Terms and Conditions for Goods.pdf

TERMS AND CONDITIONS FOR GOODS

Revised: April 2021 Page 1 of 3

The information contained in this Attachment does not need to be returned with vendor’s proposal.

1. TERMS AND CONDITIONS FOR GOODS

1.1. GOODS AS USED IN RFP. The term goods as used in this RFP has the meaning ascribed to it in NRS §104.2105(1) and includes, without limitation, supplies, materials, equipment, and commodities, as those terms are used in NRS Chapter 333.

1.2. EXPRESS WARRANTIES. For the period specified on the face of the contract, contractor warrants and represents each of the following with respect to any goods provided under the contract, except as otherwise provided on incorporated attachments:

1.2.1. Fitness for Particular Purpose. The goods shall be fit and sufficient for the particular purpose set forth in the RFP or other solicitation documents.

1.2.2. Fitness for Ordinary Use. The goods shall be fit for the purpose for which goods of a like nature are ordinarily intended, it being understood that the purpose for the goods covered by the contract are ordinarily intended is general government administration and operations.

1.2.3. Merchantable, Good Quality, No Defects. The goods shall be merchantable, of good quality, and free from defects, whether patent or latent, in material and workmanship.

1.2.4. Conformity.

A. The goods shall conform to the standards, specifications and descriptions set forth in the incorporated attachments.

B. If contractor has supplied a sample to the State, the goods delivered shall conform in all respects to the sample and if the sample shall remain in the State's possession it shall be identified by the word ‘sample’ and the signature of contractor's sales representative.

1.2.5. Uniformity. The goods shall be without variation, and shall be of uniform kind, quality, and quantity within each unit and among all units.

1.2.6. Packaging and Labels. The goods shall be contained, packaged, and labeled to satisfy all legal and commercial requirements applicable to use by a government agency, including without limitation, OSHA material safety data sheets and shall conform to all statements made on the label.

1.2.7. Full Warranty. The foregoing warranties are ‘full’ warranties within the meaning of the Magnuson-Moss Warranty - Federal Trade Commission Improvement Act, 15 U.S.C. § 2301 et seq., and implementing regulations 16 C.F.R. pts.

700-703, if applicable to this transaction.

1.2.8. Title.

A. Contractor has exclusive title to the goods and shall deliver the goods to the State free and clear of all liens, encumbrances, and security interests.

B. If the contract causes title to vest in the State, the State hereby grants a security interest in the goods to contractor under the terms set forth in the contract.

1.3. COMPUTER WARRANTIES. If the goods include computer software and/or hardware, the following warranties shall apply in addition to the express warranties set forth above.

1.3.1. Software Warranty. Contractor/licensor warrants that for the period specified in the incorporated attachments:

A. Under normal use and service, the media on which the licensed software is delivered shall be free from defects in material and workmanship.

B. If the licensed product fails to meet the media warranty, and the State as licensee gives licensor written notice thereof during the applicable warranty period, licensor shall replace such media.

C. The licensed product shall meet licensor's published specifications therefore in effect on the effective date of the contract.

D. If the licensed product fails to meet the warranty and licensee gives licensor written notice thereof, licensor shall correct the failure, if licensee gives licensor detailed information regarding such failure.

E. However, licensor shall not be liable to licensee for the warranty provided herein if:

F. Unanticipated or unauthorized modifications are made to the licensed product by someone other than licensor, or G. The media for the licensed product is subject to misuse or abuse.

1.3.2. Hardware Warranty

Revised: April 2021 Page 2 of 3

A. Contractor warrants that, under normal use and service, the computer hardware and spare parts purchased from contractor shall be free from defects in material and workmanship, and the computer hardware shall meet the contractor's then current published specifications, therefore.

B. If hardware warranted hereunder fails to meet the warranties herein and the State gives contractor written notice thereof during the applicable warranty period, contractor's sole obligation shall be to correct the failure by repair, replacement, or adjustment, as determined in contractor's sole discretion.

C. However, contractor shall not be liable hereunder if:

1. Unanticipated or unauthorized modifications are made to the computer hardware by someone other than contractor;

2. Attachments, features, or devices are employed on the computer hardware that are not supplied by contractor or not approved in writing by contractor, including, without limitation, other components of the State's systems;

or

3. The computer hardware is subject to abuse or misuse.

1.3.3. Infringement Indemnity

A. Contractor warrants the purchase or use of the goods shall not infringe upon any United States or foreign patent, and contractor shall indemnify the State against all judgments, decrees, costs, and expenses resulting from any alleged infringement and shall defend, upon written request of the State, at its own expense, any action which may be brought against the State, its vendees, lessees, licensees, or assigns, under any claim of patent infringement in the purchase or use of contractor's goods.

