Standard
Terms and Conditions
- Remedies and
Applicable Law. This Contract shall be governed by and construed in accordance
with the laws of the State of Arizona. The University and
Offeror shall have all remedies afforded by said law.
- Interpretation-Parol Evidence. This writing shall be intended by the parties as a final expression
of their Contract and shall be intended also as a complete
and exclusive statement of the terms of their Contract.
No course of prior dealings between the parties and no usage
of the trade shall be relevant to supplement or explain
any term used in this Contract. Acceptance or acquiescence
in a course of performance rendered under this Contract
shall not be relevant to determine the meaning of this Contract
even though the accepting or acquiescing party has knowledge
of the nature of the performance and opportunity for objection.
Whenever a term defined by the Uniform Commercial Code is
used in this Contract, the definition contained in the Code
is to control.
- Contract Claims and Controversies. All Contract claims and controversies arising
under this Contract shall be resolved pursuant to Arizona
Board of Regents procurement procedures, section 3-809,
in particular section 3-809C.
- Equal Opportunity Clause. The provisions of Section 202 Executive Order 11246.41, C.F.R.
§60-1.4.41, C.F.R. §60-250.4 and 41, and C.F.R. §60-741.4
shall be incorporated herein by reference and shall be applicable
to this Contract unless this Contract is exempted under
the rules, regulations or orders of the Secretary of Labor.
- Non-Discrimination. During
the performance of this Contract, the Offeror agrees not
to discriminate against any employee or applicant for employment
because of race, color, sex, religion, or national origin,
or because he or she has a physical or mental handicap,
or because he or she is a disabled veteran or a veteran
of the Vietnam era. The aforesaid provision shall include,
but not be limited to, the following: employment, upgrading,
demotion or transfer, recruitment or recruitment advertising,
layoff or termination, rates of pay or other forms of compensation,
and selection for training including apprenticeship. The
parties agree to comply with Arizona Executive Order 99-4,
prohibiting discrimination in employment by government Contractors,
to the extent applicable to this Contract.
- Indemnification. Offeror
shall indemnify, defend, save and hold harmless the State
of Arizona, its departments, agencies, boards, commissions,
universities and its officers, officials, agents, and employees
(hereinafter referred to as “Indemnitee”) from
and against any and all claims, actions, liabilities, damages,
losses, or expenses (including court costs, attorneys’
fees, and costs of claim processing, investigation and litigation)
(hereinafter referred to as “Claims”) for bodily
injury or personal injury (including death), or loss or
damage to tangible or intangible property caused, or alleged
to be caused, in whole or in part, by the negligent or willful
acts or omissions of Offeror or any of its owners, officers,
directors, agents, employees or subcontractors. This indemnity
includes any claim or amount arising out of or recovered
under the Workers’ Compensation Law or arising out
of the failure of such Offeror to conform to any federal,
state or local law, statute, ordinance, rule, regulation
or court decree. It is the specific intention of the parties
that the Indemnitee shall, in all instances, except for
Claims arising solely from the negligent or willful acts
or omissions of the Indemnitee, be indemnified by Offeror
from and against any and all claims. It is agreed that Offeror
shall be responsible for primary loss investigation, defense
and judgment costs where this indemnification is applicable.
In consideration of the award of this contract, the Offeror
agrees to waive all rights of subrogation against the State
of Arizona, its officers, officials, agents and employees
for losses arising from services performed by the Offeror
for the State of Arizona..
- Labor Disputes. Offeror
shall give prompt notice to the University of any actual
or potential labor dispute which delays or may delay performance
of this Contract.
- Force Majeure. Neither
party shall be held responsible for any losses resulting
if the fulfillment of any terms or provisions of this Contract
are delayed or prevented by any cause not within the control
of the party whose performance is interfered with, and which
by the exercise of reasonable diligence, said party is unable
to prevent.
- No Waiver. No waiver
by the University of any breach of the provisions of this
Contract by the Offeror shall in any way be construed to
be a waiver of any future breach or bar the University's
right to insist on strict performance of the provisions
of the Contract.
- Modifications. This Contract
shall be modified or rescinded only by a writing signed
by both parties or their duly authorized agents.
