ATTACHMENT B - PO Terms Conditions.pdf

Adopted: April 1, 2017 1

Auraria Higher Education Center (AHEC) Purchase Order Terms and Conditions

1. Offer/Acceptance. If this purchase order (“PO”) refers to vendor’s bid or proposal, this PO is an ACCEPTANCE of vendor’s OFFER TO SELL in accordance with the terms and conditions of the “solicitation” identified in vendor’s bid or proposal. The solicitation includes an RFP, IFB, or any other form of order by AHEC. If a bid or proposal is not referenced, this PO is an OFFER TO BUY, subject to vendor’s acceptance, demonstrated by vendor’s performance or written acceptance of this PO. Any COUNTER‐OFFER TO SELL automatically CANCELS this PO, unless a change order is issued by AHEC accepting a counter‐offer. This PO shall supersede and control over any vendor form(s) or part(s) thereof included in or attached to any bid, proposal, offer, acknowledgment, or otherwise, in the event of inconsistencies or contradictions, regardless of any statement to the contrary in such form(s) or parts thereof.

2. Safety Information. All chemicals, equipment and materials proposed and/or used in the performance of this PO shall conform to the requirements of the Occupational Safety and Health Act of 1970. Vendor shall furnish all Material Safety Data Sheets (MSDS) for any regulated chemicals, equipment or hazardous materials at the time of delivery.

3. Changes. Vendor shall furnish products and/or services strictly in accordance with the specifications and price set forth for each item. This PO shall not be modified, superseded or otherwise altered, except in writing signed by purchasing agent and accepted by vendor. Each shipment received or service performed shall comply with the terms of this PO, notwithstanding invoice terms or acts of vendor to the contrary, unless this PO has been modified, superseded or otherwise altered in accordance with this section.

4. Delivery. Unless otherwise specified in the solicitation or this PO, delivery shall be FOB destination. AHEC is relying on the promised delivery date, installation, and/or service performance set forth in vendor’s bid or proposal as material and basic to AHEC’s acceptance. If vendor fails to deliver or perform as and when promised, AHEC, in its sole discretion, may cancel its order, or any part thereof, without prejudice to its other rights, return all or part of any shipment so made, and charge vendor with any loss or expense sustained as a result of such failure to deliver or perform as promised. Time is of the essence.

5. Intellectual Property. Any software (except software owned by vendor and licensed to AHEC), research, reports, studies, data, photographs, negatives or other documents, drawings or materials (collectively “materials”) delivered by vendor in performance of its obligations under this PO shall be the exclusive property of AHEC. Ownership rights shall include, but not be limited to, the right to copy, publish, display, transfer, prepare derivative works, or otherwise use the materials. Vendor shall comply with all applicable Cyber Security Policies of the State or AHEC, as applicable, and all confidentiality and nondisclosure agreements, security controls, and reporting requirements.

6. Quality. AHEC shall be the sole judge in determining “equals” with regard to quality, price and performance. All products delivered shall be newly manufactured and the current model, unless otherwise specified.

7. Warranties. All provisions and remedies of the Colorado Uniform Commercial Code, C.R.S., Title 4, (“CUCC”), relating to implied and/or express warranties are incorporated herein, in addition to any warranties contained in this PO or the specifications.

8. Inspection and Acceptance. Final acceptance is contingent upon completion of all applicable inspection procedures. If products or services fail to meet any inspection requirements, AHEC may exercise all of its rights, including those provided in the CUCC. AHEC shall have the right to inspect services provided under this PO at all reasonable times and places. "Services" as used in this section includes services performed or tangible material produced or delivered in the performance of services. If any of the services do not conform to PO requirements, AHEC may require vendor to perform the services again in conformity with PO requirements, without additional payment. When defects in the quality or quantity of service cannot be corrected by re‐performance, AHEC may (a) require vendor to take necessary action to ensure that future performance conforms to PO requirements and (b) equitably reduce the payment due vendor to reflect the reduced value of the services performed. These remedies do not limit the remedies otherwise available in this PO, at law, or in equity.

9. Cash Discount. The cash discount period will start from the later of the date of receipt of acceptable invoice, or from date of receipt of acceptable products/services at the specified destination by an authorized AHEC representative.

