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Purchase Order Terms & Conditions
1. General
The following terms and conditions, together with such terms as are set forth
in the Purchase Order Form ("Form"), with such plans, specifications or
other documents as are incorporated by reference , as amended in any subsequent
authorized writing from Buyer, shall constitute the entire contract
(the "Purchase Order") between The Trustees of the University of
Pennsylvania ("Buyer") and Supplier. If bid documents, performance
specifications, technical product descriptions or other similar descriptive materials
submitted by Supplier in connection with the Purchase Order, or Supplier's proposal,
have been incorporated by reference, these shall not be deemed to supersede any
contrary requirements of Buyer, but to the extent that such materials are not
inconsistent with Buyer's requirements, they shall constitute a part of the basis
of this agreement. If this Purchase Order is construed as an offer, this offer
expressly limits acceptance to the terms of this offer and notice of objection to
any different or additional terms in any response to this offer is hereby given.
If this Purchase Order is construed as an acceptance of an offer, this acceptance
is expressly conditioned upon the offeror's assent to any different or additional
terms contained or referenced in this Purchase Order. If this Purchase Order is
construed as a confirmation of an existing contract, the parties agree that this
confirmation states the exclusive terms of any contract between the parties. This
Purchase Order shall be deemed to have been accepted by the Supplier upon receipt
by the Buyer of any writing, including a writing transmitted by fax or other means
of electronic transmission, indicating acceptance, or by any of the following:
(i) shipment of the goods or any portion thereof, (ii) commencement of any work on
site or (iii) performance of any services hereunder.
2. Electronic/Facsimile Transmission
If this Purchase Order is transmitted by fax or by other means of electronic
transmission, such transmission shall have the legal significance of a duly executed
original delivered to the Supplier, but only if the Transmit Terminal Identification
on the Form includes the notation "Penn Purchasing Services."
3. Payment
Discount terms are as set forth in the Form. If no terms are specified, the net
amount shall be payable within 30 days after the later of (i) delivery and acceptance
of goods or other performance conforming with the terms of this Purchase Order and
(ii) invoicing. Except as otherwise provided in the Purchase Order, the price includes
all applicable Federal, State and local taxes and duties. Supplier assigns to Buyer
all rights to refunds of sales and use taxes paid in connection with this Purchase
Order and agrees to co-operate with Buyer in the processing of any refund claims.
Unless expressly otherwise provided in the Form, Buyer shall not be liable for any
shipping, handling, fuel surcharges or similar fees.
4. Time
If delivery or completion dates can not be met, Supplier shall inform Buyer
immediately. Such notice shall not, however, constitute a change to the delivery or
completion terms of this Purchase Order unless Buyer modifies this Purchase Order
in writing. If any item is not received or if any element of the work is not completed
by the date specified, the Buyer, at Buyer's option and without prior notice to
Supplier, may either approve a revised date or may cancel this Purchase Order and
may obtain such goods or work elsewhere and in either event the Supplier shall be
liable to the Buyer for any resulting loss incurred by the Buyer. Supplier's sole
remedy for a delay caused by Buyer shall be an extension in the time for Supplier's
performance equal to the duration of Buyer's delay. Supplier shall not be liable for
damages resulting from Supplier's failure to deliver or complete, or for delays in
delivery or completion, caused solely by strikes not caused by or within the control
of Supplier, lock-outs not caused by or within the control of Supplier, fires, war
or acts of God. TIMING OF DELIVERY AND/OR PERFORMANCE OF THE WORK IS OF THE ESSENCE
OF THIS PURCHASE ORDER.
5. Improper Performance and Disputes
In addition to other remedies provided by law, Buyer reserves the right to reject
any goods or to revoke any previous acceptance and to cancel all or any part of the
Purchase Order if Supplier fails to deliver all or any part of the goods or perform
any of the work in accordance with the terms and conditions of this Purchase Order.
Acceptance of any part of the Purchase Order shall not bind the Buyer to accept any
future shipments or work, nor deprive it of the right to return goods already accepted.
