4-Terms Conditions.pdf

TERMS AND CONDITIONS

Federal Funds: All procurements of supplies, equipment, and services utilizing Federal Funds (e.g., Federal Grant or Contract) shall be made in accordance with all applicable federal rules and regulations: Federal Acquisition Regulations (FAR) https://www.acquisition.gov

Excluded Parties List http://www.epls.gov/ (Debarred Bidders List) By signing this document vendor certifies they are not on the Debarred Bidders List.

Option to Extend. N/A

Right to Cancel. UTD shall have the right to cancel this contract with cause with 30 days notice during the initial year and without cause on a month to month basis during the renewal option years.

HUB. If this order is expected to go over $100,000 HUB Subcontracting Plan (HSP) Documents are required by law to be supplied, available at this site:

http://www.window.state.tx.us/procurement/prog/hub/hub-forms/

WE MAY HAVE TO DISQUALIFY ANY BID OVER $100,000 MISSING THE HSP DOCUMENTS!

https://mycpa.cpa.state.tx.us/tpasscmblsearch/index.jsp Hub vendors listed here.

“FOB Destination” for domestic shipments, and “Incoterm DDP” for int’l shipments. Or show exact delivery cost and terms.

Best Interest of UTD. The University reserves the right to accept or reject all or any part of any RFP, waive minor technicalities and award the RFP that best serves the interests of UTD.

Brand names, Catalogs, or manufacturer's references are descriptive only, and indicate type and quality desired. RFPs on brands of like nature and quality will be considered unless advertised as SOLE SOURCE If other than brand(s) specified is offered, illustrations and complete description of product offered are requested to be made part of the RFP.

Implied Use. All parts and work shall conform in strength, quality and workmanship to the accepted industry standards for the intended and implied use of a major University. Unless otherwise specified, items offered shall be new and unused and of current date codes. Proposer represents and warrants that all products and services offered to University in response to this RFP meet or exceed the safety standards established and promulgated under the Federal Occupational Safety and Health Law (Public Law 91-596) and the Texas Hazard Communication Act, Chapter 502, Health and Safety Code, and all related regulations in effect or proposed as of the date of this RFP.

Award of Contract - A response to an IFB is an offer to contract based upon the terms, conditions and specifications contained herein. The terms and conditions contained in APPENDIX ONE will become a part of and govern any agreement that results from this RFP. Contractor will be required to perform Work in accordance with (a) the terms and conditions of APPENDIX ONE, and (b) other terms and conditions acceptable to University in all respects. Proposer should, therefore, review APPENDIX ONE carefully.

https://www.acquisition.gov/ http://www.epls.gov/ http://www.window.state.tx.us/procurement/prog/hub/hub-forms/ https://mycpa.cpa.state.tx.us/tpasscmblsearch/index.jsp

Respondents must comply with the requirements and specifications contained in this solicitation, including the Terms and Conditions (ref. ATTACHMENT TWO). If there is a conflict among the provisions in this solicitation, the provision requiring Respondent to supply the better quality or greater quantity of services will prevail, or if such conflict does not involve quality or quantity, then interpretation will be in the following order of precedence: 1) University Terms and Conditions, 2) University referenced solicitation including all amendments issued by University, 3) the solicitation response as accepted and awarded by University.

Respondent may offer for University's consideration alternate provisions to the Terms and Conditions.

Alternates proposed must refer to the specific article(s) or section(s) concerned. General exceptions such as “company standard sales terms apply" or "will negotiate" are not acceptable.

Respondent’s exceptions will be reviewed by University and may result in disqualification of Respondent’s response as non-responsive to this solicitation. If Respondent’s exceptions do not result in disqualification of Respondent’s response, then University may consider Respondent’s exceptions when University evaluates the Respondent’s responses.

Respondent’s silence as to the terms and conditions shall be construed as an Indication of complete acceptance of these conditions as written.

The University shall not agree to any exceptions taken to the following terms and conditions for use of a proposed solution under the resulting contract:

1. Arbitration;

2. Limit of Liability;

3. Indemnification by University;

4. Wavier of class action by University;

5. Agree to personal jurisdiction or subject matter jurisdiction;

6. Any law other than Texas law;

7. Use of University Logos, except with written permission;

8. Cannot monetize or sell any data;

9. Mediation; and

10. Waiver of trial by jury .The contract shall be governed, construed and interpreted under the laws of the State of Texas.

Proposer acknowledges and agrees that (1) this RFP is a solicitation for a proposal and is not a contract or an offer to contract; (2) the submission of a proposal by Proposer in response to this RFP will not create a contract between University and Proposer; (3) University has made no representation or warranty, written or oral, that one or more contracts with University will be awarded under this RFP;

and (4) Proposer will bear, as its sole risk and responsibility, any cost arising from Proposer’s preparation of a response to this RFP.

Gifts. The Contractor has not given, offered to give, nor intends to give at any time hereafter any economic opportunity, future employment, gift, loan, gratuity, special discount, trip, favor, or service to a public servant in connection with the submitted bid, offer, proposal or contract.

Indemnify. The Contractor shall defend, indemnify, and hold harmless UTD, all of its officers, agents and employees from and against all claims, actions, suits, demands, proceedings costs, damages, and liabilities, arising out of, connected with, or resulting from any acts or omissions of Contractor or any agent, employee, subcontractor, or supplier of Contractor in the execution or performance of this bid, offer, proposal or contract.

