3-PCSD Standard Terms and Conditions for Goods.pdf

ATTACHMENT A: PURCHASE ORDER TERMS AND CONDITIONS FOR GOODS

This is for a purchase order for goods, meaning all things (including specially manufactured goods) which are tangible, including but not limited to materials, supplies, and equipment; and usually movable.

1. DEFINITIONS: The following terms shall have the meanings set forth below:

a) “Confidential Information” means information that is deemed as confidential under, or protected by applicable state and federal laws, including personal information, student data, and all related metadata. The District reserves the right to identify, during and after this Purchase Order, additional reasonable types of categories of information that must be kept confidential under federal and state laws.

b) “Contractor” means the individual or entity delivering the Goods identified in this Purchase Order. The term “Contractor” shall include Contractor’s agents, officers, employees, and partners.

c) “District” means the Provo City School District, in its entirety, including its schools, divisions, departments, authorities, instrumentalities, boards, elected or appointed officers, employees, agents, and authorized volunteers.

d) “Goods” means all types of tangible personal property (commodities), including but not limited to materials, supplies, and equipment that Contractor is required to deliver to the District under this Purchase Order. To the extent this Purchase Order entails 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.

e) “Proposal” means Contractor’s response to the District’s Solicitation.

f) “Purchase Order” means this purchase order, including these terms and conditions.

g) “Solicitation” means the documents used by the District to obtain Contractor’s Proposal.

h) “State of Utah” means the State of Utah, in its entirety, including its institutions, agencies, departments, divisions, authorities, instrumentalities, boards, commissions, elected or appointed officers, employees, agents, and authorized volunteers.

i) “Subcontractors” means subcontractors or subconsultants at any tier that are under the direct or indirect control or responsibility of the Contractor, and includes all independent contractors, agents, employees, authorized resellers, or anyone else for whom the Contractor may be liable at any tier, including a person or entity that is, or will be, providing or performing an essential aspect of this Purchase Order, including Contractor’s manufacturers, distributors, and suppliers.

2. GOVERNING LAW AND VENUE: This Purchase Order shall be governed by the laws, rules, and regulations of the State of Utah.

Any action or proceeding arising from this Purchase Order shall be brought in a court of competent jurisdiction in the State of Utah.

Venue shall be in Provo, in the Fourth Judicial District Court for Utah County.

3. LAWS AND REGULATIONS: At all times during this Purchase Order, Contractor and all the Goods delivered under this Purchase Order will comply with all applicable federal and state constitutions, laws, rules, codes, orders, and regulations, including applicable licensure and certification requirements. If this Purchase Order is funded by federal funds, either in whole or in part, then any federal regulation related to the federal funding, including CFR Appendix II to Part 200, will supersede this Attachment A. Additionally Section 38 within this document will also apply.

4. RECORDS ADMINISTRATION: Contractor shall maintain or supervise the maintenance of all records necessary to properly account for Contractor’s performance and the payments made by the District to Contractor under this Purchase Order. These records shall be retained by Contractor for at least six (6) years after final payment, or until all audits initiated within the six (6) years have been completed, whichever is later. Contractor agrees to allow, at no additional cost, the District, state auditors and federal auditors, District staff, or their designees, access to all such records. 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.

1. 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.

2. 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.

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

6. CONFLICT OF INTEREST: Contractor represents that none of its officers or employees are officers or employees of the District, unless disclosure has been made to the District.

7. INDEPENDENT CONTRACTOR: Contractor’s legal status is that of an independent contractor, and in no manner shall Contractor be deemed an employee or agent of the District or the State of Utah, and therefore is not entitled to any of the benefits associated with such employment. Contractor, as an independent contractor, shall have no authorization, express or implied, to bind the District or the State of Utah to any agreements, settlements, liabilities, or understandings whatsoever, and agrees not to perform any acts as an agent for the District or the State of Utah. Contractor shall remain responsible for all applicable federal, state, and local taxes, and all FICA contributions.