- Assignment-Delegation. No right or interest in this Contract shall be assigned
or delegation of any obligation made by Offeror without
the written permission of the University. Any attempted
assignment or delegation by Offeror shall be wholly void
and totally ineffective for all purposes unless made in
conformity with this paragraph.
- Assignment of Anti-Trust Overcharge Claims. The parties recognize that in actual economic
practice overcharges resulting from anti-trust violations
are in fact borne by the ultimate purchaser; therefore,
Offeror hereby assigns to the Arizona Board of Regents any
and all claims for such overcharges.
- Cancellation for Lack of Funding. This Contract may be canceled without any further
obligation on the part of the Arizona Board of Regents and
Northern Arizona University in the event that sufficient
appropriated funding is unavailable to assure full performance
of the terms. The Offeror shall be notified in writing of
such non-appropriation at the earliest opportunity.
- Cancellation of State Contract. In accordance with A.R.S. §38-511, this Contract may be canceled
without penalty or further obligation if any person significantly
involved in initiating, negotiating, securing, drafting,
or creating the Contract on behalf of the University shall,
at anytime while the Contract or any extension of the Contract
shall be in effect, be an employee of any other party to
the Contract in any capacity or a consultant to any other
party of the Contract with respect to the subject matter
of the Contract.
- Cancellation for Conflict of Interest. The parties agree that this Contract may be
canceled for conflict of interest in accordance with A.R.S.
§38-511.
- Termination. The University
may by written notice, stating the extent and effective
date, terminate this Contract for convenience in whole or
in part, at any time. The University shall pay the Offeror
as full compensation for performance until such termination:
(1) the unit or pro rata Contract price for the delivered
and accepted portion; and (2) a reasonable amount, not otherwise
recoverable from other sources by the Offeror as approved
by the University, with respect to the undelivered or unacceptable
portion of this Contract, provided compensation hereunder
shall in no event exceed the total Contract price.
- Termination for Default. In the event that the Offeror shall fail to maintain or keep in
force any of the terms and conditions of this Contract,
the University may notify the Offeror in writing of such
failure and demand that the same be remedied within ten
(10) days. Should the Offeror fail to remedy the same within
said period, the University shall then have the right to
terminate this Contract.
- Insolvency. The University
shall have the right to terminate this Contract at any time
in the event the Offeror files a petition in bankruptcy,
or is adjudicated bankrupt; or if a petition in bankruptcy
is filed against the Offeror and not discharged within thirty
(30) days; or if the Offeror becomes insolvent or makes
an assignment for the benefit of its creditors or an arrangement
pursuant to any bankruptcy law; or if a receiver is appointed
for the Offeror or its business.
- Anti-Kickback. In compliance
with FAR 52.203-7, the University has in place and follows
procedures designed to prevent and detect violations of
the Anti-Kickback Act of 1986 in its operation and direct
business relationships.
- Gratuities. The University
may, by written notice to the Offeror, cancel this Contract
if it is found by the University that gratuities, in the
form of entertainment, gifts or otherwise, were offered
or given by the Offeror, or any agent or representative
of the Offeror, to any officer or employee of the State
of Arizona with a view toward securing a Contract or securing
favorable treatment with respect to the awarding or amending,
or the making of any determinations with respect to the
performing of such Contract. In the event this Contract
is canceled by the University pursuant to this provision,
the University shall be entitled, in addition to any other
rights and remedies, to recover or withhold the amount of
the cost incurred by Offeror in providing such gratuities.
- Inspection and Audit. All books, accounts, reports, files, and other records relating
to this Contract shall be subject at all reasonable times
to inspection and audit by the Arizona Board of Regents,
Northern Arizona University, or the Auditor General of the
State of Arizona, or their agents for five (5) years after
completion of this Contract. Such records shall be produced
at Northern Arizona University, or such other location as
designated by Northern Arizona University, upon reasonable
notice to the Contracting party.
- Insurance Requirements. Without
limiting any liabilities or any other obligations of Offeror,
Offeror shall provide and maintain the minimum insurance
coverage listed below unless otherwise agreed to in writing.
Coverage shall be provided with forms and insurers acceptable
to the University, until all obligations under the Contract
shall be satisfied. An acceptable insurance company shall
be authorized to conduct business in the State of Arizona
and shall be rated at least A-,VII by A.M.
Best, Inc.
