Purdue Purchasing Standard Terms and Conditions
Table of Contents
Clause 1 — Purchase Order Constitutes Entire Agreement
Clause 2 — Changes
Clause 3 — Applicable Law
Clause 4 — Compliance With Government Statutes And Regulations
Clause 5 — Acknowledgment Of Order
Clause 6 — Cancellations
Clause 7 — Warranties And Inspection
Clause 8 — Patents
Clause 9 — Bankruptcy
Clause 10 — Assignment
Clause 11 — Nondiscrimination
Clause 12 — Advertising
Clause 13 — Hazardous Material
Clause 14 — Indemnification
Clause 15 — Conflict Of Interest
Clause 16 — Sales Tax Clearance
Clause 17 — Records and Audits
Clause 18 — Accessibility
Terms and Conditions
TERMS AND CONDITIONS APPLICABLE TO ALL PURCHASES:
(1) PURCHASE ORDER CONSTITUTES ENTIRE AGREEMENT. This Purchase Order constitutes the entire agreement between the University and the Seller. No provision of any bid, proposal, quotation, specification or terms and conditions of Seller contained therein shall be deemed part of the Purchase Order or a modification of the Purchase Order, nor shall they have any legal effect, except to the extent that such provision is specifically stated on the purchase order. Except as provided in paragraph (2) below, no amendments, modifications, or change of or to the Purchase Order will be binding upon the University unless it is made in writing and signed by an authorized representative of the University's Purchasing Department.
(2) CHANGES. The University may from time-to-time, by written instructions issued to the Seller by an authorized representative of the University's Purchasing Department, make changes issue additional instructions, require additional goods, work, or services, or direct the omission of goods, work, or services ordered herein. If any such change causes an increase or decrease in the cost of or the time required for the performance of this Purchase Order, an equitable adjustment shall be made in the price or delivery schedule or both, and this Purchase Order shall be modified in writing accordingly. No extra work, additions, or alterations will be paid for by the University unless performed pursuant to the written instructions of an authorized representative of the University's Purchasing Department. Any claim by the Seller for adjustment under this provision must be asserted within thirty days from the date of receipt by the Seller of the notification of change. The terms and conditions of this agreement shall apply to all such written notifications.
(3) APPLICABLE LAW. This agreement shall be construed and interpreted solely in accordance with the laws of the State of Indiana; provided, however, that any Purchase Order issued under a U. S. Government prime contract be construed and interpreted in accordance with Federal law relating to U. S. Government prime contracts.
(4) COMPLIANCE WITH GOVERNMENT STATUTES AND REGULATIONS. The Seller warrants and certifies that in the performance of this contract it has complied with or will comply with all applicable statutes, rules, regulations and orders of the United States, and any state or political subdivision thereof, including laws and regulations pertaining to labor, wages, hours and other conditions of employment, and applicable price ceilings, if any, and that the goods or services delivered hereunder shall be produced or performed in compliance with the Fair Labor Standards Act.
(5) ACKNOWLEDGMENT OF ORDER. Either the Seller's written acknowledgment of this Purchase Order or the shipment of goods or commencement of performance hereunder, shall constitute acceptance of this Purchase Order, and no contrary or additional terms or conditions shall apply. If shipment of goods or commencement of performance will not occur on or shortly after date of receipt of the Purchase Order by the Seller, the Seller will provide the University with written acknowledgment of this Purchase Order.
PENALTIES/INTEREST/ATTORNEY’S FEES. Purdue will in good faith perform its required obligations hereunder and does not agree to pay any penalties, late charges, liquidated damages, interest or attorney’s fees.
- Time is of the essence and the University may, at its option, and without limitation of any of its other rights, cancel all or any unfilled part of this Purchase Order if the Seller does not deliver as specified or so fails to make progress as to endanger performance of the work or services, and does not correct such failure within ten days after receipt of written notice from the University specifying such failure, or if the Seller breaches any part of the terms hereof, including the warranties of Seller.
- The University represents that it intends to fulfill all of its obligations under this Purchase Order for the full term as set forth herein, and continue to seek appropriation of sufficient funds to make all payments hereunder, during the specified period.The University may terminate this Purchase Order in the event that funds are not appropriated for any fiscal year for this Purchase Order or good and/or services which are substantially the same as or are similar to those planned or intended for the equipment and/or goods furnished thereunder; PROVIDED THAT: The University shall give Seller written notice of such termination at the earliest possible time. When the Director of Procurement Services makes a written determination that funds are not appropriated or otherwise available to support the continuation of the performance of a contract and/or purchase order, the contract and/or purchase order may be canceled. A determination by the Director that funds are not appropriated or otherwise available to support the continuation of performance shall be final and conclusive.
