Conditions of Purchase

GENERAL TERMS & CONDITIONS

ENTIRE AGREEMENT:  The following General Terms and Conditions and the Purchase Order of which they are a part (collectively, this “Order”) shall constitute the complete and exclusive statement of the agreement between Wake Forest University and Seller with respect to the Goods and/or Services and is effective as of the date of the Purchase Order (“Effective Date”).  To the extent that Seller has additional terms and conditions (“Seller Terms”), such terms and conditions shall not apply to the Goods and/or Services unless mutually agreed to between the parties and signed by authorized representatives of both parties (“Mutual Terms”). For purchase transactions of Goods and Services under this Order, the order of precedence shall be as follows:  Mutual Terms, this Order, and Seller Terms.

1. DEFINITIONS. Wherever used throughout this Order, the term(s):

1. “Wake Forest” or “University” shall each mean Wake Forest University, a North Carolina nonprofit corporation.
2. “Goods” shall mean all goods, equipment, materials, or other articles which are subject of this Order.
3. “Services” shall mean the service or services to be provided or tangible material produced or delivered in connection with the performance of the services as specified in this Order.
4. “Purchase Order” shall mean the official document Wake Forest sends to Seller when placing an order to document the sale of Goods and Services to be delivered at a later date in accordance with Paragraph 9 of this Order. The general terms and conditions expressed herein shall be considered to be incorporated into the Purchase Order.
5. “Quote” shall mean a document by Seller specifying the cost of Goods and Services they will provide within a specified period.
6. “Seller” shall mean the firm (individual person and/or entity) supplying the Goods and/or Services to Wake Forest.

2. OBJECTIONS. It shall be understood that Seller has accepted the terms and conditions of this Order unless Seller notifies Wake Forest to the contrary in writing delivered to the University within ten (10) days of Seller’s receipt of this Order.  Such notification shall state the specific provisions of this Order to which Seller objects.

3. ACCEPTANCE. This Order shall be deemed to have been accepted on the earlier of:

1. Seller’s making or signing any other form or acknowledgment (except that no additional or different terms and condition thereon shall apply except as otherwise permitted in this Order).
2. Ten (10) days after Seller’s receipt of this Order so long as there is no written notification of non-acceptance by the Seller as specified in Paragraph 2 above.
3. The shipment by Seller of any goods (or lots thereof) ordered hereby.
4. The furnishing or commencement of any services called for as provided for under the terms of this Order.
5. The acceptance of any payment by Seller as provided for under the terms of this Order; or
6. Any other conduct by Seller that recognizes the existence of a contract pertaining to the subject matter hereof.

4. REVOCATION/CANCELLATION/TERMINATION.

1. Prior to Seller’s acceptance of this Order, Wake Forest shall have the right to revoke or withdraw this Order, in whole or in part, without liability to Wake Forest by giving written notice as provided for in this Order to Seller.
2. Wake Forest may for its convenience cancel this Order, in whole or in part, at any time as to all or any portion of the Goods under this Order not shipped or Services under this Order not performed, by giving written notice of such termination to Seller. Seller shall immediately stop all work and/or shipment of Goods under this Order and cause its suppliers and/or subcontractors to cease their work against this Order.  Seller shall be paid an amount equal to the pro rata percentage of the Purchase Order price reflecting the percentage of work performed prior to notice of termination plus actual direct costs resulting from the termination.  Seller shall not be paid for work performed after receipt of notice of termination nor for any costs incurred by Seller’s suppliers and/or subcontractors which Seller could reasonably have avoided.  Any claim for adjustment in accordance with this Order must be asserted within thirty (30) days after the date of Seller’s receipt of notice of termination.  In no event shall the amount to be paid by Wake Forest in connection with such termination exceed the price of this Order.  No termination for convenience shall relieve Seller or Wake Forest of any of its obligations as to any Goods or Service delivered under this Order prior to any such termination.
3. Wake Forest may, without prejudice to any other rights or remedies provided by law or equity, by written notice to Seller, terminate this Order in whole or in part if: (i) Seller has been declared bankrupt, makes an assignment for the benefit of creditors or is in receivership; or (ii) Seller fails to comply with any of the terms and conditions of this Order, including, without limitation, late delivery or performance, the delivery of defective or nonconforming Goods or Services, or the failure to provide Wake Forest with reasonable assurances of future performance. In the event of default pursuant to this Paragraph 4(c) Wake Forest shall not be liable to Seller for any amount, and Seller shall be liable to Wake Forest for any and all losses, damages, and expenses (including costs of cover) sustained by reason of the default and subsequent termination of this Order.  If a determination is made that Wake Forest improperly terminated this Order in accordance with this Paragraph 4(c), then such termination shall be understood to have been for Wake Forest’s convenience as permitted in accordance with Paragraph 4(b) above.