10. Taxes. AHEC and the State are exempt from all federal excise taxes under Chapter 32 of the Internal Revenue Code (No. 84‐730123K) and from all State and local government sales and use taxes (C.R.S., Title 39, Article 26, Parts I and II). Such exemptions apply when materials are purchased for the benefit of State, except that in certain political subdivisions (e.g., City and County of Denver) vendor may be required to pay sales or use taxes even though the ultimate product or service is provided to AHEC. AHEC shall not reimburse such sales or use taxes.

11. Payment. AHEC shall pay vendor for all amounts due within 45 days after receipt of products or services and a correct notice of amount due. Interest on the unpaid balance shall begin to accrue on the 46th day at the rate set forth in C.R.S. § 24‐30‐202(24) until paid in full. Interest shall not accrue if a good faith dispute exists as to AHEC’s obligation to pay all or a portion of the amount due. Vendor shall invoice AHEC separately for interest on delinquent amounts due, referencing the delinquent payment, number of day’s interest to be paid, and applicable interest rate.

12. Assignment and Successors. Vendor shall not assign rights or delegate duties under this PO, or subcontract any part of the performance required under this PO, without the express, written consent of AHEC. This PO shall inure to the benefit of and be binding upon vendor and AHEC and their respective successors and assigns. Assignment of accounts receivable may be made only upon written notice furnished to AHEC.

13. Indemnification by Vendor. If any article sold or delivered under this PO is covered by a patent, copyright, trademark, or application therefore, vendor shall indemnify and hold harmless AHEC from any and all loss, liability, cost, expenses and legal fees incurred on account of any claims, legal actions or judgments arising out of manufacture, sale or use of such article in violation or infringement of rights under such patent, copyright, trademark or application. If this PO is for services, vendor shall indemnify, save, and hold harmless AHEC, its employees and agents, against any and all claims, damages, liability and court awards including costs, expenses, and attorney fees and related expenses, incurred as a result of any act or omission by vendor, or its employees, agents, subcontractors or assignees, arising out of or in connection with performance of services under this PO.

14. Independent Contractor. Vendor shall perform its duties hereunder as an independent contractor and not as an employee. Neither vendor nor any agent or employee of vendor shall be deemed to be an agent or employee of AHEC. Vendor and its employees and agents are not entitled to unemployment insurance or workers compensation benefits through AHEC and AHEC shall not pay for or otherwise provide such coverage for vendor or any of its agents or employees. Unemployment insurance benefits will be available to vendor and its employees and agents only if coverage is made available by vendor or a third party. Vendor shall pay when due all applicable employment, income, and local head taxes incurred pursuant to this PO. Vendor shall not have authorization, express or implied, to bind AHEC to any agreement, liability or understanding, except as expressly set forth herein. Vendor shall (a) provide and keep in force workers' compensation and unemployment compensation insurance in the amounts required by law,

(b) provide proof thereof when requested by AHEC, and (c) disclose to AHEC if they are a PERA retiree prior to performing contracted duties in order for AHEC to properly report information, and if applicable, withhold contributions from payment of services to PERA, (d) be solely responsible for its acts and those of its employees and agents.

15. Communication. All communication concerning administration of this PO, prepared by vendor for AHEC’s use, shall be furnished solely to purchasing agent.

16. Compliance. Vendor shall strictly comply with all applicable federal and state laws, rules, and regulations in effect or hereafter established, including, without limitation, laws applicable to discrimination and unfair employment practices.

17. Insurance. Vendor shall obtain, and maintain, at all times during the term of this PO, insurance as specified by the State, and provide proof of such coverage as requested by the State.

18. Termination Prior to Shipment. If vendor has not accepted this PO in writing, AHEC may cancel this PO by written or oral notice to vendor prior to shipment of goods or commencement of services.

19. Termination for Cause. (a) If vendor refuses or fails to timely and properly perform any of its obligations under this PO with such diligence as will ensure its completion within the time specified herein, AHEC may notify vendor in writing of nonperformance and, if not corrected by vendor within the time specified in the notice, terminate vendor's right to proceed with the PO or such part thereof as to which there has been delay or a failure. Vendor shall continue performance of this PO to the extent not

Adopted: April 1, 2017 2 terminated and be liable for excess costs incurred by AHEC in procuring similar goods or services elsewhere. Payment for completed services performed and accepted shall be at the price set forth in this PO. (b) AHEC may withhold amounts due to vendor as AHEC deems necessary to reimburse AHEC for excess costs incurred in curing, completing or procuring similar goods and services. (c) If after rejection, revocation, or other termination of vendor's right to proceed under the CUCC or this clause, AHEC determines for any reason that vendor was not in default or the delay was excusable, the rights and obligations of AHEC and vendor shall be the same as if the notice of termination had been issued pursuant to termination under §21.

