TERMS AND CONDITIONS
The following terms and conditions shall become a part of any agreement, contract or purchase order for the providing of all goods or rendering of any services to Drew University (“Drew”) by any vendor (“Seller”). For construction work, please refer to the construction specific general terms and conditions.
Both parties understand and agree that these terms and conditions, the Purchase Order, contract (if any), Seller’s terms and conditions (if any) as agreed upon in writing by the parties , and the “contractor conduct guidelines”, constitute the entire agreement (“Agreement”) between the parties and contain all the terms and conditions agreed upon by the parties. Any change, modification, or amendment to this Agreement must be agreed to in writing by the parties. This Agreement may not be assigned, transferred or delegated by the Seller without the prior written approval of Drew. The invalidity or non-enforceability of any provision will not affect the validity or enforceability of any other provision. To the extent that Seller’s terms and conditions, if any, shall conflict with any of these terms and conditions, contract, purchase order or state/federal/local laws, the latter shall take precedence. Either party’s failure to insist upon the performance of any term of this Agreement shall not be construed as a waiver of that party’s present or future right to such performance and each party’s obligations in respect thereto shall continue in full force and effect.
Seller warrants that all goods shall conform to the specifications of this Agreement and shall be merchantable, free from defects (including defects in design and fit), free of all liens and encumbrances, and suitable for the intended purposes. Seller warrants that all services shall conform to the specifications of this Agreement and shall be performed in a professional and workmanlike manner. Seller further warrants that the goods and/or services shall comply with all applicable laws, rules and regulations and shall not infringe any intellectual, property, proprietary or contractual right of any third party. These warranties shall remain in effect until the later of (i) one year following Drew’s final acceptance of the goods or services or (ii) the expiration of Seller’s standard warranty period. The foregoing warranties are in addition to, and shall not limit, any other warranties or Drew protections that exist by operation of law.
Seller warrants that the price(s) for the goods or services stated herein are no less favorable than those extended to any other customer (whether government or commercial) for the same or similar goods or services in similar quantities. In the event Seller reduces its price(s) for such goods or services before Seller fully performs under this Agreement, Seller agrees to reduce the prices stated herein accordingly. Seller further warrants that the prices stated herein are complete, and that no additional charges of any type, including but not limited to shipping costs, shall be added without Drew’s express written consent.
Time is of the essence such that Drew shall have an unrestricted right to reject the goods or services if Seller fails to meet the delivery date and conditions specified in this Agreement. Such failure shall be deemed a material breach of this Agreement.
FINAL INSPECTION AND ACCEPTANCE
All goods or services shall be subject to Drew’s final inspection and acceptance, notwithstanding any prior payment or preliminary inspection on the part of Drew. Drew shall provide written notice of its final acceptance within thirty (30) days from the date of the delivery of the goods or the completion of the Services (including any required installation of the goods), whichever is later (the “Final Acceptance”). Drew’s failure to provide such notice shall be deemed Final Acceptance. While Final Acceptance is pending, Drew may return to Seller any non-conforming Goods or Services and/or require Seller to correct or replace such non-conforming Goods or Services, in each case at no cost to Drew. In the event Drew does not require any such correction or replacement, Seller shall promptly refund all payments received for non-conforming Goods or Services that Drew returns. Such remedies shall not limit any other rights or remedies as may be available at law, in equity or under this Agreement. Drew is not required to accept partial or incomplete delivery. Acceptance of any part of the goods and/or services shall not bind Drew to accept any future delivery nor deprive Drew of any right Drew may have to return goods and/or services already accepted.
FAILURE TO PROVIDE ASSURANCES
During the course of the contract, Drew shall be entitled to request from the Seller or it successor in interest adequate assurance of future performance in accordance with the terms and conditions of the contract. Seller’s failure to comply with such request within ten (10) days of delivery of the request shall entitle Drew to terminate the contract and to retain the benefit of services paid for and/or apply a set-off to any payment in whole or part equal to the fair market value of any goods or services received or equal to the loss caused by the disruption in delivery or performance.
PAYMENT AND INVOICES
Drew’s standard payment term for payment in full by check is net thirty (30) days from the date an invoice is received and accepted by Drew. Drew shall not be liable for late payment charges. Seller shall send invoices to Drew University, [attention: requesting department], 36 Madison Ave, Madison, NJ 07940, immediately upon delivery or completion of the goods and/or services. Invoices may also be emailed to the appropriate departmental contact. The Purchase Order number, when applicable, must appear on all invoices. The terms and conditions of this Agreement supersede any terms that may be included on Seller’s invoice. Alternatively, credit(s) may be accepted by Drew, if so negotiated. Any change to the amount due under an original Purchase Order shall require a formal change order prior to Seller’s performance of additional work or the additional items. If an Agreement includes approved provisions for reimbursement of Seller’s travel and/or other business expenses, Seller agrees to obtain and comply with Drew’s Travel Policies with regards to allowable expenses and reimbursement rates, as applicable, and to provide Drew with receipts for reimbursement of actual expenses incurred.
