2-DAVISTECH PO Terms and Conditions.pdf

1 K-Purchasing-Forms-DTC PO T&Cs 6-18

DAVIS TECHNICAL COLLEGE FISCAL SERVICES DEPARTMENT

550 E 300 S KAYSVILLE, UT 84037 Telephone (801) 593-2500, Fax (801) 546-4824

PURCHASE ORDER CONTRACT: TERMS AND CONDITIONS

ACCEPTANCE OF THIS PURCHASE ORDER BINDS THE CONTRACTOR TO ALL THESE TERMS AND

CONDITIONS AND ALL THE TERMS, CONDITIONS AND PROVISIONS INCLUDED IN THE

SOLICITATION THE FISCAL SERVICES DEPARTMENT OFFERED RELATING TO THIS PURCHASE

ORDER.

1. AUTHORITY: Provisions of this Purchase Order are pursuant to the authority set forth in the Utah Procurement Code, 63G-6, Utah Code Annotated (U.C.A.) 1953, as amended, and the Utah State Procurement Rules and Regulations. Any and all supplies, services and equipment furnished will comply fully with all applicable Federal and State laws and regulations.

2. CONTRACT JURISDICTION, CHOICE OF LAW, AND VENUE: The provisions of this Purchase Order shall be governed by the laws of the State of Utah. The parties will submit to the jurisdiction of the courts of the State of Utah for any dispute arising out of this Purchase Order or the breach thereof. Venue shall be in Salt Lake City, in the Third Judicial District Court for Salt Lake County.

3. LAWS AND REGULATIONS: The Contractor and any and all supplies, services, equipment, and construction proposed and furnished under this Purchase Order will comply fully with all applicable Federal and State laws and regulations, including applicable licensure and certification requirements.

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 this Contract for at least four years. The Contractor agrees to allow College, State and Federal auditors, and College department Staff, access to all the records to this Contract, for audit and inspection, and monitoring of services. Such access will be during normal business hours, or by appointment.

5. 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. It does not apply to Invitation for Bids nor to the Multi-Step Process.

5.1 Status Verification System

1. Each offeror and each person signing on behalf of any offeror certifies as to its own entity, under penalty of perjury, that the named Contractor has registered and is participating in the Status Verification System to verify the work eligibility status of the contractor’s new employees that are employed in the State of Utah in accordance with UCA Section 63G-11-103.

2. The Contractor shall require that the following provision be placed in each subcontract at every tier: “The subcontractor shall certify to the main (prime or general) contractor by affidavit that the subcontractor has verified through the Status Verification System the employment status of each new employee of the respective subcontractor, all in accordance with Section 63G-11-103 and to comply with all applicable employee status verification laws. Such affidavit must be provided prior to the notice to proceed for the subcontractor to perform the work.”

3. The College will not consider a proposal for award, nor will it make any award where there has not been compliance with this Section.

4. Manually or electronically signing the Proposal is deemed the Contractor’s certification of compliance with all provisions of this employment status verification certification required by all applicable status verification laws including UCA Section 63G-11-103.

5.2 Indemnity Clause for Status Verification System

1. Contractor (includes, but is not limited to any Contractor, Design Professional, Designer or Consultant) shall protect, indemnify and hold harmless, the College and its officers, employees, agents, representatives and anyone that the College may be liable for, against any claim, damages or liability arising out of or resulting from violations of the above Status Verification System Section whether violated by employees, agents, or contractors of the following: (a) Contractor; (b) Subcontractor at any tier; and/or (c) any entity or person for whom the Contractor or Subcontractor may be liable.

2. Notwithstanding Section 1. above, Design Professionals or Designers under direct contract with the College shall only be required to indemnify the College for a liability claim that arises out of the design professional's services, unless the liability claim arises from the Design Professional's negligent act, wrongful act, error or omission, or

2 K-Purchasing-Forms-DTC PO T&Cs 6-18 other liability imposed by law except that the design professional shall be required to indemnify the College in regard to subcontractors or subconsultants at any tier that are under the direct or indirect control or responsibility of the Design Professional, and includes all independent contractors, agents, employees or anyone else for whom the Design Professional may be liable at any tier.

6. CONFLICT OF INTEREST AND PROCUREMENT ETHICS: The Contractor represents that none of its officers or employees are officers or employees of the Davis Technical College, unless disclosure has been made in accordance with 67-16-8, U.C.A., 1953, as amended. Further, Contractor certifies that it has not offered or given any gift or compensation prohibited by 67-16-5, U.C.A., 1953, as amended, to any officer or employee of the Davis Technical College to secure favorable treatment with respect to being awarded this Purchase Order.

7. INDEPENDENT CONTRACTOR: The Contractor shall be an independent contractor, and as such shall have no authorization, express or implied, to bind the College to any agreements, settlements, liability, or understanding whatsoever, and agrees not to perform any acts as agent for the College, except as herein expressly set forth.

Compensation stated herein shall be the total amount payable to the Contractor by the College. The Contractor shall be responsible for the payment of all income tax and social security amounts due as a result of payments received from the College for these contract services. Persons employed by the College and acting under the direction of the College shall not be deemed to be employees or agents of the Contractor.

