1. Indemnification Clauses at the University of Colorado

2. Software License Contracts

3. Example 1 Contracting Party with CU: NASA
Contract Subject: Software Usage
Purpose of Contract: CU wants to use software and technical data provided from NASA’s Goddard Space Flight Center
CU Accepted the Language

4. NASA Indemnification Language At Issue
VIII. WAIVER AND INDEMNIFICATION.
A. RECIPIENT AGREES TO WAIVE ANY AND ALL CLAIMS AGAINST THE U.S. GOVERNMENT AND ITS CONTRACTORS AND SUBCONTRACTORS, AND SHALL INDEMNIFY AND HOLD HARMLESS THE UNITED STATES GOVERNMENT AND ITS CONTRACTORS AND SUBCONTRACTORS FOR ANY LIABILITIES, DEMANDS, DAMAGES, EXPENSES, OR LOSSES THAT MAY ARISE FROM RECIPIENT’S USE OF THE NASA SOFTWARE AND/OR TECHNICAL DATA, INCLUDING ANY DAMAGES FROM PRODUCTS BASED ON, OR RESULTING FROM, THE USE THEREOF.
B. IF RECIPIENT FURTHER RELEASES OR DISTRIBUTES THE NASA SOFTWARE AND/OR TECHNICAL DATA, RECIPIENT AGREES TO OBTAIN THIS IDENTICAL WAIVER OF CLAIMS, INDEMNIFICATION, AND HOLD HARMLESS AGREEMENT WITH ANY ENTITIES THAT ARE PROVIDED WITH THE NASA SOFTWARE AND/OR TECHNICAL DATA.
C. NOTWITHSTANDING THE ABOVE, WHEN RECIPIENT IS PROHIBITED BY LAW FROM PROVIDING INDEMNIFICATION, THE INDEMNIFICATION REQUIREMENTS SPECIFIED ABOVE SHALL NOT APPLY TO RECIPIENT.

5. Example 2 Contracting Party with CU: Penn State Research Foundation
Contract Subject: Software License Agreement
Purpose of Contract: CU Boulder Investigator would like to use powerful modeling software owned by Penn State for academic and research purposes.  He helped develop the software while an employee of Penn State. He considers the software as fundamental to his CU research. CU and Penn State are good to go on all terms except indemnification. Our investigator is upset that the indemnification language is holding things up.
Amount: Free

6. PSRF Indemnification Language at Issue:
4.1 To the extent permitted by law, LICENSEE shall be solely responsible for all claims, demands, actions, suits, damages, losses or liabilities of third parties relating to persons or property, whether contractual or tort, arising out of LICENSEE’s use and development of PATENT RIGHTS AND SOFTWARE and including, without limitation, all claims, demands, actions, suits, damages, losses or liabilities for infringement of any dominating patent, copyright, or other intellectual property right, or otherwise, and injury, illness or death of persons directly or indirectly resulting therefrom.
4.2 EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS LICENSE AGREEMENT, PSRF, UNIVERSITY, THEIR TRUSTEES, DIRECTORS, OFFICERS, EMPLOYEES, AND AFFILIATES MAKE NO REPRESENTATIONS AND EXTEND NO WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, VALIDITY OF PATENT RIGHTS CLAIMS, ISSUED OR PENDING, VALIDITY OF COPYRIGHT, AND THE ABSENCE OF LATENT OR OTHER DEFECTS, WHETHER OR NOT DISCOVERABLE. NOTHING IN THIS LICENSE AGREEMENT SHALL BE CONSTRUED AS A REPRESENTATION MADE OR WARRANTY GIVEN BY PSRF THAT THE PRACTICE BY LICENSEE OF THE LICENSE GRANTED HEREUNDER SHALL NOT INFRINGE THE PATENT RIGHTS OR COPYRIGHT OF ANY THIRD PARTY. IN NO EVENT SHALL PSRF, UNIVERSITY, THEIR TRUSTEES, DIRECTORS, OFFICERS, EMPLOYEES AND AFFILIATES BE LIABLE FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING ECONOMIC DAMAGE OR INJURY TO PROPERTY AND LOST PROFITS, REGARDLESS OF WHETHER PSRF SHALL BE ADVISED, SHALL HAVE OTHER REASON TO KNOW, OR IN FACT SHALL KNOW OF THE POSSIBILITY.
4.3 LICENSEE shall at all times during the term of this License Agreement and thereafter, indemnify, defend and hold PSRF, UNIVERSITY, their trustees, directors, officers, employees and affiliates, harmless against all claims, proceedings, demands and liabilities of any kind whatsoever, including legal expenses and reasonable attorneys' fees, arising out of the death of or injury to any person or persons or out of any damage to property, resulting from LICENSEE’s production, manufacture, sale, use, lease, consumption or advertisement of the PATENT RIGHTS or SOFTWARE or arising from any obligation of LICENSEE hereunder. NOTWITHSTANDING THIS ARTICLE 4.3, WHEN LICENSEE IS PROHIBITED BY LAW FROM PROVIDING INDEMNIFICATION, THE INDEMNIFICATION REQUIREMENTS SPECIFIED ABOVE SHALL NOT APPLY TO RECIPIENT

