Purchase Order Terms & Conditions

Acceptance of Agreement

Agreement by Supplier to furnish the materials and/or services hereby ordered, or its commencement of such performance, shall constitute acceptance by Supplier of this Agreement subject to these terms and conditions. In the event that this Agreement does not state price or delivery, Texas Christian University, (hereinafter “University”), will not be bound to any prices or delivery to which it has not specifically agreed in writing. Acceptance by Supplier is expressly limited to the terms of this Agreement. Any terms or conditions proposed by Supplier inconsistent with or in addition to the terms and conditions of purchase herein contained shall be void and of no effect unless specifically agreed to in writing by the University. Modifications hereof or additions hereto, to be effective, must be specifically agreed to in writing by the University. These terms and conditions, together with such modifications and with such data relating to price and delivery as are accepted in writing by the University, constitute the entire agreement between the parties; and supersede any prior or contemporaneous written or oral agreements thereon. Whenever a term defined by Chapter 2 of the Texas Business and Commerce Code, (UCC), is used in this Agreement, the definition contained in the Code applies.

Shipping Instructions

1. Supplier shall be responsible for ensuring the proper packaging of materials.

2. Unless otherwise directed, all items shipped in one day from and to a single location must be consolidated on one bill of lading or air bill, as appropriate. No charges will be allowed for packing, crating, freight, local cartage, and/or any other services unless so specified in this Agreement or any authorized changes thereto.

3. Unless agreed to otherwise in writing, all shipments should be FOB Destination; meaning, title and risk of loss of the goods shall not pass to the University until the University actually receives the goods at the point or points of delivery.

4. Supplier shall at all times comply with University’s written shipping instructions. Supplier shall submit all required shipping papers to the University prior to final payment.

5. The Purchase Order number(s) must appear on all correspondence, shipping labels, and shipping documents, including all packing sheets, bills of lading and air bills. Supplier shall mark each shipping container clearly and permanently with the following:

   1. Supplier’s name and address

   2. University department’s name, address, and Purchase Order number(s);

   3. Container number and total number of containers, e.g. box 1 of 4 boxes; and

   4. The number of the container bearing the packing slip.

Returns

The University reserves the right to return merchandise to Supplier. All returned merchandise shall, to the best of the University’s ability, be returned in the original packaging and shall include all of the manufacturer’s documentation received with merchandise. Merchandise will be returned freight prepaid by the University if the University, in the order process, makes a mistake. Merchandise will be sent freight collect from the supplier, if the supplier, in the order process, makes a mistake. In no instance will the University pay a restocking charge if merchandise is sent to the University by mistake. If merchandise is represented in sale brochures or catalogs as merchandise that the Supplier normally stocks for sale in their business, the University will not pay a restocking charge. If merchandise is determined to be special order, the University will pay supplier’s customary restocking charge not to exceed 15% if the University, in the order process, makes a mistake. Upon receipt of merchandise, Supplier shall issue credit to the University in the amount of the price thereof, less any agreed upon applicable charges.

Payment

The University’s obligation is payable only and solely from funds appropriated for the purpose of this Agreement. The payment terms for this Agreement are Net 45 days, unless the Supplier offers discount terms for early payment.

Delivery

1. Time is and shall remain a material element of this Agreement, and no acts of the University, including without limitation modifications of this Agreement or acceptance of late deliveries, shall constitute waiver of this provision. The University also reserves the right to refuse or return at Supplier’s risk and expense shipments made in excess of the University’s orders or in advance of required schedules, or to defer payment on advance deliveries until scheduled delivery dates.

2. Supplier shall notify the University in writing immediately of any actual or potential delay to the performance of this Agreement and such notice shall include a revised schedule and shall not constitute a waiver to the University’s rights and remedies hereunder.

Termination for Convenience

1. The University may by notice in writing direct Supplier to terminate this Agreement or work under this Agreement in whole or in part, at any time, and such termination shall not constitute default. In such event, unless Supplier shall have defaulted or been in default in performance hereof, the University and Supplier shall have all rights and obligations accruing to it both at law or in equity, including the University’s rights to title and possession of goods paid for.

2. Supplier shall be reimbursed for actual, reasonable, substantiated and allowable costs, plus a reasonable profit for work performed to date of termination. The University may take immediate possession of all work so performed upon notice of termination.

3. Supplier’s obligations under the warranty, intellectual property, and confidentiality provisions of this Agreement shall survive such termination.