8. INDEMNITY CLAUSE: The Contractor agrees to indemnify, save harmless, and release the Davis Technical College, and its officers, agents, and volunteers, and employees from and against any and all loss, damages, injury, liability, suits and proceedings arising out of the performance e of this contract which are caused in whole or in part by the negligence of the Contractor’s officers, agents, volunteers, or employees, but not for claims arising from the College’s sole negligence.

9. EQUAL OPPORTUNITY CLAUSE: The Contractor agrees to abide by the provisions of Title VI and VII of the Civil Rights Act of 1964 (42USC 2000e) 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; and further agrees to abide by 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; and Section 504 of the Rehabilitation Act of 1973; or the Americans with Disabilities Act of 1990 which prohibits discrimination on the basis of disabilities.

Also, the Contractor agrees to abide by Utah's Executive Order, dated March 17, 1993, which prohibits sexual harassment in the workplace. Contractor must include this provision in every subcontract or purchase order relating to purchases by the Davis Technical College to insure that the subcontractors and vendors are bound by this provision.

10. SEVERABILITY CLAUSE: If any provision of this contract is declared by a court to be illegal or in conflict with any law, the validity of the remaining terms and provisions will not be affected; and the rights and obligations of the parties will be construed and enforced as if the contract did not contain the particular provision held to be invalid.

11. CANCELLATION OR REVISION: This Purchase Order may be changed, revised or canceled only by the Fiscal Services Department giving written notice to the Contractor. No substitutions of goods, change of services, delivery dates or price increases of any nature shall be made without the prior written approval of the College Fiscal Services Department. Automatic renewals will not apply to this purchase order.

12. DEBARMENT: The Contractor certifies that neither it nor its principals are presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participation in this transaction (contract), by any governmental department or agency. If the Contractor cannot certify this statement, attach a written explanation for review by the College. The Contractor must notify the Fiscal Services Department within 30 days if debarred by any governmental entity during the Contract period.

13. NONAPPROPRIATION OF FUNDS: The Contractor acknowledges that the College cannot contract for the payment of funds not yet appropriated by the Utah State Legislature. If funding to the College is reduced due to an order by the Legislature or the Governor, or is required by State law, or if federal funding (when applicable) is not provided, the College may terminate this contract or proportionately reduce the services and purchase obligations and the amount due from the College upon 30 days written notice. In the case that funds are not appropriated or are reduced, the College will reimburse Contractor for products delivered or services performed through the date of cancellation or reduction, and the College will not be liable for any future commitments, penalties, or liquidated damages.

14. SALES TAX EXEMPTION: The Davis Technical College’s sales and use tax exemption number is 11736850- 010-STC. The tangible personal property or services being purchased are being paid from State funds and used in the exercise of the College’s essential functions. If the items being purchased are construction materials, they will be converted into real property by employees of the College, unless sales tax is included as a separate line item on this purchase order.

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15. WARRANTY: The Contractor agrees to warrant and assume responsibility for all products (including hardware, firmware, and/or software products) that it licenses, contracts, or sells to the Davis Technical College under this contract for a period of one year, unless otherwise specified and mutually agreed upon elsewhere in this contract. The Contractor (seller) acknowledges that all warranties granted to the buyer by the Uniform Commercial Code of the State of Utah apply to this contract. Product liability disclaimers and/or warranty disclaimers from the seller are not applicable to this contract unless otherwise specified and mutually agreed upon elsewhere in this contract. In general, the Contractor warrants that: (1) the product will do what the salesperson said it would do, (2) the product will live up to all specific claims that the manufacturer makes in their advertisements, (3) the product will be suitable for the ordinary purposes for which such product is used, (4) the product will be suitable for any special purposes that the College has relied on the Contractor’s skill or judgment to consider when it advised the College about the product, (5) the product has been properly designed and manufactured, and (6) the product is free of significant defects or unusual problems about which the College has not been warned. Remedies available to the College include the following: The Contractor will repair or replace (at no charge to the College) the product whose nonconformance is discovered and made known to the Contractor in writing. If the repaired and/or replaced product proves to be inadequate, or fails of its essential purpose, the Contractor will refund the full amount of any payments that have been made. Nothing in this warranty will be construed to limit any rights or remedies the Davis Technical College may otherwise have under this contract.

16. PUBLIC INFORMATION: Contractor agrees that the Purchase Order, related Sales Orders, and Invoices will be public documents, and may be available for distribution. Contractor gives the College express permission to make copies of the Purchase Order, related Sales Orders, Invoices, and the response to the solicitation in accordance with the State of Utah Government Records Access and Management Act. The permission to make copies as noted will take precedence over any statements of confidentiality, proprietary information, copyright information, or similar notation.

17. DELIVERY: Orders must be shipped directly to address specified. Shipments must be made in accordance with the item(s) as described and priced on this order. Also, orders must be shipped F.O.B. Destination, Freight Prepaid, unless other shipping instructions are described in this order. UNLESS INDICATED OTHERWISE, 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 the College except as to latent defects, fraud and Contractor's warranty obligations.

