ATTACHMENT A Ts and Cs for GOODS 7-20-21.pdf

Rev. 10-16-12 1

ATTACHMENT A

STANDARD TERMS & CONDITIONS FOR THE PURCHASE OF GOODS

A.1 DEFINITIONS:

“Contract” or “Contracts” means the Written agreement(s), resulting from the Solicitation Document that sets forth the rights and obligations of the parties.

“Contractor” means the Person with whom EWEB enters into a Contract.

“Goods” includes products that have associated or incidental service components, such as supplier warranty obligations or maintenance service programs. (See ORS 279B.115(1))

"Person" means a natural person capable of being legally bound, a sole proprietorship, a corporation, a partnership, a limited liability company or partnership, a limited partnership, a for-profit or nonprofit unincorporated association, a business trust, two or more persons having a joint or common economic interest, any other person with legal capacity to contract or a public body.

“Rule” means a Rule within the EWEB Public Contracting Rules.

“Working hours” means EWEB’s regular business hours, which currently are Monday through Friday, 9 a.m. to 5 p.m., excluding EWEB recognized holidays.

All other terms not expressly identified above shall have the meanings as set forth in EWEB Public Contracting Rules, Division 1 - Definitions.

A.2 HEADINGS:

The section headings in this Contract are included for convenience only; they do not give full notice of any portion of the terms of this Contract and are not relevant to the interpretation of any provision of this Contract.

If these Terms and Conditions are attached to a Request for Proposals (RFP) solicitation, then "ITB", whenever stated herein, shall mean "RFP".

A.3 STANDARD AND SPECIAL TERMS AND CONDITIONS;

ORDER OF PRECEDENCE:

These printed Terms and Conditions are the Standard Terms and Conditions for EWEB contracts for the purchase of goods.

EWEB may also provide "Special Terms and Conditions" elsewhere in the Contract which apply only to this Contract.

Whenever possible, all terms and conditions are to be harmonized. In the event of a conflict between the standard and "special terms and conditions", the "special terms and conditions" take precedence, unless the standard term(s) in question is/are required by law. In the event of any other conflict, 1) the special terms and conditions, 2) these Standard Terms and Conditions, 3) the Invitation to Bid or Request for

Proposal, and 4) the bid or response thereto shall be interpreted in the foregoing order of precedence. By signing this Contract, Contractor agrees that, in the event of a conflict, all the terms and conditions of this Contract supersedes all preprinted terms and conditions on any forms used by the Contractor.

A.4 DELIVERY:

All deliveries shall be F.O.B. destination with all transportation and handling charges paid by Contractor, unless specified otherwise in the Contract. Responsibility and liability for loss or damage shall remain with Contractor until final inspection and acceptance.

A.5 WARRANTIES:

Unless otherwise stated, all goods shall be free and clear of any liens or encumbrances and shall be new (and, if applicable, the current model) and shall carry full manufacturer warranties.

Contractor warrants all goods delivered to be free from defects in labor, material and manufacture and to be in compliance with the specifications set out in this Contract. All implied and express warranty provisions of the UCC, as adopted in Oregon, are hereby incorporated by reference. Further, Contractor represents and warrants to EWEB that Contractor has the power and authority to enter into and perform this Contract and that this Contract, when executed and delivered, shall be a valid and binding obligation of Contractor enforceable in accordance with its terms.

A.6 UCC:

Except as otherwise provided herein, the Uniform Commercial Code (UCC), as adopted in Oregon shall apply to this Contract.

A.7 INSPECTIONS:

Goods furnished under this Contract shall be subject to inspection and test by EWEB at delivery point unless otherwise stated in the Contract. If EWEB finds goods furnished to be incomplete or not in compliance with the Contract, EWEB, at its sole discretion, may either reject the goods, require Contractor to correct any defects without charge, or negotiate with Contractor to sell the goods to EWEB at a reduced price, whichever EWEB deems equitable under the circumstances. If Contractor is unable or refuses to cure any defects within a time deemed reasonable by EWEB, EWEB may reject the goods and cancel the Contract in whole or in part. Nothing in this paragraph shall in any way affect or limit EWEB's rights as buyer under the UCC, including the rights and remedies relating to rejection under ORS 72.6020 and revocation of acceptance under ORS 72.6080.

