1-Master - New Standard Terms and Conditions.pdf

ATTACHMENT A: STANDARD CONTRACT TERMS AND CONDITIONS

FOR GOODS AND/OR SERVICES

The following are the Standard Contract Terms and Conditions applicable to all Snow College contracts.

ACCEPTANCE OF A CONTRACT IS AN AGREEMENT BY THE CONTRACTOR TO ALL OF THE TERMS

AND CONDITIONS CONTAINED HEREIN (HEREINAFTER REFERRED TO AS the “T&C”). NO

MODIFICATION OR WAIVER OF ANY OF THE PROVISIONS OF THE T&C WILL BE BINDING UPON

SNOW COLLEGE UNLESS MADE IN A WRITING SPECIFICALLY REFERRING TO THIS T&C AND

SIGNED BY AN AUTHORIZED REPRESENTATIVE OF SNOW COLLEGE. THE SIGNING OF THE

CONTRACTOR’S DOCUMENTS SHALL NOT BE CONSIDERED A MODIFICATION OR WAIVER OF ANY

OF THESE PROVISIONS. ANY AND ALL PRE-PRINTED TERMS AND CONDITIONS ON CONTRACTOR’S

DOCUMENTS ARE HEREBY REJECTED AND SHALL BE SUPERSEDED BY THIS DOCUMENT. IN THE

EVENT OF A CONFLICT BETWEEN THE TERMS AND CONDITIONS CONTAINED HEREIN AND THOSE

TO WHICH THESE T&C HAVE BEEN ATTACHED SHALL BE RESOLVED IN FAVOR OF THESE T&C.

Any defined terms used throughout the T&C have the same meaning provided within the attached contract unless otherwise specifically defined herein.

1. APPLICABILITY: The T&C shall apply to all contracts for goods and/or services. “Services” means the furnishing of labor, time, or effort by Contractor pursuant to the Contract. Services include, but are not limited to, all of the deliverable(s) (including supplies, equipment, or commodities) that result from the Contractor’s performance of the agreed-upon Services. Services include professional services. “Goods” means all types of tangible personal property (commodities), including but not limited to materials, supplies, and equipment that Contractor is required to deliver under the Contract. To the extent the Contract entails the delivery or performance of services (including maintenance, installation, or product support) such services will be deemed “Goods” within the meaning of the Utah Uniform Commercial Code when reasonable to do so.

2. LAWS AND REGULATIONS: Contractor shall comply with and hereby warrants that it is in compliance with all applicable federal and state laws, rules, codes, orders, and regulations, including applicable licensure and certification requirements and applicable public-health ordinances. Where applicable, Contractor agrees to abide by Snow College policies, procedures, rules and regulations including, but not limited to, fire, safety, traffic, parking, and security regulations. Contractor agrees to obtain all required certificates, permits, licenses, and inspections necessary for the proper execution and completion of the object of the Contract. Contractor shall take all necessary precautions to prevent injury and loss to persons or property. Contractor shall promptly repair all damage caused by the work, and restore all areas damaged by the work to their original condition.

3. CONTRACT JURISDICTION, CHOICE OF LAW, VENUE: The provisions of the Contract shall be governed by the laws of the State of Utah. The parties will submit to the jurisdiction of the courts of Sanpete County, Utah for any dispute arising out of this Contract or the breach thereof. Venue shall be in Sanpete County, Utah.

4. RECORDS ADMINISTRATION: The Contractor shall maintain, or supervise the maintenance of, all records necessary to properly account for the payments made to the Contractor for costs authorized by the Contract for at least six (6) years after final payment, or until all audits initiated within this six-year period have been completed, whichever is later. The Contractor agrees to allow Snow College and/or State and Federal auditors and staff, at no additional cost, to access any and all records pertaining to the Contract for audit, inspection, and monitoring of Services. Such access will be during normal business hours, or by appointment.

