Purchase Order Terms and Conditions
1. PARTIES – The term “Supplier” or “Seller” refers to the addressee set forth on the face of Lehigh University’s purchase order, and the term “Buyer” or “Lehigh” refers to Lehigh University, together with its schools, departments and offices.
2. GENERAL - The purchase order, these terms and conditions, and any continuation pages attached thereto, shall together constitute Buyer's offer to Seller, and shall become a binding contract on the terms and conditions set forth herein, on the earlier of: Seller's written acceptance thereof or commencement of performance by Seller or Supplier in accordance with the purchase order. No revisions of the purchase order or any of these terms and conditions shall be valid unless in writing and signed by an authorized representative of Buyer and no conditions stated by Seller in accepting or acknowledging the purchase order shall be binding upon Buyer if in conflict with, inconsistent with, or in addition to the terms and conditions contained herein. Except as otherwise provided herein, no conditions, usage of trade, course of dealing or performance, understanding or agreement purporting to modify, vary, explain or supplement the terms and conditions and/or the purchase order shall be binding unless hereafter made in writing and signed by the authorized parties. Additional or differing terms and conditions proposed by the Seller in any format shall be deemed a material alteration of the purchase order and these terms and conditions and are hereby objected to and rejected. This offer shall be deemed accepted by Seller without said additional or different terms.
3. SCOPE – These terms and conditions apply to all Lehigh purchase orders in addition to any terms set forth on the face of an individual purchase order or in any other documents incorporated by reference.
4. QUANTITY - The quantity of material ordered or released hereunder must not be exceeded and Buyer shall not be liable for and may reject any material delivered in excess of that so ordered or released. The Buyer’s count will be accepted as final and conclusive on all shipments not accompanied by a packing list.
5. PRICE - The purchase order shall not be filled at higher prices than last quoted or charged without prior written notice to and acceptance by Buyer. If no price is stated on the purchase order, Seller agrees to invoice at the lowest prevailing market price for merchandise of like quality and quantity. In the event Seller, during the performance of its obligations under the purchase order, reduces its price of materials supplied or services furnished of the same quantity, grade and quality, Seller agrees to give Buyer the benefit of such reduction in price.
6. DELIVERY - Delivery must be made, or services must be rendered, within the time stated on the purchase order, failing which Buyer reserves the right to purchase elsewhere, and Buyer may reject materials and services not delivered or furnished on dates specified on this order. If no date is specified Buyer may exercise said rights if delivery of materials or performance of services is not made within a reasonable time.
7. CONFORMING GOODS/SERVICES - Acceptance of all or any part of the goods or services shall not be deemed a waiver of Buyer's right either to cancel the order or to return all or any portion of the goods because of failure to conform to order, or by reason of defects, latent or patent, or other breach of warranty, nor shall it be deemed a waiver of Buyer’s right to make any claim for damages. Such rights shall be in addition to any other remedies provided by law.
8. OTHER CHARGES – Seller shall bear all cost for packing, crating, drayage, or storage unless otherwise stated herein.
9. INSPECTION AND REJECTION - Materials and services purchased under any purchase order are subject to Buyer's inspection and approval within a reasonable time after delivery or commencement (if the purchase order is for the furnishing of services). Buyer reserves the right, in its sole judgment, to return or reject, at Seller's expense, goods shipped or services furnished in excess of the requirements on the purchase order, or defective goods or inadequate services not meeting the Buyer's specifications and standards, whether paid for or not. Neither receipt nor payment for goods and/or services shall constitute acceptance. Buyer’s failure to inspect shall not relieve Seller of any of its responsibilities.