A.8 CASH DISCOUNT:

If EWEB is entitled to a cash discount, the period of computation shall start on the date the entire order is delivered or the date the invoice is received, whichever is later. Cash

Rev. 10-16-12 2 discounts will not be considered for award purposes unless stated in the bid documents.

A.9 INVOICING AND PAYMENT.

Payment will be made after product successfully passes an inspection at the delivery location, and it is in full compliance with the specifications of the solicitation including manuals, data sheets, or any other required component. Payment for undisputed amounts will be made after receipt and acceptance.

All items must be accepted and invoiced before payment will be made. EWEB will make payment to Contractor for all undisputed amounts in accordance with its regular payment terms: Net 30 days after acceptance of goods and receipt of a valid invoice.

A.10 SAFETY AND HEALTH REQUIREMENTS:

Contractor warrants goods and services provided under this Contract comply with all applicable federal Occupational Safety and Health Administration (OSHA) requirements and with all applicable Oregon safety and health requirements, including those of the Oregon State Workers' Compensation Division.

A.11 MSDS.:

Contractor shall provide EWEB with a Material Safety Data Sheet (MSDS) as defined by the Occupational Safety and Health Administration (OSHA) for any goods provided under this Contract, which may release, or otherwise result in exposure to, a hazardous chemical under normal conditions of use. In addition, Contractor must label, tag or mark such goods.

A.12 EWEB PAYMENT OF CONTRACTOR CLAIMS:

a. Contractor shall make payment promptly, as due, to all persons supplying Contractor labor, equipment or material for work under this Contract; pay all contributions or amounts due the Industrial Accident Fund from Contractor or any subcontractor incurred in the performance of the Contract; not permit any lien or claim to be filed or prosecuted against EWEB on account of any labor or material furnished; and pay to the Department of Revenue all sums withheld from employees pursuant to ORS 279B.220.

b. If Contractor fails, neglects or refuses to make prompt payment of any claim for labor or services furnished to Contractor or a subcontractor by any person in connection with this Contract as such claim becomes due, EWEB may, but is not obligated to pay such claim to the person furnishing the labor or services and charge the amount of the payment against funds due or to become due Contractor by reason of this Contract. The payment of a claim under this section shall not relieve Contractor or Contractor’s surety from any obligation with respect to any unpaid claims. ORS 279B.220.

A.13 PAYMENT FOR MEDICAL CARE:

Contractor agrees to make payment promptly, as due, to any person, copartnership, association or corporation furnishing medical, surgical, hospital or other needed medical care to Contractor’s employees. Such payment shall be made from all sums which Contractor has agreed to pay for such services and from all sums which Contractor has collected or deducted from the wage of employees pursuant to any law, contract or agreement for the purpose of providing or paying for such services.

All subject employers working under this contract are either employers that will comply with ORS 656.017 or employers that are exempt under ORS 656.126. [2003 c.794 §76c]

A.14 RECYCLABLE PRODUCTS:

Contractor shall use recycled and recyclable products to the maximum extent economically feasible in the performance of the Contract work set forth in this document. Contractor shall specify the minimum percentage of recycled product in the goods provided under this Contract. Contractor agrees to abide by all covenants contained in ORS 279B.270, which is incorporated by reference.

A.15 TIME IS OF THE ESSENCE:

Time is of the essence in the performance of this Contract. If product(s) is not received within the time period(s) specified in the solicitation document and as agreed upon in the bidder’s offer, EWEB reserves the right to either extend the delivery date, or cancel the Contract and purchase the goods from another supplier and charge the difference in cost to the Contractor, as allowed by the UCC, whichever is in the public’s best interest as determined by EWEB.

Should it become necessary for EWEB to purchase product from another supplier to meet its required deadlines, purchase shall be for the same product or an equivalent.

A.16 DAMAGES:

Contractor shall deliver within the time indicated in Contractor’s bid or as required by the ITB, whichever date is earlier. Should Contractor fail to meet the agreed-upon delivery schedule, thereby making it necessary for EWEB to purchase urgently-needed items from another source, Contractor shall pay the difference between the accepted bid price and the purchase price

Should it become necessary for EWEB to purchase product from another supplier to meet its required deadlines, purchase shall be for the same product or an equivalent.

