Terms and Conditions of Purchase
- "University" means The University of Texas at San Antonio.
- "Contractor" means the University's contracted provider under this purchase order.
- "Agreement" means the purchase order issued by University to Contractor.
SECTION I: INCORPORATED INTO ALL AGREEMENTS
- If delay in delivery is foreseen, the Contractor will notify the University, Purchasing and Distribution Services Department, One UTSA Circle, San Antonio, Texas 78249, (210) 458-4060. The University has the right to extend delivery date if reasons appear valid. Default in promised delivery (without accepted reasons) or failure to meet specifications authorizes the University to purchase supplies elsewhere and charge full increase in cost, if any, to defaulting Contractor.
- No substitutions or cancellations permitted without approval of the University's Purchasing and Distribution Services Department.
- The Texas Health and Safety Code, Chapter 502, Texas Hazard Communication Act, requires chemical manufacturers and distributors to provide Material Safety Data Sheets (MSDS's) for hazardous materials sold. Products covered by the Act must be accompanied by a MSDS and such product labeled in compliance with the law. If the product is not covered under the Act, a statement of exemption must be provided.
- Delivery will be made during normal working hours only to the location shown.
- The University is exempt from State Sales Tax and Federal Excise Tax. Tax Exemption Certificate furnished on request.
- The Contractor will submit an itemized invoice showing the purchase order number and a valid Contractor ID number.
- Materials will be considered received by the University upon final acceptance by the end user.
- If the Contractor is a taxable entity as defined by Chapter 171, Texas Tax Code ("Chapter 171"), the Contractor certifies that it is not currently delinquent in the payment of any taxes due under Chapter 171, or that the Contractor is exempt from the payment of those taxes, or that the Contractor is an out-of-state taxable entity that is not subject to those taxes, whichever is applicable.
- Pursuant to Sections 2107.008 and 2252.903, Texas Government Code, the Contractor agrees that any payments owing to the Contractor under this may be applied directly toward any debt or delinquency that the Contractor owes the State of Texas or any agency of the State of Texas regardless of when it arises, until such debt or delinquency is paid in full.
- All payments will be made in accordance with Texas Government Code, Chapter 2251 (Texas Prompt Payment Act) http://www.statutes.legis.state.tx.us/SOTWDocs/GV/pdf/GV.2251.pdf. Standard payment terms in accordance with the Texas Prompt Payment Act are Net 30 from receipt of materials/services, or receipt of invoice, whichever is later, unless otherwise specified by the Agreement.
- Pursuant to Section 2155.004 and 2155.006, Texas Government Code, the Contractor certifies that the individual or business entity named in this Agreement is not ineligible to receive the award of or payments under this Agreement and acknowledges that this Agreement may be terminated and payment withheld if this certification is inaccurate.
- Pursuant to Section 231.006, Texas Family Code, the Contractor certifies that it is not ineligible to receive the award of or payments under this Agreement and acknowledges that this Agreement may be terminated and payment may be withheld if this certification is inaccurate.
- If the Contractor will provide services under this Agreement, the Contractor covenants and agrees that in accordance with Section 2155.4441, Texas Government Code, in performing its duties and obligations under this Agreement, the Contractor will purchase products and materials produced in Texas when such products and materials are available at a price and delivery time comparable to products and materials produced outside of Texas.
- Except as otherwise provided in this Section, all notices, consents, approvals, demands, requests or other communications provided for or permitted to be given under any of the provisions of this Agreement will be in writing and will be deemed to have been duly given or served when delivered by hand delivery or when deposited in the U.S. mail by registered or certified mail, return receipt requested, postage prepaid, and addressed as follows: The University of Texas at San Antonio, Purchasing and Distribution Services Department, One UTSA Circle, San Antonio, Texas 78249, or such other person or address as may be given in writing by the University in accordance with the aforesaid. Such a notice must reference the purchase order number for this Agreement.
- This Agreement supersedes all prior agreements, written or oral, between the Contractor and the University and will constitute the entire agreement and understanding between the parties with respect to the subject matter hereof. This Agreement and each of its provisions will be binding upon the parties and may not be waived, modified, amended or altered except by a writing signed by the University and the Contractor.
- The Contractor understands that acceptance of funds under this Agreement constitutes acceptance of the authority of the Texas State Auditor's Office, or any successor agency (collectively, "Auditor"), to conduct an audit or investigation in connection with those funds pursuant to Sections 51.9335(c), 73.115(c) and 74.008(c), Texas Education Code. The Contractor agrees to cooperate with the Auditor in the conduct of the audit or investigation, including without limitation providing all records requested. The Contractor will include this provision in all contracts with permitted subcontractors.