20. Termination in Public Interest. AHEC is entering into this PO for the purpose of carrying out the public policy of the State, as determined by its Governor, General Assembly, and Courts. If this PO ceases to further the public policy of the State, AHEC, in its sole discretion, may terminate this PO in whole or in part and such termination shall not be deemed to be a breach of AHEC’s obligations hereunder. This section shall not apply to a termination for vendor’s breach, which shall be governed by §20. AHEC shall give written notice of termination to vendor specifying the part of the PO terminated and when termination becomes effective. Upon receipt of notice of termination, vendor shall not incur further obligations except as necessary to mitigate costs of performance. For services or specially manufactured goods, AHEC shall pay (a) reasonable settlement expenses, (b) the PO price or rate for supplies and services delivered and accepted, (c) reasonable costs of performance on unaccepted supplies and services, and

(d) a reasonable profit for the unaccepted work. For existing goods, AHEC shall pay (e) reasonable settlement expenses, (f) the PO price for goods delivered and accepted, (g) reasonable costs incurred in preparation for delivery of the undelivered goods, and (h) a reasonable profit for the preparatory work. AHEC’s termination liability under this section shall not exceed the total PO price plus a reasonable cost for settlement expenses. Vendor shall submit a termination proposal and reasonable supporting documentation, and cost and pricing data as required by C.R.S. § 24‐106‐101, upon request of AHEC.

21. PO Approval. This PO shall not be valid unless it is executed by purchasing agent. AHEC shall not be responsible or liable for products or services delivered or performed prior to proper execution hereof.

22. Fund Availability. Financial obligations of AHEC payable after the current fiscal year are contingent upon funds for that purpose being appropriated, budgeted and otherwise made available. If this PO is funded in whole or in part with federal funds, this PO is subject to and contingent upon the continuing availability of federal funds for the purposes hereof. AHEC represents that it has set aside sufficient funds to make payment for goods delivered in a single installment, in accordance with the terms of this

PO.

23. Choice of Law. State laws, rules and regulations shall be applied in the interpretation, execution, and enforcement of this PO. The CUCC shall govern this PO in the case of goods unless otherwise agreed in this PO. Any provision included or incorporated herein by reference which conflicts with such laws, rules, and regulations is null and void.

Any provision incorporated herein by reference which purports to negate this or any other provision in this PO in whole or in part shall not be valid or enforceable or available in any action at law, whether by way of complaint, defense, or otherwise. Unless otherwise specified in the solicitation or this PO, venue for any judicial or administrative action arising out of or in connection with this PO shall be in Denver, Colorado. Vendor shall exhaust administrative remedies in C.R.S. § 24‐109‐106, prior to commencing any judicial action against AHEC.

24. Public Contracts for Services. [Not Applicable to offer, issuance, or sale of securities, investment advisory services, fund management services, sponsored projects, intergovernmental POs, or information technology services or products and services] Vendor certifies, warrants, and agrees that it does not knowingly employ or contract with an illegal alien who will perform work under this PO and will confirm the employment eligibility of all employees who are newly hired for employment in the United States to perform work under this PO, through participation in the E‐Verify Program or the Colorado Department of Labor and Employment (the “Department”) program established pursuant to C.R.S. § 8‐17.5‐102(5)(c), Vendor shall not knowingly employ or contract with an illegal alien to perform work under this PO or enter into a contract or PO with a subcontractor that fails to certify to vendor that the subcontractor shall not knowingly employ or contract with an illegal alien to perform work under this PO.