A.17 FORCE MAJEURE:

Unless this contract is executed to remedy an act(s), occurrence(s), or event(s) stated herein, neither Party shall be liable for delays in the execution of its obligations due to causes beyond its reasonable control including but not limited to acts of God, fires, strikes, labor disturbances, floods, epidemics, quarantine restrictions, war, insurrection or riot, acts of a civil or military authority, compliance with priority orders or preference ratings issued by the federal Government, acts of Government authorities with respect to revocation of export or re-export permits/licenses, wrecks, or unusually severe weather. The Party shall, however, make all reasonable efforts to remove or eliminate such cause of delay or default and shall, upon the cessation of the cause, diligently pursue performance of its obligations under this Contract.

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In the event of any such delay, the required date of shipment will be extended for a period of time equal to the period of the delay, or as short a period as is reasonably possible.

EWEB may terminate this Contract upon written notice after reasonably determining that such delay or default will likely prevent successful performance of this Contract.

A.18 SUBCONTRACTS AND ASSIGNMENT:

Contractor shall not subcontract any of the work required by this Contract or assign or transfer any of its interest in this Contract, without the prior written consent of EWEB. No such written approval shall relieve Contractor of any obligations under this Contract, and any transferee or subcontractor shall be considered the agent of Contractor. Contractor shall remain liable to EWEB under the Contract as if no such transfer or subcontract had occurred.

A.19 EARLY TERMINATION:

This Contract may be terminated as follows:

a. EWEB and Contractor, by mutual written agreement, may terminate this Contract at any time.

b. EWEB in its sole discretion may terminate this Contract for any reason on 30 days written notice to Contractor.

c. Either EWEB or Contractor may terminate this Contract in the event of a breach of the Contract by the other. Prior to such termination the party seeking termination shall give to the other party written notice of the breach and intent to terminate. If the party committing the breach has not entirely cured the breach within 15 days of the date of the notice, then the party giving the notice may terminate the Contract at any time thereafter by giving a written notice of termination.

d. Notwithstanding paragraph c., EWEB may terminate this Contract immediately by written notice to Contractor upon denial, suspension, revocation or non-renewal of any license, permit or certificate that Contractor must hold to provide services under this Contract.

A.20 PAYMENT ON EARLY TERMINATION:

Upon termination pursuant to paragraph A.20, payment shall be made as follows:

a. If terminated under A.20a or A.20b for the convenience of

EWEB, EWEB shall pay Contractor for work performed prior to the termination date if such work was performed in accordance with the Contract. EWEB shall not be liable for direct, indirect, special, or consequential damages.

Termination shall not result in a waiver of any other claim EWEB may have against Contractor.

b. If terminated under A.20c by EWEB due to a breach by the Contractor, then EWEB shall pay the Contractor for work performed prior to the termination date provided such work was performed in accordance with the Contract less any setoff to which EWEB is entitled.

c. If terminated under A.20d by the Contractor due to a breach by EWEB, then EWEB shall pay the Contractor for work performed prior to the termination date if such work was performed in accordance with the Contract.

A.21 REMEDIES:

In the event of breach of this Contract the parties shall have the following remedies:

a. In addition to the remedies in paragraphs A.20 and A.21 for a breach by the Contractor, EWEB also shall be entitled to any other equitable and legal remedies that are available.

b. If EWEB breaches this Contract, Contractor’s remedy shall be limited to termination of the Contract and receipt of Contract payments to which Contractor is entitled.

A.22 SUCCESSORS IN INTEREST:

The provisions of this Contract shall be binding upon and inure to the benefit of the parties and their successors and approved assigns, if any.

A.23 NO THIRD PARTY BENEFICIARIES:

EWEB and Contractor are the only parties to this Contract and are the only parties entitled to enforce its terms. Nothing in this Contract gives or provides any benefit or right, whether directly, indirectly, or otherwise, to third persons unless such third persons are individually identified by name herein and expressly described as intended beneficiaries of the terms of this Contract.

A.24 FOREIGN CONTRACTOR:

If the Contract includes services and the amount of those services exceeds $10,000 and if Contractor is not domiciled in or registered to do business in the state of Oregon, Contractor shall promptly provide the Oregon Department of Revenue all information required by that Department relative to this Contract. EWEB may withhold final payment under this Contract until Contractor has met this requirement.