- No member of the Board of Regents of The University of Texas System has a direct or indirect financial interest in the transaction that is the subject of this Agreement.
In the event the Contractor, its employees, agents or subcontractors enter premises occupied by or under the control of the University in the performance of this Agreement, the Contractor agrees that it will maintain public liability and property damage insurance in reasonable limits covering the obligations set forth in this Agreement, and will maintain workers compensation coverage (either by insurance or if qualified pursuant to law, through a self-insurance program) covering all employees performing this Agreement on premises occupied by or under the control of the University.
To the extent that Chapter 2260, Texas Government Code, is applicable to this Agreement and is not preempted by any other applicable law, the dispute resolution process provided for in Chapter 2260 and the related rules adopted by the Texas Attorney General pursuant to Chapter 2260 will be used by the University and the Contractor to attempt to resolve any claim for breach of contract made by the Contractor that cannot be resolved in the ordinary course of business. The Chief Business Officer of the University will examine the Contractor's claim and any counterclaim and negotiate with the Contractor in an effort to resolve such claims. The parties hereto specifically agree that (i) neither the execution of this Agreement by the University nor any other conduct, action or inaction of any representative of the University relating to this Agreement constitutes or is intended to constitute a waiver of the University's or the state's sovereign immunity to suit; and (ii) the University has not waived its right to seek redress in the courts.
- Termination for Convenience: Upon written notice to the Contractor, the University may terminate this contract, in whole or in part, whenever the University will determine that such termination is in the best interest of the University. The University will pay all reasonable costs incurred up to the date of termination and all reasonable costs associated with termination of the contract. However, the Contractor may not be reimbursed for anticipatory profits. Termination hereunder, including the determination of the rights and obligations of the parties, will be governed by the provisions of the University's Procurement Policies and Procedures.
- Termination for Default: When the Contractor has not performed or has unsatisfactorily performed the contract, payment will be withheld at the discretion of the University. Failure on the part of a Contractor to fulfill contractual obligations will be considered just cause for termination of the contract and the Contractor is not entitled to recover any costs incurred by the Contractor up to the date of termination. Termination hereunder, including the determination of the rights and obligations of the parties, will be governed by the provisions of the University's Procurement Policies and Procedures.
- Termination for Loss of Funding: Continuation of the obligations set forth in this purchase past the end of any fiscal year (August 31st) may be dependent upon the appropriation and allotment of funds by the Texas State Legislature (the "Legislature") and/or allocation of funds by the Board of Regents of The University of Texas System (the "Board"). If the Legislature fails to appropriate or allot the necessary funds, or the Board fails to allocate the necessary funds, then the University will issue written notice to the Contractor and the University may terminate the Agreement without further duty or obligation hereunder. The Contractor acknowledges that appropriation, allotment, and allocation of funds are beyond the control of the University.
The Contractor represents and warrants ("EIR Accessibility Warranty") that the electronic and information resources and all associated information, documentation, and support that it offers to provide to the University under this Agreement (collectively, the "EIRs") comply with the applicable requirements set forth in Title 1, Chapter 213 of the Texas Administrative Code and Title 1, Chapter 206, Rule §206.70 of the Texas Administrative Code (as authorized by Chapter 2054, Subchapter M of the Texas Government Code). To the extent the Contractor becomes aware that the EIRs, or any portion thereof, do not comply with the EIR Accessibility Warranty, then the Contractor represents and warrants that it will, at no cost to the University, either (1) perform all necessary remediation to make the EIRs satisfy the EIR Accessibility Warranty or (2) replace the EIRs with new EIRs that satisfy the EIR Accessibility Warranty. In the event that the Contractor is unable to do so, then the University may terminate this Agreement and the Contractor will refund the University all amounts the University has paid under this Agreement within thirty (30) days after the termination date.
