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PU~CHASE ORDER TERMS AND CONDITIONS 1. OfferlAcceptance. If this purchase order refers to your bid or proposal, then this purchase order is an ACCEPTANCE of your OFFER TO SELL in accordance with the terms and conditions of the IFBIRFP, as stated in your bid. If no bid or proposal is referenced, the purchase order is an OFFER TO BUY, subject to your acceptance, which must be demonstrated by either your penormance of the purchase order or by a formai acknowledgment in writing. Any COUNTER-OFFER TO SELL IS automalically construed as a CANCELLATION of this purchase order unless a change order IS issued accepting a counter-offer. In the event vendor form(s) or part(s) of forms are included in, or as an attachment to. any bid, proposal, offer, acknowledgment, or otherwise, vendor agrees that, in the event of inconsistencies or contradictions, the terms and conditions of the soliCitation document and this purchase order shall supersede and confrol over those contained in the vendor's form(s) regardless of any statement to the contrary in a vendor form(s). Unless the purchasing agent speCifically agrees in wnting through overt reference or other express written indication of assent, terms and conditions on vendor forms regarding chOice of law. venue. warranty dISclaimer or exclusion, Indemnification or limitation of liability shall be of no effect. 2, Safety Information, All chemicals, equipment and matenals proposed andlor used in the penormance of thIS purchase order must conform to the standards required by the William-Steiger Occupational Saiety and Health Act of 1970. Bidders must fumish all Material Safety Data Sheets (MSDS) for any regulated chemicals, eqUipment or hazardous matenals at the time of delivery, 3, Changes. The vendor agrees to furnish the products andlor services in stnct accordance with the specifications, and at the pnce set forth for each Item, Nothing In the purchase order may be added to, modified, superseded or otherwise altered except in wnting signed by an authorized representative of the state agency purchasing office and acknowledged by the vendor. Each shipment received or service penormed shall be only upon the terms contained in the purchase order, notwithstanding any terms that may be contained in any Invoice or other act of vendor other than aCknowledgment of a wrilten change order to the purchase order. 4, Delivery, Unless otherwISe specified, in the solicltalion or in this order, delivery shall be F.O.B. destination. In its acceptance of any quotation offer, the state agency is relying on Ihe promised delivery date, installation, or service penormance as matenal and basic to Its acceptance. In the event of vendor's failure to deliver or penorm as and when promised. the slate agency reserves the nght to cancel its order, or any part thereof, withoul prejudice to Its olher nghts, and vendor agrees that Ihe state agency may return all or part of any shipment so made, and may charge vendor ..th any loss or expense sustained as a result of such failure to deliver or penorm as promised. Time is of the essence. 5. Rights In Data. Documents, and Computer Software or Other Intellectual Property (State Ownership). Unless olherwise agreed In writing, any software, research, reports, studies, data, photographs, negatives or other documents, drawings or matenals delivered by vendor in Ihe penormance of Its obligalions under Ihis purchase order shall be the exclUSive property of Ihe Slale, The ownership rights described herein shall Include, but not be limited 10, Ihe nghtto copy, publish, display. Iransfer, prepare derivative works, or otherwise use Ihe works. 6, Quality. The State will be the sole judge in delermlning "equals' with regard to quality, price and performance. All products delivered shall be newly manufactured and of the manufaclurer's current model, unless otherwISe speCified, 7. Warranties. All provisions and remedies of the Uniform Commercial Code relating to both implied and expressed warranlies are herewrth referred to and made a part of these Terms and Conditions and are In addition to any werranlles stipulated In the specifications. 8, Inspection and Acceptance. Final acceplance Is dependent upon completion of all applicable inspection procedures. Should the products or services fail to meet any Inspection requirements the State may exerc,se all of ils nghts, including Ihose provided In the Uniform Commerciai Code. In the case of services, the Stale reserves the right to inspecl services prOVided under thIS contracl at all reasonable limes and places. 'Services' as used in this clause Includes services performed or tangible material produced or delivered in the penormance of services, If any of the services do not conform wilh purchase order requirements, Ihe Slale may require Ihe vendor to penorm the services again in conformity with purchase order requiremenls, with no additional payment When defecls in the quality or quantity of service cannot be co'recled by re-performance, the State may (1) reqUire the vendor to take necessary action 10 ensure that the future penormance conforms 10 purchase order reqUirements and (2) equitably reduce the paymenl due the vendor to reflect the reduced value of the services performed, These remedies in no way limit the remedies available to the Slate in Ihe termination provisions of this purchase order, or remedies otherwise available at law. 9. Cash Discount The cash discount period will start from date of receipt of acceptable invoice, or from date of receipt of acceptable products/services at the specifl8d destination by an authorized agency representative, whichever is later, 10. Taxes. The state agency, as purchaser, is exempt from all federai excise taxes under Chapter 32 of the Internal Revenue Code [No. 84-730123Kj and from all state and local government use taxes (CRS, 39- 26-114(a) and 203, as