Stevens Institute of Technology General Terms and Conditions
1. ENTIRE AGREEMENT: The following General Terms & Conditions and the attached Purchase Order (collectively, the "Agreement") shall constitute the complete and exclusive statement of the Agreement between Buyer and Seller with respect to the goods and/or services purchased hereunder (the "Goods"and/or "Services" as the case may be). This Agreement may be modified only in a written instrument signed by authorized representatives of both parties. The invalidity in whole or in part of any provision of this Agreement shall not affect the validity of other provisions. To the extent that Seller terms and conditions conflict with Stevens Institute of Technology's (the Institute) General Terms and Conditions, the latter shall control. Either party's failure to insist upon the performance of any term of this Agreement shall not be construed as a waiver of that party's present or future right to such performance and each party's obligations in respect thereto shall continue in full force and effect.
2. EQUAL OPPORTUNITY EMPLOYER: Stevens Institute of Technology is a federal contractor and an equal opportunity employer. Accordingly, this contractor and subcontractor shall abide by the requirements of 41 CFR §§ 60-1.4(a), 60-300.5(a) and 60-741.5(a). These regulations prohibit discrimination against qualified individuals based on their status as protected veterans or individuals with disabilities, and prohibit discrimination against all individuals based on their race, color, religion, sex, or national origin. Moreover, these regulations require that covered prime contractors and subcontractors take affirmative action to employ and advance in employment individuals without regard to race, color, religion, sex, national origin, protected veteran status or disability. Contractor and subcontractor shall also comply with the provisions of Executive Order 13496 (29 CFR Part 471, Appendix A to Subpart A) with respect to notice of employee rights under federal labor laws.
3. COMPLIANCE WITH SARBANES-OXLEY: To the extent that Seller is a company regulated or covered by the Sarbanes-Oxley Act, as amended, compliance with Sarbanes-Oxley is a condition of doing business with the Institute and failure to be in compliance shall be considered a material breach of the Agreement.
4. GENERAL WARRANTIES: Seller warrants that all Goods shall conform to the specifications of this Agreement and shall be merchantable, free from defects (including defects in design and fit), and suitable for the intended purposes. Seller further warrants that all Services shall conform to the specifications of this Agreement and shall be performed in a professional and workmanlike manner. These warranties shall remain in effect for at least one year following Buyer's final acceptance of the Goods or Services or for the duration of Seller's standard warranty period if such period exceeds one year. The foregoing warranties are in addition to, and shall not limit, any other warranties or buyer protections that exist by operation of law.
5. PRICE WARRANTY: Seller warrants that the price(s) for the Goods or Services stated herein are no less favorable than those extended to any other customer (whether government or commercial) for the same or similar goods or services in similar quantities. In the event Seller reduces its price(s) for such goods or services before Seller fully performs under this Agreement, Seller agrees to reduce the prices stated herein accordingly. Seller further warrants that the prices stated herein are complete, and that no additional charges of any type, including but not limited to shipping costs, shall be added without Buyer's express written consent.
6. TIMELY PERFORMANCE: Time is of the essence such that Buyer shall have an unrestricted right to reject the Goods or Services if Seller fails to meet the delivery date and conditions specified in this Agreement. Such failure shall be deemed a material breach of this Agreement.
7. FINAL INSPECTION AND ACCEPTANCE: All Goods or Services shall be subject to Buyer's final inspection and acceptance, notwithstanding any prior payment or preliminary inspection on the part of Buyer. Buyer shall provide written notice of its final acceptance within thirty (30) days from the date of the delivery of the Goods or the completion of the Services (including any required installation of the Goods); whichever is later (the "Final Acceptance"). Buyer's failure to provide such notice shall be deemed Final Acceptance. While Final Acceptance is pending, Buyer may return to Seller any non-conforming Goods or Services, at no cost to Buyer, and/or require Seller to correct or replace such non-conforming Goods or Services. In the extent Buyer does not require any such correction or replacement, Seller shall promptly refund all payments received for nonconforming Goods or Services that Buyer returns. Such remedies shall not limit any other rights or remedies as may be available at law, in equity or under this Agreement.
a. Buyer may terminate this Agreement at any time, in whole or in part, by written notice to Seller. If such termination is for Buyer's convenience, Buyer, after deducting any amount(s) previously paid, shall pay for all Services rendered or Goods provided by Seller, as well as any reasonable costs incurred by Seller, up to the time of termination but not including Seller's lost profits. Under no circumstances shall Seller be entitled to recover more than the price of the Goods or Services as stated in the Agreement. Upon receiving notice of Buyer's termination for convenience, Seller shall use its best efforts to reduce or mitigate any costs incurred in connection with the Goods or Services.
