USM Terms and Conditions
The materials, supplies or services covered by this Purchase Order shall be furnished subject to the following terms and conditions, which shall not be modified or rescinded except by written agreement of the parties and which Seller agrees to be bound by and to comply with in all particulars, and no other terms and conditions shall be binding upon the parties. By accepting the Purchase Order or any part thereof the Seller agrees to and accepts all terms, prices, delivery dates, specifications and other conditions indicated.
INVOICES: It is also certified that all invoices submitted relative to this Purchase Order will represent materials and/or services that have been actually delivered and/or performed to the University of Southern Mississippi (University); that said claim will be just, due and unpaid and that there will have been no offsets against same; that the item and specifications will be correct; that the sums charged will be reasonable and just; that no payment will have been made on account thereof, except as included or referred to in such invoice or statement. No federal or state taxes shall be included on said invoices. The materials, supplies and services covered by this Purchase Order are tax exempt.
INSPECTION: The Seller must effectuate delivery within the time and in accordance with the terms and conditions stated on this Purchase Order. The materials, supplies or services furnished shall be exactly as specified in this Purchase Order, free from all defects in Seller’s design, workmanship and materials, and except as otherwise provided in this Purchase Order shall be subject to inspection and test by University at all times and places. If prior to final acceptance, any materials, supplies or services are found to be defective or not as specified, University may reject them, require Seller to correct them without charge, or require delivery of such materials, supplies or services at a reduction in price that is equitable under the circumstances. Seller shall bear all risks as to rejected materials, supplies and services and, in addition to any costs for which Seller may become liable to University under other provisions of this Purchase Order, shall reimburse University for all transportation costs, other related costs incurred, and/or payments to Seller in accordance with the terms of this Purchase Order for unaccepted materials, supplies and services. Notwithstanding final acceptance and payment, Seller shall be liable for latent defects, fraud or such gross mistakes as amount to fraud.
CHANGES: University may make changes within the general scope of this Purchase Order in quantities, drawings, specifications, time for performance, place of delivery, method of shipment, or packing of the Purchase Order by giving notice to Seller and subsequently continuing such changes in writing. If such changes affect the cost of, or the time required for performance of this Purchase Order, an equitable adjustment in the price or delivery or both shall be made in writing. No change by Seller shall be recognized without written approval of University. Any claim of Seller for an adjustment under this section must be made within thirty (30) days from the date of receipt by Seller of notification of such change unless University waives this condition. Nothing in this section shall excuse Seller from proceeding with performance of the Purchase Order as changed hereunder.
A. University may, by written notice stating the extent of and effective date, terminate this Purchase Order for convenience, in whole or in part, at any time. Upon receipt of the notice of termination, the Seller shall stop all work in connection with this Purchase Order, unless otherwise directed by University. University shall pay Seller as full Compensation for performance until such termination:
(1) The unit or pro-rata Purchase Order price for the delivered and accepted portion and (2) a reasonable amount, not otherwise recoverable from other sources by Seller as approved by University, with respect to the undelivered or unaccepted portion of this Purchase Order, provided compensation hereunder shall in no event exceed the total Purchase Order price.
B. University may by written notice terminate this Purchase Order for Seller’s default, in whole or in part, at any time, if Seller refuses or fails to comply with the provisions of this Purchase Order or so fails to make progress as to endanger performance and does not cure such failure within a reasonable period of time, or fails to make deliveries of the materials or supplies or perform the services within the time specified or any written extension thereof. In such event, University may purchase or otherwise secure materials, supplies or services and except as otherwise provided herein, Seller shall be liable to University for any excess costs incurred by the University. If, after notice of termination for default, University determines that the failure to perform this Purchase Order is due to causes beyond the control and without the fault or negligence of Seller (including, but not restricted to, acts of God or of the public enemy, acts of the University, acts of the Government, fires, floods, epidemics, quarantine restrictions, strikes, freight embargoes, unusually severe weather, and delays of a subcontractor or supplier due to such and without the fault or negligence of the subcontractor or supplier), termination shall be deemed for the convenience of University, unless University shall determine that the materials, supplies, or services covered by this Purchase Order were obtainable from other sources in sufficient time to meet the required delivery schedule. If University determines that Seller has been delayed in the work in the opinion of University due to causes beyond the control and without the fault or negligence of Seller, University may extend the time for completion of the work called for by this Purchase Order, when promptly applied for in writing by Seller, and if such delay due to failure of University, not caused or contributed to by Seller, to perform services or deliver property in accordance with the terms of the Purchase Order, the time and price of the Purchase Order shall be subject to change under the Changes section above. Sole remedy of Seller in event of delay by failure of University to perform shall, be limited to any money actually and necessarily expended in the work during the period of delay, solely by reason of the delay. The rights and remedies of University provided in this Section shall not be exclusive and are in addition to any other right and remedies provided by law or under this Purchase Order.
