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Terms and Conditions of Purchase
- Parties: The term “Seller” refers to the addressee set forth on the face of Brandeis’ purchase order, and the term “Brandeis” refers to Brandeis University, a corporation organized and existing under and by virtue of a special charter granted by The Commonwealth of Massachusetts, together with its schools, departments and offices.
- Scope: The following terms and conditions apply to all Brandeis purchase orders, in addition to any terms set forth on the face of an individual purchase order or in any plans, specifications or other documents incorporated by reference (each, collectively, an “Order”). Acceptance by Brandeis of any offer from Seller is expressly limited to the terms and conditions of the Order, and Brandeis hereby objects to and shall not be bound by any additional, different or conflicting terms, whether printed or otherwise, in any other communication between the parties (including on any of Seller’s forms, letter or papers), it being understood that the terms and conditions of the Order shall prevail notwithstanding any such additional, different or conflicting terms.
- Acceptance and Limitations: The Order shall be deemed accepted by Seller on the earlier of (a) shipment of goods or rendering of services ordered, in total or in part, or (b) within 15 days of issuance by Brandeis, absent written notification to Brandeis of non-acceptance.
- Changes: Brandeis may make changes to the Order at any time and Seller shall accept such changes. If a change by Brandeis causes an increase or decrease in the cost or time required for Seller’s performance, as soon as practicable, the parties shall agree to an equitable adjustment of the purchase price and/or delivery schedule, as applicable, and incorporate such changes as a revision change to the Order. No other form of notification or verbal agreement shall be binding on Brandeis.
- Termination for Convenience: Brandeis may, by written notice to Seller, terminate the Order, or any part thereof, for any or no reason, for Brandeis’ convenience. Upon notice of termination, Seller shall immediately stop all work and cause its suppliers and/or subcontractors to stop all work in connection with the Order. If Brandeis terminates for convenience, Brandeis shall pay Seller for goods and services accepted as of the date of termination, and, subject to Section 8, for Seller’s actual, reasonable, out of pocket costs incurred directly as a result of such termination. Brandeis shall have no responsibility for work performed after Seller’s receipt of notice of termination.
- Termination for Cause: Brandeis may, by written notice to Seller, terminate the Order, or any part thereof, if Seller breaches any of the terms and conditions of the Order, becomes insolvent or files for bankruptcy protection. By way of example, (a) failure by Seller to make timely, complete and conforming delivery of goods and services, or (b) breach of the representations or warranties set forth in the Order, shall entitle Brandeis to terminate the Order for cause. If Brandeis terminates for cause, Brandeis shall have no payment obligations to Seller. Should a court of competent jurisdiction subsequently determine that Brandeis’ termination for cause was wrongful or unjustified, then such termination shall be automatically considered a termination for convenience under Section 5 and Seller shall have all rights under that provision, but no other rights or claims for damages.
- Damages: Without limiting Brandeis’ rights and remedies at law or in equity, Brandeis reserves the right to charge Seller for any loss, expense (including reasonable attorneys’ fees) or damage sustained as a result of Seller’s failure to deliver conforming goods or services or other breach of the Order, including without limitation, expenses incurred in connection with Brandeis’ purchase of substitute goods, incidental damages and consequential damages resulting from Seller’s failure or breach.
- Limitation of Brandeis’ Liability: Brandeis shall not be liable to Seller, its employees, representatives, agents, suppliers, or subcontractors for any anticipated profits or incidental damages (except to the extent expressly provided in Section 5) or consequential damages. Without limiting the foregoing, Brandeis’ liability for any claim arising directly or indirectly under or in connection with the Order shall in no event exceed the cost of the goods or services giving rise to the claim. Brandeis shall have no liability for penalties of any kind.
- Packing: Brandeis’ purchase order number and specific delivery location must appear on the outside of each package and on all packing slips, invoices, and allied papers. A packing slip must be included with each shipment. Except as expressly provided in the Order, Seller shall pack, mark and prepare all shipments to meet the carrier’s requirements, at Seller’s expense.
- Freight Charges: Except as expressly provided in the Order, packing, shipping, unloading, assembling and installation are included in the purchase price set forth in the Order and Brandeis shall not be charged any additional amounts for such services. All shipments on which freight charges are due must be prepaid. Collect shipments cannot be accepted.