Former State Executive. Contractor certifies that they are in compliance with section 618.003 of the Government Code, relating to contracting with the executive head of a state agency . If section 618.003, applies, Contractor will complete the following information in order for the bid to be evaluated: * Name of Former Executive: * Name of State Agency: * Date of separation from State Agency: * Date of Employment with Contractor:

Texas Prompt Payment Act. Terms Net 30 with a maximum past due interest of 4.25% per year, unless there is a bona fide dispute per the law. https://fmx.cpa.state.tx.us/fm/usas/prompay/rate/index.php

Sales/Property Taxes. Purchases made for UTD use are exempt from the State Sales tax and Federal Excise tax. http://www.cpa.state.tx.us/m23taxes.html

Certificates of Insurance. For any Contract which requires the Contractor to provide on-site services, the Contractor shall, prior to commencement of work, provide UTD with Certificates of Insurance in the below amounts and shall maintain such coverage in effect for the full duration of the Contract.

Contractor, consistent with its status as an independent Contractor, shall carry at least the following insurance in such form, with such companies and in such amounts (unless otherwise specified) as University may require:

• Workers’ Compensation Insurance with statutory limits, and Employer’s Liability Insurance with limit of not less than One Million Dollars ($1,000,000) per accident or disease.

Policies must include All States Endorsement and a waiver of all rights of subrogation and other rights against the University;

• Commercial General Liability insurance, including Blanket Contractual Liability, Broad Form Property Damage, Personal and Advertising Injury, Completed Operations/Products Liability, Medical Expenses, Interest of Employees as additional insured and Broad Form General Liability Endorsements, for at least One Million Dollars ($1,000,000) per occurrence on an occurrence basis; and https://fmx.cpa.state.tx.us/fm/usas/prompay/rate/index.php http://www.cpa.state.tx.us/m23taxes.html http://www.cpa.state.tx.us/m23taxes.html http://www.cpa.state.tx.us/m23taxes.html

• Comprehensive Automobile Liability insurance covering all owned, non owned or hired automobiles to be used by Contractor, with coverage for at least One Million Dollars ($1,000,000) Combined Single Limit Bodily Injury and Property Damage.

Construction Bonds: http://www.statutes.legis.state.tx.us/Docs/GV/htm/GV.2253.htm#2253.021

GOVERNMENT CODE CHAPTER 2253. PUBLIC WORK PERFORMANCE AND PAYMENT BONDS

(4) "Public work contract" means a contract for constructing, altering, or repairing a public building or carrying out or completing any public work. § 2253.021. PERFORMANCE AND PAYMENT BONDS REQUIRED. (a) A governmental entity that makes a public work contract with a prime contractor shall require the contractor, before beginning the work, to execute to the governmental entity: (1) a performance bond if the contract is in excess of $100,000; and (2) a payment bond if the contract is in excess of $25,000.

UT Dallas Design Guidelines & Construction Standards http://www.utdallas.edu/facilities/ut-dallas-design-guidelines-construction-standards/

2013 Uniform General and Supplementary General Conditions

• For use on all UT System and Institutional Construction Projects with a value ≥$100,000 http://www.utsystem.edu/ogc/docs/constlaw/UGC-SGC.pdf

Representations and Warranties by Contractor. If Contractor is a corporation or a limited liability company, Contractor warrants, represents, covenants, and agrees that it is duly organized, validly existing and in good standing under the laws of the state of its incorporation or organization and is duly authorized and in good standing to conduct business in the State of Texas, that it has all necessary power and has received all necessary approvals to execute and deliver the Agreement, and the individual executing the Agreement on behalf of Contractor has been duly authorized to act for and bind Contractor.

Tax Certification. If Contractor is a taxable entity as defined by Chapter 171, Texas Tax Code (“Chapter 171”), then Contractor certifies that it is not currently delinquent in the payment of any taxes due under Chapter 171, or that Contractor is exempt from the payment of those taxes, or that Contractor is an out-of-state taxable entity that is not subject to those taxes, whichever is applicable.

http://www.statutes.legis.state.tx.us/Docs/TX/htm/TX.171.htm

Eligibility Certification. Pursuant to Section 2155.004, Texas Government Code, A state agency may not accept a bid or award a contract that includes proposed financial participation by a person who received compensation from the agency to participate in preparing the specifications or request for proposals on which the bid or contract is based..

http://www.statutes.legis.state.tx.us/Docs/GV/htm/GV.2155.htm#2155.004

Payment of Debt or Delinquency to the State. Pursuant to Sections 2107.008 and 2252.903, Texas Government Code, Contractor agrees that any payments owing to Contractor under the Agreement http://www.statutes.legis.state.tx.us/Docs/GV/htm/GV.2253.htm#2253.021 http://www.utdallas.edu/facilities/ut-dallas-design-guidelines-construction-standards/ http://www.utsystem.edu/ogc/docs/constlaw/UGC-SGC.pdf http://www.statutes.legis.state.tx.us/Docs/TX/htm/TX.171.htm http://www.statutes.legis.state.tx.us/Docs/GV/htm/GV.2155.htm#2155.004 may be applied directly toward any debt or delinquency that Contractor owes the State of Texas or any agency of the State of Texas regardless of when it arises, until such debt or delinquency is paid in full.

http://www.statutes.legis.state.tx.us/Docs/GV/htm/GV.2107.htm#2107.008 http://www.statutes.legis.state.tx.us/Docs/GV/htm/GV.2252.htm#2252.903

Texas Family Code Child Support Certification. A child support obligor who is more than 30 days delinquent in paying child support and a business entity in which the obligor is a sole proprietor, partner, shareholder, or owner with an ownership interest of at least 25 percent is not eligible to receive payments from state funds http://www.statutes.legis.state.tx.us/Docs/FA/htm/FA.231.htm#231.006

Access by Individuals with Disabilities. UTS150 – Access by Persons with Disabilities to Electronic and Information Resources Procured by The University of Texas System Administration and The University Of Texas System Institutions http://www.utsystem.edu/board-of-regents/policylibrary/policies/uts150-access-persons-disabilities

Notices. Except as otherwise provided in this Section, all notices, consents, approvals, demands, requests or other communications provided for or permitted to be given under any of the provisions of the Agreement will be in writing.

