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Order Terms & Conditions 03-28-14

Parties
Scope
Acceptance and Limitations
Changes
Termination for Convenience
Termination for Cause
Damages
Limitation of Yale’s Liability
Packing
Freight Charges
Timely Delivery
Inspection
Risk of Loss
Warranties
Intellectual Property Indemnity
Use of Yale’s Name
Invoices and Payments

Discount Terms
Insurance
Compliance with Laws
Government Contracts
Tax Exemption
Confidentiality
Proprietary Rights
Conduct of Personnel
Conflict of Interest
Entire Agreement
No Assignment
Labor Disputes at Yale
Severability
Waiver
Choice of Law
Notice
Insurance Requirements
Flow Down Clauses
  1. Parties: The term “Seller” refers to the addressee set forth on the face of Yale’s purchase order, and the term “Yale” refers to Yale University, a corporation organized and existing under and by virtue of a special charter granted by the General Assembly of the Colony and State of Connecticut and located in New Haven, Connecticut, together with its schools, departments and offices.

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  2. Scope: The following terms and conditions apply to all Yale purchase orders, in addition to any terms set forth on the face of an individual purchase order or in any plans, specifications or other documents incorporated by reference (each, collectively, an “Order”). Acceptance by Yale of any offer from Seller is expressly limited to the terms and conditions of the Order, and Yale hereby objects to and shall not be bound by any additional, different or conflicting terms, whether printed or otherwise, in any other communication between the parties (including on any of Seller’s forms, letter or papers), it being understood that the terms and conditions of the Order shall prevail notwithstanding any such additional, different or conflicting terms.

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  3. Acceptance and Limitations: The Order shall be deemed accepted by Seller on the earlier of (a) shipment of goods or rendering of services ordered, in total or in part, or (b) within 15 days of issuance by Yale, absent written notification to Yale of non-acceptance.

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  4. Changes: Yale may make changes to the Order at any time and Seller shall accept such changes. If a change by Yale causes an increase or decrease in the cost or time required for Seller’s performance, as soon as practicable, the parties shall agree to an equitable adjustment of the purchase price and/or delivery schedule, as applicable, and incorporate such changes as a revision change to the Order. No other form of notification or verbal agreement shall be binding on Yale.

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  5. Termination for Convenience: Yale may, by written notice to Seller, terminate the Order, or any part thereof, for any or no reason, for Yale’s convenience. Upon notice of termination, Seller shall immediately stop all work and cause its suppliers and/or subcontractors to stop all work in connection with the Order. If Yale terminates for convenience, Yale shall pay Seller for goods and services accepted as of the date of termination, and, subject to Section 8, for Seller’s actual, reasonable, out of pocket costs incurred directly as a result of such termination. Yale shall have no responsibility for work performed after Seller’s receipt of notice of termination.

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  6. Termination for Cause: Yale may, by written notice to Seller, terminate the Order, or any part thereof, if Seller breaches any of the terms and conditions of the Order, becomes insolvent or files for bankruptcy protection. By way of example, (a) failure by Seller to make timely, complete and conforming delivery of goods and services, or (b) breach of the representations or warranties set forth in the Order, shall entitle Yale to terminate the Order for cause. If Yale terminates for cause, Yale shall have no payment obligations to Seller. Should a court of competent jurisdiction subsequently determine that Yale’s termination for cause was wrongful or unjustified, then such termination shall be automatically considered a termination for convenience under Section 5 and Seller shall have all rights under that provision, but no other rights or claims for damages.

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  7. Damages: Without limiting Yale’s rights and remedies at law or in equity, Yale reserves the right to charge Seller for any loss, expense (including reasonable attorneys’ fees) or damage sustained as a result of Seller’s failure to deliver conforming goods or services or other breach of the Order, including without limitation, expenses incurred in connection with Yale’s purchase of substitute goods, incidental damages and consequential damages resulting from Seller’s failure or breach.

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  8. Limitation of Yale’s Liability: Yale shall not be liable to Seller, its employees, representatives, agents, suppliers, or subcontractors for any anticipated profits or incidental damages (except to the extent expressly provided in Section 5) or consequential damages. Without limiting the foregoing, Yale’s liability for any claim arising directly or indirectly under or in connection with the Order shall in no event exceed the cost of the goods or services giving rise to the claim. Yale shall have no liability for penalties of any kind.

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  9. Packing: Yale’s purchase order number and specific delivery location must appear on the outside of each package and on all packing slips, invoices, and allied papers. A packing slip must be included with each shipment. Except as expressly provided in the Order, Seller shall pack, mark and prepare all shipments to meet the carrier’s requirements, at Seller’s expense.

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  10. Freight Charges: Except as expressly provided in the Order, packing, shipping, unloading, assembling and installation are included in the purchase price set forth in the Order and Yale shall not be charged any additional amounts for such services. All shipments on which freight charges are due must be prepaid. Collect shipments cannot be accepted.

