Terms and Conditions for Goods
1) ACCEPTANCE – Supplier agrees to furnish goods and services Boston University orders subject to these terms and conditions. Boston University will not be bound to any terms to which it has not specifically agreed in writing. Any terms or conditions proposed by Supplier inconsistent with or in addition to the Agreement shall be void and of no effect unless Boston University specifically agrees to such terms in writing. The rights of both parties hereunder shall be in addition to their rights and remedies at law or in equity. Failure of Boston University to enforce any of its rights hereunder shall not constitute a waiver of such rights or of any rights it may have.
2) PRICES AND PAYMENTS – If a Boston University purchase order (a “Purchase Order”) is used to order Supplier’s goods and/or services, Supplier shall fill the order at the price specified on the Purchase Order, or at any lower price. If no price is specified or if no Purchase Order is used, the order shall be filled at the lowest of (a) the price Supplier last quoted, (b) the price Boston University last paid to Supplier, and (c) the prevailing market price, unless an authorized representative of Boston University’s procurement department approves a higher price in writing. All goods furnished to Boston University shall be subject to its inspection and approval, notwithstanding prior receipt and payment, and, if unsatisfactory, may be returned, transportation both ways at Supplier’s expense. Supplier shall box, crate, or package as necessary for shipment without charge unless otherwise specified on the Purchase Order. Supplier shall invoice Boston University promptly through the SAP Business Network (Boston University’s third-party invoicing portal) upon delivery of goods or performance of services. Supplier shall provide a monthly statement detailing any invoices more than sixty (60) days past due upon Boston University’s request. Supplier’s invoices shall include, when applicable, a Purchase Order number and any other information Boston University reasonably requests.
3) DELIVERY; NOTICE OF LABOR DISPUTES – Time is and shall remain of the essence of a Purchase Order; no Boston University acts, including without limitation modification of a Purchase Order or acceptance of late deliveries, shall constitute a waiver of this provision. Supplier shall notify Boston University immediately of any actual or potential labor dispute which is delaying or threatens to delay timely performance of a Purchase Order. Boston University reserves the right to refuse or return, at Supplier’s risk and expense, shipments made in excess of Boston University’s orders or in advance of required schedules, or to defer payment on advance deliveries until scheduled delivery dates.
4) TERMINATION – Boston University may terminate a Purchase Order in whole or in part at any time. Upon receipt of notice of such termination Supplier shall stop all performance under the Purchase Order, except as Boston University otherwise directs, furnish Boston University with a list of all outstanding orders for goods and services and take such action relative thereto as may be directed. Boston University shall reimburse Supplier for reasonable expenses incurred by reason of such termination including Supplier’s cancellation charges. In the event of such termination pursuant to a Notice of Termination received by Boston University from a government entity in accordance with a grant or contract award, Boston University shall be obligated to pay Supplier only that amount which shall be determined to be, or approved as, reimbursable to Boston University under said grant or contract with respect to the Purchase Order.
5) SUBCONTRACTORS – Supplier shall not use subcontractors to provide goods or to perform any services under a Purchase Order without Boston University’s prior written authorization.
6) WARRANTIES – Supplier represents and expressly warrants (a) that all goods ordered to specifications will conform thereto and to the drawings, samples or other descriptions Boston University furnishes or, if not ordered to specifications, that such goods will be suitable for the purpose intended, and (b) that all goods and services will be of good quality and workmanship and free from defects. In addition to all other remedies available to Boston University at law, at Boston University’s option and promptly upon receipt of notice from Boston University, Supplier shall at its own expense (i) replace any goods which are defective, (ii) correct any goods which are defective, or (iii) refund any payments Boston University has made for, and arrange pick-up or return of, any goods which are defective. Supplier agrees to proceed with the correction of any defects in a manner satisfactory to Boston University. Supplier shall assume all risk of loss or damage to goods which are to be replaced or corrected pursuant to this warranty, from the date on which Supplier is notified of the defect or non-conformity until the replaced or corrected goods are received at the destination designated by Boston University. Alternatively, Boston University may at its option repair such defective goods at Supplier’s expense.
7) CHANGES – Boston University may at any time, by written order and without notice to any surety, make changes or additions within the general scope of a Purchase Order in or to drawings, designs, specifications, instructions for work, method of shipment or packing or place of delivery. If any such change causes an increase or decrease in the cost of or in the time required for performance of a Purchase Order, Supplier shall notify Boston University in writing immediately and an appropriate equitable adjustment will be made in the price or time of performance, or both, by written modification of the Purchase Order. Any claim by Supplier for any such adjustment must be made within thirty (30) days, or such other period as the parties may agree upon in writing, after Supplier’s receipt of notice of the change. Nothing herein contained shall excuse Supplier from proceeding with the Boston University order as changed.
