1-Terms and Conditions - Purchase of Goods and Services.pdf

TERMS AND CONDITIONS FOR PURCHASE OF GOODS AND SERVICES (No Federal or Grant Funds)

1. ORDER/ACCEPTANCE/ENTIRE AGREEMENT.

(a) This Purchase Order between the Town of Parker, Colorado (the “Town”) and the Supplier, Vendor, Consultant, or Contractor named on the Purchase

Order (the “Supplier”), together with all documents referenced or attached thereto, is subject to these terms and conditions and is collectively referred to herein as this “Order.” The Supplier’s acknowledgement, acceptance of payment, or commencement of performance shall constitute the Supplier’s unqualified acceptance of this Order. Additional or differing provisions proposed by the Supplier or included in any documentation submitted by the

Supplier to the Town are hereby objected to by the Town and have no effect unless accepted in writing by the Town’s signatory to this Order. This Order and any attached exhibits supersede any prior or contemporaneous offers, negotiations, and agreements concerning the subject matter hereof and constitute the entire agreement between the parties. This Order may not be modified except in writing signed by the Town’s signatory to this Order.

(b) All services included or referenced in the Order (“Services”) are to be scheduled with the Town representative identified in the Order (“Town

Representative”). The Town may change the Town Representative by giving notice to the Supplier. The Town Representative shall be the sole judge of the acceptability of the goods or Services and the sufficiency of the supporting data submitted by the Supplier.

(c) The Supplier shall provide all labor, equipment, materials, and supervision necessary for, or incidental to, the complete and timely delivery of all goods or performance of all services described or reasonably implied from the terms and conditions of this Order. The Supplier shall provide the goods or perform the

Services to the satisfaction of the Town and in strict accordance with the provisions of this Order.

(d) The terms and conditions of any supplier invoice, Supplier time sheet, or order form, including but not limited to indemnification, limitation of liability, or cancellation fees, shall be void and of no effect against the Town notwithstanding any signatures on such form by a Town employee. The

Supplier’s rights and obligations shall be solely governed by the terms and conditions of this Order. Any employee’s signature on the Supplier’s forms shall be effective only to establish receipt of goods or services.

2. GOVERNING LAW/COMPLIANCE WITH LAW.

(a) The rights and duties of the parties under this Order shall be governed by the laws of the State of Colorado, excluding its conflicts of law provisions. All other provisions not provided for by Colorado law shall be governed by the

Uniform Commercial Code. The courts of the State of Colorado shall have sole and exclusive jurisdiction of any disputes or litigation arising under this Order.

Venue for any and all legal actions arising hereunder shall lie in the courts in and for the County of Douglas, State of Colorado.

(b) The Supplier shall observe and comply with all applicable laws, including but not limited to federal, state, and local laws, regulations, rules, or ordinances that affect those employed or engaged by it, the materials or equipment used or the conduct of the Services, and shall procure any and all necessary approvals, licenses, and permits all at its own expense.

(c) The Supplier guarantees that all merchandise provided hereunder has been manufactured and sold in compliance with all applicable laws and ordinances and that, when applicable, the design of equipment being purchased conforms with all regulations of the Federal Occupational Safety and Health Act.

3. CONFIDENTIALITY; PROPRIETARY RIGHTS. All data, documents, or other information provided to the Supplier and results or conclusions of the

Services shall be deemed confidential, and shall not be disclosed by the Supplier to any person or entity (other than the Supplier’s employees with a need to know the data, documents, or information in order to perform the Services) without the prior written consent of the Town. All documents, plans, reports or other information provided by the Town to the Supplier and any documents or information produced by the Supplier in connection with the Services shall be property of the Town. This provision shall survive the completion of the

Services and the termination of this Order.

4. INTELLECTUAL PROPERTY. Any custom developed software or other intellectual property resulting from the Services provided pursuant to this Order will become the exclusive property of the Town. The Supplier hereby assigns exclusively to the Town and its successors and assigns any and all other programs, inventions, improvements and developments, including all patents, copyrights, trade secrets and other proprietary rights, related to the Services.

The Supplier shall have no further right to market, develop, enhance, and or modify such custom developed software or other intellectual property for any third party. All ideas, results, data, and other information developed by the

Supplier as a result of performing Services under this Order shall (1) be assigned and transmitted only to the Town, (2) become the Town’s exclusive property, and

(3) be regarded by the Supplier as confidential and shall not be disclosed to any other person or entity.

