The following apply to Texas A&M Research Foundation purchase orders whether incorporated by reference or in full text. “Order” means this Purchase Order, and “TAMRF” means the Texas A&M Research Foundation or “Buyer.”
1. SUPPLIER’S ACCEPTANCE
Supplier shall furnish the items or services covered by this Order subject to the terms and conditions in this Order. No other terms or conditions apply to this Order unless accepted by the parties in writing. Written acceptance or shipment of all or any portion of the items or the performance of all or any portion of the services under this Order constitutes unqualified acceptance of all its terms and conditions. The terms of any proposal referred to in this Order are incorporated only to the extent of specifying the nature of the items or services ordered, the price, and delivery date, and then only to the extent that such terms are consistent with the terms and conditions of this Order. TAMRF hereby objects to any different or additional terms on any invoice, acknowledgement, or similar form.
2. WAIVER
TAMRF’s failure at any time to require performance by Supplier of any provision of this Order will not affect TAMRF’s right to require such performance at any time thereafter nor will TAMRF’s waiver of a breach of any provision be taken or held to be a waiver of any succeeding breach of such provision or as a waiver of the provision itself.
3. WARRANTIES
In addition to any express or specific warranties Supplier may make, Supplier warrants the items and/or services delivered to be free from defects in labor, material and manufacture, and to be in compliance with any drawings or specifications incorporated or referenced and with any samples furnished by the Supplier. All warranties will run to TAMRF, its successors, and assignees.
4. INSPECTION
All work performed and all deliverable items or services are subject to final inspection and acceptance at destination regardless of any payments or inspection at source. Final inspection and acceptance will be conclusive except as to latent defects, fraud, such gross mistakes as amount to fraud, and Supplier’s warranty obligations. Supplies to be furnished are subject to inspection by TAMRF and/or third-party inspectors upon the premises of Supplier.
5. ASSIGNMENT
This Order is assignable by TAMRF. Except as to any payment due, this Order is not assignable by Supplier without written approval of TAMRF. Any attempt to do so will be void.
6. CHANGES
Only TAMRF’s authorized agent may make changes within the general scope of this Order by giving written notice to Supplier. If such changes affect the cost or the period of performance of this Order, an equitable adjustment may be made if Supplier submits a written claim for adjustment within 30 days after the receipt of notification of such change. No change by Supplier will be recognized without written approval of TAMRF’s authorized agent. TAMRF’s technical representative(s) are not authorized agents of TAMRF.
7. SHIPPING INSTRUCTIONS
Shipments must be made as specified on the face of this Order unless subsequently modified in writing by TAMRF’s authorized agent.
8. EXPORT COMPLIANCE
Supplier shall comply with, to the extent applicable, the International Traffic in Arms Regulations (the “ITAR”), the Export Administration Regulations (the “EAR”), and other U.S. export control laws. Supplier shall obtain the appropriate licenses or other approvals, if required, for exports of hardware, technical data, and software, or for the provision of technical assistance. Supplier shall notify TAMRF in writing prior to delivery if Supplier will provide any commodity under this Order that is:
- classified under the EAR under any ECCN in the Commerce Control List other than EAR99,
- controlled under the ITAR, or
- otherwise controlled by the U.S. government for national security or foreign policy purposes, controlled under the ITAR. Any such commodity or its packaging must be properly marked to alert TAMRF, upon delivery, of any restrictions. Supplier hereby certifies that none of its personnel participating in activities under this Order is a “restricted party” as listed on the Denied Persons List, Entity List, and Unverified List (U.S. Department of Commerce), the Debarred Parties List (U.S. Department of State), the Specially Designated Nationals and Blocked Persons List (U.S. Department of Treasury), or any similar governmental lists.
9. TERMINATION AND DELAYS
TAMRF may, by written notice stating the extent and effective date, terminate this Order for convenience. TAMRF shall pay Supplier as full compensation for performance prior to such termination
- the unit or pro rata Order price for the delivered and accepted portion and
- a reasonable amount, not otherwise recoverable from other sources by Supplier with respect to the undelivered or unaccepted portion of this Order, provided compensation under this Section 9 may not exceed the total Order price. TAMRF may, by written notice, terminate this Order for Supplier’s default if Supplier fails to comply with the provisions of this Order, or fails to make deliveries within the time specified or any written extension thereof. Time is of the essence in this Order. If, after giving notice of termination for default, TAMRF determines that failure to perform this Order was due to causes beyond the reasonable control and without the fault or negligence of Supplier, or if such delay is due to failure of TAMRF, not caused or contributed to by Supplier, TAMRF may extend the time for completion of this Order or TAMRF may terminate this order, such termination being deemed for the convenience of TAMRF. The rights and remedies of TAMRF provided in this Order are not exclusive and are in addition to any other rights and remedies provided by law.