At Buyer's option, if Buyer so elects in its sole discretion with regard to any
particular dispute, any dispute arising in connection with this Purchase Order shall
be resolved by arbitration in Philadelphia, PA in accordance with the rules of the
American Arbitration Association; and all disputes shall otherwise be resolved in and
only in the Court of Common Pleas of Philadelphia County, PA as the exclusive judicial
forum. BUYER AND SELLER WAIVE THEIR RIGHT TO A JURY TRIAL WITH REGARD TO ANY DISPUTE
ARISING IN CONNECTION WITH THIS PURCHASE ORDER.
6. Warranty
Supplier expressly warrants all (i) goods delivered under this Purchase Order to
be free from defects in material and workmanship and to be of the quality, size and
dimensions ordered and (ii) work performed under this Purchase Order to be in
conformity with all plans, specifications and other data incorporated as part of this
Purchase Order. Notwithstanding any limitation of warranty, Supplier further represents
and warrants that the supply, quality and fitness for the purpose of the goods or
services will not be impaired, disrupted or interrupted in whole or in part by the
occurrence of any leap year. These express warranties shall not be waived by reason
of acceptance or payment by the Buyer. This Purchase Order incorporates by reference
all terms of the Uniform Commercial Code as adopted in the Commonwealth of Pennsylvania
(the "UCC") providing any protection to Buyer for goods, including but not
limited to all warranty protection (express or implied) and all of Buyer's remedies
under the UCC. All goods and work shall also be subject to any stricter warranties
specified in the Purchase Order or in other materials incorporated by reference.
7. Risk of Loss
Unless the Purchase Order expressly states otherwise, all goods shall be shipped
FOB: the "Ship to" location designated in the Form. Risk of loss shall not
pass to Buyer until goods called for in this Purchase Order actually have been received
and accepted by the Buyer at the destination specified herein. Supplier assumes full
responsibility for packing, crating, marking, transportation and liability for loss
and/or damage even if Buyer has agreed to pay freight, express or other transportation
charges.
8. Indemnity and Hold Harmless
From and after the date of this Purchase Order, the Supplier agrees to indemnify,
defend and hold harmless the Buyer from any and all claims and liabilities, regardless
of by whom such claim or liability may be asserted, for personal injury (including
death), or loss or damage to property, or otherwise that may result directly or
indirectly from the use, possession or ownership of the goods or from the services
provided by Supplier pursuant to this Purchase Order.
With regard to Supplier's obligation to defend, the Buyer shall have the right to
select the legal counsel whom Supplier shall provide to defend any Indemnified Party,
subject to Supplier's approval of the qualifications of such legal counsel and the
reasonableness of counsel's hourly rates as compared to the rates of attorneys with
similar experience and qualifications in the relevant area of legal expertise and in
the jurisdiction where the claim will be adjudicated. If the Buyer elects, in its
sole discretion, to retain separate legal counsel, in addition to or in lieu of the
counsel to be provided by Supplier, then all costs and expenses incurred by the Buyer
for such separate counsel shall be borne by the Buyer and the Supplier shall reasonably
cooperate with the Buyer and its separate legal counsel in the investigation and
defense of any such claim or action. Supplier shall not settle or compromise any
claim or action giving rise to Claims in a manner that imposes any restrictions or
obligations on Buyer without Buyer's prior written consent. If the Buyer elects to
require that Supplier defend a Claim pursuant to this paragraph, and Supplier fails
or declines to assume the defense of such Claim within thirty (30) days after notice
thereof, the Buyer may assume the defense of such Claim for the account and at the
risk of Supplier, and any Liabilities related thereto shall be conclusively deemed
a liability of Supplier. The indemnification rights of the Indemnified Parties
contained herein are in addition to all other rights which such Indemnified Party
may have at law or in equity or otherwise.
9. Assignment/Subcontracting
Neither party shall have any right to assign this Purchase Order or any benefits
arising from this Purchase Order without prior written consent of the other and,
unless otherwise agreed upon in writing, the rights of any assignee shall be subject
to all set-offs, counterclaims, and other comparable rights arising hereunder.
Supplier shall not, except in the case of raw materials, castings, forgings or
rough welded structures, or standard commercial goods, or except as otherwise agreed
in writing by the Buyer, delegate or subcontract the work on any item of material
or service to be delivered or performed under this Purchase Order.
