2020
• $75 - Student/Employee Fee before April 8th 2020
• $90.00 - Student/Employee Fee before April 15th, 2020
Methods of Payment
• Money Order
• Credit/Debit Card On-line
ANY Cancellation after March 18th, 2020 will result in a 50%