Purchase Order Terms and Conditions
Vendor and Buyer agree to the following terms:
- Vendor to package goods. Vendor at Vendor's cost will package goods in accordance with commercial practice to secure the lowest appropriate transportation cost, with requirement of the common carrier and with applicable specifications. Each shipping container shall be clearly and permanently marked as follows: (i) Vendor's name and address, (ii) Buyer's name and the address of the place of delivery referred to below, (iii) purchase order or purchase release number, if applicable, (iv) container number and total number of containers, for example, "box 1 of 4 boxes," and (v) the container bearing the packing list. Buyer's count or weight shall be conclusive on shipments not accompanied by packing list
- Shipment under reservation prohibited. Vendor shall not ship the goods under reservation. No tender of a bill of lading will operate as a tender of goods.
- Title and risk of lost. Title and risk of loss of the goods shall not pass to Buyer until Buyer actually receives and takes possession of the goods at the place of delivery referred to below.
- Transportation Charges. F.O.B. Destination. Freight Prepaid and Allowed unless delivery terms are specified otherwise. If the quoted delivery terms do not include transportation costs, buyer shall reimburse Vendor for transportation costs in the amount specified in Vendor's bid, or actual costs, which ever is lower. If transportation costs are based on actual costs, a copy of the freight bill showing actual charges for the shipment must be attached to the invoice. Buyer shall have the right to designate what method of transportation shall be used to ship the goods.
- Substitutions. No substitutions permitted without written approval of CapMetro.
- Place of delivery. The place of delivery shall be that set forth in the block of the purchase order or purchase release entitled "Ship To". Any change thereto shall be effected by modification as provided for in Clause E5, "Modifications," hereof. The terms of this contract are "no arrival, no sale."
- Time of delivery. Delivery shall be made during normal working hours only, unless prior approval has been obtained from CapMetro.
- Inspection and test. All goods will be subject to inspection and test by CapMetro. Tests shall be performed on samples submitted with the bid or quote or on samples taken from regular shipment. All costs shall be borne by the vendor in the event goods fail to meet or exceed all conditions and requirements. Goods delivered and rejected in whole or in part may, at CapMetro's option, be returned to the vendor or held for disposition at vendor's expense. Latent defects may result in revocation of acceptance.
- Special tools and test equipment. If the price bid, quoted or stated includes the cost of any special tooling or special test equipment fabricated or required by Vendor for the purpose of filling this order, such special tooling equipment and any process sheets related thereto shall be identified by Vendor and shall become the property of the Buyer.
- NEW AND UNUSED. Unless otherwise specified, all goods will be new and unused.
- DELAY. If delay is foreseen, vendor shall give written notice to Buyer. Vendor must keep the Buyer advised at all times of status of order. Default on promised delivery (without accepted reasons) or failure to meet specifications authorizes CapMetro to purchase goods or services elsewhere and charge full increase, if any, in cost and handling to defaulting vendor.
- Invoices and payment. Vendor shall submit one original copy of an itemized invoice showing purchase order number and purchase release number, if applicable. Transportation costs shall be included in the invoice, if applicable, and a copy of the freight bill shall be included if transportation costs are based on actual costs. Copies of the bill of lading and the freight waybill shall be included when applicable. CapMetro will incur no penalty for late payment if payment is made in 30 or fewer days from receipt of goods or services and an uncontested invoice. Invoices shall be mailed to: Accounts Payable, CapMetro, P.O. Box 6308, Austin, TX 78762 or via email to firstname.lastname@example.org. Vendor shall advise the Accounts Payable Department, in writing, of any changes in remittance address.
- TAXES. Buyer is exempt from most Federal Excise, State or City sales taxes. Buyer shall furnish tax-exemption certificates upon request. Vendor shall not collect or pay taxes for which exemption certificates have been furnished.
- PRICE INCREASE. If prices are higher than specified in the purchase order, the new prices must be approved by Buyer in writing prior to shipment.
- ACCOUNTS CLOSED. Each month's accounts will be closed on the first of the following month and bills received after the closing date will not be included in such accounts. Drafts will not be honored by Buyer.
- PRICE. The prices to be paid by the Buyer shall be those contained in Vendor's bid or, if no bid, in Vendor's quotation, and Vendor warrants that such prices are no higher than Vendor's current prices on orders by other purchasers for products of the kind and specifications covered by this agreement for similar quantities under similar or like conditions and methods of purchase. If Vendor breaches this warranty, the prices of the items shall be reduced to the Vendor's current prices on orders by other purchasers, or Buyer may cancel this contract without liability to Vendor.
