Unacceptable Contract Terms
The submitting Department is ultimately responsible for negotiating and including terms that protect the University and comply with Utah law. Departments that fail or elect not to uphold this responsibility may be accountable for resulting damages. The Office of Legal Affairs provides counsel as to whether the terms of a contract meet the required threshold.
Void and Unenforceable Terms
The following provisions are void and unenforceable under Utah law and cannot be accepted.
| Provision Type | Utah Code Section | Example |
|---|---|---|
| Provisions limiting protection under the Governmental Immunity Act. | Utah Code § 63G-6a-1203(4)(a) | Notwithstanding any applicable governmental immunity, SUU agrees to respond to any claim, demand, or legal proceeding initiated by Nazer, Inc., related to the contract. This obligation includes providing a timely written response and participating in any required legal proceedings. |
| Indemnification / defense / hold harmless provisions. | Utah Code § 63G-6a-1203(4)(b) | SUU agrees to indemnify, defend, and hold harmless Nazer, Inc., against any and all claims, liabilities, damages, losses, and expenses, including reasonable attorneys’ fees, arising out of or related to the contract. |
| Provisions restricting the ability to seek relief in state court. | Utah Code § 63G-6a-1203(4)(c) | The parties agree that any disputes shall be resolved exclusively in federal court, and each party consents to the jurisdiction of such courts. |
| Provisions requiring binding alternative dispute resolution (e.g. arbitration). | Utah Code § 63G-6a-1203(4)(d) | The parties agree that any dispute, claim, or controversy arising out of or relating to the contract, including the breach, termination, enforcement, interpretation, or validity thereof, shall be resolved through binding arbitration. |
| Provisions that disallow legal counsel of choice. | Utah Code § 63G-6a-1203(4)(e) | Nazer, Inc., agrees to defend SUU against any claims, demands, or legal actions arising out of or related to the contract. Nazer, Inc., may select legal counsel in its sole discretion to provide the defense. |
| Provisions that conflict with GRAMA or prevent disclosure for legitimate government purposes. | Utah Code § 63G-6a-1203(4)(g) | SUU shall not disclose the completed contract or any materials provided to SUU under the terms of the contract. |
| Provisions that allow the other side to unilaterally modify the terms of the contract. | Utah Code § 63G-6a-1203(4)(h) | The standard terms and conditions published on Nazer, Inc., website are hereby incorporated into this Agreement by reference as if fully set forth herein. These terms and conditions may be updated, revised, or replaced by Nazer, Inc., from time to time. |
| Provisions imposing liability for special, incidental, indirect, or consequential damages. | Utah Code § 63G-6a-1203(7) | In the event of a breach of this Agreement by SUU, Nazer, Inc., shall be entitled to recover special, incidental, indirect, or consequential damages, including but not limited to lost profits, loss of business opportunities, and any other damages that arise as a foreseeable result of the breach. |
Terms Requiring Authorization
The following provisions require authorization before they can be accepted. Depending on the provision, authorization may be obtained after consulting with the Office of Legal Affairs and a designated procurement official.
| Provision Type | Utah Code Section | Example |
|---|---|---|
| Choice of law provisions (other than Utah). | Utah Code § 63G-6a-1203(4)(f) | The parties agree that all matters arising under or related to this Agreement shall be resolved under Ohio law. |
| Forum selection provisions (other than Utah). | Utah Code § 63G-6a-1203(4)(f) | The parties agree that any claim, action, suit, or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby shall be brought exclusively in the courts of Ohio, and each party hereby irrevocably submits to the exclusive jurisdiction of such courts. |
| Provisions mandating additional insurance coverage. | Utah Code § 63G-6a-1203(4)(i)(i) | SUU shall maintain, at its sole cost and expense, general liability insurance with minimum limits not less than $1,000,000 per occurrence and $2,000,000 aggregate. SUU shall name Nazer, Inc., as an additional insured under its insurance policy. |
| Automatic renewal provisions. | Utah Code § 63G-6a-1203(4)(i)(ii) | This Agreement shall automatically renew for successive one-year terms unless either party provides written notice of its intent not to renew at least 30 days prior to the end of the then-current term. |
| Provisions limiting the other side’s liability for bodily injury, death, or property damage. | Utah Code § 63G-6a-1203(4)(i)(iii) | Nazer, Inc.'s aggregate liability arising out of or relating to bodily injury, death, or damage to tangible property caused by the negligence or willful misconduct of Nazer, Inc., its employees, agents, or subcontractors shall not exceed the total amount paid by SUU for the services provided under this Agreement. |