b. Either party may, without prejudice to any other rights or remedies provided at law, in equity, or under this Agreement, by written notice to the other party, terminate this Agreement in whole or in part under any of the following circumstances:
i. If the non-terminating party applies for bankruptcy, makes an assignment for the benefit of creditors, or is in receivership; OR
ii. If the non-terminating party fails to perform any of the terms of this Agreement and so fails to cure such failure within thirty (30) days after receiving notice from Buyer; OR
iii. If the non-terminating party fails to make progress such that Buyer has reason to question Seller's ability to perform and Seller fails to provide adequate assurance of its ability to perform within a period of thirty (30) days after receiving notice from Buyer.
In the event Buyer terminates this Agreement pursuant to Paragraphs 8(b)(i)-(iii) above, Seller shall also be obligated to pay any direct damages, including but not limited to all additional costs that Buyer may incur in finding replacement Goods and/or Services, as well was any consequential and incidental damages incurred by the Buyer. In the event Seller terminates Agreement pursuant to Paragraphs 8(b)(i)-(iii) above, Buyer shall not be liable for consequential and incidental damages incurred by Seller and in no circumstances shall Buyer's liability exceed the price of this Agreement.
c. Upon termination of this Agreement, Buyer, in addition to any other rights or remedies available at law, in equity or under this Agreement, may require Seller to transfer title to and deliver to Buyer, in the manner and to the extent directed by Buyer, any completed or partially completed Goods as well as any plans, drawings, or other such materials that Seller has specifically produced or acquired for the performance of the Agreement ("Performance Materials"). Payment for such Goods or Performance Materials shall be at the price specified in the Agreement or as otherwise agreed upon by the parties.
9. FORCE MAJEUR: Except with respect to defaults of Seller's subcontractors, Seller shall not be liable for any excess costs incurred by Buyer if Seller's failure to perform arises out of causes beyond the control and without the fault or negligence of Seller and despite the best efforts of Seller. Such causes include acts of God, acts of Buyer, acts of a government in either its sovereign or contractual capacity, fires, floods, epidemics, quarantine restrictions, strikes and freight embargoes. If failure to perform is caused by default of Seller's subcontractor, and if such default arises out of causes beyond the control of both Seller and its subcontractor, and without the fault or negligence of and despite the best efforts by either of them, Seller shall not be liable for any excess costs for failure to perform, unless the goods, materials or services to be furnished by Seller's subcontractor were reasonably obtainable from other sources in sufficient time to permit Seller to meet the required delivery schedule.
10. BUYER EQUIPMENT: All materials, tools, equipment, and other property either furnished by Buyer to Seller or individually paid for by Buyer ("Buyer Equipment") shall remain the property of the Buyer, but Seller shall assume all risks of and be entirely responsible for any losses or damages arising from its use of Buyer Equipment, and shall promptly return all Buyer Equipment in the condition in which Seller received it, taking into account reasonable wear and tear.
11. INTELLECTUAL PROPERTY: All copyright, trademark, patent and other intellectual property rights that arise directly from Seller's performance hereunder shall belong to Buyer, including but not limited to any works of authorship that Seller creates pursuant to this Agreement, which works shall be deemed works-for-hire under federal copyright law.
12. SOFTWARE: With respect to any software provided under this Agreement, Seller grants to Buyer a royalty-free, perpetual license to make back-up copies of such software and to copy, modify and otherwise appropriate such software for Buyer's internal and non-commercial purposes.
13. CONFIDENTIAL INFORMATION: Seller shall treat as confidential all non-public information disclosed by Buyer in connection with this Agreement, including but not limited to written or oral communications, plans, specifications, and other data ("Confidential Information"). The terms and conditions of this Agreement shall also be deemed Confidential Information. Seller shall not disclose Confidential Information to any third party except as Buyer authorizes, and shall only disclose it to those within Seller's organization who need to use it in performance of the Agreement. Upon completion or termination of this Agreement, Seller shall return or destroy all such Confidential Information (except for this Agreement), or otherwise dispose of it as Buyer may approve. This provision is not intended to restrict Seller's right to use or disclose information that is already known to the public or rightfully obtained without restriction from other sources.