10. Insurance
In connection with the Purchase Order, Supplier, at its own cost and expense,
shall obtain and maintain in force during the term of this Purchase Order, the
following insurance coverage:
- A policy of workers' compensation insurance, in amounts required by law,
covering all officers and employees of Supplier who are in any way engaged in
or connected with the Purchase Order, and employer's liability insurance in
an amount of not less than Five Hundred Thousand Dollars ($500,000). Supplier
shall require its agents, sub-suppliers and subcontractors, who are in any way
engaged in or connected with the Purchase Order to maintain the same insurance
as required herein of Supplier.
- A policy of commercial general liability insurance with broad form property
damage endorsement, personal injury and products completed operations coverage,
affording protection in an amount of not less than Two Million Dollars ($2,000,000)
per incident and in the aggregate, with respect to personal injury, death, or
damage to property.
- If this Purchase Order contemplates professional services, a policy of
professional liability insurance, including errors and omissions, affording
protection of not less than One Million Dollars ($1,000,000) per incident and
One Million Dollars ($1,000,000) in the aggregate.
- A policy of comprehensive automobile liability insurance covering the
operation of all motor vehicles used by Supplier or its agents in connection
with this Purchase Order, affording protection in an amount of not less than
One Million Dollars ($1,000,000) combined single limit with respect to personal
injury, death, or damage to property.
All of these insurance policies shall be issued by insurance companies with an
AM Best rating of "A" or higher and a financial strength rating of VII
or higher, or equivalent ratings provided by a disinterested, generally recognized
rating agency, which companies shall be licensed or permitted to conduct business
in the Commonwealth of Pennsylvania. The commercial general liability policy shall
name The Trustees of the University of Pennsylvania as an additional insured, and
shall be written as primary coverage and not contributing with or in excess of any
coverage that the Buyer may carry. Upon request, Supplier shall furnish to Buyer
a current certificate of insurance for each of the policies required above.
Insurance coverage(s) provided under this Purchase Order shall not limit or
restrict in any way the liability of Supplier arising under or in connection with
this Purchase Order. Such insurance shall not be canceled or terminated without
ten (10) days prior written notice of any cancellation or termination.
11. Examination of Records
The Supplier agrees that Buyer, and any Federal agency providing funding for
this Purchase Order and the Comptroller General of the United States or any of their
duly authorized representatives, shall have access to and the right to examine any
pertinent books, documents, papers and records of the Supplier involving transactions
related to this Purchase Order to the extent necessary to verify the nature and extent
of costs incurred under this Purchase Order until the expiration of four (4) years
after final payment under this Purchase Order. Nothing in this Purchase Order shall
be deemed to preclude an audit by the U.S. General Accounting Office of any transaction
under this Purchase Order. The preceding two sentences shall not apply if this
Purchase Order does not involve a sum in excess of One Thousand Dollars ($1,000),
or if this is an agreement for public utility services at rates established for
uniform applicability to the general public, or if this is as agreement for general
inventory goods not specifically identifiable with work under the Buyer's contract
with the government.
12. Renegotiation
If this Purchase Order is subject to the Renegotiation Act of 1951, as amended,
then it shall be deemed to contain all the provisions required by Section 104 of
said Act as amended. Nothing contained in this clause shall impose a renegotiation
obligation with respect to this Purchase Order or any subcontract hereunder which
is not imposed by an act of Congress heretofore or hereafter enacted. Supplier agrees
to include the provisions of this clause in all subcontracts as required by
Section 103(g) of the Renegotiation Act.
13. Non-Discrimination in Employment
In connection with the performance of work under this Purchase Order, the Supplier
agrees as follows:
- The nondiscrimination clause and reporting requirements contained in
Executive Order 11246 of September 24, 1965, as amended by Executive Order 11375
relative to equal employment opportunity for all persons without regard to race,
color, religion, sex or national origin and the implementing rules and
regulations prescribed by the U.S. Secretary of Labor, are incorporated herein.
Additionally, the conditions and regulations applicable in the Vietnam Era
Veterans Readjustment Act of 1972 and the Rehabilitation Act of 1973
(Employment of the Handicapped) are likewise incorporated.
- The Supplier will furnish all information and reports required by Executive
Order No. 11246 as amended, and by the rules, regulations, and orders of the
U.S. Secretary of Labor, or pursuant thereto, and will permit access to
Supplier's books, records, and accounts by the contracting agency and the
U.S. Secretary of Labor for purposes of investigation to ascertain compliance
with such rules, regulations, and orders.