If the item(s) or service(s) specified in this Agreement require the Contractor access to confidential Data (e.g. social security numbers, credit card numbers, Family Educational Rights and Privacy Act (FERPA) protected data, Health Insurance Portability and Accountability Act (HIPAA) protected data), the Contractor agrees that it may (1) create, (2) receive from or on behalf of the University, or (3) have access to records or systems containing Confidential Data. The Contractor represents, warrants, and certifies that it will: (1) hold information in the strictest confidence and will not use or disclose information except as (a) permitted or required by this Agreement, (b) required by law, or (c) otherwise authorized by the University in writing; (2) safeguard information according to commercially reasonable administrative, physical and technical standards (e.g., National Institute of Standards and Technology, Center for Internet Security, Gramm-Leach Bliley Act, Payment Card Industry Data Security Standards (PCI-DSS); and (3) continually monitor its operations and take any action necessary to assure the information is safeguarded in accordance with the terms of this Agreement. The Contractor represents warrants and certifies that it complies with the University’s Contractor Access Requirements at http://www.utexas.edu/vp/it/policies/irusp/sec26. At the request of the University, the Contractor agrees to provide the University a written summary of the procedures the Contractor uses to safeguard this information. If an impermissible use or disclosure of any of the Confidential Data occurs, the Contractor will provide written notice to the University within one (1) business day after the Contractor‘s discovery of use or disclosure. The Contractor will promptly provide the University all information requested by the University regarding the impermissible use or disclosure. In addition to any other termination rights set forth in this Agreement and any other rights at law or equity, if the University reasonably determines that the Contractor has breached any restrictions or obligations set forth in this section, the University may immediately terminate this Agreement without notice or opportunity to cure.THE CONTRACTOR WILL DEFEND WITH COUNSEL APPROVED BY THE UNIVERSITY, INDEMNIFY, AND HOLD HARMLESS THE UNIVERSITY, THE UNIVERSITY OF TEXAS SYSTEM, THE STATE OF TEXAS, AND ALL OF THEIR REGENTS, OFFICERS, AGENTS AND EMPLOYEES, FROM AND AGAINST ALL ACTIONS, SUITS, DEMANDS, COSTS, DAMAGES, LIABILITIES AND OTHER CLAIMS OF ANY NATURE, KIND OR DESCRIPTION, INCLUDING REASONABLE ATTORNEYS’ FEES INCURRED IN INVESTIGATING, DEFENDING OR SETTLING ANY OF THE FOREGOING, ARISING OUT OF, CONNECTED WITH, OR RESULTING FROM ANY NEGLIGENT ACTS OR OMISSIONS OR WILLFUL MISCONDUCT OF THE CONTRACTOR OR ANY AGENT, EMPLOYEE, SUBCONTRACTOR, OR SUPPLIER OF THE CONTRACTOR IN THE EXECUTION OR PERFORMANCE OF THIS AGREEMENT.
THIS AGREEMENT IS ISSUED UNDER AND GOVERNED BY THE LAWS OF THE STATE OF TEXAS Travis County, Texas, will be the proper place of venue for suit on or in respect of this Agreement. Terms and Conditions are online at: http://www.utexas.edu/business/accounting/hbp/07_purch/purch11-4.html
SECTION II: GOVERNMENT SUBCONTRACT PROVISIONS
If this Agreement is a subcontract under a U.S. Government Prime Contract, the applicable clauses listed below are incorporated into, and form a part of, the terms and conditions of this Agreement. In the event of any conflict between the terms and conditions of this Section and any other provision of this order, the terms and conditions of this Section will prevail. The term "FAR" means the Federal Acquisition Regulations, including revision in effect on the date of this Agreement. The term "DFAR" means the Department of Defense Supplement to the Federal Acquisition Regulations, including revision in effect on the date of this Agreement. The terms "Contractor," "Government," and "Contracting Officer" as used in these clauses incorporated by this reference will be deemed to refer to the "Seller," "Buyer," and "The University of Texas at San Antonio" (University), respectively. Any reference to a "Disputes" clause in any of the clauses listed below will be deemed to refer to the "Disputes" clause contained in the Prime Contract. In no event will such reference to a "Disputes" clause be construed to allow the Seller, without the concurrence or approval of the University, to prosecute and appeal either directly or in the name of the University to the Contracting Officer for such Prime Contract.