5. LICENSES.

(a) The Supplier grants to the Town an irrevocable, non-exclusive, worldwide, royalty-free license to possess and use intellectual property owned by the Supplier and delivered to the Town under this Order or utilized or incorporated into the

Services (except for intellectual property that is specifically developed by the

Supplier for the Town, which shall be governed by the Section titled Intellectual

Property): (1) for the Town’s own internal purposes, and (ii) for any and all purposes associated with the use of the Services delivered to the Town under this

Order.

(b) If the Supplier is obligated to provide third-party software under this Order, the Supplier will obtain and deliver all appropriate third-party licenses to the

Town. Any third-party licensing agreements will be subject to the Town’s review and approval.

(c) No license, express or implied, of any patent, copyright, trademark, trade secret, or other intellectual property is given by the Town to the Supplier hereunder.

6. COOPERATION. The Supplier shall fully cooperate and not interfere with the activities of other suppliers or contractors, or the Town’s employees on the premises where Services are being performed hereunder. The Supplier shall keep the work site free of waste materials and rubbish. The Supplier shall remove and safely store all rubbish, tools, construction equipment, machinery, and materials.

If the Supplier fails to maintain the work site in a safe and clean condition, the

Town may, after notice to the Supplier, perform any necessary clean up and charge all related costs to the Supplier. The Supplier shall immediately report injury or damages caused by the Supplier to the Town and shall hold harmless and indemnify the Town for any such injury or damage.

7. KNOWLEDGE OF THE SERVICES. Before entering into this Order, the

Supplier became fully informed regarding the Services and any materials or equipment required, including the amount or quantity thereof. No adjustment or modification shall be allowed for any misunderstanding of the Services or of equipment or material requirements, or of the provisions contained in this Order.

The selection of materials and equipment for the Services shall be in accordance with this Order, and any other applicable federal, state, or local laws, rules, regulations, or policies.

8. PERFORMANCE PERIOD. The Supplier shall begin the Services on the date specified in the Order (the “Start Date”) or any applicable notice to proceed and shall complete the Services within the time designated in the Order (the

“Completion Date”). Time is of the essence in completing the Services. All

Services shall be performed in accordance with good commercial practice and the

Services schedule and completion dates shall be adhered to by the Supplier. If the

Supplier becomes aware of difficulty in performing this Order, the Supplier shall timely notify the Town Representative in writing, giving pertinent details. This notification shall not change the period of performance unless agreed to in writing by the Town Representative.

9. INVOICES AND PAYMENTS. The Supplier shall mail or email its invoices to the Town of Parker, Finance Department, Accounts Payable Division

(ap@parkeronline.org) and each invoice shall include the applicable Order number. Payment shall be made within 30 business days after the Town’s receipt of an invoice or acceptance of products or services, or the timeframe provided for in a cooperative pricing agreement pursuant to which this Order is issued, whichever occurs latest. Payment shall be deemed to have been made as of the date the Town mails the payment or electronically transfers funds to the Supplier.

The Town shall not be required to pay disputed items until the dispute is resolved.

Payment of any invoice shall not act as a waiver of the Town’s right to recover in full any over-payment revealed by any subsequent audit or inspection. Incorrect payments to the Supplier due to omission, error, fraud, or defalcation may be recovered from the Supplier by deduction from subsequent payments due to the

Supplier under this Order or any other contracts between the parties. The Town is a tax-exempt governmental entity, a body politic and corporate. No sales, use, or excise taxes shall be included in or added to the prices of the materials or goods on this Order.

10. CHANGES IN THE SERVICES. The Town Representative may, by written notice to the Supplier, extend the Start or Completion Date or make changes in the

Services necessary or convenient to accomplish the purpose of this Order. The

Supplier shall not commence any changed or increased Services prior to receipt of a duly-executed change order unless directed by the Town as provided herein.

The Town shall have no duty or obligation whatsoever to compensate or to reimburse the Supplier for any additional Services not specifically authorized as provided herein.

