This Purchase Order Agreement, these Purchase Order Agreement terms and conditions, and any attachments hereto (collectively, this “Agreement”) are the exclusive terms and conditions for the delivery of the specified goods or material and/or performance of the specified services and/or work (collectively, “Goods and Services”) set forth herein by the named contractor (“Contractor”) for the benefit of Siena University.
Section One: Acceptance of Agreement by Contractor
Upon acceptance of this Agreement by Contractor as set forth herein, this Agreement is a valid and binding contract between Siena University and Contractor. This Agreement is deemed accepted by Contractor upon the earlier to occur of the following: (a) this Agreement is sent to Contractor and Contractor does not object in writing to any of its terms or provisions within two (2) business days; or (b) Contractor at any time otherwise delivers or performs all or any part of the Goods and Services.
Section Two: Acceptance by Siena UNIVERSITY
Delivery of the Goods and/or Services will be deemed to be complete only when delivered pursuant to a valid agreement and when actually received by Siena University. All Goods and/or Services are subject to Siena University’s right of inspection following delivery and/or performance by Contractor. Payment for Goods and/or Services under this Agreement prior to inspection by Siena University will not constitute acceptance by Siena University. Siena University may, at its option, reject all or any portion of the Goods and/or Services that do not, in the University’s discretion, comply with the terms and conditions of this Agreement, or the University’s requirements. Siena University may elect to reject all of the Goods and/or Services even if only a portion is nonconforming. In any case, acceptance of all or any part of the Goods and/or Services will not be deemed to be a waiver by Siena University of its right to (a) cancel, reject or return all or any portion of the Goods and/or Services, or (b) make a claim for damages, for reasons including defect, breach of warranty, late delivery, or breach or non-compliance with any of the terms or provisions of this Agreement.
Section Three: Time for Delivery
Delivery or performance will be strictly in accordance with Siena University’s delivery or performance schedule. If Contractor’s delivery or performance fails to meet such schedule, Siena University may, without limiting any of its other rights or remedies, direct expedited routing or performance by one or more third parties, and the difference between the cost of that expedited routing or performance and this Agreement’s routing or performance costs will be paid by Contractor upon the University’s demand. Time is of the essence with respect to Contractor’s delivery and/or performance under this Agreement.
Section Four: Risk of Loss
Until delivered to Siena University in accordance with Section Two, Contractor will bear all risk of loss or damage. Shipment of goods or materials is D.D.P./F.O.B. Destination unless this Agreement states otherwise.
Section Five: Termination/Force Majeure
Siena University may terminate this Agreement in whole or in part, for its convenience, upon thirty (30) days written notice to Contractor, without incurring liability to Contractor for lost profits, or any other costs or damages, other than the proportionate value of the price for Goods and/or Services performed or delivered. In the event of such termination, payment due will be a percentage of the purchase price equal to the percentage of the Services work completed and/or any unit prices in the purchase price specified for Goods delivered. Siena University may terminate this Agreement, in whole or in part, for Contractor’s breach of this Agreement, including but not limited to, the failure to deliver the Goods and/or Services as and when specified. If Siena University terminates this Agreement for Contractor’s breach, in addition to all of University’s other rights and remedies under law, Contractor will be liable to Siena University for all damages, including but not limited to, the cost of securing replacement Goods and/or Services, shipping charges for returned Goods and/or Services, and any amounts previously paid by Siena University to Contractor.
Cure of any non-conforming tender by Contractor may only be made with the prior written consent of Siena University. This right of termination is in addition to and not in place of any other rights or remedies that Siena University may have at law or in equity. Siena University and Contractor agree that neither party will have responsibility to the other due to circumstances beyond that party’s reasonable control, including (without limitation) any act of God, war or public enemy, or any act of government or any agency thereof, or any fire, flood, explosion or other catastrophe, or any epidemic, pandemic, H1N1 or quarantine restriction, or any act of sabotage or terrorism.
Section Six: Amendments
Neither party may modify, waive or supplement this Agreement or any term or condition thereof without the written agreement of the other party.
Section Seven: Assignments
This Agreement will be binding on the Parties and their respective successors and permitted assigns. Contractor will not subcontract, assign or delegate its rights and obligations under this Agreement without Siena University’s express prior written consent. If Siena University consents to a subcontractor, assignment, or delegation, Contractor will remain primarily responsible for any and all Goods and/or Services delivered or performed by such subcontractor, assignee or delegatee as if performed or delivered by Contractor.
