Standard Purchasing Terms and Conditions

City of South Bend

Standard Purchasing Terms and Conditions

The following terms and conditions (“Terms”) are applicable to this Purchase Order (“PO”) entered into by the City of South Bend (“City”) and Vendor.

1. Acknowledgement.  This PO as executed by the City constitutes the entire agreement between the City and Vendor.  If this PO is a result of Vendor’s response to a solicitation or a contract referenced on the face of the PO, then the terms and conditions of any such referenced solicitation or contract shall take precedence in any direct conflict between these Terms and those of the referenced solicitation or contract, but only to the extent of the direct conflict. Terms and conditions contained in any other acknowledgment, invoice, correspondence, quotations, specifications, discussions, document, or communication from Vendor shall be of no force and effect and are expressly rejected, notwithstanding the City’s subsequent acceptance, payment, or performance.
2. General Conditions.  In addition to any terms set forth on the face of the PO, the following conditions apply:
   1. Vendor’s acceptance of this PO is its acceptance of the Terms contained herein. If this PO or any of the Terms are not acceptable to Vendor, then Vendor shall contact the City’s Purchasing Division immediately. Vendor’s failure to deliver or perform pursuant to an awarded PO or to comply with any of the Terms contained herein may disqualify it from receiving future awards.
   2. No modifications to this PO shall be binding upon the City unless approved in writing by the City’s Director of Purchasing.
   3. Any assignment of this PO, performance of work hereunder, in whole or in part, or monies due hereunder, shall be void and of no effect unless consented to in writing by the City’s Director of Purchasing.
   4. This PO number must appear on all invoices, packing slips, shipping notices, freight bills, and correspondence concerning this order.
3. Delivery/Risk of Loss/Packaging/Insurance.
   1. Prices and delivery terms are Free on Board (“F.O.B.”) Destination with transportation charges prepaid by Vendor unless alternate shipping terms are indicated on the face of this PO. The City will not pay freight or express charges, except by previous written agreement. If a specific purchase is negotiated on the basis of F.O.B. Shipping Point, Vendor is to prepay shipping charges and add the overage to the invoice.
   2. Regardless of the F.O.B. designation, Vendor agrees to bear all risk of loss, injury, or destruction of goods or materials herein which may for any reason occur prior to delivery to the City. No such loss, injury or destruction shall release Vendor from any obligations hereunder.
   3. Time is of the essence with respect to this PO.  The City reserves the right to cancel this PO and purchase goods or services elsewhere if Vendor fails to meet the delivery date specified on the PO.  In the case of default by Vendor, the City may procure the goods or services covered by this PO from other sources and hold Vendor responsible for any additional cost occasioned thereby.  Acceptance by the City of a late delivery will not constitute a waiver of a later claim for damages.
   4. Deliveries shall be made between 7:30 AM and 3:30 PM, Monday through Friday, except City holidays, unless otherwise stated on this PO.
   5. Packages of items must be clearly marked with Vendor’s name and the City’s PO number.  Charges are not allowed for boxing or crating unless previously agreed upon in writing.
   6. Vendor warrants that any materials ordered under this PO that are classified by the U.S. Department of Transportation as hazardous materials for the purposes of transportation will be packaged, marked, labeled, and shipped in accordance with applicable laws.
   7. Vendor shall maintain adequate insurance in forms necessary to protect both Vendor and the City against all liabilities, losses, damages, judgments, claims, settlements, expenses, including without limitation reasonable legal fees and costs, arising out of or in connection with the performance of this PO. Although evidence of certain minimum coverage may be required, neither the existence of such insurance coverage nor anything else contained herein shall limit to available insurance Vendor’s responsibility for the consequences of any accidents, occurrences, damages, losses, and associated costs arising out of or in connection with the performance of this PO.
4. Acceptance.
   1. All goods or services furnished pursuant to this PO shall be as specified and are subject to the City’s inspection and acceptance within a reasonable time after delivery to or performance on behalf of the City. The City’s signature for receipt of goods does not constitute acceptance. Variations or substitutions in goods or services from those specified in this PO shall not be made without written authority from the City’s Director of Purchasing.  Nonconforming goods will be rejected and returned at Vendor’s sole risk and expense.
   2. The quantity ordered and price stated on the PO must not be exceeded without first obtaining written permission from the City’s Director of Purchasing along with a PO change order. Items shipped in excess of the quantity designated may be returned at Vendor’s sole risk and expense.  If return authorizations are not received from Vendor within thirty (30) calendar days, such items shall be considered donations to the City.
   3. If agreed upon terms and/or specifications are not met, in the City’s sole determination, Vendor shall arrange for the return of the goods at Vendor’s sole expense and risk within thirty (30) calendar days of notification by the City.  The non-conforming goods and/or services shall at all times remain the property of Vendor. If the goods are not collected by Vendor or its agent after thirty (30) days, the goods and/or services will be deemed a donation to the City.
   4. If, within a reasonable time, use of the goods reveals defects not apparent upon receipt or initial inspection and acceptance, the City shall be entitled to revoke its acceptance and reject such goods and hold them at Vendor’s risk and expense for storage and other charges.  Neither the acknowledgement of the receipt of the goods nor payment shall constitute a waiver of this provision.
5. Invoice and Payment.  Payment terms are net thirty (30) days from the date of the City’s receipt of an undisputed invoice unless otherwise stated.  Payment will be made in accordance with the City’s current policies and procedures following receipt and acceptance of the goods or services in the proper quality and quantity.
6. Federal and State Taxes.  The City is exempt from federal and state taxes for goods and services that further its municipal governmental purpose.  Vendors shall not charge the City for any of these taxes, and the City shall be entitled to reduce the amount of its payment of any invoice in the amount of such taxes erroneously charged. Vendor may obtain the City’s tax-exempt number upon request. Vendor shall not use the City’s tax-exempt status in acquiring materials related to servicing this PO.
