This is an overview of the specific rules that apply to Ball State contracts. Please note that a Memorandum of Understanding/Agreement is in fact a contract and should be treated as one.

In all contracts, the contracting party for BSU is "Ball State University." Typically, this clause would be followed by a parenthetical containing a short-form of the name for use in the rest of the contract, e.g., (hereinafter "BSU" or "University"). The name designating the university should not vary within a contract and should be consistent from page to page and at the signature line. The address on the contract for the university should be 2000 W. University Avenue, Muncie, Indiana 47306. The notice requirement should be Ball State University, 2000 W. University Ave., Muncie, IN 47306, specified to the attention of the department, with a copy to: Ball State University, Attn.: Associate Vice President, Business Affairs and Assistant Treasurer, Finance Office, AD 208, Muncie, Indiana 47306, telephone number 765-285-1186. The University does not accept notice by email or facsimile.

If the other party is a corporation, limited liability company or other legal entity, be sure that the title for the other party includes the correct, full legal name and a reference to the state in which the entity is organized and/or its principal place of business. For example: "XYZ Corporation, an Indiana corporation," or "XYZ, Ltd., with its principal place of business at 1234 Anywhere Rd., Muncie, Indiana."

Basic Contract Form – All contracts should contain the basic information needed to understand the parties of the contract and the terms of the agreement.

These include:

  • the names of the parties
  • the term of the agreement
  • the obligations of the parties respectively
  • the terms of payment, if any
  • the procedure for early termination of the agreement (e.g., 10 days notice)
  • a signature line for the authorized individuals executing the agreement

Deletions and Insertions – Wording changes, deletions, and insertions must be made on the original contract and to all copies of the contract. Deletions should be made by striking the text. Do not remove or use "white-out" for deletions. Every change, insertion, and deletion to the contract and all copies must be initialed by the person responsible for signing the contract. A short horizontal line should be drawn in the margin beside each change, insertion, and deletion and initialed by the signer.

Indemnification – In general, BSU cannot agree to indemnify or "hold harmless" the other party to a contract. Efforts should be made to remove such provisions from the agreement.

Please note that a provision that says BSU "is responsible for" or "will reimburse the other contract party for" may be an indemnification clause. Also, a provision in which BSU "represents" or "warrants" something may be an indemnification clause.

Insurance – With respect to insurance coverage, BSU has an existing property and liability insurance program in place. Contract provisions calling for BSU to carry specific types or amounts of insurance may be in conflict with BSU’s insurance program and should be reviewed with the Director of Risk Management to insure BSU can comply with those provisions. Efforts should be made to delete provisions requiring an outside party to be added as an additional insured on BSU’s policies. If the contract requires BSU to provide proof of its insurance, contact the Director of Risk Management to obtain the necessary certificates of insurance.

Governing Law/Jurisdiction/Venue – The university will not agree to be bound by the law of another state or country or to submit to the jurisdiction or venue in any place other than the county of Delaware, state of Indiana.

Arbitration or Mediation – The university generally will not agree to any provision that requires the parties to submit a dispute to arbitration or mediation.

Confidentiality – The contract must not include any provision that calls for the contract itself or the terms of the contract to be confidential. A contract may include a provision requiring that some specific information be kept confidential, such as trade secrets related to a sponsored research agreement.

Liquidated Damages – Liquidated damage provisions must be excluded because such provisions require the university to pay for goods or services not actually rendered.

Nondiscrimination Clause. Each contract should include a nondiscrimination clause which states, "the vendor, and its subcontractor(s), if any, shall not discriminate against any qualified employee or applicant for employment in the performance of this Agreement, with respect to hire, tenure, terms, conditions, or privileges of employment, or any matter directly or indirectly related to employment because of race, religion, color, sex, age, national origin or ancestry, disability or status as a disabled or Vietnam era veteran or any other basis prohibited by applicable law."

Student or Financial Records

If the terms of the contract call for access to the university’s computing systems, student records, financial records regarding students (or their parents), or financial information regarding university employees, contract provisions containing the following characteristics must be included:

  • a specific definition or description of the confidential information being provided
  • a stipulation that the confidential information will be held in strict confidence and accessed only for the explicit business purpose of the contract
  • an explicit acknowledgement that the contract allows the contract partner access to confidential information
  • an assurance from the contract partner that the partner will protect the confidential information received by the contract provider upon completion or termination of the contract
  • an agreement that any violation of the contract's confidentiality conditions may constitute a material breach of the contract and entitles the university to be indemnified for losses caused by the breach, and to the terminate the contract without penalty
  • a provision ensuring that the contract's confidentiality requirements shall survive any of the termination agreement

If the contract involves the hosting of university data, the contract must comply with the University's Hosted Information Systems Procurement Procedures (PDF).

When a contract calls for activities that will occur on University property or when the university is conducting activities on another party’s property, a contract provision requiring the other party to provide insurance coverage is required.

For more information regarding insurance requirements, contact the director of risk management. The insurance shall include provisions specifying that the insurance cannot be amended, cancelled, or renewed without at least 30 days prior written notice to Ball State. All policies shall be issued by insurance companies satisfactory to Ball State. Before commencing work under the contract and thereafter at least once per year during the term of the contract, the contractor shall provide a copy of the documentation satisfactory to Ball State evidencing compliance with all of the insurance requirements.

The SOW describes the services, end products, deliverables and performance objectives that the vendor must provide in order to meet its contractual obligations. The SOW is very important, and should state in detail such things as: what the specifications and requirements are, how the end product will perform, interim and final deliverables such as reports, models or specific tasks, the number of hours required to produce deliverables, specific deadlines, objective measures of the vendor's performance, etc. It is primarily the department's responsibility to prepare the SOW; however, the Purchasing Department can assist you.

Amendments

An amendment is an addition, deletion or change to a legal document and can only be accomplished by mutual agreement of all the parties. Once a contract is amended, the portions of the contract affected by the amendment are superseded and can no longer be given any force or effect. Amendments may be needed to add or delete work from the scope, extend the contract term, allow for additional time to complete the work, and reflect changes in requirements that arise due to events occurring after execution of the contract. In many cases, the vendor is not entitled to additional time or compensation for the extension of the period for performance unless the University is responsible for delays in the completion of performance. It is important to contact the Purchasing Department or the Contracts Office for review before proceeding with any discussion on an extension with a vendor.

Renewals

Contracts generally have a definite termination date and expire at the end of their term. Sometimes the parties want to extend or renew the term of the contract before its expiration date, so it is important that the term of any contract be definite or definitely determinable even when executing a renewal. Sometimes contracts contain options for renewal. Options for renewal should be clearly specified and must be by mutual agreement of the parties. Vendor contracts will often contain an automatic renewal or "evergreen" clause that will keep a contract on an indefinite renewal track unless specified events cause it not to renew (such as the university must give notice of nonrenewal within a narrow period of time right before the end of the then-current term). Automatic renewals are disfavored because they obligate the university to continuing performance under the contract when the market conditions may have changed or the needs of the department may have changed. Often the notice window to not renew the contract is missed by the department that wishes to terminate the contract. An option for renewal should be written to give the University, as the purchaser, the right but not the obligation to renew the contract for one or more additional terms. If the department for some reason prefers that a contract renew without a formal renewal, the contract should include a provision requiring the other party to notify the department that the contract is about to renew and specifying the terms and conditions of the contract during the renewal period.