Termination for Default

1. The University may, by notice in writing, direct Supplier to terminate this Agreement or work under this Agreement in whole or in part at any time for breach of any one or more of its terms.

2. In the event of Supplier’s default hereunder, the University may exercise any or all rights accruing to it, both at law, including those set forth in Chapter 2 of the Texas Business and Commerce Code, (UCC), or in equity.

3. Supplier’s obligations under the warranty, intellectual property, and confidentiality provisions of this Agreement shall survive such termination.

Force Majeure

The University or Supplier shall be absolved from liability for any act, omission, or circumstance occasioned by any cause whatsoever not within the control of the party claiming suspension and which such party could not, by reasonable diligence, have avoided. Such acts, omissions, or circumstances, however, shall not relieve such party of liability in the event of its failure to use reasonable diligence to remedy the situation and remove the cause in an adequate manner and with all reasonable dispatch and to give notice and full particulars of the same in writing to the other party as soon as possible after the occurrence of the cause relied on.

Labor Disputes

Supplier shall give prompt notice to the University of any actual, or potential, labor dispute which delays or may delay performance under this Agreement.

Remedies

1. This Agreement shall be governed by and construed in accordance with the laws of the State of Texas. Venue for any action arising out of this agreement will be Tarrant County, Texas. The rights of both parties hereunder shall be in addition to their rights and remedies at law or in equity. Failure of the University to enforce any of its rights shall not constitute a waiver of such rights or of any other rights.

2. In no event shall Supplier be entitled to anticipatory profits or to special (including multiple or punitive), incidental, or consequential damages.

Proprietary Rights

1. Unless otherwise expressly agreed in writing to the contrary, all specifications, information, data, drawings, software and other items supplied to the University by Supplier shall be disclosed to the University on a non-proprietary basis and may be used and/or disclosed by the University without restriction.

2. Unless otherwise expressly agreed in writing to the contrary, all specifications information, data, drawings, software, and other items which are (i) supplied to Supplier by the University or (ii) obtained by Supplier and paid for by the University in the performance of this Agreement shall be maintained as proprietary to the University by Supplier, shall be used only for purposes of providing goods or services to the University pursuant to this Agreement, and shall not be disclosed to any third party without the University’s express written consent All such items supplied by the University shall be promptly returned to it on request or upon completion of this order.

The University’s Property

1. All information plus all drawings, tools, jigs, dies, fixtures, materials, and other items supplied or paid for by the University shall be and remain the property of the University; and the University shall have the right to enter Supplier’s premises and remove any such property at any time without being liable for trespass or for damages of any sort.

2. All such items shall be used only in the performance of work under this Agreement unless the University consents otherwise in writing.

3. Material made in accordance with the University’s specifications and drawings shall not be furnished or quoted by Supplier to any other person or concern without the University’s prior written consent.

4. Supplier shall have the obligation to maintain any and all property furnished by the University to Supplier and shall be responsible for all loss or damage to said property except for normal wear and tear.

Confidentiality

Supplier and the University (including their respective officers, trustees, employees, agents, subcontractors and assigns) shall keep confidential any and all information which is marked “Confidential” and obtained from the other party concerning the assets, properties, business services, trade secrets, organizational structure, philosophy, objectives, financial plans and results and other information relating to the other party (the “Confidential Information”), and shall not use such information (including without limitation, this Agreement) for any purpose other than that purpose contemplated under this Agreement.

Endorsement

Unless specifically authorized in writing by the University on a case by case basis, Supplier shall not have the right to use, and shall not use, the name of Texas Christian University, its officials or employees, or the seal or marks of the University in advertising, publicity or promotion; nor to express or imply any endorsement of Supplier’s products or services.

Warranty

1. Supplier warrants the materials delivered or services rendered on this Agreement to be free from defects in workmanship, materials, and design (when applicable) and to be in accordance with all the requirements of this Agreement. These warranties shall survive final acceptance and payment pursuant to UCC 2-601 and 2-608.

2. This warranty entitlement covers both the University and the University’s customers.

3. Supplier shall be liable for and save the University harmless from any loss, damage, or expense whatsoever that the University may suffer from breach of any of these warranties. Remedies include repair, replacement or reimbursement of the purchase price of nonconforming goods, at the University’s election.