11. DEFAULT. In the event that the Supplier is in breach or default of any obligation hereunder the Town may immediately terminate this Order, whether in whole or in part. Such termination right is in addition to any other right or remedy at law or in equity including the Supplier’s contractual responsibility for damages as described in the Section titled Damages below. Without in any way limiting any remedies available to the Town, the Town may: (1) return part or all of any shipment so made and may charge the Supplier with any loss or expense sustained as a result of such failure to deliver; (2) withhold remaining payment(s) (or any portion thereof that the Town may deem equitable) until such breach is cured; and (3) the Town shall have the right to recover from the

Supplier by offset or otherwise the price of any non-confirming goods or

Services. If the Town permits the Supplier to continue to perform the Services, such permission shall neither modify nor waive the Town’s rights against the

Supplier for such default. The rights and remedies of the Town under this Order are cumulative and in addition to all other rights and remedies provided by law or in equity.

12. TERMINATION. The Town reserves the right to terminate this Order, in whole or in part, with or without cause by written notice to the Supplier. In the event of termination, the Supplier shall incur no additional expenses and shall perform no further Services under this Order after the date of receipt of the notice of termination, unless otherwise specified by the Town. The Town shall pay the Supplier for all Services satisfactorily performed prior to the receipt of the notice termination and as specified in the notice. In the event that the Town terminates this Order for cause, the provisions of the paragraph titled

“Damages” shall apply.

13. DAMAGES. If the Supplier fails to comply with any provision of this Order, the Supplier shall be liable for any and all damages, including without limitation, the cost of procuring similar supplies or services and all other costs and expenses incurred by the Town because of such failure. The cost to complete the Services or any portion thereof which remains unperformed at the time of such termination, together with other damages, shall be deducted from any sum payable hereunder before final payment to the Supplier.

14. ENTRY ONTO TOWN PROPERTY. While on the Town’s premises in connection with the transactions contemplated by this Order, the Supplier shall have full control over its representatives and will be responsible for their compliance with the Town’s rules and regulations concerning security and conduct on Town property and damages caused by them.

15. INDEMNIFICATION. The Supplier warrants that the goods or Services supplied hereunder will not infringe upon or otherwise violate the intellectual property rights of any third party. The Supplier shall indemnify, defend, and hold the Town and its officials, officers, employees and agents harmless from and against any and all claims, damages, losses, demands for payment, injuries, costs, and expenses (including attorneys’ fees) relating to or arising out of: (a) any act or omission of the Supplier, its employees, agents or subcontractors in connection with this Order; (b) any breach of a covenant, representation or warranty made by the Supplier under this Order; (c) use by the Supplier of any intellectual property in connection with the Services (whether such intellectual property is owned by the Supplier or a third party) or the incorporation by the

Supplier of intellectual property into the Services; or (d) any workers’ compensation claims brought by an officer, employee, subcontractor, or agent of the Supplier relating to or arising out of such person’s performance of the

Services. Nothing in this Order shall be construed as a waiver of any defense available to the Town under the Colorado Governmental Immunity Act or any similar provision. This provision shall survive the completion of the Services and termination of this Order. If requested by the Town, the Supplier shall, at its own expense, procure the right to continue using the goods or Services or replace or modify the same so that they become non-infringing.

16. INSURANCE. The Seller shall obtain and maintain, at its sole expense, the insurance required by the Order, if any.

17. INDEPENDENT CONTRACTOR RELATIONSHIP. The Supplier acts as an independent contractor and is not acting as an agent, servant or employee of the Town. The Supplier is solely responsible for necessary workers’ compensation insurance and shall be responsible for withholding and paying all federal and state taxes. The Supplier and its employees are not entitled to unemployment insurance benefits from the Town.

18. NON-APPROPRIATION. The payment of Town obligations hereunder in fiscal years subsequent to the current year are contingent upon funds for this

Order being appropriated and budgeted. If funds for this Order are not appropriated and budgeted in the year subsequent to the fiscal year of issuance of this Order, the Town may terminate this Order. The Town’s current fiscal year is the calendar year. Additionally, such cancellation shall not impose any penalty against the Town in the event of a failure to appropriate sufficient funds.

19. NONDISCRIMINATION. The Supplier shall not refuse to hire, discharge, promote or demote, or discriminate in matters of compensation against any person otherwise qualified solely because of race, creed, sex, color, national origin or ancestry, religion, disability, age, sexual orientation, gender identity, veteran status, or any other basis prohibited by federal, state, or local law.