Section Eight: Insurance
Contractor represents and warrants it will at all times and at its own expense, obtain and maintain the minimum insurance requirements set forth below:
Commercial General Liability – Coverage to include Premises and Operations, Personal Injury/Advertising Injury, Products/Completed Operations, Liability Assumed under an Insured Contract (including tort liability of another assumed in a business contract), and Independent Contractor. The policy will contain no endorsement or modification limiting the scope of coverage for liability assumed under a contract, or liability arising from pollution.
Contractor shall maintain Commercial General Liability Insurance, written on an occurrence basis in amounts of not less than $1,000,000 per occurrence, $3,000,000 general aggregate.
Automobile Liability – Coverage to include Owned Vehicles, Leased Vehicles, Hired Vehicles, Non-Owned and Employee Non-Owned Vehicles, Personal Injury Protection (if applicable). Contractor shall provide Automobile Liability Insurance for a combined single limit of not less than $1,000,000 if Contractor will own, hire or lease any automobile in connection with this Agreement.
Workers’ Compensation Insurance (Part A) and Employers’ Liability (Part B)-Workers’ Compensation Insurance as required by applicable law, and Employer’s Liability Insurance in an amount not less than $1,000,000 each accident, $1,000,000 disease policy limit, and $1,000,000 disease each employee, or the statutory limit, whichever is greater.
Professional Liability Insurance (Errors and Omissions) – If this Agreement covers the provision of professional services, Contractor shall maintain Professional Liability Insurance (Errors and Omissions) in an amount not less than $2,000,000 for each wrongful act and an Annual Aggregate Limit of not less than $2,000,000.
Technology Professional Liability If this Agreement covers the provision of Professional Technology Services Contractor shall maintain at its own expense throughout the Term of this Agreement Technology Professional Liability with Each Claim Limit of not less than $2,000,000 and an Annual Aggregate Limit of not less than $2,000,000.
Data Breach and Cyber Liability If this Agreement covers the provision of technology, hardware, software or other computer services Contractor shall maintain at its own expense throughout the Term of this Agreement, Data Breach and Cyber Liability Insurance with an Each Claim Limit of not less than $2,000,000 and an Annual Aggregate Limit of not less than $4,000,000.
All policies of insurance provided for in this Insurance Section shall be issued by insurance companies with general policyholder’s rating of not less than A- and a financial rating of not less than Class VIII as rated in the most current available A.M. Best
Insurance Reports
Contractor shall submit to Siena University certificates of insurance evidencing the coverage described above, to the extent applicable, and the additional insured endorsement; such endorsement with the exception of Workers’ Compensation, Professional Liability and Technology Professional Liability will name Siena College, its trustees, officers, employees, agents, assigns and volunteers as additional insureds and state that Siena University is not to be responsible for payment of premium for such additional insured status. All insurance policies specified herein will be issued by insurers with a minimum rating from A.M. Best of A-. All policies must be written on a primary non-contributory basis with any other insurance coverage carried by Siena University, and must include a waiver of subrogation clause.
If any required insurance is covered by a claims-made policy, the retroactive date of the policy or policies shall be effective as of the date of the contract and be kept in force throughout the duration of the Contractor’s work under this Agreement, and Contractor shall either maintain said policy in force for three (3) years following completion of its work under this Agreement or provide for tail coverage under an automatic supplemental extended reporting period endorsement for a minimum of three (3) years following completion of said work and after the policy has expired.
All policies required by this Section shall also provide that the insurer will give Siena at least thirty (30) days prior written notice of cancellation, modification or material alteration of said policy. Contractor’s procurement of the insurance hereunder will not relieve Contractor of any obligation or liability assumed under this Agreement.