10. LIABILITY FOR TAMRF-FURNISHED PROPERTY
Supplier assumes complete liability for any damage to or loss of property, tooling, articles, or material furnished by TAMRF to Supplier in connection with this Order and Supplier shall pay for all such property, tooling, articles, or materials spoiled by Supplier, or not otherwise, returned to TAMRF in the same condition as delivered to Supplier, reasonable wear and tear accepted. The furnishing to Supplier of any property, tooling, articles, or material in connection with this Order will not, unless otherwise expressly provided for, vest title to Supplier. Any TAMRF tooling, articles, or materials furnished may not be used for any purpose other than performance of the work under this Order.
11. INDEMNIFICATION AND INSURANCE
If Supplier or its employees, agents, or subcontractors enter premises occupied by or under the control of TAMRF in the performance of this Order, Supplier shall indemnify and defend TAMRF, its directors, officers, employees, agents, and affiliates from any loss, cost, damage, expense, or liability relating to property damages or personal injury arising out of, resulting from, or in connection with the negligent or willful acts or omissions of Supplier or Supplier’s agents, employees, or subcontractors. Supplier shall, and shall require its subcontractors to, maintain public liability, commercial general liability and property damage insurance in reasonable limits covering the above obligations and maintain workers’ compensation coverage (either by insurance or, if qualified pursuant to law, through a self- insurance program) covering all employees performing under this Order on premises occupied by or under the control of TAMRF.
12. INTELLECTUAL PROPERTY INDEMNITY
Supplier shall pay all necessary royalty and license fees relating to intellectual property embodied in the items or services covered under this Order. If any third party claims that the manufacture, use, or sale of these items or services infringes any intellectual property rights of third parties such as, copyright, trademark, or patent, Supplier shall indemnify and defend TAMRF and its directors, officers, employees, agents, and affiliates from any cost, expenses, damage, or loss incurred on account of any such alleged infringement.
13. SEVERABILITY
Each provision of this Order is severable. If any provision is rendered invalid or unenforceable by statute or regulations or declared null and void by any court of competent jurisdiction, the remaining provisions will remain in full force and effect if the essential terms of this Order remain valid, legal, and enforceable.
14. DELIVERY
Order delivery time as shown on the face of the Order reflects the number of days expected for delivery to the designated location under normal conditions. Failure of Supplier to state delivery time obligates Supplier to complete delivery in 14 calendar days from date of this Order. If any unforeseen delay is incurred, Supplier shall give written notice to TAMRF at least five days prior to expected delivery. TAMRF may extend the delivery date if reasons appear valid. If Supplier fails to deliver these items or services by the promised delivery date, without giving acceptable reasons for delay, or if any items or services are rejected for failure to meet specifications, TAMRF may purchase specified items or services elsewhere, and charge the full increase in price and cost of handling and rebidding, if any, to Supplier and Supplier shall pay for such costs. Supplier shall make delivery during normal working hours only, unless prior approval for late delivery has been obtained from TAMRF.
15. PAYMENT
Supplier shall submit one copy of an itemized invoice showing order number and TAMRF Order number. If the invoice is not addressed as instructed, payment may be delayed. TAMRF will incur no penalty for late payment if payment is made in 30 or fewer days from receipt of items or services on an uncontested invoice.
16. INDEPENDENT CONTRACTOR
The parties are independent contractors, and this Order is not intended to create a partnership, joint venture, or employment relationship between the parties. Neither party may bind the other or otherwise act in any way as the representative of the other, unless specifically authorized, in advance and in writing, to do so, and then only for the limited purpose stated in such authorization. This Order is not intended to make employees of either party employees of the other; nor is it intended to make the employees of either party entitled or eligible to participate in any benefits or privileges given or extended by the other party to its employees.
17. APPLICABLE LAW AND VENUE
The substantive laws of the State of Texas (and not its conflicts of law principles) govern all matters arising out of or relating to this Order and all the transactions it contemplates. Exclusive venue for any claim arising out of or relating to this Order must be in Brazos County, Texas. Each party acknowledges that such venue would be a convenient forum.
18. OTHER APPLICABLE PROVISIONS
Any provision required to be included in an order of this type by any applicable federal, state, or local law is deemed to be incorporated by reference as if set forth in full text.