- In the event that either party is unable to perform any of its obligations under this Agreement or to enjoy its benefits because of natural disaster, epidemic, pandemic or decrees of governmental bodies not the fault of the affected party (hereinafter referenced to as a "Force Majeure Event"), the party who has been so affected shall immediately give notice to the other party and shall do everything possible to resume performance. Upon receipt of such notice, all obligations under this Agreement shall be immediately suspended. If the period of nonperformance exceeds thirty (30) days from the receipt of notice of the Force Majeure Event, the party whose ability to perform has not been so affected may, by giving written notice, terminate this Agreement with immediate effect. Without limiting the foregoing, COMPANY understands and agrees that, for the purposes of this force majeure clause and agreement, Purdue as an instrumentality of the State of Indiana to which the legal and law enforcement jurisdiction, emergency management, and life/health safety responsibilities have been delegated, shall have the sole right to determine whether or not there exists an epidemic/pandemic situation that should either limit public access to Purdue or the travel of individuals to or from Purdue, and may suspend performance under this Agreement temporarily, or terminate this Agreement in part or in its entirety.
(7) WARRANTIES AND INSPECTION. The Seller warrants that all goods or work supplied under this Purchase Order shall conform to specifications, drawings, samples, or other descriptions contained or referenced herein and shall be merchantable, of good quality and workmanship and free from defect. The Seller warrants that all goods covered by this Purchase Order which are the product of the Seller or are in accordance with the Seller's specifications, will be fit and serviceable for the purpose intended. All such goods or work shall be subject to the University's inspection before acceptance, and also to later rejection if use reveals defects not apparent upon receipt; and if rejected will be held at Seller's risk and expense for storage and other charges. Neither receipt of goods nor payment therefore shall constitute a waiver of this provision.
(8) PATENTS. The Seller warrants that the products/services hereby sold, either alone or in combination with other materials, do not infringe upon or violate any patent, copyright trade secret, or any other proprietary right of any third party existing under laws of the United States or any foreign country. The Seller agrees to, at the Seller's own expense, to defend any and all actions or suits alleging such infringements and will save the University, its officers, agents, servants and employees harmless in cases of such infringement.
(9) BANKRUPTCY. In the event of any proceedings in bankruptcy or insolvency by or against the Seller, or in the event of the appointment (with or without the Seller's consent) of an assignee for the benefit of creditors, or of a receiver, the University may cancel this Purchase Order.
(10) ASSIGNMENT. Seller shall not assign this Purchase Order or any of Seller's rights or obligations hereunder, without the University's prior written consent.
(11) NONDISCRIMINATION. The Seller, or 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. The Seller, or its subcontractor(s), if any, agrees to comply with all the provisions contained in Executive Orders No. 11246 and No. 11375, the Equal Employment Opportunity Clause requirements as set forth at 41 CFR 60-1.4, 41 CFR 60-250.22 and 41 CFR 60-741.5(a), which are hereby incorporated by reference and made a part hereof, and the nondiscrimination mandates of the Indiana Civil Rights Law as presently codified at Ind. Code § 22-9-1-1 et seq. As used therein the word "contractor" shall be deemed to mean "Seller," and the word "contract " shall refer to this Agreement. In addition, the seller shall cause the Equal Opportunity Clauses references above to be included in their subcontracts or purchase orders hereunder unless exempted by rules, regulations and orders of the Secretary of Labor issued pursuant to Section 204 of the Executive Orders No. 11246 and No. 11375 as amended.
(12) ADVERTISING. Seller agrees not to make reference to the University in any advertising material of any kind without the expressed written permission of the University.
(13) HAZARDOUS MATERIAL. The Seller warrants that all materials ordered herein which have been classified by the Department of Transportation as hazardous materials for the purposes of transportation will be packaged, marked, labeled, and shipped in accordance with the provisions of Title 49, Code of Federal Regulations, Parts 100 thru 199, as amended.
(14) INDEMNIFICATION. The Seller agrees to indemnify the University and hold it harmless from and against all liability, losses, damages, claims, liens, and expense (including reasonable legal fees) arising out of or connected with the work or services performed, including Seller’s breach of this Agreement, or resulting from damages or injuries incurred by the University by reason of any defect in material, workmanship, and/or design of any goods furnished hereunder, excepting only such liability as may result solely from the acts of negligence of the University or its employees. The Seller shall at the request of the University undertake to defend any and all suits and to investigate and to defend any and all claims whether justified or not, if such claim or suit be against Purdue University, the Trustees of Purdue University, or their respective officers, agents, servants, and employees.