- Timely Delivery: Time is of the essence in fulfillment of the Order. Shipment and delivery shall be made in accordance with the Order; provided, that if not addressed in the Order, delivery shall be made within ten (10) days of Brandeis’ issuance of the Order. Brandeis may, at its option, and without limitation of any of its other rights, cancel any unfilled part of the Order if complete, conforming delivery is not made within the times specified. Brandeis is not required to accept partial or incomplete delivery. Acceptance of any part of the Order shall not bind Brandeis to accept any future shipments.
- Inspection: Brandeis shall have the right to inspect and test all goods and/or services delivered under the Order. Neither receipt nor payment for goods and/or services shall constitute acceptance. Brandeis may reject any or all items that are nonconforming, as determined by Brandeis’ sole reasonable judgment. Brandeis’ failure to inspect shall not relieve Seller of any of its responsibilities. Material shipped in quantities in excess of Brandeis’ stated requirements may be returned at Seller’s expense. If goods are rejected, they will be held at Seller’s risk and expense and Seller shall bear the risk of loss or damage to such goods until received by Seller.
- Risk of Loss: Seller shall bear the risk of loss of or damage to all goods purchased pursuant to the Order until they are received by Brandeis.
- Warranties: Seller warrants that all material, work product, and merchandise supplied under the Order (a) shall strictly conform to all specifications, drawings, samples, or other descriptions furnished to and approved by Brandeis, (b) shall be fit and serviceable for the purpose intended, as agreed to by Brandeis and Seller (c) shall be of good quality and free from defects in materials and workmanship, (d) shall be new and not refurbished or reconditioned, unless expressly agreed in writing by Brandeis, and (e) shall not infringe any patent, copyright, mask work, trademark, trade secret or other intellectual property, proprietary or contractual right of any third party. In addition, Seller warrants that Brandeis shall have good and marketable title to all goods (including all components thereof) purchased by Brandeis pursuant to the Order, free of all liens and encumbrances and that no licenses are required for Brandeis to use such goods. With respect to services, Seller warrants that all services shall be provided in a professional and workmanlike manner, with a degree of skill and care consistent with current, good and sound professional procedures. Neither receipt of material, work product or merchandise nor payment therefore shall constitute a waiver of this provision. If a breach of warranty occurs, Brandeis may, in its sole discretion, and without waiving any other rights, return for credit or require prompt correction or replacement of the nonconforming goods or services.
- Indemnification: Vendor agrees to indemnify, defend and hold harmless Brandeis, its Trustees, officers, agents, employees, and contractors from any liability, cost or expense in connection with or growing out of any claims whatsoever by Brandeis for loss or damage to Brandeis or by any other person for injury, death, loss or damage to any person or to the property of any person arising from, or in any way related to, the services performed by Vendor pursuant to this Agreement. . This indemnity and hold harmless agreement shall include indemnity against all costs, expenses, judgments, arbitrations, settlements, penalties, and liabilities (including without limitation attorney's fees) incurred in connection with any claim or proceedings brought thereon and the defense thereof, without limitation.
- Use of Brandeis’ Name: Seller agrees not to use (a) Brandeis’ name, (b) the name of any employee, student or agent of Brandeis, or (c) any trademarks, service marks or trade names owned or controlled by Brandeis, in any sales, promotional, advertising or other publication, without the express prior written permission of Brandeis. In no event shall Seller or its employees, agents or subcontractors represent themselves as employees or agents of Brandeis.
- Invoices Payments: Unless otherwise specified in the purchase order, Payment terms will be Net 30. All quotes and amounts paid under the Order shall be in U.S. Dollars. Seller shall bear the risk of fluctuation in foreign exchange rate. Brandeis shall have no obligation to pay any amount prior to Brandeis’ receipt of a correct and proper invoice for such amount prepared in accordance with the Order. Except as expressly provided in the Order, payment shall not be due until final acceptance by Brandeis. Brandeis shall have the right to reduce and set off against amounts payable under the Order any indebtedness or other claim which Brandeis may have against Seller, however and whenever arising.
