T_C CSU PO for Software 9-23-2021.pdf

PURCHASE ORDER TERMS AND CONDITIONS FOR THE PURCHASE OF SOFTWARE Revised September 23, 2021

PURCHASE ORDER TERMS AND CONDITIONS

FOR THE PURCHASE OF SOFTWARE

1. This Purchase Order constitutes the entire contract between the Board of Governors of the Colorado State University System, acting by and through Colorado State (“CSU”), and the named Contractor. The terms and conditions set forth herein may not be altered, deleted or added to without the express written consent of CSU. Any terms and conditions contained in any attachment or other extraneous document shall be null and void unless expressly accepted by CSU.

Commencement of performance by Contractor constitutes agreement to the terms and conditions set forth herein regardless of whether or not Contractor has countersigned this Purchase Order.

2. To ensure prompt payment, mail invoices in duplicate. Invoices not mailed as directed may delay payment or become lost. Reference the purchase order number on the invoice(s) and mail invoice(s) to the appropriate institution:

Colorado State University, Accounts Payable, 6003 Campus Delivery, Fort Collins, CO 80523. CSU’s standard payment term is Net 30. Cash Discount Period (if applicable) will start from date of receipt of acceptable invoice or from date of receipt of acceptable merchandise at destination, whichever is the later.

3. The laws of the State of Colorado, U.S.A., shall govern in connection with the formation, performance and the legal enforcement of this Purchase Order. Further, Procurement Rules established by each University, available at http://www.procurement.colostate.edu/policy/policies.aspx govern this procurement. Unless otherwise specified in the solicitation or this order, venue for any judicial action arising out of or in connection with this Purchase Order shall be in the Larimer County, Colorado. Contractor shall exhaust administrative remedies as set forth in the Procurement Rules, prior to commencing any judicial action against CSU. All references in this Purchase Order to the Uniform Commercial Code shall mean the Uniform Commercial Code as adopted by the State of Colorado at Title 4, C.R.S., as amended.

4. None of the terms or specifications stated in this Purchase Order may be added to, superseded or otherwise altered except in writing, signed by an authorized procurement representative of CSU. Performance of the software received by CSU from Contractor shall be deemed to be only upon the terms contained in this Purchase Order and any signed contract of the parties, notwithstanding any terms that may be contained in any acknowledgement, invoice form or other document of Contractor and notwithstanding the acceptance or payment by CSU.

5. This Purchase Order is an acceptance of your offer as summarized in your quotation. When this Purchase Order is an offer to buy, your acceptance must show promised dates of performance and must be signed by your authorized representative. This Purchase Order shall not be deemed valid unless it is executed by a Purchasing Agent of CSU.

CSU shall have no responsibility or liability for software delivered prior to proper execution hereof.

6. Contractor shall advise Purchasing Agent immediately if the software cannot be commenced as promised.

7. Quality. CSU will be the sole judge in determining “equals” with regard to quality, price and performance.

8. Rights in Data, Computer Software or Other Intellectual Property. Unless otherwise agreed in writing, any software or data or materials delivered by Contractor in the performance of its obligations under this Purchase Order shall be the exclusive property of CSU. The ownership rights described herein shall include, but not be limited to, the right to copy, publish, display, transfer, prepare derivative works, or otherwise use the works.

9. Indemnification. The Contractor shall indemnify, save and hold harmless the Board of Governors of the Colorado State University System acting by and through Colorado State University, their employees and agents, against any and all claims, damages, liability and court awards including costs, expenses, and attorney fees incurred as a result of any act or omission by the Contractor, or its employees, agents, subcontractors or assignees pursuant to the terms of this Purchase Order. In the event any article sold or delivered under this Purchase Order is covered by any patent, copyright, trademark, or application therefore, the Contractor will indemnify and hold harmless the Board of Governors of the Colorado State University System acting by and through Colorado State University 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, infringement or the like of rights under such patent, copyright, trademark or application.