If applicable, Worker's Compensation insurance coverage for
all employees
which meets Arizona statutory benefits; including Employer's
Liability with minimum limits of $500,000 each accident, $500,000
each employee/disease, and $1,000,000 policy limits/disease.
The University shall not require an additional insured endorsement,
however, the policy shall include an endorsement for All State
coverage for the State of Arizona.
If designated as a Sole Proprietor with no employees, the
State of Arizona (ARS 23-901, ARS 23-961a) requires submittal
of a written Sole Proprietor Waiver. The waiver document is
Form #spw/1 and can found at http://www.azrisk.state.az.us/Forms/sole_prop.pdf
Comprehensive
General Liability insurance with a minimum combined single
limit (CSL) each occurrence of ONE MILLION DOLLARS ($1,000,000)
and TWO MILLION DOLLARS ($2,000,000) general aggregate. The
policy shall include coverage for bodily injury, broad form
property damage (including completed operations), personal
injury (including coverage for Contractual and employee acts),
blank Contractual liability, products, and completed operations,
this coverage shall extend for year one past acceptance, cancellation,
or termination of the services or work defined in the Contract;
Fire Legal Liability; Liquor Liability (if applicable).
Comprehensive Automobile Liability insurance with a combined
single limit (CSL) for bodily injury, death, or property damage
of not less than ONE MILLION DOLLARS ($1,000,000) with respect
to "any auto" or Offeror's "scheduled, owned,
hired, or non-owned vehicles," assigned to or used in
performance of the Services.
If applicable, Professional Liability with minimum limits
of ONE MILLION DOLLARS ($1,000,000) each claim (or each wrongful
act), and THREE MILLION DOLLARS ($3,000,000) aggregate with
a retroactive liability date (if applicable to claims-made
coverage) the same as the effective date of the Contract.
The policy shall cover professional misconduct or lack of
ordinary skill for those positions defined in the Scope of
Work of the Contract and, at the discretion of the State of
Arizona, the Arizona Board of Regents, and Northern Arizona
University, shall include one of the following types of Professional
Liability policies: Directors or Officers, Errors and Omissions,
Medical Malpractice, Druggists Professional, Architects/Engineers
Professional, Lawyers Professional, Teachers Professional,
Accountants Professional, and Other (specify professions from
Scope of Work). The policy shall contain an Extended Claim
Reporting Provision of not less than one year following termination
of the policy.
Waiver
of Subrogation: Policy shall contain a waiver of subrogation
against the State of Arizona, its departments, agencies, boards,
commissions, universities and its officers, officials, agents,
and employees for losses arising from work performed by or
on behalf of the Contractor. The waiver of subrogation applies
to Commercial General Liability, Professional Liability, and
Workers' Compensation.
If
applicable, Builder's Risk coverage in an amount that represents
the project's estimated completed value.
The policies required by (B), (C), (D), and (E) herein shall
be endorsed to include the State of Arizona, the Arizona Board
of Regents, and Northern Arizona University as additional
insured.
The
policies required by (B), (C), (D), and (E) shall stipulate
that the insurance afforded Offeror shall be primary insurance
and that any insurance carried by the State of Arizona, the
Arizona Board of Regents, and Northern Arizona University,
shall be excess and not contributory insurance to that provided
by the named insured.
Coverage afforded under these policies shall not be canceled,
terminated, or materially altered until thirty (30) days prior
written notice has been given to the University.
A certificate of insurance acceptable to the University shall
be issued to the University as evidence that policies providing
the required coverage's, conditions, and limits are in full
force and effect. An acceptable certificate shall include
statements indicating compliance with the requirements of
(F), (G), and (H), a statement describing the Offeror's activity/property/Contract
with Northern Arizona University, shall be countersigned by
an authorized representative of the issuing insurance company,
and list Northern Arizona University as the certificate holder.
Offeror
shall provide the University with an acceptable Certificate
of Insurance prior to the commencement of providing the goods/services
defined in the Contract.
Failure
on the part of Offeror to meet these requirements shall constitute
a material breach upon which the State of Arizona, the Arizona
Board of Regents, and the University may immediately terminate
the Contract, or, at its discretion, procure or renew such
insurance and pay any and all premiums in connection therewith,
and all monies so paid by the State of Arizona, the Arizona
Board of Regents, and the University shall be repaid by Offeror
to the University upon demand, or the State of Arizona, the
Arizona Board of Regents, and the University may offset the
cost of the premiums against any monies due to Offeror.
