- 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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- 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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- 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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- 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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- 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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- 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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- 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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- 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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- 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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- 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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-
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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-
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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- 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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- 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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- 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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-
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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- 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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- 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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-
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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- 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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-
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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- 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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- 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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- 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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- 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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- 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. ^^TOP
- 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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- 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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- Labor
Disputes at Yale: No strike or other labor
dispute or shortage at Yale shall mitigate Seller’s
obligations hereunder
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- 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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- 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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- 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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- Notice:
Any communications required by the Order shall be
in writing and shall be delivered to Yale University
at:
Yale Purchasing Department
155 Whitney Avenue
PO Box 208233
155 Whitney Avenue, 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.
- Insurance
Requirements
- Flow Down Clauses
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