8. INDEMNITY: Contractor shall be fully liable for the actions of its agents, employees, officers, partners, and Subcontractors, and shall fully indemnify, defend, and save harmless the District from all claims, losses, suits, actions, damages, and costs of every name and description arising out of Contractor’s performance of this Purchase Order caused by any intentional act or negligence of Contractor, its agents, employees, officers, partners, or Subcontractors, without limitation; provided, however, that the Contractor shall not indemnify for that portion of any claim, loss, or damage arising hereunder due to the sole fault of the District.

The parties agree that if there are any limitations of the Contractor’s liability, including a limitation of liability clause for anyone for whom the Contractor is responsible, such limitations of liability will not apply to injuries to persons, including death, or to damages to property of the District. Nothing in this Agreement shall be deemed as a waiver by any party of the defenses, rights or protections provided by the Utah Governmental Immunity Act (Utah Code Ann. 63G-7-101 et. seq.) nor shall this Agreement be construed with respect to third parties as a waiver of any governmental immunity to which the District is otherwise entitled.

9. EMPLOYMENT PRACTICES: Contractor agrees to abide by the following federal and state employment laws, including: (i) Title VI and VII of the Civil Rights Act of 1964 (42 U.S.C. 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; (ii) Executive Order No.

11246, as amended, which prohibits discrimination on the basis of sex; (iii) 45 CFR 90, which prohibits discrimination on the basis of age; (iv) Section 504 of the Rehabilitation Act of 1973, or the Americans with Disabilities Act of 1990, which prohibits discrimination on the basis of disabilities; and (v) Utah's Executive Order 2019-1, dated February 5, 2019, which prohibits unlawful harassment in the workplace. Contractor further agrees to abide by any other laws, regulations, or orders that prohibit the discrimination of any kind by any of Contractor’s employees.

10. AMENDMENTS: This Purchase Order may only be amended by the mutual written agreement of the parties, provided that the amendment is within the Scope of Work of this Purchase Order and is within the scope/purpose of the original solicitation for which this Purchase Order was derived. The amendment will be attached and made part of this Purchase Order. Automatic renewals will not apply to this Purchase Order, even if identified elsewhere in this Purchase Order.

11. DEBARMENT: Contractor certifies that it is not presently nor has ever been debarred, suspended, proposed for debarment, or declared ineligible by any governmental department or agency, whether international, national, state, or local. Contractor must notify the District within thirty (30) days if debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participation in any contract by any governmental entity during this Purchase Order.

12. TERMINATION: This Purchase Order may be terminated for convenience by the District, in advance of the specified expiration date, upon five (5) day written notice given to the Contractor. If a written notice is delivered under this section, the District will reimburse Contractor for the Goods properly ordered and delivered until the effective date of said notice. The District will not be liable for any performance, commitments, penalties, or liquidated damages that accrue after the effective date of said written notice. Such compensation will be Contractor’s exclusive remedy in the case of termination for convenience and will be available to Contractor only after Contractor has submitted a proper invoice. On termination of this Purchase Order, all accounts and payments will be processed according to the financial arrangements set forth herein for approved Goods ordered and delivered prior to date of termination.

13. SALES TAX EXEMPTION: The Goods under this Purchase Order will be paid for from the District’s funds and used in the exercise of the District’s essential functions as a State of Utah entity. Upon request, the District will provide Contractor with its sales tax exemption number. It is Contractor’s responsibility to request the District’s sales tax exemption number. It also is Contractor’s sole responsibility to ascertain whether any tax deduction or benefits apply to any aspect of this Purchase Order.

14. WARRANTY: Contractor warrants, represents and conveys full ownership and clear title, free of all liens and encumbrances, to the Goods delivered to the District under this Purchase Order. Contractor warrants for a period of one (1) year that: (i) the Goods perform according to all specific claims that Contractor made in its Proposal to the Solicitation; (ii) the Goods are suitable for the ordinary purposes for which such Goods are used; (iii) the Goods are suitable for any special purposes identified in the Proposal and the Solicitation; (iv) the Goods are designed and manufactured in a commercially reasonable manner; (v) the Goods are manufactured and in all other respects create no harm to persons or property; and (vi) the Goods are free of defects. Unless otherwise specified, all Goods provided shall be new and unused of the latest model or design.