amended), Tax exempl numbers for the specmc slale agency may be found elsewhere in this document Vendor is hereby nolified Ihal when materials are purchased for Ihe benefit of the State, such exemptions apply except that in certain polilical subdivisions (for example - City of Denver) the vendor may be required 10 pay sales or use taxes even though Ihe ultimate product or service IS provided to the Stale, These sales or use taxes will not be reimbursed by the State, 11. Prompt Payment. Slate law and regulations provide that vendors will be paid within forty-five days after receipt of products or services and a correct notice of amounl due, unless olherwise agreed to by contract or special conditions of Ihe purchase order. A Slate liability not paid within forty-five days is conSidered delinquent and, unless olherwise agreed 10, interesl on Ihe unpaid balance shall be paid beginning wilh Ihe forty-sixlh day at the rate of one percent per month on the unpaid balance until paid In full, A liability shall nol arise if a good faith dispute exists as to the agency's obligalion to pay all or a portion of the liability. Vendors shall invoice lhe State separately for inlerest on delinquent amounts due. The billing shali raference the delinquent paymenl, Ihe number of days inlerest to be paid and the applicable inlerest rate. [Ref. Sec 24.30.202(24), C.R.S., as amended,) 12, Vendor Offset Pursuant to CRS 24-30-202.4, as amended, the State Controller may withhold payment for debts owed to slate agencies under Ihe vendor offset intercept system for: (a) unpaid child support debt or child support arrearages; (b) unpaid balance of tax, accrued Inleresl, or other charges specified in Article 21, Tille 39, CRS; (e) unpaid loans due to the Student Loan Division of the Department of Higher Education; (d) owed amounts required to be paid to the unemployment compensation fund; and (e) olher unpaid debts owing to the state or any agency Ihereof, Ihe amouni of which is found to be owing as a resull of final agency determination or reduced to judgmenl as certified by the Stale Controller, 13. ASSignment and Successors; Antitrust Claims. The vendor shall nol assign rights or delegate duties under thiS purchase order, or subcontract any part of the performance required under the purchase order, wilhout the express, wntten consent of the State, which shall not be unreasonably withheld. This purchase order shall inure to Ihe benefit of and be binding upon Ihe parties hereto and their respective successors and assigns. Assignment of accounls receivable may be made only with wntten notice fumlShed 10 Ihe purchaSing agency or institution. 14, Indemnification. In the event any article sold or delivered under thIS purchase order IS covered by any patent, copYrlghl, trademark, or applicalion therefor, Ihe vendor will indemnify and hold harmle" the State of Colorado from any and all loss. liabilily, cosl. expenses and legal fees incurred on account of any claims, legal actions, or judgmenls ansing out of manufacture, sale or use of such article In violalion, Infnngement or Ihe like of nghls under such patent, COPYright, trademark or application, If this purchase order is for services, to Ihe extenl authonzed by law, the vendor shall Indemnify, save, and hold harmless the Slate, its employees and agents, against any and all ciaims. damages, liability and court awards Including costs, expenses, and attomey fees Incurred as a resull of any act or omission by the vendor, or ItS employees. agenls, subcontractors or assignees ansing oul of or In connection with performance of services ordered by thIS purchase order, 395-30-55-0159/ 395.30-55-0233 (R 5/99) ~; 15, INDEPENDENT CONTRACTOR. THE VENDOR SHALL PERFORM ITS DUTIES HEREUNDER AS AN INDEPENDE~n 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 PROVIDES 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 (AND SHO\'! PROOF OF SUCH INSURANCE UPON REQUEST) AND UNEMPLOYMENT COMPENSATION INSURANCE IN THE AMOUNTS REQUIRED BY LAW, AND SHALL BE SOLELY RESPONSIBLE FOR THE ACTS OF VENDOR, ITS EMPLOYEES, AND AGENTS. 16, Communication. All communications, including reports, notices, and adVice of any nature, concerning administration of thIS purchase order, prepared by vendor for the slale agency's use, must be furnished solely 10 the Purchasing Agent w,lh,n the agency purchasing office. 17. Compliance with Laws, Vendor agrees to comply with all applicable federal and slale laws, regulations and policies, as amended, including Ihose regarding discrimination, unfair labor practices, anli-kick-back and collusion. 16. Americans with Disabilities Act (ADA) ReqUirements, If this solicitation contemplates the provision of state services to the publiC, the vendor shall, In addition 10 any other requirements under Tille 11 of the Americans with Dlsebilities Act, comply with Ihe Tille 11 reqUirements of the Americans wilh Disabilities Acl regarding the acceSSibility of the Stale's services and programs, as an explicit requirement The vendor assures Ihal, at all times during the performance of any resulting contract. no qualified IndiVidual with a disability shall, by reason of thai dISability, be excluded from participation in, or be denied benefils of, services, programs, or activities penormed by the vendor for the benefit of Ihe State, 19. Insurance The vendor shall obtain, and maintain at all times dunng the term of Ihis purchase order, insurance as specified in the solicitation or order, and shall provide proof of such coverage, 20, Termination For DefaulUCause. a, Except as otherwise agreed. the Uniform Commercial Code shall govern in Ihe case of transactions in goods. In Ihe case of services, if Ihe vendor refuses or fails to timely pertorm any of the provisions of this purchase order, with such diligence as will ensure Its completion within the lime specified in Ihis purchase order, the Purchasing Agenl may notify the