(Revision date 02/14/2024)
1. General
2. Electronic Facsimlie Transmission
3. Payment
4. Time
5. Improper Performance and Disputes
6. Warranty
7. Risk of Loss
8. Indemnity and Hold Harmless
9. Assignment/Subcontracting
10. Insurance
11. Examination of Records
12. Renegotiation
13. Non-Discrimination in Employment
14. Compliance with Laws and Regulations
15. Termination Without Cause
16. Background Checks
17. Additional Provisions for Work Performed on Site
18. Commitment to Environmental Sustainability
19. Confidentiality and Privacy Requirements
20. Proprietary Rights
1. General
The following terms and conditions, together with such terms as are set forth in the Purchase Order Form ("Form"), with such plans, specifications or other documents as are incorporated by reference, as amended in any subsequent authorized writing from Buyer, shall constitute the entire contract (the "Purchase Order") between The Trustees of the University of Pennsylvania ("Buyer") and Supplier. If bid documents, performance specifications, technical product descriptions or other similar descriptive materials submitted by Supplier in connection with the Purchase Order, or Supplier's proposal, have been incorporated by reference, these shall not be deemed to supersede any contrary requirements of Buyer, but to the extent that such materials are not inconsistent with Buyer's requirements, they shall constitute a part of the basis of this agreement. If this Purchase Order is construed as an offer, this offer expressly limits acceptance to the terms of this offer and notice of objection to any different or additional terms in any response to this offer is hereby given. If this Purchase Order is construed as an acceptance of an offer, this acceptance is expressly conditioned upon the offeror's assent to any different or additional terms contained or referenced in this Purchase Order. If this Purchase Order is construed as a confirmation of an existing contract, the parties agree that this confirmation states the exclusive terms of any contract between the parties. This Purchase Order shall be deemed to have been accepted by the Supplier upon receipt by the Buyer of any writing, including a writing transmitted by fax or other means of electronic transmission, indicating acceptance, or by any of the following: (i) shipment of the goods or any portion thereof, (ii) commencement of any work on site or (iii) performance of any services hereunder.
2. Electronic/Facsimile Transmission
If this Purchase Order is transmitted by fax or by other means of electronic transmission, such transmission shall have the legal significance of a duly executed original delivered to the Supplier, but only if the Transmit Terminal Identification on the Form includes the notation "Penn Procurement Services."
3. Payment
Payment to supplier is subject to the acceptance of goods or other performance conforming to the terms of this Purchase Order. Method and timing of payments are as set forth through the University’s supplier registration and maintenance process.
Except as otherwise provided in the Purchase Order, the price includes all applicable Federal, State and local taxes and duties. Supplier assigns to Buyer all rights to refunds of sales and use taxes paid in connection with this Purchase Order and agrees to co-operate with Buyer in the processing of any refund claims. Unless expressly otherwise agreed to, Buyer shall not be liable for any shipping, handling, fuel surcharges or similar fees.
4. Time
If delivery or completion dates can not be met, Supplier shall inform Buyer immediately. Such notice shall not, however, constitute a change to the delivery or completion terms of this Purchase Order unless Buyer modifies this Purchase Order in writing. If any item is not received or if any element of the work is not completed by the date specified, the Buyer, at Buyer's option and without prior notice to Supplier, may either approve a revised date or may cancel this Purchase Order and may obtain such goods or work elsewhere and in either event the Supplier shall be liable to the Buyer for any resulting loss incurred by the Buyer. Supplier's sole remedy for a delay caused by Buyer shall be an extension in the time for Supplier's performance equal to the duration of Buyer's delay. Supplier shall not be liable for damages resulting from Supplier's failure to deliver or complete, or for delays in delivery or completion, caused solely by strikes not caused by or within the control of Supplier, lock-outs not caused by or within the control of Supplier, fires, war or acts of God. TIMING OF DELIVERY AND/OR PERFORMANCE OF THE WORK IS OF THE ESSENCE OF THIS PURCHASE ORDER.
5. Improper Performance and Disputes
In addition to other remedies provided by law, Buyer reserves the right to reject any goods or to revoke any previous acceptance and to cancel all or any part of the Purchase Order if Supplier fails to deliver all or any part of the goods or perform any of the work in accordance with the terms and conditions of this Purchase Order. Acceptance of any part of the Purchase Order shall not bind the Buyer to accept any future shipments or work, nor deprive it of the right to return goods already accepted. At Buyer's option, if Buyer so elects in its sole discretion with regard to any particular dispute, any dispute arising in connection with this Purchase Order shall be resolved by arbitration in Philadelphia, PA in accordance with the rules of the American Arbitration Association; and all disputes shall otherwise be resolved in and only in the Court of Common Pleas of Philadelphia County, PA as the exclusive judicial forum. BUYER AND SELLER WAIVE THEIR RIGHT TO A JURY TRIAL WITH REGARD TO ANY DISPUTE ARISING IN CONNECTION WITH THIS PURCHASE ORDER.