Remedies available to the District under this section include, but are not limited to, the following: Contractor will repair or replace Goods at no charge to the District within ten (10) days of any written notification informing Contractor of the Goods not performing as required under this Purchase Order. If the repaired and/or replaced Goods prove to be inadequate, or fail its essential purpose, 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 District may otherwise have under this Purchase Order.

15. CONTRACTOR’S INSURANCE RESPONSIBILITY. The Contractor shall maintain the following insurance coverage:

a. Workers’ compensation insurance during the term of this Purchase Order for all its employees and any Subcontractor employees related to this Purchase Order. Workers’ compensation insurance shall cover full liability under the workers’ compensation laws of the jurisdiction in which the work is performed at the statutory limits required by said jurisdiction. Contractor acknowledges that within thirty (30) days of contract award, Contractor must submit proof of certificate of insurance that meets the above requirements.

b. Commercial general liability [CGL] insurance from an insurance company authorized to do business in the State of Utah.

The limits of the CGL insurance policy will be no less than one million dollars ($1,000,000.00) per person per occurrence and three million ($3,000,000.00) aggregate per occurrence.

c. Commercial automobile liability [CAL] insurance from an insurance company authorized to do business in the State of Utah. The CAL insurance policy must cover bodily injury and property damage liability and be applicable to all vehicles used in your performance of Services under this Agreement whether owned, non-owned, leased, or hired.

The minimum liability limit must be $1 million per occurrence, combined single limit. The CAL insurance policy is required if Contractor will use a vehicle in the performance of this Purchase Order.

d. Other insurance policies required in the Solicitation.

Certificate of Insurance, showing up-to-date coverage, shall be on file with the District before the Contract may commence.

The District reserves the right to require higher or lower insurance limits where warranted. Failure to provide proof of insurance as required will be deemed a material breach of this Purchase Order. Contractor’s failure to maintain this insurance requirement for the term of this Purchase Order will be grounds for immediate termination of this Purchase Order.

16. PUBLIC INFORMATION: Contractor agrees that this Purchase Order, related purchase orders, related pricing documents, and invoices will be public documents and may be available for public and private distribution in accordance with the State of Utah’s Government Records Access and Management Act (GRAMA). Contractor gives the District express permission to make copies of this Purchase Order, related sales orders, related pricing documents, and invoices in accordance with GRAMA. Except for sections identified in writing by Contractor and expressly approved by the Provo City School District Purchasing Department, Contractor also agrees that the Contractor’s Proposal to the Solicitation will be a public document, and copies may be given to the public as permitted under GRAMA. The District are not obligated to inform Contractor of any GRAMA requests for disclosure of this Purchase Order, related purchase orders, related pricing documents, or invoices.

17. DELIVERY: Time is of the essence for all deliveries made under this Purchase Order. UNLESS OTHERWISE APPROVED BY BOTH PARTIES, ALL PURCHASE ORDERS MUST BE SHIPPED PROMPTLY (WITHIN 5 DAYS), UPON RECEIPT OF THE PURCHASE ORDER. All deliveries under this Purchase Order will be F.O.B. destination with all transportation and handling charges paid for by Contractor. Responsibility and liability for loss or damage will remain with Contractor until final inspection and acceptance when responsibility will pass to the District, except as to latent defects, fraud and Contractor’s warranty obligations.

Contractor’s failure to provide the Goods by the required delivery date is deemed material breach of this Purchase Order.

Contractor shall be responsible for the customary industry standard in packing and shipping the goods. Orders must be shipped directly to ordering agency at address specified.

