Terms and Conditions for Service Providers
The Contractor agrees to perform the Services described in the Service Order to which these terms and conditions are affixed or in which these terms are referenced (the Service Order and these terms and conditions together, the “Agreement”) and to perform such Services. Contractor shall not perform any work that is not described in a duly executed Service Order without the prior written authorization of Trustees of Boston University (the “University”), and the University shall not be required to pay for such work that has not been so authorized. Contractor shall furnish the University with written reports and documentation as described herein or upon request. Contractor agrees to furnish all labor, equipment, parts, materials, tools and services as are necessary and/or appropriate to provide the Services. Time is of the essence. Contractor shall maintain a sufficient quantity of the necessary equipment, parts, materials, and tools to avoid delays in the completion of its work.
The University shall make payment in the amount(s) specified in the Service Order within the later of 60 days after the University’s receipt of an invoice or 60 days after satisfactory completion of the work (or relevant portion thereof if progress payments are provided for in the Service Order). The University shall have the right to withhold payment if Contractor fails to perform any of its contractual commitments. No interest shall be due on any amount unless agreed in writing by the University. No new charges shall be imposed and no price increases shall be made whatsoever with respect to any aspect of the Services other than as agreed to in writing by both parties. Any performance and/or payment bond agreed to be provided by Contractor hereunder shall be in such amount as may be agreed, shall be written by a surety company that is authorized to do business in Massachusetts and is satisfactory to the University, shall provide that the surety waives notice of and consent to changes in this Agreement even if such changes are deemed changes in the scope of work, and in all other respects shall be in form and substance satisfactory to the University.
a. Contractor represents and expressly warrants as follows:
i. Valid and Binding Obligation. This Agreement has been duly authorized, executed, and delivered; this Agreement constitutes a valid and binding obligation of the Contractor and is fully enforceable against Contractor in accordance with its terms; and this Agreement is not in conflict with any other agreement by which Contractor may be bound.
ii. Acceptance of Responsibilities. Contractor has inspected or has had the opportunity to inspect the relevant portions of the University’s physical plant to the extent that Contractor deems necessary, and accordingly, Contractor accepts its responsibilities under this Agreement with no representations or warranties whatsoever by the University relating to the physical plant.
iii. Goods or Materials. The equipment, parts, and other goods and materials provided by Contractor shall be new, of good quality, and suitable for their intended purposes; shall be free from defects in material, workmanship, and design; and shall conform to and perform in accordance with all specifications for the same, any documentation provided by the manufacturer or the vendor thereof, and the performance criteria and other descriptions provided under this Agreement. Replacement parts shall be of equal or better quality than the part being replaced. No part, equipment, goods, or material shall in any way degrade or compromise the operation or performance of the University’s physical plant.
iv. Services. The Services shall be performed in a professional manner, conforming to the highest standards of the industry and the performance criteria provided under this Agreement, in compliance with all requirements of applicable federal, state and/or local laws, regulations, rules, and ordinances (collectively, “Laws”) and this Agreement. The Services shall be performed by licensed, fully qualified, well trained, and properly equipped personnel.
b. Assignment of Warranties. Contractor shall obtain and hereby assigns to the University any and all warranties and indemnities available from any manufacturer, supplier, or subcontractor of services or goods and materials provided in connection with this Agreement.
c. Breach of Warranty. Without limitation of the University’s remedies at law or in equity, if any of the equipment, parts, goods or other materials provided or services performed by Contractor hereunder fails to comply with the warranties set forth herein, Contactor shall remedy such breach promptly upon notice, at no extra charge to the University, or, at the University’s option, shall refund the payments University has made for and arrange for return of any equipment, parts, goods or other materials provided or services performed by Contractor that fail to comply.
4. GOVERNING LAW AND VENUE.
This Agreement, and the interpretation, construction and enforceability hereof, and all rights and obligations of the parties, whether arising under this Agreement or otherwise, shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, without giving effect to its principles of conflict of laws. The sole and exclusive jurisdiction and venue for resolution of any disputes between the parties shall be in the state and federal courts located in Boston, Massachusetts, and each of the parties hereby submits to, and waives objection to, the jurisdiction and venue of such courts.
