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#' PURCHASE ORDER TERMS AND CONDITIONS .. 1. Offer/Acceptance. If this purchase order refers to your bid or proposal, then this purchasa order Is an ACCEPTANCE of your OFFER TO SELL in accordance with the terms and conditions of the IF8IRFP. as stated in yo~r 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 aither your performance of the purchase order or by a formal acknowledgmenl in writing. Any COUNTER-DFFER TO SELL is automatically constnJed as a CANCELlATION of thiS purchase order unless a change order Is issued accepting a counteroOffer. In the event vendor fonn(s) or part(s) of forms are included in, or as an attachment to, any bid, proposai, offer, acknowledgment, or oth8lWise, vendor agrees that, in lhe event of inconsistencies or contradictions, the terms and conditions of the solicitation document and this purchase order shall supersede and control over those contained in the vendor's fonn(s) regardless of any statement to the contrary in a vendor form(s). Untess the purchasing agent spacifically agrees in writing through overt reference or othar 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 elfecl 2. Safety Infonnatlon. All chamicals, equipment and materials proposed and/or used in the performance of this purchasa ardor must confonn to tha standards required by the Williarn-Steiger Occupational Safety and Health Act of 1970. Biddelll must furnish all Material Safety Data Sheets (MSDS) for any regulated chemicals, equipment or hazardous materials at the time of delivery. 3. Changes. The vendor agrees to furnish the products aneVor services in strict accordance with the specifications, and at the price set forth for each item. Nothing in the purchase order may be added to, modified, superseded or oth8lWise altered except in writing signed by an authorized representative of the state agency purchasing office and acknowledged by the vendor. Each shipment received or S8fVice performed 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. Delivery. Unless otherwise specitied, In the solicitation or In this order, delivery shall be F.O.B. destination. In ils acceptance of any quotation offer, the state agency is relying on the promised delivery date, installation, or service per10rmance as material and basic to its acceptance. In the event of vendor's failure to deliver or perform as and when promisad, the state agency reserves the right to cancel ils order, or any part thereof, without prejudice to ils other rights, and vendor agrees that the state agency may return all or part of any shipment so mada, and may charge vendor with any loss or expense sustained as a result of such fauure to deliver or perform as promised. Time is of the essence. 5. Rights In Data, Docume~ts, and Computer Software or other Intellectual Property (State Ownorahlp). Unless othelWlse agreed in wnting, any software, research, reports, studies, data, photographs, negatives or other documents, drawings or materials delivered by vendor In the performance of Its obligations under this purchase order shall be the exdusive property of the State. The ownership rights described herein shall include, but not be limited to, the right to copy, publish, display. transfer, prepare derivative wor1<s, or otherwise use the v.orks. 6. Quality. The State will be the sole Judge in determining "equals" with regard to quaiity, price and performance. All products delivered shall be nawiy manufactured and of the manutecturer's current model, unless oth8lWise specified. 7. Warranties. All preMsions and remedies of the Unifonn CoImleroal Code relating to both implied and expressed warranties are herewith referred to and made a part of these Terms and Conditions and are in addition to any warranties stipulated in the specifications. a. InspeeUon and Acceptance. Final acceptance is dependent upon completion of all applicable inspection procedUles. Should the products or services fail to meet any Inspection requirements the State may exercise all of its rights, inciuding those preMded In the Unibnn Convnercial Code. In the case of services, the State reserves the right to inspect seNices. provided under this contract at all reasonabla times and places. 'Services" as used In this clause includes S8fVices pertmned or tangible material produced or delivered in the performance of S8fVices. II any of the services do not conlbrm with purchase order requirements, the State may require the vendor to perform the services again in conlbrmity with purchase order requirements, with no additional payment. When defects in tha quality or quantity of seNlce cannot be corrected by r&-performance, the Stale may (1) require the vendor to take necessary action to ensure that the future perb"mance conforms to purchase ordor requirements and (2) equitably reduce the payment due the vendor to reflect the reduced value of the services performed. These remedies in no way limil the remedies available to the State in the tennination provisions of this purchase order, or remedies otherwise available at law. 9. Cash Discount The cash discount period will start from date of receipl of acceptable invoice, or from date of ::~; i:~~:.table products/seNices at the specified destination by an authorized agency representativa, 10. Taxa.. The stale agency, as purchaser, is exempt from all federal exdse taxes under Chapter 32 of the Intemal Revenue Code [No. 84-7301231<] and from