Venue; Governing Law. Dallas County, Texas, will be the proper place of venue for suit on or in respect of the Agreement. The Agreement and all of the rights and obligations of the parties hereto and all of the terms and conditions hereof will be construed, interpreted and applied in accordance with and governed by and enforced under the laws of the State of Texas.

Breach of Contract Claims. To the extent that Chapter 2260, Texas Government Code, is applicable to the Agreement and is not preempted by other applicable law, the dispute resolution process provided for in Chapter 2260 and the related rules adopted by the Texas Attorney General pursuant to Chapter 2260, will be used by University and Contractor to attempt to resolve any claim for breach of contract made by Contractor that cannot be resolved in the ordinary course of business.

http://www.statutes.legis.state.tx.us/Docs/GV/htm/GV.2260.htm#2260.001

Entire Agreement; Modifications. The Agreement supersedes all prior agreements, written or oral, between Contractor and University and will constitute the entire Agreement and understanding between the parties with respect to the subject matter hereof. The Agreement and each of its provisions will be binding upon the parties and may not be waived, modified, amended or altered except by a writing signed by University and Contractor.

Loss of Funding. Performance by University under the Agreement may be dependent upon the appropriation and allotment of funds by the Texas State Legislature (the "Legislature") and/or allocation of funds by the Board of Regents of The University of Texas System (the "Board"). If the Legislature fails to appropriate or allot the necessary funds, or the Board fails to allocate the necessary funds, then University will issue written notice to Contractor and University may terminate the Agreement without further duty or obligation hereunder. Contractor acknowledges that appropriation, allotment, and http://www.statutes.legis.state.tx.us/Docs/GV/htm/GV.2107.htm#2107.008 http://www.statutes.legis.state.tx.us/Docs/GV/htm/GV.2252.htm#2252.903 http://www.statutes.legis.state.tx.us/Docs/FA/htm/FA.231.htm#231.006 http://www.utsystem.edu/board-of-regents/policy-library/policies/uts150-access-persons-disabilities http://www.utsystem.edu/board-of-regents/policy-library/policies/uts150-access-persons-disabilities http://www.utsystem.edu/board-of-regents/policy-library/policies/uts150-access-persons-disabilities http://www.utsystem.edu/board-of-regents/policy-library/policies/uts150-access-persons-disabilities http://www.statutes.legis.state.tx.us/Docs/GV/htm/GV.2260.htm#2260.001 allocation of funds are beyond the control of University. http://www.utsystem.edu/board-of-regents/rules/20501-accounting-operating-budgets-and-legislativeappropriation-requests

State Auditor’s Office. Contractor understands that acceptance of funds under the Agreement constitutes acceptance of the authority of the Texas State Auditor's Office, or any successor agency (collectively, “Auditor”), to conduct an audit or investigation in connection with those funds pursuant to Sections 51.9335(c), 73.115(c) and 74.008(c), Texas Education Code. Contractor agrees to cooperate with the Auditor in the conduct of the audit or investigation, including without limitation providing all records requested. Contractor will include this provision in all contracts with permitted subcontractors.

http://www.statutes.legis.state.tx.us/Docs/ED/htm/ED.51.htm#51.9335

SAFEGUARDING OF Confidential Data: If the item(s) or service(s) specified on this order require Vendor access to Confidential Data (e.g., social security numbers, credit card numbers, FERPA protected data, HIPAA protected data), Vendor agrees it may (1) create, (2) receive from or on behalf of UTD, or (3) have access to records or systems containing Confidential Data. Vendor represents, warrants and agrees it will: (1) hold information in the strictest confidence and will not use or disclose information except as

(a) permitted or required by this order, (b) required by law, or (c) otherwise authorized by UTD in writing; (2) safeguard information according to commercially reasonable administrative, physical and technical standards (e.g., National Institute of Standards and Technology, Center for Internet Security, Gramm-Leach Bliley Act) ; and (3) continually monitor its operations and take any action necessary to assure the information is safeguarded in accordance with the terms of this order. Vendor represents warrants and agrees that it complies with University Vendor Access Requirement http://www.utsystem.edu/board-of-regents/policy-library/policies/uts165-information-resources-use-andsecurity-policy . At the request of UTD, Vendor agrees to provide UTD a written summary of the procedures the Vendor uses to safeguard this information. If an impermissible use or disclosure of any of the information occurs, Vendor will provide written notice to UTD within one (1) business day after Vendor’s discovery of use or disclosure. Vendor will promptly provide UTD all information requested by UTD regarding the impermissible use or disclosure. In addition to any other termination rights set forth in this order and any other rights at law or equity, if UTD reasonably determines that the Vendor has breached any restrictions or obligations set forth in this section, UTD may immediately cancel this order without notice or offer to cure.

Ethics Matters; No Financial Interest. Contractor and its employees, agents, representatives and subcontractors have read and understand University’s Conflicts of Interest Policy, University’s Standards of Conduct Guide, and applicable state ethics laws and rules available at www.utsystem.edu/ogc/ethics.

