Terms and Conditions

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.” 

SECTION A: General Provisions

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: (a) classified under the EAR under any ECCN in the Commerce Control List other than EAR99, (b) controlled under the ITAR, or (c) 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 (a) the unit or pro rata Order price for the delivered and accepted portion and (b) 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 federal common law pertaining to federal government contracts, grants, and cooperative agreements governs all matters arising out of or relating to this Order and all the transactions it contemplates. To the extent such law is not dispositive, 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. 

SECTION B: Federal Provisions 

If this Order uses federal grant or cooperative agreement funds, the following provisions are incorporated into the terms of this Order as applicable and as required under 2 CFR Part 200 — Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards, Appendix II to Part 200 — Contract Provisions for Non‐Federal Entity Contracts Under Federal Awards.  

  1. Equal Employment Opportunity. Supplier shall comply with the equal opportunity clause provided under 41 CFR 60‐1.4(b). 
  1. Davis‐Bacon Act, as amended (40 U.S.C. 3141–3148). Supplier shall comply with the Davis‐Bacon Act (40 U.S.C. 3141–3148), as supplemented by Department of Labor regulations (29 CFR Part 5, “Labor Standards Provisions Applicable to Contracts Governing Federally Financed and Assisted Construction”). Under this Act, Supplier shall pay wages to laborers and mechanics at a rate not less than the prevailing wages specified in a wage determination made by the Secretary of Labor. In addition, Supplier shall pay wages not less than once a week. All suspected or reported violations must be reported to the federal funding agency. Supplier shall notify all subcontractors of this requirement. 
  1. Copeland “Anti‐Kickback” Act, as amended (18 U.S.C. 874 AND 40 U.S.C. 3145). Supplier shall comply with the Copeland “Anti‐Kickback” Act (18 U.S.C. 874 and 40 U.S.C. 3145), as supplemented by Department of Labor regulations (29 CFR Part 3, “Contractors and Subcontractors on Public Building or Public Work Financed in Whole or in Part by Loans or Grants from the United States”). The Act provides that each contractor or subrecipient is prohibited from inducing, by any means, any person employed in the construction, completion, or repair of public work, to give up any part of the compensation to which they are otherwise entitled. All suspected or reported violations must be reported to the federal funding agency. Supplier shall notify all subcontractors of this requirement. 
  1. Contract Work Hours and Safety Standards Act (40 U.S.C. 3701–3708). Supplier shall comply with Section 3702 and Section 3704 of the Contract Work Hours and Safety Standards Act (40 U.S.C. 3701‐3708), as supplemented by Department of Labor regulations (29 CFR Part 5, “Labor Standards Provisions Applicable to Contracts Governing Federally Financed and Assisted Construction”). Under Section 3702 of the Act, Supplier shall compute the wages of every mechanic and laborer based on a standard work week of 40 hours. Work in excess of the standard work week is permissible provided that Supplier compensates the worker at a rate of not less than one and a half times the basic rate of pay for all hours worked in excess of 40 hours in the work week. Section 3704 is applicable to construction work and provides that no laborer or mechanic may be required to work in surroundings or under working conditions that are unsanitary, hazardous, or dangerous. These requirements do not apply if this Order is for supplies or materials or articles ordinarily available on the open market, or contracts for transportation or transmission of intelligence. 
  1. Rights to Inventions Made Under a Contract or Agreement. Supplier shall, in the assignment or performance of experimental, developmental, or research work under this Order, comply with the requirements of 37 CFR Part 401, “Rights to Inventions Made by Nonprofit Organizations and Small Business Firms Under Government Grants, Contracts and Cooperative Agreements,” and any implementing regulations issued by the federal funding agency. 
  1. Clean Air Act (42 U.S.C. 7401 et seq.) and Federal Water Pollution Control Act (33 U.S.C. 1251 et seq.), as amended. Supplier shall comply with all applicable standards, orders, and regulations issued pursuant to the Clean Air Act (42 U.S.C. 7401–7671q) and the Federal Water Pollution Control Act (33 U.S.C. 1251–1387), as amended. Violations must be reported to the federal funding agency and the Regional Office of the Environmental Protection Agency (“EPA”). 
  1. Debarment and Suspension (Executive Orders 12549 and 12689). Supplier shall comply with Executive Orders 12549 and 12689, “Debarment and Suspension,” and implementing regulations at 2 CFR 180. These regulations prohibit contracts with parties listed on government-wide exclusions in the System for Award Management (SAM). SAM Exclusions contain the names of parties debarred, suspended, or otherwise excluded by agencies, as well as parties declared ineligible under statutory or regulatory authority other than Executive Order 12549. Supplier certifies that it is not presently debarred, suspended, proposed for disbarment, declared ineligible, or voluntarily excluded by any federal agency from participation in any federal program, including but not limited to grants, contracts and/or cooperative agreements, and that it will notify TAMRF immediately if it is placed on the SAM Exclusions list. 