7. Set-Off.  The City shall, at its sole option, have the right to set-off any amount owing from Vendor to the City against any amount owing from the City to Vendor.
8. Right to Cancel/Terminate.
   1. The City may cancel this PO for its convenience upon written notice to Vendor. The City shall pay Vendor for all goods delivered or services performed prior to the date of cancellation.
   2. The City reserves the right to terminate this PO in whole or in part for default if Vendor fails to perform in accordance with any of the requirements of this PO or referenced solicitation or negotiated agreement. Any such termination will be without liability to the City except for completed items delivered or services performed and accepted by the City.
   3. The City reserves the right to cancel this PO if Vendor becomes insolvent, proceedings in bankruptcy are filed by or against Vendor, or if a receiver or assignee for the benefit of creditors is appointed with or without Vendor’s consent.
   4. Payments by the City are subject to annual appropriation by its fiscal body in accordance with Ind. Code 6-1.1-18. If the City makes a written determination that funds are not appropriated or otherwise available to support the continued performance of this PO, then this PO shall be cancelled. Such a determination by the City shall be final and conclusive.
   5. This PO is subject to cancellation if the City determines that there is a conflict of interest between a City employee and Vendor.
9. Warranty.  Vendor warrants to the City that all goods furnished hereunder shall be merchantable and of the quality, size, and dimensions ordered or specified.  This warranty shall not be waived by reason of acceptance of the goods, payment by the City, or otherwise.  Vendor further warrants that such goods are fit for and will perform in accordance with the purposes for which they were intended and that they are free of defects in materials, workmanship, and design. Services shall be performed in a good and workmanlike manner to the prevailing industry standards.
10. Indemnity.  Vendor hereby agrees to indemnify and hold harmless the City, its officials, agents, and employees from and against any and all liability, claims, demands, damages, fines, fees, expenses, penalties, suits proceedings, actions and cost of actions, including attorney’s fees, of any kind and nature, arising from or in any way connected with the provision of goods or the performance of services associated with this PO, whether by act or omission of Vendor, its subcontractors, agents, or employees.
11. Intellectual Property Indemnity.  Vendor warrants that the goods and/or services provided hereunder either alone or in combination with other materials do not infringe upon or violate any patent, copyright, trade secret, or any other proprietary right of any third party. Vendor shall pay all royalties and assume all costs arising from the use of any invention, design, process, material, equipment, product or device which is the subject of patent rights or copyrights. Vendor shall, at its own expense, indemnify, hold harmless, and defend the City against any claim, suit, or proceeding brought against the City which is based upon a claim, whether rightful or otherwise, that the goods or services, or any part thereof, as furnished under this PO, constitute an infringement of any patent or copyright. Vendor shall pay all damages and costs awarded against the City.
12. Limitation of City’s Liability.  The City shall not be liable to Vendor, its subcontractors, agents, or employees, for any lost profits or other incidental or consequential damages. The City’s liability for any claim of loss, damage, or expense arising out of or in connection with this PO shall not exceed the price of the goods or services which give rise to the claim.  The City shall not be liable for penalties or fines of any kind. Any action, suit, or proceeding arising due to any alleged breach of this PO by the City must be commenced within one (1) year of the accrual of the cause of action.
13. Severability.  If any part of this PO is found to be illegal or unenforceable, that part shall be severed from the contract and the rest of this PO shall be enforceable as written.
14. No Waiver.  No failure or delay on the part of either party in exercising any right under these Terms will operate as a waiver of, or impair, any such right.  No single or partial exercise of any such right will preclude any other or further exercise thereof or the exercise of any other right. No waiver of any such right will have effect unless given in a written document signed by the party waiving such right.  No waiver of any right will be deemed a waiver of any other right hereunder.
15. Audit.  Vendor grants the City and its auditors permission to audit Vendor’s records pertaining to this PO.
16. Survival. The respective representations, warranties, covenants, indemnities, and other statements of the parties set forth in Sections 9, 10, 11, 12, and 15 will survive the parties’ discharge of their obligations under and any termination or cancellation of this contract.
17. Drug-Free Workplace.  Vendor hereby agrees to make a good faith effort to provide and maintain a drug-free workplace. Vendor will give written notice to the City within ten (10) days after receiving actual notice that Vendor or an employee of Vendor within the State of Indiana has been convicted of a criminal drug violation occurring in the workplace.
18. Compliance with the Law.  Vendor certifies that in performing this contract it is in full compliance with all applicable provisions of federal, state, and local laws, regulations, rules, and orders. Vendor specifically acknowledges that it is in compliance with the requirements imposed by Ind. Code § 22-9-1-10 (non-discrimination), the provisions of Ind. Code 5-22-16.5 (disqualification for dealings with the government of Iran), and the provisions of Ind. Code 22-5-1.7 (requiring E-Verify for new employees and prohibiting employment of unauthorized aliens). Vendor further agrees not to discriminate against any firm or employee or applicant for employment in the performance of this contract, with respect to hire, tenure, terms, conditions or privileges of contract or employment, or any matter directly or indirectly related to contracting or employment because of race, sex, sexual orientation, gender identity, religion, color, national origin, ancestry, age or disability that does not affect that person’s ability to perform the work.
19. Governing Law and Jurisdiction.  This PO shall be governed by and construed according to the laws of the state of Indiana.  Venue for any action related to this PO shall be in St. Joseph County, Indiana.