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PURCHASE ORDER TERMS AND CONDITIONS 1, Offer/Acceplance. If Ihls purchase order refers to your bid or proposal. lhen Ihis purthase order is an ACCEPTANCE of vour OFFER TO SELL", accordance 'Nllh Ihe lerms and conditIOns of lhe IFBIRFP, as slaled In your bid. If no bid or proposal IS referenced. Ihe purchase order IS an OFFER TO BUY, subject 10 lOur acceptance. which musl be del11Ons~aled by either your performance of the purthese order or by a lormal acknowledgment In WTlbng. Any COUNTER-OFFER TO SELL ,s automalitBlly construad as a CANCELLATION o[ IhIS purchase order unless a change order IS ISSued accepting a counler-offer, In the event vendor form(5) or part(s) of [arms are included In. or as an allachmentlo. any bid. proposal. offer. acknow!edgment. or Otherwise. vendor agrees Ihat. In lhe event of Inconsistencies or conlradictlons, the lerms and cond,tlOns of the sollCltallon document and Ihls purchase order shall supersede and control over Ihose conlalOed In lhe vendors 'orm(s) ragardless of any slatementlo Ihe contral'! In a vendor form(s). Unless Ihe purthasing agent speCifically agrees In wnllng through overt reference or other express wntten Indication of assent. lerms and conditions on vendor forms regarding cnalCe of law. venue. warranty dISclaImer or exclUSIOn. Indemnification or limllatlOn of liability shall be of no effecl. 2, Safety InlormatlOn. All chemicals. eqUipment and malenals proposed andlor used in the performance ollhls purchase order musl conform 10 Ihe slandards required by the Wllllam-Ste~er Occupational Safety and Heallh Act of 1970, Bidders musl fumlsh ail Material Safety Data Sheels (MSDS) for any ragulated chemiCals. equlpmenl or hezardous matenals atlhe lime of delivel'!, 3. Changes. The vendor agrees to furnish the products and/or services In slnct accordance Wilh the specifications. and at Ihe pnce set (orth (or each item, Nothing In the purchase order may be added to. modified, superseded or otherwise allered except In wnling signed by an aulhorlzed represenlalive of the state agency purthaSlng office and acknowledged by the vendor, Each shipment received or service performed shall be only upon the terms conlelned In the purchase order. notwllhslandlng any terms Ihat may be conlalned in any inVOice or other act of vendor other than acknowledgment of a wntten change order to Ihe purchase order, 4. Delivel'!, Unless olherwlse speCified, in Ihe soliCitation or in this order, delivel'! shall be F,O.B, deslinalion. In its acceptance of any quolallon offer, Ihe state agency IS relYing on Ihe promised delivel'! date, installalion, or serviCe performance as matenal and basic to its acceptance. In the event of vendor's faMe 10 deliver or perform as and when promised, the state agency reserves Ihe nghl to cancel Its order, or any part thereof, wllhout prejudice 10 its olher nghls, and vendor agrees that the slate agency may return all or part of any shipment so made, and may charge vendor wllh any losS or expense sustained as a 'e5ull of such failure to deiiver or perform as promised. Time IS of Iha essence. 5. Rights In Data. Documents, and Computer Software or Olher tntellectual Property (State Ownership), Unless otherwise agreed In wrillng. any software, research, reports, studies, data, pholographs, negatives or other documanls, draWings or malenals delivered by vendor In the performance of ilS obligalions under thIS purthase order shall be Ihe exclUSIVe property of the Stale, The ownership nghts descnbed herein shalllnelude, but not be limited to, lhe nghtto copy, publish, display, transfer. prepare derivalive works, or otherwise use the works. 6, Quality. The Slale will be the SOle judge In delermining 'equals' With regard to quaiity, pnce and performance. All products delivered shall be newly manufactured and of the manufacturer's current model, unless othelWise speCified. 