Inspection and Audit

1. All material and workmanship shall be subject to inspection and test at all reasonable times and places by the University or the University’s customer before, during and after performance and delivery. The University may require Supplier to repair, replace or reimburse the purchase price of rejected material or the University may accept any materials and upon discovery of nonconformance, may reject or keep and rework any such materials not so conforming. Cost of repair, rework, replacement, inspection, transportation, repackaging, and/or re-inspection by the University shall be at Supplier’s expense.

2. If inspection and test are made on the premises of Supplier or Supplier’s subcontractors, Supplier shall furnish without additional charge all reasonable facilities and assistance for the safe and convenient inspection and tests required by the inspectors in the performance of their duty. The foregoing provisions of this Article are supplementary to and not in lieu of the provisions of (a) above.

3. The University’s failure to inspect does not relieve Supplier of any responsibility to perform according to the terms of the Agreement.

4. All books, accounts, reports, files and other records relating to this Agreement shall be subject at all reasonable times to inspection and audit by the University, or its agents for three (3) years after completion of this Agreement. Such records shall be produced at Texas Christian University, or such other location as designated by University, upon reasonable notice to the Supplier.

Changes

The University shall have the right by written order to suspend work or to make changes from time to time in the services to be rendered or the materials to be furnished by Supplier hereunder or the delivery date. If such suspension or changes cause an increase or decrease in the cost of performance of this Agreement or in the time required for its performance, an equitable adjustment shall be negotiated promptly and the Agreement shall be modified in writing accordingly. Any claim by Supplier for adjustment under this clause must be asserted in writing within 20 days from the date of receipt by Supplier of notification of the change or suspension and shall be followed as soon as practicable with specification of the amount claimed and supporting cost figures.Information, advice, approvals or instructions given by the University’s technical personnel or other representatives shall be deemed expressions of personal opinion only and shall not affect the University’s and Supplier’s rights and obligations hereunder unless set forth in a writing which is signed by the University’s Purchasing Representative.

Intellectual Property

1. Supplier warrants that the sale, use, or incorporation into manufactured products of all machines, parts, components, services, devices, material, and rights furnished or licensed hereunder which are not of the University’s design, composition or manufacture shall be free and clear of infringement of any valid patent, copyright, trademark, or other proprietary rights. Supplier shall indemnify and save the University and its customers harmless from any and all expenses, liability, and loss of any kind (including all costs and expenses including attorneys’ fees) growing out of claims, suits, or actions alleging such infringement, which claims, suits, or actions Supplier, hereby, agrees to defend. Supplier may replace or modify infringing goods with comparable goods acceptable to the University of substantially the same form, fit, and function so as to remove the source of infringement, and shall extend this provision thereto. If the use or sale of any of the above items is enjoined as a result of such claim, suit or action, Supplier, at no expense to the University, shall obtain for the University and its customers the right to use and sell said item.

2. Any invention or intellectual property first made or conceived by Supplier in the performance of this Agreement or which is derived from or based on the use of information supplied by the University shall be considered to be the property of the University; and Supplier shall execute such documents necessary to perfect the University’s title thereto.

Sales and Use Taxes

Texas Christian University is a 501(c)(3) non-profit educational institution and thus exempt from Texas sales and use taxes pursuant to Chapter 151 of the Texas Tax Code.

Assignments

Supplier may not assign any rights or obligations due or to become due under this Agreement without the prior written consent of the University. The University may assign this Agreement to (i) any affiliates, (ii) any successor in interest, or (iii) the University’s customer. The University shall have the right at any time to set off any amount owing from Supplier to the University or the University’s subsidiaries and/or affiliates against any amount due and owing to Supplier or any of its subsidiaries pursuant to this Agreement or any other Contractual agreement between the University and Supplier or their respective subsidiaries and/or affiliates.

Compliance with Law

Supplier warrants that the materials to be furnished and the services to be rendered under this Agreement shall be manufactured, sold, transported, and used in compliance with all relevant federal, state, local laws and regulations. Additionally, Supplier shall comply with all applicable laws, ordinances, codes, and regulations of any federal, state, county, or municipal government, bureau, or department, including any applicable regulations, relative to all of its activities and shall obtain and maintain all necessary licenses and permits at its sole cost and expense. University shall have no responsibility for fines incurred due to acts or omissions of Supplier, its employees, agents, or subcontractors.