Costs
for coverage's broader than those required or for limits in
excess of those required shall not be charged to the State
of Arizona, the Arizona Board of Regents, and Northern Arizona
University.
The
University reserves the right to request and receive certified
copies of any or all of the above policies and/or endorsements
within ten (10) calendar days of Contract signature.
The
Offeror and its insurers providing the required coverage's
shall waive all rights of recovery against the State of Arizona,
the Arizona Board of Regents, and the University, their agents,
officials, and employees.
The Certificate of Insurance shall be mailed to:
Northern
Arizona University
Purchasing Services
RE:
PO Box 4124
Flagstaff, AZ 86011
- Asbestos Notification and Confirmation. All buildings on the campus of Northern Arizona
University have been tested by a certified testing agency
to determine the presence of asbestos containing building
materials (ACBM's) and presumed asbestos containing materials
(PACM's). The test confirms the presence of ACBM's in several
campus buildings. The test results are documented and on
file with the University's Environmental Health and Safety
Department and shall be available for review by contacting
Gerald Bacon, Asbestos Program Coordinator, at 928-523-6435.
Renovation/Construction/Removal
and/or Installation services that may impact/disturb asbestos
containing building materials (ACBM's) or presumed asbestos
containing materials (PACM's) shall require Offeror to complete,
sign, and submit to the University Form FS#13: Contractor
Notification and Confirmation for Asbestos Containing Building
Materials.
No
work shall commence prior to Offeror receiving an Asbestos
Survey Results and Work Authorization with appropriate University
signatures.
- Package Goods. Offeror
shall package goods in accordance with good commercial practice.
Each shipping container shall be clearly and permanently
marked as follows: (a) Offeror's name and address; (b) University's
name, address and purchase order number; (c) Container number
and total number of containers, e.g., box 1 of 4 boxes;
and (d) The number of the container bearing the packing
slip. Offeror shall bear cost of packaging unless otherwise
provided.
- Shipment Under Reservation Prohibited. Offeror shall not be authorized to ship the
goods under reservation and no tender of a bill of lading
shall operate as a tender of the goods.
- Liens. All goods delivered
and labor performed under this Contract shall be free of
all liens and, if the University requests, a formal release
of all liens shall be delivered to the University.
- No Replacement of Defective Tender. Every tender of goods shall fully comply with
all provisions of this Contract as to time of delivery,
quantity, quality, and the like. If a tender is made which
does not fully conform, this shall constitute a breach and
Offeror shall not have the right to substitute a conforming
tender.
- Title And Risk Of Loss. The title and risk of loss of the goods shall not pass to
the University until the University actually receives the
goods at the point(s) of delivery. Prices shall be F.O.B.
Destination. Offeror shall retain title and control of all
goods until they are delivered, received and the Contract
of coverage has been completed. All risk of transportation
and all related charges shall be the responsibility of the
Offeror. The Offeror shall file all claims for visible and
concealed damage. The University shall notify the Offeror
promptly of any damaged goods and shall assist the Offeror
in arranging for inspection. Notice of rejection may be
made to the Offeror at any time within one month after delivery
has been made. When supported by a written statement from
the University, the Offeror shall not dispute its claims
of damage.
- Right of Inspection. The University shall have the right to inspect the goods
at delivery before accepting them.
- Warranties. In addition
to any implied warranties, Offeror warrants that the goods
furnished shall conform to the specifications, drawings,
and descriptions listed herein, and to the sample or samples
furnished by the Offeror, if any. In the event of a conflict
between the specifications, drawings, and description, the
specifications shall govern.
- Sales and Use Tax. The
Offeror shall comply with and require all of his subcontractors
to comply with all the provisions of the applicable state
and sales excise tax law and compensation use tax law and
all amendments to same. The Offeror further agrees to indemnify
and save harmless the University, of and from any and all
claims and demands made against it by virtue of the failure
of the Offeror or any subcontractor to comply with the provisions
of any or all said laws in amendments. The University is
not exempt from state sales excise tax and compensation
use tax.
