The purchase order, these purchase order terms and conditions, and any attachments hereto (collectively, the “Purchase Order”) 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 College.
Section One: Acceptance of Purchase Order by Contractor
Upon acceptance of this Purchase Order by Contractor as set forth herein, this Purchase Order is a valid
and binding contract between Siena College and Contractor. This Purchase Order is deemed accepted by
Contractor upon the earlier to occur of the following: (a) the Purchase Order 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 College
Delivery of the Goods and/or Services will be deemed to be complete only when delivered pursuant to a valid Purchase Order and when actually received by Siena College. All Goods and/or Services are subject to Siena College’s right of inspection following delivery and/or performance by Contractor. Payment for Goods and/or Services under this Purchase Order prior to inspection by Siena College will not constitute acceptance by Siena College. Siena College may, at its option, reject all or any portion of the Goods and/or Services that do not, in the College’s discretion, comply with the terms and conditions of this Purchase Order, or the College’s requirements. Siena College 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 College 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 Purchase Order.
Section Three: Time for Delivery
Delivery or performance will be strictly in accordance with Siena College’s delivery or performance schedule. If Contractor’s delivery or performance fails to meet such schedule, Siena College 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 Purchase Order’s routing or performance costs will be paid by Contractor upon the College’s demand. Time is of the essence with respect to Contractor’s delivery and/or performance under this Purchase Order.
Section Four: Risk of Loss
Until delivered to Siena College 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 Purchase Order states otherwise.
Section Five: Termination/Force Majeure
Siena College may terminate this Purchase Order 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 College may terminate this Purchase Order, in whole or in part, for Contractor’s breach of this
Purchase Order, including but not limited to, the failure to deliver the Goods and/or Services as and when
specified. If Siena College terminates this Purchase Order for Contractor’s breach, in addition to all of
College’s other rights and remedies under law, Contractor will be liable to Siena College 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 College to Contractor.
Cure of any non-conforming tender by Contractor may only be made with the prior written consent of
Siena College. This right of termination is in addition to and not in place of any other rights or remedies
that Siena College may have at law or in equity.
Siena College 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 Purchase Order or any term or condition thereof without the written agreement of the other party.
Section Seven: Assignments
This Purchase Order 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 Purchase Order without Siena College’s express prior written consent. If Siena College 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 Purchase Order.
Workers’ Compensation (Coverage A) and Employers’ Liability (Coverage B). Contractor shall maintain
Workers’ Compensation Insurance as required by applicable law, and Employer’s Liability Insurance in
an amount not less than $1,000,000 for each accident.
Professional Liability Insurance (Errors and Omissions) – If this Purchase Order 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 Purchase Order covers the provision of Professional Technology
Services Contractor shall maintain at its own expense throughout the Term of the 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 Purchase Order covers the provision of technology, hardware,
software or other computer services Contractor shall maintain at its own expense throughout the Term
of the 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 College 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 College 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 basis, non-contributory with any other
insurance coverage carried by Siena College, 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 Purchase Order, and Contractor shall either maintain said policy in force for
three years following completion of its work under this Purchase Order or provide for tail coverage under
an automatic supplemental extended reporting period endorsement for a minimum of 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 (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 Purchase Order.
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 College 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 College; (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 Purchase Order and will survive inspection, acceptance and payment by Siena College.
Section Ten: Indemnification
To the fullest extent permitted by law, Contractor will defend, indemnify and hold harmless Siena College 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 College 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 Purchase Order including the representations and warranties; (b) violation of applicable law; (c) performance or non-performance by Contractor in connection with this Purchase Order; (d) infringement of any intellectual or other proprietary right of any third party; or (e) negligent acts or omissions or intentional misconduct. Siena College 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 College 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 College and at all times keep Siena College informed of all material matters relating to its indemnification of Siena College, including compromise or settlement of any claims. Siena College 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 College. 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 College in this section shall include, and provisions of this section will inure to the benefit of Siena College, 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 Purchase Order.