Drew hereby reserves the right to terminate this contract for convenience at any time and for any reason upon written notice to Seller, effective immediately, unless otherwise provided in said notice. Within thirty (30) calendar days of any such termination, Drew shall pay as the sole amount due to Seller in connection with this Project: (1) sums due for work performed and/or goods provided to date; and (2) reasonable costs of termination. In the event of a termination for convenience by Drew, Seller shall remain liable to Drew for (i) defective work performed prior to the termination (whether discovered before or after termination), (ii) late completion damages to the extent of the delays to the critical path of the project for which Seller was responsible as of the date of the termination, and (iii) any other damages that survive a termination for convenience. Termination will have no effect upon the rights and obligations of the parties arising out of any transactions occurring prior to the effective date of such termination. In the event that a law, act, order of government, or cause outside the control of either party, including fires, floods, epidemics, quarantines, strikes or embargoes beyond the control of and without fault or negligence by either party and related to the provision of services and/or goods, Drew shall be entitled to a return of any fees for services not performed. Any notice, demand or communication required, permitted or desired to be given under this Agreement will be deemed effectively given when a Change Order or memo or e-mail is sent to the vendor.
Either party may, without prejudice to any other rights or remedies provided at law, in equity or under this Agreement, by written notice to the other party, terminate this Agreement in whole or in part under any of the following circumstances:
- If the non-terminating party applies for bankruptcy, makes an assignment for the benefit of creditors, or is in receivership; OR
- If the non-terminating party fails to perform any of the terms of this Agreement and so fails to cure such failure within thirty (30) days after receiving notice from the terminating party; OR
iii. If the non-terminating party fails to make progress such that the terminating party has reason to question the non-terminating party’s ability to perform and the non-terminating party fails to provide adequate assurance of its ability to perform within a period of thirty (30) days after receiving notice from the terminating party.
In the event Drew terminates this Agreement pursuant to this subparagraph, Seller shall also be obligated to pay any direct damages, including but not limited to all additional costs that Drew may incur in finding replacement goods and/or services, as well was any liquidated, consequential and incidental damages incurred by Drew. In the event Seller terminates this Agreement pursuant to this subparagraph, Drew shall not be liable for consequential and incidental damages incurred by Seller and in no circumstances shall Drew’s liability exceed the price of the goods or services as stated in this Agreement.
- Upon termination of this Agreement, Drew, in addition to any other rights or remedies available at law, in equity or under this Agreement, may require Seller to transfer title to and deliver to Drew, in the manner and to the extent directed by Drew, any completed or partially completed goods as well as any plans, drawings, or other materials that Seller has specifically produced or acquired for the performance of this Agreement (“Performance Materials”). Payment for such goods or performance materials shall be at the price specified in this Agreement or as otherwise agreed upon by the parties.
CERTIFICATES, LICENSES, AND PERMITS
Seller alone is responsible for maintaining any and all certifications and/or licenses that are required under State and/or Federal law and any other appropriate organizational licenses for the conduct of Seller’s business and agrees to notify Drew of the loss of any certification or organizational or individual professional licensure for any of these services, which may constitute a default under the terms of this Agreement.
Drew and Seller agree that to the extent compatible with the separate and independent management of each, they will at all times maintain an effective liaison and close cooperation with each other. Seller further agrees to cooperate with Drew in any evaluation of Seller’s work, performance, or product and in any licensing matters, audit, governmental review, administrative appeal, litigation, or other legal matter related to this Agreement or the provision of Seller’s services to Drew.
CHOICE OF LAW
The Seller must comply with with all local, State, and Federal laws, rules and regulations applicable to the goods delivered and/or services performed hereunder. The parties agree that any dispute under this Agreement shall be governed by the laws of the State of New Jersey without regard to its conflict of law provisions. The venue and jurisdiction of any dispute shall be in the Superior Court of New Jersey, Morris County.
Seller shall secure and maintain at its expense throughout the term of this Agreement such policies sufficient to insure Seller, its employees, agents and/or contracted providers against any claims for damages occasioned directly or indirectly in connection with the performance of any services under this Agreement. For each policy, Drew shall be named as an additional insured.
The seller shall maintain the following minimum coverage:
- Commercial General Liability -$1 million
- Auto liability – $1 million, “Any autos” including owned, leased, nonowned, and hired vehicles.
- Professional liability – $1 million*
- Workers Compensation – Statutory
*Professional liability insurance required only when Seller is required to hold a professional license for practice of his/her profession. Professions this applies to includes, but not limited to architects, engineers, attorneys, and physicians.
Seller will provide Drew with a Certificate of Insurance upon request to confirm compliance with this section and if there is any change to the underlying policy will promptly provide Drew with a current Certificate consistent with this section.