TITLE: Title to the materials and supplies purchased hereunder shall pass directly from Seller to University at the f.o.b. point shown, subject to the right of University to reject upon inspection.
LIENS: All items of material and/or equipment supplied, and/or labor performed under this Purchase Order shall be free of any lien. The Seller shall furnish satisfactory evidence of freedom from any liens if requested to do so by the University.
ASSIGNMENT: This Purchase Order or monies payable hereunder shall not be assigned in whole or in part without the University's written consent which shall be signed by an authorized representative of the University.
WORKMEN'S COMPENSATION: The Seller shall comply with all provisions of applicable Workmen's Compensation and other laws relating to or affecting the employment, hours of work or compensation of persons engaged in work under this Purchase Order.
AUTOMATIC RENEWAL: No Agreement, Service Contract, Policy, Blanket Purchase Order or Contractual Agreement of any nature is automatically renewable. All transactions terminate in accordance with the limitations of the specific period stated and/or in the event that no chronological limit is established by the expiration date of budget funds as set forth on this Purchase Order.
TIME: At all times specified for the performance of the Seller’s obligations, time shall be deemed of the essence.
ACCESS TO RECORDS: The Seller shall maintain reasonable records including evidence that services actually were performed and the identity of all individuals paid for such services, and shall allow access to those records by the University.
PUBLIC RECORDS: Notwithstanding any provision to the contrary contained herein, it is recognized that University is a public agency of the State of Mississippi and is subject to the Mississippi Public Records Act, §§25-61-1, et seq., Miss. Code Ann. If a public records request is made for any information provided to University pursuant to this agreement, University shall promptly notify the disclosing party of such request. The disclosing party shall promptly institute appropriate legal proceedings to protect its information. No party to this agreement shall be liable to the other party for disclosures of information required by court order or required by law.
CONFLICT OF INTEREST: The Seller affirms that, to the best of his/her knowledge, there exists no actual or potential conflict between Seller’s family, business, or financial interest and his/her services under this Purchase Order, and in the event of change in either his/her private interests or service under this Purchase Order, he/she will inform the University regarding the potential conflict of interest that may arise as a result of such change.
AGREEMENT: This Purchase Order constitutes the complete agreement between Seller and University with respect to the subject matter referred to herein. Any other Agreement, Service Contract, Policy or Contractual document of any nature whatsoever shall have no reference to the subject matter of the Purchase Order unless included in this Purchase Order by reference. If the Seller's acknowledgment of this Purchase Order contains terms and conditions which conflict with those contained in this Purchase Order, the terms and conditions listed on this Purchase Order shall take precedence over any set forth on the Seller's acknowledgment. Any changes or exceptions to the Purchase Order terms and conditions must be agreed to by the University in writing. Any such agreements must be signed by an authorized representative of the University. Failure of the University to insist on strict performance of any terms and conditions herein shall not be deemed a waiver of any right or remedy that the University shall have or of any subsequent default hereunder. The laws of the State of Mississippi shall govern the rights to the parties hereto as well as the construction and effect to be given to every provision hereof. The choice of law doctrine shall not be used to apply the laws of another state. The forum through which to attempt to pursue causes of action arising under this Purchase Order is the State of Mississippi state court system and no other.