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 College, addressed to Mary C. Strunk, Vice President for Finance and Administration, 515 Loudon Road, Loudonville, NY 12211) 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 Purchase Order 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 Purchase Order 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 College Policies
Contractor shall comply with all applicable international, foreign, and U.S. federal, state and local laws, rules and regulations, 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 College 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 College upon request, any and all permits, licenses, approvals, certificates and other documents required by Siena College 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 Purchase Order 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 Purchase Order, will Contractor be considered an agent or employee of Siena College for any purpose, and neither the Contractor nor the employees of Contractor are entitled to any of the benefits that Siena College provides for its employees. Contractor is responsible for its own state and federal income tax and Social Security withholding. Siena College 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 Purchase Order 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 College without the express written approval by Siena College. Contractor will not use (a) the name of Siena College, 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 College without the express written consent of a duly authorized representative of Siena College.
Section Sixteen: Confidentiality
Contractor understands that in performing this Purchase Order, it may have access to confidential and proprietary information and trade secrets of Siena College 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 College, possibly including student directory, personnel information and records, sensitive, confidential or internal Siena College 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 College 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 College, 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 College, Contractor agrees to be bound by the provisions of Attachment A, attached hereto and incorporated as if set forth fully herein.
Section Eighteen: Conviction of Crimes
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 College 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 College, constitute grounds for the termination of this Agreement.
Section Nineteen: Human Rights Policy
Siena College is an equal opportunity institution and has in place a Human Rights policy, which prohibits 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. In providing Goods and/or Services under this Agreement, Contractor, any subcontractor(s) and their agents and employees agree to be bound by all applicable federal, state and local laws, rules, regulations, orders, instructions and other directives, including but not limited to the nondiscrimination clause and reporting requirements contained in Executive Order 11246 of September 24, 1965, as amended by Executive Order 11375, relative to equal employment opportunity for all persons without regard to race, color, religion, sex or national origin and the implementing rules and regulations prescribed by the U.S. Secretary of Labor, are incorporated herein. Additionally, the conditions and regulations applicable in the Vietnam Era Veterans Readjustment Act of 1972, and the Rehabilitation Act of 1973 (Employment of the Handicapped) are likewise incorporated. Siena College is an equal opportunity employer and federal contractor or subcontractor. Consequently, the parties agree that, as applicable, they will abide by the requirements of 41 CFR 60-1.4(a), 41 CFR 60-300.5(a) and 41 CFR 60-741.5(a) and that these laws are incorporated herein by reference. These regulations prohibit discrimination against qualified individuals based on their status as protected veterans or individuals with disabilities, and prohibit discrimination against all individuals based on their race, color, religion, sex, sexual orientation, gender identity or national origin. These regulations require that covered prime contractors and subcontractors take affirmative action to employ and advance in employment individuals without regard to race, color, religion, sex, sexual orientation, gender identity, national origin, protected veteran status or disability. The parties also agree that, as applicable, they will abide by the requirements of Executive Order 13496 (29 CFR Part 471, Appendix A to Subpart A), relating to the notice of employee rights under federal labor laws.
Section Twenty: Drug-Free and Tobacco-Free Workplace
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 College 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 document, writing, representation, agreement, proposal
promise, or other understanding, oral or otherwise, between Contractor and Siena College, including but
not limited to any prior or subsequent price quotation, invoice, confirmation or other document
furnished by Contractor (collectively, “Extraneous Terms”), this Agreement constitutes the entire
Agreement between Contractor and Siena College regarding the subject matter of this Agreement and
supersedes 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 College and the
Contractor have for whatever reason entered a separate contract regarding the same subject matter as
this Agreement, and there is a conflict of terms and conditions between the contract and this
Agreement, the provisions of the document more favorable to Siena College shall 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 College, 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 College for any taxes in connection with this Agreement to the extent permitted by law. Siena College 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 College, 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 College 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 College, Contractor must supply to Siena College 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 College 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 College will have the right to immediately terminate this Agreement.
F. Contractor will and hereby does indemnify and hold Siena College 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.