14. USE OF "STEVENS" NAME: Seller shall not, use Buyer's name or trademarks in connection with any advertising, marketing or other promotional efforts or materials without the prior written approval of Buyer.
15. INDEPENDENT CONTRACTOR: In performing hereunder, Seller and its agents, contractors and representatives shall be as independent contractors and not as agents of Buyer. All persons furnished or retained by Seller in connection with this Agreement are so furnished or retained as Seller's employees or agents.
16. APPLICABLE LAW/VENUE: All disputes regarding the construction, interpretation and the parties' obligations under this Agreement shall be governed by the laws of the State of New Jersey, notwithstanding any of that state's laws to the contrary.
17. INDEMNIFICATION: Seller shall defend, indemnify and hold harmless the Buyer, its officers, employees, trustees, agents and representatives from and against any and all claims, demands, damages, liabilities, expenses, losses of every nature and kind (collectively, "claims"), including but not limited to attorney's fees and costs, sustained or alleged to have been sustained in connection with or arising out of the performance hereunder of Seller, its agents, employees, subcontractors and consultants, even in the event Buyer is alleged or found to be partially negligent. However, Seller shall not be obligated to so indemnify Buyer in the event Buyer is proven to be solely negligent. If any claims alleging infringement of intellectual property rights, including but not limited to claims of patent or copyright infringement or misappropriation of trade secrets, are brought against Buyer in connection with Buyer's use of the Goods or Services, Seller shall not only indemnify Buyer as set forth above but also, upon Buyer's request, shall procure for Buyer the right to continue to use such Goods or Services or replace or modify such Goods or Services such that the alleged infringement is removed, provided, however, that such alleged infringement does not arise solely from Buyer's alteration or modification of the Goods or Services.
18. INSURANCE: If Seller shall hereunder provide Services on the property of Buyer, Seller shall maintain and keep in force at Seller's expense the following minimum insurance coverage throughout Seller's performance under this Agreement:
c.Commercial General Liability, including:
Contractual, Premises Operations,
Products and Completed Operations,
Independent Contractors and Personal Injury,
Bodily Injury and Property Damage
Combined Single Limit Each Occurrence$2,000,000
Bodily Injury and Property Damage $1,000,000
If the Seller is required to maintain a professional license in order to practice his/her profession, the Seller must maintain professional liability insurance in the amount of $2 million per occurrence. Professions this applies to, but is not limited to, include architects, engineers, attorneys, physicians, nurses, physical therapists. This sample list of professions is representative only and is not meant to be complete. The Automobile Liability insurance shall provide coverage for any vehicle used by Seller. All policies shall be underwritten by a carrier licensed in New Jersey and rated at least "A-" in Best's Key Rating Guide. Certificate(s) evidencing the above insurance coverages -- with a statement thereon that Buyer is an additional insured and that the insurance afforded is primary insurance as to any other valid and collectible insurance in force -- shall be sent to Buyer's Office, before Seller's performance begins, and renewal certificates shall be provided annually until Seller's performance has been completed and accepted. Seller shall be solely responsible for payment or premiums and deductibles for all of the aforesaid insurance. Should any of the aforesaid insurance policies be cancelled or materially changed, Seller shall provide thirty (30) days prior written notice to the buyer. Seller shall not change the levels of coverage or permit coverage to expire until all the Services or work have been completed and accepted. The Seller shall not enter upon Buyer's property to perform hereunder unless Buyer is and remains insured in accordance with the above requirements. Seller shall indemnify Buyer for any loss suffered by Buyer for the failure of Seller to be so insured.
19. FEDERAL AND STATE FUNDS: Because Stevens conducts a large amount of purchasing using federal and state funds, Seller hereby acknowledges that any such Goods or Services may be subject to a number of regulations. In the case of funds received from the federal government, such regulations include, but are not limited to, the Uniform Guidance (2 CFR 200); Federal Acquisition Regulations (FAR); Defense Federal Acquisition Regulations (DFAR); Public Law 95-507; and Stevens Terms and Conditions Which Are a Part of Purchase Orders Issued Under Government Contracts. By accepting this order, the vendor warrants that the vendor nor any of its principals, or sub-contractors that are a part of this offer is presently debarred, suspended, proposed for disbarment, declared ineligible, or voluntarily excluded from participation in Federal assistance programs or activities, and neither the vendor nor any of its principals or sub-contractors, is listed on the General Services Administration’s list of Parties Excluded from Federal Programs (available through the Internet at http://www.sam.gov) and on the HHS/OIG List of Excluded Individuals/Entities (available through the Internet at http://exclusions.oig.hhs.gov). If this statement is not true, you must immediately notify the Stevens purchasing office. Note that being debarred or suspended does not automatically exclude you from accepting this order. In the case of funds received from the NJEFA, such regulations include, but are not limited to, the New Jersey Prevailing Wage Act, N.J.S.A. 34:11-56-25. These additional federal and state regulations are hereby incorporated by reference fully as if they were set forth at length herein. Seller shall be solely responsible for obtaining and complying with any and all such requirements, copies of which may be obtained from the following website: http://www.stevens.edu.
