Terms and Conditions of Purchase
1) ACCEPTANCE – Agreement by Vendor to furnish the goods and services hereby ordered, or it’s beginning to furnish such goods and services in whole or in part, shall constitute acceptance by Vendor of this purchase order subject to these terms and conditions. In the event that this order does not state terms and conditions of price or delivery, Purchaser will not be bound to any such terms and conditions to which it has not specifically agreed in writing. Any terms or conditions proposed by Vendor inconsistent with or in addition to these terms and conditions shall be void and of no effect unless Purchaser specifically agrees to such terms and conditions in writing. These terms and conditions, together with such additions and/or modifications, and with such terms and conditions relating to price and delivery as are accepted in writing by Purchaser, constitute the entire agreement between the parties. The rights of both parties hereunder shall be in addition to their rights and remedies at law or in equity. Failure of Purchaser to enforce any of it’s rights hereunder shall not constitute a waiver of such rights or of any rights it may have.
2) CASH DISCOUNT – Invoices are subject to the cash discount terms on the face of this order. Discount periods shall commence on the date of receipt by Purchaser of the goods and services ordered or the invoice therefore, whichever date is later.
3) INVOICES – Vendor shall invoice Purchaser promptly upon delivery of goods or performance of services not to exceed sixty (60) days after acceptance of good or services. Invoices not received by Purchaser within sixty (60) days of acceptance shall be considered a breach of this order and subject to non-payment by Purchaser. Vendor shall provide a monthly statement detailing any invoices more than sixty (60) days past due. Failure to provide such a statement shall be considered a breach of this order and the invoices will be subject to non-payment by the Purchaser.
4) DELIVERY: NOTICE OF LABOR DISPUTES – Time is and shall remain of the essence of this order, and no acts of Purchaser, including without limitation modification of this order or acceptance of late deliveries, shall constitute a waiver of this provision. Vendor shall notify Purchaser immediately of any actual or potential labor dispute which is delaying or threatens to delay the timely performance of this order. Purchaser reserves the right to refuse or return, at Vendor’s risk and expense, shipments made in excess of Purchaser’s orders or in advance of required schedules, or to defer payment on advance deliveries until scheduled delivery dates.
5) TERMINATION – This order may be terminated by Purchaser in whole or in part at any time. Upon receipt of notice of such termination Vendor shall stop all performance under this order, except as otherwise directed by Purchaser, furnish Purchaser with a list of all outstanding orders for goods and services and take such action relative thereto as may be directed. Vendor shall be reimbursed for reasonable expenses incurred by reason of such termination including Vendor’s cancellation charges for which Purchaser may be liable by reason of such cancellation. In the event of such termination pursuant to a Notice of Termination received by Purchaser from a government entity in accordance with a grant or contract award, Purchaser shall be obligated to pay Vendor only that amount which shall be determined to be, or approved as, reimbursable to Purchaser under said grant or contract with respect to this order.
6) SUBCONTRACTING – Vendor shall not use subcontractors to provide goods or to perform any services under this purchase order without the prior written authorization of Purchaser.
7) WARRANTIES – Vendor represents and expressly warrants (i) that all goods ordered to specifications will conform thereto and to the drawings, samples or other descriptions furnished by Purchaser or, if not ordered to specifications, that such goods will be suitable for the purpose intended, and (ii) that all goods and services will be of good quality and workmanship and free from defects. At Purchaser’s option, Vendor shall at its own expense, replace or correct any goods which are defective promptly upon receipt of notice from Purchaser. Vendor agrees to proceed with the correction of any defects in a manner satisfactory to Purchaser. Vendor shall assume all risk of loss or damage to goods which are to be replaced or corrected pursuant to this warranty from the date on which Vendor is notified of the defect or non-conformity until the replaced or corrected goods are received at the destination designated by Purchaser. Alternatively, Purchaser may at its option repair such defective goods at Vendor’s expense.