PATENTS: The Seller shall hold and save the University, its officers, agents, servants and employees harmless from patent liability of any nature or kind, including cost and expenses, for or on account of any patented or unpatented invention made or used in the performance of this Purchase Order, including the use or disposal thereof by or on behalf of the University
OCCUPATIONAL SAFETY AND HEALTH ACT: To the extent that the products sold and/or services rendered to the University under this Purchase Order are covered by standards or regulations promulgated by the U.S. Department of Labor under the Occupational Safety and Health Act of 1970 (29 U.S. Code Sec. 651, Public Law 91-596), the Seller agrees to comply with such standards or regulations.
PROCUREMENTS ISSUED UNDER GOVERNMENT CONTRACTS: The following clauses and certifications contained in Federal Acquisition Regulations (FAR) and Defense Federal Acquisition Regulations (DFAR) to the extent required by law or the University's contract award from the government and as constituted on the date of this Purchase Order, are hereby incorporated by reference as fully as if they were set forth at length herein, except that as used in said clauses and certifications the terms "Contract," "Contractor," and "Contracting Officers" shall be deemed to refer respectively to "Purchase Order," "Seller," and "University." Upon request of the Seller, the University will furnish the Seller with copies of the referenced clauses and certifications: All Purchase Orders: 52.203-6 Restrictions On Subcontractor Sales To The Government, 52.203-7 Anti-Kickback Procedures, 52.203-12 Limitation On Payments To Influence Certain Federal Transactions, 52.204-2 Security Requirements, 52.209-6 Protecting The Government’s Interest When Subcontracting With Contractors Debarred, Suspended, Or Proposed For Debarment, 52.215-1 Instructions To Offerors - Competitive Acquisition, 52.219-8 Utilization Of Small Business Concerns, 52.222-1 Notice To The Government Of Labor Disputes, 52.222-4 Contract Work Hours And Safety Standards Act - Overtime Compensation, 52.222-21 Prohibition Of Non-Segregated Facilities, 52.222-26 Equal Opportunity, 52.222-35 Affirmative Action For Disabled Veterans And Veterans Of The Vietnam Era, 52.222-36 Affirmative Action For Workers With Disabilities, 52.222-37 Employment Reports On Disabled Veterans And Veterans Of The Vietnam Era, 52.223-3 Hazardous Material Identification And Material Safety Data, 52.227-1 Authorization And Consent, Alternate I, 52.227-2 Notice And Assistance Regarding Patent And Copyright Infringement, 52.227-10 Filing Of Patent Applications - Classified Subject Matter, 52.227-11/12/13 Patent Rights, 52.247-63 Preference For U.S.-Flag Air Carriers, 52.247-64 Preference For Privately-Owned U.S.-Flag Commercial Vessels, 252.203-7001 Special Prohibition On Employment, 252.204-7000 Disclosure Of Information, 252.225-7009/7010 Duty-Free Entry, 252.225-7025 Reporting Of Overseas Subcontracts, 252.227-7013 Rights In Technical Data And Computer Software, 252.227-7018 Restrictive Markings On Technical Data, 252.227-7037 Validation Of Restrictive Markings On Technical Data, Purchase Orders Over $2,000: 52.222-6 Davis Bacon Act, 52.222-7 Withholding Of Funds, 52.222-8 Payrolls And Basic Records, 52.222-9 Apprentices And Trainees, 52.222-10 Compliance With Copeland Act Requirements, 52.222-11 Subcontracts (Labor Standards), 52.222-12 Contract Termination-Debarment, 52.222-13 Compliance With Davis-Bacon And Related Act Regulations, 52.222-14 Disputes Concerning Labor Standards, 52.222-15 Certification Of Eligibility, Purchase Orders Over $2,500: 52.222-41 Service Contract Act Of 1965 As Amended, Purchase Orders Over $25,000: 52.215-2 Audit And Records - Negotiation, Alternate II, 52.215-14 Integrity Of Unit Prices, 52.223-6 Drug Free Workplace Cost Or Pricing Data - Modifications, 52.219-9 Small Business Subcontracting Plan, 52.225-13 Restrictions on Certain Foreign Purchases, 252.227-7034 Patents - Subcontracts, 252.227-7039 Reporting of Subject Inventions, Purchase Orders Over $100,000: 52.223-2 Clean Air And Water, Purchase Orders Over $500,000: 52.215-12/13 Subcontractor Cost or Pricing Data - Modifications, 52.219-9 Small Business Subcontracting Plan.
