NON-CONSTRUCTION SMALL PURCHASE TERMS AND CONDITIONS These Terms and Conditions, specifically for Non-Construction Small Purchase procurements, are an essential part of this Purchase Order (“Order” or “Contract”). Acceptance of this Order is acceptance of these Terms and Conditions, which shall supersede and replace any and all terms and conditions offered by Seller, without exception.
1. Seller’s Obligation. The general obligation of the Seller shall be to transfer and deliver the goods and services specified in accordance with the terms, conditions, and specifications of the solicitation. 2. Buyer’s Obligation. The general obligation of the Richland County Transit Board (”RCTB”) shall be to accept conforming delivery and conforming goods and services and to pay in accordance with the terms, conditions and specifications.
3. Indemnification. To the fullest extent permitted by law, the Seller shall, at his sole cost and expense indemnify, defend, and satisfy all judgments and hold harmless the RCTB and its agents, representatives and employees from and against all claims, actions, judgments, costs, penalties, liabilities, damages, losses and expenses, including but not limited to attorney’s fees and worker’s compensation benefits arising out of or resulting from the performance of this Contract. Such obligation shall not be construed to negate, abridge or otherwise reduce any other right or obligation of indemnity which would otherwise exist as to any party or person described in this paragraph.
4. Patents. Seller shall pay all royalties and license fees attributable to the use of goods, materials, equipment or processes used to perform its obligations here under and, if it cannot timely secure the right for RCTB to use them, it shall provide RCTB equivalent non-infringing replacements at no additional cost to RCTB. Seller agrees to defend and hold harmless the RCTB from and against all claims of infringement
5. Warranties. Seller warrants that for a period of one (1) year (or for such longer period as prescribed by the specifications or commercially offered by the manufacturer or Seller) following first use of the goods and services delivered here under, the goods and services are free of defects in materials and workmanship and further warrants that such goods and services are suited for the particular purpose(s) intended and are of merchantable quality. Seller further warrants that it holds good and marketable title in the goods delivered, and that such goods are free of all liens, security interests or other encumbrances. Seller agrees that in the event the goods or services are not as warranted, it will promptly cure the defect at Seller’s sole cost and expense. Seller further agrees to indemnify RCTB for all costs and damages, both incidental and consequential, resulting from the delivery of goods and services that fail to meet the aforesaid warranties. It is agreed that the goods and services provided here under are regarded as consumer goods and services.
6. Quantity and Quality. Seller agrees to deliver goods and services of the kind and quality specified and in the quantities specified. In the case of a requirements Contract, the solicitation specifies estimates of the RCTB needs for the Contract duration. It is agreed that such estimates are not to be considered firm requirements. Actual requirements may exceed or be less than these estimates.
7. Delivery. Seller shall tender delivery in the manner and at the place and time specified in the solicitation. All deliveries are to be F.O.B. destination, or as otherwise designated on the bid form by RCTB. It is agreed that the bid prices include freight.
8. Debarment & Suspension. For any transaction of $25,000 and above, Seller must disclose to RCTB any debarment and/or suspension.
9. Interest of Members or Delegates to Congress. No member of or delegate to the Congress of the United States shall be admitted to any share or part of this Contract or to any benefit arising therefrom.
10. Covenant Against Contingent Fees. The Seller warrants that no person or selling agency has been employed or retained to solicit or secure this Contract upon an agreement or understanding for a commission or contingent fee, except a bona fide established commercial or selling agency maintained by the Seller for the purpose of securing business. For breach or violation of this warranty, the RCTB shall have the right to annul this Contract without liability or at its discretion, to deduct from the Contract price, or otherwise recover the full amount of such commission, percentage, brokerage or contingent fee.
11. Prohibited Interest. No officer, member or employee of the RCTB and no members of its governing body, and no other public office or employee of the governing body of the locality or localities included within the RCTB, during his or her tenure, shall have any interest, direct or indirect, in this solicitation, any Contract negotiated subsequently, or the proceeds thereof.
12. Inspection. The RCTB reserves the right and shall be at liberty to inspect all materials and workmanship to determine whether they conform with the specifications provided. However, the RCTB is under no duty to make such inspection. Whether or not RCTB conducts an inspection, no such inspection shall relieve Seller of any obligation to furnish materials and workmanship strictly in accordance with the specifications. RCTB will receive conforming deliveries for purposes of inspection. Acceptance of goods and services will not occur until after inspection or until a reasonable time for inspection has elapsed. The risk of loss shall remain with Seller until acceptance.
RCTB may test deliveries before or after acceptance for conformance with the specifications. Such tests may be performed by independent laboratories. Where test results indicate non-conforming goods, the delivery and the goods will be rejected and the cost of the test charged to Seller. Where acceptance has preceded testing, acceptance is deemed conditional and subject to revocation. RCTB may reject goods and services and revoke its acceptance without testing.
