Terms and Conditions
PURCHASE ORDER TERMS AND CONDITIONS
These Purchase Order Terms and Conditions (“Terms”) govern the purchase and sale of all Goods and Services identified in the corresponding Purchase Order issued by Buyer to Seller and are incorporated therein by reference. For purposes of these Terms, “Buyer” means Benedictine University of Lisle, IL; “Goods” means all products, equipment and materials identified in the Purchase Order; “Purchase Order”, or “Order” are interchangeable and, in each case, means Buyer’s ordering document issued to Seller for the Goods and Services identified in the Order; “Services” means all services and work statements identified in the Purchase Order, including any services incidental to Seller’s supply of any Goods to Buyer under the Order; and “Seller” means the entity or individual designated in the Purchase Order to supply the Goods and Services, as applicable, to Buyer under the Order. Buyer and Seller are sometimes referred to herein individually, as “Party” and collectively, as “Parties”.
1. Entire Agreement/Acceptance. These Terms, together with the Purchase Order and, as applicable, all exhibits and other documents attached to the Order or, if not so attached, specifically incorporated therein by reference (collectively, the “Agreement”) constitute the entire agreement between the Parties for the provision of the Goods and Services identified in the Order.Buyer expressly rejects any additional or different terms or conditions contained in Seller’s proposal, quotation or in any other offering document provided by Seller regarding the Goods and Services (“Seller’s Proposal”). The Purchase Order may only be accepted under these Terms and all Goods and Services supplied under the Agreement will be deemed supplied exclusively under these Terms.
3. Seller Warranties. Seller warrants for the entire Warranty Period (as hereinafter defined) that the Goods: (a) will strictly conform to all specifications, drawings and product descriptions; (b) will be free from any defects in materials and workmanship; (c) will be free of any security interests, liens or other encumbrances of any kind and do not (and will not) infringe any patent, copyright, trademark or any other intellectual property right(s); (d) will be new (and not used or refurbished unless expressly so stated and allowed in the Purchase Order); (e) are merchantable and, where Buyer’s intended purpose has been made known to Seller by Buyer, will also be fit for Buyer’s intended purpose; and (f) will be provided in accordance with all applicable laws and regulations. Where any Services are to be furnished by Seller to Buyer under a Purchase Order (whether as stand-alone Services or as Services incidental to Seller’s supply of any Goods to Buyer) Seller warrants that the Services: (i) will be performed to the highest standards prevailing in the industry to which the Services relate (ii) will be performed in full accordance with all applicable laws, regulations and codes (including, without limitation, any applicable permitting requirements); (iii) will be rightfully performed without violating any third party rights of any kind; and (iv) will be performed in full accordance with the provisions and requirements of the Agreement. For purposes of the Agreement, with respect to Goods, “Warranty Period” means, unless a longer period is specified in the Purchase Order, 18 months from delivery of the particular Goods or 12 months from the date of Buyer’s first use of such Goods, whichever occurs first and, with respect to Services, “Warranty Period” means, unless a longer period is specified in the Purchase Order, 18 months after completion of the particular Services under the Agreement. The warranties given by Seller in 3(c), 3(f), 3(ii) and 3(iii) above will survive the expiration of the Warranty Period. If Seller’s Proposal provides Buyer a warranty for the Goods or Services that exceeds the corresponding warranty under this Section 3, that Seller warranty will be deemed accepted by Buyer as an additional warranty under the Purchase Order but with no increase to any price(s) specified in the Order.
4. Inspection and Remedies for Nonconformance. Buyer retains the right to inspect all Goods and Services at the delivery destination specified in the Order. Buyer’s partial or full payment for any Goods or Services, or Buyer’s failure to inspect any Goods or Services does not mean that Buyer has accepted such Goods or Services or waived its right of inspection or any of Buyer’s other rights or remedies regarding the Order at any time. Buyer’s acceptance of any Goods or Services does not release Seller from any of Seller’s warranty obligations under the Agreement. Buyer retains the right to reject any Goods or Services (or any portions thereof) that Buyer determines are nonconforming by failing to meet any requirements under the Agreement. Seller is responsible for all costs incurred in returning any nonconforming Goods for repair/replacement. Any repaired or replaced Goods and any reperformed Services, will carry Seller’s same warranties under the Agreement for the balance of the original Warranty Period or 12 months from the date of Seller’s repair/replacement of the Goods or reperformance of the Services, whichever period is longer.
5. Delivery, Title and Risk of Loss. Unless expressly agreed otherwise in the Purchase Order, Seller remains responsible for packing, labeling and delivering the Goods to the delivery destination specified in the Purchase Order. Title and risk of loss for any Goods provided under the Agreement will only pass to Buyer after Buyer has received, inspected (or waived inspection at Buyer’s discretion) and accepted the Goods at the delivery destination specified in the Purchase Order, regardless of whether Buyer pays (or reimburses) Seller for any delivery related charges.