7. Grant Agreements

8. Example 3 Contracting Party with CU: European Research Council
Contract Subject: Grant Agreement
Purpose of Contract: CU to provide a scientific report for a project with ERC
*Terms precluded CU from accepting 3 awards last year: 2 for Civil Engineering; 1 for Music Department

9. ERC Indemnification Language at Issue
II.41 Liability
1. The Union cannot be held liable for any acts or omissions of the beneficiaries in relation to this grant agreement. It shall not be liable for any defaults of any products, processes or services
created on the basis of foreground, including, for instance, anomalies in the functioning or
performance thereof.
2. Each beneficiary fully guarantees the Union, and agrees to indemnify it, in case of any action,
complaint or proceeding brought by a third party against the Union as a result of damage
caused, either by any of its acts or omissions in relation to this grant agreement, or by any
products, processes or services created by it on the basis of foreground resulting from the
project.
3. In the event of any action brought by a third party against a beneficiary in connection with the
performance of this grant agreement, the Agency may assist the latter upon written request. The
costs incurred by the Agency in this connection shall be borne by the beneficiary concerned.
4. Each beneficiary shall bear sole responsibility for ensuring that their acts within the framework
of this project do not infringe third parties rights.
5. The Union cannot be held liable for any consequences arising from the proper exercise of the
rights of the Union under the Rules for Participation or this grant agreement.

10. Example 4 Contracting Party with CU: Hemostasis and Thrombosis Society
Contract Subject: Grant Agreement
History: They required us to indemnify.  We tried different language and pushed the envelope, to no avail.  After trying with us they went to CU Foundation, who was unable to do it because of the monitoring/research requirements.  They also went to Children’s Hospital, who also refused because they knew we couldn’t agree to indemnify. 
Amount: Two separate researchers for $75k each for a total of $150,000.

11. HRTS Indemnification Language at Issue:
(b)  Applicant shall indemnify, defend, and hold harmless HTRS, its officers, directors, sponsors, attorneys, agents, and employees (together, the “indemnified party”) from and against any demand, claim, liability, loss, or expense (including, without limitation, reasonable attorneys’ fees and costs) that may be made or instituted against an indemnified party or that an indemnified party may suffer arising out of, or in any manner related to, the conduct of the Project or this Agreement except to the extent such demand, claim, liability, loss, or expense results directly and solely from the gross negligence or willful misconduct of the indemnified party.
(c)  In the event indemnification will be sought, the indemnified party shall promptly notify the Applicant of the claim. Applicant shall be entitled to control the defense of the claim, provided, however, that the indemnified party shall have the right to employ separate counsel to participate in the defense if the indemnified party shall have been advised by its counsel that there is a conflict of interest between such indemnified party and the Applicant in the conduct of the defense. In such case, the reasonable fees and expenses of such separate counsel shall be borne by the Applicant. The indemnified party shall reasonably cooperate with the Applicant in such defense, including but not limited to sharing relevant documents and making its personnel available for interviews. Applicant shall not compromise or settle any claim without the indemnified party’s prior written consent, which consent shall not be unreasonably withheld.

