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Purchase Order Terms and Conditions

This Purchase Order (Agreement) shall be deemed to have been accepted by the Supplier if any of the following occur; (i) shipment of the goods or any portion thereof; (ii) commencement of any work onsite or; (iii) performances of any services hereunder.  Any discrepancies of fulfilling the terms of this Purchase Order must be resolved between Swarthmore College (herein after, “College") and Supplier prior to the delivery of any service or commodity to the College.
1. General –The Goods and/or Services furnished by Supplier and covered by the Purchase Order are governed by all the Terms and Conditions set forth herein.
2. Conflict in Terms and Conditions - If any of these terms and conditions are not acceptable, Supplier must so notify College immediately in writing setting forth the reason(s) and any proposed edit.  All technical specifications, drawings, notes, instructions, or information referred to on the associated Purchase Order shall be deemed to be incorporated herein by reference.
3. Acceptance and Inspection - No goods received by the College pursuant to the Purchase Order shall be deemed accepted until the College has had reasonable opportunity to inspect said goods for hidden damage or failure to meet specifications.  Damaged/unacceptable goods shall be rejected and will be returned at Supplier’s expense for full credit or replacement, at the College’s sole option. The College reserves the right to test any goods, or services delivered to determine that specifications have been met. No goods returned as defective shall be replaced without College’s authorization.
4. Delivery and Title – All deliveries shall be FOB destination.  Delivery is to be made only to the destination stated in the Purchase Order and must be made between 8:30 A.M. and 4:30 P.M., Monday through Friday, legal and College holidays excluded, unless otherwise stated. Supplier is responsible for maintaining and providing proof of delivery.
5. Quantities – The College assumes no obligation for articles or materials shipped in excess of the quantity ordered. Any over shipments will be subjected to rejection and will be returned at Supplier’s expense.
6. Packing - Supplier assumes full responsibility for packing, crating, marking, transportation, and liability for loss and/or damage even if College has agreed to pay freight, express or other transportation charges.
7. Invoicing and Purchase Order Number - The College’s Purchase Order numbers must appear on all invoices, packing slips, shipping documents, and labels. Supplier will use best efforts to include College's PO number as part of the delivery address on all goods and services delivered to College. Failure to do so will cause College significant delivery difficulties and delays.
8. Time – Time is of the essence in the performance of this Agreement.  The College is relying on the promised delivery date, installation, and/or service performance set forth in supplier's bid or proposal as material and basic to the College's acceptance.
9. Delays - If delivery or completion dates cannot be met, Supplier shall immediately inform College. Such notice shall not, however, constitute a change to the delivery or completion terms of this Agreement unless College modifies this Agreement in writing. If any goods are not received or if any element of the services are not completed by the date specified, College, at College’s option and without prior notice to Supplier, may either approve a revised date or may cancel this Agreement and may obtain such goods or services elsewhere and in either event, the Supplier shall be liable to College for any resulting loss incurred by College. Supplier's sole remedy for a delay caused by College shall be an extension in the time for Supplier's performance equal to the duration of College’s delay.
10. Insolvency – If the College has reasonable cause to believe Supplier is insolvent, or if any petition in bankruptcy or under any law for the relief of debtors is filed by or in respect of Supplier, then at the option of College, the Agreement shall immediately terminate. In no event shall the Agreement become an asset in any such proceeding nor shall College be bound hereby after any act of bankruptcy by Supplier. Any delay by College in the exercise of the right to terminate under this section shall not diminish or waive that right.
11. Price Warranty - Supplier warrants that the price(s) for the goods or services stated herein are no less favorable than those extended to any other customer (whether government or commercial) for the same or similar goods or services in similar quantities.  In the event Supplier reduces its price(s) for such goods or services before Supplier fully performs under this Agreement, Supplier agrees to reduce the prices stated herein accordingly.  Supplier further warrants that the prices stated herein are complete, and that no additional charges of any type, including but not limited to shipping costs, shall be added without College’s express written consent.
12. General Warranty – Supplier expressly warrants that all articles, material, and work offered shall conform to each and every specification, drawing, sample or other description which is furnished to or adopted by the College and that they will be fit and sufficient for the purpose intended, merchantable, of good material and workmanship, and free from defect.  Such warranty shall survive a contract and shall not be deemed waived either by the College’s acceptance of said materials or goods, in whole or in part, or by payment for them, in whole or in part.  The Supplier further warrants all articles, material, and work performed for a period of one (1) year, unless otherwise stated, from date of acceptance of the items delivered and installed.  All repairs, replacements or adjustments during the warranty period shall be at Supplier’s expense.
13. Payment - Except as otherwise provided in the Agreement, payment shall be Net 30 days from the date of delivery, or date of receipt of correct invoice, whichever is later.