6. Time is of the Essence. Whenever a mandatory date is specified in the Purchase Order for delivery of the Goods or completion of the Services, then time is of the essencefor that Orderand any failure of Seller to complete delivery of the Goods or performance of the Services by Buyer’s normal close of business (5:00pm Central Time) on such date will be considered a material “uncured breach” by Seller under the Agreement.
7. Invoicing and Payments. Buyer will pay each invoice from Seller within 30 days of Buyer’s receipt of the invoice for the Goods and Services provided by Seller in accordance with the Agreement. Seller will reference the applicable Purchase Order number on each Seller invoice under the Agreement. Buyer retains the right to withhold payment for any Goods or Services that would otherwise be due pending Seller’s satisfaction of any warranty obligations under the Agreement where Buyer has instructed Seller to repair or replace any nonconforming Goods or reperform any nonconforming Services. Unless expressly allowed under the Purchase Order, no Seller travel expenses will be incurred by Seller under the Order or, if incurred, will not be paid (or reimbursed) by Buyer. Seller agrees to submit all invoices in accordance with the payment schedule (if any) in the Purchase Order or, if there is no payment schedule in the Order, then within 60 days of Seller’s delivery of the last of the Goods and, as applicable, Seller’s completion of the last of the Services identified under the Order. Seller acknowledges that any invoices not submitted as required by the preceding sentence may be denied for payment without creating any Buyer liability for non-payment.
8. Tax Exempt Status. Benedictine University of Lisle, IL is exempt from the payment of sales, use and certain other taxes under applicable law and, upon request, will provide Seller a valid “exemption certificate” for its records. Seller will promptly correct (and re-issue) any invoice for Goods and Services that includes charges for any taxes for which a valid exemption is available to Benedictine University of Lisle, IL, as Buyer.
9. Change Orders and Suspension. Buyer retains the right to: (a) request changes to the quantities of Goods ordered and/or scope of Services under the Purchase Order; (b) change the time/date for any required delivery of Goods or completion of work under the Purchase Order; and (c) suspend Seller’s performance under the Purchase Order, in each case, by issuing a written change order request to Seller. Seller will advise Buyer within 7 days of Seller’s receipt of the written change order request from Buyer, whether such changes will impact any price(s) or other Seller charges under the Order or the agreed delivery/work schedule. If there is a price impact on the Purchase Order, Seller will not implement Buyer’s requested change order unless the Parties have first agreed on the price adjustment and both Parties have signed Buyer’s change order request with the agreed price adjustment. If there is no price impact on the Order, or if Seller fails to advise Buyer that there is a price impact on the Order within 7 days of receipt of Buyer’s change order request, then Seller will promptly proceed to implement the change order as originally requested by Buyer with no adjustment to the applicable price(s) or any other charge(s) under the Order.
10. Termination for Default. A Party (the “non-breaching Party”) may, without waiving any of its other rights or remedies under this Agreement or applicable law, terminate the Agreement for any Order, in whole or in part, on written notice to the other Party in the event that the other Party is in default under the Agreement (the “breaching Party”). The breaching Party will be in “default” under the Agreement if the breaching Party (a) fails to perform any material obligation(s) under the Agreement and fails to cure such default within 7 days of the date of written notice of the default from the non-breaching Party (or such longer period as may be acceptable to the non-breaching Party, at its sole discretion) or, (b) becomes insolvent, files a bankruptcy petition, has a bankruptcy petition filed against it, files an assignment for the benefit of creditors or becomes subject to direct control of a trustee or receiver or similar authority.
11. Termination for Buyer’s Convenience. Buyer retains the right to terminate the Agreement for any Purchase Order in whole, or in part, at any time on at least 7 days written notice to Seller. If the Order being terminated by Buyer for its convenience contains an early cancellation fee schedule or specified restocking charge, then Buyer will pay Seller such charges as specified in the Order. Otherwise, Buyer will only pay Seller for the actual documented costs agreed to by Buyer as commercially reasonable for Seller to wind up the Order by the specified termination date.
12. Insurance. Unless otherwise agreed in writing by Buyer,Seller shall maintain the following minimum insurance coverage: (i) Commercial General Liability Insurance with limits of $1,000,000 per occurrence and $2,000,000 aggregate; (ii) Automobile Liability Insurance with limits of $1,000,000 per occurrence combined single limit; and (iii) Workers’ Compensation and Employers’ Liability Insurance as required by applicable state law but with limits of not less than $500,000 per employee. All insurance carriers must have an AM Best rating of A-VIII or better. Buyer shall be listed as a certificate holder and additional insured on the Commercial General Liability policy. Seller shall, if requested, promptly provide Buyer a Certificate of Insurance evidencing the foregoing minimum coverage. Buyer shall be notified in writing at least thirty (30) days prior to cancellation of any insurance policy.
