SUSTAINABLE MANUFACTURING INNOVATION ALLIANCE CORP. PURCHASE TERMS & CONDITIONS
1. Acceptance. These terms and conditions (“Terms”) govern purchases by and sales to the Sustainable Manufacturing Innovation Alliance (“Buyer”) from the identified Seller (“Seller”) of goods and/or services identified in Buyer’s issued purchase order or other transaction document (“Order”). These Terms shall be deemed accepted by Seller’s acknowledging receipt of Buyer’s Order, by Seller’s commencement of services or work on the goods ordered by Buyer, or by Seller’s shipment of the goods, whichever first occurs. Additional or different terms in Seller’s preprinted forms shall be deemed material and are objected to and rejected, and the Order shall be deemed accepted by Seller without such additional or different terms. Subject to any previously written agreement(s) currently in effect between the parties governing the provision of goods or services that are the subject of the Order, these Terms represent the entire understanding between Buyer and Seller, shall supersede all prior understandings and agreements relating to the subject matter hereof, and may be amended only by the parties’ written agreement.
2. Invoices. Seller shall send all invoices to “Bill To” address shown on the front of the Order. Seller shall not invoice prior to making shipment or performing services (as applicable). Invoices which do not bear Buyer’s Order number shall not receive consideration for payment.
3. Price and Payment. No charges of any kind including without limitation charges for shipping, handling, packaging, or insurance will be allowed unless specifically stated on the Order. Prices set forth on the Order are not subject to increase. Buyer shall pay approved invoices thirty (30) days following receipt of Seller’s correct invoice. All per diem and travel costs (if any) must be preapproved in writing by Buyer and shall comply with Buyer’s travel policy and all applicable laws and regulations. Buyer is a nonprofit corporation exempt from payment of New York State and local sales and use tax under tax exemption certificate number 269251 (copy furnished on request).
4. Title, Risk of Loss, Delivery. Title and risk of loss to goods shall pass to Buyer at the delivery point identified in the Order. If the Order sets a date or time for the delivery or performance of goods and services, time is of the essence, and Seller’s failure to deliver or perform in a timely manner will constitute a material breach of these Terms.
5. Inspection and Rejection. All goods furnished and services performed under the Order shall be subject to Buyer’s inspection, test, and approval or rejection prior to or after delivery. Buyer reserves the right to reject and return to Seller, for full refund and at Seller’s sole expense, all goods that do not conform to Buyer’s exact specifications or requirements. Payment by Buyer shall not constitute an acceptance or affect Buyer’s right to later reject the goods or services due to nonconformance.
6. Representations and Warranties. Seller warrants and represents:
a. That all material, work, or goods supplied under the Order (i) are manufactured from new parts or refurbished parts which meet new-build specifications, and conform to specifications, drawings, samples, or other descriptions furnished by Buyer; (ii) shall be fit and serviceable for the purpose intended, of good quality and free from defects in material and workmanship; (iii) do not infringe or violate any patents, copyrights, trademarks or other intellectual property; and (iv) are not manufactured, priced or sold in violation of any Federal, state or local law, including without limitation those relating to health and safety.
b. That Seller, and each person or entity (if any) acting for or on its behalf: (i) has all licenses, certificates, qualifications and other professional credentials necessary to properly perform in accordance with the law and applicable industry standards; (ii) shall not breach any agreement with a third party in the course of performance; and (iii) is not debarred from participation in any program of the government of the United States or listed on the governmentwide exclusions in the System for Award Management (SAM). Seller shall immediately notify Buyer if Seller or any person or entity acting for or on Seller’s behalf becomes subject to such debarment.
7. Insurance. Seller shall maintain adequate insurance coverage to insure against risks of performance and agrees to submit a certificate of insurance to Buyer upon Buyer’s request. The amount of insurance purchased by Seller shall not limit Seller’s liability to Buyer.
8. Termination. Buyer may terminate the Order or any part hereof (a) for its sole convenience at any time; or (b) in the event of any default by Seller, including late deliveries, deliveries of defective or nonconforming goods or services, or failure to provide Buyer, upon request, with reasonable assurances of future performance; or (c) in the event Seller files, or has filed against it, any petition or action in bankruptcy or for the relief from creditors, or if Seller makes any assignment for the benefit of creditors or ceases to meet its financial obligations when due. Upon termination, Seller shall and shall cause any of its suppliers or subcontractors to immediately stop all work. Buyer’s liability to Seller shall not exceed the portion of the Order price reflecting conforming work performed and delivered as of the effective termination date plus actual direct costs incurred by Seller resulting from termination which Seller could not have reasonably avoided and cannot reallocate to other work. These Terms shall survive termination or expiration of the Order as applicable.