Section Nine: Representations and Warranties
In addition to and without limiting any of Contractor’s other representations and warranties, express or implied, Contractor expressly represents and warrants to Siena University that: (a) all Goods and/or Services conform and will continue to conform to professional industry standards and to any description, sample, specifications or other documentation related to the Goods and/or Services made available to Siena University; (b) the Goods and/or Services are and will be fit for the purposes for which purchased, free from defects in design, materials and workmanship, and safe for their intended use; (c) Contractor has all right, title and interest in and to the Goods and/or Services necessary to fulfill its obligations hereunder; (d) the Goods and/or Services are free from any liens, claims and encumbrances of any nature and do not and will not infringe the intellectual property rights of any third party; and (e) all Goods and/or Services will have been provided, produced or manufactured in accordance with the requirements of the Fair Labor Standards Act of 1938, as amended, and all other applicable federal, state and municipal laws, rules and regulations. All of Contractor’s representations and warranties, both express and implied, also constitute conditions of this Agreement and will survive inspection, acceptance and payment by Siena University.
Section Ten: Indemnification
To the fullest extent permitted by law, Contractor will defend, indemnify and hold harmless Siena University from and against any and all losses, claims, allegations, demands, suits, proceedings, investigations, prosecutions, actions, causes of action, liabilities, obligations, costs, expenses, assessments, settlements, judgments, interest, penalties (including legal expenses and reasonable attorneys’ fees), damages or injuries of any kind or nature whatsoever (including, without limitation, damage, loss or destruction of real or personal property, personal or bodily injury or death) to Siena University and all other persons, caused by, resulting from, arising out of, or occurring in connection with Contractor’s: (a) breach of any term or provision of this Agreement including the representations and warranties; (b) violation of applicable law; (c) performance or non-performance by Contractor in connection with this Agreement; (d) infringement of any intellectual or other proprietary right of any third party; or (e) negligent acts or omissions or intentional misconduct. Siena University will provide Contractor with notice of a claim for indemnification under this section. In the event that Contractor fails to prosecute and conduct the defense diligently and in good faith, Siena University may take any and all actions at Contractor’s expense that it deems necessary or desirable to preserve its rights with respect to such claims, including the right (but not the obligation) to engage counsel and defend, compromise or settle such claims, without waiving or otherwise limiting its right under this section. Contractor will consult with Siena University and at all times keep Siena University informed of all material matters relating to its indemnification of Siena University, including compromise or settlement of any claims. Siena University will be entitled to participate in any litigation and/or negotiations relating to any compromise or settlement with counsel of its own choice. Contractor will not agree to any compromise or settlement of any third-party claim, or permit a default or consent to entry of any judgment in respect of such claim, without the prior written consent of Siena University. For the purposes of this section and the previous section, “Contractor” shall include Contractor, any subcontractor engaged by Contractor in connection with the Goods and/or Services, and their respective employees, officers, directors, agents, assigns and representatives. References to Siena University in this section shall include, and provisions of this section will inure to the benefit of Siena University, its affiliated entities, and their respective employees, trustees, directors, officers, agents, servants, volunteers, successors and assigns. The provisions of this section will survive termination of this Agreement.
Section Eleven: Notices
Any notice to either party hereunder must be in writing, signed by the party giving it, and will be served either personally or by registered mail (if to Siena University) addressed to: University Counsel, Siena University, 515 Loudon Road, Loudonville, NY 12211-1462 and Vice President for Finance and Administration, Siena College, 515 Loudon Road, Loudonville, NY 12211-1462 or to such addresses as may be hereafter designated in writing by notice. All notices become effective only when received by the addressee.
Section Twelve: Governing Law
This Agreement shall be interpreted according to the laws of the State of New York, exclusive of its conflict of interest law. Any and all actions, disputes and/or legal proceedings relating to the subject matter of this Agreement shall be maintained by and subject to the jurisdiction of the New York State Supreme Court, County of Albany.
Section Thirteen: Compliance with Laws and Siena UNIVERSITY Policies
Contractor shall comply with all applicable international, foreign, and U.S. federal, state and local laws, rules, regulations and ordinances, including, but not limited to, all applicable laws and regulations pertaining to privacy and confidentiality, including the Family Educational Rights and Privacy Act of 1984, the Gramm-Leach-Bliley Act of 1999, and the Health Insurance Portability and Accountability Act of 1996, and Contractor will comply with all applicable Siena University policies and instructions. Contractor will not violate U.S. export control and economic sanctions laws, including, but not limited to, the U.S. Department of Commerce’s Export Administration Regulations and the economic sanctions programs administered by the U.S. Department of Treasury, nor take any other action that would cause Siena College to be in violation of U.S. export control and economic sanctions laws. Contractor will obtain and maintain, and furnish to Siena University upon request, any and all permits, licenses, approvals, certificates and other documents required by Siena University or otherwise required by applicable law.