10. Termination. Termination for Default/Cause.

a. Except as otherwise agreed, the Uniform Commercial Code shall govern in the case of transactions in goods. In the case of services, if the Contractor refuses or fails to timely perform any of the provisions of this Purchase Order, with such diligence as will ensure its completion within the time specified in this Purchase Order, the Purchasing Agent may notify the Contractor in writing of the non-performance, and if not promptly corrected within the time specified, such Agent may terminate the Contractor’s right to proceed with the work or such part of the work as to which there has been delay or a failure to properly perform. The Contractor shall continue performance of the Purchase Order to the extent it is not terminated and shall be liable for excess costs incurred in procuring similar software elsewhere. Payment for completed services performed and accepted shall be at the Purchase Order price.

b. In the case of remedies exercised under this paragraph for services, or analogous remedies exercised under the Uniform Commercial Code for transactions in goods, CSU may withhold amounts due to the Contractor as the

PURCHASE ORDER TERMS AND CONDITIONS FOR THE PURCHASE OF SOFTWARE Revised September 23, 2021

Purchasing Agent deems to be necessary to reimburse CSU for excess costs incurred in curing, completing or procuring similar goods.

c. The Contractor shall not be in default by reason of any failure in performance of this Purchase Order in accordance with its terms if such failure arises out of acts of God; acts of the public enemy; acts of the State and any governmental entity in its sovereign or contractual capacity; fires; floods; epidemics; pandemics; quarantine restrictions; strikes or other labor disputes; freight embargoes; or unusually severe weather; provided, however, that such causes may entitle CSU to terminate this order for convenience.

d. If after rejection, revocation, or other termination of the Contractor’s right to proceed under the provisions of the Uniform Commercial Code (in the case of transactions in goods) or this clause , it is determined for any reason that the Contractor was not in default under the provisions of this clause, or that the delay was excusable, the rights and obligations of the parties shall be the same as if the notice of termination had been issued pursuant to the termination for convenience clause.

11. Termination for Convenience.

a. Cancellation Prior to Contract Formation. When this Purchase Order is not accepted by written acknowledgment, this Purchase Order may be canceled by written or oral notice to the Contractor prior to beginning performance of services.

b. Termination after Contract Formation. Unless otherwise agreed in writing, the Purchasing Agent may, when the interests of CSU so require, terminate this Purchase Order in whole or in part, for the convenience of CSU. The Purchasing Agent shall give written notice of the termination to the Contractor specifying the part of the purchase order terminated and when termination becomes effective. Upon receipt of the notice of termination, the Contractor shall incur no further obligations except to the extent necessary to mitigate costs of performance. CSU shall pay reasonable settlement expenses, the contract price or rate for supplies and services delivered and accepted, the reasonable costs of performance on unaccepted supplies and services, and a reasonable profit for that unaccepted work, in accordance with the cost principles promulgated under each University’s respective Procurement Rules, as amended. The amount of the termination liability under this paragraph shall not exceed the amount of the purchase order price plus a reasonable cost for settlement expenses. The Contractor agrees to submit a termination proposal as well as reasonable supporting documentation, cost and pricing data upon request of the Purchasing Agent.

12. Force Majeure. Neither Party will be liable for any failure or delay in performing an obligation under this Agreement that is due to any of the following causes, to the extent beyond its reasonable control: acts of God, accident, riots, war, terrorist act, epidemic, pandemic, quarantine, civil commotion, breakdown of communication facilities, breakdown of web host, breakdown of internet service provider, natural catastrophes, governmental acts or omissions, changes in laws or regulations, national strikes, fire, explosion, generalized lack of availability of raw materials or energy.

13. Receipt of software in response to this order can result in authorized payment on the part of CSU. However, it is to be understood that final acceptance is dependent upon completion of all applicable required inspection procedures.

Should the software fail to meet all inspection requirements, CSU reserves the right to reject all or some of the software or exercise any other remedies provided by law.

14. Assignment and Successors. The Contractor shall not assign rights or delegate duties under this Purchase Order or subcontract any part of the performance required under the purchase order, without the express written consent of CSU, which shall not be unreasonably withheld. This Purchase Order shall inure to the benefit of and be binding upon the parties hereto and their respective successors and assigns. Assignment of accounts receivable may be made only with written notice furnished to University.

