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<br />PURCHASE ORDER TERMS AND CONDITIONS <br /> <br />1. Offer/Acceptance. If this purchase order refers to your bid or proposal, then this purchase order is an ACCEPTANCE of <br />your OFFER TO SELL in accordance with the terms and conditions of the IFBIRFP, as stated in your bid. If no bid or <br />proposal is referenced, the purchase order is an OFFER TO BUY, subject to your acceptance, which must be demonstrated <br />by either your pertormance of the purchase order or by a formal acknowledgment in writing, Any COUNTER-OFFER TO <br />SELL is automatically construed as a CANCELLATION of this purchase order unless a change order IS issued accepting a <br />counter-offer, In the event vendor form(s) or part(s) of forms are included in, or as an attachment to, any bid, proposal, <br />offer, acknowledgment, or otherwise, vendor agrees that, in the event of Inconsistencies or contradictions, the terms and <br />condilions of the solicitation document and this purchase order shall supersede and control over those contained in the <br />vendor's form(s) regardless of any statement to the contrary in a vendor form(s). Unless the purchasing agent specifically <br />agrees In writing through overt referonce or other express written indication of assent, terms and conditions on vendor forms <br />regarding choice of law, venue, warranty disclaimer or exclusion, indemnification or limitation of liability shall be of no effecl. <br /> <br />2, Safety Information, All chemicals, equipment and matenals proposed and/or used in the pertormance of this purchase <br />order must conform to the standards required by the William-Steiger Occupalional Safety and Health Act of 1970. Bidders <br />must fumlsh all Material Safety Data Sheets (MSDS) for any regulated chemicals, equipment or hazardous matenals at the <br />time of delivery, <br /> <br />3, Changes, The vendor agrees to furnish the products andlor services in strict accordance with the specifications, and at <br />the pnce set forth for each item, Nothing in the purchase order may be added to, modified, superseded or otherwise allered <br />except in writing signed by an authorized representative of the state agency purchasing office and acknowledged by the <br />vendor. Each shipment received or service pertormed shall be only upon the terms contained in the purchase order, <br />notwithstanding any terms that may be contained in any invoice or other act of vendor other than acknowledgment of a <br />written change order to the purchase order. <br /> <br />4, Delivery, Unless otherwise specified, in the solicitation or in this order, delivery shall be F,O.B. destination, In its <br />acceptance of any quotation offer, the state agency is relying on the promised delivery date, installation, or service <br />pertormance as material and basic to its acceptance. In the event of vendors failure to deliver or pertorm as and when <br />promised, the state agency reserves the right to cancel its order, or any part thereof, without prejudice to its other rights, <br />and vendor agrees that the state agency may return all or part of any shipment so made, and may charge vendor with any <br />loss or expense sustained as a result of such failure to deliver or pertorm as promised, Time IS of the essence. <br /> <br />5, Rights In Data, Documents, and Computer Software or Other Intellectual Property (State Ownership). Unless otherwise <br />agreed in writing, any software, research, reports, studies, data, photographs, negatives or other documents, drawings or <br />materials delivered by vendor in the pertormance of its obligations under this purchase order shall be the exclusive property <br />of the State. The ownership rights described herein shall include, but nol be limited to, the nght to copy, publiSh, display, <br />transfer, prepare derivative works, or otherwise use the worl<s. <br /> <br />6, Quality, The State will be the sole judge in determining "equals" with regard to quelity, price and pertormance. All <br />products delivered shall be newly manufactured and of the manufacturer's current madel, unless olherwise speCified. <br /> <br />7, Warranties. All provisions and remedies of the Uniform Commercial Code relating to both Implied and expressed <br />warranties are herewith referred to and made a part of these Terms end Conditions and are In addition to any warranties <br />stipulated In the specifications, <br /> <br />8. Inspection and Acceptance, Final acceptance is dependent upon completion of all applicable inspection procedures. <br />Should the products or services fail to meet any inspection requirements the State may exercise all of its rights, including <br />those provided in the Uniform Commercial Code. In the case of services, the State reserves the nght to inspect services <br />provided under this contract at all reasonable times and places, 