Section Fourteen: Relationship of the Parties
Nothing contained herein will create any agency, partnership, association or joint venture between the Parties. The relationship of Contractor to Siena College arising out of this Agreement will be that of independent contractor solely and Contractor is directly responsible for the mode, method, and manner of its activities. Under no circumstances, as a result of this Agreement, will Contractor be considered an agent or employee of Siena University for any purpose, and neither the Contractor nor the employees of Contractor are entitled to any of the benefits that Siena University provides for its employees. Contractor is responsible for its own state and federal income tax and Social Security withholding. Siena University does not agree to use to use Contractor’s services exclusively. Contractor is free to contract for similar services to be performed for others, as long as services to be provided under this Agreement are not compromised.
Section Fifteen: Publicity
Contractor will not in any way or form publicize or advertise the fact that Contractor is providing goods or services to Siena University without the express written approval by Siena University. Contractor will not use (a) the name of Siena University, or any school, division, unit, agent, employee, student or volunteer thereof, or (b) any logo, trademark, service mark or trade name owned or controlled by Siena University without the express written consent of a duly authorized representative of Siena University.
Contractor understands that in performing this Agreement, it may have access to confidential and proprietary information and trade secrets of Siena University and others, including but not limited to names, facts or information about individuals, businesses and families participating in projects and/or associated with the work performed under this Agreement. Contractor may also have access to confidential and proprietary information of Siena University, possibly including student directory, personnel information and records, sensitive, confidential or internal Siena University matters and other protected information. It is agreed that the definition of confidential or proprietary information includes all documentary, electronic, or oral information made known to Contractor through any activity related to this Agreement, but shall not include information made available as public information.
Contractor is required to destroy all nonpublic, confidential information in its possession upon completion of this Agreement. Furthermore, the safeguarding requirements set forth above shall survive termination of this Agreement.
Contractor agrees not to reveal any confidential or proprietary information and understands that any such disclosure shall be considered a breach of this Agreement and also may subject Contractor to legal action. Contractor agrees that if it receives a subpoena for divulgence of confidential or proprietary information, it shall notify Siena University prior to divulgence. Contractor shall not divulge, disclose, copy, sell, or otherwise make use of any confidential or proprietary information (including but not limited to the above) of Siena University, its trustees, officers, students, staff, faculty, volunteers, agents or assigns. This section shall survive this Agreement.
Section Seventeen: Payment Card Industry Data Security Standards
If Contractor will be providing credit card processing services for or on behalf of Siena University, Contractor agrees to be bound by the provisions of Attachment A, attached hereto and incorporated as if set forth fully herein.
Contractor agrees that no individual(s) will be assigned to work under this Agreement if that individual(s) has been convicted of a criminal offense(s) that bears a direct and specific relationship to the specific services rendered hereunder, or if his/her assignment at Siena University would involve an unreasonable risk to the safety of members of the Siena community, specific individuals, the general public, or to Siena’s property. Failure on the part of Contractor to abide by this provision may, at the discretion of Siena University, constitute grounds for the termination of this Agreement.
Section Nineteen: Harassment and Discrimination
Siena University is an equal opportunity institution and has in place Harassment and Discrimination/Sexual Misconduct policies, which prohibit sexual misconduct and discrimination and harassment directed against persons because of their race, religion, creed, ethnicity, color, national origin, gender, pregnancy, age, sexual orientation, genetic information, gender identity, marital status, veteran status, domestic violence victim status, disability or other basis identified in federal or state law. Discrimination and discriminatory-based harassment are unethical and unprofessional, and they are incompatible with Siena University’s commitment to diversity, educational equity, and the Franciscan tradition. During the performance of this Agreement, the Contractor and any subcontractor and their agents and employees, agrees to be bound by all applicable federal, state and local laws, rules, regulations, instructions and other directives governing equal employment opportunity and the College’s Harassment and Discrimination/Sexual Misconduct policies.