PROCUREMENTS ISSUED UNDER GOVERNMENT GRANTS: Procurements made with Federal funds are subject to compliance with the standards and requirements as set forth in OMB Circular A-110, Section 48, Contract Provisions, and Appendix A, and OMB Circular A-133, Paragraph 5. All procurement requirements contained in the above referenced Circulars are incorporated herein by reference.
SELLER’S LIABILITY: Seller assumes the entire responsibility and liability for losses, expenses, damages, demands and claims in connection with or arising out of any personal injury, or alleged personal injury (including death), and/or damage or destruction to property sustained, or alleged to have been sustained, in connection with or to have arisen out of the performance of this Purchase Order by Seller, its agents, employees, subcontractors, and consultants, save and except liability as may result from, or be in connection with or to have arisen directly out of the negligent performance of this Purchase Order by or willful misconduct of University. Seller shall indemnify and hold harmless University, its officers, agents, and employees from any and all liability for such losses, expenses, damages, demands and claims and shall defend any suit or action brought against any or all of them based on any alleged personal injury or damage and shall pay any damage costs and expenses, including attorney’s fees, in connection with or resulting from such suit or action.
DISCOUNT PERIOD: The cash discount period available to University shall commence on the date of the receipt of the merchandise or on the date of receipt of the invoice, whichever may be the later.
PAYMENT: Seller shall be paid, upon submission of acceptable invoices, within forty-five (45) days of receipt of each invoice upon review and confirmation by University that such payments are due, justified, and warranted in accordance with §31-7-305, Mississippi Code of 1972, Annotated. In the event any article sold and delivered hereunder shall be covered by any patent, copyright, or application therefore, Seller will indemnify and save harmless University from any and all loss, cost or expense on account of any and all claims, suits or judgments on account of the use or sale of such article in violation of rights under such patent, copyright or application. Seller agrees not to use the name of University or to quote the opinion of any University employee in any advertising without obtaining the prior written consent of University.
NON-DISCRIMINATION: During the performance of this Purchase Order, the Seller agrees as follows:
A. The Seller will comply with all provisions of the Civil Rights Act of 1964, Executive Purchase Order No. 11246 of September 24, 1965, as amended, and relevant Purchase Orders of the Secretary of Labor and all applicable Municipal, State and Federal laws.
B. The Seller will not discriminate against any employee or applicant of employment because of race, religion, color, national origin, sex, age, physical and/or mental disability, veteran status or political affiliation. The Seller will take affirmative action to ensure that applicants are employed and that employees are treated during employment in accordance with this policy. Such action shall include, but not be limited to the following: employment, upgrading, demotion or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship.
E-VERIFY: Seller represents and warrants that it will ensure its compliance with the Mississippi Employment Protection Act, Section 71-11-1, et seq of the Mississippi Code Annotated, and will register and participate in the status verification system for all newly hired employees. The term “employee” as used herein means any person that is hired to perform work within the State of Mississippi. As used herein, “status verification system” means the Illegal Immigration Reform and Immigration Responsibility Act of 1996 that is operated by the United States Department of Homeland Security, also known as the E-Verify Program, or any other successor electronic verification system replacing the E-Verify Program. Seller agrees to maintain records of such compliance and, upon request of the State and approval of the Social Security Administration or Department of Homeland Security, where required, to provide a copy of each such verification to the State. Seller further represents and warrants that any person assigned to perform services hereunder meets the employment eligibility requirements of all immigration laws of the State of Mississippi. Seller understands and agrees that any breach of these warranties may subject Seller to the following: (a) termination of this Agreement and ineligibility for any state or public contract in Mississippi for up to three (3) years, with notice of such cancellation/termination being made public, or (b) the loss of any license, permit, certification or other document granted to Seller by an agency, department or governmental entity for the right to do business in Mississippi for up to one (1) year, or (c) both. In the event of such termination/cancellation, Seller would also be liable for any additional costs incurred by the State due to contract cancellation or loss of License or Permit.
University may at any time insist upon strict compliance with these terms and conditions notwithstanding any previous custom, practice, or course of dealing to the contrary.