20. SHIPPING. The Supplier shall make shipment prepaid and use the most cost effective method of shipment and carrier to ensure arrival of products in accordance with the Town’s due date. All supporting documents will include the

Order number. The Supplier shall enclose a packing memorandum with each shipment. If the Supplier fails to deliver the goods by the date(s) specified herein, the Town may request that the Supplier use an expedited means of shipment and the Supplier shall be responsible for the additional shipping charges to expedite said shipment. Unless otherwise specified in this Order, delivery shall be FOB destination. The Town will not accept COD shipments. All shipping costs shall be billed as separate items on Supplier’s invoices.

21. WARRANTIES FOR SERVICES. The Supplier represents and warrants that:

(a) It is fully qualified to perform the Services and will perform the Services in a timely, accurate and competent manner in accordance with the professional standards of the industry, provided that this warranty shall not abrogate any independent duty of care owed by the Supplier to the Town; (b) Any methodologies or programs or other intellectual property utilized under this Order were independently developed by it or duly licensed from third parties and shall neither infringe upon nor violate any patents, copyrights, trade secrets, or other proprietary or intellectual property rights of a third party; (c) If it is an entity, it is duly organized, validly existing, and in good standing under the laws of the State of Colorado; (d) The execution, delivery, and performance of this Order by the

Supplier does not and will not: (1) require the consent of any undisclosed person or entity, (2) violate any legal requirement, or (3) conflict with, or constitute a breach or violation of (i) its entity’s organizational documents, if any, or (ii) the terms or provisions of any other agreement, instrument, or understanding by which the Supplier is bound or affected.

22. WARRANTIES FOR GOODS. The Supplier represents and warrants that all products and/or services furnished hereunder: (a) confirm to the particular requirements of the Order and the Supplier’s (or the applicable manufacturer’s) specifications; (b) are in good working order and condition; (c) are free from defects in design, materials, and workmanship; and (d) are merchantable and fit for their particular purpose. This warranty shall be in effect for a period of one year commencing on the date of final acceptance of the goods or as otherwise stated in the warranty document if for a longer period, regardless of whether the

Supplier is under contract with the Town at the time of the discovery of the defect.

Any payment by the Town for such goods shall not constitute a waiver of such warranty. The Supplier shall also assign to the Town any longer term guarantee of materials used by the Supplier as may be provided by a manufacturer. The Supplier also represents and warrants that all merchandise provided hereunder has been manufactured and sold in compliance with all applicable laws and ordinances and that, when applicable, the design of equipment being purchased confirms with all regulations of OSHA at the time of delivery. In addition to any other remedies, the

Town may require the Supplier to repair or replace defective products and/or re-perform services. Transportation of replacement products and return of non-conforming products and repeat performance shall be at the Supplier’s expense. If repair, replacement, or re-performance is not timely, the Town may return, repair, or replace any defective products and/or services at the Supplier’s expense. The

Supplier shall provide warranty documentation in connection with the goods prior to the shipment of the goods. This warranty shall survive the Town’s inspection, acceptance, and payment.

23. ASSIGNMENT AND SUBCONTRACTING. The Supplier may not assign this

Order, in whole or in part, without the Town’s prior written consent. The Supplier shall not employ any subcontractor or sub-consultant without prior written approval of the Town Representative. Prior to commencing the Services, each subcontractor or sub-consultant shall provide the appropriate insurance as required under this Order. The Supplier shall be responsible for the coordination of its services and the acts and omissions of its agents, employees, subcontractors, and suppliers. The Supplier shall bind each agent and employee to the terms of this

Order. The Town may terminate this Order if subcontracted by the Supplier without the prior written consent of the Town Representative.

24. RIGHT TO AUDIT AND INSPECT. The Town shall have the right to examine and audit, at reasonable times, the Supplier’s records and accounts that contain information bearing upon Services or the amount payable to the Supplier under this Order. The Town may inspect all goods or Services to be delivered under this Order at reasonable times and places, including, where applicable/practicable, during manufacture and before shipment, and the

Supplier will provide support, facilities, and information necessary for safe and convenient inspection. All goods rejected by the Town pursuant to an inspection shall remain the property of the Supplier and will be returned to the Supplier at the Supplier’s expense.