The following provisions apply regardless of the amount of this Agreement:
- Equal Opportunity
- Hazardous Material Identification and Material Safety Data (when applicable)
- Restrictions on Certain Foreign Purchases
- Restrictive Markings on Technical Data (when applicable)
The following provisions apply if the amount of this order exceeds $10,000.00:
- Walsh-Healey Public Contracts Act
- Affirmative Action for Workers with Disabilities
The following provisions apply if the amount of this order exceeds $25,000.00:
- Certification Regarding Debarment, Suspension, Proposed Debarment, and Other Responsibility Matters
FAR 52.209-5 obtained prior to award
- Affirmative Action for Special Disabled and Vietnam Era Veterans
- Employment Reports on Disabled Veterans and Veterans of the Vietnam Era
- Clean Air and Water
The following provisions apply if the amount of this order exceeds $100,000.00:
- Anti-Kickback Procedures
- Limitations on Payments to Influence Certain Federal Transactions
- Audit and Records - Negotiation (if order was entered into by negotiation)
- Utilization of Small Business Concerns
- Drug-Free Workplace
- Authorization and Consent
- Notice and Assistance Regarding Patent and Copyright Infringement
- Responsibility for Supplies
The following provision applies if the amount of this order exceeds $500,000.00:
- Small Business Subcontracting Plan (does not apply to small business concerns)
The following provision applies if the amount of this order exceeds $550,000.00:
- Price Reduction for Defective Cost or Pricing Data (if order was entered into by negotiation, when applicable)
FAR 52.215-12, FAR 52.215-13
SECTION III: FEDERAL GRANT PROVISIONS
All contracts under Federal Grants awarded by recipient, including small purchases, will contain the following provisions as applicable:
- Notice of EEO and Affirmative Action Obligations
Under this Agreement, the University is operating as a federal contractor obligated to take affirmative action to employ females, minorities, individuals with disabilities, and protected veterans. The University is required to notify the Contractor that the Contractor may also have such obligations under this Agreement.
The following laws, codes, and regulations are attached to and incorporated into this Agreement for all purposes:
(1) the Equal Employment Opportunity Clause required under Executive 11246, (41 C.F.R. 60-1.4);
(2) the affirmative action commitment for special disabled veterans and veterans of the Vietnam Era set forth in 41 [C.F.R. 60-300.44(f)(1)(ii)];
(3) the Affirmative Action Clause for Section 503 of The Rehabilitation Act of 1973 set forth in 41 [C.F.R. 60-741.44(f)(1)(ii)]; and
(4) the related regulations of Secretary of Labor, (41 C.F.R)., Chapter 60.
The notification under this Section does not necessarily mean that the Contractor has any of the affirmative action obligations referenced above. The Contractor's obligations under applicable law will depend upon a number of factors, including the dollar amount of this Agreement and the size of the Contractor's workforce. The Contractor will abide by all applicable affirmative action requirements stipulated in this Section.
This contractor and subcontractor shall abide by the requirements of 41 CFR 60-1.4(a), 60-300.5(a) and 60-741.5(a). These regulations prohibit discrimination against qualified individuals based on their status as protected veterans or individuals with disabilities, and prohibit discrimination against all individuals based on their race, color, religion, sex, sexual orientation, gender identity or national origin. Moreover, these regulations require that covered prime contractors and subcontractors take affirmative action to employ and advance in employment individuals without regard to race, color, religion, sex, sexual orientation, gender identity, national origin, disability or veteran status.
- Copeland Anti-Kickback" Act (18 U.S.C. 874 and 40 U.S.C. 276c)
All contracts and subgrants in excess of $2000 for construction or repair awarded by recipients and subrecipients will include a provision for compliance with the Copeland "Anti-Kickback" Act (18 U.S.C. 874), as supplemented by Department of Labor regulations (29 CFR part 3,"Contractors and Subcontractors on Public Building or Public Work Financed in Whole or in Part by Loans or Grants from the United States"). The Act provides that each contractor or subrecipient will be prohibited from inducing, by any means, any person employed in the construction, completion, or repair of public work, to give up any part of the compensation to which he is otherwise entitled. The recipient will report all suspected or reported violations to the Federal awarding agency.
- Davis-Bacon Act, as amended (40 U.S.C. 276a to a-7)
When required by Federal program legislation, all construction contracts awarded by the recipients and subrecipients of more than $2000 will include a provision for compliance with the Davis-Bacon Act (40 U.S.C. 276a to a-7) and as supplemented by Department of Labor regulations (29 CFR part 5, "Labor Standards Provisions Applicable to Contracts Governing Federally Financed and Assisted Construction"). Under this Act, contractors will be required to pay wages to laborers and mechanics at a rate not less than the minimum wages specified in a wage determination made by the Secretary of Labor. In addition, contractors will be required to pay wages not less than once a week. The recipient will place a copy of the current prevailing wage determination issued by the Department of Labor in each solicitation and the award of a contract will be conditioned upon the acceptance of the wage determination. The recipient will report all suspected or reported violations to the Federal awarding agency.