'Services' as used in this clause includes selVices <br />pertormed or tangible material produced or delivered in the pertormance of selVices. If any of the selVices do not conform <br />with purchase order requirements, Ihe State may require the vendor to pertorm the services again in conformity with <br />purchase order requirements, with no additional payment. When defecls in the quality or quentity of service cannot be <br />corrected by re-pertormance, the State mey (1) require the vendor to take necessary action to ensure thatlhe future <br />pertormance conforms '0 purchase order requirements and (2) equitably reduce the payment due the vendor to reftecl the <br />reduced value of the services pertormed. These remedies in no way limit the remedies available to Ihe State in the <br />termination provisions of this purchase order, or remedies otherwise available at lew. <br /> <br />g, Cash Discount The cash discount period will start from date of receipt of acceptable invoice, or from date of receipt of <br />acceptable productslservlces at the specified destination by an authorized agency representative, whichever is later, <br /> <br />10. Taxes, The state agency, as purchaser, is exempt from all federal excise taxes under Chapter 32 of the Inlernel <br />Revenue Code [No, 84-730123K) and from all state and locai government use taxes [C.R.S. 39- 2B-114(a} and 203, as <br />amended]. Tax exempl numbers for the specific slate agency mey be found elsewhere in this document Vendor is hereby <br />notified that when materials are purchased for the benefit of the State, such exemptions epply except that in certain political <br />subdivisions (for example. City of Denver) the vendor may be required to pay sales or use taxes even though the ultimate <br />product or service is provided to the State. These seles or use taxes will not be reimbursed by the State, <br /> <br />11, Prompt Payment. State law and regulations provide that vendors will be paid within forty-five days after receipt of <br />products or services and a correct notice of emount due, unless otherwise agreed to by contract or special conditions of the <br />purchase order. A Slate liability not paid within forty-five days is considered delinquent and, unless otherwise agreed to, <br />interest on the unpaid balance shall be paid beginning with the forty-sixth day at the rate of one percent per month on the <br />unpaid balance until paid in full. A liability shall nol arise if a good faith dispute exists as to Ihe agency's obligation to pay all <br />or a portion of the liability, Vendors ehall invoice the State separately for interest on delinquent amounts due. The billing <br />shall reference the delinquent payment, the number of days interest to be paid and the applicable interest rate. [Ref. See <br />24-30-202(24), C.R,S" as amended,) <br /> <br />12, Vendor Offset. Pursuant to CRS 24-3()"202,4, as amended, the State Conlroller mey withhold payment for debts owed <br />to slate agencies under the vendor offset intercepl system for: (a) unpaid child support debt or child support arrearages; (b) <br />unpaid balance of tax, accrued interest, or other charges specified in Article 21, Title 39, CRS; (c) unpaid loans due to the <br />Student Loan Division of the Department of Higher Educalion; (d) owed amounts required to be paid to the unemploymenl <br />compensation fund; and (e) other unpaid debts owing to the state or any agency thereof, the amount of which is found to be <br />oWing as a result of final agency determination or reduced to judgment as certified by the State Controller, <br /> <br />13, Asslgnmenl and Successors; Antitrust Ciaims. The vendor shall not assign rights or delegate duties under this <br />purchase order, or subcontract any part of Ihe pertormance required under the purchase order, without the express, wnlten <br />consent 01 the State, which shall not be unreasonably withheld, This purchase order shall inure to the benefit of and be <br />binding upon Ihe parties hereto and the" respective successors and assigns. Assignment of accounts receivable may be <br />made only wilh wrillen notice furnished to the purchasing agency or institution, <br /> <br />14, Indemmlication. In the event any article sold or delivered under this purchase order IS covered by any patent, copyright, <br />trademark, or applicallon therefor, the vendor will indemnify and hold harmless the State of Colorado from any and all loss, <br />liability, cost, expenses and legal fees incurred on account of any claims, legal acllons, or judgments arising out of <br />manufacture, sale or use 01 such article in violation, Infringement or the like of nghls under such patent, copyrighl, <br />trademark or application. If this purchase order IS for services, to the extent authorized by law, the vendor shall indemnify, <br />save, and hold harmless the State, its employees and agenls, against any