(15) CONFLICT OF INTEREST. An Indiana criminal statute (IC 35-44-1-3) prohibits public servants from knowingly or intentionally having a pecuniary interest in, or deriving a profit from, any contract or purchase connected with an action by the governmental entity which such person serves, with certain stated exceptions. Accordingly, if any person having any interest in the Seller is an officer or employee of Purdue University, disclosure of this fact must be made so that the possible application of this statute may be investigated.
(16) SALES TAX CLEARANCE. Indiana state law requires the University to submit certain information about Seller, including but not limited to, Federal Employee Identification Number (FEIN) to the Indiana Department of Revenue (IDOR) for sales tax clearance. If Seller is not registered in Indiana as a retail merchant or is delinquent in the payment or reporting of Indiana sales tax, the University is required to suspend further procurements from Seller until Seller resolves the problem with IDOR and IDOR issues a clearance to the University. Citations: House Enrolled Act (HEA) 1811 which, effective July 1, 2003, is promulgated in IC 5-17-1-11; IC 5-22-16-4; IC 6-2.5-14 and IC 6-2.5-8-10. Sellers having no nexus in Indiana are not required to register. Amended 7/1/2007.
(17) RECORDS AND AUDITS: Seller shall maintain a through and complete record of its hours of service performed for the University under this Agreement and the reasonable business expenses incurred by it in connection with the services performed under this Agreement (it being understood and agreed that Seller shall be solely responsible for paying all of its own direct costs and expenses incurred in connection with providing the services hereunder). Seller agrees to cooperate with the University in any audit or review relating to the provision of services pursuant to this Agreement. The University shall have the right, upon reasonable notice, to audit at any time up to 6 years after payment of its final invoice, the direct costs, expenses, and disbursements made or incurred with the services in connection with the services to be performed herein and the basis on which the costs were derived and may examine Seller's records and books relating to these several areas.
(18) ACCESSIBILITY. COMPANY warrants the products and/or services provided pursuant to this Agreement conform to the W3C Web Content Accessibility Guidelines, version 2.0 ("WCAG 2.0") at conformance levels A and AA. For additional information on WCAG 2.0, please click here. In the event that the products and/or services provided hereunder do not fully conform to WCAG 2.0 A and AA, COMPANY must advise Purdue in writing of such nonconformance, and should provide detailed information regarding the plans to achieve conformance, including but not limited to an intended timeline. With respect to non-web based electronic and information technologies ("EIT's"), COMPANY shall use commercially reasonable efforts to ensure that the products provided under this Agreement comply with and shall remain complaint with the accessibility requirements of section 508 of the Rehabilitation Act of 1973, as amended (29 U.S.C. § 794d), and its implementing regulations set forth at Title 36, Code of Federal Regulations, Part 11949 (together, the "Rehabilitation Act"). COMPANY agrees to promptly respond to and resolve any complaint regarding accessibility of its products or services provided to Purdue under this Agreement. COMPANY further agrees to indemnify and hold Purdue harmless from any claims arising out of its failure to comply with the aforesaid requirements. Failure to comply with these requirements shall constitute a breach and be grounds for termination of this Agreement.
ADDITIONAL TERMS AND CONDITIONS FOR PURCHASES INVOLVING ON-SITE LABOR:
(19) INSURANCE. If fabrication, construction, installation, service or other work is specified to be conducted on the University's premises, the Seller and/or its subcontractor(s), if any, shall maintain in force during the period of such work the following coverages: (a) worker's compensation, as required by the laws of the State of Indiana; (b) commercial general liability for bodily injury and/or property damage in an amount of not less than $1,000,000 single limit, per occurrence; (c) automobile liability for bodily injury and/or property damage in an amount of not less than $1,000,000 single limit, per occurrence. Upon Purdue's request, the Seller and/or its subcontractor(s) shall furnish to Purdue a Certificate of Insurance as proof of the required insurance coverages.
(20) BACKGROUND CHECK. If fabrication, construction, installation, service, delivery or other work is specified to be conducted on the University's premises, the Seller and its subcontractor(s), if any, shall perform security clearance background checks on all Seller’s and/or its subcontractor(s)’s officers, agents, employees, or volunteers assigned to have access to the University’s premises to identify whether any such individual is a registered sex offender pursuant to Zachary’s Law, Ind. Code § 11-8-8 et. seq. or the equivalent law of the individual’s state of residence. Seller and/or its subcontractor(s) shall not assign any individuals identified as registered sex offenders to perform work or services at the University’s premises. The University reserves the right to immediately remove any individuals identified as registered sex offenders from the University’s premises. The University reserves the right to require additional background checks be made on any of Seller’s and its subcontractor(s)’s officers, agents, employees or volunteers assigned to have access to the University’s premises.