- Furnish and Install. The items in this Contract shall be provided on an Offeror
furnish and install basis. Offeror shall have complete responsibility
for the items or products until they are in place and working.
Any special installation preparation and requirements shall
be submitted to the University. All transportation and coordination
arrangements shall be the responsibility of the Offeror.
Delivery of products shall be coordinated so that products
shall be delivered direct to the installation site. This
shall minimize the risk of loss and/or damage and shall
avoid double handling.
- Changes. Within the limits
allowed by law, Offeror agrees that the University may order
additional services, or make changes by altering, adding
to, or deducting from the proposed services, the Contract
sum being adjusted accordingly, and Offeror shall enter
into a modification of the Contract to reflect said changes.
- Installment Payment Contract. The University is precluded from entering into an installment Contract
unless such Contract can be canceled for non-allocation
of funds at the end of any fiscal year, at no penalty to
the University. If funds shall not be allocated for this
Contract for periodic payment in any future annual fiscal
period, following the University's formal request for funds,
the University shall not be obligated to pay the net remainder
of agreed to consecutive periodic payments remaining unpaid
beyond the end of the then current fiscal year. The University
agrees to notify the Offeror of such non-allocation at the
earliest possible time. No penalty shall accrue to the University
in the event this provision shall be exercised. This provision
shall not be construed so as to permit the University to
terminate this Contract in order to acquire similar goods
and/or services from another party.
- Price Adjustment. Price
changes shall only be considered at the end of one Contract
period and the beginning of another. Price change requests
shall be supported by evidence of increased costs to the
Offeror. The University shall not approve price increases
that shall merely increase the gross profitability of the
Offeror at the expense of the University. Price change requests
shall be a factor in the Contract extension review process.
The University shall determine whether the requested price
increase or an alternate option shall be in the best interest
of the University.
- Fixed Escalation Clause. Offeror shall certify a fixed maximum percentage of escalation
of costs of goods and/or services for a period of five (5)
years following expiration of warranty. Cost shall not exceed
five (5) % per year or Consumer Price Index (CPI), whichsoever
is less.
- Liquidated Damages. The
University and the Offeror agree that in the event that
the Offeror fails to perform under this Contract, the University
shall be damaged. The extent of the damage is very difficult
to calculate. Therefore, the Offeror agrees to pay the University
liquidated damages if the agreed upon delivery and installation
dates shall not be met. The liquidated damages shall be
5% of the total Contract price per day after the agreed
upon completion date, not to exceed a total of 100% of the
total Contract price.
- Invoices. Invoices covering
each delivery shall be mailed to Accounts Payable once a
month. Invoices shall be for all items delivered within
the month. The intent shall be to receive one (1) monthly
billing. All invoices shall reference the purchase order
number and the Contract.
- Payment. Payment shall
be subject to the provisions of Title 35 of Arizona Revised
Statutes relating to time and manner of submission of claims.
The University's obligation shall be payable only and solely
from funds appropriated for the purpose of the Contract.
- Personnel. Employees
of the Offeror assigned to the project and identified by
name in the Contract shall remain dedicated to this project.
Personnel changes shall be permitted only with prior notification
and approval of the University.
- Independent Contractor. It
shall be understood that Offeror shall operate as an Independent
Contractor, not as an employee or agent of the Universty.
- Advertising/Publishing. Offeror shall not advertise or publish, without the University's
prior consent, the fact that the University had entered
into this Contract, except to the extent necessary to comply
with proper request for information provided by appropriate
statues.
- Legal Worker Requirements: As required by Arizona Revised Statutes §41-4401 the University is prohibited after September 30, 2008 from awarding a contract to any contractor who fails, or whose subcontractors fail, to comply with Arizona Revised Statutes § 23-214-A. The Contractor warrants that it complies fully with all federal immigration laws and regulations that relate to its employees, that it shall verify, through the U.S. Department of Homeland Security’s E-Verify program, the employment eligibility of each employee hired after December 31, 2007, and that it shall require its subcontractors and sub-subcontractors to provide the same warranties to the Contractor.