9. Subcontracting. Except as otherwise specified by Buyer, Seller may subcontract the performance of its obligations under this Agreement provided that Seller causes its subcontractor(s) to agree in writing to be bound by these Terms. Seller shall guarantee and be directly liable to Buyer for subcontractor performance and nonperformance.
10. Work Product. Except as otherwise agreed in writing by the parties, all work product developed specifically for Buyer under the Order shall be considered works for hire and the sole property of Buyer. Seller hereby assigns to Buyer all right, title and interest in and to copyright, patent and all other intellectual property rights in such work product and grants to Buyer a nonexclusive, royalty-free, perpetual right and license to use, reproduce, display, publish, perform, modify, make, have made, sell, offer for sale, import and otherwise distribute such work product, including any Seller or third party materials or content incorporated in or delivered with such work product.
11. Data Security. “Confidential data” means (i) any data that can be used to distinguish or trace an individual‘s identity, such as name, social security number, date and place of birth, mother‘s maiden name, or biometric records; (ii) any information that is linked or linkable to an individual, such as medical, educational, financial, account, wage, and employment information; and (iii) any other information clearly marked by Buyer as “confidential”. Seller shall not disclose confidential data to any third party without Buyer’s prior written consent and shall limit use of confidential data within Seller’s organization on a strict need-to-know basis for the purpose of the Order. Seller shall implement appropriate administrative, technical and physical measures to ensure the security, confidentiality and integrity of confidential data and protect against unauthorized access to or use of data.
12. Indemnification. To the fullest extent permitted by law, Seller shall indemnify and hold harmless Buyer, its employees, officers, agents, and customers, including (as applicable) the U.S. Government (individually and collectively “Indemnitees”), from and against all costs, losses, expenses, damages, suits, actions or legal proceedings of any kind arising out of or in connection with Seller’s performance or nonperformance, including without limitation any claim of personal injury, property damage, environmental damage, and infringement or misappropriation of IP, together with reasonable attorneys’ fees incurred in connection with any of the foregoing. Seller shall, at Indemnitee’s option and Seller’s expense, intervene in or defend any such proceedings, provided that Seller is given prompt notice of and reasonable assistance and tendered sole control of the defense respecting such proceedings, and further provided that Indemnitee(s) will have the right to participate in the defense at its expense and with counsel of its choice. Seller may not settle an indemnified claim without the prior written consent of Indemnitee(s) unless such settlement excludes any admission of liability on behalf of, and includes an unconditional release of, Indemnitee(s).
13. Disputes. The parties shall attempt in good faith to resolve promptly any dispute arising out of or related to this Agreement prior to seeking remedies available at law or in equity. Seller acknowledges that the timely and complete performance of its obligations pursuant to the Order is critical to the business and operations of Buyer and shall continue to perform its obligations under the Order in good faith during the resolution of such dispute; provided, however, that in the event of a threatened, actual or claimed breach of intellectual property rights, either party may and immediately seek relief in a court of competent jurisdiction to stay any threatened or continued breach.
14. Limitation of Liability. IN NO EVENT SHALL BUYER BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES, OR DIRECT DAMAGES IN EXCESS OF THE COST OF GOODS OR SERVICES SET FORTH IN THE Order, REGARDLESS WHETHER ANY CLAIM SOUNDS IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE), OR ANY OTHER THEORY, AND REGARDLESS OF THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY.
15. Independent Contractor. Seller is an independent contractor with no authority to bind Buyer and no other relationship to Buyer. Nothing in this Agreement shall be interpreted or construed as creating or establishing an employment relationship between Seller and Buyer.
16. Conflict of Interest. Seller shall maintain written standards of conduct covering conflicts of interest and governing the actions of its employees engaged in the selection, award and administration of contracts. No employee, officer, or agent may participate in the selection, award, or administration of a contract supported by a Federal award if he or she has a real or apparent conflict of interest. A finding of conflict of interest may result in Order termination.
17. No Use of Marks. Seller shall not use the name, trademarks, logos, or symbols of Buyer for purpose of advertising, promotion, trade, or any other purpose without Buyer’s prior written approval.
18. Force Majeure. Neither party will be in breach of this Agreement for any failure to perform caused by events outside such party’s reasonable control such as fire, earthquakes, floods or other natural disasters; acts of war or a public enemy; acts of government in either its sovereign or contractual capacity; or epidemics, pandemics or quarantine restrictions (a “force majeure event”), provided that the affected party provides prompt written notice to the other party, acts in good faith to minimize the impact of such force majeure event, and resumes performance as soon as possible. The obligations of both parties under this Agreement will be suspended within the scope and for the duration of the force majeure event.
