This procedure describes the terms and conditions under which the College will undertake a purchase agreement. It includes guidelines for specific compliances and responsibilities of independent contractors, and consequences of breach of contract.
Terms and Conditions for Purchase Order Contracts
Version 2.0, Posted October, 2009
The following terms and conditions apply to all purchase orders issued by Lane Community College and accepted by the supplier/vendor/contractor (henceforth, the "Supplier"). If the Supplier does not specifically reject, in writing, the following terms and conditions within ten (10) calendar days of the date of issuance of the purchase order, the following terms are then binding upon both the College and the Supplier in accordance with the requirements of the Uniform Commercial Code. Rejections and/or requests for substitutions shall be addressed to:
Lane Community College
Attention; Director, Purchasing Services
4000 East 30th Avenue
Eugene, OR 97405-0640
These Terms apply to the order as of the Issue Date on the order itself. Should subsequent versions of these terms be posted, the prior versions and the dates of applicability will be noted on this web site. No changes will be made to these Terms without noting the date of the change and the version which has been retired and the new version which replaces it. Retired versions shall be maintained on the Purchasing Services web site for not less than 12 months following their retirement.
Acceptance and Rejection
All goods or materials purchased herein are subject to the approval of the College. Any rejection of goods or materials, whether held by the College or returned, will be at the Supplier's risk and expense.
Breach of Contract
In the event of a breach by the Supplier of any of the provisions of this contract, the College reserves the right to cancel and terminate this contract forthwith upon giving oral or written notice to the Supplier.
Breach, Recovery of Costs in Event of Termination for
- In the event of termination of any contract to which these terms apply by the College because of a breach by Supplier, the College may complete the work by contract with another appropriately qualified supplier. Supplier shall be liable to College for any costs or losses incurred by College arising out of or related to the breach, including costs incurred in selecting other suppliers, time-delay losses, attorney fees and the like, less the remaining unpaid balance of the consideration provided in this contract.
- The College may withhold payment of sums due Supplier for work performed to the date of termination until College's costs and losses have been determined, at which time the College may offset any such amount due Supplier against the costs and losses incurred by the College.
Supplier shall comply with all federal, state, local and College laws, policies, rules and regulations concerning nondiscrimination in employment and those concerning environmental health and safety and workers' compensation. Supplier shall permit inspection of all service units under its control by the applicable authority and shall comply in a timely manner with all directives issued by such authorities and regulatory bodies.
Contract, Termination of
- The contract resulting from this solicitation and/or order may be terminated at any time by the College for good cause. Good cause may be such items as breach of contract by Supplier, failure of Supplier to fulfill requirements for insurance, workers compensation, professional registration, bonding or licensing, failure of Supplier to perform in accordance with any requirements of the order including the meeting of delivery dates, invoicing, filings, etcetera.
- This contract may also be terminated for convenience of the College without warning or advance notice. If the contract is terminated for convenience of the College any monies owing to either party shall be paid within thirty (30) days of contract termination.
If any portion of this contract is or will be classified as a construction contract, the Supplier shall comply with all Oregon State Laws regarding construction contracts which include (but are not limited to):
- Maintenance of a broad form comprehensive general liability insurance policy with coverage of not less than $500,000 combined single limit per occurrence, with aggregate of $1 million, for bodily injury, personal injury or property damage;
- Maintenance of a current policy of workers' compensation coverage in compliance with the Oregon Workers' Compensation law (ORS 656);
- Maintenance of a current registration with the Oregon Construction Suppliers Board; and
- Submission, if required, of performance and payment bonds.
Discrimination, Freedom From
The Supplier agrees not to discriminate against any client, employee or applicant for employment or for services, because of race, creed, color, national origin, gender or age with regard to, but not limited to, the following: employment hiring, upgrading, demotion or transfer; recruitment or recruitment advertising; layoffs or termination; rates of pay or other forms of compensation; selection for training; rendition of services. It is further understood that any supplier who is in violation of this clause shall be barred forthwith from receiving awards of any kind from the College, unless a satisfactory showing is made that discriminatory practices have terminated and that a recurrence of such acts is unlikely.
Equipment, Condition of
Unless otherwise specified, all equipment, components, fittings and materials furnished within the context of this procurement shall be new, never before sold to any end user, and never before used except for the purpose of testing, initial assembly or "breaking in." This paragraph includes construction materials, interior finishes, mechanical/electrical equipment and all peripherals.