14. Discount - Discount time will be calculated from the date of performance of the service, delivery of the goods, or from receipt of the correct invoice, whichever is later. Discount terms must comply with all applicable laws and regulations, must be given at time of purchase, and must be stated on the invoice.
15. Rebates and Credits - Supplier rebates and credits, including but not limited to those for correction of invoice discrepancies, returned goods, good-faith or performance offsets, and volume/price tier rebates, must be issued in the form of a check made payable to Swarthmore College. Checks must be: a) timely delivered and b) clearly labeled “Rebate” specifying either the Supplier’s contract or the applicable PO.
16. Tax Exemption - The Parties acknowledge that Swarthmore College is a tax-exempt entity. Supplier will take all steps necessary to ensure that these exemptions are utilized to the maximum benefit of Swarthmore College.
17. Limitation of Liability – Nothing in this Agreement shall limit the liability of Supplier under law or custom.
18. Indemnification - The Parties agree to defend, indemnify and hold each other and their respective affiliates, contractors, officers, directors, trustees, employees and agents harmless from and against all claims, liabilities, damages and expenses, including reasonable attorney’s and other professional’s fees, arising out of or related to their own intentional or negligent acts or omissions.
19. Insurance - Before any of the services outlined within this agreement are performed, Supplier, at its own cost and expense, shall provide and maintain during the performance of its services hereunder, insurance as described below with insurers rated A-, Class X or better by A.M Best Company in a form satisfactory to Swarthmore College. Supplier must submit a Certificate of Insurance (COI) that strictly conforms to the Swarthmore College Sample COI attached to this Agreement. A failure to submit a COI that fully conforms with the attached sample COI will render this Agreement immediately null and void. The COI must be submitted to Swarthmore College prior to or at the same time as execution of this Agreement.  Supplier warrants that its Insurance Carriers are accurately informed regarding the business activities of the Supplier and intends to cover those business exposures.
a. Workers’ Compensation insurance prescribed by applicable state Workers’ Compensation acts.
b. Employers’ Liability insurance to include a minimum of $500,000 limit per employee, per accident and $500,000 in the aggregate.
c. Commercial General Liability insurance all on an occurrence basis with a minimum of 1,000,000 per occurrence limit for bodily injury, property damage, sexual misconduct, personal and advertisers injury; $3,000,000 aggregate limit for products/completed operations; and a $3,000,000 general aggregate limit. This Commercial General Liability insurance to include coverage for the hazards of Contractual Liability and Broad Form Property Damage.
i. A copy of the policy and/or endorsement providing the sexual misconduct coverage must be attached to the certificate of insurance.
d. Business Automobile Liability insurance including comprehensive third party coverage for injury (including death) or property damage with a minimum combined single limit of $1,000,000 per occurrence including coverage for owned, non-owned and hired vehicles.
e. All insurance policies (excepting Workers’ Compensation and Employers Liability) maintained shall name Swarthmore College, its subsidiary corporations, affiliates, agents, employees, officers and directors as Primary Additional Insured on a noncontributory basis.
20. Termination - Either Party may terminate this agreement giving 10 days notice for any reason or no reason. Supplier agrees that a violation by Supplier of any of the terms, obligations, or certifications under this Agreement shall be grounds for immediate termination by the College.
21. Amendment – No modification or amendment of any provision of this Agreement shall be valid or effective unless made in writing and signed by a duly authorized officer or representative of each of the Parties.
22. Equipment - Equipment furnished under this Agreement must comply with all federal, state and local codes and regulations covering educational institutions (or, if applicable, healthcare providers) in effect at the time of the purchase.
23. Compliance with Laws/Policies – Supplier warrants and certifies that in performance of this Agreement, it will comply with all applicable statutes, rules, regulations, including laws and regulations pertaining to labor, wages, hours and other conditions of employment. Supplier also agrees to maintain compliance with WCAG 2.0 AA accessibility standards.
24. SDS - All chemicals, equipment and materials proposed and/or used in the performance of this Agreement shall conform to the requirements of the Occupational Safety and Health Act of 1970. The SDS (Safety Data Sheets; formerly Material Safety Data Sheets: MSDS) must be sent with the product to communicate the hazards of chemical products.