Neither Contractor nor its employees, agents, representatives or subcontractors will assist or cause University employees to violate University’s Conflicts of Interest Policy, provisions described by University’s Standards of Conduct Guide, or applicable state ethics laws or rules. Contractor represents and warrants that no member of the Board has a direct or indirect financial interest in the transaction that is the subject of the Agreement. http://policy.utdallas.edu/utdpp1091 www.utsystem.edu/ogc/ethics

Antitrust laws. Proposer hereby certifies that neither Proposer nor any firm, corporation, partnership or institution represented by Proposer, or anyone acting for such firm, corporation or institution, has violated the antitrust laws of the State of Texas, codified in Section 15.01, et seq., Business and http://www.utsystem.edu/board-of-regents/rules/20501-accounting-operating-budgets-and-legislative-appropriation-requests http://www.utsystem.edu/board-of-regents/rules/20501-accounting-operating-budgets-and-legislative-appropriation-requests http://www.utsystem.edu/board-of-regents/rules/20501-accounting-operating-budgets-and-legislative-appropriation-requests http://www.utsystem.edu/board-of-regents/rules/20501-accounting-operating-budgets-and-legislative-appropriation-requests http://www.statutes.legis.state.tx.us/Docs/ED/htm/ED.51.htm#51.9335 http://www.utsystem.edu/board-of-regents/policy-library/policies/uts165-information-resources-use-and-security-policy http://www.utsystem.edu/board-of-regents/policy-library/policies/uts165-information-resources-use-and-security-policy http://www.utsystem.edu/board-of-regents/policy-library/policies/uts165-information-resources-use-and-security-policy http://www.utsystem.edu/board-of-regents/policy-library/policies/uts165-information-resources-use-and-security-policy http://www.utsystem.edu/board-of-regents/policy-library/policies/uts165-information-resources-use-and-security-policy http://www.utsystem.edu/ogc/ethics http://www.utsystem.edu/ogc/ethics http://policy.utdallas.edu/utdpp1091 http://www.utsystem.edu/ogc/ethics

Commerce Code, or the Federal antitrust laws, nor communicated directly or indirectly the proposal made to any competitor or any other person engaged in such line of business.

Compensation for Specifications. The vendor has not received compensation for the participation in the preparation of the specifications for this bid, offer, proposal or contract.

Public Information Act. Information, documentation, and other material in connection with this solicitation or any resulting contract may be subject to public disclosure pursuant to Chapter 552 of the Texas Government Code (the "Public Information Act"). Proposer is hereby notified that University strictly adheres to all statutes, court decisions and the opinions of the Texas Attorney General with respect to disclosure of public information. University may seek to protect from disclosure all information submitted in response to this RFP until such time as a final agreement is executed. Upon execution of a final agreement, University will consider all information, documentation, and other materials requested to be submitted in response to this RFP, to be of a nonconfidential and non-proprietary nature and, therefore, subject to public disclosure under the Texas Public Information Act (Texas Government Code, Chapter 552.001, et seq.). Proposer will be advised of a request for public information that implicates their materials and will have the opportunity to raise any objections to disclosure to the Texas Attorney General. Certain information may be protected from release under Sections 552.101, 552.110, 552.113, and 552.131, Texas Government Code http://www.statutes.legis.state.tx.us/Docs/GV/htm/GV.552.htm

Non-Disclosure. Contractor and UTD acknowledge that they or their employees may, in the performance of the resultant Contract, come into the possession of proprietary or confidential information owned by or in the possession of the other. Neither party shall use any such information for its own benefit or make such information available to any person, firm, corporation, or other organization, regardless of whether directly or indirectly affiliated with Contractor or UTD, unless (i) required by law, (ii) by order of any court or tribunal, (iii) such disclosure is necessary for the assertion of a right, or defense of an assertion of a right, by one party against the other party hereto, or (iv) such information has been acquired from other sources.

Publicity. Contractor agrees that it shall not publicize this Contract or disclose, confirm or deny any details thereof to third parties or use any photographs or video recordings of UTD’s employees or use UTD’s name in connection with any sales promotion or publicity event without the prior express written approval of UTD.

Freedom of Access and Use of Facilities. Contractor's employees shall have reasonable and free access to use only those facilities of UTD that are necessary to perform services under this Contract and shall have no right of access to any other facilities of UTD.

Observance of UTD Rules and Regulations. Contractor agrees that at all times its employees will observe and comply with all regulations of the facilities, including but not limited to, no smoking, and parking and security regulations.

Contractor Personnel. Contractor shall maintain a staff of properly trained and experienced personnel to ensure satisfactory performance under the Contract. Contractor shall assign a designated http://www.statutes.legis.state.tx.us/Docs/GV/htm/GV.552.htm representative who will be responsible for the coordination and administration of UTD's requirements under the Contract.

Criminal Background Checks: We require all contractors to do criminal back ground checks on all your employees and sub-contractors. We have zero tolerance for any un-professional or un-safe or harassment issues.

Proposal Evaluation Process University will select the Contractor by using the competitive sealed proposal process described in this Section. After the opening of the proposals and upon completion of the initial review and evaluation of the proposals, University may invite one or more selected Proposers to participate in oral presentations. University will use commercially reasonable efforts to avoid public disclosure of the contents of a proposal prior to selection of the Contractor.

University may make the selection of the Contractor on the basis of the proposals initially submitted, without discussion, clarification or modification. In the alternative, University may make the selection of the Contractor on the basis of negotiation with any of the Proposers. In conducting such negotiations, University will avoid disclosing the contents of competing proposals.