18. ACCEPTANCE AND REJECTION: The District shall have thirty (30) days after delivery of the Goods to perform an inspection of the Goods to determine whether the Goods conform to the standards specified in the Solicitation and this Purchase Order prior to acceptance of the Goods by the District.

If Contractor delivers nonconforming Goods, the District may, at its option and at Contractor’s expense: (i) return the Goods for a full refund; (ii) require Contractor to promptly correct or replace the nonconforming Goods; or (iii) obtain replacement Goods from another source, subject to Contractor being responsible for any cover costs. Contractor shall not redeliver corrected or rejected Goods without: first, disclosing the former rejection or requirement for correction; and second, obtaining written consent of the District to redeliver the corrected Goods. Repair, replacement, and other correction and redelivery shall be subject to the terms of this Purchase Order.

19. INVOICING: Contractor will submit invoices within thirty (30) days of the delivery date of the Goods to the District. The purchase order number shall be listed on all invoices, freight tickets, and correspondence relating to this Purchase Order. The prices paid by the District will be those prices listed in this Purchase Order, unless Contractor offers a prompt payment discount within its Proposal or on its invoice. The District has the right to adjust or return any invoice reflecting incorrect pricing.

20. PAYMENT: Payments are to be made within thirty (30) days after a correct invoice is received. All payments to Contractor will be remitted by mail, electronic funds transfer, or the District’s Purchasing Card (major credit card). If payment has not been made after sixty (60) days from the date a correct invoice is received by the District, then interest may be added by Contractor as prescribed in the Utah Prompt Payment Act. The acceptance by Contractor of final payment, without a written protest filed with the District within ten (10) business days of receipt of final payment, shall release the District from all claims and all liability to the Contractor. The District’s payment for the Goods shall not be deemed an acceptance of the Goods and is without prejudice to any and all claims that the District may have against Contractor. The District will not allow the Contractor to charge end users electronic payment fees of any kind.

21. INDEMNIFICATION RELATING TO INTELLECTUAL PROPERTY: Contractor will indemnify and hold the District harmless from and against any and all damages, expenses (including reasonable attorneys' fees), claims, judgments, liabilities, and costs in any action or claim brought against the District for infringement of a third party’s copyright, trademark, trade secret, or other proprietary right. The parties agree that if there are any limitations of Contractor’s liability, such limitations of liability will not apply to this section.

22. OWNERSHIP IN INTELLECTUAL PROPERTY: The District 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, documents, records, programs, data, articles, memoranda, and other materials not developed or licensed by Contractor prior to the execution of this Purchase Order, but specifically manufactured under this Purchase Order shall be considered work made for hire, and Contractor shall transfer any ownership claim to the District.

23. ASSIGNMENT: Contractor may not assign, sell, transfer, subcontract or sublet rights, or delegate any right or obligation under this Purchase Order, in whole or in part, without the prior written approval of the District.

24. REMEDIES: Any of the following events will constitute cause for the District to declare Contractor in default of this Purchase Order:

(i) Contractor’s non-performance of its contractual requirements and obligations under this Purchase Order; or (ii) Contractor’s material breach of any term or condition of this Purchase Order. If the Contractor is in breach of this Purchase Order,, the District may do one or more of the following: (i) exercise any remedy provided by law or equity; (ii) terminate this Purchase Order; (iii) impose liquidated damages, if liquidated damages are listed in this Purchase Order; (iv) debar/suspend Contractor from receiving future contracts from the District; or (v) demand a full refund of any payment that the District has made to Contractor under this Purchase Order for Goods that do not conform to this Purchase Order.

25. FORCE MAJEURE: Neither party to this Purchase Order will be held responsible for delay or default caused by fire, riot, act of God, and/or war which is beyond that party's reasonable control. The District may terminate this Purchase Order after determining such delay will prevent successful performance of this Purchase Order.

26. CONFIDENTIALITY: If Confidential Information is disclosed to Contractor, Contractor shall: (i) advise its agents, officers, employees, partners, and Subcontractors of the obligations set forth in this Purchase Order; (ii) keep all Confidential Information strictly confidential; and (iii) not disclose any Confidential Information received by it to any third parties. Contractor will promptly notify the District of any potential or actual misuse or misappropriation of Confidential Information.