20. CONFLICTS AND ETHICAL STANDARDS OF CONDUCT: Seller affirms that, to the best of Seller's knowledge, there exist no conflicts of interests between Seller and Buyer or its employees. In the event of change in Seller's interests, Seller shall inform Buyer regarding any conflicts of interest that are likely to arise as a result of such change. Seller hereby represents that it has neither received nor given gifts or gratuities to any member of the Stevens' community, nor participated in any other unethical conduct in connection with this Agreement. If, at any time, Buyer determines that Seller is in violation of the foregoing representation, Buyer may cancel the Agreement upon written notice to Seller and Buyer shall have no further obligation to Seller.
21. DELIVERY: Delivery is to be made only to the destination stated in the Purchase Order and must be made Monday through Friday, on legal and excluding the Institutes' holidays, unless otherwise stated on the face of the Purchase Order. The quantity term set forth in the Purchase Order shall be complied with strictly as stated. Seller is responsible for maintaining and providing proof of delivery. Buyer's Purchase Order Numbers must appear on all invoices, packing slips, shipping documents and labels.
22. RISK OF LOSS: With respect to Goods, risk of loss shall pass to Buyer upon delivery as set forth above in Paragraph 21.
23. FREIGHT: The Institutes' freight terms are F.O.B. Destination, Freight Prepaid and Allowed. If shipment is indicated on the Purchase Order as F.O.B. Seller's plant, the Seller will prepay the freight charges and, if mutually agreed to, add them to the invoice. Separate freight invoices will not be accepted. Collect shipments will be returned at Seller's expense unless otherwise instructed by the Buyer.
24. PAYMENT AND INVOICES: Buyer shall remit payment to Seller net 30 days after Final Acceptance. Seller shall send invoices to Stevens Institute of Technology, Accounts Payable department, immediately upon delivery or completion of the Goods and/or Services. The Purchase Order numbers must appear on all invoices, packing slips, shipping documents and labels. Credit(s) may alternately be accepted by the Buyer, if so negotiated. Any changes to an original purchase order that exceeds 10% or $25.00, will require a formal change order prior to performance of additional work or the additional items. The provisions stated herein, as well as those stated in the RFP, Stevens' General Terms and Conditions and any applicable Government Terms and Conditions shall constitute the complete and exclusive statement of the Agreement between the University and Bidder.
25. HAZARDOUS MATERIAL, PACKING, LABELING AND SHIPPING: Seller shall package, label, transport and ship hazardous material, items containing hazardous materials, and any other regulated materials, in accordance with all applicable federal, state, and local laws, rules, ordinances and regulations, and shall furnish any appropriate documentation or Material Data Safety Sheets. Prior to each shipment of any hazardous or regulated materials, Seller shall notify Buyer of the nature of such shipment by such means of communication as will allow for the proper preparation for acceptance of the delivery and shall identify same on all shipping documents. Seller shall be solely responsible for notifying carriers and other handlers of any risks inherent in any such shipments.
26. TAX EXEMPTIONS: As a non-profit educational institution, Buyer is exempt from Federal Excise Tax under Public Law No. 85-859 (Exemption No. A110656) and from New Jersey Sales Taxes (Exemption No. EO-210-634-501) and from New Jersey Excise Taxes (Exemption No. A-11083) and from certain other states' taxes as may be applicable, unless otherwise stated on the face of the Purchase Order. Seller shall take all steps necessary to ensure that these exemptions are utilized to the maximum benefit of Buyer.
27. ASSIGNMENTS AND SUBCONTRACTING: Neither party shall assign or delegate its rights and obligations under this Agreement without the prior written consent of the non-assigning or non-delegating party.
28. SURVIVAL: This and paragraphs 1, 2, 4, 5, 8, 10, 11, 12, 13, 14, 15, 17, 18, 19, 27, and 28 hereunder shall survive the termination of this Agreement for any reason.
(Rev. - 02/06)