Purchasing Terms and Conditions

  1. GENERAL. This Purchase Order ("Order") constitutes the entire agreement between the supplier or seller named on the face hereof ("Seller") and Utah State University Research Foundation (USURF) ("Buyer") covering the goods and/or services described herein (the "goods"). Seller's acceptance must be limited to the terms and conditions stated herein, without any modification, addition or alteration. No terms or conditions in any sales form issued by the Seller shall bind the Buyer or constitute a variance, modification, alteration or addition to any of the terms, conditions, and provisions in this Order or be a waiver or exception thereto unless specifically agreed to in writing by an authorized agent of Buyer.
  2. PRICE. This Order shall not be filled at a higher price than specified herein. Unless otherwise provided herein, prices shown on this Order are deemed to include all costs and expenses of delivering goods to the shipment point designated herein.
  3. RENEGOTIATION OR MODIFICATION. This contract may be amended, modified, or supplemented only by written amendment to the contract, executed by the person holding actual authority to do so on behalf of the supplier.
  4. SHIPMENT AND INSPECTION. The terms and routing of shipment shall be as provided on the face hereof, or as Buyer otherwise directs. Buyer may revise shipping instructions as to any goods not then shipped. Buyer shall have the right to inspect any or all of the goods at Seller's plant or upon Buyer's receipt at Buyer selection. This right shall be exercisable notwithstanding Buyer's having paid for the goods prior to inspection. Buyers, by reason of its failure to inspect the goods, shall not be deemed to have accepted any defective goods or goods which do not conform to the specifications therefore, or to have waived any of the Buyer's rights or remedies arising by virtue of such defects or nonconformance.
  5. PAYMENT/CASH DISCOUNTS PERIOD. Payment shall be made for items accepted by USURF that have been delivered to the delivery destination(s) set forth in this Order. The time period allowed for payments as indicated on the face hereof, and/or any cash discounts period shall commence upon receipt of Seller's correct invoice or upon receipt of the goods, whichever is later.
  6. AUDIT OF RECORDS. The Seller agrees to allow State and Federal auditors and State agency staff, access to all the records to this contract, for audit, inspection, and monitoring of services. Such access will be during normal business hours, or by appointment.
  7. RISK OF LOSS. Notwithstanding any provisions hereof to the contrary, title to, and risk of loss of the goods shall remain with Seller until the goods are delivered at the F.O.B. point specified in this Order, or if no such point is specified, then when the goods are delivered to Buyer. However, if the goods are of an explosive, flammable, toxic or otherwise dangerous nature, Seller shall indemnify and hold Buyer harmless from and against any and all claims asserted against the Buyer on account of any personal injuries and/or property damages caused by the goods, or by the transportation thereof, prior to the completion of unloading at Buyer's point of delivery.
  8. WARRANTIES. In addition to all other warranties expressed or implied in law, Seller warrants that the goods and their packaging delivered hereunder will conform to all applicable specifications, drawings, samples, symbols or other descriptions furnished by Buyer and will be merchantable, of good material and workmanship, free from defects and sufficient for the particular purpose intended. Unless otherwise specified in this Order, the goods shall be new and not used or reconditioned. Seller further warrants that goods delivered hereunder will be free and clear of all security interests, liens, charges, restrictions or encumbrances whatsoever and that Seller will convey to Buyer good and marketable title to the goods. Buyer is relying on Seller's skill and judgment in selecting and providing goods specified hereunder. Seller shall indemnify and hold Buyer harmless from and against any claims for damages (personal property or other), losses demands, costs and expenses, including attorney's fees, arising from Seller's negligence or breach of its obligations under this Order. Warranties hereunder shall survive acceptance and run to Buyer its successors assigns and users of the goods.
  9. REMEDIES. In the event of Seller's breech of this agreement, Buyer may take any or all of the following actions, without limiting any of the rights or remedies available to Buyer by law; (1) require Seller to repair or replace such goods, and upon Seller's failure to do so, repair or replace the same at Seller's expense; (2) reject any shipment or delivery containing defective or non-conforming goods and return for credit or replacement at Buyer's option said return to be made at Seller's expense and risk; (3) return quantities in excess of variation specified on this Order at Seller's expense and risk; (4) cancel any outstanding deliveries hereunder, and treat such breach by Seller as Seller's repudiation of this agreement.
  10. PATENTS. It is anticipated that the goods will be possessed, used and/or sold by Buyer. If by reason of any of these acts a claim or action is brought or threatened for infringement of any patents, trademark, trade name or copyright with regards to the goods, their manufacture or use, Seller shall at its own expense indemnify and hold Buyer harmless from any such claims or actions and any damages or expenses whatsoever resulting therefrom.
  11. LABOR. Seller shall perform all work under this Order as an independent contractor and not as an agent or employee of Buyer. If this Order covers the performance of labor or services by Seller on Buyer's premises, Seller shall indemnify and hold Buyer harmless from and against all claims and liability and property insurance in amounts acceptable to Buyer insuring against said injuries, deaths and damages, and shall furnish Buyer with insurer's certificates evidencing such insurance, which certificates shall provide that the coverage evidenced thereby shall not be canceled except upon 30 days prior notice to Buyer, unless otherwise agreed in writing when labor or services are performed or furnished under this Order by Seller.