At University's sole option and discretion, University may discuss and negotiate all elements of the proposals submitted by selected Proposers within a specified competitive range. For purposes of negotiation, University may establish, after an initial review of the proposals, a competitive range of acceptable or potentially acceptable proposals composed of the highest rated proposal(s). In that event, University will defer further action on proposals not included within the competitive range pending the selection of the Contractor; provided, however, University reserves the right to include additional proposals in the competitive range if deemed to be in the best interests of University.

After submission of a proposal but before final selection of the Contractor is made, University may permit a Proposer to revise its proposal in order to obtain the Proposer's best and final offer. In that event, representations made by Proposer in its revised proposal, including price and fee quotes, will be binding on Proposer. University will provide each Proposer within the competitive range with an equal opportunity for discussion and revision of its proposal. University is not obligated to select the Proposer offering the most attractive economic terms if that Proposer is not the most advantageous to University overall, as determined by University.

University reserves the right to (a) enter into an agreement for all or any portion of the requirements and specifications set forth in this RFP with one or more Proposers, (b) reject any and all proposals and resolicit proposals, or (c) reject any and all proposals and temporarily or permanently abandon this selection process, if deemed to be in the best interests of University. Proposer is hereby notified that University will maintain in its files concerning this RFP a written record of the basis upon which a selection, if any, is made by University.

Proposer's Acceptance of Evaluation Methodology. By submitting a proposal, Proposer acknowledges (1) Proposer's acceptance of [a] the Proposal Evaluation Process, [b] the Criteria for Selection, [c] the Specifications and Additional Questions, [d] the terms and conditions of the Agreement, and [e] all other requirements and specifications set forth in this RFP; and (2) Proposer's recognition that some subjective judgments must be made by University during this RFP process.

Solicitation for Proposal and Proposal Preparation Costs. Proposer understands and agrees that (1) this RFP is a solicitation for proposals and University has made no representation written or oral that one or more agreements with University will be awarded under this RFP; (2) University issues this RFP predicated on University’s anticipated requirements for the Services, and University has made no representation, written or oral, that any particular scope of services will actually be required by University; and (3) Proposer will bear, as its sole risk and responsibility, any cost that arises from Proposer’s preparation of a proposal in response to this RFP.

Approach to Project Services Proposer will provide a statement of the Proposer’s service approach and will describe any unique benefits to University from doing business with Proposer. Proposer will briefly describe its approach for each of the required products and services of this RFP.

Piggybacking. Texas law authorizes institutions of higher education (defined by Section 61.003, Education Code) to use the group purchasing procurement method (ref. Sections 51.9335, 73.115, and 74.008, Education Code).

Additional Texas institutions of higher education may therefore elect to enter into a contract with the successful Proposer under this RFP. In particular, Proposer should note that University is part of The University of Texas System (UT System), which is comprised of fourteen institutions described at http://www.utsystem.edu/institutions. UT System institutions routinely evaluate whether a contract resulting from a procurement conducted by one of the institutions might be suitable for use by another, and if so, this could give rise to additional purchase volumes. As a result, in submitting its proposal, Proposer should consider proposing a pricing model and other commercial terms that take into account the higher volumes and other expanded opportunities that could result from the eventual inclusion of other institutions in the purchase contemplated by this RFP. Any purchases made by other institutions based on this RFP will be the sole responsibility of those institutions.

Academic Environment. Contractor must be aware the work described in the solicitation will be performed at an academic institution. The progress of work will be occasionally impacted by the demands of an academic calendar such as exam schedules, campus events, housing moves, etc. The project schedule and cost must be reflective of these impacts without the need for an adjustment to the contract price.

Limitations. THE PARTIES ARE AWARE THAT THERE ARE CONSTITUTIONAL AND STATUTORY LIMITATIONS ON THE AUTHORITY OF UNIVERSITY (A STATE AGENCY) TO ENTER INTO CERTAIN TERMS AND CONDITIONS

OF THE AGREEMENT,

INCLUDING, BUT NOT LIMITED TO, THOSE TERMS AND CONDITIONS RELATING TO LIENS ON UNIVERSITY’S

PROPERTY;

http://www.utsystem.edu/institutions

DISCLAIMERS AND LIMITATIONS OF WARRANTIES; DISCLAIMERS AND LIMITATIONS OF LIABILITY FOR DAMAGES; WAIVERS, DISCLAIMERS AND LIMITATIONS OF LEGAL RIGHTS, REMEDIES, REQUIREMENTS

AND PROCESSES; LIMITATIONS OF PERIODS TO BRING LEGAL ACTION; GRANTING CONTROL OF

LITIGATION OR SETTLEMENT TO ANOTHER PARTY; LIABILITY FOR ACTS OR OMISSIONS OF THIRD PARTIES;

PAYMENT OF ATTORNEYS’ FEES; DISPUTE RESOLUTION; INDEMNITIES; AND CONFIDENTIALITY

(COLLECTIVELY, THE “LIMITATIONS”), AND TERMS AND CONDITIONS RELATED TO THE LIMITATIONS WILL NOT BE BINDING ON UNIVERSITY EXCEPT TO THE EXTENT AUTHORIZED BY THE LAWS AND CONSTITUTION OF THE STATE OF TEXAS. http://www.statutes.legis.state.tx.us/

