Review IMSP Participation Agreement

IDENTITY MANAGEMENT SERVICES PROGRAM  
PARTICIPATION AGREEMENT  
 
THIS IDENTITY MANAGEMENT SERVICES PROGRAM PARTICIPATION  
AGREEMENT (“AGREEMENT”) FOR PARTICIPATION IN THE EDUCAUSE  
IDENTITY MANAGEMENT SERVICES PROGRAM (“PROGRAM”) IS MADE AND  
ENTERED INTO BY EDUCAUSE (“EDUCAUSE”), A DISTRICT OF COLUMBIA  
NONPROFIT CORPORATION, AND THE PARTICIPANT (REFERRED TO AS  
“PARTICIPANT”). THIS AGREEMENT IS EFFECTIVE AS OF THE DATE  
ACCEPTED BY PARTICIPANT BY CLICKING THE “I AGREE” OR SIMILARLY  
WORDED BUTTON ON THE  
HTTP://WWW.EDUCAUSE.EDU/IMSP/SUBSCRIBE/7504 (THE “EFFECTIVE  
DATE”). PARTICIPANT BY CLICKING THE “I AGREE” OR SIMILARLY  
WORDED BUTTON HAS ACKNOWLEDGED AND AGREED THAT  
PARTICIPANT HAS CAREFULLY READ AND ACCEPTS THE TERMS AND  
CONDITION OF THIS AGREEMENT, AND FURTHER ACKNOWLEDGES  
CLICKING THE “I AGREE” OR SIMILARLY WORDED BUTTON IS THE  
EQUIVALENT OF MANUALLY SIGNING THIS AGREEMENT AND THAT  
PARTICIPANT WILL BE LEGALLY BOUND BY ITS TERMS AND CONDITIONS.  
 
RECITALS  
 
WHEREAS, EDUCAUSE, an Internal Revenue Code section 501(c)(3) organization,  
has as a charitable purpose the advancement of higher education by supporting, among other  
things, the intelligent use of information technology;  
 
WHEREAS, to further the foregoing charitable purposes, EDUCAUSE expects to enter  
into various agreements with one or more vendors (“Vendors”) to create a centrally administered  
contractual structure to help enable its membership to purchase various products and services  
(“Products & Services”) from such Vendors, subject to a definitive written agreement (the  
“Definitive Agreement”) being executed between such Vendor and Participant for the purchase  
of such Products & Services; and  
 
WHEREAS, Participant desires to, subject to the terms of this Agreement, to participate  
in the Program and requests the assistance of EDUCAUSE to refer Participant’s contact  
information as provided by Participant to EDUCAUSE to such Vendors.  
 
NOW, THEREFORE, in consideration of the premises and mutual promises and  
representations contained herein, and other good and valuable consideration, the sufficiency of  
which is hereby acknowledged, the parties intending to be legally bound hereto agree as follow.  
 
1. Fees. Participant agrees to pay EDUCAUSE U.S. $2,000.00 ("Annual  
Participation Fee").  
 
2. Term. This Agreement comes into force on the Effective Date and remains in  
force for a period of one-year beginning as of the Effective Date, and from year-to-year  
thereafter only if EDUCAUSE provides an invoice to Participant notifying Participant of the  
Annual Participation Fee, as may be adjusted by EDUCAUSE, for the following year and  
Participant fails to give notice of its termination of this Agreement by the due date of such  
invoice.  
 
3. No Refund of Fees. Except with the written consent of EDUCAUSE, in no event  
shall EDUCAUSE be required to refund, rebate, prorate or credit any portion of any fee paid by  
Participant under Section 1 of this Agreement, even if any such Vendor fails to enter into a  
Definitive Agreement with Participant for the purchase of Products & Services.  
 
4. EDUCAUSE Referral. EDUCAUSE shall, within a reasonable time following the  
Effective Date of this Agreement, provide Participant’s contact information to Vendors.  
Referral by EDUCAUSE does not guarantee that any Vendor will sell the Products & Services to  
Participant, and Participant agrees that it shall not bring any claim or cause of action against  
EDUCAUSE, whether arising out of this Agreement or otherwise, if any Vendor fails to enter  
into a Definitive Agreement with Participant for the purchase of Products & Services.  
 
5. Third Party Beneficiaries. This Agreement is for the sole benefit of the parties  
hereto, and nothing herein expressed or implied shall give or be construed to give to any person,  
other than the parties hereto, any legal or equitable rights hereunder.  
 
6. Limitation of Liability. Participant agrees that in no event shall EDUCAUSE be  
liable to the Participant or any third party under this Agreement or any other agreement executed  
between any Vendor and Participant for any damages whether incidental, indirect, special,  
consequential, exemplary, or punitive, arising out of or relating to this Agreement or any of the  
services provided pursuant hereto or any Definitive Agreement, regardless of whether the  
Participant had been advised or could have foreseen the possibility of such damages.  
 
