The following terms and conditions shall be observed. Any Supplier terms and conditions included with Supplier’s invoice or any other document provided by Supplier shall be of no effect.
1.0 No Document Modifications:
Any handwritten changes on the face of this document shall be ignored and have no legal effect unless initialed by both parties.
2.0 Delivery, Risk of Loss:
Delivery shall be FOB destination to the College and risk of loss will not pass to the College until the products have been actually received, installed (if applicable), and accepted by the College at the destination specified by the College. Supplier assumes full responsibility for packing, crating, marking, transporting and liability for loss or damage in transit, notwithstanding any agreement by the College to pay freight, express, or other transportation charges
3.0 Acceptance and Inspection of Products:
The College shall have a reasonable time (but not less than thirty  days) after receipt and, if applicable, installation to inspect and test the products provided under this Agreement and reject any or all items that are nonconforming or defective. Products rejected or supplies in excess of quantities ordered may be returned to Supplier at Supplier’s expense. Any acceptance by the College shall not be deemed a waiver or settlement of any defect or nonconformity in the products or any support services.
4.0 Warranties and Representations of Supplier:
Supplier acknowledges that the College is relying on these representations and warranties as essential elements to this Agreement, representing as they do, material inducements, without which the College would not have entered into this Agreement.
- 4.1 General Product Warranty: Supplier represents that all products and any support services provided under this Agreement (a) are new and unused (unless otherwise specified or agreed to in writing by the College) and free from defects in material and workmanship; (b) are of the quality, size, dimension and specifications ordered; (c) meet the highest performance and manufacturing specifications as described in documents or writings made available by the Supplier to the public or the College; (d) comply with all applicable laws, codes and regulations (including any published by any national or statewide association or groups); (e) are not restricted in any way by patents, copyrights, trade secrets, security interest, lien, or any other encumbrances or rights of third parties, and (f) shall have been properly stored, labeled, handled and shipped by Supplier. Without limiting the foregoing, upon the College’s request Supplier shall sign all documents pertinent to assign to the College any applicable third party manufacturer warranties on the Products.
- 4.2 Qualifications: Supplier warrants that it, as well as its employees, agents and subcontractors engaged to provide the products or services under this Agreement (collectively “Supplier Personnel”), has and will maintain all the skills, experience, and qualifications necessary to provide the services contemplated by this Agreement, including any required training, registration, certification or licensure.
- 4.3 Conflict of Interest: Supplier warrants that to the best of Supplier’s knowledge, there exists no actual or potential conflict between Supplier and the College, and its products and services under this Agreement, and in the event of change in either Supplier’s private interests or products or services under this Agreement, Supplier will inform the College regarding possible conflict of interest which may arise as a result of the change. Supplier also affirms that, to the best of Supplier’s knowledge, there exists no actual or potential conflict between a College employee and Supplier.
- 4.4 Nondiscrimination: Supplier warrants that Supplier is an equal opportunity employer and that, during the performance of this Agreement, it will comply with Federal Executive Order 11246, as amended, The Rehabilitation Act of 1973, as amended, and the respective regulations thereunder, and the Michigan Civil Rights Act of 1976.
- 4.5 Good Standing: Supplier warrants that Supplier is legally organized entity in good standing under the laws of the state of its organization and, where required, in good standing under the laws of the State of Michigan.
- 4.6 Noninfringement: Supplier warrants that the Supplier’s products and/or the College’s use of the products, processes, techniques and methodologies provided by Supplier or developed by Supplier shall not infringe upon the copyright, patent or other proprietary rights of others.
5.0 Payment Terms:
In the case of products, payment shall not be due prior to thirty (30) days (a) from the invoice date, or (b) from the date the products are delivered to the destination specified in the “Ship To” field on the face of the purchase order, or (c) if Supplier is responsible for installation of the product(s), from the date on which such installation is complete, whichever is later. Invoices presented for payment must be submitted in accordance with instructions contained on the purchase order including reference to the purchase order number and submittal to the correct address for processing. The College may withhold payment in whole or in part for products or services found by the College to be defective, untimely, unsatisfactory, or otherwise not conforming to the products description, or not in accordance with all applicable federal, state, and local laws, ordinances, rules and regulations.