5. CONFLICT OF INTEREST AND PROCUREMENT ETHICS: The Contractor represents that none of its officers or employees are officers or employees of Snow College, unless disclosure has been made in accordance with Utah Code §67-16-8, as amended. Further, Contractor certifies that it has not offered or given any gift or compensation prohibited by any law, including Utah Code §67-16-5 and 5.6, to any officer or employee of Snow College to secure favorable treatment with respect to being awarded this Contract and is otherwise in compliance with the Procurement Code of State of Utah.

6. INDEPENDENT CONTRACTOR: The Contractor shall be an independent contractor and as such shall have no authorization, express or implied, to bind Snow College to any agreements, settlements, liability, or understanding whatsoever, and agrees not to perform any acts as agent for Snow College, except as herein expressly set forth. The compensation stated in the Contract shall be the total amount payable to the Contractor by Snow College. The Contractor understands and agrees that it shall be responsible for the payment of all income tax and social security amounts due as a result of payments received from Snow College for these Services. Persons employed by Snow College and acting under the direction of Snow College shall not be deemed to be employees or agents of the Contractor.

7. EQUAL OPPORTUNITY AND TITLE IX: Contractor agrees to abide by the provisions of state and federal law and regulation prohibiting discrimination on any basis. This includes the following: Title VI and VII of the Civil Rights Act of 1964, 42 U.S.C. §2000(e), which prohibits discrimination against any employee or applicant for employment or any applicant or recipient of services on the basis of race, religion, color, or national origin;

Executive Order No. 11246, as amended, which prohibits discrimination on the basis of sex; 45 CFR §90, which prohibits discrimination on the basis of age; Section 504 of the Rehabilitation Act of 1973 or the Americans with Disabilities Act of 1990, which prohibit discrimination on the basis of disabilities; Utah's Executive Order, dated March 17, 1993, which prohibits sexual harassment in the workplace; and Title IX of the Education Amendments of 1972 (20 U.S.C. §1681), which prohibits discrimination on the basis of sex in any federally funded education program or activity. Contractor shall include the necessary provisions in any subcontract or purchase order relating to the provision of goods and services to Snow College in connection with the Contract to ensure that such subcontractors and vendors are equally bound by this provision. Contractor additionally agrees: (i) that it will cooperate with any investigation by Snow College of a claimed violation of the above; (ii) to abide by any interim measures imposed during the course of an investigation and/or final measures imposed as a result of an investigation; and (iii) that the Contract may be terminated without further recourse in the event of a finding of a violation by Contractor or its employees, subcontractors, and related parties.

8. DEBARMENT: The Contractor certifies that neither it nor its principals are presently or have ever been debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participation in any transaction or contract, by any governmental department or agency. The Contractor must notify Snow College Director of Purchasing within seven (7) days if it or its principals are debarred by any governmental entity during the Contract period.

9. CHANGE IN LAW OR NONAPPROPRIATION OF FUNDS: Upon thirty (30) days written notice delivered to the Contractor, the Contract may be terminated in whole or in part at the sole discretion of Snow College if Snow College reasonably determines that: (i) a change in Federal or State legislation or applicable laws materially affects the ability of either party to perform under the terms of this Contract; or (ii) that a change in available funds affects Snow College’s ability to pay as required by the Contract. A change of available funds as used in this paragraph includes, but is not limited to, a change in Federal or State funding, whether as a result of a legislative act or by order of the President or the Governor. If written notice is delivered under this section, Snow College will reimburse Contractor for products delivered or services performed through the date of cancellation or reduction, and Snow College will not be liable for any future commitments, penalties, or liquidated damages.

10. SALES TAX EXEMPTION: As a governmental unit of the State of Utah, Snow College is exempt from paying

Utah sales tax on purchases made by the College. Snow College’s sales and use tax exemption number is 11972586- 002-STC. In addition, Snow College has a State of Utah religious and charitable sales tax exemption number whereby certain purchases of tangible personal property made by construction contractors, purchased on behalf of the College in accordance with Utah Tax Commission Rule R865-19S-58, may be exempt from Utah sales tax. The Contractor and Snow College will work together to decide what College construction projects are eligible for the Contractor to receive and use the College’s religious and charitable sales tax number in order to purchase materials tax exempt.