7. No Warranties. ANY AND ALL EXPRESS AND IMPLIED WARRANTIES,  
INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY OR  
FITNESS FOR ANY PURPOSE OR USE RELATING TO THE PRODUCTS & SERVICES  
OR OTHERWISE, ARE EXPRESSLY EXCLUDED AND DISCLAIMED BY EDUCAUSE.  
 
8. Press Releases. Participant agrees that it shall not issue a press release or public  
announcement pertaining to the matters contemplated by this Agreement at any time, unless the  
EDUCAUSE agrees otherwise in writing and agrees to the form and content of such press  
release or announcement. All such press releases or public announcements shall be approved  
within ten (10) business days of submission.  
 
9. Assignment. This Agreement is personal to the parties hereto and may not be  
assigned or transferred by either party without the prior written consent of the other party hereto.  
 
10. Entire Agreement. This Agreement represents the entire understanding between  
the parties in relation to the matters dealt with herein and supersedes all previous covenants and  
representations made between the parties in relation to the Agreement, whether oral or written.  
This Agreement may only be modified if such modification is in writing and signed by a duly  
authorized representative of each party hereto. Any modification to this Agreement may be  
executed by facsimile and the facsimile execution pages will be binding upon the executing party  
to the same extent as the original executed pages. The executing party shall provide originals of  
the facsimile execution pages for insertion into the Agreement, as modified, in place of the  
facsimile pages.  
 
11. Miscellaneous.  
 
a. PARTICIPANT AGREES THAT PARTICIPANT’S SOLE AND  
EXCLUSIVE REMEDY FOR ANY AND ALL CLAIMS RELATED TO THIS AGREEMENT,  
WHETHER BY BREACH OF CONTRACT, TORT OR OTHERWISE, SHALL BE LIMITED  
TO U.S. $ 1,000.00.  
 
b. Participant represents and warrants to EDUCAUSE that this Agreement  
has been duly authorized, executed and delivered by Participant, and constitutes the legal, valid  
and binding obligation of Participant, and that under applicable law, no approval, authorization,  
consent, clearance, order or other action of, or filing (other than notice) with, any person, firm or  
corporation, or any court, administrative agency or other governmental authority, is required in  
connection with the execution and delivery by Participant of this Agreement or the performance  
by it of the transactions described herein. Participant further represents and warrants that  
Participant is an Institutional Member of EDUCAUSE.  
 
c. Participant agrees to abide by the terms and conditions set forth the  
Definitive Agreements and, as may be described therein, additional Vendor policies relating to  
the Products & Services.  
 
d. Participant shall indemnify, defend and hold harmless EDUCAUSE, and  
its directors, members, officers, agents, employees, successors and assigns from any and all third  
party claims, suits, proceedings, judgments, damages, costs (including reasonable attorneys' fees  
and expenses) and other liabilities arising from, in connection with or related in any way to,  
directly or indirectly, the Participant’s actual or alleged breach of any duty, obligation,  
representation, or warranty of the Participant specified in this Agreement or in any Definitive  
Agreement; provided, however, that the terms of this Section 11d. shall apply with respect to  
Participant only to the extent that Participant is not precluded from such application under  
applicable law.  
 
12. Severability. If a provision of this Agreement is rendered invalid or  
unenforceable, the remaining provisions shall remain in full force and effect.  
 
13. Governing Law and Jurisdiction. This Agreement shall be governed by and  
interpreted in accordance with the laws of the District of Columbia.  
 
14. Waivers. Any waiver of any breach of this Agreement shall not constitute a  
waiver of any other breach hereof and any failure to enforce any provision of this Agreement  
shall not constitute a waiver or create an estoppel from enforcing such provision at any time  
hereunder.  
 
15. Relationship of the Parties. The relationship of the parties is that of independent  
contractors and nothing herein shall be construed as creating a partnership, employment or  
agency relationship between the parties or as authorizing any party to act as agent for any other  
party.  
 
16. Attorneys’ Fees. In the event of any action or proceeding arising out of this  
Agreement, the prevailing party shall be entitled to recovery of its attorneys’ fees from any non- 
prevailing parties.  
 
17. Notices. All notices which either party is required or may desire to serve upon  
any other party shall be in writing and addressed to the party to be served at the respective  
addresses set forth below. Any such notice may be served personally or by certified mail  
(postage prepaid), internationally commercially recognized overnight delivery service (such as  
Federal Express or DHL), or courier. Notice shall be deemed served upon personal delivery or  
delivery by courier, upon the second business day after the date sent for notices sent via  
overnight delivery, or upon the third business day after the date sent for notices sent via certified  
mail. Either party may change the address to which notices are to be delivered by written notice  
to the other party served as provided in this Section.