8) CHANGES – Purchaser may at any time, by written order and without notice to any surety, make changes or additions within the general scope of this purchase order in or to drawings, designs, specifications, instructions for work, method of shipment or packing or place of delivery. If any such change causes an increase or decrease in the cost of or in the time required for performance of this order, Vendor shall notify Purchaser in writing immediately and an appropriate equitable adjustment will be made in the price or time of performance, or both, by written modification of this order. Any claim by Vendor for any such adjustment must be made within thirty (30) days, or such other period as may be agreed upon in writing by the parties, after Vendor’s receipt of notice of the change. Nothing herein contained shall excuse Vendor from proceeding with the purchase order as changed.
9) PATENTS, COPYRIGHTS, TRADEMARKS AND TRADE SECRETS – Vendor warrants that the sale, use or incorporation into manufactured products of all goods furnished hereunder which are not of Purchaser’s design, composition or manufacture shall be
free and clear of infringement of any valid patent, copyright, trademark or trade secret. Vendor shall indemnify and hold Purchaser harmless from any and all liability and/or loss of any kind (and the cost 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 Vendor agrees to compromise or defend.
10) ASSIGNMENT - Vendor shall not assign any of its rights (including without limitation the right to any monies due or to become due) or delegate any of its obligations under this order without prior written consent of Purchaser. Any assignment by Vendor of any monies due or to become due shall be subject to set-off, recoupment or other claim of Purchaser against Vendor.
11) RELEASE OF LIENS – All goods supplied and all services performed by Vendor pursuant to this order shall be free from all liens. If Purchaser requests, Vendor shall provide a proper release of liens or other satisfactory evidence of freedom from liens.
12) INDEMNITY AGAINST CLAIMS - Vendor shall indemnify and hold Purchaser harmless from any and all liability and/or loss of any kind (and the cost and expenses, including without limitation attorney’s fees) arising out of any claim, suit or action, including without limitation claims of injury to persons (including death) or damage to property, which may result in any way from any act or omission arising out of the performance or non-performance of this order (including without limitation any act or omission of Vendor or of its agents, employees or subcontractors, or otherwise), except to the extent that such injury is due solely and directly to Purchaser’s gross negligence or willful act. Vendor shall compromise or defend any such claim, suit or action. Vendor shall also maintain such Public Liability, Property Damage, Employer’s Liability and Compensation Insurance and Motor Liability Insurance (Personal Injury and Property Damage) as will protect Vendor (or its subcontractors) and Purchaser from said risks and from any claims under any applicable Worker’s Compensation or Occupational Disease statutes.
13) COMPLIANCE WITH LAWS – Vendor warrants that in performance of this order it has complied or will comply with all applicable federal, state and local laws, rules and regulations, including without limitation the Walsh-Healy Public Contracts Act (41 U.S.Code §§35-45) (if this order is for an amount exceeding $10,000 and is otherwise subject to the Walsh-Healey Public Contracts Act); Section 202, Executive Order 11246, as amended by Executive Order 11375, 41 C.F.R. Part 60-1; Section 503 of the Rehabilitation Act of 1973, 20 C.F.R. §§41.3, 741.4; and the Vietnam Era Veterans Readjustment Assistance Act of 1974, 41 C.F.R. Part 50-250.
In accordance with Executive Order 12549 (Debarment and Suspension), Vendor certifies by entering into this transaction, that neither it nor its principals is presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participation in this transaction by any Federal department or agency.
Where Vendor is unable to certify to any of the statements in this certification, it shall provide a written explanation to the University.
14) FIRE TESTING – Whenever required, all material used in the fabrication or installation of the goods supplied under this purchase order shall have been tested and approved by the Boston Fire Department. Such material must meet the standards set forth in the “Regulations Controlling Decorations, Furnishings, and Interior Finish,” as most recently revised. A copy of the Certificate of Compliance with such regulations, issued by the Boston Fire Department, shall be submitted to the buyer responsible for this purchase order at the proper purchasing department, as listed on the face of this order, prior to delivery or no later than ten (10) days after the receipt of the certificate from the Boston Fire Department, whichever date is earlier.
15) MISCELLANEOUS – This Agreement, 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 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 the jurisdiction of such courts.