  1. Byrd Anti‐Lobbying Amendment (31 U.S.C. 1352). Supplier (and, if applicable, any subcontractor) shall file the required certification under the Byrd Anti‐Lobbying Amendment (31 U.S.C. 1352), certifying to the tier above that it will not and has not used federal appropriated funds to pay any person or organization for influencing or attempting to influence an officer or employee of any federal agency, a member of Congress, officer or employee of Congress, or an employee of a Member of Congress in connection with obtaining any federal contract, grant, or any other award covered by 31 U.S.C. 1352. Supplier (and, if applicable, any subcontractor) shall also disclose any lobbying with non‐federal funds that takes place in connection with obtaining any federal award. Such disclosure(s) must be forwarded from tier to tier up to TAMRF. 
  1. Procurement of Recovered Materials (2 CFR 200.323). Supplier shall comply with Section 6002 of the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act (42 U.S.C. 6962). The requirements of Section 6002 include procuring only items designated in EPA guidelines at 40 CFR Part 247 that contain the highest percentage of recovered materials practicable, consistent with maintaining a satisfactory level of competition, where the purchase price of the item exceeds $10,000 or the value of the quantity acquired during the preceding fiscal year exceeded $10,000; procuring solid waste management services in a manner that maximizes energy and resource recovery; and establishing an affirmative procurement program for procurement of recovered materials identified in EPA guidelines. 
  1. Prohibition on Certain Telecommunications and Video Surveillance Equipment or Services (2 CFR 200.216).  
  1. In accordance with 2 CFR 200.216, Supplier shall not expend funds received under this Order to: 
    • Procure or obtain covered telecommunications equipment or services; 
    • Extend or renew a contract to procure or obtain covered telecommunications equipment or services; or 
    • Enter into a contract (or extend or renew a contract) to procure or obtain covered telecommunications equipment or services. 
  2. As described in Public Law 115-232, Section 889, “covered telecommunications equipment or services” means any of the following: 
    • Telecommunications equipment produced by Huawei Technologies Company or ZTE Corporation (or any subsidiary or affiliate of such entities). 
    • For the purpose of public safety, security of government facilities, physical security surveillance of critical infrastructure, and other national security purposes, video surveillance and telecommunications equipment produced by Hytera Communications Corporation, Hangzhou Hikvision Digital Technology Company, or Dahua Technology Company (or any subsidiary or affiliate of such entities). 
    • Telecommunications or video surveillance services provided by such entities or using such equipment. 
    • Telecommunications or video surveillance equipment or services produced or provided by an entity that the Secretary of Defense, in consultation with the Director of the National Intelligence or the Director of the Federal Bureau of Investigation, reasonably believes to be an entity owned or controlled by, or otherwise connected to, the government of a covered foreign country. 
    • Systems that use any of (b)(1)-(4) above as a substantial or essential component of the system, or as critical technology as part of the system. 
  1. Domestic Preference for Procurements (2 CFR 200.322). As appropriate and to the extent consistent with law, Supplier should, to the greatest extent practicable under this Order, provide a preference for the purchase, acquisition, or use of goods, products, or materials produced in the United States (including but not limited to iron, aluminum, steel, cement, and other manufactured products), as provided in 2 CFR 200.322. Supplier shall include these requirements in any lower‐tier awards under this Order. 
  1. Access to Records (2 CFR 200.337). As provided in 2 CFR 200.337, TAMRF, the federal funding agency, Inspectors General, the Comptroller General of the United States, or any of their duly authorized representatives, may access any documents, papers, or other records of Supplier that are pertinent to this Order, in order to make audits, examinations, excerpts, and transcriptions, and have timely and reasonable access to Supplier’s personnel for the purpose of interview and discussion related to such documents. 
  1. Program for Enhancement of Contractor Employee Protections (41 U.S.C 4712). Supplier shall: (a) inform its employees working on any federal award that they are subject to the whistleblower rights and remedies of the program; (b) inform its employees in writing of employee whistleblower protections under 41 U.S.C §4712 in the predominant native language of the workforce; and (c) include such requirements in any agreement made with a subcontractor or subgrantee.