Identification, Materials, Communications, Shipping
All invoices, packing lists, packages, shipping notices, and any other written documents affecting this contract shall contain the applicable purchase order number. Packing list(s) shall be enclosed with each and every shipment pursuant to this contract, indicating the content therein. Each container (box, bag, etc.) shall show the purchase order number.
- Performance under this contract is at Supplier's sole risk. Supplier shall indemnify the College's Board of Education, agents, officers and employees, from any and all liability for damages, costs, losses and expenses resulting from, arising out of, or in any way connected with the Supplier's failure to perform fully hereunder and shall carry appropriate insurance for this purpose.
- In the event any such action or claim is brought against College, Supplier shall, upon notice of the expense, promptly satisfy any judgement adverse to College and shall reimburse College for any loss, cost, damage or expense (including legal fees) suffered or incurred by College.
- The Supplier agrees to protect the College against all claims, suits, or proceedings for patent, trademark, copyright, or franchise infringement arising from the purchase, installation or use of the goods and materials purchased herein. The Supplier further agrees to assume all expenses and damages arising from such claims, suits, or proceedings.
Supplier is engaged as an Independent Supplier and shall be responsible for all federal and state taxes as applicable to this contract and the payments made therewith. Whether Supplier is a corporation, partnership, other legal entity, or an individual, Supplier is an independent Supplier. If Supplier is an individual, Supplier's duties will be performed with the understanding that Supplier is a self-employed person and has special expertise as to the services which Supplier is to perform and that Supplier is customarily engaged in the independent performance of the same and/or similar services for others. The manner in which the services are performed shall be controlled by Supplier; however, the nature of the services and the results to be achieved shall be specified by the College. Supplier is not to be deemed an employee or agent of College and has no authority to make any binding commitments or obligations on behalf of College except to the extent expressly provided herein.
Independent Contractor, Control
Supplier will not be performing the subject work under the direct control of the College or any of its personnel.
Pursuant to Oregon Revised Statute 279A.215, other governmental agencies, bodies or districts may participate in the award resulting from this solicitation as if said agencies had generated this solicitation and made this award on their own behalf. Such participation shall be inaugurated on the basis of an intergovernmental agreement or letter notification of intent between the Participating Agency and the College. The Supplier shall have the option of declining participation in any such agreement; that is, Supplier participation in work or sales resulting from intergovernmental agreements shall be voluntary. If the Supplier chooses to participate in such agreements all agency relationships including those for contract administration, ordering, deliveries, approvals, billing and collections shall be between the Participating Agency and the Supplier; the College, except for its enabling agreement, shall not participate in any aspects of commercial or contractual activity between the Supplier and the Participating Agency. If the Supplier agrees to participate, all such participation shall be on the basis of this solicitation and the resulting award except that reasonable changes in pricing and terms may be negotiated directly between the Participating Agency and the Supplier to accommodate differences in delivery distances and local conditions. All such changes shall be solely between the Supplier and the Participating Agency.
Supplier shall be solely responsible for its own labor relations with any trade or union and their representatives and shall negotiate and adjust, in good faith, any and all disputes arising out of Supplier's operations with employees and/or unions representing its employees. Supplier shall comply with all federal, state and local laws, policies, rules and regulations concerning employment and labor relations.
Liability, Limitation of
The College agrees that the Supplier's liability hereunder for damages shall not exceed the charges paid before the error was discovered. The Supplier shall not be liable for consequential damages including, but not limited to, lost revenues and profits. The Supplier shall not be liable for failure to perform its obligations herein when such failure is unequivocally the result of acts beyond the Supplier's control; some, but not all, such acts are acts of God or of the public enemy, acts of local, state or federal government in either their sovereign or contractual capacities, fires, floods, civil disobedience, strikes, lock-outs, freight embargoes, inclement weather, errors or defects in the data supplied by the College, etc.
Litigation, Costs and Venue
- In the event of litigation involving the terms and conditions of this contract or the performance hereunder, the prevailing party shall be entitled to recover reasonable attorney fees, costs and expenses from the losing party, including all such fees, costs and expenses of appeal. Supplier agrees that in the event suit is instituted by the College for any default on the part of the Supplier hereunder and Supplier is found liable, Supplier shall pay to the College all costs, expenses (expended or incurred) by the College in connection therewith, and reasonable attorney fees.