10. INDEMNIFICATION - If Seller's work under the purchase order involves operations by the Seller outside of Seller's premises, Seller shall take all necessary precautions to prevent the occurrence of damage to persons or property during the progress of such work and shall indemnify and defend Buyer, and its officers, employees, trustees, agents and representatives (“Indemnified Parties”) against any and all loss (including, but not limited to any property damage from pollution or contamination) which may result in any way from any act of omission on the part of Seller, its agents, employees or subcontractors, except to the extent that any such damage is due solely and directly to the negligence of an Indemnified Party. The Seller will further indemnify, defend and save harmless the Indemnified Parties from and against any and all liabilities, damages, claims, losses, costs or demands of every nature and kind arising out of injury to or death of any subcontractor, employee, agent, representative or invitee of the Seller while in, on or near the premises of the Buyer, however such injury or death may be caused, whether caused or alleged to be caused by the negligence of an Indemnified Party, the conditions of the premises or otherwise. Seller also shall indemnify and defend the Indemnified Parties from and against any and all claims, damages, liabilities or costs, including fines and penalties, arising out of or relating to any alleged violation of the Occupational Safety and Hazard Act of 1970, as amended (“OSHA”) or any applicable Environmental Law (as hereinafter defined). Seller will further indemnify, defend and save harmless the Indemnified Parties from and against all liabilities, damages, claims, losses, costs or demands of every nature and kind (including attorney’s fees) for all damages and/or bodily injuries (including death) resulting from the actions, errors, omissions or negligence of Seller, its directors, officers, employees, agents, contractors or subcontractors, including, but not limited to, any defect in material, any defect in services, workmanship, design of any goods furnished, patent and/or copyright infringements or violations, or any failure to follow or abide by any and all governing laws, ordinances, codes and regulations. After receipt of a claim or demand, Buyer may withhold from any amounts at the time payable to the Seller under the purchase order such sum or sums and for such period or periods that the Buyer may deem necessary to protect the Buyer against possible loss or expense, including attorney's fees, from or in connection with any such demand. This indemnification includes but is in no way limited to any defect in materials, products and services in either manufacture or design. This indemnification shall not be limited in any way by a limitation of liability clause or similar clause found in any agreement or other document of Seller purporting to apply here.
11. INSURANCE REQUIREMENTS – Seller/Supplier represents that it now carries, and agrees it will continue to carry, during the term of the purchase order and throughout the provision of any services, a minimum workers' compensation policy, commercial general and contractual liability policy and comprehensive automobile liability insurance with carriers reasonably satisfactory to Lehigh in the following amounts, with Lehigh University named as an Additional Insured (on all policies except for workers' compensation):
1. Workers' Compensation
a. Statutory Benefits as determined by the Seller’s / Supplier’s State of Employment
b. Employer's Liability: $500,000 each accident , $500,000 by disease , each employee, policy limit
2. Commercial General Liability () including:
a. Bodily Injury, Personal Injury and Property Damage: $1,000,000 per occurrence or claim
b. Blanket Contractual Included
c. Products and Completed Operations Hazard Included
d. Broad Form Property Coverage Included
3. Automobile Liability Insurance (owned/leased/hired/non-owned vehicles)
a. Bodily Injury and Property Damage: $1,000,000 Combined Single Limit
12. PROPERTY OF BUYER - It is agreed by the Seller that all original art work including, but not limited to, drawings, models, engravings, plates, dyes, progressive color proofs, electrotypes, positives, negatives and all other materials of a similar nature furnished and used by Seller solely or in collaboration with others in connection with the fulfillment of the purchase order and/or course of performing services, or any other property created for use on the purchase order (“Work Product”) shall automatically become and remain the exclusive property of the Buyer upon its creation unless otherwise specified on the purchase order. Seller hereby assigns to Buyer all of its right, title and interest in and to all Work Product and all copies of any of the foregoing, including, without limitation, all copyright and other proprietary rights thereto (and all renewals and extensions). Such Work Product shall be held and stored, and be maintained in good condition by the Seller, without charge and shall be used by Seller only for Buyer's work, and shall be returned promptly at Buyer's request.