7. Warranlles, All proVisions and remedies of the Uniform Commercial Code relating to both implied and expressed warranlies are herewilh referred to and made a part of these Terms and Conditions end are 10 addilion 10 any werranlies slipulated In the specificalions. B Inspection and Acceptance. Finel acceptance IS dependent upon completion of all applicable inspection procedures. Should the products or services fail to meet any IOspecbon requirements the State mey exertise all of its righls, including those provided in Ihe Uniform Commartlal Code. In the case of services, the State reserves Ihe nghtlo IOspect services prOVided under Ihis contracl al all reasonable times and places. .Services' as used In Ihls clause IOeludes services performed or langlble matenal produced or delivered In the performence of serviceS. If any of the servicas do not conform With purchase order requirements, Ihe State may require the vendor 10 perform Ihe seMceS again in conformity with purchase order requirements, with no additional peyment. When defects In Ihe quality or quantity of service cannot be co,,"cted by re-performence, Ihe State may (1) reqUire the vendor to take necessal'! action to ensure that the fulure performance conforms 'a purchase order reqUirements and (2) equitably reduce the oaymenl due lhe vendor lo reflect the reducad value of the services performed. These remedias in no wey limit lhe remedies ava~able to Ihe Stale in Ihe termination prOVisions of this purchase order, or remedies othelWlse available at law. 9. Cash Discount. The cash discounl period Will start from dale of receipt of acceptable invoice, or from date of receipt of acceplable products/seMces althe specified destlOalion by an aulhorized agency representative, whichever is leter, 10. Taxes. The state agency, as purthaser, is exempt from all federel excise laxes under Chapter 32 of the Internal Revenue Coda [No, 84-7301231<] and from all slate and local government use taxes [C.R.S. 39- 26-114(a) and 203, as amended]. Tax exempt numbers for the specific slate agency mey be found elsewhere in this document. Vendor IS hereby notified that when matenals are purthesed for the benefil of the State, such exemptions apply except that in certain politicel SUbdIVISions (for example _ City of Denver)lhe vendor may be required 10 pay sales or use taxes even Ihough the ullimate product or seNice is provided to the State. These sales or use taxas will nol be reimbursed by the State. 11. Prompt Paymant. Slate law and regulations provide Ihat vendors wiU be paid within forty-five days after receipt of products or services and a correct notice of amount due, unlass otherwise agreed lo by conlracl or special condillOlls o( the purchase order. A Slate liability not paid Within forty-five days IS conSidered delinquent and, unless otherwise agreed to, interest on Ihe unpaid balance shali be paid beginning With Ihe forty-sixth day allhe rate of one percent per month on lhe unpaid balance until paid In full. A liability shall not anse if a good faith dispute exists as to Ihe agency's obligation 10 pay all or a portion of the liability. Vendors shall invoice the Stele separately for interesl on delinquenl amounts due, The billing shall reference the delinquent payment, the number of days IOtarest to be paid and the applicable [nterest rate. (Ref. Sac 24.30.202(24), C.R.S., as amanded.] 12. Vendor Offset. Pursuantlo CRS 24.30-202,4, as emended, the Slate Controller may Withhold payment for debts owed to state agencies under Ihe vendor offset inlercept system for. (a) unpaid child support debt or child support arrearages; (b) unpaid balance of tax, accrued ,"teresi, or othar charges specified in Article 21, Title 39, CRS; Ic) unpaid loans due to the Studenl Loan DiviSion of the Departmenl of Higher Education; (d) owed amounts required 10 be paid lo the unemployment compensation fund; and (e) other unpaid debts OWing to the stala dr any agency thereof, Ihe amount of which is found 10 be OWing as a result of final agency determinalion or reduced to judgmenl as certified by the Slate Controller, 13, Asslgnmenl and Successors; Antitrust Cialms. The vendor shall not asstgn rlghls or delegate duties under thiS purchase order, or subcontract any part of Ihe performance required under the purchese order. without the express, wntten consent of Ihe Stale, which shall not be unreasonably withheld. This purchase order shall IOure to the benelrt o( and be binding upon Ihe parties hereto and thell respective successors and assigns, Asslgnmenl of accounts receivable may be made only wllh wnllen notice fumlshed to Ihe purchaSing agency or InslMlon. 14, Indemnlficallon, In Ihe event any articie sold or delivered under thiS purthase order ,s covered by any patent. copynght, Irademark, or applicallon therefor. the vendor wiIIlndemnlly and hoid harmless tha State of Colorado from any and all 'oss, liability, cost, expenses and legal lees incurred on account of any cleims, lagal aClions, or Judgments anSlng out of manufacture. sale or use of such artlcie in violallon, Infnngement or the like o( ri9hlS under such paleni, copynght, trademarx or application, If Ihls purchase order IS for services, lo Ihe extent authorized by 'aw. the vendor shall,ndemnlfy, save, and hlld harmless the Slate, lis employees and agents, against any and all claims. damages. liability and court awards Including costs. expenses, and altorney fee5 Incurred as a result of any act or omission by the verdor, or Its employees, agenls, subcontractors or assignees anslOg oul of or In connection wllh performence of services ordered by thiS purchase order. 