25. TOWN’S OWNERSHIP OF DOCUMENTS/DELIVERABLES.

(a) Any data, documents, or other things or information provided by the Town to the Supplier or to which the Supplier has access during the performance of the Services (the “Town Documents”) and any reports, drawings, results, conclusions of the Services or other writings or products produced by the

Supplier in the performance of the Services (the “Deliverables”) shall be and remain the sole property of the Town at all times; and the Supplier shall not use any of the Deliverables or Town Documents for any other purpose. The Town shall retain all right, title, and interest in and to both the Town Documents and the Deliverables. The Supplier shall provide to the Town all of the Deliverables and return all Town Documents by the Completion Date or earlier termination of this Order. The Supplier shall not disclose to any third party any Town

Document or Deliverable without the prior written approval of the Town unless required under the Colorado Open Records Act or other law.

(b) The Supplier hereby assigns exclusively to the Town, and its successors and assigns, any and all programs, inventions, improvements, and developments, including all patents, copyrights, trade secrets, or other proprietary rights related to the Services performed pursuant to this Order. The

Supplier shall have no right to further market, develop, enhance and/or modify any Deliverables provided hereunder for other customers without the consent of the Town.

(c) All ideas, results, data, and other information developed by the Supplier as a result of performing the Services shall (1) be assigned and transmitted to the

Town; (2) become the Town’s exclusive property; and (3) be regarded by the

Supplier as confidential and shall not be disclosed to any other person.

(d) This provision shall not be applicable to software licensed by the Supplier to the Town in conjunction with the project associated with the Services. The

Supplier grants the Town a license to that software in accordance with the terms and conditions of the license executed by the parties for such software.

26. NOTICES.

(a) “Key Notices” under this Order are notices regarding any default, dispute, or termination. Key Notices shall be given in writing and shall be deemed received if given by: (i) electronic mail (as defined in subsection (b) below) when transmitted, if transmitted on a business day and during normal business hours of the recipient, and otherwise on the next business day following transmission, (ii) certified mail, return receipt requested, postage prepaid, 3 business days after being deposited in the United States mail, or (iii) overnight carrier service or personal delivery, when received. For Key Notices, the parties will follow up any electronic mail with a hard copy of the communication by the means described in subsections (a)(ii) or (a)(iii) above. The requirement for following up a Key Notice made by electronic mail with a hard copy shall be deemed waived by the receiving party upon acknowledgement, via electronic mail, within 3 business days of transmission of the Key Notice, that the Key

Notice has been received. All other daily communications or notices between the parties that are not Key Notices may be done via electronic mail. Notices shall be sent to the address or email stated in this Order.

(b) The parties agree that: (i) any notice or communication transmitted by electronic mail shall be treated in all manner and respects as an original written document; (ii) any such notice or communication shall be considered to have the same binding and legal effect as an original document; and (iii) at the request of either party, any such notice or communication shall be re-delivered or re-executed, as appropriate, by the party in its original form. The parties further agree that they shall not raise the transmission of a notice or communication, except for Key Notices, by electronic mail as a defense in any proceeding or action in which the validity of such notice or communication is at issue and hereby forever waive such defense. For purposes of this Order, the term “electronic mail” means email.

27. SEVERABILITY. Any provision of this Order which is prohibited or found to be unenforceable by a court of competent jurisdiction will be ineffective only to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof.

28. SURVIVAL. Notwithstanding anything to the contrary, the parties understand and agree that all terms and conditions of this Order which require continued performance or compliance beyond the termination date of this Order shall survive such termination date and shall be enforceable as provided herein in the event of a failure to perform or comply by a party to this Order.

29. WAIVER. This Order and its provisions may not be waived except in a writing signed by the party against whom enforcement is sought. The failure of a party to enforce any right arising under this Order on one or more occasions will not operate as a waiver of that or any other right on that or any other occasion.

30. OFFICIALS NOT TO BENEFIT. No elected or employed member of the Town government shall directly or indirectly be paid or receive any share or part of this

Order or any benefit that may arise therefrom. The Supplier warrants that it has not retained any entity or person, other than a bona fide employee working solely for the Supplier, to solicit or secure this Order.

31. CONFLICT OF INTEREST. The Supplier shall not knowingly perform any act which would conflict in any manner with the performance of the Services. By acceptance of this Order, the Supplier certifies that it is engaged in no current project or business transaction, directly or indirectly, nor has it any interest, direct or indirect, with any person or business which might result in a conflict of interest in the performance of the Services.

32. ELECTRONIC SIGNATURES. The parties approve the use of electronic signatures for the execution, amendment, or any other action requiring a signature for this Order. All use of electronic signatures shall be governed by the Uniform

Electronic Transactions Act, C.R.S. §§24-71.3-101 to -121.