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  11. Timely Delivery: Time is of the essence in fulfillment of the Order. Shipment and delivery shall be made in accordance with the Order; provided, that if not addressed in the Order, delivery shall be made within ten (10) days of Yale’s issuance of the Order. Yale may, at its option, and without limitation of any of its other rights, cancel any unfilled part of the Order if complete, conforming delivery is not made within the times specified. Yale is not required to accept partial or incomplete delivery. Acceptance of any part of the Order shall not bind Yale to accept any future shipments.

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  12. Inspection: Yale shall have the right to inspect and test all goods and/or services delivered under the Order. Neither receipt nor payment for goods and/or services shall constitute acceptance. Yale may reject any or all items that are nonconforming, as determined by Yale’s sole reasonable judgment. Yale’s failure to inspect shall not relieve Seller of any of its responsibilities. Material shipped in quantities in excess of Yale’s stated requirements may be returned at Seller’s expense. If goods are rejected, they will be held at Seller’s risk and expense and Seller shall bear the risk of loss or damage to such goods until received by Seller.

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  13. Risk of Loss: Seller shall bear the risk of loss of or damage to all goods purchased pursuant to the Order until they are received by Yale.

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  14. Warranties: Seller warrants that all material, work product, and merchandise supplied under the Order (a) shall strictly conform to all specifications, drawings, samples, or other descriptions furnished to and approved by Yale, (b) shall be fit and serviceable for the purpose intended, as agreed to by Yale and Seller (c) shall be of good quality and free from defects in materials and workmanship, (d) shall be new and not refurbished or reconditioned, unless expressly agreed in writing by Yale, and (e) shall not infringe any patent, copyright, mask work, trademark, trade secret or other intellectual property, proprietary or contractual right of any third party. In addition, Seller warrants that Yale shall have good and marketable title to all goods (including all components thereof) purchased by Yale pursuant to the Order, free of all liens and encumbrances and that no licenses are required for Yale to use such goods. With respect to services, Seller warrants that all services shall be provided in a professional and workmanlike manner, with a degree of skill and care consistent with current, good and sound professional procedures. Neither receipt of material, work product or merchandise nor payment therefore shall constitute a waiver of this provision. If a breach of warranty occurs, Yale may, in its sole discretion, and without waiving any other rights, return for credit or require prompt correction or replacement of the nonconforming goods or services.

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  15. Intellectual Property Indemnity: Seller shall indemnify, defend and hold Yale harmless against all claims, liabilities, losses, damages, costs and expenses (including legal fees) resulting from or arising in connection with any actual or claimed infringement of any patent, copyright, mask work, trademark, trade secret or other intellectual property, proprietary or contractual right of any third party, with respect to the goods or services provided under the Order.

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  16. Use of Yale’s Name: Seller agrees not to use (a) Yale’s name, (b) the name of any employee, student or agent of Yale, or (c) any trademarks, service marks or trade names owned or controlled by Yale, in any sales, promotional, advertising or other publication, without the express prior written permission of Yale. In no event shall Seller or its employees, agents or subcontractors represent themselves as employees or agents of Yale.

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  17. Invoices Payments: Unless otherwise specified in the purchase order, Payment terms will be Net 30. All quotes and amounts paid under the Order shall be in U.S. Dollars. Seller shall bear the risk of fluctuation in foreign exchange rate. Yale shall have no obligation to pay any amount prior to Yale’s receipt of a correct and proper invoice for such amount prepared in accordance with the Order. Except as expressly provided in the Order, payment shall not be due until final acceptance by Yale. Yale shall have the right to reduce and set off against amounts payable under the Order any indebtedness or other claim which Yale may have against Seller, however and whenever arising.

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  18. Discount Terms: If cash discounts are offered and identified, such discount periods will be computed from the date of delivery of the goods or services ordered; or the date of Yale’s receipt of a correct and proper invoice, whichever is later. Payment or other terms identified on the Seller’s invoice which are contrary to those of the Order shall have no force and effect unless acted upon or approved in writing by Yale. Yale will make every effort to pay invoices within the terms prescribed in the Order, however, in no event will Yale be obligated to pay late fees or penalties for invoices paid outside the Order terms.

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  19. Insurance: Seller shall maintain, at a minimum, insurance in the amounts and coverage described on Attachment I and shall otherwise comply with the requirements of Attachment I. Seller shall provide evidence of such insurance prior to the delivery of any goods to Yale.

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  20. Compliance with Laws: Seller represents and warrants that, in the production and sale of goods to be delivered pursuant hereto, and in the provision of services hereunder, Seller has complied with all applicable federal, state, and municipal laws and regulations, including, without limitation, (a) all such laws and regulations pertaining to health, safety and environmental standards, (b) all such laws and regulations pertaining to design, manufacture, testing, labeling, and transportation of such goods, and (c) all such laws and regulations pertaining to affirmative action, nondiscrimination, and equal opportunity, including without limitation, the requirements of the Fair Labor Standards Act of 1938, as amended, and the rules and regulations of the Secretary of Labor issued pursuant to Executive Order Number 11246 of September 24, 1965.