vendor in writing of the non-performance, and if not promplly corrected within Ihe time specified, such officer may lermlnale Ihe vendor's right to proceed with the purchase order or such part of the purchase order as to which there has been delay or a failure to properly penorm. The vendor shall continue penormance of Ihe purchase order to Ihe extent it IS not termlnaled and shall be liable for excess costs incurred In procuring similar goods or services elsewhere. Payment for completed services pertormed and accepled shall be althe purchase order pnce. b. In the case of remedies exercised under this paragraph for services, or analogous remedies exercised under the Uniform Commercial Code for transactions in goods, the purchasing agency may wilhhold amounts due 10 the vendor as the Purchasing Agent deems to be necessary to reimburse Ihe purchasing agency for the excess costs Incurred in cunng, completing or procuring similar goods and services. ) c, In the case of either transactions in goods or services, Ihe vendor shall not be in default by reason of any failure in performance of this purchase order in accordance wilh Its terms if such failure anses oul of acts of God; acts of the publiC enemy; acts of the Stale and any governmental entity in its sovereign or conlractual capacity; fires; floods; epidemics; quarantine reslnctions; strikes or other labor disputes; freight embargoes; or unusually severe weather. d, If after rejection, revocation, or olher termination of Ihe vendors right to proceed under the provisions of the Uniform Commercial Code (in the case of transactions in goods) or this clause (in the case of services), it IS delermlned for any reason that the vendor was not In default under the prOVisions of Ihis clause, or thatlhe delay was excusable, the nghts and obligations of the parties shall be Ihe same as if the notice of termination had been issued pursuant to the termination for convenience clause. 21. Termination For Convenience. a. Cancellallon Pnor to Contract Formation. When this purchase order is nol accepted by written acknowledgment, this purchase order may be canceled by wrilten or oral notice to Ihe vendor pnor to shipment of goods or beginning of performance of services. b. Termination After Contract Formation. Unless olherwise agreed in wnling, in addition to the rights and remedies governing transactions In goods in the Uniform Commercial Code, the Purchasing Agent may when the interests of the purchasing egency so require terminate this purchase order In whole or In part. for the convenience of the agency or Instilution. The Purchasing Agent shall give written notice of the termination 10 the vendor specifying the part of the purchase order terminaled and when termination becomes effective. Upon receipt of the notice of termination, the vendor shall incur no further obligations except 10 the exlent necessary to mitigate costs of performance, In the case of services or specially manufactured goods, the State shall pay reasonable settlement expenses, the conlract price or rate for supplies and services delivered and accepted, the reasonable costs of performance on unaccepted supplies and services, and a reasonable profit for that unaccepted work, in accordance With the cost principles promulgaled in accordance with section 24.107-101, Coiorado Revised Statutes, as amended, In the case of existing goods, the State shall pay reasonable settiement expenses, the contract pnce for goods delivered and accepted, reasonable costs incurred in preparalion for delivery of the undelivered goods, and a reasonable profit for that preparatory work, The amount of the termination liability under this paragraph shall not exceed the amounl of the purchase order price pius a reasonable cost for selllement expenses. The vendor agrees to submit a lermlnation proposal as well as reasonable supporting documenlation, cost and pncing data, and a certification required by section 24-106-101, CRS., as amended, upon request of Ihe PurchaSing Agent. 22. Purchase Order Approval. This purchase order shall not be deemed valid unless IllS executed by the Purchasing Agent for Ihe purchasing state agency or institution. The State shall have no responsibility or liability for products or services delivered or penormed pnor to proper execution hereof. 23. Fund Availabrlily; Federal Funds Contingency. FinanCial obligations of the State of Colorado payable after the current fiscal year are contingent upon funds for that purpose being appropnated, budgeled and otherwise made available, II this purchase order is funded in whole or in part wilh federal funds, IhlS purchase order is subject to and contingent upon the conlinuing availability of federal funds for the purposes hereof, If this purchase ordar contemplates the purchase of goods 10 be delivered in a single instailment, Ihe State represents that it has set aside sufficient funds to make payment under this purchase order in accordance wilh ItS terms, 24, Choice of Law. This purchase order IS made in the Slate of Colorado, The laws of the Slale of Colorado shail govem in connection with the formalion, performance and the legalenlorcement of IhlS purchase order, Unless otherwise specified In the solicitalion or IhlS order, venue for any judicial action ansing out of or In conneclion with IhlS purchase order shali be In Denver, Colorado Vendor shail exhausl adminIStrative remedies in ~ 24-109-106. Colorado ReVISed Stalules, as amended, prior to commencing any judicial action against the State, 25, Uniform Commercial Code, Ail references in this purchase order to the Uniform Commercial Code shall mean the Uniform Commercial Code as adopted by the State of Colorado at Tille 4. Colorado ReVISed Statules, as amended, 26, Non-dlScnmination, The vendor agrees 10 comply With the letter and spint of ail appltcabia state and federal laws respecting diSCrimination and unfair employmenl practices.