11. WARRANTY: The Contractor hereby warrants and assumes responsibility for all products (including hardware, firmware, and/or software products) that it licenses, contracts, or sells to Snow College under this Contract for a minimum period of one (1) year unless otherwise specified and mutually agreed upon in a signed writing. Contractor acknowledges that all warranties granted to the buyer by the Uniform Commercial Code, as adopted by the State of Utah, apply to this Contract. Product liability disclaimers and/or warranty disclaimers from Contractor or seller are not applicable to this Contract unless otherwise specified and mutually agreed upon in a signed writing. In general, the Contractor warrants that: (i) the product will do what the salesperson said it would do; (ii) the product will live up to all specific claims that the manufacturer makes in their advertisements; (iii) the product will be suitable for the ordinary purposes for which such product is used; (iv) the product will be suitable for any special purposes that Snow College has relied on the Contractor’s skill or judgment to consider when it advised Snow College about the product; (v) the product has been properly designed and manufactured; and (vi) the product is free of significant defects or unusual problems about which Snow College has not been warned. Unless otherwise agreed to in writing, the Goods shall be new and not used or reconditioned. Contractor further warrants that Goods delivered hereunder will be free and clear of all security interests, liens, charges, restrictions, or encumbrances whatsoever, and that the Contractor will convey to Snow College good and marketable title to the Goods.

12. STANDARD OF CARE: The Contractor warrants and represents that each of its employees, subcontractors, or agents assigned to perform any services under the terms of the Contract have the skills, training, and background reasonably commensurate with his or her level of performance or responsibility, so as to be able to perform in a competent and professional workmanlike manner consistent with applicable industry standards. The Contractor further warrants that for a minimum period of one (1) year, unless otherwise specified and mutually agreed upon in a signed writing, the services provided hereunder will be free from defects in workmanship and will conform to the mutually agreed specifications.

13. REMEDIES: In the event of Contractor’s breach of the Contract, Snow collage may take any or all of the following actions, without limiting any other rights or remedies available to Snow College by law: (i) require Contractor to repair or replace (at no additional cost to Snow College) any product whose nonconformance is discovered and made known to the Contractor in writing; (ii) if the repaired and/or replaced product proves to be inadequate, or fails at its essential purpose, Snow College may require Contractor refund the full amount of any payments that have been made; and/or (iii) require Contractor, at no additional cost to Snow College, re-preform the non-conforming Services or refund any fees paid by Snow College for the non-conforming Services. Failure to cure any such breach within thirty (30) days of receipt of notice shall be considered a material breach of contract for which Snow College may immediately terminate the Contract. Upon such termination, Snow College shall have no further obligations to remit further payment to Contractor. Such termination shall not relive Contractor for its obligation to reimburse Snow College for any non-compliant Service for which Contractor has received written notice. In addition, Snow College shall be entitled to the greater of the rights contained in this section or any warranty offered by Contractor or the manufacturer, including a warranty period of greater than one (1) year.

14. ACCESSIBILITY: Contactor represents and warrants that deliverables comply with Web Content Accessibility

Guidelines (WCAG) Version 2.0 Level AA (or the most current version). Contractor hereby agrees to: (i) provide written documentation verifying accessibility; (ii) to promptly respond to and resolve accessibility complaints received from Snow College; and (iii) to defend, indemnify, and hold Snow College harmless in the event of claims arising due to inaccessibility.

15. DELIVERY: Orders must be shipped directly to ordering department at the address specified. Shipments must be made in accordance with the item(s) as described and priced on the order. Also, orders must be shipped F.O.B. Destination, Freight Prepaid, unless other shipping instructions are described herein. UNLESS INDICATED

OR OTHERWISE AGREED UPON, ALL ORDERS MUST BE SHIPPED PROMPTLY (WITHIN 5 WORKING

DAYS), UPON RECEIPT OF ORDER. Responsibility and liability for loss or damage will remain with Contractor until final inspection and acceptance when responsibility will pass to Snow College except as to latent defects, fraud, and Contractor's warranty obligations.