Indemnification

1. Supplier shall defend, indemnify, and hold harmless Texas Christian University and its agents, officers, directors, and employees from any personal injury or property damage claim, suit, action, expense, loss, or damage whatsoever, including but not limited to such claims under strict liability together with attorney’s fees, arising out of or in any way connected with Supplier’s performance or failure to perform this Agreement or that of Supplier’s agents, employees, or subcontractors. Supplier shall be responsible for the actions and failure to act of all parties retained by, through, or under Supplier in connection with the performance of this Agreement. Supplier shall also maintain such General Liability, Property Damage, Employer’s Liability, and Workers Compensation Insurance and Motor Vehicle Liability (Personal Injury and Property Damage) Insurance as are specified in this Agreement or if none are specified, such amount as will protect Supplier (or its subcontractors) and the University from said risks and from any claims under any applicable Workers’ Compensation, Occupational Disease, and Occupational Safety and Health statutes including the Occupational Safety and Health Act.

2. University shall notify Supplier promptly, in writing, of any claim or action brought against University in connection with this Agreement. On such notification, Supplier shall promptly assume responsibility for and defend any and all such claims or actions. Supplier shall notify University promptly, in writing, of any claim or action brought against the Supplier in connection with this Agreement. University shall retain the right to be represented by counsel of its own choosing at Supplier’s reasonable expense.

3. Supplier shall without limitation as to time, indemnify and save University and its officers, directors, and employees harmless from all claims for injury to persons or property arising out of or related to such property unless the same are caused solely and directly by the University’s negligence.

Personnel

Employees of Supplier assigned to the project and identified by name in supporting documentation shall remain dedicated to this project. Personnel changes shall be permitted only with prior notification and approval of the University.

Furnish and Install

Where appropriate, items purchased will be provided on a supplier furnish and install basis. The successful Supplier shall have complete responsibility for the items or system until it is in place and working. Any special installation preparation and requirements must be submitted to the University. All transportation and coordinating arrangements will be the responsibility of the successful Supplier. Delivery of equipment will be coordinated so those items will be delivered directly to the installation site. This will minimize risk of damage and avoid double handling.

Insurance Requirements

Without limiting any liabilities or any other obligations, Supplier, at its own expense, shall provide and maintain for all work performed at University the minimum insurance coverage of the types and amounts listed below. Not later than one week prior to the Effective Service Date of this Agreement, Supplier shall provide a Certificate of Insurance to University evidencing such insurance coverage.

1. Commercial General Liability (CGL) and Excess Liability

   1. Supplier shall maintain CGL and, if necessary, commercial excess liability insurance with a limit of not less than $1,000,000 each occurrence and $2,000,000 aggregate. University shall be included as an additional insured under the commercial general liability and under the commercial excess coverage, if any.

   2. CGL insurance shall be written on Insurance Services Office, Inc. (ISO) occurrence form CG 00 01 12 04 (or a substitute form providing equivalent coverage). University shall be included as an insured under the CGL using ISO additional insured endorsement CG 20 10 or a substitute providing equivalent coverage, and under any excess liability policy and endorsement CG 20 37 or equivalent.

   3. This insurance shall apply as primary insurance with respect to any other insurance or self-insurance programs afforded to TCU. There shall be no endorsement or modification of the commercial general liability to make it excess over other available insurance; alternatively, if the commercial general liability states it is excess or pro rata, the policy shall be endorsed to be primary with respect to the additional insured.

   4. There shall be no endorsement or modification of the commercial general liability limiting the scope of coverage for liability assumed under this Agreement.

2. Commercial or Business Automobile Liability and Excess Liability

   1. Supplier shall maintain business/commercial automobile liability and, if necessary, commercial umbrella liability insurance with a limit of not less than $1,000,000 each accident. Such insurance shall cover liability arising out of any auto (including owned, hired, and non-owned vehicles).

   2. Coverage as required by this section shall be written on a standard ISO business auto, garage, truckers, or motor carrier policy form. Insurance coverage as required by this section shall be written on ISO form CA 00 01, CA 00 05, CA 00 12, CA 0020, or a substitute form providing equivalent liability coverage. Supplier shall affect insured status for University under coverage required by this section using ISO endorsement CA 20 48 or an equivalent form.

   3. Supplier waives all rights against TCU, its Board of Trustees’ past and present members, agents, officers, employees and volunteers for recovery of damages to the extent such damages are covered by the business automobile liability or commercial excess liability insurance obtained by Supplier pursuant to this Agreement.