25. Working on College’s Campus – The following additional conditions shall apply to work performed on site.
a. Supplier shall maintain on the site at all times a sufficient workforce to carry out its obligations in an efficient and timely manner.
b. Supplier is responsible for securing all applicable licenses, permits, and in compliance therewith and the price shall be deemed to include the cost of these items.
c. Any property of Supplier left on the site upon completion of the services shall be considered abandoned by Supplier and may be discarded or appropriated by College.
d. Supplier’s employees assigned to provide services on site shall satisfy any health and immunization requirements established by College policy.
e. When informed by College that such is required due to the location and nature of the services, Supplier will not assign to the site any person who fails to satisfy background checks required by applicable College policy for the services or location.
f. If Supplier is providing any service or any program, activity, or event that involves direct contact with a minor (anyone under age 18) for or on behalf of College, Supplier shall comply with all provisions of the Pennsylvania Child Protective Services Law ("CPSL"), as amended, including but not limited to 23 P.S. Section 6344, requiring Supplier to conduct (i) a federal criminal background check through the Federal Bureau of Investigation; (ii) a Pennsylvania state criminal history check; and (iii) a child abuse clearance report from the Department of Human Services.  Supplier shall not assign any employee, or volunteer, who has committed any of the offenses identified in 23 P.S. Section 6344(c) to provide any Service, activity, program or event to College involving any Direct Contact with a minor. "Direct Contact" for purposes of these terms and conditions is defined in the CPSL, 23 P.S. Section 6303(a).
26. Limitation to the Use of the College’s Name - The College agrees that Supplier may use the College’s name only in experience citations to current or prospective clients, but not in any public advertising, publications, social networking sites, or on the Internet, without the College’s express prior written consent to the specific contemplated use. Such requests shall be directed to the College’s Communications Office. This restriction shall extend to all tiers of sub-consultants / subcontractors of Supplier and any other party engaged by Supplier as a result of this Agreement.
Supplier shall not, without express prior written consent in each case, use any College trademark in advertising, publicity, promotional, or any other activities or context including social networking sites and the Internet.
This restriction shall extend to all tiers of sub-consultants / subcontractors of Supplier and any other party engaged by Supplier as a result of this Agreement.
27. Non-Waiver - If College or Supplier waive any power, right, or remedy arising hereunder or under any applicable law, the waiver shall not be deemed a waiver of that power, right, or remedy upon a later recurrence of similar events. No act, delay or course of conduct by College or Supplier shall be deemed to constitute a waiver by College or Supplier. Any such waiver may only be effected by an express written waiver signed by the waiving party.
28. Governing Laws/Venue - All disputes regarding the construction, interpretation and the parties’ obligations under this Agreement shall be governed by the laws of Pennsylvania, notwithstanding any of that state’s laws to the contrary. Any lawsuit arising out of the terms and conditions of this Agreement must be brought in the Pennsylvania Courts located in Delaware County, Pennsylvania or the United States District Court for the Eastern District of Pennsylvania.  
29. Intellectual Property - All deliverables shall be owned by and shall be the exclusive property of the College and considered a “WORK MADE FOR HIRE,” as that term is defined for copyright and other purposes.  Supplier hereby assigns without further consideration all right, title, and interest in and to the materials and/or deliverables developed pursuant to this Agreement finally and irrevocably to College, including, but not limited to any related patent or copyright rights therein.  Supplier shall promptly execute any and all documents and take any additional actions that College may reasonably request in order to effect this assignment of rights.  The deliverables must be new and original.  Supplier must not use any pre-existing materials in the deliverables without College’s prior written permission. In the event that Supplier uses any pre-existing materials in the deliverables in which Supplier has an ownership interest, College is hereby granted a nonexclusive, royalty-free, irrevocable, perpetual, paid-up, worldwide license (with the right to sublicense) to make, have made, copy, modify, make derivative works of, use, perform, display publicly, sell, and otherwise distribute such pre-existing materials in connection with the deliverables.
30. Confidentiality - Protection of Sensitive Information; FERPA, HIPAA, Computer System Security
a. Confidentiality - Each party will keep in confidence all confidential information of the other party and neither party will use or disclose to any person or entity, directly or indirectly, without the prior written approval of the other, any confidential information relating to the other party obtained by virtue of this Agreement or the services performed pursuant to the Agreement, except on a confidential basis to its business, legal and financial advisors or as required to be disclosed under applicable law or by legal process.
b. Protection of Sensitive Information - If College provides access to Supplier of confidential information with sensitive information, for example without limitation, bank and credit card account numbers, income and credit histories and social security numbers, student financial aid information, as well as  "Personally Identifiable Information" from student education records as defined by the Family Educational Rights and Privacy Act of 1974  (“FERPA”), Supplier shall maintain the confidentiality, integrity, and availability of all such information, through implemented administrative, technical and physical safeguards in compliance with law and  shall not re-disclose such sensitive information as directed by federal and state laws including without limitation, the Gramm Leach Bliley Act of 1999, FERPA, HIPAA/HITECH,  and state laws on protection of such sensitive information.