6. Warranty
Supplier expressly warrants all (i) goods delivered under this Purchase Order to be free from defects in material and workmanship and to be of the quality, size and dimensions ordered and (ii) work performed under this Purchase Order to be in conformity with all plans, specifications and other data incorporated as part of this Purchase Order. Notwithstanding any limitation of warranty, Supplier further represents and warrants that the supply, quality and fitness for the purpose of the goods or services will not be impaired, disrupted or interrupted in whole or in part by the occurrence of any leap year. These express warranties shall not be waived by reason of acceptance or payment by the Buyer. This Purchase Order incorporates by reference all terms of the Uniform Commercial Code as adopted in the Commonwealth of Pennsylvania (the "UCC") providing any protection to Buyer for goods, including but not limited to all warranty protection (express or implied) and all of Buyer's remedies under the UCC. All goods and work shall also be subject to any stricter warranties specified in the Purchase Order or in other materials incorporated by reference.
7. Risk of Loss
Unless the Purchase Order expressly states otherwise, all goods shall be shipped FOB: the "Ship to" location designated in the Form. Risk of loss shall not pass to Buyer until goods called for in this Purchase Order actually have been received and accepted by the Buyer at the destination specified herein. Supplier assumes full responsibility for packing, crating, marking, transportation and liability for loss and/or damage even if Buyer has agreed to pay freight, express or other transportation charges.
8. Indemnity and Hold Harmless
From and after the date of this Purchase Order, the Supplier agrees to indemnify, defend and hold harmless the Buyer from any and all claims and liabilities, regardless of by whom such claim or liability may be asserted, for personal injury (including death), or loss or damage to property, or otherwise that may result directly or indirectly from the use, possession or ownership of the goods or from the services provided by Supplier pursuant to this Purchase Order.
With regard to Supplier's obligation to defend, the Buyer shall have the right to select the legal counsel whom Supplier shall provide to defend any Indemnified Party, subject to Supplier's approval of the qualifications of such legal counsel and the reasonableness of counsel's hourly rates as compared to the rates of attorneys with similar experience and qualifications in the relevant area of legal expertise and in the jurisdiction where the claim will be adjudicated. If the Buyer elects, in its sole discretion, to retain separate legal counsel, in addition to or in lieu of the counsel to be provided by Supplier, then all costs and expenses incurred by the Buyer for such separate counsel shall be borne by the Buyer and the Supplier shall reasonably cooperate with the Buyer and its separate legal counsel in the investigation and defense of any such claim or action. Supplier shall not settle or compromise any claim or action giving rise to Claims in a manner that imposes any restrictions or obligations on Buyer without Buyer's prior written consent. If the Buyer elects to require that Supplier defend a Claim pursuant to this paragraph, and Supplier fails or declines to assume the defense of such Claim within thirty (30) days after notice thereof, the Buyer may assume the defense of such Claim for the account and at the risk of Supplier, and any Liabilities related thereto shall be conclusively deemed a liability of Supplier. The indemnification rights of the Indemnified Parties contained herein are in addition to all other rights which such Indemnified Party may have at law or in equity or otherwise.
9. Assignment/Subcontracting
Neither party shall have any right to assign this Purchase Order or any benefits arising from this Purchase Order without prior written consent of the other and, unless otherwise agreed upon in writing, the rights of any assignee shall be subject to all set-offs, counterclaims, and other comparable rights arising hereunder. Supplier shall not, except in the case of raw materials, castings, forgings or rough welded structures, or standard commercial goods, or except as otherwise agreed in writing by the Buyer, delegate or subcontract the work on any item of material or service to be delivered or performed under this Purchase Order.
10. Insurance
In connection with the Purchase Order, Supplier, at its own cost and expense, shall obtain and maintain in force during the term of this Purchase Order, the following insurance coverage:
- A policy of workers' compensation insurance, in amounts required by law, covering all officers and employees of Supplier who are in any way engaged in or connected with the Purchase Order, and employer's liability insurance in an amount of not less than Five Hundred Thousand Dollars ($500,000). Supplier shall require its agents, sub-suppliers and subcontractors, who are in any way engaged in or connected with the Purchase Order to maintain the same insurance as required herein of Supplier.