13. Indemnification by Seller. To the full extent allowable under applicable law, Seller agrees to indemnify, defend and hold harmless Buyer and Buyer’s officers, trustees, employees, students, representatives, agents and other contractors/suppliers, from any losses, costs, damages or liabilities of any kind, including attorneys fees and court costs, (“Claims”), to the extent such Claims arise out of Seller’s breach of any material term of the Agreement expressly including, without limitation, Seller’s breach of any representation or warranty made by Seller under the Agreement or that arise out of Seller’s negligence or willful misconduct. Seller’s indemnification obligation under the Agreement will survive the completion, expiration or any termination of the Agreement and will be enforceable thereafter to the full extent allowable under applicable law.
14. Limitation of Buyer’s Liability. In no event will Buyer be liable to Seller whether under the Agreement, or otherwise, for any lost or anticipated profits or any special, incidental, or consequential damages of any kind, even if Buyer had been made aware of the potential for such losses or damages by Seller. Seller expressly agrees that Buyer’s total aggregate liability to Seller will in no event exceed the total price of the Goods or Services under the Order giving rise to Seller’s liability claim. Buyer’s limitation of liability under the Agreement will survive the completion, expiration or any termination of the Agreement and will be enforceable thereafter to the full extent allowable under applicable law.
15. Independent Contractor. It is expressly agreed that the Parties are independent contractors and that the relationship between the Parties does not constitute or establish a partnership, joint venture or agency. Neither Party has any authority to make any representations or create any commitments or obligations on behalf of the other Party at any time.
16. Confidential Information and Use of Name/Logos. All non-public, confidential or proprietary information of Buyer including, but not limited to, specifications, drawings, designs, data, budget/expenditure information and business plans (“Buyer Information”) whether disclosed to Seller orally, or in any written or electronic form, and regardless of being marked (or confirmed separately in writing) as “confidential” is to be kept confidential by Seller and used by Seller only for the purpose of providing the Goods and Services to Buyer under the applicable Purchase Order. All Buyer Information will be promptly returned to Buyer after Seller’s completion of the purpose for which it was furnished, or earlier if requested by Buyer, but without relieving Seller of any confidentiality or use restrictions regarding such information which will survive and continue to be enforceable by Buyer after the completion, expiration or termination of the applicable Order. In addition, Seller is not authorized to use (and will not use) Buyer’s name or any of Buyer’s logos at any time unless such use is approved separately in writing in advance by Buyer’s authorized representative.
17. Conflicts of Interest. As an organization, Buyer is committed to the ethical procurement of Goods and Services and a purchasing system that is free from conflicts of interest. No employee, agent or representative of Buyer may solicit or accept, directly or indirectly, any improper benefit from any past, present, or potential future contractor, vendor or supplier. If Seller reasonably believes that any employee, agent or representative of Buyer has engaged or attempted to engage in any unethical conduct in connection with any purchasing (or proposed) purchasing activities with Seller, Seller must promptly notify Buyer and provide whatever details Seller may have regarding the alleged ethical violation.
18. Force Majeure. Neither Party will be liable for any loss, damage or delay in performance under any Agreement resulting from any cause beyond its reasonable control including, without limitation, severe weather, fire, earthquake or other natural disaster, pandemic or other public health emergency, labor strike, embargo, war, act of terrorism, or any law, order, regulation, demand or requirement of any government agency. The Party whose performance is delayed will provide the other Party prompt written notice of the delay, including the anticipated duration of the delay (if known) as soon as possible but, by no later than 7 days from the delay causing event.
19. Assignment, Subcontracting and Waiver. Seller may not assign, transfer, or delegate the Agreement, in whole or in part, and may not subcontract any work or other obligations under the Agreement, in whole or in part, without the written consent of Buyer, which may be given at Buyer’s sole discretion. Seller remains fully responsible for any work subcontracted by Seller on the same basis as if such work had been performed directly by Seller. No failure or delay by Buyer in enforcing any right or exercising any remedy under the Agreement will operate or be construed as a waiver by Buyer of any right or remedy.
20. Severability and Survival. If any provision of the Agreement is determined by a court of proper jurisdiction to be invalid, it will be stricken from the Agreement, but without affecting the validity of the remaining provisions hereof. All rights and obligations under the Agreement that are intended to survive, as apparent from the context thereof, will survive completion, expiration or termination of the corresponding Purchase Order.
21. Notices and Modifications. All notices, claims or demands, required (or permitted) under the Agreement will be sent to each Party’s designated point of contact in the Purchase Order. These Terms are an integral part of the Agreement and may not be amended or modified, except by an instrument in writing with reference to the Agreement, that is signed by the duly authorized representative of each Party.
22. Governing law and Venue. The Agreement will be construed and enforced in accordance with the laws of the State of Illinois, without regard to any conflict of laws principles. The Parties stipulate and agree that all disputes arising in connection with the Agreement, if not resolved amicably by the Parties, will be resolved exclusively in the Eighteenth Judicial Circuit, DuPage County, Illinois or in the District Court of the United States of America for the Northern District of Illinois, Eastern Division.
(Rev. January-2024)