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PURCHASE ORDER TERMS AND CONDITIONS 1. Offer/Acceplance. 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 condilions of the IFBIRFP, as staled in your bid. If no bid or proposal is referenced, the purchase order is an OFFER TO BUY, subjeclto your acceptance, which musl be demonstrated by either your pertormance of the purChase order or by a formal acknowledgment in writing. Any COUNTER.OFFER TO SELL is automatically conslrued as a CANCELLATION of this purchase order unless a change order is issued accepting a counter-offer, In the evenl vendor formls) or partls) of forms are included in. or as an allachmentlo. any bid, proposal, offer. acknowledgmenl, or otherwise, vendor agrees thai, in Ihe evenl of Inconsislencies or contradiclions, the terms and condilions of the solicilatlon document and this purchase order shall supelSede and control over Ihose contained in the vendors formls} 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 wrlllen indication of assent, terms and conditions on vendor forms regarding chOice of law, venue, warranty disclaimer or exclusion, Indemnmcatlon or limitation of liability shall be of no effect. 2. Safety tnformatlon. All chemicals, equipmenl and materials proposed andlor used in the pertormance of thiS purchase order musl conform to the standards required by the William.Stelger Occupational Safety and Health Act of 1970, BiddelS must fumish all Malerial Safely Data Sheets IMSDS) for any regulated chemicals, equipment or hazardous matenals atlhe time of deliveiY. 3, Changes. The vendor agrees to furnish the producls and/or services in strict accordance wllh the specificat"ns, and al the pnce sel forth for each Item. Nothing In the purchase order may be added to, modified, supelSeded or otherwise altered excepl in wnling signed by an authorized representative of the state egency purchasing office and acknowledged by the vendor. Each shipment received or service pertormed 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 written change order to the purchase order. 4, DeliveiY, Unless otherwise specified, in the soliCitation or in this order, delivery shall be F.O.B. destination. In its acceptance of any quotation offer, the state agency is relying on the promised delivery date, installallon. or service pertormance as matenal and basic to its acceptance. In the event of vendors failure to deliver or perform as and when promised, the state agency reserves the right to cancel its order, or any part thereof, without prejudice to its other rights, and vendor agrees that the state agency may return all or part of any shipment so made, and may charge vendor With any loss or expense sustained as a result of such failure to deliver or perform as promised. Time IS of the essence. 5. Rights In Data, Documents, and Computer Software or Other Intellectual Property (Slate Ownership), Unless otherwise agreed In wriling, any software, research, reports. studies, data, photographs, negatives or other documents, drawings or materials delivered by vendor In the pertormance of its obligations under this purchase order shall be the exclUSive property of the State, The ownelShip rights described herein shall Include, but not be limited to. the nght to copy, publish, display, transfer, prepare derivative works, or otherwise use the works. 6, Quality. The State will be the sole judge in determining "equals" with regard to quality, price and performance. All products delivered shall be newly manufactured and of the manufacturer's current madel, unless otherwise specified, 7. Warranties. All proVisions and remedies of the Uniform Commercial Code relating to both Implied and expressed warranlles are herewith referred to and made a part of these Terms and Conditions and are in addition to any warranties stipulated In the specifications, 8, Inspection and Acceptance. Final acceptance is dependent upon completion of all applicable inspection procedures. Should the producls or services fail to meet any inspection requirements the State may exercise all of its rights, including Ihose provided in the Uniform Commercial Code. In the case of services, the State reserves the nghllo Inspect services prOVided under this contracl at all reasonable times and places. 'Services' as used In this clause includes services performed or tangible material produced or delivered in the pertormance of services, If any of the services do not conform with purchase order requirements, the State may require the vendor to perform the services again in conformity with purchase order requirements, with no additional payment. When defects in the quality or quantity of service cannot be corrected by re.pertormance, the State may (1) require the vendor to take necessaiY act"n to ensure thai the future performance conforms 10 purchase order requirements and (2) equitably reduce the payment due the vendor to refteclthe reduced value of the services pertormed. These remedies in no way limit the remedies available to the State in the termination provisions of this purchase order. or remedies otherwise available at law. 9. Cash Discount. The cash discount penod will start from date of receipl of acceptable invoice, or from date of receipt of acceptable products/services at the specified destination by an authorized agency representative, whichever is later. 10. Taxes. The state agency, as purchaser, is exempt from all federal excise taxes under Chapter 32 of Ihe Internal Revenue Code (No. 84.730123K] and from all state and local government use taxes [C.R.S. 39. 