395-30.55-0159 1 395-30-55-0233 (R 5199) 15. tNDEPENDENT CONTRACTOR. THE VENDOR SHALL PERFORM ITS DUTieS HEREUNDER AS AN INDEPENDENT CONTRACTOR AND NOT AS AN EMPLOYEE, NEITHER THE VENDOR NOR ANY AGENT OR EMPLOYEE OF THE VENDOR SHALL BE OR SHALL BE DEEMED TO BE AN AGENT OR EMPLOYEE OF THE STATE. VENDOR SHALL PAY WHEN DUE ALL REQUIRED EMPLOYMENT TAXES AND INCOME TAX WITHHOLDING INCLUDING ALL FEDERAL AND STATE INCOME TAX AND LOCAL HEAD TAX ON ANY MONIES PAID PURSUANT TO THIS CONTRACT. VENDOR ACKNOWLEDGES THAT THE VENDOR AND ITS EMPLOYEES ARE NOT ENTITLED TO UNEMPLOYMENT INSURANCE BENEFITS UNLESS THE VENDOR OR A THIRD PARTY PROVIOES SUCH COVERAGE AND THAT THE STATE DOES NOT PAY FOR OR OTHERWISE PROVIDE SUCH COVERAGE. VENDOR SHALL HAVE NO AUTHORIZATION EXPRESS OR IMPLIED TO BIND THE STATE TO ANY AGREEMENTS, LIABILITY. OR UNDERSTANDING EXCEPT AS EXPRESSLY SET FORTH HEREIN VENDOR SHALL PROVIDE AND KEEP IN FORCE. WORKERS' COMPENSATION lAND SHOW PROOF OF SUCH INSURANCE UPON REQUEST) AND UNEMPLOYMENT COMPENSATION INSURANCE IN THE AMOUNTS REQUIRED BY LAW. AND SHALL BE SDLEL Y RESPONSIBLE FOR THE ACTS OF VENDOR. ITS EMPLOYEES, AND AGENTS. 16, Communication. All communlcallons. Including reports, nollceS, and advice of any nature, concerning administration of thiS purthase order. prepared by vendor for the slate agency's use. musl be fumished so"'y 10 the PurchaSing Agenl Within the agency purchaSing office. 17, Compliance with Laws, Vendor agrees to comply With all appilcab" (ederal and slate laws, regulations and poliCies, as amended, including Ihose regarding dlscnmlOalion. unfall labor practices, anli-kick-back and collUSIOn, I B, Amencans with Disabilities Act (ADA) Requlremenls If this soliCitatIOn contemplates Ihe proviSIOn of state seNices 10 the pubilc, the vendor shall. In addition to any oihar reqUirements under Hie 11 of Ihe Amencans With Dlsabilihes Acl, comply With Ihe Title 11 requirements of Ihe Americans With Disabiillies Act ragarding the acceSSibility of the Slate's serviceS and programs, as an exphclt requirement. The vendor assures that, al all limes during Ihe performance of any resulling contract. no qualified ,nd,vlduei Wilh a disability shall, by reason of Ihat dlsaOlllty, be excluded from perticlpallon In, or be denied benefils of. seNiC9S, programs, or actiVitlas performad by Ihe vandor for the benefit of the State. 19. Insurance The vendor shall obtain, and malOtaln at all times dunng Ihe lerm of Ihis purchase order. Insurance as specifiad In the solicitation or order, and shall prOVide proof of such coverage. 20. Termmalion For Dafault/Causa. a, Except as otherwise agreed, the Uniform Commercal Code shall govern in the case of transaclions in goods, In the case of seNices, If Ihe vendor refuses or falls to Ilmely perform eny of the proViSIOns of this purthase order, Wilh such diligence es Will ensure its complelion Within Iha time specified in Ihis purchase order. lhe PurchaSing Agenl may notify lhe vendor in wriling of Ihe non.performance, and if not promptly corrected wllhm the lime speCified, such officer may terminate Ihe vendor's nght to proceed wilh Ihe purchase order or such part of the purchase order as to which there has been delay or a failure to properly perform. The vendor shell conlinue performance of Ihe purthase order 10 the exlent it IS not terminated and shall be liable for excess costs incurred In procurmg Similar goods or services elsewhere. paymenl br completed selVlces performed and accepted shall be at the purchase order pnce. b. In Ihe case of remedies exerCised undar Ihis paragraph for services, or enalogous remedies exertised under Ihe Uniform Commertial Code for lransectlons in goods, Ihe purchaSing agency mey withhold amounts due to the vendor as the Purchasing Agent deems to be necessel'! to reimburse Ihe purthaslOg agency for the excess costs incurred in cunng, completing or procuring similar goods and services. ) c. tn Ihe case of either transactions in goodS or services, the vendor shell not be In default by reason of any failure In performance of this purchase order In accordance wilh ItS terms if such failure enses oul of acts of God; acts of the public enemy; acts of Ihe State and any governmental entity in ils sovereign or conlraclual capacity; fires; floods; epidemics: quarantine restncbons; strikes or other lebor disputes; freight embargoes; or unusually severe weather. d. If after rejection, revocation, or other termination o( the vendors righl to proceed under lhe provisions of the Uniform Commercial Code (m the case of transactions in goods) or Ihls cleuse (In the case of services), illS determmed for any reason Ihat the vendor was not in defeu~ under the proVisions of this clause, or Ihat Ihe delay was excusable, Ihe rights and obllgallOns of the parties shall be Ihe same as if the notice of termination had been issued pursuant to lhe termlOation for convenience clause. 