- PRODUCT. Vendor shall not limit or exclude any implied warranties and any attempt to do so shall render this contract voidable at the option of the Buyer. Vendor warrants the goods furnished will conform to the specifications, drawings, and descriptions accompanying or referred to in the bid invitation or request for quotation and to any samples furnished by Vendor, if any, and shall be fit for Buyer's purposes. In the event of a conflict between the specifications, drawings and descriptions, the specifications shall govern. Manufacturer's standard warranty shall apply unless otherwise specified.
- SAFETY. All electrical items must meet all applicable OSHA standards and regulations, and bear the appropriate listing from UL, FMRC or NEMA. Vendor warrants the goods conform to any standards promulgated by the U.S. Department of Labor under the Occupational Health and Safety Act of 1970 or other applicable standards.
- PATENTS OR COPYRIGHTS. The vendor agrees to protect CapMetro from claims involving infringement of patents or copyrights.
- WARRANTY OF TITLE. Vendor warrants that the title to all material, supplies and equipment furnished is free of liens and encumbrances.
- TERMINATION. The performance of work under this order may be terminated in whole or in part by the Buyer by the delivery to the Vendor of a written "Notice of Termination" specifying the extent to which performance of work under the order is terminated and the date upon which such termination becomes effective. Buyer shall not be liable to Vendor for any work done or materials purchased after such termination or for lost profits or other damages. Such right of termination is in addition to and not in lieu of rights of Buyer otherwise set forth in this contract.
- FORCE MAJEURE. If either party hereto is delayed in carrying out its obligations under this contract because of acts of God, war or riot or labor stoppages, the party shall give notice and full particulars of such delay supported by sufficient evidence in writing, to the other party within a reasonable time after occurrence of the delay and the time for performance by the party shall be extended by the number of days of the delay, except as hereinafter provided.
- RIGHT TO ASSURANCE. Whenever CapMetro has reason to question the Vendor's intent to perform, CapMetro may demand that the Vendor give written assurance of this intent to perform. In the event that a demand is made, and no assurance is given within ten (10) business days, CapMetro may treat this failure as an anticipatory repudiation of the Contract.
- ASSIGNMENT. No right, interest or obligation in or under this contract shall be assigned or transferred by Vendor without the written consent of the Buyer. Any attempted assignment or transfer by Vendor without such consent shall be ineffective.
- ANTI-TRUST. Vendor hereby assigns to Buyer any and all claims for overcharges associated with this contract arising under the anti-trust laws of the United States 15 U.S.C.A. Section 1, et seq. (1973), and the anti-trust laws of the State of Texas, TEX. Bus. & Comm Code Ann. Sec 15.01, et seq (1967).
- ADDENDA. The addendum or addenda attached to this contract are incorporated into and are a part of this contract.
- WAIVER. No waiver of a claim or right arising out of a breach of this contract shall be effective unless it is supported by consideration and is in writing signed by the aggrieved party.
- MODIFICATIONS. This contract can be modified only by a writing signed by both parties.
- INTERPRETATION. This writing is intended by the parties as a final expression of their agreement and is intended also as a complete and exclusive statement of the terms of their agreement. No course of prior dealings between the parties and no usage of the trade shall be relevant to supplement or explain any item used in this agreement. Whenever a term defined by the Uniform Commercial Code is used in this agreement, the definition contained in the Code is to control.
- APPLICABLE LAW, VENUE. This contract shall be governed, construed and interpreted under the laws of the State of TEXAS. Venue for any litigation arising under this contract shall lie in Travis County, Texas.
- INSURANCE. In the event the Vendor, its employees, agents or subcontractors enter premises occupied or under the control of CapMetro in the performance of this contract, the Vendor agrees that it will maintain public liability and property damage insurance in reasonable limits covering the obligations set forth above, and will maintain worker's compensation coverage (either by insurance or if qualified pursuant to law, through a self insurance program) covering all employees performing this contract on premises occupied or under the control of CapMetro.
- ADVERTISING. Vendor shall not advance or publish without Buyer's prior written consent the fact that Buyer has entered into this contract, except to the extent necessary to comply with proper requests for information from an authorized representative of the federal, state, or local government.