26-114(a) and 203, as amendedl. Tax exempt numbers for the specific state agency may be found elsewhere in this document. Vendor is hereby notified that when malerials are purchased for the benefit of the State, such exemptions apply except that in certain political subdivisions (for example. City of Denver) the vendor may be required to pay sales or use taxes even though the ultimate product or ser'ilce is provided to the State. These sales or use texes will not be reimbursed by the State. 11. Prompt Paymsnt. State law and regulations provide that vendors will be paid within forty.five days after receipt of products or services and a correct notice of amount due, unless otherwise agreed to by contract or special condilions of the purchase order, A Slate liability not paid within forty.five days is considered delinquent and, unless otherwise agreed to, interest on the unpaid balance shall be paid beginning with the forty. sixth day at the rate of one percent per month on the unpaid balance until paid In full. A liability shall not arise if a good faith dispute exists as to the agency's obligation to pay all or a portion of the liability. Vendors shall invoice the State separately for interest on delinquent amounts due. The billing shall reference the delinquent payment, the number of days interest to be paid and the applicable Interest rate. [Ref. Sec 24.30.202(24), C.R.S" as amended,] 12, Vendor Offset. PUlSuantto CRS 24.30.202.4, as amended, the State Controller may withhold payment for debts owed to state agencies under the vendor offset intercept system for: la) unpaid child support debt or child support arrearages; Ib) unpaid balance of tax, accrued interest, or other charges specified in Article 21, Tille 39, CRS; (c) unpaid loans due to tha Student Loan DiviSIOn of the Department of Higher Education; (d) owed amounts required to be peld to the unamploymenl compensation fund; and (e) other unpaid debts oWing to the state or any agency thereof, the amount of which is found to be owing as a result of final agency determination or reduced to Judgment as certified by the State Controller. 13. ASSignment and SuccessolS; Antitrust Ciaims. The vendor shall not assign rights or delegate duties under Ihis purchase order. or subcontract any part of the pertormance required under the purchase order, without the express, wntten consent of the Slate, which shall not be unreasonably withheld. This purchase order shall inure to the benefit of and be binding upon the parties herelo and their respective successolS and assigns. Assignmanl of accounts receivable may be made only with written notice furnished to the purchasing agency or institution. 14, Indemmfication, In the event any article sold or delivered under thiS purchase order IS covered by any patent, COPYright, trademark, or application therefor, the vendor will indemnify and hold harmless the State of Colorado from any and all loss, liability, cost, expenses and lagal fees incurred on account of any claims, legal actions, or judgments arising out of manufacture, sale or use of such article in violation, Infringement or the like of rights under such patent, COPYright, Irademark or application, If this purchase order is for services, to the extent authonzed by law, the vendor shall Indemnify, sava, and hold harmless the State, ItS empioyees and agents. against any and all claims. damages. liability and court awards including costs, expenses, and attorney fees Incurred as a result of any act or omission by the vendor, or ItS employees, agents, subcontractors or assignees arising out of or In connection with performance of ser'ilces ordered by thiS purchase order. 395.30.55.0159/ 395.30.55.0233 IR 5/99} ....l, . 15. INDEPENDENT CONTRACTOR. THE VENDOR SHALL PERFORM ITS DUTIES HEREUNDER AS ANINDEfliNDENT 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. VENDORSHALL PAY WHEN DUE ALL REQUIRED EMPLOYMENT TAXES AND INCOME TAX WITHHOLDING INCt.UDlNG 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 BtND 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 REQUESTI 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 nalure, concerning administration of thiS purchase order, prepared by vendor for the state agency's use, must be furnished solaly to the Purchasing Agent Within the agency purchaSing office. 17, Compliance with Laws, Vendor agrees to comply with all applicable federal and state laws, regulations and policies, as amended, including lhose regarding discrimination, unfair labor practices, anti-klck.back and collusion. 18. Amencans with Disabilities Act IADA) Requirements. If this solicitation contemplates the provision of state ser'ilces 10 the public, the vendor shall, In addition to any other reqUirements under Tille 11 of the Americans wilh Disabilities Act, comply with the Tille 11 requirements of the Americans with Disabilities Act regarding the acceSSibility of the State's services and programs. as an explicit requirement. The vendor assures that, at all times during Ihe performance of any resulling contract, no qualified indiVidual with a disability shall, by reason of that disability, be excluded from participation in, or be denied benefits of, services, programs, or activities pertormed by the vendor for the benefit of the State. 