- In the event of the Supplier's non-compliance with the non-discrimination
clauses of this Purchase Order or with any of the said rules, regulations,
or orders, this Purchase Order may be cancelled, terminated or suspended in
whole or in part and the Supplier may be declared ineligible for further
Government contracts as provided by law.
14. Compliance with Laws and Regulations
The Supplier agrees to comply with all applicable federal, state, and local laws
and regulations. If this Purchase Order is issued pursuant to a contract between the
Buyer and the federal government, the provisions of OMB Circular A-110
(1993)-Appendix A shall apply in accordance with their terms. OMB Circular A-110
mandates compliance with the Copeland "Anti-Kickback" Act, the Davis-Bacon Act,
and the Contract Work Hours and Safety Standards Act, Sections 102 and 107. If the
amount of this Purchase Order exceeds One Hundred Thousand Dollars ($100,000) and
any portion of the Purchase Order is funded by the federal government, Supplier
shall file the certifications required by the Byrd Anti-Lobbying Amendment, and
shall comply will all applicable standards, orders and regulations issued pursuant
to the Federal Water Pollution Control Act and the Clean Air Act. Supplier shall
provide certification regarding its and its principal employees' exclusion status
upon request. COPIES OF OMB CIRCULAR A-110 (1993) APPENDIX-A AND INFORMATION
REGARDING THE SOURCE OF FUNDS FOR THIS PURCHASE ORDER WILL BE PROVIDED TO SUPPLIER
UPON REQUEST.
15. Termination Without Cause
Buyer, in its sole discretion and without cause, may terminate this Purchase Order,
in whole or in part, at any time without incurring liability to Supplier for lost
profits, or any other costs or damages, other than the proportionate value of the
purchase price for work completed on site or goods delivered. Payment due shall be
a percentage of the purchase price equal to the percentage of the work completed
and/or any unit prices in the purchase price specified for goods delivered. Supplier's
warranties, and Supplier's liability for defective or non-conforming work or goods,
as well as sections 5, 6, 8, 10, 11 and 17 of these Terms and Conditions, shall
survive termination and remain in full force and effect. 16. Additional Provisions for Work Performed on Site
The provisions set forth in Paragraphs 16(a) through 16(d) below shall apply to
work performed at locations owned, leased or otherwise controlled by Owner
("Owner's Site") unless Exhibit "B" applies. For construction
work, Exhibit "B" of these terms and conditions sets forth alternate
provisions and requirements that shall apply in lieu of Paragraph 16(a) through
16(d).
- The Supplier shall maintain on the Site at all times a sufficient work
force to carry out its obligations in an efficient and timely manner. The Supplier
shall employ only competent, skilled, reliable and honest workmen who will work
in harmony with other workmen on the Site. All persons furnished by Supplier
shall be deemed Supplier's employees or agents, and Supplier shall comply with
all applicable statutes regarding worker's compensation, employer's liability,
unemployment compensation, and/or old age benefits and all other applicable laws
relating to or affecting the employment of labor. At the Owner's instruction,
the Supplier shall promptly remove from the Site any employee who, in the Owner's
opinion, represents a threat to the safety or progress of the Project or persons
on the Site, or who has engaged in any improper conduct, specifically including
(without limitation) conduct which the Owner perceives as constituting harassment
of students or other persons.
- Supplier shall secure all materials and the site where Work is performed,
and shall leave all areas broom clean (unless a more stringent cleanliness
standard is set forth in documents that are incorporated in this Purchase Order
by reference) and in a safe condition at the end of each work day and upon
completion of the Work. In case of dispute, Owner may remove waste at Supplier's
expense.
- Supplier shall ensure that federal, state and county of residence criminal
background checks are conducted on all persons performing Work at the Site, and
shall exclude from the Site any dishonest, dangerous or otherwise unqualified
persons.
- In the event of an emergency threatening health, life or property, the Supplier
shall take such action as may be necessary to save lives and protect persons from
injury and, this being done, to protect and preserve property. The Supplier shall
notify the Owner of any such emergency as promptly as is practicable under the
circumstances.
17. Confidentiality and Privacy Requirements
See Exhibit "A" of these terms and conditions for Confidentiality and
Privacy Requirements, which are incorporated herein by reference.
Exhibits
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