ASSUMPTION OF RISK/INDEMNIFICATION
Seller shall be liable for its own negligence and the negligent acts of his employees. Seller shall take all precautions necessary for the safety of and prevention of damage to any Drew property and for the safety of and prevention of injury to persons, including Drew ’s employees and third persons. All work shall be done at Seller’s risk, without regard to fault or allocation of negligence. Seller agrees to defend, indemnify and hold harmless Drew and its directors, officers, agents, volunteers, students, and employees against any and all claims, lawsuits, settlements, judgments, costs, penalties and expenses, including actual attorneys’ fees, in whole or in part resulting from, arising from, or in any way connected with any act, error or omission or failure of Seller or Seller’s assistants, employees or agents, including but not limited to any and all claims: (i) relating to the injury or death of any person or damage to any property; (ii) by Seller’s employees for injuries or illnesses incurred in the course and scope of providing services under this Agreement; relating to the dishonest, fraudulent or criminal acts of Seller or its directors, officers, agents, representatives or employees, whether acting alone or in collusion with others in connection with the performance of their obligations under this Agreement. Drew agrees to indemnify and hold harmless Seller and its directors, officers, agents, volunteers and employees against any and all claims, lawsuits, settlements, judgments, resulting from the acts, errors or omissions, including the dishonest, fraudulent or criminal acts of Drew or its directors, officers, agents, representatives or employees, whether acting alone or in collusion with others in connection with the performance of Drew ’s obligations under this Agreement.
If any Claims alleging infringement of intellectual property rights, including but not limited to Claims of patent or copyright infringement or misappropriation of trade secrets, are brought against Drew or by any of its authorized users in connection with Drew’s use of the goods or services, Seller shall not only indemnify Drew as set forth.
Both parties agree to comply with applicable Federal and State laws, including but not limited to tax, employment, wage and hour, workplace safety, workers’ compensation, non-discrimination and civil rights laws.
Seller understands that any records, including drawings, specifications, work product, and other documents in any medium, generated in connection with Seller’s provision of services under this Agreement are solely Drew’s property for its use and purposes and must be returned to Drew at the conclusion of the Agreement. Seller agrees to preserve the full confidentiality of records, including student records, education records (as defined under the Family Education Rights and Privacy Act of 1974 (FERPA)) and protect from unauthorized disclosure all information, records, and data collected under this Agreement. Seller further agrees to comply with the limitations on the disclosure and re-disclosure of personally identifiable information from student education records as set forth in the Family Educational Rights and Privacy Act (FERPA). Should seller, its officers, employees and agents receive information constituting an education record from Drew University, seller agrees: it will only use the information for the purposes for which the disclosure was made; to not make any re-disclosure of such information unless in compliance with FERPA; and to maintain a record of any such re-disclosures Seller shall defend, indemnify and hold harmless Drew from and against any and all claims, demands, damages, liabilities, expenses, losses of every nature and kind, including but not limited to attorney’s fees and costs, sustained or alleged to have been sustained by Drew as a result of any disclosure or use of any Confidential Information in violation of this Agreement. Upon termination of this Agreement, Seller shall return all such information in Seller’s possession to Drew.
It is the express intention of the parties that the relationship between Seller and Drew under this Agreement will be construed and deemed to be that of an independent contractor and Seller is not entitled to participate in any benefits provided to its employees by Drew. Nothing in this Agreement shall be construed to create a partnership, joint venture, employer-employee or principal-agent relationship. Seller is not “Drew’s employee and is solely responsible for paying all State and Federal taxes and contributions as required by law. Drew will not withhold FICA (Social Security) from Seller’s payments; will not make State or Federal unemployment insurance contributions or workers’ compensation or disability insurance payments on Seller’s behalf; such withholdings and payments and any liability with respect thereto are solely Seller’s responsibility. Drew will not withhold state or federal income tax from payments to Seller, and such tax payments are solely Seller’s responsibility.
Except with respect to defaults of Seller’s subcontractors, Seller shall not be liable for any excess costs incurred by Drew if Seller’s failure to perform arises out of causes beyond the control and without the fault or negligence of Seller and despite the best efforts of Seller. Such causes include acts of God, acts of Drew, acts of a government in either its sovereign or contractual capacity, fires, floods, epidemics, quarantine restrictions, strikes and freight embargoes. If failure to perform is caused by default of Seller’s subcontractor, and if such default arises out of causes beyond the control of both Seller and its subcontractor, and without the fault or negligence of and despite the best efforts by either of them, Seller shall not be liable for any excess costs for failure to perform, unless the goods, materials or services to be furnished by Seller’s subcontractor were reasonably obtainable from other sources in sufficient time to permit Seller to meet the required delivery schedule.
USE OF DREW’S NAME, MARKS OR LOGOS
Seller shall not use Drew’s name or trademarks in connection with any advertising, marketing or other promotional efforts or materials without the prior written approval of Drew.
Drew’s freight terms are F.O.B. Destination. Seller shall assume all liability and responsibility for the delivery of merchandise in good condition and free of defects to Drew or any other location as specified. Seller shall bear the risk of loss of, or damage to, all goods until they are accepted by Drew.
SALES AND EXCISE TAX EXEMPTIONS
As a non-profit educational institution, Drew is exempt from New Jersey sales or use taxes, federal excise taxes, or other certain other states’ taxes as may be applicable. Seller shall not include any taxes in the price quotations or nor on subsequent invoices for all goods or services.
ASSIGNMENTS AND SUBCONTRACTING
Neither party shall assign or delegate its rights and obligations under this Agreement without the prior written consent of the non-assigning or non-delegating party.