13. Payment. RCTB shall be entitled to any and all discounts stated on the face hereof. Payments will be made against approved invoices generally within thirty (30) days of receipt of invoice. Late payments will accrue no interest. Payment will only be made for goods and services accepted. For goods and services accepted, when acceptance is later revoked prior to payment, payment will be withheld until defects in the nonconforming goods or services are cured and accepted. In the case of serial deliveries and serial invoicing, RCTB reserves the right to deduct overpayments from current invoice amounts. Payment does not constitute acceptance nor does it serve to waive a later revocation of acceptance.
All invoices submitted to RCTB for payment shall include the purchase order number. Invoices shall be payable at Mansfield, Ohio and mailed to: Accounts Payable, Richland County Transit Board, N. Park St. Suite 230, Mansfield, Ohio 44902.
The RCTB is exempt from all sales, excise and transportation taxes, except State of Ohio gasoline tax. The price or prices bid, whether a unit price, lump sum price, lot price or a trade discount from catalog list prices shall be exclusive of all such taxes and will be so construed.
14. Assignment. The Seller shall not assign, transfer, convey, sublet or otherwise dispose of the Contract or its right, title or interest in or to the same or any part thereof without prior written consent of the RCTB endorsed thereon or attached thereto, and any such attempt at assignment shall be void.
15. Compliance with Laws and Regulations. All materials and supplies furnished pursuant to the specifications shall be in compliance with the laws and regulations of the United States and State of Ohio. Seller shall, if requested by the RCTB, supply certification and evidence of such compliance. The Contract shall be construed pursuant to the laws of the State of Ohio. This Contract may be supported in part by Federal assistance under grants made by the Department of Transportation, Federal Transit Administration, pursuant to the Urban Mass Transportation Administration Act of 1964 and amendments (49 U.S.C. 1601 et seq.) and subsequent Surface Transportation Assistance Acts of 1982 and 1987. When so funded this Contract shall be subject to all rules and regulations promulgated pursuant thereto.
16. Governing Law/Venue. This Contract shall be governed by and interpreted pursuant to the laws of the United States, the State of Ohio, and the Courts of Richland County, as appropriate, nothewithstanding any provisions or such law relating to jurisdiction. Should any part or parts of this Contract be held unenforceable by any court of competent jurisdiction, such determination shall not affect the remainder thereof and the balance shall remain in full force and effect.
17. Safety Belt Use. Pursuant to Federal Executive Order No. 13043, Contractor is encouraged to adopt and promote on-the-job seat belt use for its employees and other personnel operating vehicles involved in the project.
18. Termination. The RCTB may, by written notice to the Seller, terminate the whole or any part of this Contract.
19. Termination for Default. RCTB may terminate this Contract for default, if within ten (10) days after receiving notice from the RCTB, Seller fails to make delivery of conforming goods or to perform the services as required within the time specified herein or any extension thereof; or if the Seller fails to perform any of the other provisions of this Contract, or so fails to make progress so as to endanger performance of this Contract in accordance with its terms. Thereafter, the RCTB may have the work completed and the Seller shall be liable for any resulting cost to the RCTB.
20. Termination For Convenience. RCTB may terminate performance of work under this Contract in whole or in part for its convenience for any reason or for no reason at all without obligation to Seller other than for Seller’s prior performance. RCTB requires Seller to perform prior to the date RCTB gives notice of such termination to Seller.
21. Social Security Act. The Seller shall be and remain an independent Seller with respect to all services performed hereunder and agrees to and does hereby accept full and exclusive liability for the payment of any and all contributions or taxes for social security, unemployment insurance, or old age or retirement benefits, pensions or annuities now or hereafter imposed under any State or Federal law which are measured by the wages, salaries or other remuneration paid to persons employed by the Seller on work performed under the terms of this Contract and further agrees to obey all lawful rules and regulations and to meet all lawful requirements which are now or hereafter may be issued or promulgated under said respective laws by all duly authorized State or Federal officials, and said Seller also agrees to indemnify and save harmless RCTB from any such contributions or taxes or liability therefore.
22. Shipments. Should equipment, materials or commodities provided hereunder be transported by ocean vessel, Seller shall comply with the requirements of PL 109-304 and 46 CFR Part 381 regarding the use of privately owned U.S. Flag commercial vessels. Should equipment, materials or commodities provided hereunder be transported by air carrier, Seller shall comply with 41 CFR Sections 301-10.131 through 301-10.143.