- INDEMNIFICATION. The Contractor shall indemnify and hold harmless CapMetro and its agents, successors, and assigns from and against all injury, loss, damage, or claims of liability, including attorney's fees and disbursements, to any person (including employees of CapMetro; Contractor's employees and Contractor's subcontractors and their employees; associates and other persons assisting the Contractor on a paid or voluntary basis) for injury to or death of the person. The Contractor shall also indemnify and hold harmless CapMetro and its agents, successors, and assigns from any loss of or damage to property arising from, related to, or in connection with any negligent act, error or omission of the Contractor during the performance of this contract and the use of the premises incident to the contract.
- Prohibition against personal interest in contracts. No officer or employee of Buyer, or member of Congress during his tenure, or within two years after its expiration shall have a financial interest, direct or indirect, in any contract with Buyer, or shall be financially interested, directly or indirectly, in the sale to Buyer of any materials, supplies or service, except on behalf of Buyer as an officer or employee. Any willful violation of this provision, with the knowledge, expressed or implied of the person or corporation contracting with Buyer shall render the contract involved voidable by Buyer.
- Gratuities. The Buyer may, by written notice to the Vendor, cancel this contract without liability to Vendor if it is determined by Buyer that gratuities, in the form of entertainment, gifts or otherwise were offered or given by the Vendor, or any agent or representative of the Vendor, to any officer or employee of Buyer with a view toward securing a contract or securing favorable treatment with respect to the awarding or amending, or the making of any determinations with respect to the performing of such a contract. In the event this contract is not canceled by Buyer pursuant to this provision, Buyer shall be entitled, in addition to any other rights and remedies, to recover or deduct from amounts due Vendor the approximate cost to Vendor of such gratuities.
- Collusion. Vendor warrants that no person or selling agency has been employed or retained to solicit or secure this contract upon an agreement or understanding for commission percentage, brokerage or contingent fee except bona fide employees of bona fide established commercial or selling agencies maintained by the Vendor for the purpose of securing business and disclosed to Buyer prior to the date of this contract. For breach of this warranty Buyer, may in addition to any other rights it may have, deduct from the contract price or otherwise recover the full amount of such commission, percentage, brokerage or contingent fee, cancel this contract without liability to Seller.
- Debarred Contractors. Vendor certifies that it is not included on the U.S. Comptroller General's Consolidated list of persons or firms currently debarred for violations of public contracts.
In accordance with section 176.006, Texas Local Government Code, "vendor" is required to file a conflict of interest questionnaire within seven business days of becoming aware of a conflict of interest under Texas law. The conflict of interest questionnaire can be obtained from the Texas Ethics Commission at www.ethics.state.tx.us. The questionnaire shall be sent to the Authority's Contract Administrator.
- For all construction, alteration or repair purchases the Contractor shall comply with the Copeland “Anti-Kickback” Act (40 U.S.C. § 3145), as supplemented by Department of Labor regulations at 29 C.F.R. 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 Contractor 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 he or she is otherwise entitled.
- For all construction, alteration or repair purchases in excess of $2,000, the Contractor shall comply with the Davis-Bacon Act. Under 49 U.S.C. § 5333(a), prevailing wage protections apply to laborers and mechanics employed on FTA assisted construction, alteration, or repair projects. The Contractor will comply with the Davis-Bacon Act, 40 U.S.C. §§ 3141-3144, and 3146-3148 as supplemented by DOL regulations at 29 C.F.R. part 5, “Labor Standards Provisions Applicable to Contracts Governing Federally Financed and Assisted Construction.” In accordance with the statute, the Contractor 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, the Contractor agrees to pay wages not less than once a week. See Supplemental PO Terms for applicable Davis-Bacon Wage Rates.
- Any interested party who is aggrieved or adversely affected in connection with the solicitation, evaluation, or award of a contract may file a protest with the Director of Procurement of CapMetro (hereinafter called Director) and appeal any adverse decision to the President/CEO of CapMetro (hereinafter called President/CEO). Such protest must be in writing and received in the office of the Director addressed as follows: CapMetro, Attn: Director of Procurement, 2910 East Fifth Street, Austin, Texas, 78702.
- Protests directed to the terms, conditions or proposed form of procurement action must be received by the Director within five (5) business days prior to the date established for the opening of bids or receipt of proposals. Protests concerning award decisions, including bid evaluations, must be received by the Director within five (5) business days after such aggrieved person knows, or should have known, of the grounds of the protest. Untimely, or late protests, will not be considered, unless the Director concludes that the issue(s) raised by the protest involves fraud, gross abuse of the procurement process, or otherwise indicates substantial prejudice to the integrity of the procurement system.