12. Example 5 Contracting Party with CU:
NASA- Dryden Flight Research Center
Contract Subject:
Research
Purpose of Contract:
Collaboration of NASA and CU regarding space environment testing to facilitate the commercial and public use of space-related technologies
Amount:
No transfer of funds, fulfill obligations through participation

13. NASA-DFRC Indemnification Language at Issue
ARTICLE 8. LIABILITY AND RISK OF LOSS – Cross Waiver of Claims
Each Party hereby waives any claim against the other Party, employees of the other Party, the other Party’s Related Entities (including but not limited to contractors and subcontractors at any tier, grantees, investigators, customers, users, and their contractors or subcontractor at any tier), or employees of the other Party’s Related Entities for any injury to, or death of, the waiving Party’s employees or the employees of its Related Entities, or for damage to, or loss of, the waiving Party’s property or the property of its Related Entities arising from or related to activities conducted under this Agreement, whether such injury, death, damage, or loss arises through negligence or otherwise, except in the case of willful misconduct.
Each Party further agrees to extend this cross-waiver to its Related Entities by requiring them, by contract or otherwise, to waive all claims against the other Party, Related Entities of the other Party, and employees of the other Party or of its Related Entities for injury, death, damage, or loss arising from or related to activities conducted under this Agreement. Additionally, each Party shall require that their Related Entities extend this cross-waiver to their Related Entities by requiring them, by contract or otherwise, to waive all claims against the other Party, Related Entities of the other Party, and employees of the other Party or of its Related Entities for injury, death, damage, or loss arising from or related to activities conducted under this Agreement.

14. OGC Contracts

15. Example 6 Contracting Party with CU:
Oak Ridge National Laboratory (ONRL)
Contract Subject:
Research
Purpose of Contract:
Battelle let’s CU use it’s facilities for the purposes of neutron scattering experiments, nanoscale materials research and microstructural characterization.
Amount:
No transfer of funds, fulfill obligations through participation

16. ONRL Indemnification Language at Issue:
ARTICLE VII: INDEMNITY AND LIABILITY
A. Personnel Relationships - USER shall be responsible for the acts or omissions of Participants.
B. Product Liability -If and to the extent permitted by US and US State law. if USER utilizes the work derived from this Agreement in the making, using, or selling of a product, process or service, then USER hereby agrees to hold harmless and indemnify CONTRACTOR and the United States Government, their officers, agents and employees from any and all liability, claims, damages, costs and expenses, including attorney fees, for injury to or death of persons, or damage to or destruction of property, as a result of or arising out of such utilization of the work by or on behalf of USER, its assignees or licensees.
C. General Indemnity -If and to the extent permitted by US and US State law, USER hereby agrees to indemnify and hold harmless CONTRACTOR and the United States Government, their officers, agents and employees from any and all liability, claims, damages, costs and expenses, including attorney fees, for injury to or death of persons, or damage to or destruction of property, to the extent such liability, claims, or damages is caused by or contributed to by the negligence or intentional misconduct of USER or its employees or representatives during the performance of the work under this Agreement.
D. Patent and Copyright Indemnity-Limited - If and to the extent permitted by US and US State law, USER shall fully indemnify the Government and CONTRACTOR and their officers, agents, and employees for infringement of any United States patent or copyright arising out of any acts required or directed or performed by USER under the Agreement to the extent such acts are not normally performed at the facility.

17. Example 7 Contracting Party with CU: Argonne National Laboratory
Contract Subject: Research
Purpose of Contract: Argonne is letting CU install equipment in designated areas of the APS facility and perform experiments
Amount: No transfer of funds, fulfill obligations through participation