16. PRICING AND INVOICING: Prices to be paid for Goods or Services ordered are the prices listed in the Contract, which include all shipping and delivery charges, unless otherwise specified. CONTRACTOR WILL, AFTER

DELIVERY, PROMPTLY SUBMIT A CORRECT INVOICE (WITHIN 30 DAYS OF SHIPMENT OR

DELIVERY OF SERVICES) TO SNOW COLLEGE. Contractor agrees that Snow College has a right to adjust or return any invoice that reflect incorrect pricing. Unless otherwise specified, payment terms shall be net thirty (30) days following the date the order is delivered or the date a correct invoice is received, whichever is later. All payments to the Contractor will be remitted by mail unless paid by SNOW COLLEGE’s Purchasing Card (major credit card).

Snow College may withhold payment if: (i) Contractor has not complied with the terms of this Contract; (ii) liens or claims have been filed or made, or there is reasonable probability that they may be made; or (iii) the Contractor has not promptly made payments to all material men or subcontractors, if any.

17. PROMPT PAYMENT DISCOUNT: Contractor shall reflect on the Invoice the Payment Discount Terms originally quoted, bid, or offered. The period for computing a discount shall begin on the date a correct invoice, including any adjustment for damage or incomplete shipment, is received by Snow College. Discount will be taken on the total amount of the invoice. The prompt payment discount, if any, will apply to payments made with purchasing cards, checks, and by electronic transfer.

18. TRAVEL: If the Contract provides for reimbursement or payment of travel expenses, such payment or reimbursement shall be limited in accord with the types and amounts authorized by the State of Utah and Snow College for employee travel. See Utah Administrative Code R25-7; Snow College Policies.

19. TIME IS OF THE ESSENCE: Services shall be completed by any applicable deadline stated in the Contract. For all Services, time is of the essence. Contractor shall be liable for all reasonable damages to Snow College, the State of Utah, and anyone for whom the State of Utah may be liable as a result of Contractor’s failure to timely perform the Services required under the Contract.

20. INTELLECTUAL PROPERTY: Snow College and Contractor each recognizes that each has no right, title, or interest, proprietary or otherwise, in the intellectual property owned or licensed by the other, unless otherwise agreed upon by the parties in writing. All Goods, Services, documents, records, programs, data, articles, memoranda, and other materials specifically commissioned and/or manufactured under this Contract for Snow College’s exclusive use shall be considered work made for hire, and Contractor shall transfer any ownership claim to Snow College. In the event such intellectual property is not deemed to constitute a work made for hire, or if Contractor should otherwise, by operation of law, be deemed to retain any rights (whether moral or otherwise) in such intellectual property, then Contractor agrees to assign, and does hereby assign to Snow College, without further consideration, Contractor’s entire right, title, and interest in and to such Intellectual Property.

21. CONFIDENTIALITY: If any information designated as confidential (“Confidential Information”) is provided or disclosed to Contractor, Contractor shall: (i) advise its agents, officers, employees, partners, and subcontractors of the obligations set forth in the Contract; (ii) keep all Confidential Information strictly confidential; and (iii) not disclose any Confidential Information received by it to any third parties. Upon Contractor confirmation of any potential or actual misuse or misappropriation of Confidential Information, Contractor will promptly notify Snow College. Contractor shall be responsible for any breach of this duty of confidentiality, including any required remedies and/or notifications under applicable law. Upon termination or expiration of this Contract, Contractor will return all copies of Confidential Information to Snow College or certify, in writing, that the Confidential Information has been destroyed. This duty of confidentiality shall be ongoing and survive the termination or expiration of this Contract.

22. PUBLIC INFORMATION: Contractor acknowledges that Snow College: (i) is a governmental entity subject to the Utah Government Records Access and Management Act, Utah Code Ann. § 63G-2-101 et seq., as amended ("GRAMA"); (ii) that certain records within SNOW COLLEGE’S possession or control, including without limitation, the Contract, related sales orders, invoices and purchase orders will be public documents, and may be subject to production to third parties; and (iii) the provisions of GRAMA will take precedence over any statements of confidentiality, proprietary information, copyright information, or similar notation on the above-described documents. Snow College is not obligated to give Contractor advance notice of any request for disclosure of the above-described documents and any requirement of Contractor to give advanced notice of a possible production of these materials is expressly rejected.