Who can sign contracts http://www.utsystem.edu/ogc/docs/delegation/utd.pdf UT Board of Regents rules on Procurement http://www.utsystem.edu/board-of-regents/rules/20901procurement-certain-goods-and-services Statutes and rules of Texas related to expenditures https://fmx.cpa.state.tx.us/fm/pubs/purchase/index.php State Law for University Purchasing http://www.statutes.legis.state.tx.us/Docs/ED/htm/ED.51.htm#51.9335 Board of Regents Policy Library http://www.utsystem.edu/board-of-regents/policy-library Board of Regents Rules http://www.utsystem.edu/board-of-regents/rules UT Office of General Counsel http://www.utsystem.edu/ogc/

APPENDIX ONE: PO TERMS AND CONDITIONS

I read and agree with the above Terms and Conditions

Name

Company

Date http://www.statutes.legis.state.tx.us/ http://www.utsystem.edu/ogc/docs/delegation/utd.pdf http://www.utsystem.edu/ogc/docs/delegation/utd.pdf http://www.utsystem.edu/board-of-regents/rules/20901-procurement-certain-goods-and-services http://www.utsystem.edu/board-of-regents/rules/20901-procurement-certain-goods-and-services http://www.utsystem.edu/board-of-regents/rules/20901-procurement-certain-goods-and-services http://www.utsystem.edu/board-of-regents/rules/20901-procurement-certain-goods-and-services http://www.utsystem.edu/board-of-regents/rules/20901-procurement-certain-goods-and-services https://fmx.cpa.state.tx.us/fm/pubs/purchase/index.php http://www.statutes.legis.state.tx.us/Docs/ED/htm/ED.51.htm#51.9335 http://www.utsystem.edu/board-of-regents/policy-library http://www.utsystem.edu/board-of-regents/rules http://www.utsystem.edu/board-of-regents/rules

The University of Texas at Dallas Purchase Order Terms and Conditions

1. DELIVERY; SUBSTITUTIONS; INVOICES: Contractor will keep University advised at all times of the status of delivery or performance under this Purchase Order. If delay is foreseen, Contractor will give prompt written notice to University. Upon notice, University may extend the delivery date in its sole discretion. Contractor will only tender for acceptance those goods and services that conform to the requirements of this Purchase Order. Substitutions, cancellations and price changes will require prior written consent of University. Default in promised delivery or failure to conform to the requirements of this Purchase Order authorizes University to purchase goods or services elsewhere and charge to Contractor any excess cost of such repurchase. Contractor will show this Purchase Order number on all packages, shipments, and invoices.

2. TITLE AND RISK OF LOSS: Title to and risk of loss to any goods to be delivered under this Purchase Order will not pass to University until University actually receives and takes possession of such goods at the point of delivery.

3. PAYMENTS; SALES TAX; ELECTRONIC FUNDS TRANSFER:

(a) So long as Contractor has provided University with its current and accurate Federal Tax Identification Number in writing, University will pay Contractor for goods and services in accordance with Chapter 2251, Texas Government Code. University, an agency of the State of Texas, is exempt from Texas Sales & Use Tax on goods and services in accordance with §151.309, Texas Tax Code, and Title 34 Texas Administrative Code (“TAC”) §3.322.

(b) Section 51.012, Texas Education Code, authorizes University to make any payment through electronic funds transfer methods. Contractor agrees to receive payments from University through electronic funds transfer methods, including the automated clearing house system (also known as ACH). Prior to the first payment under this Purchase Order, University will confirm Contractor’s banking information. Any changes to Contractor’s banking information must be communicated to University in writing at least thirty (30) days in advance of the effective date of the change.

4. TARIFF ADJUSTMENTS: It is the standard practice of the University of Texas at Dallas to reject any attempt to impose any price adjustment or surcharge to account for the cost of tariffs, if the contract provides for firm fixed prices. As is the case for any fixed price contract, the supplier bears the risk of cost increases, whether due to tariffs or other causes, unless the contract includes specific provisions allowing for such increases. Any request by Contractor for adjustment of this Purchase Order and/or any associated Contract due to changes in international shipping regulations including tariffs shall be submitted to University in writing accompanied by documentation of (i) the specific regulation and enactment date as published by the enforcing government or agency, and (ii) the impact of such change on Contractor’s quoted rates, and (iii) a reconciliation of the impact to the requested adjustment amount. Notwithstanding the foregoing, the University of Texas at Dallas, as an agency of the State of Texas, is under no obligation to accept or negotiate such a request. Any proposed adjustment shall not be effective unless and until mutually agreed upon in writing through a formal contract amendment or change order fully executed by both parties and approved in accordance with Texas law and UTD Policy internal procurement procedures. All obligations of the Supplier shall remain unchanged unless and until such amendment or change order is executed. Under no circumstances shall Supplier withhold performance, delay production, or suspend delivery on the basis of a pending or denied adjustment request.

5. WARRANTIES: In addition to all warranties established by law, Contractor hereby represents, covenants, certifies, warrants and agrees that:

(a) Contractor will comply with all requirements of this Purchase Order.

(b) If Contractor is a corporation, partnership, limited partnership, limited liability partnership, or limited liability company, it is duly organized, validly existing and in good standing under the laws of the state of its organization and is duly authorized and in good standing to conduct business in the State of Texas.

(c) If Contractor is a taxable entity as defined by Chapter 171, Texas Tax Code (“Chapter 171”), Contractor is not currently delinquent in the payment of any taxes due under Chapter 171, or Contractor is exempt from the payment of those taxes, or Contractor is an out-of-state taxable entity that is not subject to those taxes, whichever is applicable.