The College may terminate this Agreement in whole or in part for its sole convenience upon thirty (30) days prior notice. Upon notice of such termination, Supplier shall immediately stop all work including shipment of the products and cause its suppliers and/or subcontractors to cease their work related to this Agreement. Supplier shall be paid for products or support services satisfactorily provided or performed. In no event shall Supplier be paid for costs incurred or support services performed after receipt of notice of termination, or for costs incurred by suppliers or subcontractors which reasonably could have been avoided.
The College may terminate the Agreement in whole or in part for cause upon seven (7) days written notice if Supplier fails to comply with any material term or condition of this Agreement. Late delivery of products or support services or delivery of products or services that are defective or do not conform to the College’s specifications shall, without limitation, be causes allowing the College to terminate for cause. In this event, the College will not be liable for any amounts; but Supplier shall be liable to the College for all losses, damages, and expenses, including, without limitation, the excess cost of re-procuring similar products or services; shipping charges for any items the College may at its option return to Supplier, including items already delivered, but is no longer able to use for the intended purpose because of Supplier’s default; and amounts paid by the College for any items the College has received but returns to Supplier. If a determination is made that the College improperly terminated the Agreement for cause, then the termination shall be deemed to have been for the College’s convenience.
7.0 Compliance with Laws:
Supplier shall be solely responsible for insuring that any recommendations made in connection with providing the Products and Services comply with all applicable federal, state, local and College laws, rules, regulations, policies and procedures. Unless otherwise expressly provided for in this Agreement, Supplier shall obtain and comply with all permits, licenses and similar authorizations that are necessary to provide the Products and Services. By executing this Agreement, Supplier warrants and represents that it has all legally required licenses and permits needed to provide the Products and Services.
8.0 Insurance Coverage and Levels:
Unless more specific insurance provisions are specified, Supplier shall, at Supplier’s expense, obtain and maintain the following coverages:
- 8.1 Commercial General Liability Insurance, including contractual products and completed operations insurance ($1 million per occurrence/$3 million annual aggregate).
- 8.2 Worker’s Compensation at statutory limits in accordance with the appropriate State of jurisdiction including Employer’s liability (with minimum $500,000).
- 8.3 Automobile liability for owned, non-owned and hired vehicles minimum limit ($1 million each accident).
- 8.4 Supplier agrees to have Washtenaw Community College added as additional insured with respect to Commercial General Liability Insurance for purposes of contract performance and any personal or property damages arising out of Agreement.
- 8.5 $1,000,000 Cyber Security Insurance for loss to the Owner due to data security and privacy breach, including costs of investigating a potential or actual breach of confidential or private information.
- 8.6 Supplier agrees to provide the College with thirty (30) days prior written notice of any reduction in limits or cancellation of any of the above insurance.
- 8.7 If any of the required insurance is on a “claims made” basis and is cancelled during the term of this agreement, Supplier agrees to purchase tail coverage or prior acts coverage so that such insurance is in effect from the date the Agreement is executed to three (3) years after its termination.
- 8.8 Supplier shall provide the College with a certificate of the above insurance coverages and amounts. Compliance with the foregoing requirements as to carrying insurance and furnishing evidence of it will not relieve the Supplier of its liabilities and obligations under this Agreement.
Each party shall defend, indemnify and hold harmless the other party, its board members, officers, employees, agents and students (if the College) from and against any costs, losses, damages, liabilities, expenses, demands and judgments, including court costs and attorney fees, which may arise out of the indemnifying party’s acts or omissions under this Agreement for which the indemnifying party would be liable in law or equity.
The indemnifying party shall keep the other reasonably apprised of the continuing status of the claim, including any proceedings resulting from it, and shall permit the other party, at its expense, to participate in the defense or settlement of the claim. When a claim is resolved by the indemnifying party’s payment of money, it shall have final authority regarding defense and settlement. When a claim resolution requires equitable relief against the non-indemnifying party or the indemnifying party has not or will not pay the money required for resolution, the parties shall cooperate regarding defense and settlement.