all state and local govemment use taxes [C.R.S. 39- 26-114(a) and 203, as amended]. Tax exempt numbolll for the specific state agency may be found elsev.!lere in this document. Vendor is hereby nollfied that when matelials 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 salas or use taxes even ~~~h the ultimale product or service is preMded to the State. These sales or use taxes will not be reimbullled by the 11. Prompt Payment Slalelaw and regulations provide that vendOlll will be paid within forty-fIVe days after receipt of products or seNices and a correct notice of amount due, unless otherwise agreed to by contract or special conditions of the purchase order. A State liability not paid within brty-flV8 days is considered delinquent and, unless oth8lWise 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 II a good fanh dispute exists as to the agency's obligation to pay all or a portion of the liability. VendOlll shall invoice the State separately for Interest on delinquent amounts due. The biiling shall reference the delinquent payment, the nlBT'ller of days interest to be paid and the applicable interest rate. [Ref. Sec 24-30-202(24), C.R.S., as amended.] 12. Vondor Offaat PUllluant to CRS 24-3G-202.4, as amended, the Stale Controller may withhol:l payment for debts awed to stale agendes under the vendor offset intercept system for. (a) unpaid child support debt or child support arrearages; (b) unpaid balance of tax, accrued interest. or other charges specified in ArtIcle 21, Titie 39, CRS; (c) unpaid loans due to the Student Loan Division of the Department of Higher Education; (d) awed emounts required to be paid to the unemplCljl1l9nl compensation fund; and (e) other unpaid debts ....ng to the state or any agency thereof, the amount of which Is found to be a.ving as a result of final agancy detennination or reduced to judgment as certified by the State Controller. 13. AssIgnment and Successors; AntltNat Claims. The vendor shall not assign rights or detegate duties under this purcha~e order, or subcontract any part of the perbrmance required under the purchase order, without the express, wnllen consent of the State, which shall not be unreasonably Volthheld. This purchase order shali lpure to the benefit of and be binding upon the parties hereto and their respective auccessOlll and assigns. AssI~ment of accounts receivable may be made only with written notice fumished to the purchasing agency or instltutla1. 14. IndemnlflcaUon. In the event any article sold or delivered under this purchase order is covered by any patent. colJ'>'1'lght, trademar1<, or application therefor, the vendor will indemnifY and hold hannless the Slate of Colorado from any and all loss, liability, cost, expenses and legal tees lnaJrred on account of any daims, legal actions, or Judgments arising out of manufacture, sale or use of such article in violation, infi1ngement or the like of rig,ts under auch patent, colJ'>'1'lght, trademar1< or application. ~ this purchase order is for services, to the extent authorized by law the vendor shallindermifY, save, and hold harmless the State, its empl<7j98S and agents, against any end all clai~, damages, liability and court awards including costs, expenses, and attorney tees incurred as a result of any act or omlssia1 by the vendor, or Its employees, agents, subcontractolll or assignees arising out of or In connectia1 with performance of services ordered by this purchase ardor. 15. INDEPENDENT CONTRACTOR. THE VENDOR SHALL PERFORM ITS DUTIES HEREUNDER AS AN INDEPENDENT CONTRACTOR AND NOT /IS 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 395.30.55.0159 / 395.30.55-0233 (R 6/99) 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 BENEATS UNLESS THE VENDOR OR A THIRD PARiY PROVIDES SUCH COVERAGE AND THAT THE STATE DOES NOT PAY FOR OR OTHERWISE PROVIDE SUCH COVERAGE. VENDOR SHALL HAVE NO AUTHORIZATION EXPRESS OR IMPUED 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 SHOW 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 state agency's use, must be furnished solely to the Purchasing Agent within the agancy purchasing offICe. 17. Compliance with Laws. Vendor agrees to comply with all applicable federal and slate laws, regulations and policies, as amended, including those regarding discrimination, unfair labor practices, anti-klck-back and collusion. 18. Americana with Disabilities Act (ADA) Requirements. If this soilcitallon contemplates the provision of state services to the public, the vendor shall, in addition to any other requirements under me 11 of the Americans with 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 explicil requirement. The vandor assures that, at all limes during the performance of any resulting contract, no qualified individual with a disability shall, by reason of that disability, be excluded from participation in, or be denied benetits of, services, programs, or activities performed by the vendor br the benefit of the State. 19. Insurance. The vendor shail obtain, and maintain at all times during the term of this purchase order, insurance as specified in the solicitation or order, and shall provide proof of such coverage. 