Vendor shall (a) not use E‐Verify Program or Department program procedures to undertake pre‐employment screening of job applicants during performance of this PO, (b) notify subcontractor and AHEC within three days if vendor has actual knowledge that subcontractor is employing or contracting with an illegal alien for work under this PO, (c) terminate the subcontract if subcontractor does not stop employing or contracting with the illegal alien within three days of receiving notice, and (d) comply with reasonable requests made in the course of an investigation, undertaken pursuant to C.R.S. § 8‐17.5‐102(5), by the Department. If vendor participates in the Department program, vendor shall deliver to the AHEC a written, notarized affirmation that vendor has examined the legal work status of such employee, and shall comply with all of the other requirements of the Department program. If vendor fails to comply with any requirement of this provision or C.R.S. § 8‐17.5‐101, et seq., AHEC may terminate this PO for breach and, if so terminated, vendor shall be liable for damages.

25. Public Contracts with Natural Persons. Vendor, if a natural person eighteen (18) years of age or older, hereby swears and affirms under penalty of perjury that he or she

(a) is a citizen or otherwise lawfully present in the United States pursuant to federal law, (b) shall comply with the provisions of C.R.S. § 24‐76.5‐101, et seq., and (c) has produced a form of identification required by C.R.S. § 24‐76.5‐103 prior to the date vendor delivers goods or begins performing services under terms of the PO.

26. Conflicts of Interest. Vendor shall not engage in any business, personal activities, practices, or maintain any relationships which conflict in any way with the full performance of vendor’s obligations hereunder. Vendor acknowledges that with respect to this PO, even the appearance of a conflict of interest is harmful to AHEC’s interests.

Absent the AHEC’s prior written approval, vendor shall refrain from any practices, activities or relationships that reasonably appear to be in conflict with the full performance of vendor’s obligations to AHEC hereunder. If a conflict or appearance exists, or if vendor is uncertain whether a conflict or the appearance of a conflict of interest exists, vendor shall submit to the AHEC a disclosure statement setting forth the relevant details for the AHEC’s consideration. Failure to promptly submit a disclosure statement or to follow the AHEC’s direction in regard to the apparent conflict constitutes a breach of this PO.

27. Governmental Immunity. Liability for claims for injuries to persons or property arising from the negligence of the State of Colorado, its departments, institutions, agencies, boards, officials, and employees is controlled and limited by the provisions of the Governmental Immunity Act, C.R.S. § 24‐10‐101, et seq., and the risk management statutes, C.R.S. § 24‐30‐1501, et seq., as amended. No term or condition of this PO shall be construed or interpreted as a waiver, express or implied, of any of the immunities, rights, benefits, protections, or other provisions of the foregoing statutes, as applicable now or hereafter amended.

28. No Indemnification by AHEC. The State Constitution prohibits AHEC from agreeing to indemnify contractors or vendors. Any references to indemnification or holding harmless by the AHEC in any addenda, exhibit, or attachment to this PO are hereby rejected.

29. CORA Disclosure. To the extent not otherwise prohibited by law, this PO and the performance measures and standards under C.R.S. § 24‐103.5‐101, if any, are subject to public release and disclosure through the Colorado Open Records Act, CRS § 24‐72‐101, et seq.

30. Binding Arbitration Prohibited. AHEC may not agree to binding arbitration by any extra‐judicial body or person. Any provision to the contrary in this PO or incorporated herein by reference shall be null and void.

31. Denial of Certain Terms. AHEC may not agree to certain provisions, including but not limited to provisions that require it to be governed by or subject to any venue or choice of state law other than Colorado, waive the right to jury trial, and any such provision or provisions in any exhibits, addenda, or attachments attached to this PO or incorporated by reference, or hereinafter modified by vendor, are null and void.

32. Erroneous Payments. At AHEC’s sole discretion, payments made to vendor in error for any reason, including, but not limited to overpayments or improper payments, and unexpended, or excess funds received by vendor from AHEC, may be recovered from vendor by deduction from subsequent payments under this PO or other POs, contracts, grants or agreements between AHEC and vendor or by other appropriate methods and collected as a debt due to AHEC. Such funds shall not be paid to any party other than

AHEC.

33. Click‐Through Agreements. Vendor’s software or vendor’s website may contain a "click though" agreement which is integral to that product and/or website and which will require AHEC to click "I agree," or some similar action in order to proceed to use the software and/or website. It is hereby expressly agreed that all such click through, "shrink wrap," and/or online agreements, and any other such agreement mechanisms executed by AHEC in using the software and/or website are void and of no effect, do not create a binding assent by AHEC, do not modify this PO, and do not in themselves create a separate contract of any kind.