A.25 ACCESS TO RECORDS:

Contractor shall maintain fiscal records and all other records pertinent to this Contract. Records shall be maintained pursuant to generally accepted accounting standards, and other records shall be maintained to the extent necessary to clearly reflect actions taken in the provision of the products required herein. All such records shall be retained and kept accessible for at least three years following final payment.

EWEB’s authorized representatives shall have the right to direct access to documents, papers and records related to this Contract for the purpose of conducting audits and examinations and making copies, excerpts and transcripts.

EWEB shall reimburse Contractor for Contractor’s cost of preparing copies.

A.26 COMPLIANCE WITH APPLICABLE LAW:

Contractor shall comply with all federal, state, and local laws applicable to the work under this Contract, and all regulations and administrative rules established pursuant to those laws.

Contractor shall maintain in effect all licenses, permits and certifications required for the performance of the work.

Contractor shall notify EWEB immediately if any license, permit, or certification required for performance of this Contract ceases to be in effect for any reason.

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A.27 WAIVER:

Waiver of any default under this Contract by EWEB shall not be deemed to be a waiver of any subsequent default or a modification of the provisions of this Contract.

A.28 GOVERNING LAW:

The provisions of this Contract shall be construed in accordance with the laws of the State of Oregon and ordinances of Lane County, Oregon. Any legal action involving any question arising under this Contract must be brought in Lane County, Oregon. If the claim must be brought in a federal forum, then it shall be brought and conducted in the United States District Court for the District of Oregon.

A.29 SEVERABILITY:

If any term or provision of this Contract is declared by a court of competent jurisdiction to be illegal or in conflict with any law, the validity of the remaining terms and provisions shall not be affected, and the rights and obligations of the parties shall be construed and enforced as if the Contract did not contain the particular term or provision held invalid.

A.30 ANTI-DISCRIMINATION:

Contractor shall not discriminate based on race, religion, color, sex, marital status, familial status, national origin, age, mental or physical disability, sexual orientation, source of income, or political affiliation in programs, activities, services, benefits or employment. Contractor shall not discriminate against minority-owned, women-owned or emerging small businesses.

A.31 INDEPENDENT CONTRACTOR:

Any service or services to be rendered by Contractor under this Contract are those of an independent contractor. Contractor, its Subcontractors, Agents, Officers or Representatives are not officers, employee, or agents of EWEB as those terms are used in ORS 30.265. Contractor is responsible for all federal and state taxes or other payments or withholdings applicable to compensation or payments paid to Contractor under this Contract.

A.32 EQUAL OPPORTUNITY EMPLOYER:

EWEB is an Equal Employment Opportunity and Affirmative Action employer and requires contractors and their subcontractors to follow EEO/AA practices in their performance of this Contract.

A.33 HOURS OF LABOR:

Contractor shall pay employees for overtime work performed under the public contract in accordance with ORS 653.010 to

653.261 and the Fair Labor Standards Act of 1938 (29 U.S.C. 201 et seq.).

A.34 NON-APPROPRIATION CLAUSE:

If payment for products purchased under this Contract extends into EWEB’s next fiscal year, EWEB’s obligation to pay for such products is subject to approval of future appropriations to fund this Contract by the EWEB Board of Commissioners. If such future appropriations are not approved, EWEB shall terminate the contract and pay Contractor for all goods previously received (but not yet paid for).

A.35 TAXES:

EWEB is a tax-exempt municipal corporation.

TIN #93-6001483; Tax exempt #93-880393K.

A.36 COOPERATIVE PURCHASING:

Other public agencies may utilize the results of this solicitation in accordance with ORS 279A.215 and Rule 2-0210. If utilized, EWEB assumes no liability or responsibilities for the actions of the utilizing parties, or as may pertain to the resulting contract established by and between the utilizing agency and the Contractor. The utilizing agency and the Contractor assume full responsibility for any and all agreements established between the parties.

A.37 PUBLICITY:

Any publicity giving reference to this solicitation, whether in the form of press releases, brochures, photographic coverage, or verbal announcement, shall be done only after prior approval of EWEB.