- State of Oregon law shall prevail throughout the execution of this contract and any performance hereunder. Any litigation undertaken with respect to the execution of, or performance within the context of, this contract shall take place within the State of Oregon and State of Oregon Laws shall prevail throughout any such litigation.
- All actions relating to this contract shall be tried before the courts of the State of Oregon to the exclusion of all courts which might have jurisdiction apart from this provision. Venue in any action shall lie in the Circuit Court of Lane County, Oregon.
News releases by the supplier pertaining to this contract will be made only with the prior approval of the College.
Both legal and informational notices in compliance with this contract shall be deemed given when personally delivered or deposited in the United States mail, postage prepaid, certified, return receipt requested, addressed to:
- Supplier: Address on the "Supplier" block of the purchase order
- College: Address provided on face of purchase order or such other address as either party may provide by notice given in accordance with this provision.
Ownership of Work
All reports to the college which result from this contract shall be the exclusive property of the College and shall be delivered to the College upon completion of the work or the termination of this contract before final payment is made.
Unless otherwise specified, all products, designs, writings and other creative materials performed as part of this contract and classified as deliverable to the College, become the sole and exclusive property of the College, without restriction of any kind, and shall be delivered to the College upon completion of the work or the termination of this contract before final payment is made.
The College shall report the total amount of all payments to the Supplier including any expenses, in accordance with Federal Internal Revenue Service and State of Oregon Department of Revenue regulations.
All payments to the Supplier shall be remitted by mail unless other method of transfer is agreed upon in advance. The provisions or monies due under this contract shall not be assignable without the express written agreement of the College.
All work performed within the context of this agreement shall be in accordance with all Oregon Revised Statutes and all Oregon and local laws and regulations; and other Federal, State and Local laws and regulations as may be applicable to the College.
Protection of College
The Supplier agrees to protect the College against all claims, suits, or proceedings for patent, trademark, copyright, or franchise infringement arising from the purchase, installation or use of the goods and materials purchased herein. The Supplier further agrees to assume all expenses and damages arising from such claims, suits, or proceedings.
Public Assistance or Support, Eligibility for
Supplier shall not be eligible for any Federal Social Security, State Worker's Compensation, Unemployment Insurance, or Public Employees' Retirement System benefits as a result of payments made under this contract, and Supplier shall be responsible for same as a self-employed individual/firm.
Each provision of this agreement is severable, and if any provision is held to be unenforceable, the remainder of the provisions shall remain in effect.
Subcontracting and Assignment
Supplier shall not subcontract its work under this contract, in whole or in part, without College's prior written approval. Supplier shall require any approved subcontractor to agree, as pertains to the portion subcontracted, to comply with all obligations specified in this contract. Notwithstanding College's approval of a subcontractor, Supplier shall remain obligated for full performance of this contract and College shall incur no obligation to any subcontractor. Supplier shall not assign this contract, in whole or in part, or any right or obligation hereunder, without College's prior written approval.
Transportation & Delivery, Costs of Return and Resupply
Supplier agrees to accept and be responsible for ALL transportation costs incurred by the College due to the return of defective or improper goods or materials, and, when repaired or replaced, the return thereof to the College.
Transportation & Delivery, Prepayment
Unless otherwise specified, all goods shall be shipped prepaid, FOB destination.
Transportation & Delivery, Risk of Loss
Supplier agrees to bear all risks of loss, injury or destruction of goods and materials ordered herein which occur prior to delivery and such loss, injury or destruction shall not release supplier from any obligation hereunder.
Transportation & Delivery, Time
Time of delivery is of the essence and the College reserves the right to cancel any undelivered portion of this contract for failure by the Supplier to deliver on time. Supplier assumes responsibility of delay notwithstanding the cause. No exception to delivery dates shall be allowed unless prior written approval is first obtained from the College and confirmed in writing.
Uniform Commercial Code
The Uniform Commercial Code, as applicable in Oregon, shall govern all activities within the context of this order.
Waiver Not Permissive
Supplier agrees that the waiver, acceptance, or failure by the College to enforce any provisions, terms or conditions of this contract shall not operate or be construed as a waiver of prior or subsequent breaches or the right of the College to thereafter enforce such provisions.
Warranty of Conformance
The Supplier warrants all articles supplied under this contract to conform to stated specifications, to be fit and sufficient for the purposes manufactured, merchantable, of good material and workmanship, and free from defects.
Warranty of Clear Title
Supplier warrants and represents that all the goods and materials ordered herein are free and clear of all liens, claims or encumbrances of any kind whatsoever.