- A policy of commercial general liability insurance with broad form property damage endorsement, personal injury and products completed operations coverage, affording protection in an amount of not less than Two Million Dollars ($2,000,000) per incident and in the aggregate, with respect to personal injury, death, or damage to property.
- If this Purchase Order contemplates professional services, a policy of professional liability insurance, including errors and omissions, affording protection of not less than One Million Dollars ($1,000,000) per incident and One Million Dollars ($1,000,000) in the aggregate.
- A policy of comprehensive automobile liability insurance covering the operation of all motor vehicles used by Supplier or its agents in connection with this Purchase Order, affording protection in an amount of not less than One Million Dollars ($1,000,000) combined single limit with respect to personal injury, death, or damage to property.
All of these insurance policies shall be issued by insurance companies with an AM Best rating of "A" or higher and a financial strength rating of VII or higher, or equivalent ratings provided by a disinterested, generally recognized rating agency, which companies shall be licensed or permitted to conduct business in the Commonwealth of Pennsylvania. The commercial general liability policy shall name The Trustees of the University of Pennsylvania as an additional insured, and shall be written as primary coverage and not contributing with or in excess of any coverage that the Buyer may carry. Upon request, Supplier shall furnish to Buyer a current certificate of insurance for each of the policies required above. Insurance coverage(s) provided under this Purchase Order shall not limit or restrict in any way the liability of Supplier arising under or in connection with this Purchase Order. Such insurance shall not be canceled or terminated without ten (10) days prior written notice of any cancellation or termination.
11. Examination of Records
The Supplier agrees that Buyer, and any Federal agency providing funding for this Purchase Order and the Comptroller General of the United States or any of their duly authorized representatives, shall have access to and the right to examine any pertinent books, documents, papers and records of the Supplier involving transactions related to this Purchase Order to the extent necessary to verify the nature and extent of costs incurred under this Purchase Order until the expiration of four (4) years after final payment under this Purchase Order. Nothing in this Purchase Order shall be deemed to preclude an audit by the U.S. General Accounting Office of any transaction under this Purchase Order. The preceding two sentences shall not apply if this Purchase Order does not involve a sum in excess of One Thousand Dollars ($1,000), or if this is an agreement for public utility services at rates established for uniform applicability to the general public, or if this is as agreement for general inventory goods not specifically identifiable with work under the Buyer's contract with the government.
12. Renegotiation
If this Purchase Order is subject to the Renegotiation Act of 1951, as amended, then it shall be deemed to contain all the provisions required by Section 104 of said Act as amended. Nothing contained in this clause shall impose a renegotiation obligation with respect to this Purchase Order or any subcontract hereunder which is not imposed by an act of Congress heretofore or hereafter enacted. Supplier agrees to include the provisions of this clause in all subcontracts as required by Section 103(g) of the Renegotiation Act.
13. Non-Discrimination in Employment
In connection with the performance of work under this Purchase Order, the Supplier agrees as follows:
- Buyer is a federal contractor, subject to Executive Order 11246 (as amended), the Vietnam Era Veteran's Readjustment Assistance Act (as amended) and Section 503 of the Rehabilitation Act of 1973 (as amended), along with related regulations. This Purchase Order is subject to the requirements of 41 CFR 60-1.4 and 29 CFR part 471, Appendix A to Subpart A, which are incorporated into this Purchase Order by reference, as applicable. These regulations prohibit discrimination on the basis of race, color, religion, sex or national origin and require affirmative action to employ and advance in employment individuals without regard to race, color, religion, sex or national origin. In addition, this Purchase Order is subject to the requirements of 41 CFR 60-300.5(a) and 41 CFR 60-741.5(a), which are incorporated herein by reference, as applicable. This Buyer and Supplier shall abide by the requirements of 41 CFR 60-300.5(a) and 41 CFR 60-741.5(a), as applicable. These regulations prohibit discrimination against qualified individuals on the basis of disability and protected veteran status, and require affirmative action to employ and advance in employment qualified individuals with disabilities and qualified protected veterans.
- The Supplier will furnish all information and reports required by Executive Order No. 11246 as amended, and by the rules, regulations, and orders of the U.S. Secretary of Labor, or pursuant thereto, and will permit access to Supplier's books, records, and accounts by the contracting agency and the U.S. Secretary of Labor for purposes of investigation to ascertain compliance with such rules, regulations, and orders.
- In the event of the Supplier's non-compliance with the non-discrimination clauses of this Purchase Order or with any of the said rules, regulations, or orders, this Purchase Order may be cancelled, terminated or suspended in whole or in part and the Supplier may be declared ineligible for further Government contracts as provided by law.