(d) Pursuant to §§2107.008 and 2252.903, Texas Government Code, Contractor agrees that any payments owing to Contractor under this Purchase Order may be applied directly toward any debt or delinquency that Contractor owes the State of Texas or any agency of the State of Texas regardless of when it arises, until such debt or delinquency is paid in full.

(e) In accordance with §231.006, Texas Family Code, the individual or business entity named in this Purchase Order is not ineligible to receive the award of or payment under this Purchase Order and this Purchase Order may be terminated and payment may be withheld if this certification is inaccurate.

(f) All goods and services covered by this Purchase Order will conform to the specifications, drawings, samples or other descriptions furnished or adopted by University (collectively “specifications”), and will be new, merchantable, fit for the purpose intended, of best quality and workmanship, and free from all defects. University will have the rights of inspection and approval and may reject and return goods or require reperformance of services at Contractor's expense if defective or not in compliance with University's specifications. Defects will not be deemed waived by University's failure to notify Contractor upon receipt of goods or completion of services or by payment of invoice.

(g) No disclosure, description, or other communication of any sort will be made by Contractor to any third person of the fact of University's purchase of goods or services under this Purchase Order, or of the details and characteristics of the goods or services, without University's prior written consent.

Anything furnished to Contractor by University pursuant to this Purchase Order including samples, drawings, patterns, and materials will remain the property of University, will be held at Contractor's risk, and will be returned to University upon University’s request, and no disclosure or reproduction thereof in any form will be made without University's prior written consent.

(h) Contractor is familiar with and is in full compliance with its obligations, if any, under all applicable federal, state and local, laws, regulations, and ordinances (collectively, “Applicable Laws”).

(i) All goods delivered or services provided pursuant to this Purchase Order will conform to standards established for such goods and services by all Applicable Laws, including those standards promulgated by the federal Occupational Safety and Health Administration (OSHA) and the Texas Hazard Communication Act, Chapter 502, Texas Health and Safety Code (“Texas hazard Communication Act”).

(j) Contractor is familiar with and in full compliance with the Texas Hazard Communication Act and will provide either (1) a Material Safety Data Sheet (“MSDS”) for each product Contractor, its employees, agents or subcontractors brings on University’s premises, or (2) a statement of exemption if the product is not covered by the Texas Hazard Communication Act.

(k) Use or sale of any goods delivered under this Purchase Order, except (with respect to patents) goods produced to University's detailed design, will not infringe any adverse valid patent, copyright, trademark or other intellectual property right.

(l) The price to be paid by University will be that contained in Contractor's bid or proposal, which Contractor warrants to be no higher than Contractor's current prices on orders by others for goods or services of the kind covered by this Purchase Order for similar quantities to similar customers under similar conditions. In the event Contractor breaches its warranty, the prices will be reduced to Contractor's current prices on orders by others or, in the alternative, University may cancel this Purchase Order without liability to Contractor.

(m) Contractor will make records of Contractor's costs, reimbursable expenses and payments pertaining to this Purchase Order available to University or its authorized representative during business hours and retain those records for four (4) years after final payment or abandonment of the project, unless University otherwise instructs Contractor in writing.

(n) If this Purchase Order requires Contractor’s presence on University's premises or in University’s facilities, Contractor will cause its employees, representatives, agents, and subcontractors to become aware of, fully informed about, and in full compliance with all applicable University rules and policies, including those relative to personal health, security, environmental quality, safety, fire prevention, noise, smoking, and access restrictions.

(o) Contractor has not given or offered to give, nor does Contractor intend to give at any time hereafter, any economic opportunity, future employment, gift, loan, gratuity, special discount, trip, favor or service to a public servant in connection with this Purchase Order.

http://www.statutes.legis.state.tx.us/Docs/GV/htm/GV.2251.htm http://texreg.sos.state.tx.us/public/readtac$ext.TacPage?sl=R&app=9&p_dir=&p_rloc=&p_tloc=&p_ploc=&pg=1&p_tac=&ti=34&pt=1&ch=3&rl=322 http://www.statutes.legis.state.tx.us/Docs/ED/htm/ED.51.htm#51.012 http://www.statutes.legis.state.tx.us/Docs/TX/htm/TX.171.htm http://www.statutes.legis.state.tx.us/Docs/GV/htm/GV.2107.htm#2107.008 http://www.statutes.legis.state.tx.us/Docs/GV/htm/GV.2252.htm#2252.903 http://www.statutes.legis.state.tx.us/Docs/FA/htm/FA.231.htm#231.006 http://www.statutes.legis.state.tx.us/Docs/HS/htm/HS.502.htm

(p) The foregoing representations, covenants, certifications, warranties and agreements will survive acceptance of goods as well as performance of services under this Purchase Order.

6. Access by Individuals with Disabilities: Contractor represents and warrants (EIR Accessibility Warranty) the electronic and information resources and all associated information, documentation, and support Contractor provides to University under this Agreement (EIRs) comply with applicable requirements in 1 TAC Chapter 213 and 1 TAC §206.70 (ref. Subchapter M, Chapter 2054, Texas Government Code). To the extent Contractor becomes aware the EIRs, or any portion thereof, do not comply with the EIR Accessibility Warranty, then Contractor represents and warrants it will, at no cost to University, either (1) perform all necessary remediation to make the EIRs satisfy the EIR Accessibility Warranty or (2) replace the EIRs with new EIRs that satisfy the EIR Accessibility Warranty.

If Contractor fails or is unable to do so, University may terminate this Agreement and, within thirty (30) days after termination, Contractor will refund to University all amounts University paid under this Agreement. Contractor will provide all assistance and cooperation necessary for performance and documentation of accessibility testing, planning, and execution criteria conducted by University or University’s third party testing resources, as required by 1 TAC §213.38(g).