23. Non-Discrimination. Seller agrees that it will not discriminate against any employee or applicant for employment because of race, color, creed, national origin, sex, age or disability in accordance with the following Federal Statutes and regulations, and any other implementing regulations issued pursuant to the: Civil Rights Act as amended, Titles VI (42 U.S.C. 2000d) and VII (42 U.S.C. 2000e); Age Discrimination Act of 1975, as amended (42 U.S.C. 6102); Age Discrimination in Employment Act of 1967 as amended, (29 U.S.C. 623); Americans with Disabilities Act of 1990, as amended, (42 U.S.C. 12132 and 42 U.S.C. Sec. 12112) and implementing regulations (29 C.F.R. Part 1630), Federal transit law (49 U.S.C. 5332); Executive Order 11248, as amended by Executive Order 11375 (42 U.S.C. 2000e note) and implementing regulations (41 C.F.R. Parts 60 et seq.). The Seller also agrees to include these requirements in each subcontract financed in whole or in part with Federal assistance provided by the Federal Transit Administration.
24. Socio-Economic Development. For purchases in excess of $25,000, Seller agrees to comply with applicable federal and state laws/regulations that afford competitive opportunities for a Contractor that qualifies as a disadvantaged business enterprise (DBE), minority owned firm, women’s business enterprise, or small business.
25. Hazardous Materials. Where the goods or services procured involve the use or storage of hazardous materials on RCTB premises, Seller agrees to meet the requirements of any and all applicable local ordinances that pertain to the use or storage of hazardous materials. The Seller will:
Label the containers of hazardous or toxic substances that it delivers in accordance with the requirements of Federal and State 4.06 (A).
Provide labels and placards for use by RCTB when deliveries are made in bulk and are to be stored by RCTB in stationary containers pursuant to C.O.C. Section 394.06(B).
Provide the hazard warnings applicable to the delivered goods that are required C.O.C., Section 394.06(d).
Provide all material safety data sheets required C.O.C., Section 394.09
The delivery of the aforesaid information must accompany the delivery of the goods. Goods will not be inspected or accepted unless tendered in said manner.
26. Integrated Agreement. The Purchase Order in which these General Terms and Conditions are incorporated into, together with any other documents incorporated by reference, constitute the entire agreement between the parties and supersedes and replaces any prior written or oral communication. Additional terms and conditions submitted by the Seller are disregarded unless specifically accepted by RCTB in writing. Seller acknowledges that to the extent of conflict the RCTB terms shall prevail, take precedence over, supercede and replace any conflicting or additional terms or contingencies proposed by Seller.
This Contract may be amended in writing by change notice or by a replacement purchase order.
Should any part or parts of this agreement be held unenforceable by any competent judicial body, such determination shall not affect the remainder thereof and the balance of this agreement shall remain in full force and effect.
27. Audits and Inspection. The Seller shall maintain books, records, documents, and other evidence directly pertinent to performance of the Work under this Contract in accordance with generally accepted accounting principles and practices consistently applied and Federal Acquisition Regulation Parts 30 and 31. The RCTB, the U.S. Government, and the State Government or their authorized representatives shall have access, at all times during normal business hours, to such books, records documents and other evidence for the purpose of inspection, audit and copying. The Seller will provide proper facilities for such access and inspection. The rights granted RCTB and the government under this provision shall remain in full force and effect for three (3) years after termination of this Contract for whatever reason.
28. Recycled Products/Energy Conservation. Seller agrees to comply with the requirements of Section 6002 of the Resource Conservation and Recovery Act, as amended (42 U.S.C. 6962), including but not limited to the regulatory provisions of 40 CFR Part 247, and Executive Order 12873, as they apply to the subject matter of this Contract. Seller further agrees to comply with applicable mandatory energy efficiency standards and policies of applicable state energy conservation plans issued in accordance with 42 USC Sections 6321 et seq.
29. No Obligation by the Federal Government. Seller and RCTB agree that, notwithstanding any concurrence by the Federal Government in or approval of the solicitation or award of the underlying Contract, absent the express written consent of the Federal Government, the Federal Government is not a party to this Contract and shall not be subject to any obligations or liabilities to the RCTB, the Seller or any other party pertaining to any matter resulting from the underlying Contract; Seller further agrees to include this clause, without modification, in any subcontract issued hereunder.
30. Program Fraud and False or Fraudulent Statements or Related Acts. Contractor agrees that the provisions of the Program Fraud Civil Remedies Act of 1986, as amended, 31 U.S.C. Sec 3801 et seq. and U.S. DOT regulations, “Program Fraud Civil Remedies,” 49 C.F.R. Part 31 apply to its actions and those of its subcontractor(s) pertaining to this Contract; Contractor further agrees to include this clause without modification, in any subcontract issued hereunder.
31. Required Provisions Deemed Inserted. Each and every clause required by Federal or State statute or regulation to be inserted into this Contract is deemed to be inserted herein and this Contract shall be read and enforced as though it were included herein. If through mistake or otherwise any such provision is not inserted, or it not correctly inserted, then upon the application of either party the Agreement shall forthwith be amended to make such insertion or correction.