18. Argonne Indemnification Language at Issue:
E. INDEMNITY AND LIABILITY 
Except to the extent of their negligence or intentional misconduct, neither the Government, the Department, The University of Chicago, nor persons acting on their behalf will be responsible for any injury to or death of persons or other living things or damage to or destruction of property or for any other loss, damage or injury of any kind whatsoever resulting from the performance of services or furnishings of materials hereunder.
NEITHER THE GOVERNMENT, THE DEPARTMENT, THE UNIVERSITY OF CHICAGO, NOR PERSONS ACTING ON THEIR BEHALF MAKES ANY WARRANTY, EXPRESS OR IMPLIED (1) WITH RESPECT TO THE ACCURACY, COMPLETENESS OR USEFULNESS OF ANY INFORMATION FURNISHED HEREUNDER, (2) THAT THE USE OF ANY SUCH INFORMATION MAY NOT INFRINGE PRIVATELY OWNED RIGHTS, (3) THAT THE SERVICES, MATERIALS, OR INFORMATION FURNISHED HEREUNDER WILL NOT RESULT IN INJURY OR DAMAGE WHEN USED FOR ANY PURPOSE, AND (4) THAT THE SERVICES, MATERIALS OR INFORMATION FURNISHED HEREUNDER WILL ACCOMPLISH THE INTENDED RESULTS OR ARE SAFE FOR ANY PURPOSE INCLUDING THE INTENDED PURPOSE.
Neither the Government, the Department, The University of Chicago, nor persons acting on their behalf will be responsible, irrespective of causes, for failure to perform the services or furnish the materials or information hereunder at any particular time or in any specific manner. Notwithstanding the foregoing, The University of Chicago's only rights to terminate this Agreement are set forth in Article I. below.
To the extent expressly permitted by State of Colorado law and to the extent of its negligence or intentional misconduct, User agrees to indemnify and save harmless the Government, the Department, The University of Chicago, and persons acting on their behalf from (1) all liability, including costs and expenses incurred, resulting from the User's use or disclosure of any information in whatever form, furnished hereunder, and (2) all liability to any persons including the User for injury to or death of persons or other living things or injury to or destruction of property arising out of performance by the Government, the Department, The University of Chicago, or persons acting on their behalf under this Agreement, or arising out of the use of the services performed, materials supplied, or information given hereunder by any person including the User, and not directly resulting from the fault or negligence of the Government, the Department, The University of Chicago, or persons acting on their behalf. The foregoing provisions shall have no application to public liability for nuclear incident as defined and provided for in the Atomic Energy Act of 1954, as amended.
To the extent expressly permitted by State of Colorado law, User agrees to indemnify the Government, the Department, The University of Chicago, and persons acting on their behalf against liability of any kind (including costs and expenses incurred) for the use of any invention or discovery and for the infringement of any Letters Patent (not including liability, arising pursuant to Section 183, Title 35 (1952), U.S. Code, prior to the issuance of Letters Patent) occurring in the performance of this Agreement by or at the direction of User.
User will be held liable for costs and expenses resulting from loss, damage, destruction, misuse, or alteration to or of Government property to the extent that such loss, damage, destruction, misuse, or alteration is caused or contributed to by the intentional or negligent act of User or its employees or representatives.

19. Example 8 Contracting Party with CU: Battelle Memorial Institute
Contract Subject:
Research
Purpose of Contract:
Battelle is letting CU use its facilities.
Amount:
No transfer of funds, each party will bear its own costs

20. Battelle Indemnification Language at Issue:
ARTICLE VII: INDEMNITY AND LIABILITY
A. Personnel Relationships - USER shall be responsible for the acts or omissions of
Participants.
B. Product Liability - To the extent permitted by U.S. Federal law and U.S. State law of USER, if USER utilizes the work derived from this Agreement in the making, using, or selling of a product, process or service, then USER hereby agrees to hold harmless and indemnify CONTRACTOR and the United States Government, their officers, agents and employees from any and all liability, claims, damages, costs and expenses, including attorney fees, for injury to or death of persons, or damage to or destruction of property, as a result of or arising out of such utilization of the work by or on behalf of USER, its assignees or licensees.
C. General Indemnity - To the extent permitted by U.S. Federal law and U.S. State law of USER, USER hereby agrees to indemnify and hold harmless CONTRACTOR and the United States Government, their officers, agents and employees from any and all liability, claims, damages, costs and expenses, including attorney fees, for injury to or death of persons, or damage to or destruction of property, to the extent such liability, claims, or damages is caused by or contributed to the negligence or intentional misconduct of USER or its employees or representatives during the performance of the work under this Agreement.
D. Patent and Copyright Indemnity-Limited -To the extent permitted by U.S. Federal law and U.S. State law of USER, USER shall fully indemnify the Government and CONTRACTOR and their officers, agents, and employees for infringement of any United States patent or copyright arising out of any acts required or directed or performed by USER under this Agreement to the extent such acts are not normally performed at the User Facility.
E. The liability and indemnity provisions in paragraphs B, C and D above shall not apply unless USER shall have been informed as soon as practicable by CONTRACTOR or the Government of the suit or action alleging such infringement, and such indemnity shall not apply to a claimed infringement that is settled without the consent of USER unless required by a court of competent jurisdiction.