19. Insurance, The vendor shall obtain, and maintain at all times dunng the term of this purchase order, insurance as speCified in the solicitation or order, and shall provide proof of such coverage, 20. Terminalion For DefaulliCause. a, Except as otherwise agreed, the Uniform Commercial Code shall govern in the case of transactions in goods. In the case of services, if the 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 this purchase order, the Purchasing Agent may notify the vendor in writing of the non.performance, and if not promptly corrected Within the time specified, such officer may terminate the 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 feilure to property pertorm. The vendor shall continue pertormance of the purchase order to the extent it is not terminated and shall be liable for excess costs incurred in procunng Similar goods or services elsewhere. Payment for completed services performed and accepted shall be at the purchase order price. b. In the case of remedies exercised under this paragraph for services, or anelogous remedies exercised under the Uniform Commercial Code for transactions in goods, the purchaSing agency may withhold amounts due 10 the vendor as the Purchasing Agent deems to be necessaiY to reimburse the purchaSing agency for the excess costs incurred in curing, completing or procuring Similar goods and services. ) c. In the case of either transactions in goods or services. the vendor shall not be in default by reason of any failure in performance of this purchase order in accordance with ItS terms if such failure arises out of acts of God; acts of the public enemy; acts of the State and any governmental entity in its sovereign or contractual capacity; fires; floods; epidemics: quarantine restriclions; strikes or other labor disputes; freight embargoes; or unusually severe weather, d, If after rejection, revocation, or other termination of the vendors right to proceed under the provisions of the Uniform Commercial Code (In the casa of transactions in goods) or this clause (in the case of services), it is determined for any reason that the vendor was not in default under the provisions of this clause, or Ihatthe delay was excusable, the rights and obligations of Ihe parties shall be the same as if the notice of termination had been issued pursuant to the termlnalion for convenience clause. 21. Termination For Convenience. a. Cancellation Prior to Contract Formation. When Ihis purchase order is not accepted by written acknowledgment, this purchase order may be canceled by written or oral notice to the vendor prior 10 shipment of goods or beginmng of performance of services. b, Termination After Contract Formation. Unless otherwise agreed in writing, 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 agency so require terminate this purchase order in whole or In part, for the convenience of the agency or instltut"n. The Purchasing Agent shall give written notice of the termination to the vendor specifying the part of the purchase order terminated and when termination becomes effective. Upon receipt of the notice of termination, the vendor shall Incur no further obligations except 10 the extent necessary 10 mitigate costs of pertormance. In the case of services or specially manufactured goods, the State shall pay reasonable settlement expenses, the contrect price or rate for supplies and services delivered and accepled, the reasonable costs of pertormance on unaccepted supplies and services, and a reasonable profit for that unaccepted work, In accordance With the cost principles promulgated in accordance with section 24-107.101, Coiorado Revised Statutes, as amended, In the case of existing goods, the State shall pay reasonable settlement expenses, the contract price for goods delivered and accepted, reasoneble costs incurred In preparation 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 amount of the purchase order price plus a reasonable cost for selllement expenses. The vendor agrees to submit a termination proposal as well as reasonable supporting documentation, cost and pricing date, and a certification required by section 24.106-101, C.R.S" as amended. upon request of the Purchasing Agent. 22. Purchase Order Approval, This purchase order shall not be deemed valid unless IllS executed by the Purchasing Agent for the purchasing state agency or institu\lon. The State shall have no responSibility or liability for prOducts or services delivered or pertormed prior to proper execution hereor. 23, Fund Availability; Federal Funds Contingency. Financial obligations of the Stale of Colorado peyable after the current fiscal year are contingent upon funds for that purpose being approprialed, budgeted and otherwise made available, If this purchase order is funded in whoie or in part with federal funds, thiS purchase order IS subJect to and contingent upon the continuing availability of federai funds for the purposes hereof. If this purchase order conlemplates the purchase of goods to be delivered in e single instailment. the State represents that it has set aside sufficient funds to make payment under this purchase order in accordance with ils terms, 24, Choice of Law. This purchase order IS made In the State of Colorado, The laws of the State of Colorado shall govem in connection with the formation, performance and the legal enforcement of this purchase order. Unless otherwise specified in \he soliCitation or thiS order. venue for any JudiCial aclion anslng out of or In conneclion with Ihls purchase order shall be In Denver, Colorado, Vendor shall exhaust administrative remedies In 924.109-106, Colorado ReVised Statutes, as amended, prior to commencing any judiCial action against the State, 25. Uniform Commercial Code. All references In this purchase order to the Umform CommerCial Code shall mean Ihe Uniform Commerciai Code as adopted by the State of Colorado at Tille 4, Colorado Revised Stalutes, as amended. 26. Non-discrimination. The vendor agrees to comply wllh the leller and spint of all applicable state and federal laws respecting dlscnmination and unfair employment practices.