  12. TAXES. Buyer certifies that the purchase made by this Order is exempt from state sales and use tax and from federal excise tax; Buyer certifies that the goods are to be paid, in whole or in part, with government funds and will be used in the exercise of essential government functions. If the goods purchased are construction materials and unless otherwise indicated on the face hereof, Buyer certifies that these materials will be installed or converted to real property by employees of Buyer and are therefore, exempt from Utah state sales and use tax. Seller shall not include within the price herein any sales, use or excise tax from which Buyer is exempt.
  13. GOVERNING LAW AND VENUE. This Order and the agreement between the parties evidenced herby are deemed to be made in the State of Utah and shall in all respects be construed and governed by the laws of that state. Venue for resolution of any dispute arising hereunder shall be within a Utah court of competent jurisdiction selected by Buyer. Disputes (FAR 52.212-4). This contract is subject to the Contract Disputes Act of 1978, as amended (41 U.S.C. 601-613). Failure of the parties to this contract to reach agreement on any request for equitable adjustment, claim, appeal or action arising under or relating to this contract shall be a dispute to be resolved in accordance with the clause at FAR 52.233-1, Disputes, which is incorporated herein by reference. The Contractor shall proceed diligently with performance of this contract, pending final resolution of any dispute arising under the contract.
  14. COMPLIANCE WITH LAW. Seller warrants that it will comply with all federal, state, and local laws, ordinances, rules and regulations applicable to its performance under this Order, including, but not limited to, (1) applicable Equal Opportunity clauses of the Civil Rights Act of 1964, (2) Executive Order 11246 dated September 24, 1965, (3) 41 C.F.R. §60-300.5(a) and 41 C.F.R. §60-741.5(a); This contractor and subcontractor shall abide by the requirements of 41 C.F.R. §60-300.5(a) and 41 C.F.R. §60-741.5(a). These regulations prohibit discrimination against (1) qualified protected veterans and (2) qualified individuals on the basis of disability, and requires affirmative action by covered prime contractors and subcontractors to employ and advance in employment qualified protected veterans and qualified individuals with disabilities, (4) and when relevant, those laws and regulations prescribed for performance under federal contracts, subcontract, and grants (ref. Federal Acquisition Regulations) appropriate to the Seller and this Order.
  15. WAIVER AND ASSIGNMENT. The waiver of any term or condition hereof shall not be construed to be a waiver of any other term or condition, nor shall such waiver be deemed a waiver of a subsequent breach of the same term or condition. This Order may be assigned by Seller only upon prior written approval of Buyer.
  16. FORCE MAJEURE. Neither party to this contract will be held responsible for delay or default caused by fire, riot, acts of God and/or war which is beyond that party's reasonable control. USURF may terminate this contract, for convenience, after determining such delay or default will reasonably prevent successful performance of the contract.
  17. TERMINATION FOR THE CONVENIENCE OF USU Research Foundation. The Purchasing Agent, by written notice, may terminate this contract, in whole or in part, when it is in USURF's best interest. If this Order is terminated, the rights duties & obligations of the parties, including compensation to the seller shall be in accordance with part 49 of the FAR in effect on the date of this contract (ref FAR 52.249-2).
  18. TERMINATION FOR THE CONVENIENCE OF USURF. The Purchasing Agent, by written notice, may terminate this contract, in whole or in part, when it is in USURF's best interest. If this Order is terminated, the rights duties & obligations of the parties, including compensation to the seller shall be in accordance with part 49 of the FAR in effect on the date of this contract (ref FAR 52.249-2).
  19. DEBARMENT AND SUSPENSION. (E.O.'s 12549 & 12689) Recipients shall fully comply with the requirements stipulated in Subpart C of 45 CFR 620, entitled "Responsibilities of Participants Regarding Transactions". The recipient is responsible for ensuring that any lower tier covered transaction, as described in Subpart B of 45 CFR 620, entitled "Covered Transactions", includes a term or condition requiring compliance with Subpart C. The recipient also is responsible for further requiring the inclusion of a similar term or condition in any subsequent lower tier covered transaction. The recipient acknowledges that failing to disclose the information required under 45 CFR 620.335 may result in the termination of the award, or pursuance of other available remedies, including suspension and debarment. Recipients may access the Excluded Parties List System at www.sam.gov.
  20. ADDITIONAL COMPLIANCES. This contract incorporates by reference with the same force and effect as if they were given in full text, the following cited Federal Acquisition Regulation (FAR) clauses, applicable according to their terms. The full text of these clauses may be found at Title 48 of the Code of Federal Regulations (CFR). For all commercial acquisitions, the following Federal Acquisition clauses are applicable, according to their terms;
    1. 52.203-7 Anti-Kickback Procedures
    2. 52.203-12 Limitation on Payments to Influence Certain Federal Transactions
    3. 52.203-13 Contractor Code of Business Ethics and Conduct
    4. 52.203-15 Whistleblower Protections Under the American Recovery and Reinvestment Act of 2009, if funded under the Recovery Act
    5. 52.219-8 Utilization of Small Business Concerns
    6. 52.222-26 Equal Opportunity (E.O. 11246)
    7. 52.222-35 Equal Opportunity for Veterans
    8. 52.222-36 Affirmative Action for Workers with Disabilities
    9. 52.222-40 Notification of Employee Rights Under the National Labor Relations Act (E.O. 13496)
    10. 52.222-50 Combating Trafficking in Persons
    11. 52.225-26 Contractors Performing Private Security Functions Outside the United States
    12. 52.244-6 Subcontracts for Commercial Items
    13. 52.247-64 Preference for Privately Owned U.S. Flag Commercial Vessels
    14. Appendix A to Part 215 Contract Provisions of OMB Circular A-110 are included by reference.

Reference Form QF0610