23. INDEMNITY: Contractor agrees to indemnify, hold harmless, defend, and release Snow College, its officers, agents, volunteers, and employees (hereinafter, the “Indemnified Parties”) from and against any and all loss, damages, deficiencies, injury, liability, suits, claims, actions, judgments, settlements, proceedings, interest, awards, penalties, fines, costs, or expenses of whatever kind, including professional fees and attorneys’ fees arising out of, or associated in any way, with Contractor’s performance under the Contract, including, but not limited to, any third-party claims alleging: (a) breach or non-fulfilment of any representation, warranty, or covenant in the Contract or these T&C by Contractor or its employees; (b) any negligent, or more culpable act or omission of Contractor or its employee (including any reckless or willful misconduct) in connection with the performance of the obligations under the Contract; (c) any bodily injury, death (wrongful or otherwise) of any person, damage to real or tangible personal property caused by the negligent, or more culpable acts or omissions of Contractor or its employees (including any reckless or willful misconduct); (d) any failure by Contractor to comply with any applicable federal, state, or local laws, regulations, or codes in the performance of its obligations under the Contract; or (e) infringement of any patent, trademark, trade name or copyright associated with Snow College’s use of the Goods and/or Services. Snow College shall not be liable for any special, consequential, lost profit, expectation, punitive, or other indirect damages in connection with any claim arising out of or relating to the Contract, whether grounded in tort (including negligence), strict liability, contract, or otherwise. Any term of Contractor’s regarding a duty to indemnify it is expressly rejected. In the event of any breach of the Contract by Contractor, Contractor shall pay all costs associated with the enforcement thereof, including attorney’s fees.

24. ASSIGNMENT/SUBCONTRACTING: Contractor will not assign, sell, transfer, subcontract or delegate its duties without the prior written approval of Snow College.

25. INSURANCE: Contractor agrees to procure and keep in place any necessary insurance for commercial general liability, professional liability insurance (if traditionally obtained in Contractor’s industry), workers compensation insurance (as required by law), and, if transporting Snow College employees, agents, or students, automobile liability insurance. Such insurance will be in commercially reasonable amounts. Contractor shall provide proof of the general liability insurance policy and other required insurance policies to Snow College within thirty (30) days of contract award. Contractor hereby agrees to include Snow College as an additional insured with notice of cancellation. Failure to provide proof of insurance as required will be deemed a material breach of this Contract. Contractor’s failure to maintain this insurance requirement for the term of this Contract will be grounds for immediate termination of the

26. FORCE MAJEURE: Neither party to the Contract will be held responsible for delay or default when and to the extent such delay or default is caused by or results from acts beyond that party’s reasonable control, including, without limitation: (i) flood, fire, earthquake or explosion; (ii) acts of God; (iii) war, invasion, hostilities (whether ware is declared or not), terrorist threats or acts, riot, or other civil unrest; (iv) changes in applicable law; (v) actions, embargoes or blockades in effect on or after the date of this Contract; (vi) action by any governmental authority;

(vii) national or regional emergency; (viii) strikes, labor stoppages or slowdowns or other industrial disturbances;

(ix) shortage of adequate power or transportation facilities; or (x) pandemics. Snow College may terminate this Contract after determining such delay or default will reasonably prevent successful performance of the Contract.

If terminated, Snow College will pay any outstanding invoices to the extent Snow College has obtained value for the provided goods or services.