- Interested Parties: For the purposes of this procedure, “interested parties” shall be defined as follows:
- With respect to complaints concerning the terms, conditions or form of a proposed procurement action, any prospective bidder or offeror whose direct economic interest would be affected by the award, or failure to award a contract.
- With respect to complaints concerning award decisions, only those actual bidders or offerors who have submitted a bid or offer in response to a CapMetro solicitation and who, if their complaint is deemed by CapMetro to be meritorious, would be eligible for selection as the successful vendor for award of the contract.
- Copies of the protest must be mailed or delivered by the protesting party to all interested parties.
- All formal protests must be sworn and reference the following:
- name, address and telephone number of the interested party.
- solicitation number and title.
- specific statutory or regulatory provision(s) that the action under protest is alleged to have violated.
- specific description of each act alleged to have violated the statutory or regulatory provision(s) identified above.
- precise statement of facts.
- identification of the issue(s) to be resolved.
- argument and authorities in support of the protest.
- a statement that copies of the protest have been mailed or delivered to all interested parties.
- The Director shall have the authority, prior to any appeal to the President/CEO, to settle any dispute and resolve the protest. The Director may solicit written responses regarding the protest from other interested parties.
- If the protest is not resolved by mutual agreement, the Director will issue a written determination on the protest.
- If the Director determines that no violation of rules or statutes has occurred, he/she shall so inform the protesting party, and at his/her discretion, other interested parties by letter which sets forth the reasons for the determination.
- If the Director determines that a violation of the rules or statutes has occurred and a contract has not yet been awarded, he/she shall so inform the protesting party, and at his/her discretion, other interested parties by letter which sets forth the reasons for the determination and the appropriate remedial action.
- If the Director determines that a violation of the rules or statutes has occurred and a contract has been awarded, he/she shall so inform the protesting party, and at his/her discretion, other interested parties by letter which sets forth the reasons for the determination which may include declaring the contract void.
- Appeals: The Director's determination on a protest may be appealed to the President/CEO. An appeal to the President/CEO must be received no later than ten (10) business days after the date of the written determination issued by the Director, and be addressed to the attention of the President/CEO, at the address listed in Subsection 1. The appeal shall be limited to a review of the determination made by the Director. Copies of the appeal must be mailed or delivered by the protesting party to all interested parties consistent with the mailing or delivering of the original protest, and where applicable, CapMetro must be provided with an affidavit that such copies were distributed.
- The Chief Counsel for CapMetro will review the protest, the Director's determination, any responses from interested parties, and the appeal, and prepare a written opinion with recommendation to the President/CEO who will issue a written response to the protesting party.
- The President/CEO's response shall be the final administrative action taken by CapMetro.
- Any protest submitted must follow these procedures or it will be returned without action.
- Appeals to the Federal Transit Administration (FTA): If Federal funds are used on this Contract the bidder/offeror may appeal to the Federal Transit Administration (FTA) after exhausting all administrative appeals stated above. An appeal to FTA must be received by FTA Region 6 Office within five (5) business days of the date the protester learned or should have learned of an adverse decision by the Authority or other basis of appeal to FTA. The appeal must be submitted to:
FTA Region 6 Office
819 Taylor Street, Room 8A36
Fort Worth, Texas 76102
Reviews of protests by FTA will be limited to:
- the Authority's failure to have or follow its protest procedures, or its failure to review a complaint or protest; or
- violations of Federal law or regulation.
- Any protest submitted to the FTA must follow the procedures in paragraph 12. above, or it will be returned without action.
The Authority reserves the right to terminate this contract, or any part hereof, for its sole convenience. In the event of such termination, the Contractor shall immediately stop all work hereunder and shall immediately cause any and all of its suppliers and subcontractors to cease work. Subject to the terms of this contract, the Contractor shall be paid a percentage of the contract price reflecting the percentage of the work performed prior to the notice of termination, plus reasonable charges that the Contractor can demonstrate to the satisfaction of the Authority, using its standard record keeping system, have resulted from the termination. The Contractor shall not be required to comply with the cost accounting standards or contract cost principles for this purpose. This paragraph does not give the Authority any right to audit the Contractor's records. The Contractor shall not be paid for any work performed or costs incurred that reasonably could have been avoided.