14. Compliance with Laws and Regulations
The Supplier agrees to comply with all applicable federal, state, and local laws and regulations. If this Purchase Order is issued pursuant to a contract between the Buyer and the federal government, the provisions of OMB Circular A-110 (1993)-Appendix A shall apply in accordance with their terms. OMB Circular A-110 mandates compliance with the Copeland "Anti-Kickback" Act, the Davis-Bacon Act, and the Contract Work Hours and Safety Standards Act, Sections 102 and 107. If the amount of this Purchase Order exceeds One Hundred Thousand Dollars ($100,000) and any portion of the Purchase Order is funded by the federal government, Supplier shall file the certifications required by the Byrd Anti-Lobbying Amendment, and shall comply will all applicable standards, orders and regulations issued pursuant to the Federal Water Pollution Control Act and the Clean Air Act. Supplier shall provide certification regarding its and its principal employees' exclusion status upon request. COPIES OF OMB CIRCULAR A-110 (1993) APPENDIX-A AND INFORMATION REGARDING THE SOURCE OF FUNDS FOR THIS PURCHASE ORDER WILL BE PROVIDED TO SUPPLIER UPON REQUEST.
Web Accessibility: Supplier acknowledges that the University of Pennsylvania is committed to making academic and administrative tasks accessible to individuals with disabilities in compliance with applicable law. When applicable, Supplier agrees and warrants that all of its Web-based services and products comply with Web Content Accessibility Guidelines (WCAG) 2.1 Level AA, or will be modified to be compliant prior to delivery to the University of Pennsylvania. Supplier further agrees and warrants that all Web-based services and products shall remain in full compliance with the above Web accessibility guidelines during the term of the agreement.
15. Termination Without Cause
Buyer, in its sole discretion and without cause, may terminate this Purchase Order, in whole or in part, at any time without incurring liability to Supplier for lost profits, or any other costs or damages, other than the proportionate value of the purchase price for work completed on site or goods delivered. Payment due shall be a percentage of the purchase price equal to the percentage of the work completed and/or any unit prices in the purchase price specified for goods delivered. Supplier's warranties, and Supplier's liability for defective or non-conforming work or goods, as well as sections 5, 6, 8, 10, 11 and 17 of these Terms and Conditions, shall survive termination and remain in full force and effect.
16. Background Checks
With respect to all persons employed or contracted by Supplier to perform services under this Agreement, Supplier shall ensure that pre-employment or pre-contracting reference and background checks are conducted on all personnel directly performing services under this Agreement (which shall include but not be limited to, all such persons who shall come on to the premises of the University in the performance of their duties or tasks). Supplier will be responsible for insuring that federal, state and county of residence criminal background checks are conducted on all personnel so employed or contracted and shall exclude from any direct participation in the performance of the Services any dishonest, unreasonably dangerous or otherwise unqualified persons. Supplier will abide by all applicable laws, rules and regulations including, but not limited to the Fair Credit Reporting act and/or any equal opportunity laws, rules, regulations or ordinances.
Supplier agrees to comply with the Pennsylvania Child Protective Services Law (PA CPSL) with respect to any of Supplier’s employees who will have direct contact with minors, as defined in the PA CPSL, when performing services pursuant to this Agreement. This includes the timely and successful completion of the three-part background check required by the PA CPSL: (i) a report of criminal history from the Pennsylvania State Police (PSP); (ii) a Child Abuse History Clearance from the Department of Human Services (Child Abuse); and (iii) a fingerprint based federal criminal history submitted through the Pennsylvania State Police or its authorized agent (FBI). This also includes compliance with the PA CPSL’s reporting and recordkeeping requirements.
17. Additional Provisions for Work Performed on Site
The provisions set forth in Paragraphs 17(a) through 17(f) below shall apply to work performed at locations owned, leased or otherwise controlled by Owner ("Owner's Site") unless Exhibit "B" applies. For construction work, Exhibit "B" of these terms and conditions sets forth alternate provisions and requirements that shall apply in lieu of Paragraph 17(a) through 17(f).
- The Supplier shall maintain on the Site at all times a sufficient work force to carry out its obligations in an efficient and timely manner. The Supplier shall employ only competent, skilled, reliable and honest workmen who will work in harmony with other workmen on the Site. All persons furnished by Supplier shall be deemed Supplier's employees or agents, and Supplier shall comply with all applicable statutes regarding worker's compensation, employer's liability, unemployment compensation, and/or old age benefits and all other applicable laws relating to or affecting the employment of labor. At the Owner's instruction, the Supplier shall promptly remove from the Site any employee who, in the Owner's opinion, represents a threat to the safety or progress of the Project or persons on the Site, or who has engaged in any improper conduct, specifically including (without limitation) conduct which the Owner perceives as constituting harassment of students or other persons.