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  21. Government Contracts: If the Order [as denoted on the face of the Order] is made with funds obtained by Yale directly or indirectly from a Federal grant or contract, Seller shall comply with all applicable provisions of Attachment II

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  22. Tax Exemption: Yale is generally exempt from federal, state and local taxes for purchases made in furtherance of its exempt mission, including Connecticut sales and use taxes (Permit E00015) and federal excise taxes (Exemption No. 06730237F). Seller shall not charge Yale for any taxes in connection with the Order to the extent permitted by law. Without limiting the foregoing, Yale will not be responsible directly or indirectly (including by reimbursement to Seller) of any property taxes assessed on any leased property under this Order. Seller is familiar with and shall comply with the requirements applicable to claiming such exemptions. Yale shall provide copies of exemption certificates upon request.

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  23. Confidentiality: Seller shall preserve in strict confidence all confidential, sensitive or proprietary information of Yale received from Yale (“Confidential Information”), whether or not marked “Proprietary” or “Confidential,” and whether oral or written, using the same degree of care as it takes to preserve and safeguard its own confidential or proprietary information (but in no event less than a reasonable degree of care.) Confidential Information shall not include information that Seller can demonstrate by written evidence was publicly available at the time of disclosure or was independently developed by Seller without reference to Confidential Information. Seller will not (i) disclose or cause to be disclosed at any time any Confidential Information obtained from Yale, or (ii) use or cause to be used any of such Confidential Information for any purpose, except as required in the performance of the services required by the Order. Seller represents, warrants and covenants that it shall maintain physical, electronic and procedural safeguards designed to (1) insure the security, integrity and confidentiality of all Confidential Information, (2) protect against any anticipated threats or hazards to the security, integrity or confidentiality of Confidential Information, and (3) protect against unauthorized access to or use or disclosure of Confidential Information.

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  24. Proprietary Rights. Seller agrees that all work created by Seller solely or in collaboration with others in the course of performing services under this Agreement or designing or developing materials to be delivered, including all intermediate and partial versions (“Work Product”) shall automatically be the sole property of Yale upon their creation or (in the case of copyrightable works) fixation in a tangible medium of expression, and Yale shall own all rights, including all proprietary and intellectual property rights, title and interest. Seller hereby assigns to Yale all of its right, title and interest in and to all of the Work Product and all copies of any of the foregoing, including, without limitation, all copyright and other proprietary rights thereto throughout the world (and all renewals and extensions).

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  25. Conduct of Personnel: While at any Yale location, Seller’s personnel, agents, and subcontractors shall comply with all reasonable requests, standard rules, and regulations of Yale communicated to Seller regarding personal and professional conduct, including without limitation any security or privacy requirements, and shall otherwise conduct themselves in a businesslike manner.

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  26. Conflict of Interest:
    a. Buyer’s policy requires avoidance of real or apparent conflict of interest. No employee, officer or agent of Buyer shall knowingly participate in the selection, award or administration of a contract with Seller if Buyer or any member of Buyers immediate family has a material financial interest in Seller, or is negotiating, or has any arrangement concerning prospective employment with Seller.
    b. No officer, employee or agent of Buyer shall either solicit or accept gratuities, favors or anything of monetary value from Seller, including any contingent fee.
    c. If Seller has reason to believe any officer, employee or agent of Buyer has violated any provision of this paragraph, Seller immediately shall notify Buyer of the suspected violation by sending notice thereto to the Executive Director of Procurement, at Yale University, PO Box 208233, New haven, CT 06520, explaining the situation in full. Seller’s failure to so notify Buyer shall be a material breach of this agreement and Buyer, at its option, may terminate this agreement.

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  27. Entire Agreement: The Order represents the entire agreement between Seller and Yale with respect to the goods and services described in the Order.

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  28. No Assignment: Seller may not assign, transfer or subcontract any part of the Order without the prior written consent of Yale, and any assignment in violation of this provision shall be null and void.

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  29. Labor Disputes at Yale: No strike or other labor dispute or shortage at Yale shall mitigate Seller’s obligations hereunder

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  30. Severability:. If any provision of the Order is determined to be invalid, illegal or unenforceable, the remaining provisions of this Agreement remain in full force, if the essential terms and conditions of this Agreement for each party remain valid, binding, and enforceable.

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  31. Waiver: No waiver by Yale of any provision of the Order or any breach hereunder shall be deemed a waiver of any other provision or subsequent breach, nor shall any such waiver constitute a continuing waiver. Delay or failure of Yale to insist on strict performance of any provision of the Order or to exercise any rights or remedies hereunder shall not be deemed a waiver

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  32. Choice of Law: All matters arising under or related to the Order shall be construed and enforced in accordance with the laws of the State of Connecticut, without regard to conflicts of law rules.

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  33. Notice: Any communications required by the Order shall be in writing and shall be delivered to Yale University at:

    Yale Purchasing Department
    150 Munson Street
    PO Box 208233
    New Haven, CT 06520

    Please include the Buyer’s name and PO number on the outside of the envelope. (a) Any communication to the Seller shall be in writing and shall be delivered at an address provided prior to PO issuance.

Attachment I - Insurance Requirements

Attachment II - "Flow-down" Clauses for Government Contracts or Grants

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Archived Ordered Terms and Conditions