and all claims, damages, liability and court <br />awards including costs, expenses, and attorney fees Incurred as a result of any act or omission by the vendor, or its <br />employees, agents, subcontraclors or assignees arising out of or in connection with pertormance of services ordered by thiS <br />purchase order <br /> <br />395-30.55-0159/395-30-55-0233 (R 5/99) <br /> <br />15. INDEPENDENT CONTRACTOR. THE VENDOR SHALL PERFORM ITS DUTIES HEREUNDER AS AN INDEPENDENT <br />CONTRACTOR AND NOT AS AN EMPLOYEE. NEITHER THE VENDOR NOR ANY AGENT OR EMPLOYEE OF THE <br />VENDOR SHALL BE OR SHALL BE DEEMED TO BE AN AGENT OR EMPl.OYEE OF THE STATE, VENDOR,SHALL PAY <br />WHEN DUE ALL REQUIRED EMPLOYMENT TAXES AND INCOME TAX WITHHOLDING INCLUDING ALL FEDERAL AND <br />STATE INCOME TAX AND LOCAL HEAD TAX ON ANY MONIES PAID PURSUANT TO THIS CONTRACT, VENDOR <br />ACKNOWLEDGES THAT THE VENDOR AND ITS EMPLOYEES ARE NOT ENTITLED TO UNEMPLOYMENT INSURANCE <br />BENEFITS UNLESS THE VENDOR OR A THIRD PARTY PROVIDES SUCH COVERAGE AND THAT THE STATE DOES NOT <br />PAY FOR OR OTHERWISE PROVIDE SUCH COVERAGE, VENDOR SHALL HAVE NO AUTHORIZATION EXPRESS OR <br />IMPLIED TO BIND THE STATE TO ANY AGREEMENTS, LIABILITY, OR UNDERSTANDING EXCEPT AS EXPRESSLY SET <br />FORTH HEREIN, VENDOR SHALL PROVIDE AND KEEP IN FORCE, WORKERS' COMPENSATION (AND SHOY; PROOF <br />OF SUCH INSURANCE UPON REQUEST) AND UNEMPLOYMENT COMPENSATION INSURANCE IN THE AMOUNTS <br />REQUIRED BY LAW, AND SHALL BE SOLELY RESPONSIBLE FOR THE ACTS OF VENDOR, ITS EMPLOYEES, AND <br />AGENTS. <br /> <br />16, Communication, All communications, including reports, notices, and advice of any nature, concerning administration of this <br />purchase order, prepared by vendor for the state agency's use, must be fumished solely to the Purchasing Agent within the <br />agency purchasing office, <br /> <br />17. Compliance with Laws. Vendor agrees to comply with all applicable federal and state laws, regulations and policies, as <br />amended, including Ihose regarding diSCrimination, unfa" labor practices, anti-kick-back and collusion, <br /> <br />18. Amencans with Disabilities Act (ADA) Requirements, "this solicitation contemplates the provision of slate services to the <br />public, the vendor shall, In addition to any other requirements under Title 11 of the Americans with Disabilities Act. comply with <br />the Title 11 reqUirements of the Americans wilh Disabilities Act regarding the acceSSibility of the Stale's services and programs, <br />as an explicit requirement The vendor assures that, at all times during the pertormance of any resulting contract, no qualified <br />indiVidual with a disability shall, by reason of that disability, be excluded from partiCipation in, or be denied benefits of, selVlces, <br />programs, or activities pertormed by the vendor for the benefit of the State, ' <br /> <br />19. Insurance The vendor shall obtain, and maintain at all limes during the term of this purchase order, insurance as specified <br />In the solicitation or order, and shall prOVide proof of such coverage, <br /> <br />20. Termination For DefaulUCause. <br />a, Except as otherwise agreed, the Uniform Commercial Code shall govern in the case of transactions in goods. In the <br />case of services, if the vendor refuses or fails to bmely pertorm any of the provisions of Ihis purchase order, with such <br />diligence as will ensure its completion within the time specified in this purchase order, the Purchasing Agent may notify the <br />vendor in writing of Ihe non-pertormance, and if not promptly corrected within the time specified, such officer may terminate <br />the vendo(s right to proceed with the purchase order or such part of the purchase order as to which there has been delay <br />or a failure to properly pertorm. The vendor shall continue pertormance of the purchase order to the extent It is not <br />terminated and shall be liable for excess cosls incurred In procuring similar goods or servicee eleewhere. Paymenl for <br />completed selVices pertormed and accepled shell be at the purchase order price. <br /> <br />b. In the case of remedies exercised under this paragraph for services, or analogous remedies exercised under the Uniform <br />Commercial Code for transactions in goods, the purchasing agency may wilhhold amounts due to the vendor as the <br />Purchasing Agent deems to be necessary to reimburse the purchasing agency for the excess costs incurred in curing, <br />completing or procuring similar goods and services. <br /> <br />c, In the case of either transactions in goods or services, the vendor shall not be in default by reason of any failure in <br />pertormance of this purchase order in accordance with Its terms if such failure arises out of acts of God; acts of the public <br />enemy; acte of the State and any governmental entity in its sovereign or contractual capacity; fires; ftoods; epidemiCS; <br />quaranline reslnctions; strikes or other labor disputes; freight embargoes; or unusually severe weather. <br /> <br />d. If after rejection, revocation, or other termination of the vendo(s right to proceed under the provisions of the Uniform <br />Commercial Code (in the case of .transacbons in goods) or this clause (in the case of services), it is determined for any <br />reason that the vendor was not in default under the provisions of this clause, or thatlhe delay was excusable, the rights and <br />obligations of the parties shall be the same as if the notice of terminalion had been issued pursuant to the termination for <br />convenience clause, <br /> <br />21. Terminabon For Convenience. <br /> <br />a, Cancellation Pnor to Contract Formation. When this purchase order is not accepted by wrillen acknowledgment, this <br />purchase order may be canceied by written or oral nollce to the vendor prior to shipment of goodS or beginning of <br />pertormence of services, <br /> <br />b. Termination After Contract Formation. Unless otherwise agreed in wnling, in addition to Ihe rights and remedies <br />governing transections in goods in the Uniform Commercial Code, the Purchasing Agent may when the Interests of the <br />purchasing agency so require terminale this purchase order in whole or In pan, for the convenience of the agency or <br />institution. The Purchasing Agent shall give written notice of the termination to the vendor specifying the part of the <br />purchase order lerminated and when terminebon becomes effective. Upon receipt of the notice of terminetion, the vendor <br />shall Incur no further obligations except to the extent necessary to mitigate costs of pertormance. In the case of services or <br />specially manufactured goods, the Stete shall pay reasoneble settlement expenses, the contract price or rale for supplies <br />and services delivered and accepted, the reasonable costs of pertormance on unaccepted supplies and services, and a <br />reesonable profit for that unacdepted work, in accordance with the cost principles promulgated in accordance wilh section <br />24-107-101, Colorado Revised Statutes, as amended, In the case of existing goods, the State shall pay reasoneble <br />settlement expenses, the contract pnce for goods delivered and accepled, reesonable costs incurred in preparation for <br />delivery of the undelivered goods, and a reasonable profit for that preparatory work. The amount of the terminabon liability <br />under thiS paragraph shall not exceed the amount of the purChase order price plus a reasonable cost for selllement <br />expenses, The vendor agrees 10 submil a termination proposal es well as reasonable supporting documentabon, cost and <br />pricing deta, and a certificalion required by section 24-108-101, C.R.S" as amended, upon request of the Purchasing <br />Agent <br /> <br />22. Purchase Order Approval. This purchase order shall not be deemed valid unless it is executed by Ihe Purchasing Agent for <br />the purchasing state agency or institution. The State shall have no responsibility or liability for products or services delivered or <br />pertormed prior to proper execution hereof, <br /> <br />23. Fund Availability; Federal Funds Contingency. Financlai obligations of the State of Colorado payable after the current <br />fiscal year are conbngenl upon funds for Ihal purpose being appropriated, budgeted and otherwise made available, If this <br />purchase order is funded in whole or in part with federal funds, thiS purchase order is subject 10 and contingent upon the <br />conllnuing availability of federal funds for the purposes hereof. If this purchase order contemplales the purchase of goods to <br />be delivered in a single Instaliment, the State represents Ihat it has sel aside sufficient funds to make payment under this <br />purchase order in accordance with its lerms, <br /> <br />24. Choice of Law, This purchase order is made in the State of Colorado, The laws of the State of Colorado shall govem In <br />connecbon With the formalion, pertormance and the legal enforcement of thiS purchase order. Unless otherwise specified in the <br />soliCitation or this order, venue for any judicial action anslng out of or In connection with thiS purchase order shall be in Denver, <br />Colorado. Vendor shall exhaust administrative remedies in ~ 24.109-106, Colorado ReVised Statutes, as amended, prior 10 <br />commencing any judicial action against the Stale, <br /> <br />25, Uniform Commercial Code, All references in this purchase order to the Uniform CommerCial Code shall mean the Uniform <br />Commercial Code as adopted by the State of Colorado al Tille 4, Colorado Revised Statutes, as amended, <br /> <br />28, Non-dlscrimination, The vendor agrees to comply With Ihe letter and spinl of all applicable slate and federal laws <br />respecting discnmination and unfair employment practices, <br />