Unless specified otherwise on the purchase order, deliverers shall be made to the address listed on the purchase order on regular business days between the hours of 8:00 a.m. and 4:00 p.m. No C.O.D. shipments or deliveries on Buyer’s holidays will be accepted unless previously arranged in writing by the Fiscal Service Department.

18. HAZARDOUS CHEMICAL INFORMATION: The Contractor will provide one set of the appropriate material safety data sheet(s) and container label(s) upon delivery of a hazardous material to the College. All safety data sheets and labels will be in accordance with state requirements.

19. PRICING AND INVOICING: Prices to be paid for item(s) ordered are the prices listed on this Purchase Order, which include all shipping and delivery charges, unless otherwise described on this order. CONTRACTOR WILL, AFTER DELIVERY, PROMPTLY SUBMIT A CORRECT INVOICE (WITHIN 30 DAYS OF SHIPMENT OR DELIVERY OF SERVICES) TO THE COLLEGE. The Purchase Order number must be listed on all invoices, freight tickets, and correspondence relating to the Purchase Order. Contractor agrees that the College has a right to adjust or return any invoice that reflects incorrect pricing. Invoices are to be submitted only for the goods that have been shipped and received or services that have been provided. Invoices will not be paid and will be returned to the Seller for correction if they: (a) do not reference the purchase order number; (b) are for a higher cost than shown on the order; (c) list goods or services other than those shown on the order; or (d) are damaged or incomplete. Invoices must show the quantity, description and unit cost of items. Neither the purchase order nor payments to be made may be assigned without the express written consent of Buyer. Unless otherwise specified, payment terms shall be Net 30 days following the date the order is delivered or the date a correct invoice is received, whichever is later. Where prompt payment discounts apply, 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 the College. Discount will be taken on the total amount of the invoice. All payments to the Contractor will be remitted by mail unless paid by a Davis Technical College’s Purchasing Card (major credit card).

20. PROMPT PYAMENT DISCOUNT: Offeror may quote a prompt payment discount based upon early payment; however, discounts offered for less than 30 days will not be considered in making the award. Contractor shall list Payment Discount Terms on invoices. The prompt payment discount will apply to payments made with purchasing cards and checks. The date from which discount time is calculated will be the date a correct invoice is received or receipt of shipment, whichever is later; except that if testing is performed, the date will be the date of acceptance of the merchandise.

21. PATENTS, COPYRIGHTS, ETC.: The Contractor shall release, indemnify and hold the College, its officers, agents and employees harmless from liability of any kind or nature, including the Contractor's use of any

4 K-Purchasing-Forms-DTC PO T&Cs 6-18 copyrighted or un-copyrighted composition, secret process, patented or un-patented invention, article or appliance furnished or used in the performance of this contract.

22. DOCUMENT OWNERSHIP: Contractor agrees that any work/services and all Deliverables prepared for College, to the extent to which is eligible under copyright law in any county, shall be deemed a work made for hire, such that all right, title and interest in the work and Deliverables reside with the College. To the extent any work or Deliverable is deemed not to be, for any reason whatsoever, work made for hire, Contractor agrees to assign and hereby assigns all right title, and interest, including but not limited to, copyright, patent, trademark, and trade secret, to such work and Deliverables, and all extension and renewal thereof, to the College. Contractor further agrees to provide all assistance reasonably requested by the College in the establishment, perseveration and enforcement of its rights in such work and deliverable, or subsequent amendments or modifications to such work and deliverables, without any additional compensation to Contract. Contractor agrees to waive, and hereby, to the extent permissible, waives, all rights relating to such work and deliverables, or subsequent amendments or modifications to such work and deliverables, including without limitation any and all rights to indemnification of authorship and any and all right of approval, restriction or limitation on use.

23. DEFAULT AND REMEDIES: Any of the following events will constitute cause for the College to declare Contractor in default of the Contract: 1. Nonperformance of contractual requirements; 2. A material breach of any term or condition of this Contract. The College will issue a written notice of default providing a ten (10) day period in which Contractor will have an opportunity to cure. Time allowed for cure will not diminish or eliminate Contractor's liability for damages. If the default remains, after Contractor has been provided the opportunity to cure, the College may do one or more of the following: 1. Exercise any remedy provided by law; 2. Terminate this Contract; 3. Impose liquidated damages, if liquidated damages are listed in the contract; 4. Suspend Contractor from receiving future solicitations.

24. FORCE MAJEURE: Neither party to this contract will be held responsible for delay or default caused by fire, riot, acts of God and/or war which is beyond that party's reasonable control. The College may terminate this contract after determining such delay or default will reasonably prevent successful performance of the contract.

25. CONFLICT OF TERMS: Contractor Terms and Conditions that apply must be in writing and expressly approved in writing by the Davis Technical College Fiscal Department. No other Terms and Conditions will apply to this contract including terms listed or referenced on a Contractor’s website, terms listed in a Contractor quotation/sales order, invoice etc. In the event of any conflict in the contract terms and conditions, the order of precedence shall be: 1. State Standard Terms and Conditions; 2. State Additional Terms and Conditions; 3.

Contractor Terms and Conditions, if applicable.