5. COMPLIANCE WITH LAWS.
a. General. Contractor warrants that in performance of this Agreement it has complied and will comply with all applicable federal, state and local laws, rules, regulations, ordinances, orders and decrees and with the University’s policies and procedures that have been made available to Contractor in writing or electronically, including without limitation the Boston University Office of Environmental Health and Safety Policy Manual, which is posted at www.bu.edu.
b. Debarment. In accordance with Executive Order 12549 (Debarment and Suspension), Contractor certifies by entering into this transaction, that neither it nor its principals is currently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participation in this transaction by any Federal department or agency.
c. Equal Employment Opportunity. The nondiscrimination clause contained in Section 202, Executive Order 11246 as amended by Executive Order 11375, 41 C.F.R. part 60-1, relative to equal employment opportunity for all people without regard to equal employment opportunity for all people without regard to race, color, religion, sex or national origin; Section 503 of the Rehabilitation Act. Of 1973, 20 C.F.R. Section 741.3, 741.4 relative to nondiscrimination on the basis of physical or mental handicap; and the Vietnam Era Veterans and the implementing rules and regulations prescribed by the Secretary of Labor are hereby made part of this agreement and the Contractor will honor such statutes, clauses, Executive Orders, and implementing rules. The Contractor will take affirmative action to ensure that applicants are employed and that employees are treated during employment without regard to their race, sex, creed, color, national origin, handicap, or veteran status. Such action shall include, but not limited to, the following: employment, promotion, demotion or transfer, recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection of training, including apprenticeship.
d. Permits. Contractor obtain at its expense and shall give all notices required by, and comply with, all governmental licenses, permits, inspections, and approvals required for its work, including but not limited to those required by the Boston Fire Department, Boston Inspectional Services Department, and Town of Brookline. All work, including but not limited to electrical and mechanical work, must abide by all applicable codes and industry standards, as well as by University’s Department of The Physical Plants Engineering Design and Equipment Standards.
e. Fines. Contractor shall pay any fines or penalties assessed against the University to the extent the assessment of such fines or penalties results from Contractor’s delay or failure in performing its obligations under this Contract.
f. Release of Liens. All goods supplied and all services performed by Contractor pursuant to this Agreement shall be free from all liens. Upon the University’s request, Contractor shall provide a proper release of liens or other satisfactory evidence of freedom from liens.
g. Export Control. If Contractor provides export controlled products, technology and/or software (“Products”), Contractor will provide University with a list of ECCNs (Export Control Classification Numbers) for such Products, as well as updates to such list when new Products are added. Supplier certifies (and will certify with respect to any updates) that it has (i) conducted proper classification analysis under the EAR or (ii) obtained Official Commodity Classifications (CCATS) from BIS. Additionally, if any Product is on the U.S.M.L., Contractor will provide University with the classification and will certify that it conducted proper ITAR analysis or obtained Jurisdiction Classifications Rulings from DDTC.
Contractor, its subcontractors and sub-subcontractors, agents and employees shall defend, indemnify and hold the University and its trustees, officers, employees, agents and students harmless from and against any and all liability and/or loss of any kind (and costs and expenses, including without limitation attorney’s fees) including those arising out of any claim, suit or action, including without limitation, claims for injury to persons (including death) or damage to property, which may result from any act or omission of Contractor or of its employees, agents, representatives, suppliers, subcontractors, or others for whose conduct Contractor may be responsible, except to the extent resulting from the University’s gross negligence or willful misconduct.