7. ANTITRUST LAWS; CLAIMS FOR OVERCHARGES: Contractor warrants and represents that neither Contractor nor any party acting on behalf of Contractor has violated the antitrust laws of the United Sates or of the State of Texas. Contractor hereby assigns to University any and all claims for overcharges associated with this Purchase Order which arise under the antitrust laws of the United States, 15 U.S.C.A. §1, et seq., or of the State of Texas, Tex. Bus. & Comm.

Code Sec. 15.01, et seq.

8. INDEPENDENT CONTRACTOR: In performing any services under this Purchase Order, Contractor is, and undertakes performance thereof as, an independent contractor, with sole responsibility for all persons employed in connection therewith, including exclusive liability for the payment of all federal, state, and local unemployment and disability insurance premiums and fees and all social security and other taxes and contributions payable in respect of such persons, from and against which liability Contractor agrees to indemnify, exonerate and hold harmless University.

9. INDEMNITY: CONTRACTOR WILL DEFEND, INDEMNIFY AND HOLD HARMLESS UNIVERSITY, THE BOARD OF REGENTS OF THE UNIVERSITY OF TEXAS SYSTEM (“BOARD”) AND THE STATE OF TEXAS AND THEIR OFFICERS, AGENTS AND EMPLOYEES (COLLECTIVELY THE “INDEMNIFIED PARTIES”) FROM AND AGAINST ALL DAMAGES, LOSSES, LIENS, CAUSES OF ACTION, SUITS, JUDGMENTS, EXPENSES, AND OTHER CLAIMS OF ANY NATURE, KIND, OR DESCRIPTION, INCLUDING REASONABLE ATTORNEYS’ FEES INCURRED IN INVESTIGATING, DEFENDING OR SETTLING ANY OF THE FOREGOING (COLLECTIVELY “CLAIMS”) BY ANY PERSON OR ENTITY, ARISING OUT OF, IN CONNECTION WITH OR RESULTING FROM (1) CONTRACTOR’S PERFORMANCE UNDER OR BREACH OF THIS PURCHASE ORDER, (2) THE GOODS OR SERVICES PROVIDED UNDER THIS PURCHASE ORDER, AND/OR (3) THE ACTS, OMISSIONS OR WILLFUL MISCONDUCT OF CONTRACTOR OR ITS AGENTS, EMPLOYEES, SUBCONTRACTORS OR SUPPLIERS. IN ADDITION, CONTRACTOR WILL DEFEND, INDEMNIFY AND HOLD HARMLESS THE INDEMNIFIED PARTIES FROM AND AGAINST ALL CLAIMS ARISING FROM INFRINGEMENT OR ALLEGED INFRINGEMENT OF ANY PATENT, COPYRIGHT, TRADEMARK OR OTHER INTELLECTUAL PROPERTY RIGHTS ARISING OUT OF, IN CONNECTION WITH OR RESULTING FROM THIS PURCHASE ORDER OR THE GOODS

OR SERVICES PROVIDED UNDER THIS PURCHASE ORDER.

10. INSURANCE: If Contractor’s employees, agents, suppliers or subcontractors will be present on University’s property, Contractor will maintain and cause its agents, suppliers and subcontractors (if any) to maintain the following insurance coverages for at least the specified limits:

Coverages Limits Workers’ Compensation Statutory Limits Employer’s Liability $1,000,000 per accident and employee Commercial General Liability (including contractual liability) $1,000,000 per occurrence Personal & Advertising Injury $1,000,000 per occurrence Product/Completed Ops $1,000,000 aggregate Business Auto Liability $1,000,000 combined single limit General Aggregate $2,000,000 per policy limit

All policies (except Workers’ Compensation) will name University, the Board, and their officers and employees as Additional Insured. A Waiver of Subrogation in favor of University and the Board and thirty (30) day notice of cancellation is required on all policies. Certificates of insurance verifying the foregoing requirements will be provided to University prior to commencement of any services under this Purchase Order. Contractor will endorse all policies to require insurance carriers to notify University of cancellation, termination, material change, or non-renewal of any policy.

11. VENUE; GOVERNING LAW: Dallas County, Texas, will be the proper place of venue for suit on or in respect of this Purchase Order. This Purchase Order, all of its terms and conditions, all rights and obligations of the parties, and all claims arising out of or relating to this Purchase Order, will be construed, interpreted and applied in accordance with, governed by and enforced under, the laws of the State of Texas.

12. ASSIGNMENT AND DELEGATION: Contractor may not assign any of its rights or delegate any of its obligations under this Purchase Order without University's prior written consent. Any assignment or delegation attempted by Contractor in violation of this clause will be void and ineffective for all purposes.

13. ENTIRE AGREEMENT; MODIFICATIONS: This Purchase Order supersedes all prior agreements, written or oral, between Contractor and University and will constitute the entire agreement and understanding between the parties with respect to the subject matter hereof. This Purchase Order and each of its provisions will be binding upon the parties and may not be waived, modified, amended or altered except in writing.

14. BREACH OF CONTRACT CLAIMS: To the extent that Chapter 2260, Texas Government Code, is applicable to this Purchase Order and is not preempted by other applicable law, the dispute resolution process provided for in Chapter 2260 and the related rules adopted by the Texas Attorney General pursuant to Chapter 2260, will be used by University and Contractor to attempt to resolve any claim for breach of contract made by Contractor that cannot be…