20. TennlnaUon For Default/Cause. a. Except as otherwise agreed, the Unifonn Commercial Code shall govem in the case of transactions in goods. In the case of services, if the vendor refuses or fails to timeiy perfonn any of the provisions of this purchase order, with such diligance as will ensure its completion within the time specitied in this purchase order, the Purchasing Agent may notify the vendor in writing of the non-perfonnance, and II not promptiy corrected within the lime specified, such officer may terminale 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 failure to properiy perform. The vendor shall continue performance of the purchase order to the extent it Is not tenninated and shall be liable for excess costs inaJrred In procuring similar goods or seNices elsewhere. Payment for completed services perfonned and accepted shall be at the purchase order price. b. In the case of remedies exercised under this paragraph for S8fVices, or analogous remedies exercised under the Unlfonn Commercial Code for transactions in goods, the purchasing agency may withhold amounts due to the vendor as the Purchasing Agent deems to be necessary to reimbullle the purchasing agency br the excess costs InaJrred in aJring, 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 tenns II such fauure arises out of acts of God; acts of the pubiic enemy; acts of the State and any govemmental entity in its sovereign or contractuai capacity; fires; floods; epidemics: quarantine restrictions; strikes or other labor disputes; freight embargoes; or unusually severe weather. d. II after rejection, revocation, or other tennination of the vendor's right to proceed under the provisions of the UnWonn Commercial Code (in the case of transactions in goods) or this dause (In the case of services), it is determined for any reason that the vendor was not in default under the provisions of this dause, or that the delay was excusable, the rights and obligations of the parties shall be the same as W the notice of tennination had been issued pUnJuant to the termination for convenience clause. 21. TennlnaUon For Convenience. a. Cancellation Prior tn Contract Formation. When this purChase order is not accepted by written ecknCMIedgment. this purchase order may be canceled by writtan or oral notice to the vendor prior to shipment of goods or beginning of performance of services. b. Termination After Contracl Formation. Unless otherwise agreed In writing, in addition to the rights and remedies goveming transactions in goods In the Unifonn Commercial Code, the Purchasing Agent may when the interests of the purchasing agency so requlra terminale this purchase order in whole or In part, for the convenience of the agency or institution. The Pvrchasing 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 tennination, the vendor shall incur no further obligations except to the extent necessary to mitigate costs of performance. In the case of services or specially manutectured goods, the State shall pay reasonabla settlement expenses, the contract price or rete for supplies and services delivered and accapted, the reasonabie costs of performance on unaccepted supplies and services, and e 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 lhe case of existing goods, the State shall pay reasonable settlement expenses, the contract price for goods delivered and accepted. reasonable costs inaJrred in preparation for dallvery of the undelivered goods, and a reasonable profit for that preparatory work. The amount of the tenninatlon liability under this paragraph shall not exceed the amount of the purChase order price plus a reasonable cost for seUlement expenses. The vendor agrees to submit a termination proposai as well as reasonable supporting documentation, cost and pricing data, and a certification required by section 24-1 CJ6.101, C.R.S., as amended, upon request of the Purchasing Agent. 22. Purch.s. Order Approval, This purchase order shall not be deemed valid unless it Is executed by the Purchasing Agent for the purchasing state agency or institution. The Slate shall have no responsibility or liability for products or S8fVices delivered or performed prior to proper executia1 hereof. 23. Fund AvallabUIty; Federal Fundo Contingency. Anandal obligations of the State of Colorado payable after the aJrrant fiscal year are contingent upon funds for thai purpose being appropriated, budgeted and otherwise made availabie. ~ this purchase order is funded in wIlole or In part with federal funds. this purchase order is subject to and contingent upon the continuing avallebillty of federal funds for the purposes hereof. If this purchase order contemplates the purchese of goods to be delivered in a single Installment, the Stale represents that II has set aside suflldent funds to make payment under this purchase order in accordance with its lanns. 24. Choice of Law. This purchase order Is made in tha 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. Unlass oth8lWise specified in the solicitation or this order, venue for any jUdldal action arising out of or in connection with this purchase order shall be in Denver, Colorado. Vendor shall exhaust administrative remedies In ~ 24-109-106, Colorado Revised Statutes, as amended, plior to commencing any judicial action against the State. 25. Unlfonn Commercial Code. All references in this purchase order to the Uniform CommercIal Code shall maan the Uniform Commercial Code as adopted by the State of Colorado at Title 4, Colorado Revised Statutes, as amended. 26. NolHIlscrlmlnaUon. The vendor agrees to comply with the lett.. and spirit of all applicable state and federal laws respecting discrimination and unfair employment practices.