Siena’s Drug and Alcohol Abuse policy strictly prohibits the unlawful manufacture, distribution, dispensation, possession or use of controlled drugs or alcohol on Siena’s property. Contractor will not permit the possession or use of any alcohol, whether lawful or not, on Siena’s property. Contractor will notify Siena in writing within five (5) days of any drug-related or alcohol-related accident or criminal offence that occurs on Siena’s property involving Contractor’s or any subcontractors’ agents or employees. Contractor agrees to enforce this policy for the Contractor’s own employees and agents, and for any of Contractor’s subcontractors, their employees and agents. Siena’s property is tobacco-free. No one is permitted to smoke or use tobacco products in any buildings or on any grounds.
Section Twenty-One: Waivers
The failure of Siena University to insist, in any one or more instances, upon performance of any of the terms, covenants or conditions of this Agreement, or to otherwise exercise any right or remedy under this Agreement or otherwise, will not be construed as a waiver or relinquishment of the future performance of any such term, covenant or condition, or of the future exercise of such right or remedy, but rather the obligation of the Contractor with respect to that future performance will continue in full force and effect.
Section Twenty-Two: Entire Agreement
Notwithstanding the provisions of any other contract, document, writing, representation, agreement, proposal, promise, or other understanding, oral or written, between Contractor and Siena University, including but not limited to any prior or subsequent price quotation, invoice, confirmation or other document furnished by Contractor (such document(s) furnished by Contractor collectively referred to as, “Extraneous Terms”), this Agreement constitutes the Entire Agreement between Contractor and Siena University regarding the subject matter of this Agreement and supersedes any other contract, document, writing, representation, agreement, proposal, promise, or other understanding, oral or written, and all Extraneous Terms with respect to the matters contained herein. All provisions that logically ought to survive termination of this Agreement will survive. In the event the University and the Contractor have for whatever reason entered a separate or additional contract, document, writing, representation, agreement, proposal, promise, or other understanding, oral or written, including any Extraneous Terms, regarding the same subject matter as this Agreement, and there is a conflict of terms and conditions between the separate or additional contract, document, writing, representation, agreement, proposal, promise, or other understanding, oral or written, including Extraneous Terms, and this Agreement, the terms and conditions of whatever provisions are more favorable to Siena University shall control and prevail.
Section Twenty-Three: Severance
If any provision of this Agreement is determined to be invalid, void or unenforceable in any respect, the remaining provisions hereof will continue in full force and effect.
Section Twenty-Four: Siena Tax-Exempt
Siena University, a not-for-profit education corporation, is generally exempt from federal, state and local taxes for purchases made in furtherance of its exempt mission, including New York sales and use tax and federal excise tax. Contractor will not charge Siena University for any taxes in connection with this Agreement to the extent permitted by law. Siena University will supply its tax exempt number and/or copies of its exemption certificates to Contractor upon request from Contractor.
Attachment A
Payment Card Industry Data Security Standards
If Contractor will be providing credit card processing services for or on behalf of Siena University, Contractor agrees, represents and warrants that:
A. It is responsible for the security of cardholder data that it possesses, including the functions relating to storing, process and transmitting of the cardholder data in accordance with the Payment Card Industry Data Security Standards as are in effect from time to time (“PCI DSS”).
B. It complies, and will continue to comply throughout the period that this Agreement is in effect, with all applicable PCI DSS requirements.
C. It has taken all necessary steps to validate and hereby validates its compliance and the compliance of any third parties who are storing, processing or transmitting credit card data on its behalf, with the PCI DSS.
D. On an annual basis, Contractor will provide Siena University with evidence that Contractor has validated its compliance with the PCI DSS by a qualified security assessor, including the date of such validation. In addition, upon reasonable request by Siena University, Contractor must supply to Siena University information regarding the status of its compliance with the PCI DSS.
E. In the event of a breach by Contractor of its obligations under the PCI DSS, Contractor will immediately notify Siena University of such breach. If Contractor does not cure such breach within a reasonable time, but in no event more than thirty (30) days from the date of the breach, Siena University will have the right to immediately terminate this Agreement.
F. Contractor will and hereby does indemnify and hold Siena University harmless from and against any and all claims, losses, liabilities, costs and other expenses resulting from, or relating to, the acts or omissions of Contractor in connection with the representations, duties and obligations of Contractor under this Attachment A, including any breach by Contractor of the PCI DSS.