7. PROTECTION OF PROPERTY.
Contractor shall retain all risk of loss or damage to all equipment and other property in the possession or under the control of Contractor or any of its employees, agents, representatives, suppliers, subcontractors, or others for whose conduct Contractor may be responsible. Contractor shall take all necessary precautions to protect the University’s property from loss or damage, and shall, at the University’s option, repair or replace, at its own expense to the University’s satisfaction, any property lost or damaged by Contractor or its employees, agents, representatives, suppliers, subcontractors, or others for whose conduct Contractor may be responsible. Alternatively, the University may at its option repair or replace such property at the Contractor’s expense.
a. Coverage. Contractor agrees to obtain and maintain in effect the following insurance under “occurrence form” policies of insurance provided by a company or companies acceptable to the University:
i. Worker’s Compensation Insurance providing statutory coverage and Employers Liability Insurance subject to a limit of at least $500,000 per accident;
ii. Commercial General Liability Insurance naming Trustees of Boston University as an additional insured, subject to a combined single limit of at least $1,000,000 each occurrence and $2,000,000 in the aggregate for bodily injury and property damage. The aggregate limits shall be maintained continuously during the life of this Agreement. The Commercial General Liability Insurance shall include, but not necessarily be limited to, coverage for:
1. Products/Completed operations;
2. Independent Contractor, covering operations on any and all subcontractors and Sub-subcontractors;
3. 3. Coverage for explosions, collapse and undermining and damage to underground utilities and property when the project involves such risk exposures; and
4. Elevator liability when elevators are involved in the project.
iii. Automobile Liability Insurance with limits of not less than $1,000,000 for any one person and $1,000,000 for any one accident for bodily injury including death and $500,000 for property damage covering:
1. All owned vehicles;
2. Hired vehicles; and
3. All other non-owned vehicles.
iv. Umbrella Liability Insurance subject to a limit of at least $1,000,000 providing excess coverage over that specified in items i, ii and iii above. Such insurance shall also name the University as additionally insured.
v. Pollution Legal Liability Insurance (if required) naming the University as additionally insured, subject to a limit of at least $5,000,000 per incident.
b. Insurance Certificates. As evidence of such insurance, Certificates of Insurance shall be delivered to the University prior to commencement of work under this Agreement by Contractor. Such certificates shall be submitted on standard ACORD Certificate of Insurance form written on “occurrence” and show any special coverage provisions required and shall provide for 30 days notice of cancellation, material change or intent not to renew. Certificates should be addressed to the University’s Project Manager and should be delivered at least two weeks prior to commencement of any work and thereafter within 30 days after the anniversary dates of the insurance while this Agreement is in effect.
c. Minimum Coverage. The foregoing insurance requirements set forth minimum coverage and amount and are not to be construed in any way as a limitation of Contractor’s liability under this Contract. Contractor shall cause the University to be named as an additional insured under all liability insurance and as a loss payee under property damage insurance to the extent of its interest hereunder.
d. Waivers. The University and Contractor waive all rights against each other for damages caused by fire or other perils to the extent covered by insurance except such rights as each may have to the proceeds of the above described insurance in case of loss. The Contractor shall require similar waivers by all subcontractors and all sub-subcontractors.
9. INDEPENDENT CONTRACTOR.
Contractor is and shall perform this Agreement as an independent contractor and, as such, shall maintain complete supervision and control over all employees, agents, subcontractors, and operations. Neither party shall have the authority to bind the other party.
Contractor agrees to keep all information concerning the University strictly confidential, to use such information only for the purpose of fulfilling its obligations to the University, and to make no unauthorized disclosure of such information. Contractor shall not disclose, without the express prior written consent of the University (a) the terms and provisions of this Agreement, (b) the fact that negotiations with respect to the matters described herein have taken place or (c) the terms and provisions of documents delivered in connection with this transaction, except to the extent such disclosure (i) is required by law and/or required to enforce the provisions of this Agreement, (ii) is necessary in connection with any governmental bidding or approval process which is part of the business conducted by Contractor, or (iii) is of a matter which has become public through no fault of Contractor.