The Supplier is responsible for keeping accurate and reasonable records related to its performance and obligations under this Agreement. In particular, records will be kept documenting any price, cost or budget computations required under the Agreement. The Supplier agrees that the College or its duly authorized representative has the right to audit any directly pertinent books, documents, papers and records related to transactions and/or performance of the terms and conditions of the Agreement. The Supplier shall make available to the College or its agents all such records and documents for audit on the Supplier’s premises during regular and reasonable working hours within ten (10) business days of a written request for availability. Supplier agrees to either (a) allow the College to make and retain copies of those documents useful for documenting the audit activity and results or (b) sequester the original or copies of those documents the College identifies for later access by the College. The Supplier further agrees to disclose within ninety (90) days of receipt any independent auditors’ reports, which bear directly on the performance or administration of this Agreement.
The right to audit shall include periodic examinations of records throughout the term of the Agreement and for a period of three (3) years after its termination. The right to audit shall also apply to agents and subcontractors hired by the Supplier for the purpose of fulfilling the Agreement. In the event that audits discover substantive findings related to fraud, misrepresentation or non-performance, the College may recoup the costs of the audit work from the Supplier.
Supplier shall keep confidential and not disclose to third parties any information provided by the College or by private individuals, organizations or public agencies during the course of this Agreement, including protected customer information regarding customers of the College, as defined under the Gramm-Leach-Bliley Act, unless Supplier has received the prior written consent of the College to make the disclosure or unless required by law or legal process. Only Supplier Personnel with a need to know may have access to or use College information. This obligation of confidentiality does not extend to information that is or shall become through no fault of Supplier available to the general public.
12.0 Changes, Alterations and Modifications to Products or Support Services:
The College may at any time by a written notice change the drawings, designs, specifications, materials, packaging, and the time and place of delivery and/or completion of the products and services to be provided under this Agreement. Promptly upon receipt of the details of any change, Supplier shall either advise the College that the change will not affect its costs, or furnish: (a) a breakdown of estimated cost and changes resulting from the requested change, and (b) a statement of any necessary changes in the time of delivery. Supplier’s failure to advise the College within ten (10) days of the effect of any change in cost or delivery time shall constitute Supplier’s consent to conform to the change without change to pricing or without change in other terms and conditions of this Agreement. If the change causes a material increase or decrease in costs, than an equitable adjustment of the pricing to be paid to Supplier shall promptly be negotiated by the College and Supplier and incorporated as an amendment to this Agreement.
13.0 “Most Favored Customer” Provision:
If Supplier has negotiated terms or conditions for the sale of the products or services to another customer of Supplier which the College deems more favorable than those contained herein, the College may request and shall be afforded the opportunity to purchase those products or services on the same terms and conditions as Supplier has negotiated to provide a third party under reasonably similar circumstances.
14.0 Removal of Supplier Personnel:
All Supplier Personnel shall have a background appropriate for the location and the type of work to be performed by the individual, including without limitation any disqualifying criminal background. If the College becomes aware that Supplier or any Supplier employee, agent or contractor (collectively “Supplier Personnel”) (a) does not have the background appropriate for the location and type of work to be performed by the individual, or (b) repeatedly fails, in the College’s sole discretion, to perform in a competent manner, the Supplier Personnel shall no longer be acceptable to the College. Under either circumstance, after the College notifies Supplier in writing citing the grounds and specific supporting facts, Supplier shall no longer schedule the Supplier Personnel to provide or support Services for the College under this Agreement or any other Agreement with the College. The College, in its sole discretion, may modify this prohibition upon presentation in writing by Supplier of adequate reasons and facts for modifying the prohibition.
If Supplier learns during the term of this Agreement of any lapse in qualifications of any of the Supplier Personnel to meet the warranted qualifications it must immediately remove the affected personnel whose qualifications have lapsed and inform the College of the date when the affected personnel was no longer qualified to provide the Services being performed by them.