3. Workers’ Compensation and Employer’s Liability

   1. Supplier shall maintain workers’ compensation and employer’s liability insurance.

   2. The workers compensation coverage shall be in an amount no less than the applicable state’s statutory requirements.

   3. The commercial umbrella/or employer’s liability limits shall not be less than $1,000,000 each accident for bodily injury by accident or $1,000,000 each employee for bodily injury by disease.

   4. Supplier waives all rights against University and its Board of Trustees’ past and present members, employees, officers, directors and agents for recovery of damages to the extent these damages are covered by the workers’ compensation and employer’s liability or commercial umbrella liability insurance obtained by Supplier pursuant to this section. Supplier shall obtain an endorsement equivalent to WC 00 03 13 to affect this waiver.

4. Professional Liability (Errors and Omissions Coverage)

   1. This coverage is required if Supplier is performing or providing services under an agreement or contract with the University and meets the following criteria:

      1. Is required to be certified by a governmental body or administrative agency, OR

      2. Such provider’s error in judgment, planning or design could result in economic loss to the University.

   2. At the sole discretion of TCU’s Director of Risk Management, the service provider may be required to maintain and evidence such coverage for a period of three (3) years after completion of project, work or service.

   3. Minimum limits of insurance under this section shall be $1,000,000 per claim.

5. Evidence of Insurance

   1. Supplier shall, prior to commencement of any services related to this Agreement, furnish University with Certificate(s) of Insurance executed by a duly authorized representative of respective insurer(s) showing compliance with the requirements set forth above.

   2. Such Certificate(s) of Insurance shall be presented to the University department as soon as possible but not later than one week prior to the Effective Service Date of the purchase order and/or contractual agreement.

   3. All Certificates of Insurance shall provide for sixty (60) days written notice to University prior to cancellation or material change of any insurance referred to therein.

   4. Certificate Holder Section of Certificate of Insurance shall be written as follows:

      Texas Christian University
      ATTN: Drew Solomon, Director of Risk Management
      TCU Box 297110
      Fort Worth, Texas 76129

   5. The Description of Operations Section of Certificate of Insurance shall reference the PO/contract/quote number or the University Department that will be in charge of administration of the contract.

Choice of Law and Venue

The Agreement shall be construed under the laws of the State of Texas exclusive of its choice of law, rules, and venue in any action and/or litigation commenced to enforce the Agreement and shall be instituted in the appropriate courts in Tarrant County in the State of Texas.

Financial Arrangement and Access to Records

Supplier agrees that the University, or any of its duly authorized representatives, at any time during the term of the Agreement, shall have access to, and the right to audit and examine, with reasonable notice, any pertinent books, documents, papers, and records of Supplier related to Supplier’s charges and performance under this Agreement. Supplier shall keep such records for a period of three (3) years after the termination of Agreement. Supplier agrees to refund to the University any overpayment disclosed by such audit within thirty (30) days of notice by the University, and, in the event any such audit shall disclose an overpayment by the University of greater than 10% of the amount properly owed, the Supplier shall pay the cost of such audit.

Equal Opportunity

In the execution of the Agreement, the Supplier and all subcontractors agree, consistent with University policy, not to discriminate on the grounds of race, color, sex, national origin or citizenship status, age, disability, or veteran status and to provide reasonable accommodations to qualified individuals with disabilities upon request.Supplier certifies and represents that in the performance of this contract it will comply with the provisions of all applicable federal, state and local laws, regulations, rules and orders. Any provision which is required to be a part of this contract by virtue of any such law, regulation, rule or order is incorporated herein by reference: including but not limited to Executive Order 11246, as amended; Section 503 of the Rehabilitation Act of 1973, as amended (29 U.S.C. 793); Section 402 of the Vietnam Era Veterans Readjustment Assistance Act of 1974, as amended (38 U.S.C. 4212), and their respective implementing regulations at 41 CFR part 60; and Executive Order 13465 (Employment Eligibility Verification); and Executive Order 13496 (Employee Rights Under National Labor Relations Act).

Non-Exclusivity

University may contract with more than one Supplier during the term of any contractual agreement. Supplier acknowledges that entry into an Agreement to provide services to University does not obligate University to purchase products or services from Supplier any minimum number of occasions, or at all, during the Agreement term.

No Kickbacks or Extra Benefits

Supplier represents and warrants that no trustee, officer, employee, student or agent of University has been or will be employed, retained or paid a fee, or otherwise receive or will receive any personal compensation or consideration of any kind by or from Supplier’s directors, officers, employees, or agents in connection with obtaining, arranging, negotiating, or performing this Agreement.