11. INTELLECTUAL PROPERTY.
a. Contractor warrants that the use of material and any other goods furnished hereunder shall be free and clear of infringement of any valid patent, copyright, trademark, trade secret, or other proprietary right. Contractor shall indemnify and hold the University harmless from any and all liability and/or loss of any kind (and the costs and expenses, including without limitation attorney’s fees) arising out of any claim, suit or action alleging or arising out of any such infringement, which claim, suit or action Contractor agrees to compromise or defend at the University’s request.
b. All inventions, discoveries, developments and improvements made or conceived by the Contractor in the course of performing the Services (“Inventions”), whether such Inventions are patentable or not, shall become and remain the sole exclusive property of the University. All right, title, and interest in and to all data and all copyrights in all deliverables, writings, documents, reports, papers, tabulations, and other works written or made by Contractor in the course of performing the Services shall become and remain the sole exclusive property of the University. The Contractor hereby transfers and assigns all of its right, title and interest in and to all such data and intellectual property to the University.
12. SUBLETTING OR ASSIGNMENT OF AGREEMENT
Contractor shall not use subcontractors to perform any Services under this Agreement without the prior written consent of the University. Any reference to subcontractors herein shall not be deemed to authorize the use of subcontractors, unless expressly so stated. Contractor shall not assign any of its rights (including without limitation the right to any moneys due or to become due) or delegate any of its obligations under this Agreement without the prior written consent of the University. Any permitted assignment by Contractor of any moneys due or to become due shall be subject to set-off, recoupment or other claim of the University against Contractor. Contractor shall retain full responsibility for the performance of this Agreement notwithstanding any permitted use of subcontractors, assignment of rights or delegation of duties. Contractor shall be liable to the University for the acts and omissions of its subcontractors and assignees.
a. Termination for Convenience. The University reserves the right to terminate this Agreement, in whole or in part, with or without cause, upon 30 days’ written notice to Contractor.
b. Termination for Cause. The University reserves the right to terminate this Agreement, in whole or in part, immediately upon written notice to Contractor if a petition is filed by Contractor, or against Contractor with its consent, under any federal or state law concerning bankruptcy, reorganization, insolvency or relief from creditors, or if such a petition is filed against Contractor without its consent and is not dismissed within 60 days, or if Contractor becomes insolvent, or if Contractor consents to the appointment of a receiver, trustee, liquidator, custodian or the like of Contractor or of all or any substantial portion of its assets and such appointment or possession is not terminated within 60 days, or if Contractor makes an assignment for the benefit of creditors, or if Contractor refuses or fails, except in cases for which extension in time is provided, to supply enough properly skilled workman or proper materials, or if Contractor fails to make prompt payment to any subcontractor, or for materials or labor, or disregards any applicable Laws or otherwise violates any provision of this Agreement.
c. Additional Rights and Remedies. In the event of termination of this Agreement, Contractor shall cease work, shall provide University with a list of all unperformed services, and shall take such action relative thereto as Contractor may be directed by the University. In the event of termination of this Agreement by the University for cause, the University may finish the work at Contractor’s expense by whatever method the University may deem expedient, and the University shall have the right to take possession of all of Contractor’s materials, equipment, tools, and machinery at the work site for such purpose. Contractor shall not be entitled to receive payment for any such completion of work by the University. The University shall pay for work satisfactorily performed by Contractor, reserving the right to set off any payments due to the University under this or any other agreement with Contractor. The University shall have no further liability as a result of termination of this Agreement in accordance herewith. The rights and remedies of the University under this Section are not exclusive and are in addition to any other rights and remedies permitted by law or in equity.
The University is exempt from the Massachusetts sales tax and will furnish a tax-exempt certificate to the Contractor upon request.
a. Acceptance. By its execution hereof or by beginning to provide the Services, Contractor agrees to the provisions hereof and shall be subject to these terms and conditions. Any terms and conditions proposed by Contractor inconsistent with or in addition to these terms and conditions shall be void and of no effect unless the University specifically agrees to such terms and conditions in writing. In case of any conflict within this Agreement, including the Exhibits, or with any document referred to herein, the provisions most favorable to the University shall prevail.