21. Solutions?

22. Jeremy insert slide Solution 1

23. Solution 2 CSU Policy on Indemnification
Board Policy: Neither the Colorado State University System (System), nor any institution of the System, shall contract to indemnify or hold harmless any other person or party, except as authorized in this policy or otherwise expressly provided by law, without express approval by or on behalf of the Board. This Board policy shall not otherwise modify or amend prior delegations of authority from the Board to the System and the Institution Presidents regarding the authority to approve and execute contracts, agreements and other binding legal instruments. In accordance with Colorado law, C.R.S. § , the Board authorizes the System and the institutions, Colorado State University, Colorado State University...Pueblo and Colorado State University-Global Campus, to contract to indemnify and hold harmless certain contractors only if the agreement is specifically identified and approved in accordance with this policy and the procedures listed herein for such indemnification have been satisfied. The Chancellor may modify the System Fiscal Rules to be consistent with the directives and approvals contained in this policy.

24. Board Policy Continued…
Approved Contracts
The institutions and the System may contract to indemnify and hold harmless a contractor only when the contract meets criteria 1, 2, 3, 4 and 5:
  (1) The contract falls into one of the following categories ("Contract Type"):
  a. License of intellectual property;
b. Lease, license, sale or purchase of information technology goods and services;
c. Lease, license, sale, purchase or like agreement for specialized equipment, tools, services and/or supplies predominantly for research activities;
  d. License, permit or other similar agreement to enter upon or utilize land or other facilities or space;
e. Agreement where only the chosen product equipment, or service will meet the needs of the institution because it is an approved solesource procurement or , after reasonable due diligence, it has specifications that others lack and there has been a determination, after reasonable due diligence, that the product, equipment or service is not reasonably available from another contractor and the indemnification clause is not negotiable; or
 f. Agreement where the party seeking indemnification is the federal government or a state or local government or agency thereof, and the responsible agency or entity has declined a request to remove or nullify the indemnity clause.

25. (2) The contract is necessary and appropriate to the normal operation of the institution or System; (3) The contract clause requiring indemnification is considered standard in the industry, or, if no standard exists, is reasonable under the circumstances and is non· negotiable, as determined by the Office of the General Counsel or a designated reviewing attorney for the institution; (4) The maximum amount of liability to which the institution or the System is agreeing to be exposed under the indemnification or hold harmless clause of the contract does not exceed the following ("Liability Cap"): a. Expenditure Agreement: Where the contract is one in which the System and its institutions are expending funds or receiving goods, services or other benefits, the maximum amount of tort or other liability under the indemnification clause of the contract does not exceed $200,0001 b. Revenue Agreement: Where the contract is one in which the System and its institutions are receiving funds or providing goods, services or other benefits, the maximum amount of tort or other liability under the indemnification clause of the contract does not exceed the greater of $200,000 or the amount to be received by the System and its institutions under the contract. (5) The potential liability attributable to the indemnification or hold harmless clause in the contract is reasonably likely to be covered by insurance, bonds, surety instruments, loss reserves, a risk management fund, or other such source of funds. The Board hereby finds that Approved Contracts serve a valid public purpose and the risks to the System and the institutions are outweighed by the benefits of such contracts, provided that the procedures listed herein for approving such contracts have been followed.

26. Solution 3: AG Analysis
Colo. Rev. Stat. § (4) was enacted because the Colorado Constitution contains a provision that limits public debt. COLO. CONST. art. XI, § 1 states:
Neither the state, nor any county, city, town, township or school district shall lend or pledge the credit or faith thereof, directly or indirectly, in any manner to, or in aid of, any person, company or corporation, public or private, for any amount, or for any purpose whatever; or become responsible for any debt, contract or liability of any person, company or corporation, public or private, in township or school district shall lend or pledge the credit or faith thereof, directly or indirectly, in any manner to, or in aid of, any person, company or corporation, public or private, for any amount, or for any purpose whatever; or become responsible for any debt, contract or liability of any person, company or corporation, public or private, in or out of the state.