27. CERTIFY REGISTRATION AND USE OF EMPLOYMENT "STATUS VERIFICATION SYSTEM”: The

Status Verification System, also referred to as “E-verify,” only applies to contracts issued through a Request for Proposal process and to sole sources that are included within a Request for Proposal. To the extent applicable:

a. Contractor certifies as to its own entity, under penalty of perjury, that Contractor has registered and is participating in the Status Verification System to verify the work eligibility status of Contractor’s new employees that are employed in the State of Utah in accordance with applicable immigration laws.

b. Contractor shall require that each of its subcontractors certify by affidavit, as to their own entity, under penalty of perjury, that each Subcontractor has registered and is participating in the Status Verification System to verify the work eligibility status of Subcontractor’s new employees that are employed in the State of Utah in accordance with applicable immigration laws.

c. Contractor’s failure to comply with this section will be considered a material breach of this

28. CONFLICT OF TERMS AND ORDER OF PREFERENCE: Contractor Terms and Conditions that apply must be in writing and expressly referred to and approved in writing by a SNOW COLLEGE authorized contract signer.

No other terms and conditions will apply to the Contract including terms listed or referenced on a Contractor’s website, terms listed in a Contractor quotation/sales order, Contractor’s standard Terms and Conditions, etc. In the event of any conflict in the terms and conditions of the Contract, the order of precedence shall be: (i) the negotiated, written, and mutually signed Contract; (ii) these T&Cs; and (iii) Contractor’s terms and conditions expressly agreed to and to the extent not in conflict.

29. MERGER: This Contract, with all attachments and incorporated documents, constitutes the entire agreement between the parties and supersedes any and all other prior and contemporaneous agreements and understandings between the parties, whether oral or written.

30. WAIVER: The waiver of any term or condition hereof shall not be construed to be a waiver of any other term or condition, nor shall such waiver be deemed a waiver of a subsequent breach of the same terms or conditions.

31. SEPARABILITY CLAUSE: A declaration by a court, or any other binding legal authority, that any provision of this Contract is illegal and void shall not affect the legality and enforceability of any other provision of this

32. SURVIVAL OF TERMS: Any right, obligation, or condition that, by its express terms, nature, or context, is intended to survive the termination or expiration of the Contract, shall survive any such termination or expiration hereof, including any indemnity obligations of the parties.

33. CANCELLATION OR REVISION: This Contract may be amended, changed, revised, or canceled only by written amendment signed by each party. Automatic renewals will not apply, even if stated elsewhere in the Contract, unless a reference to this section is made. Change orders must be submitted in writing and are valid only when Snow College approves them in writing.

34. GOVERNMENTAL ENTITY: Contractor acknowledges that Snow College is a governmental entity under the Governmental Immunity Act of Utah, Utah Code Ann., § 63G-7-101 et seq., as amended (the “Act”). Nothing in the Contract shall be construed as a waiver by Snow College of any protections, rights, or defenses applicable to Snow College under the Act, including without limitation, the provisions of § 63G-7-604 regarding limitation of judgments.

It is not the intent of Snow College to incur by contract any liability for the operations, acts, or omissions of the other party or any third party and nothing in the Contract shall be so interpreted or construed. Without limiting the generality of the foregoing, and notwithstanding any provisions to the contrary in the Contract, any obligations of Snow College in the Contract to indemnify, hold or save harmless, and/or defend contained in the Contract are subject to the Act, and are limited only to claims that arise from the negligent acts or omissions of Snow College, and the total amount of any such obligations, inclusive of attorney’s fees, are limited to the amounts established in § 63G-7-604 of the Act.

35. EUROPEAN UNION DATA PROCESSING: To the extent applicable, Snow College’s European Union Data Processing Agreement is hereby incorporated into and becomes a part of the Contract.

36. EXPORT CONTROL: All activities and/or transactions contemplated or herby agreed to within the Contract shall be strictly predicated on full compliance with all U.S. and international export control regulations, including, but not limited to, restricted party prohibitions, export license requirements, and compliance with all U.S. Office of Foreign Assets Control licenser requirements and sanctions.

37. NOTICE: Any payment, notice, or other communication required or permitted to be given to either party hereto shall be in writing and shall be deemed to have been properly given and effective: (i) on the date of deliver if delivered in person during recipient’s normal business hours; (ii) on the date of attempted deliver if delivered by courier, express mail service, or first-class mail, registered or certified; or (iii) upon delivery if delivered via email.

Such notice shall be sent or delivered to the respective addresses listed in the Contract.

(Revision date: March 25, 2022)