b. Entire Agreement. The terms and conditions of this Agreement constitute the entire agreement between the parties. No oral agreement or understanding or prior written agreement or document relating to the subject matter of this Agreement shall be considered part of this Agreement, and the same shall be deemed superseded by this Agreement.
c. Amendment; Waiver. This Agreement may be amended only in writing by duly authorized representatives of the parties hereto. No waiver of any provision of this Agreement shall be effective unless given in writing signed by the party against whom the waiver is sought to be enforced. No failure to exercise, and no delay in exercising, any right, power, or privilege under this Agreement will operate as a waiver hereof, nor will any single or partial exercise of any right, power, or privilege under this Agreement preclude any further exercise of the same or any other right, power, or privilege hereunder.
d. Remedies Not Exclusive. The rights of both parties hereunder shall be in addition to their rights and remedies at law or in equity.
e. Severability. If any part of this Agreement shall be adjudged by a court of competent jurisdiction to be invalid in any circumstance, such invalidity shall not affect any other provisions or circumstances.
f. Survival of Benefits. The provisions of this Agreement, including without limitation those relating to indemnification and confidentiality, shall survive the expiration or termination of this Agreement to the extent necessary to provide the full benefit thereof consistent with applicable statutes of limitations.
g. Use of Names. Contractor shall not use any name, logo, emblem of the University or any of its trustees, officers, employees, representatives or agents, or any adaptation, variation or abbreviation thereof, in any brochure, publication, or advertisement without securing the prior written approval of the University.
h. Capitalized Terms. Capitalized terms not defined herein shall have the meaning given in the applicable Service Order.
16. COMPLIANCE WITH SAFETY STANDARDS AND PREMISES REGULATIONS. This Section shall only apply if Contractor will provide some or all of the Services on property owned or leased by the University.
a. OSHA State and Local Regulation. Contractor shall ensure that all of its personnel, subcontractors, members of the University community, and the general public are properly protected from potential injury due to any act or omission, or any machinery, equipment or other property owned or operated, by Contractor or any of its employees, agents, representatives, suppliers, subcontractors or others for whose conduct Contractor may be responsible, as required by the Occupational Safety and Health Act of 1970, and all applicable regulations there under and by all other applicable federal, local and state laws. Contractor shall ensure that all machinery and equipment used in the performance of the work comply with applicable law. If the University, in its reasonable judgment, determines that any additional protection is necessary to comply with good management practices or applicable law, Contractor shall provide the same at no additional charge. Contractor shall be considered to have materially breached this Agreement if any safety and health standards or regulations have been breached by the Contractor.
b. Lockout/Tagout. In accordance with the Occupational Safety and Health Administration’s (“OSHA’s”) Lockout/Tagout standard (29 CFR 1910.147), contractor(s) involved in operations related to equipment or machinery lockout that affect the University’s employees must submit their Energy Control Procedures to the University and train affected employees of the University prior to the time Contractor signs this Agreement. The cost of training will be the responsibility of Contractor. Contractor shall also comply with the University’s Lockout/Tagout policy and procedures.
c. Maintenance of Work Areas. Contractor shall keep all work areas clean and neat. All tools, equipment, machinery, and the like shall be removed upon completion of the work or work shift. Subject to the provisions above, Contractor shall keep all premises free from the accumulation or discharge of waste materials, whether hazardous or non-hazardous. Contractor shall routinely survey its work areas and adjacent space to identify and correct potentially hazardous situations relating to the work. Contractor shall provide sufficient barricades, ropes, signs, guards, and other things to warn and secure persons against danger in its work areas.
d. Access to Premises. The University shall provide the Contractor reasonable access to the premises, which may be limited to times specified by the University in advance. Contractor shall not unnecessarily interfere with the normal operations of the University or others, and shall not unnecessarily obstruct or encumber any University or non-University premises. The University shall at all times have access to the work site to inspect and approve of the work conducted on the premises.
e. Parking. The University does not provide free parking. Contractor can apply and pay for a permit for the use of University parking lots.