The Contractor acknowledges that a breach of this warranty by Contractor or by any subcontractor or sub-subcontractor under this Contract shall be deemed a material breach of this Contract, and is grounds for penalties, including termination of this Contract, by the University. The University retains the right to inspect the records of any Contractor, subcontractor and sub-subcontractor employee who performs work under this Contract, and to conduct random verification of the employment records of the Contractor and any subcontractor and sub-subcontractor who works on this Contract, to ensure that the Contractor and each subcontractor and sub-subcontractor is complying with the warranties set forth above. The portion of this provision dealing with the Contractor’s warranty is not applicable where the Contractor is a governmental entity nor is the Contractor required to pass this provision through to subcontractors and sub-subcontractors who are governmental entities.
- Sudan and Iran: Pursuant to A.R.S. §§35-391.06(A) and 35-393.06(B), Contractor certifies that it does not have a “scrutinized business operation” in either Sudan or Iran, as that term is defined in ARS §§ 35-951(15) and 35-393(12), respectively.
Government
Subcontract Provisions
If this order is a subcontract under a U.S. government prime
contract, the clauses contained in the following paragraphs
of the Federal Procurement Regulations (FPR) or the Armed
Services Procurement Regulations (ASPR) are incorporated herein
by reference. For the purpose of this Purchase Order in the
following clauses, the terms "Government" and "Contracting
Officer" shall mean Buyer; the term "Contract"
shall mean this order and the term "Contractor"
shall mean Seller. Each regulation contains criteria for determining
applicability of the regulation to a particular contract.
FAR #
|
TITLE
|
52.203-7 |
Anti
Kickback |
52.225-7001 |
Buy
American |
52.222-4 |
Contract
Work Hours Safety Standards Act-Overtime Compensation |
52.215-26
a-b) |
Integrity
of Unit Prices |
52.222-1 |
Notice
of Government of Labor Disputes |
52.247-63 |
Preference
for US Flag Carriers |
52.203-6 |
Restrictions
of Subcontractor Sales to Government |
52.222-41 |
Service
Contract Act of 1965 |
52.249-5
a-f) |
Termination
for Convenience of Government (Education and other
Non-profit Institution) |
Above $2,500 |
52.222-26 |
Affirmative
Action for Handicapped Workers |
Above $10,000 |
52.222-35 |
Affirmative
action for Special Disabled in Vietnam Era Veterans |
52.215-2 |
Audit-Negotiation |
52.222-37 |
Employment
Reports on Special Disabled Veterans and Veterans
of the Vietnam Era |
52.315-1 |
Examinations
of Records by Comptroller General |
52.219-8 |
Utilization
of Small Disadvantaged Business Concerns |
52.222-20 |
Walsh-Healey
Public Contracts Act |
Above $35,000 |
52.227-1 |
Authorization
and Consent |
52.227-2 |
Notice
of Assistance Regarding Patent and Copyright Infringement |
52.247-64 |
Preference
for US Flag Commercial Vessels |
52.220-3 |
Utilization
of Labor Surplus Area Concerns |
52.219-13 |
Utilization
of Women Owned Business Concerns |
Above $100,000 |
52.223-1,2 |
Clean
Air and Water |
52.215-24 |
Subcontractor
Cost or Pricing Data* |
52.215-25 |
Subcontractor
Cost or Pricing Data-Modifications* |
*Note |
24
applies if cost or pricing data is initially required
25 applies to transactions over $100,000 |
Above $500,000 |
52.220-4 |
Labor
Surplus Area Subcontracting Program |
52.219-9 |
Small
Business and Small Disadvantaged Business Subcontractor
Program |
AS
APPLICABLE
52.227-10 |
Filing
of Patent Application |
52.223-3 |
Hazardous
Material Identification and Materials Safety Data |
52.227-11,12 |
Patents
Rights Clause |
52.227-7018 |
Restrictive
Markings on Technical Data |
52.227-7037 |
Validation
of Restrictive Markings on Technical Data |
52.208-1 |
Required
Sources for Jewel Bearings |
52.204-2 |
Security
Requirements |
DEPARTMENT
OF DEFENSE CONTRACTS ONLY
52.204-7005 |
Overseas
Distribution of Contracts |
52.227-7013 |
Rights
in Technical Data and Computer Software |
Above $35,000 |
52.203-7001 |
Special
Prohibition on Employment |
52.227-7013 |
Rights
in Technical Data Computer Software |
|