15. All parties to this Purchase Order agree that the representatives named herein are, in fact, bona fide and possess full and complete authority to bind said parties.

16. Compliance with Laws. Contractor agrees to comply with all applicable federal and state laws, regulations and policies, as amended, including those regarding discrimination, unfair labor practices, anti-kick-back and collusion.

17. Sensitive Data: To the extent Contractor comes in contact with individual personal data owned or otherwise held by CSU as a result of performing under the purchase order (“Data”); Contractor agrees to use such Data, if at all, only to the extent required to perform its obligations under this Purchase Order and to abide by the requirements of any federal, state and local laws that address the protection and/or use of such Data including but not limited to FERPA 20 U.S.C.

§ 1232g.

18. Americans with Disabilities Act (ADA) Requirements. If this Purchase Order includes the provision of university services to the public, the Contractor shall, in addition to any other requirements under Title 11 of the Americans with Disabilities Act, comply with the requirements of the Americans with Disabilities Act regarding the accessibility of CSU’s services and programs, as an explicit requirement. The Contractor assures that, at all times during the performance of this Purchase Order, no qualified individual with a disability shall, by reason of that disability, be excluded from participation in, or be denied benefits of, services, programs, or activities performed by the Contractor for the benefit of CSU.

19. Contractor acknowledges that providing software under this Purchase Order is subject to compliance with laws that relate to the export of technical data or equipment, such as International Traffic in Arms Regulations (“ITAR”) and/or Export Administration Act/Regulations (“EAR”). Contractor agrees to comply with all such laws, regulations and orders as currently in effect or hereafter amended. Contractor shall not disclose any export-controlled information or materials

PURCHASE ORDER TERMS AND CONDITIONS FOR THE PURCHASE OF SOFTWARE Revised September 23, 2021 to CSU without prior written notice. In the event that CSU agrees to receive such export-controlled information or materials, Contractor shall (i) include the Export Control Classification Number (ECCN) or ITAR notice on documentation, and (ii) send an electronic copy of the ECCN number and documentation to the Office of the General Counsel at Colorado State University.

20. Fund Availability; Federal Funds Contingency. Financial obligations of CSU, as a division of the State of Colorado, payable after the current fiscal year are contingent upon funds for that purpose being appropriated, budgeted and otherwise made available. If this Purchase Order is funded in whole or in part with federal funds, this Purchase Order is subject to and contingent upon the continuing availability of federal funds for the purposes hereof. It this Purchase Order contemplates the purchase of goods to be delivered in a single installment, CSU represents that it has set aside sufficient funds to make payment under this Purchase Order in accordance with its term.

21. Contractor Offset. Pursuant to CRS 24-30-202.4, as amended, the State Controller may withhold payment for debts owed to state agencies under the Contractor offset intercept system for: (a) unpaid child support debt or child support arrearages; (b) unpaid balance of tax, accrued interest, or other charges specified in Article 21, Title 39, CRS; (c) unpaid loans due to the Student Loan Division of the Department of Higher Education; (d) owed amounts required to be paid to the unemployment compensation fund; and (a) other unpaid debts owing to the state or any agency thereof, the amount of which is found to be owing as a result of final agency determination or reduced to judgment as certified by the State Controller.

22. Insurance. The Contractor shall obtain and maintain at all times during the term of this Purchase Order, insurance as specified in the solicitation or order. If insurance requirements are not specified in the solicitation or order, the Contractor represents that at the time of acceptance of this order the Contractor maintains comprehensive general liability insurance in an amount not less than $1,000,000, combined single limit; worker’s compensation insurance as required by law; and automobile liability insurance for all vehicles to be used by Contractor in the performance of services under this order. Upon written request, within ten (10) days, Contractor shall provide proof of such coverages.

Self-insurance programs do not meet the state’s or CSU’s insurance requirements unless the Contractor provides satisfactory evidence of a loss reserve fund of not less than the minimum coverage amount specified in the solicitation, plus excess liability coverage as appropriate to the industry; financial statements of the business; and proof of Department of Labor certification of self-insurance program for worker’s compensation.