If at any time the College in good faith determines that it is insecure with respect to Supplier’s ability or intent to fully perform, then Supplier agrees to provide the College with written assurance fully satisfactory to the College, in the College’s sole discretion, of Supplier’s ability and intent to fully perform. The assurance shall be provided within the time and in the manner specified by the College. Supplier immediately shall notify the College of any Circumstance that may cause Supplier to fail to fully perform. Upon the College’s good faith determination that Supplier cannot or will not perform, then the College may deem this Agreement to be breached by Supplier and may re-procure from other sources.
- 16.1 Affiliates: The term “College” means the Trustees of the College and includes, when applicable, an affiliate of the trustees of the College on whose behalf this contract has been made.
- 16.2 Independent Contractor Status of Parties. It is expressly understood that Supplier is an independent contractor and not the agent, partner, or employee of the College. Supplier and Supplier Personnel are not employees of the College and are not entitled to tax withholding, Worker’s Compensation, unemployment compensation, or any employee benefits, statutory or otherwise. Supplier shall not have any authority to enter into any contract or agreement to bind the College and shall not represent to anyone that Supplier has such authority.
- 16.3 Assignment: Supplier may not subcontract, assign or transfer this Agreement or any interest or claim under this Agreement without prior written approval of the College. If Basic Installation (as defined below) of the product is included within the Purchase Order requirements, and the Supplier has identified in its proposal that a subcontractor would provide the Basic Installation, issuance of the Purchase Order constitutes consent to subcontract for the Basic Installation. Notwithstanding any consent by the College to any assignment, Supplier shall at all times remain bound to all warranties, certifications, indemnifications, promises and performances, however described, as are required of it under the Agreement unless specifically released from the requirements, in writing, by the College. The Supplier shall retain the right to pledge payment(s) due and payable under this Agreement to third parties.
- 16.4 Installation: When Supplier is obligated to install, assemble, set up and/or configure a product as part of the product purchase (“Basic Installation”), the Supplier shall perform that work with the skill of an expert regularly performing the applicable work.
- 16.5 Notices: Service upon the College shall be addressed to: Director of Purchasing, Washtenaw Community College, 4800 East Huron River Drive, Ann Arbor, MI 48105-4800. Notice shall be by personal delivery, recognized overnight courier service, or by the United States mail, first-class, certified or registered, postage prepaid, return receipt requested. All such notices shall be effective when received, but in no event later than three (3) days after being placed in the hands of the United States Post Office or private courier service.
- 16.6 Entire Agreement, Amendment: This Agreement constitutes the entire understanding between the parties with respect to the subject matter and may not be amended except by an agreement signed by Supplier and an authorized representative of the College.
- 16.7 Severability: The terms of this Agreement are severable. If any term or provision is declared by a court of competent jurisdiction to be illegal, void, or unenforceable, the remainder of the provisions shall continue to be valid and enforceable.
- 16.8 Governing Law, Construction and Venue: This Agreement shall be governed by and construed under the laws of the State of Michigan without regard for principles of choice of law. Any claims, demands, or actions asserted against the College shall be brought in the Washtenaw County Circuit Court. Supplier, its successors and assigns, consent to the jurisdiction of a court with applicable subject matter jurisdiction sitting in the State of Michigan with respect to any claims arising under this Agreement.
- 16.9 Headings: The paragraph headings in this Agreement are inserted for convenience only and shall not be construed to limit or modify the scope of any provision of this Agreement.
- 16.10 Waiver: No delay or omission by either party to exercise any right or remedy under this Agreement shall be construed to be either acquiescence or the waiver of the ability to exercise any right or remedy in the future.
- 16.11 Survivability: Provisions surviving termination or expiration of this Agreement are those which on their face affect rights and obligations after termination or expiration and also include provisions concerning indemnification, confidentiality, warranty and choice of law and venue.
- 16.12 Execution: This Agreement may be executed in duplicate, each of which when executed and delivered shall be an original. The parties acknowledge and agree that this Agreement has been mutually discussed, negotiated, and drafted by the parties.
- 16.13 No Third Party Rights: Nothing in this Agreement shall be construed as creating or giving rise to any rights in third parties or persons other than the named parties to this Agreement.