21. Terminetlon For Convenience. a. Cancellation Prior to Conlract Formation. When Ihis purthase order is not accepted by written eCknowledgmenl, this purchase order may be canceled by written or oral nolice 10 Ihe vendor prior to shipment of goods or beginning of performance of serviceS. b. Termination After Contracl Formation. Unless otherwise egreed in wriling, in additIOn 10 the rights and remadies governing transaclions in goods in Ihe Uniform Commertlal Code, Ihe PurchaSing Agenl may when the interesls of Ihe purthaslng agency so require lermmale this purchase order 10 whole or in part. for Ihe conveniance of Ihe agency or insl1tulion. The Purchasing Agent shall give written notice o[ the termination to the vendor specifying the pert of the purchase order lermlnaled and when termination becomes effactive. Upon receipt of the nolice of terminetion, the vendor shaN Incur no further obligelions exceplto the extent necessary 10 mlllgate costs of performance. In lhe case of services or specially manufactured goods, the Stete shall pay reasonable senlemenl expenSe5. the conlrect pnce or rete for supplieS and services delivered and accepted, the reesonable costs of performance on unaccapted supplies and services, and a reasonable profil for that uneccepted work, in eccordance With the cost principles oromuigaled in accordance with section 24-107-101, COlOrado ReVised Statules, as amended, In Ihe case of eXisting goods, Ihe Slate shall pay reesonable settlement expenses, the contract price for goodS deilvered and accepted, reasonable costs incurred in preparalion for deliv8l)' of the undelivered goods, and a reasonable profit for thai preparatol'! work. The emount of the lermlnetion liability under Ihis paragraph shall nol exceed Ihe emount of Ihe purthase order price plus a reasoneble cosl for settlement expenses. The vendor agrees to submil a lermlnation proposal as well as reasonable supporting documentabon, cosl and pricing data, and a certificalion required by seclion 24-106-101, C.R.S., as amended, upon requesl of the Purchasing Agent. 22. Purchase Order Approval. ThIS purchase order shall not be deemed valid unless It IS executed by the Purchasing Agenl for the purchasing stale agency or institution. The Slate shall nave no responSibility or Iisbllity for prooucts or services delivered or performed pnar to proper execution hareof. 23. Fund Availability: Federal Funde Contingency. F,nanClal obligations of Ihe Slale of Colorado payable after lhe current fiscal year SIll conlingent upon funds for Ihat purpose being appropnaled. budgeted and othelWise made aveilable, If thiS purthase order Is funded in whole or In parf With federal funds, thiS purchase order IS subj8ctto and conllngent upon the conllOuing avallebllity of federai funds (or lhe purposes hereof. If this purchase order contemplstes the purchase of goods to be delivered in a single mstallmen!, the State represents that It hes set aside sufflcienl funds to make payment under this purchase order in accordance wllh Its terms, 24. Choice of Law. This purchase order IS made In Ihe Stele of Colorado. The laws of Ihe State of Colorado shall govern In connectIOn With the formellOn, performance and the lagal enforcement of thiS purthasa order. Unless otherwise speCified In the solicltalioo or thiS order, venue for any judlcla[ acllon anslng out of or 10 connection With thiS purchase order shall be In Denver. Colorado, Vendor shall exhaust administrative remed!es ,n ~ 24-109-106, Colorado ReVised Slalules, as amended. pnor to commencing eny judicial action against the Slate, 25. Uniform Commercial Code, All references In Ihls purchase ordar to Ihe Uniform CommerCial Code shall mean the Uniform Commeroal Code as adopted by the Slate of Coiorado al Hie 4, Colorado ReVised Slatutes. as amended. 26. Non-dlscnminelion, The vendor agrees to comply w,lh the letter and spinl of all applicable slate and federal laws re5pectlng dlscnmlnatlon and unfall employment praclices.