- Insurance: Vendor/contractor agrees to maintain and provide evidence of current liability insurance coverage with limits that meet or exceed Brandeis University’s current minimum insurance requirements, including workers' compensation where applicable, and that lists the Brandeis University as additional insured with respect to vendor/contractor's general liability policy. For information on our insurance requirements please visit http://www.brandeis.edu/financialaffairs/procurement/doingbusiness/insurancerequirements.html
- Compliance with Laws: Seller represents and warrants that, in the production and sale of goods to be delivered pursuant hereto, and in the provision of services hereunder, Seller has complied with all applicable federal, state, and municipal laws and regulations, including, without limitation, (a) all such laws and regulations pertaining to health, safety and environmental standards, (b) all such laws and regulations pertaining to design, manufacture, testing, labeling, and transportation of such goods, and (c) all such laws and regulations pertaining to affirmative action, nondiscrimination, and equal opportunity, including without limitation, the requirements of the Fair Labor Standards Act of 1938, as amended, and the rules and regulations of the Secretary of Labor issued pursuant to Executive Order Number 11246 of September 24, 1965.
- Tax Exemption: Brandeis is generally exempt from federal, state and local taxes for purchases made in furtherance of its exempt mission, including Massachusetts sales and use and federal excise. Seller shall not charge Brandeis for any taxes in connection with the Order to the extent permitted by law. Without limiting the foregoing, Brandeis will not be responsible directly or indirectly (including by reimbursement to Seller) of any property taxes assessed on any leased property under this Order. Seller is familiar with and shall comply with the requirements applicable to claiming such exemptions. Brandeis shall provide copies of exemption certificates upon request.
- Compliance with M.G.L. c. 93H: Seller represents that it has in place a comprehensive, written information security program applicable to any records containing “Personal Information” as defined in M.G.L. c 93H and 201 CMR 17.02; and that such comprehensive information security program is reasonably consistent with industry standards, and contains administrative, technical, and physical safeguards to ensure the security and confidentiality of such records. Seller further represents that it shall protect the security, confidentiality, and integrity of all Personal Information received from Brandeis, including its students, faculty and staff, and that such Personal Information shall be used only for the purposes set forth in this Agreement. In the event that Seller becomes aware, or has reason to know, of a breach of security, as defined in 201 CMR 17.02, Seller shall immediately notify Brandeis and shall indemnify, defend and hold harmless Brandeis against any claims arising out of such breach of security. This indemnity shall include indemnity against all costs, expenses, judgments, arbitrations, settlements, penalties, and liabilities (including without limitation attorney's fees) incurred in connection with the parties’ compliance obligations under M.G.L. c. 93H, as well as any claim or proceeding brought thereon and the defense thereof, without limitation.
- Confidentiality: Each party will: (a) protect the other party’s Confidential Information in compliance with applicable laws and use the same standard of care it uses to protect its own Confidential Information; and (b) not disclose the Confidential Information, except to employees and agents who need to know it. Each party may use Confidential Information only to exercise rights and fulfill obligations under this Agreement, while using reasonable care to protect it. Confidential Information is defined as information disclosed by a party to the other party under this Agreement that is marked as confidential or would normally be considered confidential under the circumstances. Exceptions. Confidential Information does not include information that: (a) the recipient of the Confidential Information already knew; (b) becomes public through no fault of the recipient; (c) was independently developed by the recipient; or (d) was rightfully given to the recipient by another party. The exceptions in this section do not apply to Confidential Information that is protected by FERPA.
- FERPA Compliance: Seller agrees to abide by the limitations on re-disclosure of personally identifiable information ("FERPA Information") from education records set forth in The Family Educational Rights and Privacy Act (20 U.S.C. § 1232g; 34 CFR Part 99). Seller shall develop, implement, maintain and use appropriate administrative, technical and physical security measures to preserve the confidentiality, integrity and availability of all electronically maintained or transmitted FERPA Information received from, or on behalf of Brandeis or its students. These measures will be extended by contract to all subcontractors used by Seller. Seller shall, within one day of discovery, report to Brandeis any use or disclosure of FERPA Information not authorized by this agreement or in writing by Brandeis or its students. Following this report, Seller will conduct a timely and thorough investigation in an attempt to identify: (i) the nature of the unauthorized use or disclosure, (ii) the data used or disclosed, and (iii) who made the unauthorized use or received the unauthorized disclosure. At the conclusion of this investigation, Seller will furnish a confidential written report to Brandeis indicating the results of the investigation, what Seller has done or shall do to mitigate any deleterious effect of the unauthorized use or disclosure, and what corrective action Seller has taken or shall take to prevent future similar unauthorized use or disclosure. Seller shall indemnify, defend and hold harmless Brandeis against any claims arising out of any unauthorized use or disclosure only to the extent that Seller is responsible for such unauthorized use or disclose. This indemnity shall include, to the extent of Seller’s responsibility, indemnity against all costs, expenses, judgments, arbitrations, settlements, penalties, and liabilities (including without limitation attorney's fees) incurred in connection with any claim or proceeding brought thereon and the defense thereof, without limitation.