Contractor shall be responsible for any breach of this duty of confidentiality, including any required remedies and/or notifications under applicable law. Contractor shall indemnify, hold harmless, and defend the District, including anyone for whom the District is liable, from claims related to a breach of this duty of confidentiality, including any notification requirements, by Contractor or anyone for whom the Contractor is liable.

Upon termination or expiration of this Purchase Order, Contractor will return all copies of Confidential Information to the District 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 Purchase Order.

27. PUBLICITY: Contractor shall submit to the District for written approval all advertising and publicity matters relating to this Purchase Order. It is within the District’s sole discretion whether to provide approval, which approval must be in writing.

28. WAIVER: A waiver of any right, power, or privilege shall not be construed as a waiver of any subsequent right, power, or privilege.

29. PROCUREMENT ETHICS: Contractor understands that a person who is interested in any way in the sale of any supplies, services, construction, or insurance to the District is violating the law if the person gives or offers to give any compensation, gratuity, contribution, loan, reward, or any promise thereof to any person acting as a procurement officer on behalf of the District, or to any person in any official capacity who participates in the procurement of such supplies, services, construction, or insurance, whether it is given for their own use or for the use or benefit of any other person or organization.

30. ATTORNEY’S FEES: In the event of any judicial action to enforce rights under this Purchase Order, the prevailing party shall be entitled its costs and expenses, including reasonable attorney’s fees incurred in connection with such action.

31. DISPUTE RESOLUTION: Prior to either party filing a judicial proceeding, the parties agree to participate in the mediation of any dispute. The District, after consultation with Contractor, may appoint an expert or panel of experts to assist in the resolution of a dispute. If the District appoints such an expert or panel, District and Contractor agree to cooperate in good faith in providing information and documents to the expert or panel in an effort to resolve the dispute.

32. ORDER OF PRECEDENCE: In the event of any conflict in the terms and conditions in this Purchase Order, the order of precedence shall be: (i) these Purchase Order Terms and Conditions for Goods; (ii) the District’s additional terms and conditions, if any; and

(iii) Contractor’s terms and conditions that are attached to this Purchase Order, if any. Any provision attempting to limit the liability of Contractor or limit the rights of the District or the State of Utah must be in writing and attached to this Purchase Order or it is rendered null and void.

33. SURVIVAL OF TERMS: Termination or expiration of this Purchase Order shall not extinguish or prejudice the District’s right to enforce this Purchase Order with respect to any default of this Purchase Order or defect in the Goods that has not been cured.

34. SEVERABILITY: The invalidity or unenforceability of any provision, term, or condition of this Purchase Order shall not affect the validity or enforceability of any other provision, term, or condition of this Purchase Order, which shall remain in full force and effect.

35. PRICE GUARANTEE, ADJUSTMENTS: The contract pricing will be guaranteed for the period specified in the original solicitation document. Following the guarantee period, any request for price adjustment must be for an equal guarantee period, and must be made at least 30 days prior to the effective date. Requests for price adjustment must include documentation supporting the request and demonstrating a logical mathematical link between the current price and the proposed price. Any adjustment or amendment to the contract will not be effective unless approved by the Provo City School District Director of Purchasing. Provo City School District must be given the immediate benefit of any decrease in the market, or allowable discount.

36. PUBLIC CONTRACT BOYCOTT RESTRICTIONS: In accordance with Utah Code 63G-27 et seq., Contractor certifies that it is not currently engaged in any “economic boycott” nor a “boycott of the State of Israel” as those terms are defined in Section 102.

Contractor further certifies that it has read and understands 63G-27 et. seq., that it will not engage in any such boycott action during the term of this Purchase Order, and that if it does, it shall promptly notify the State in writing.

37. ENTIRE AGREEMENT: This Purchase Order 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.

Revised 04/12/24