- 16.14 Force Majeure: Neither Supplier nor the College shall be liable for failure to perform its respective obligations under the Agreement when failure is caused by fire, explosion, water, act of God, civil disorder or disturbances, strikes, vandalism, war, riot, sabotage, weather and energy related closings, or like causes beyond the reasonable control of the party (“Force Majeure Event”). In the event that either party ceases to perform its obligations under this Agreement due to the occurrence of a Force Majeure Event, the party shall: (a) as soon as practicable notify the other party in writing of the Force Majeure Event and its expected duration; (b) take all reasonable steps to recommence performance of its obligations under this Agreement as soon as possible, including, as applicable, abiding by the disaster plan in place for the College. In the event that any Force Majeure Event delays a party’s performance for more than thirty (30) calendar days following notice by the delaying party pursuant to this Agreement, the other party may terminate this Agreement immediately upon written notice.
- 16.15 Tax Exempt Status: Supplier acknowledges that the College is a tax-exempt institution, granted such status by authorized taxing units of State of Michigan, and is exempt from Federal Excise Tax and Michigan General Sales Tax (see Michigan Public Act 167 of 1933. Section 4 as amended).
- 16.16 Dispute Resolution: Supplier and the College will attempt to settle any claim or controversy arising from this Agreement through consultation and negotiation in good faith and a spirit of mutual cooperation. The dispute will be escalated to appropriate higher-level managers of the parties, if necessary. Unless either party has issued a notice of termination, Supplier agrees to continue shipment of product while resolving any outstanding invoices or payment issues.
- 16.17 Freedom of Information Act: Nothing in this Agreement shall in any way limit the ability of the College to comply with any laws or legal process concerning disclosures by public bodies. The parties acknowledge that any responses, materials, correspondence or documents provided to the College are subject to the State of Michigan Freedom of Information Act (“Act”) and may be released to third parties in compliance with that Act or any other law will not constitute a breach or threatened breach of this Agreement.
- 16.18 Supplier Damage to College Property: Without regard to any other section of the Agreement, Supplier shall be responsible for the costs to return to “as was” condition from any damage caused to the building, grounds, or other equipment and furnishings caused in whole or part by Supplier Personnel while performing activities arising under this Agreement. Supplier shall immediately report in writing the occurrence of any damage to the Building/Project Manager.
- 16.19 Supplier Clean-Up: Supplier will remove all packing materials and rubbish from College premises associated with Supplier’s delivery of the product.
17.0 Export Controls:
For all products or services purchased from the Supplier under this Agreement that are subject to U.S. federal export control laws and regulations, the Supplier will provide the proper Export Control Classification Numbers (ECCN) at time of order. Supplier’s information will include the proper ECCN if the item is controlled under the U.S. Commerce Control List of the Export Administration Regulations (“EAR”) or the proper United States Munitions List Category if the item is controlled under the U.S. International Traffic in Arms Regulations (“ITAR”). The Supplier agrees that the College shall have the right to terminate this Agreement, without penalty, and return any received product based on such notification.
18.0 Data Security; Data Storage; Security Breach Notification:
Supplier agrees to preserve the confidentiality, integrity and accessibility of College data with administrative, technical and physical measures that conform to generally recognized industry standards and best practices that Supplier then applies to its own processing environment. Maintenance of a secure processing environment includes but is not limited to the timely application of patches, fixes and updates to operating systems and applications as provided by Supplier or open source support. Supplier agrees that any and all College data will be stored, processed, and maintained solely on designated target servers and that no College data at any time will be processed on or transferred to any portable or laptop computing device or any portable storage medium, unless that device or storage medium is in use as part of the Supplier's designated backup and recovery processes and encrypted. Supplier agrees to comply with all applicable laws that require the notification of individuals in the event of unauthorized release of personally identifiable information or other event requiring notification. In the event of a breach of any of Supplier’s security obligations, or other event requiring notification under applicable law, Supplier agrees to: a. Notify College by telephone and e-mail of such an event within 24 hours of discovery, and b. Assume responsibility for informing all such individuals in accordance with applicable law, and c. Indemnify, hold harmless and defend College and its trustees, officers, and employees from and against any claims, damages, or other harm related to such Notification Event