(21) REGISTRATION. The Indiana General Corporation Act requires that certain foreign corporations (i.e., corporations not incorporated under the said Indiana Act) organized for profit, if not already qualified to transact business in Indiana, must procure a certificate of admission from the Secretary of State of Indiana, before transacting any business in said State. Information concerning this statute and its administration, and penalties for non-compliance, may be obtained through the Office of the Secretary of State.
(22) WITHHOLDING. The University is required by laws of the State of Indiana to withhold specified percentages of all amounts paid to non-resident contractors (which term does not include a foreign corporation qualified to do business in Indiana) for performance of certain contracts, excluding the first $1,000,000 paid to any such non-resident contractor during any calendar year. Any amounts so withheld are paid over directly to the Indiana Department of State Revenue.
PURCHASES PLACED UNDER A UNITED STATES GOVERNMENT CONTRACT OR GRANT:
If this Purchase Order indicates it is placed under a United States Government Contract or Grant , this order is subject to the following Federal Acquisition Regulations (FAR) clauses as in effect, and as modified by Federal Acquisition Circulars; and Office of Management and Budget (OMB) Circular A-110 as in effect on the date of this Purchase Order which are hereby incorporated by reference and made a part hereof:
|52.203-1||Officials not to benefit|
|52.203-5||Covenant Against Contingent Fees|
|52.220-50||Combating Trafficking in Persons|
|52.222-1||Notice to the Government of Labor Disputes|
|52.223-3||Hazardous Material Identification and Material Safety Data|
|52.223-4||Recovered Material Certification|
|52.223-7||Notice of Radioactive Materials|
|52.225-3||Buy American Act - Supplies|
|52.230-3||Cost Accounting Standards|
|52.230-4||Administration of Cost Accounting Standards|
|52.249-1||Terminations for Convenience of the Government|
|52.222-4||Contract Work Hours & Safety Standards Act - Overtime Compensation|
|52.222-36||Affirmative Action for Handicapped Workers|
|52.222-20||Walsh-Healy Public Contracts Act|
|52.222-35||Affirmative Action for Special Disabled and Vietnam Era Veterans|
|52.222-37||Employment Reports on Special Disabled Veterans and Veterans of the Vietnam Era|
|52.203-10||Price or Fee Adjustment for Illegal or Improper Activity|
|52.208-1||Required Sources for Jewel Bearings and Related Items|
|52.209-5||Certificate Regarding Debarment, Suspension, Proposed Debarment, and other Responsibility matters|
|52.209-6||Protecting the Government's Interest when Sub-contracting with Contractors Debarred, Suspended, or Proposed for Debarment|
|52.215-1||Examination of Records by Comptroller General|
|52.215-2||Audit - Negotiation|
|52.219-4||Notice of Small Business Small Purchase Set-Aside|
|52.219-8||Utilization of Small Business Concerns and Small Disadvantaged Business Concerns|
|52.220-1||Preference for Labor Surplus Area Concerns|
|52.220-3||Utilization of Labor Surplus Area Concerns|
|52.222-18||Notification of Employee Rights Concerning Payment of Union Dues or Fees|
|52.223-5||Certification Regarding a Drug-Free Workplace|
|52.203-8||Requirement for Certificate of Procurement Integrity|
|52.203-9||Requirement for Certificate of Procurement Integrity -Modification|
|52.203-11||Certification and Disclosure Regarding Payments to Influence Certain Federal Transactions|
|52.203-12||Limitation on Payments to Influence Certain Federal Transactions|
|52.215-24||Subcontractor Cost or Pricing Data|
|52.222-2||Payment for Overtime Premium|
|52.223-1||Clean Air and Water Certification|
|52.223-2||Clean Air and Water|
|52.225-10||Duty Free Entry|
|52.230-5||Disclosure and Consistency of Cost Accounting Practices|
|52.249-2||Termination for Convenience of the Government (Fixed Price)|
|52.219-9||Small Business and Small Disadvantaged Business Subcontracting Plan|
|52.220-4||Labor Surplus Area Subcontracting Program|
|52.244-1||Subcontracts (Fixed Price Contracts)|