8) PATENTS, COPYRIGHTS, TRADEMARKS AND TRADE SECRETS – Supplier warrants that the sale, use or incorporation into manufactured products of all goods furnished hereunder which are not of Boston University’s design, composition or manufacture shall be free and clear of infringement of any valid patent, copyright, trademark or trade secret. Supplier shall indemnify and hold Boston University harmless from any and all liability and/or loss of any kind (and the cost and expenses, including without limitation attorney’s fees) arising out of any claim, suit or action alleging or arising out of any such infringement, which claim, suit or action Supplier agrees to compromise or defend.
9) ASSIGNMENT – Supplier shall not assign any of its rights (including without limitation the right to any monies due or to become due) or delegate any of its obligations under a Purchase Order without Boston University’s prior written consent. Any assignment by Supplier of any monies due or to become due shall be subject to set-off, recoupment or other claim of Boston University against Supplier.
10) RELEASE OF LIENS – All goods supplied and all services performed by Supplier pursuant to a Purchase Order shall be free from all liens. If Boston University requests, Supplier shall provide a proper release of liens or other satisfactory evidence of freedom from liens.
11) INDEMNITY – Supplier shall indemnify and hold Boston University harmless from any and all claims, losses, liabilities, damages, costs and expenses including reasonable attorneys' fees, including without limitation claims of injury or death to persons or damage to property (collectively “Losses”), which may result from any act or omission arising out of the performance or non-performance of a Purchase Order (including without limitation acts or omissions of Supplier or of its agents, employees or subcontractors), except to the extent that such Losses are due directly to Boston University’s gross negligence or willful misconduct. Supplier shall compromise or defend any such claim, suit or action.
12) INSURANCE – Supplier shall maintain such Public Liability, Property Damage, Employer’s Liability and Compensation Insurance and Motor Liability Insurance (Personal Injury and Property Damage) as will protect Supplier (or its subcontractors) and Boston University from said risks and from any claims under any applicable Worker’s Compensation or Occupational Disease statutes. Notwithstanding the foregoing, if Supplier and Boston University agree in a dually signed agreement to specific types and quantities of insurance, such types and quantities shall be deemed sufficient for the engagement or purchase described in such agreement.
13) COMPLIANCE WITH LAWS – (a) Labor and employment-related laws. Supplier warrants that in performance of this order it has complied or will comply with all applicable federal, state and local laws, rules and regulations, including without limitation the Walsh-Healy Public Contracts Act (41 U.S. Code §§35-45) (if this order is for an amount exceeding $15,000 and is otherwise subject to the Walsh-Healey Public Contracts Act); Section 202 of Executive Order 11246, as amended by Executive Order 11375, and 41 C.F.R. Part 60-1; Section 503 of the Rehabilitation Act of 1973, 20 C.F.R. §§41.3, 741.4; and the Vietnam Era Veterans Readjustment Assistance Act of 1974, 41 C.F.R. Part 50-250. (b) Debarment, export control, and security-related laws. In accordance with Executive Order 12549 (Debarment and Suspension), by entering into this transaction, Supplier certifies that neither it nor its principals is presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participation in this transaction by any Federal department or agency. Where Supplier is unable to certify to any of the statements in this certification, it shall provide a written explanation to the University. If Supplier provides export controlled products, technology and/or software (“Products”) to Boston University, Supplier will provide Boston University with a list of ECCNs (Export Control Classification Numbers) for such Products, as well as updates to such list when new Products are added. Supplier certifies (and will certify with respect to any updates) that it has (i) conducted proper classification analysis under the EAR or (ii) obtained Official Commodity Classifications (CCATS) from BIS. Additionally, if any Product is on the U.S.M.L., Supplier will provide Boston University with the classification and will certify that it conducted proper ITAR analysis or obtained Jurisdiction Classifications Rulings from DDTC. Supplier agrees not to provide “covered telecommunications equipment or services”, as those terms are defined in FAR 52.204-25, to Boston University in the performance of this contract. Supplier represents that it does not use covered telecommunications equipment or services, or use any equipment, system, or service that uses covered telecommunications equipment or services.