19. Access to Records. Seller shall preserve and permit Buyer or its duly-authorized representatives (including a U.S. Government funding or sponsoring agency, as applicable) to examine and audit all directly pertinent books, documents, papers and records of Seller involving transactions related to the Order for the purpose of making audits, examinations, excerpts and transcripts for a period of six (6) years after final payment hereunder. Seller shall refund to Buyer any overpayments disclosed by any audit.
20. No Assignment. Seller shall not assign the Order or any interest relating to the Order without Buyer’s written consent, and any assignment made or attempted without such consent shall be deemed null and void.
21. Buyer Property. All equipment or material (including without limitation informational material) furnished by Buyer to Seller shall, unless otherwise agreed to in writing, be and remain the property of Buyer, shall be returned to Buyer at its written request, and shall not be used by Seller in any of its business except its business with Buyer under the Order or other Orders.
22. Waiver. The failure of Buyer to enforce any provision of the Order shall not be construed to be a waiver of such provision or limit the right of Buyer thereafter to enforce each and every provision.
23. Governing Law. All matters concerning the Order, its validity and interpretation (including without limitation Buyer’s offer and Seller’s acceptance) shall be governed by the substantive laws of the State of New York without regard to their conflict of laws principles. The parties submit to the exclusive jurisdiction of the state and Federal courts of Western New York and Monroe County. THE PARTIES AGREE AND ACKNOWLEDGE THAT THEY HEREBY WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE Order.
a. Seller agrees to comply with all applicable provisions of federal, state and local laws, orders, rules and regulations and warrants that all goods and services supplied hereunder will be produced or provided in compliance with the same, including without limitation the Occupational Safety and Health Act, the Toxic Substances Control Act, and any amendments thereto as well as all U.S. export control laws and regulations.
b. Seller may not discriminate on the basis of: race, color, or national origin, as set forth in Title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d, et seq.); disability, as set forth in Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794); sex, as set forth in Title IX of the Education Amendments of 1972 (20 USC §16811686); age, as set forth in the Age Discrimination Act of 1975 (42 U.S.C. 6101, et seq.); or protected veteran status (41 CFR 60-300.5(a)).
c. All subcontract purchases pursuant to a Federal grant, cooperative agreement, or other government contract are subject to the applicable flow down clauses and other provisions of the prime contract, including without limitation the Davis-Bacon Act (40 U.S.C. 3141-3144, and 3146-3 148) as supplemented by Department of Labor regulations (29 CFR Part 5, “Labor Standards Provisions Applicable to Contracts Covering Federally Financed and Assisted Construction”); the Copeland “Anti-Kickback” Act (40 U.S.C. 3145), 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 Contract Work Hours and Safety Standards Act (40 U.S.C. 3701-3708); “Rights to Inventions Made by Nonprofit Organizations and Small Business Firms Under Government Grants, Contracts and Cooperative Agreements,” (37 CFR Part 401 and any implementing regulations issued by the awarding agency); Clean Air Act (42 U.S.C. 7401-7671q.) and the Federal Water Pollution Control Act (33 U.S.C. 1251-1387), as amended; the Byrd Anti-Lobbying Amendment (31 U.S.C. 1352); and section 6002 of the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act.
d. Without limiting the foregoing, Seller shall comply with the following with respect to purchases made by Buyer on behalf of its division the REMADE Institute in connection with Cooperative Agreement Number DE-EE0007897 between Buyer and the Office of Energy Efficiency and Renewable Energy within the U.S. Department of Energy (as applicable):
• DOE Assistance Regulations, 2 CFR part 200 as amended by 2 CFR part 910 (http://www.eCFR.gov)
• National Policy Assurances incorporated as Award Terms in effect on date of award at http://www.nsf.gov/awards/managing/rtc.jsp
• 2 CFR 200.326 Appendix II to Part 200—Contract Provisions for non-Federal Entity Contracts Under Federal Awards
• U.S. Production – All work must be performed in the United States unless Buyer provides a waiver. This requirement does not apply to the purchase of supplies and equipment; however, Seller should make every effort to purchase supplies and equipment within the United States. The Seller must flow down this requirement to its subrecipients. To the greatest extent practicable, all equipment and products purchased with funds made available hereunder should be American-made.
• Lobbying – None of the funds paid hereunder shall be expended, directly or indirectly, to influence congressional action on any legislation or appropriation matters pending before Congress, other than to communicate to Members of Congress as described in 18 U.S.C. § 1913.