13. TERMINATION - If Seller ceases to conduct its operations in the normal course of business (including liability to meet its obligations as they mature) or if any proceedings under bankruptcy or insolvency laws is brought by or used against Seller, or a receiver for Seller is applied for, or an assessment for the benefit of creditors is made by Seller, or if Seller breaches any of the terms and conditions of the purchase order, Buyer may terminate the purchase order, in whole or in part, without liability except for deliveries or services previously made or for goods covered by the purchase order then completed and subsequently delivered in accordance with the terms hereof and ultimately accepted by Buyer. If the goods covered by the purchase order are standard stock merchandise, Buyer may terminate all or any part of the unshipped portion of the purchase order at any time by written or telegraphic notice to Seller, and in such event Buyer shall have no further obligation for cancellation charges or otherwise except to make payment, subject to other applicable terms hereof, for the goods actually shipped and in transit prior to such termination and ultimately accepted by Buyer. Buyer shall have no responsibility for work performed or services rendered after Seller’s receipt of notice of termination. In addition to the foregoing, in the event sufficient funds are not appropriated to Buyer, or to any one of its departments, to fulfill the requirements of the purchase order, Buyer may, in its sole discretion, terminate the purchase order in whole or in part, without further liability.
14. WARRANTY – Seller warrants that all material, Work Product, and merchandise supplied under the purchase order (i) shall strictly conform to all specifications, drawings, samples, or other descriptions furnished to and approved by Buyer; (ii) shall be fit and serviceable for the purpose intended, as agreed to by Buyer and Seller; (iii) shall be of good quality and free from defects in materials and workmanship; (iv) shall be new and not refurbished or reconditioned, unless expressly agreed in writing by Buyer; and (v) shall not infringe any patent, copyright, trademark, trade secret or other intellectual property, proprietary or contractual right of any third party. In addition, Seller warrants that Buyer shall have good and marketable title to all goods (including all components thereof) purchased by Buyer pursuant to the purchase order, free of all liens and encumbrances and that no licenses are required for Buyer 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 therefor shall constitute a waiver of this provision. If a breach of warranty occurs, Buyer may, in its sole discretion, and without waiting any other rights, return for credit or require prompt correction or replacement of the nonconforming goods or services.
15. DAMAGES – Without limiting Lehigh’s rights and remedies at law or in equity, Lehigh reserves the right to charge Seller for any loss, expense (including attorney’s fees) or damage sustained as a result of Seller’s failure to deliver conforming goods or services or other breach of the purchase order or these terms and conditions, including, without limitation, expenses incurred in connection with Lehigh’s purchase of substitute goods or services, incidental damages and consequential damages resulting from Seller’s failure or breach.
16. LIMITATION OF LIABILITY – Lehigh shall not be liable to Seller, its employees, representatives, agents, suppliers, or subcontractors for any anticipated profits or incidental or consequential damages. Without limiting the foregoing, Lehigh’s liability for any claim arising directly or indirectly under or in connection with the purchase order shall in no event exceed the cost of the goods or services giving rise to the claim.
17. CHOICE OF LAW/VENUE – All matters arising under or related to the purchase order or these terms and conditions shall be construed and enforced in accordance with the laws of the Commonwealth of Pennsylvania, without regard to its conflict of laws doctrine. The legal venue for any and all claims or other legal matters pertaining to the performance of the purchase order shall be the local courts for Northampton County, Pennsylvania.
18. ENTIRE AGREEMENT – The purchase order and these terms and conditions together contain the entire agreement of the parties. Reference to Seller's bids or proposals, if noted on the purchase order or elsewhere, shall not affect the terms and conditions hereof, unless specifically provided to the contrary herein. The purchase order and these terms and conditions may not be modified or terminated orally, and no claim, notification, termination or waiver shall be binding on Buyer unless in writing and signed by a duly authorized representative of Buyer. No modification or waiver shall be deemed affected by Seller's acknowledgment or confirmation containing other or different terms.
19. ASSIGNMENT – Seller may not assign, transfer or subcontract any part of the purchase order without the prior written consent of Buyer, and any assignment in violation of this provision shall be null and void.
20. SEVERABILITY – If any provisions of the purchase order or these terms and conditions is determined to be invalid, illegal or unenforceable, the remaining provisions remain in full force and effect.