- Return of FERPA Information: At the conclusion of the Agreement, Seller shall either return all of the FERPA Information in its possession (including all copies or other reproductions, in whole or in part) or shall, at Brandeis’s direction, destroy the FERPA Information (including all copies other reproductions, in whole or in part) and certify its destruction to Brandeis.
- FARS: If Brandeis University requires the services or goods ordered pursuant to this Order in order to perform under a contract or subcontract with the federal government, Supplier will be subject to certain federal acquisition regulations, and Brandeis University will provide Supplier with notice thereof. In that event, Supplier agrees to comply with, and to perform this Order in accordance with, such regulations.
- Proprietary Rights: Seller agrees that all work created by Seller solely or in collaboration with others in the course of performing services under this Agreement or designing or developing materials to be delivered, including all intermediate and partial versions (“Work Product”) shall automatically be the sole property of Brandeis upon their creation or (in the case of copyrightable works) fixation in a tangible medium of expression, and Brandeis shall own all rights, including all proprietary and intellectual property rights, title and interest. Seller hereby assigns to Brandeis all of its right, title and interest in and to all of the Work Product and all copies of any of the foregoing, including, without limitation, all copyright and other proprietary rights thereto throughout the world (and all renewals and extensions).
- Conduct of Personnel: While at any Brandeis location, Supplier and its employees, agents and representatives shall comply with all safety and security regulations of Brandeis University and take all necessary precautions to prevent injury or damage to persons or property. Supplier shall comply with all applicable laws, rules and regulations, including without limitation, those concerning employment discrimination, in its performance of this Order
- Conflict of Interest:
a. Buyer’s policy requires avoidance of real or apparent conflict of interest. No employee, officer or agent of Buyer shall knowingly participate in the selection, award or administration of a contract with Seller if Buyer or any member of Buyers immediate family has a material financial interest in Seller, or is negotiating, or has any arrangement concerning prospective employment with Seller.
b. No officer, employee or agent of Buyer shall either solicit or accept gratuities, favors or anything of monetary value from Seller, including any contingent fee.
c. If Seller has reason to believe any officer, employee or agent of Buyer has violated any provision of this paragraph, Seller immediately shall notify Buyer of the suspected violation by sending notice thereto to the Director of Strategic Procurement, at Brandeis University, 415 South St. Waltham, MA 02453, explaining the situation in full. Seller’s failure to so notify Buyer shall be a material breach of this agreement and Buyer, at its option, may terminate this agreement.
- Entire Agreement: The Order represents the entire agreement between Seller and Brandeis with respect to the goods and services described in the Order.
- No Assignment: Seller may not assign, transfer or subcontract any part of the Order without the prior written consent of Brandeis, and any assignment in violation of this provision shall be null and void.
- Labor Disputes at Brandeis: No strike or other labor dispute or shortage at Brandeis shall mitigate Seller’s obligations hereunder
- Severability: If any provision of the Order is determined to be invalid, illegal or unenforceable, the remaining provisions of this Agreement remain in full force, if the essential terms and conditions of this Agreement for each party remain valid, binding, and enforceable.
- Waiver: No waiver by Brandeis of any provision of the Order or any breach hereunder shall be deemed a waiver of any other provision or subsequent breach, nor shall any such waiver constitute a continuing waiver. Delay or failure of Brandeis to insist on strict performance of any provision of the Order or to exercise any rights or remedies hereunder shall not be deemed a waiver
- Governing Law: This Agreement shall be governed by and construed and interpreted in accordance with the laws of the Commonwealth of Massachusetts. The parties agree to submit to jurisdiction in the Commonwealth of Massachusetts.
- Notice: Any communications required by the Order shall be in writing and shall be delivered to Brandeis University at: Procurement@brandeis.edu