B. If the State is enjoined from using such goods, contractor shall repurchase such goods from the State at the original purchase price.

C. The State shall notify contractor promptly in writing of any such suit.

D. If the State compromises or settles any such suit without the written consent of contractor, contractor shall be released from the obligations of this paragraph and from any liability to the State under any statute or other rule of law.

1.3.4. Usage of Trade; Course of Dealings; Implied Warranties

A. Contractor shall also be bound by any other implied warranty that, at the time of execution of the contract, prevails in the trade of government in the marketing area in and about the State of Nevada.

B. Contractor shall also be bound by any other implied warranty arising through course of dealings between contractor and the State from and after the execution of the contract.

C. Contractor shall also be bound by all warranties set forth in Nevada's Uniform Commercial Code (NRS Title 8) in effect on the date of execution of the contract.

1.3.5. Warranties Cumulative. It is understood that warranties created by the contract, whether express or implied, as well as all warranties arising by operation of law that affect the rights of the parties under the contract, are cumulative and shall be construed in a manner consistent with one another.

1.3.6. Priority of Warranties. If it is held by a court of competent jurisdiction that there is an irreconcilable conflict between or among any of the warranties set forth in the contract and any warranties implied by law, the parties agree that the specifications contained in the contract shall be deemed technical and mere language of description.

1.3.7. Beneficiaries of Warranties. Benefit of any warranty made in the contract shall be in favor of the State, any of its political subdivisions or agencies, and any employee or licensee thereof who uses the goods, and the benefit of any warranty shall apply to both personal injury and property damage.

1.4. DELIVERY; INSPECTION; ACCEPTANCE; RISK OF LOSS

1.4.1. Contractor agrees to deliver the goods as indicated in the contract, and upon acceptance by the State, title to the goods shall pass to the State unless otherwise stated in the contract.

1.4.2. The State shall have the right to inspect the goods on arrival and, within a commercially reasonable time, the State shall give notice to contractor of any claim for damages on account of condition, quality, or grade of the goods, and the State shall specify the basis of the claim in detail.

1.4.3. Acceptance of the goods is not a waiver of UCC revocation of acceptance rights or of any right of action that the State may have for breach of warranty or any other cause.

1.4.4. Unless otherwise stated in the contract, risk of loss from any casualty, regardless of the cause, shall be on contractor until the goods have been accepted and title has passed to the State. If given any, the State agrees to follow reasonable instructions regarding return of the goods.

Revised: April 2021 Page 3 of 3

1.5. NO ARRIVAL; NO SALE

1.5.1. The contract is subject to provisions of no arrival, no sale terms, but proof of shipment is to be given by contractor, each shipment to constitute a separate delivery.

1.5.2. A variation of ten days in time of shipment or delivery from that specified herein does not constitute a ground for rejection.

1.5.3. The State may treat any deterioration of the goods as entitling the State to the rights resulting from a casualty to the identified goods without regard to whether there has been sufficient deterioration so that the goods no longer conform to the contract.

1.6. PRICE; TAXES

1.6.1. The price quoted is for the specified delivery, and, unless otherwise specified in the contract, is F.O.B. to the delivery address specified above.

1.6.2. Unless otherwise specified in the contract, the price does not include applicable federal or State sales, use, excise, processing or any similar taxes, or duty charges, which shall be paid by the State, or in lieu thereof, the State shall provide contractor with a tax exemption certificate acceptable to the applicable taxing authority.

1.7. GOVERNING LAW. The laws of Nevada, including, without limitation, Nevada's Uniform Commercial Code (NRS Title 8) in effect on the date of execution of the contract, shall govern with respect to any goods provided under the contract.

1.8. ENERGY STAR LABEL

1.8.1. In accordance with NRS 333.4611, the State of Nevada Purchasing Division shall require the purchase of new appliances, equipment, lighting and other devices that use electricity, natural gas, propane or oil, have received the Energy Star Label pursuant to the program established pursuant to 42 U.S.C. 6294a or its successor, or meet the requirements established pursuant to 48 C.F.R. 23.203.

1.8.2. These standards do not apply insofar as:

1. No items in a given class have been evaluated to determine whether they are eligible to receive the Energy Star Label or have been designated by the Federal Government to meet the requirements established pursuant to 48 C.F.R. 23.302; or

2. The purchase of these items that have received the Energy Star Label would not be cost-effective in an individual instance, comparing the cost of the items to the cost of the amount of energy that shall be saved over the useful life of the item.