- Supplier shall secure all materials and the site where Work is performed, and shall leave all areas broom clean (unless a more stringent cleanliness standard is set forth in documents that are incorporated in this Purchase Order by reference) and in a safe condition at the end of each work day and upon completion of the Work. In case of dispute, Owner may remove waste at Supplier's expense.
- Supplier shall ensure that federal, state and county of residence criminal background checks are conducted on all persons performing Work at the Site, and shall exclude from the Site any dishonest, dangerous or otherwise unqualified persons.
- In the event of an emergency threatening health, life or property, the Supplier shall take such action as may be necessary to save lives and protect persons from injury and, this being done, to protect and preserve property. The Supplier shall notify the Owner of any such emergency as promptly as is practicable under the circumstances.
- The University's Division of Facilities and Real Estate Services ("FRES") has established a Cyber Security Policy for users of the cyber secure network under the control of FRES. This Cyber Security Policy addresses issues relating to data security and is incorporated by reference in these terms and conditions for Vendors and Service Providers (hereinafter "Vendors") who will be (i) connecting directly into Penn's cyber secure network; and /or (ii) providing services related to installation, modification, maintenance and /or repairs to any equipment that comprises or connects to the University's cyber secure Supervisory Control and Data Acquisition ("SCADA") network. The equipment subject to the requirements include Building Automation Systems. See Exhibit "C" for the full policy
- A Safety Plan must be onfile with FRES Operations and Maintenance prior to onsite activity. The Plan shall include worksite safety (including COVID), Penn Community protection and note compliance with OSHA 29 CFR 1910 & 1926.
18. Commitment to Environmental Sustainability
As a signatory of the American College and University Presidents Climate Commitment, the University is committed to environmental stewardship. The Supplier agrees to use its best efforts to support the University's environmental sustainability efforts and promote sustainable business practices within its own organization. The University may from time to time request information from the Supplier to ensure that it is demonstrating commitment to environmental sustainability. Supplier agrees to provide information as requested, In addition, Supplier will consider any commercially reasonable requests that the University puts forth to promote environmentally sustainable business practices. The Supplier’s response to these requests may inform the University’s decision when purchasing those goods or services in the future
19. Confidentiality and Privacy Requirements
See Exhibit "A" of these terms and conditions for Confidentiality and Privacy Requirements, which are incorporated herein by reference.
20. Proprietary Rights
All Deliverables prepared for Customer under this Agreement, Supplier’s other work product under this Agreement, and all Statements of Work entered into hereunder, including all concepts, inventions, ideas, patent rights, data, trademarks, and copyrights which are related to, arise out of, or developed in connection with (i) the Deliverables or Supplier’s other work product, or (ii) any and all Services, shall be the exclusive property of, and all ownership rights therein shall vest in, Customer. Supplier agrees to sign all necessary documents or take such other actions as Customer may reasonably request in order to perfect any and all such rights.
The Parties expressly agree that all Deliverables and Supplier work product created under this Agreement are intended to be Works Made For Hire, as defined in the U.S. Copyright Act, 17 U.S.C. 101, and the copyrights therein shall vest in Customer as author. All other work product created pursuant to this Agreement, whether copyrightable or not, including without limitation any Deliverables or Supplier works which may be deemed by competent authority not to be Works Made For Hire, are hereby assigned to Customer, effective from the moment of creation, including without limitation all right, title and interest in and to the copyright thereof throughout the world, all renewals and extensions thereof and the right to use, make and distribute copies in any and all media, with or without attribution, with or without modification, including but not limited to the right to translate, and/or make derivative works therefrom. Supplier agrees to execute and to secure the execution from the applicable authors retained by Supplier all registrations, assignments, transfer documents and other instruments necessary or desirable in the reasonable opinion of Customer to record any assignment or registration of copyright or other transfer of ownership in any work transferred to Customer pursuant to this Agreement.
Supplier retains its ownership interests to and in proprietary information, templates, processes, methodologies, inventions, patents, know-how and software that it owns as of the Effective Date (all of the foregoing, the “Supplier Intellectual Property”). To the extent Supplier Intellectual Property is incorporated into Deliverables or Supplier work product created under this Agreement or is necessary for the use of the Services, Deliverables or Supplier work product provided under this Agreement, Supplier grants to Customer for the benefit of Customer, its Affiliates, and their respective agents, successors, permitted assigns and contractors the irrevocable, perpetual, non-exclusive, worldwide, royalty-free, paid-up right and license to Supplier Intellectual Property for Customer’s use of such Services, Deliverables and Supplier work product.