c. HIPAA/HITECH - When applicable, while performing its duties and obligations under this Agreement, Supplier shall, and shall cause its employees, other members of its workforce, faculty, agents, and subcontractors, to comply with all laws and regulations that apply to the confidentiality and security of patient information, including HIPAA/HITECH, and regulations issued thereunder (including without limitation the Omnibus Rule), which are now in effect or which may subsequently be in effect.  The parties agree that if necessary, they shall amend this Agreement to comply with or effectuate HIPAA and/or HITECH and the regulations issued thereunder.
d. Business Associate Agreement - If the College determines that Supplier is acting as a “Business Associate” of the College under applicable HIPAA laws and regulations, then Supplier and College shall also enter into a HIPAA HITECH Omnibus Business Associate Agreement.
e. Data Breach Notification - Supplier shall immediately, and no later than three (3) business days, notify College of any potential data breach of which it becomes aware.
f. Computer Systems and Data Security - Supplier represents and warrants that the computer systems it uses in conjunction with providing the goods and services under this Agreement, and the data housed therein or methods of transmission, have security protection from intrusion in accordance with applicable federal government standards and are encrypted in accordance with NIST Standards for encryption and security of data. Any copies of data which are disposed of shall likewise be disposed of only in accordance with such standards.
31. Electronic Signatures/Counterparts - The parties acknowledge and agree that this Agreement may be executed in counterparts, using electronic or facsimile signatures, and that such a signature shall be legally binding to the same extent as a written signature by a party’s authorized representative. Each counterpart shall be deemed an original, and all of which together shall constitute one and the same instrument. Each party waives any legal requirement that this Agreement be embodied, stored or reproduced in tangible media, and agrees that an electronic reproduction shall be given the same legal force and effect as a signed writing.
32. Gift Policy - Suppliers should avoid excessive or frequent gift giving to College employees; specifically, suppliers should ensure that any gifts to College employees will not be perceived as a bribe, payoff, or any other attempt to gain an advantage in any sourcing or other purchasing decision. College employees cannot accept gifts valued in excess of $25.
33. Conflicts - Supplier represents that, to its knowledge, no College trustee, officer, employee or any other person affiliated with College and having involvement with this Agreement (1) is affiliated with Supplier, and (2) that, to its knowledge, no College trustee, officer, employee or any other person affiliated with College and having involvement with this Agreement has received, was promised, or will receive anything of value in connection with this Agreement or performance contemplated hereunder.
34. Assignment - Neither party shall assign or delegate its rights and obligations under this Agreement or any part hereof without the prior written consent of the non-assigning or non-delegating party.
35. Force Majeure - In the event that either party is unable to perform its obligations under this Agreement as a result of a force majeure, neither party shall be liable to the other for direct or consequential damages resulting from lack of performance. “Force Majeure” shall mean fire, earthquake, flood, act of God, strikes, work stoppages, or other labor disturbances, riots or civil commotions, acts of terrorism or other hostilities, litigation, war or other act of any foreign nation, power of government, or governmental agency or authority, or any other cause like or unlike any cause above mentioned which is beyond the control of either party.
36. Independent Contractor - Supplier is an independent contractor and not an employee or agent of College. Supplier shall be solely responsible for any unemployment or disability insurance payments, or payments that may be required by Federal, State or local law with respect to any sums paid to Supplier hereunder. Supplier shall not be entitled to any College employee benefit of any nature whatsoever. Furthermore, the arrangements contemplated by this agreement shall not be deemed to constitute a partnership or joint venture between Supplier and College.
Supplier will defend, indemnify and hold harmless College from and against any and all liability for the payment of taxes, interest and/or penalties, as well as damages and costs, including but not limited to attorney’s fees, in connection with any claim that Supplier is an employee of College.
37. Subcontractor Requirements - Supplier shall enter into written agreements with all subcontractors and subconsultants, which shall include:
a. A provision that the subcontractor or subconsultant assumes toward Supplier all of the obligations that Supplier assumes toward College under this Agreement;
b. A provision that the subcontractor or subconsultant is not in privity with College and shall not seek compensation directly from College;
c. A provision that College is a third-party beneficiary of the subcontract or agreement, entitled to enforce any rights thereunder for their benefit.
38. No Authority - Supplier shall have no authority to take any action, create any obligation, make any commitment, incur any indebtedness, or enter into any agreement that binds College. Supplier shall not in connection with any services provided to or on behalf of College represent to any person or entity that Supplier is associated with College in any capacity other than that of an independent contractor.
39. Entire Agreement - This Agreement contains the entire agreement of the parties and there are no other promises or conditions in any other agreement, whether oral or written. This Agreement supersedes any prior written or oral agreements between the parties.
40. Severability - The terms of this Agreement are severable such that if any term or provision is declared by a court of competent jurisdiction to be illegal, void, or unenforceable, the remainder of the provisions shall continue to be valid and enforceable.