f. Personnel Identification. All Contractor personnel shall carry identification provided by Contractor that contains a photograph of such personnel and states his/her full name, company name, address, telephone number, name of immediate supervisor, and, if required, the identification number assigned to Contractor by the University. Contractor personnel shall wear appropriate uniforms as provided by Contractor.
g. Miscellaneous Safety Policies. Contractor’s personnel shall comply at all times with the applicable sign in/sign out procedures of the University. Contractor shall not de-energize or energize any energy source (electrical or mechanical), interfere with any utility service (electricity, water, gas, steam etc.), or interfere with any fire protection system, without the prior consent of the University. Contractor shall not cause or produce any unusual, noxious or objectionable smokes, gasses, vapors or odors; overload any floor, ceiling, wall or fixture; remove, replace or install any locks; perform any act on University premises which might invalidate any insurance policies carried by either party to this Agreement; commit any nuisance or trespass; interfere with the effectiveness or accessibility of building mechanical or electrical systems other than such as is known to the University Project Manager and is unavoidable in the performance of Contractor’s duties hereunder; or mar, deface or damage any University property. Contractor shall comply with the University’s smoking policy.
17. HAZARDOUS MATERIALS PRECAUTIONS: This Section shall only apply if Contractor will provide some or all of the Services on property owned or leased by the University.
a. Environmental laws. The Contractor shall comply with and conform to all requirements of applicable environmental laws and regulations, including but not limited to the Clean Water Act and the Spill Prevention Control and Countermeasure (“SPCC”) regulations (40 CFR 112.1-112.7). Prior to signing this Agreement, Contractor must submit to the University and obtain the University’s written approval of the following:
i. a list of all hazardous materials to be used by Contractor as defined by the Occupational Safety and Health Act of 1970 and relevant regulations thereunder including but not limited to the Hazard Communication Standard (29 CFR 1910.1200);
ii. a Material Safety Data Sheet (MSDS) for each hazardous material listed;
iii. the location of all hazardous materials stored at the University;
iv. a description of the containment provided and other measures to be taken to prevent releases to the environment; and
v. the disposal of hazardous or contaminated waste used in the process of performing the work, including but not limited to solvents, degreasers, contaminated solids, batteries, capacitors, Freon, filters, asbestos, fuels, PCB’s, pesticides, acids, caustics, sealants, adhesives, paints, strippers, and petroleum based liquids, shall be the responsibility of the Contractor as the generator in accordance with all applicable federal, state, and local laws. No such waste shall be disposed of through the University’s disposal system or on University owned or controlled property.
b. Asbestos. The parties shall share any knowledge they may have of any asbestos on or near the work sites, and Contractor shall use its best efforts to avoid disturbing or affecting any asbestos. Contractor shall comply with the University’s Asbestos Management Plan and procedures. If any asbestos is anticipated to be disturbed or affected by Contractor, Contractor shall notify the University’s Project Manager as well as the University’s Director of Environmental Health and Safety, by telephone promptly confirmed in writing, as far in advance as possible (and Contractor shall give such notice immediately if asbestos is found). Contractor shall not proceed with any related work and shall not take any action relating to the asbestos without the prior written approval of the Director of Environmental Health and Safety. The University reserves the right to make all decisions regarding asbestos removal, disposal, and remediation as it sees fit in accordance with applicable Laws. Contractor shall provide such cooperation as the University shall reasonably request.
c. Discharges. If any Contractor discharges hazardous materials, as defined by federal, state, or local law, on University or non-University premises, Contractor shall notify the University immediately and shall take full responsibility for all necessary remedial action at is sole expense in compliance with the requirements of all applicable federal, state and/or local laws, regulations, rules and ordinances and in accordance with University policies and procedures. Without limitation of the foregoing, Contractor shall keep University fully informed of any discharge and the remedial action being taken, and shall provide the University with such assurances as it may require concerning public safety and the environment. The University also reserves to itself the right to clean up at the expense of Contractor. This right includes, without limitation, selecting cleanup contractors and Licensed Site Professionals, obtaining EPA identification numbers, and signing Hazardous Waste Manifests.