- Contract Work Hours and Safety Standards Act (40 U.S.C. 327-333)
Where applicable, all contracts awarded by recipients in excess of $2000 for construction contracts and in excess of $2500 for other contracts that involve the employment of mechanics or laborers will include a provision for compliance with Sections 102 and 107 of the Contract Work Hours and Safety Standards Act (40 U.S.C. 327-333), as supplemented by Department of Labor regulations (29 CFR part 5). Under Section 102 of the Act, each contractor will be required to compute the wages of every mechanic and laborer on the basis of a standard work week of 40 hours. Work in excess of the standard work week is permissible provided that the worker is compensated at a rate of not less than 1 * times the basic rate of pay for all hours worked in excess of 40 hours in the work week. Section 107 of the Act is applicable to construction work and provides that no laborer or mechanic will be required to work in surroundings or under working conditions which are unsanitary, hazardous or dangerous. These requirements do not apply to purchases of supplies or materials or articles ordinarily available on the open market, or contracts for transportation or transmission of intelligence.
- Rights to Inventions Made Under a Contract or Agreement
Contracts or agreements for the performance of experimental, developmental, or research work will provide for the rights of the Federal Government and the recipient in any resulting invention in accordance with 37 CFR part 401, "Rights to Inventions Made by Nonprofit Organizations and Small Business Firms Under Government Grants, Contracts and Cooperative Agreements," and any implementing regulations issued by the awarding agency.
- Clean Air Act (42 U.S.C. 7401 et seq.) and the Federal Water Pollution Control Act (33 U.S.C. 1251 et seq.), as amended
Contracts and subgrants of amounts in excess of $100,000 will contain a provision that requires the recipient to agree to comply with all applicable standards, orders or regulations issued pursuant to the Clean Air Act (42 U.S.C. 7401 et seq.) and the Federal Water Pollution Control Act as amended (33 U.S.C. 1251 et seq.). Violations will be reported to the Federal awarding agency and the Regional Office of the Environmental Protection Agency (EPA).
- Byrd Anti-Lobbying Amendment (31 U.S.C. 1352)
Contractors who apply or bid for an award of $100,000 or more will file the required certification. Each tier certifies to the tier above that it will not and has not used Federal appropriated funds to pay any person or organization for influencing or attempting to influence an officer or employee of any agency, a member of Congress, officer or employee of Congress, or an employee of a member of Congress in connection with obtaining any Federal contract, grant or any other award covered by 31 U.S.C. 1352. Each tier will also disclose any lobbying with non-Federal funds that takes place in connection with obtaining any Federal award. Such disclosures are forwarded from tier to tier up to the recipient.
- Debarment and Suspension (E.O.s 12549 and 12689)
No contract will be made to parties listed on the General Services Administration's List of Parties Excluded from Federal Procurement or Nonprocurement Programs in accordance with E.O.s 12549 and 12689,"Debarment and Suspension." This list contains the names of parties debarred, suspended, or otherwise excluded by agencies, and contractors declared ineligible under statutory or regulatory authority other than E.O. 12549. Contractors with awards that exceed the small purchase threshold will provide the required certification regarding its exclusion status and that of its principal employees.
- Access to Records
See White House Office of Management & Budget Circular A-110.48(d).
THIS AGREEMENT IS ISSUED UNDER AND GOVERNED BY THE LAWS OF THE STATE OF TEXAS.
THE UNIVERSITY CANNOT ACCEPT COLLECT FREIGHT SHIPMENTS.
If this Agreement specifies F.O.B. shipping point, please prepay freight and add to invoice.
STATE SALES TAX EXEMPTION CERTIFICATE:
The Undersigned claims an exemption from taxes under Section 151.309, Texas Tax Code, for purchase of tangible personal property described in this numbered order, purchased from the contractor and/or shipper listed above, as this property is being secured for the exclusive use of The State of Texas.
MATERIAL SAFETY DATA SHEETS (MSDS's):
The Texas Hazard Communication Act (Article 5182b, VTCS) requires chemical manufacturers and distributors to provide Material Safety Data Sheets IMSDS's) for hazardous materials sold. Products covered by the Act must be accompanied by a MSDS and such product labeled in compliance with the law. If the product is not covered under the Act, a statement of exemption must be provided.
The Contractor warrants fault-free performance in the processing of date and date-related data (including, but not limited to, calculating, comparing and sequencing) by the products identified on this Agreement. Fault-free performance includes, but is not limited to, the manipulation of data with dates prior to, through and beyond January 1, 2000, and will be transparent to the user. The University is an Equal Opportunity/Affirmative Action Employer