14) EQUAL OPPORTUNITY – Where applicable, the Equal Employment Opportunity Clauses at 41 CFR 60-1.4(a), 41 CFR 60-300.5(a), and 41 CFR 60-741.5(a) relative to equal employment opportunity and the implementing rules and regulations of the Office of Federal Contract Compliance Programs are incorporated herein by specific reference, as are the “Employee Notice” provisions of 29 CFR Part 471, Appendix A to Subpart A. This contractor and subcontractor shall abide by the requirements of 41 CFR 60-300.5(a) and 60-741.5(a). These regulations prohibit discrimination against qualified protected veterans and qualified individuals on the basis of disability, and require affirmative action by covered prime contractors and subcontractors to employ and advance in employment qualified protected veterans and qualified individuals with disabilities.
15) ACCESSIBILITY – If Supplier provides any electronic technology, information technology and/or web technology (“Technology”), product or service to Boston University, Supplier agrees that the Technology will meet the accessibility standards of WCAG 2.0 Level AA and/or of Section 508 of the Rehabilitation Act and Americans with Disabilities Act (each, a “Standard”). Supplier further warrants that Technology complies with the applicable Standard and any applicable federal or state laws or regulations relating to accessibility for persons with disabilities.
16) FIRE TESTING – Whenever required, all material used in the fabrication or installation of the goods supplied under a Purchase Order shall have been tested and approved by the Boston Fire Department. Such material must meet the standards set forth in the “Regulations Controlling Decorations, Furnishings, and Interior Finish,” as most recently revised. Supplier will submit a copy of the Certificate of Compliance with such regulations, issued by the Boston Fire Department, to the buyer responsible for the relevant Purchase Order (at the purchasing department listed on the face of the Purchase Order) prior to delivery or no later than ten (10) days after the receipt of the certificate from the Boston Fire Department, whichever date is earlier.
17) CONFIDENTIALITY AND SECURITY – Boston University may disclose to Supplier, or Supplier may obtain access to, develop or create non-public documents or information about Boston University, its students, employees, agents, partners or representatives, or third parties, including without limitation, personal information, charge card and/or credit data, work product resulting from the services provided, proprietary and confidential information or material concerning or related to Boston University’s general academic, institutional affairs or other proprietary operations (“Confidential Information”). Supplier acknowledges the confidential character of the Confidential Information, and agrees and acknowledges that the Confidential Information is the sole, exclusive and valuable property of Boston University. Accordingly, Supplier shall maintain such Confidential Information as strictly confidential and agrees not to reproduce or divulge any of the Confidential Information without Boston University’s prior written consent and not to use the Confidential Information except in the performance of this Agreement, whether during or after the term of this Agreement. All Confidential Information shall remain the property of Boston University. Upon Boston University’s request, Supplier will return or destroy copies of Confidential Information in Supplier’s possession, except as is needed to comply with applicable Laws; Supplier will continue to be bound by this paragraph with respect to any retained Confidential Information. If the Confidential Information includes “Personal Information,” as that term is defined under Mass. Gen. Laws ch. 93H (as it may be amended from time to time), then Supplier must (i) implement, maintain, and use appropriate administrative, technical and physical security measures to preserve the confidentiality, integrity and availability of all Confidential Information, be it electronic or hardcopy and (ii) implement and maintain a written information security plan that complies with the requirements of Massachusetts regulations under 201 C.M.R. 17.00 and provide Boston University with a copy upon request. Supplier warrants that, in the event of a security breach, Supplier shall immediately inform Boston University of the breach and take all necessary and reasonable steps to prevent any further disclosure or use. Supplier will cooperate fully with Boston University, at Supplier’s own expense, in any data breach forensics and notification steps that Boston University deems necessary or appropriate to comply with requirements of applicable law.
18) PUBLICITY – Supplier shall not use or register the name "Boston University" (alone or as part of another name) or any logos, seals, insignia or other words, names, symbols or devices that identify Boston University or any Boston University school, unit, division or affiliate (“BU Names”) for any purpose except with the prior written approval of, and in accordance with restrictions required by, Boston University, which approval may only be granted by Boston University’s Marketing and Communications Department, which can be reached via the Contact Us section of its website (http://www.bu.edu/brand/downloads-faqs/contact/). Without limiting the foregoing, Supplier shall cease all use of BU Names on the termination or expiration of this Agreement except as otherwise approved by Boston University.
19) MISCELLANEOUS – The Agreement, and all rights and obligations of the parties, whether arising under the Agreement or otherwise, shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, without giving effect to its principles of conflict of laws. The sole and exclusive jurisdiction for resolution of any disputes between the parties shall be in the state and federal courts located in Boston, MA, and each of the parties hereby submits to the jurisdiction of such courts.