23. INDEPENDENT CONTRACTOR. 4 CCR 801-2. Contractor shall perform its duties hereunder as an independent contractor and not as an employee. Neither Contractor nor any agent or employee of Contractor shall be or shall be deemed to be an agent or employee of CSU. Contractor shall pay when due all required employment taxes and income taxes and local head taxes on any monies paid by CSU pursuant to this contract. Contractor acknowledges that Contractor and its employees are not entitled to unemployment insurance benefits unless Contractor or a third party provides such coverage and that CSU will not pay for or otherwise provide such coverage. Contractor shall have no authorization, express or implied, to bind CSU to any agreement, liability or understanding, except as expressly set forth herein. Contractor shall provide and keep in force workers' compensation (and provide proof of such insurance when requested by CSU) and unemployment compensation insurance in the amounts required by law and shall be solely responsible for its acts and those of its employees and agents.

24. PUBLIC CONTRACTS WITH NATURAL PERSONS. CRS §24-76.5-101. Contractor, 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 CRS §24-76.5-101 et seq., and (c) has produced one form of identification required by CRS §24-76.5-103 prior to the effective date of this Purchase Order.

25. Confidential Information. Confidential Information (or “CI”) as used in this Contract, shall include any and all documents, materials, data or information disclosed by one Party (the “Disclosing Party”) to the other Party (the “Recipient”) that

(i) is clearly identified as CI at the time of disclosure, or (ii) the Recipient knows to be CI of the Disclosing Party. CI shall not include any information which at the time of disclosure is in the public domain, or which after disclosure is published or otherwise becomes part of the public domain in any manner other than by violation of this Agreement; or was in the possession of the Recipient at the time of disclosure and was not acquired under an obligation of confidence.

CI shall not include information required to be disclosed pursuant to the Colorado Open Records Act, CRS Sec.24-72- 101, et seq. (“CORA”). The parties shall comply with the provisions of this section if either party becomes privy to Confidential Information of the other in connection with this Contract. The provisions of this section shall survive termination of the Contract and shall continue in full force and effect for a period of three years from the date of contract termination.

26. Obligation of Non-Disclosure. The parties shall keep all CI secret at all times and comply with all laws and regulations concerning confidentiality of such information. Any request or demand by a third party for CI in the possession of a Party shall be immediately forwarded to the other Party’s designated representative for receipt of notice. If disclosure of the CI is required pursuant to CORA or to any lawful subpoena, court order, or other legal process, it shall be the sole responsibility of the Disclosing Party to initiate and prosecute a legal action to prevent, limit or prohibit the disclosure, at its own expense. The Recipient shall reasonably cooperate with the Disclosing Party with respect to any such legal action if it is filed in a timely manner, and prosecuted diligently and in good faith, but shall always have the right to proceed as it believes, in its sole discretion and judgment, to be required in accordance with the law. The parties acknowledge that CI may also be protected pursuant to state or federal laws, including, but not limited to, the

PURCHASE ORDER TERMS AND CONDITIONS FOR THE PURCHASE OF SOFTWARE Revised September 23, 2021

Health Insurance Portability and Accountability Act of 1996 (HIPAA), 42 U.S.C. Sec. 1320d, the Family Educational Rights and Privacy Act (FERPA) (20 USC 1232g), and the Gramm-Leach-Bliley Act (Financial Services Modernization Act of 1999) (15 U.S.C. §§ 6801-6809), and the regulations relating to such laws.

27. Software Piracy Prohibition. Governor's Executive Order D 002 00. University or other public funds payable under this Agreement shall not be used for the acquisition, operation, or maintenance of computer software in violation of federal copyright laws or applicable licensing restrictions. Contractor hereby certifies and warrants that, during the term of this Agreement and any extensions, Contractor has and shall maintain in place appropriate systems and controls to prevent such improper use of public funds. If CSU determines that Contractor is in violation of this provision, CSU may exercise any remedy available at law or in equity or under this Agreement, including, without limitation, immediate termination of this Agreement and any remedy consistent with federal copyright laws or applicable licensing restrictions.