21. NON-DISCRIMINATION/EQUAL OPPORTUNITY/AFFIRMATIVE ACTION – Seller shall be in full compliance with the Equal Opportunity Act of 1971, as amended, and with the University's policy, which both traditionally and currently, is that discrimination against any individual, for reason of race, color, creed, national origin, sex, sexual orientation, handicap or age is specifically prohibited.
Seller shall not discriminate against any employee, applicant for employment, independent contractor or any other person because of race, color, religious creed, ancestry, national origin, age or sex. Seller shall take affirmative action to ensure that applicants are employed and that employees or agents are treated during employment without regard to their race, color, religious creed, handicap, ancestry, national origin, age or sex.
No contract, subcontract, or purchase order will knowingly be awarded by Lehigh to any Seller that violates state or federal non-discrimination laws and/or requirements. Minority vendors receive a share of Lehigh’s business. Lehigh encourages Seller to ensure that minority vendors receive a share of Seller's business.
22. COMPLIANCE WITH APPLICABLE LAWS AND REGULATIONS - Seller shall be solely responsible for ensuring that its activities and the activities of its employees, agents and subcontractors, and their respective employees and agents (including all subcontractors) are in strict compliance with all applicable federal, state and local statutes, ordinances, regulations and rules including, without limitation, OSHA and the standards and regulations issued thereunder and all other statutes, ordinances, regulations, rules, standards and requirements of common law relating to industrial hygiene and the protection of health and the environment (collectively referred to herein as the "Environmental Laws").
23. RELATIONSHIP OF PARTIES - Seller agrees and acknowledges that it is an independent contractor and shall not be construed as an employee or agent of Buyer.
24. CONFIDENTIALITY - Seller acknowledges that Lehigh is the sole owner of any Lehigh-proprietary information disclosed to Seller by Lehigh, and that such information is the exclusive property of Lehigh. Nothing contained in the purchase order or these terms and conditions shall be deemed to convey to the Seller or any other party, any right, title, or interest in such information.
Except as authorized by the purchase order and these terms and conditions, Seller shall not copy, reproduce, duplicate, reverse engineer, transfer, or distribute such information, without prior, written request of, and written consent by Lehigh. Except as authorized by the purchase order and these terms and conditions, or unless otherwise required by law, Seller shall not resell, reproduce, reuse, disclose, transfer, or distribute any such information to a third party, except to those whose duties reasonably relate to the legitimate business purpose for which the information is provided to Seller.
Seller agrees that (i) Lehigh’s information is, and will remain the sole property of Lehigh; (ii) it will take all reasonable and necessary measures to prevent the unauthorized transfer or disclosure to, or use by, any third party, not a party to the purchase order; (iii) these terms and conditions apply to all of Seller’s employees and agents authorized by Seller to have access to Lehigh’s information, and (iv) it may not use the information other than to fulfill its obligations under the purchase order and these terms and conditions.
Lehigh shall not publish, or otherwise disclose except to the Seller, and the Seller shall not publish or otherwise disclose, except to Lehigh, any information or data obtained hereunder from private individuals, organizations or public agencies, in a publication whereby the information or data furnished by any particular person or establishment can be identified, except with the prior written consent of such person or establishment.
Seller shall instruct its employees and agents to use at least the same degree of care as it uses with its own data and to keep confidential any information concerning Lehigh and faculty, staff, or student data, the business of Lehigh, its financial affairs, relations with students and employees, as well as any other information which may be specifically classified as confidential by Lehigh in writing to the Seller. All federal and state regulations and statutes related to privacy, security and confidentiality shall be applicable to the Seller. Specifically, the Seller shall have an appropriate agreement and instructions with its employees to that effect; provided, however that the foregoing will not apply to:
a) Information which Lehigh has released in writing from being maintained in confidence.
b) Information which at the time of disclosure is in the public domain by having been printed and published and available to the public in libraries or other public places where such data is usually collected.
c) Information which, after disclosure, becomes part of the public domain as defined above, through no act of the Seller.