5. MODIFICATIONS AND CHANGES. An Order is valid only as written.  The terms and conditions of this Order may be modified only by a written instrument signed by authorized representatives of Wake Forest and Seller.  Any handwritten changes on the face of this Order shall be ignored and have no legal effect unless initialed by authorized representatives of both parties.  Wake Forest may, from time to time, unilaterally order work suspension, or make changes within the general scope of this Order, or in drawings, designs, specifications, statements of work, place of delivery, methods of shipment and packaging, and services furnished by Wake Forest.  If any such change causes an increase or decrease in the price of this Order or in the time required for its performance, Seller shall promptly notify Wake Forest of the cost difference and assert its claim for adjustment within ten (10) days after the change is ordered, and an equitable adjustment in price shall be negotiated.  Seller’s failure to advise Wake Forest in writing within the ten (10) days of the effect of any change shall constitute Seller’s consent to conform to the change on the terms and conditions specified by Wake Forest.  Where the cost of property made obsolete or excess as a result of a change is included in Seller’s claim for adjustment, Wake Forest shall have the right to prescribe the manner of disposition of such property.  Information, advice, approvals, or instructions by Wake Forest’s technical personnel or other representatives of Wake Forest shall be deemed expressions of personal opinions only and shall not affect the parties’ rights and obligations as provided for under the terms of this Order unless it satisfies the requirements of a modification as set forth above.

6. WARRANTIES. Seller expressly warrants that:

1. All Goods furnished as provided for under the terms of this Order shall be new and unused (unless otherwise specified or agreed to in this Order).
2. All Goods and Services furnished as provided for under the terms of this Order shall conform to all requirements, specifications, and appropriate standards.
3. All Goods and Services shall be free from defects, including, where applicable and without limitations, defects in material, workmanship, and title. In addition, to the extent that the Goods and Services are not rendered pursuant to detailed designs or instructions furnished by Wake Forest, the Goods and Services shall be free from defects in design.
4. All Goods and Services furnished as provided for under the terms of this Order shall be sellable and will be safe and appropriate for the purposes for which goods and services of that kind are normally used. If Seller knows or has reason to know the particular purpose for which Wake Forest intends to use the Goods or Services, Seller also warrants that such Goods and Services will be fit for such particular purpose.
5. All Goods and Services furnished will conform in all respects to samples, advertisements and other forms of representation made to Wake Forest regarding the Goods or Services purchased.
6. In connection with Services or technical data to be provided by Seller as provided for under the terms of this Order, such Services and/or technical data shall be performed or prepared in a professional and competent manner.
7. In performance of this Order, Seller shall comply, and all Goods or Services furnished under this Order shall be produced or furnished in full and complete compliance, with all applicable federal, state, and local laws, rules, ordinances, and regulations.
8. Seller will make a reasonable effort to ensure that the price(s) for the articles, Goods and Services sold to Wake Forest under this Order are not less favorable than those extended to any other customer of Seller for the same or similar Goods and Services in similar quantities or scope of work. In the event Seller reduces its price(s) for such Goods and Services during the term of this Order, Seller agrees to reduce the prices of this Order accordingly effective as of the date of such price reduction.  Seller warrants that prices shown on this Order shall be complete and, except as set forth in Section 23 (Freight Charges) below, no additional charges of any type shall be added without Wake Forest’s express written consent.  Such additional charges include, but are not limited to, packaging, labeling, custom duties, taxes (other than applicable sales taxes), storage, insurance, boxing, and crating.
9. All Goods and Services sold and delivered in accordance with the terms of this Order will be free and clear of any liens.

These warranties are in addition to warranties offered by Seller and any manufacturer and shall not be construed as restricting or limiting any warranties of Seller or such manufacturer, expressed or implied, which are provided or exist by operation of law.  Inspection, test, acceptance or use of the Goods or Services furnished under this Order shall not affect Seller’s obligations under this Paragraph 6, and such obligations shall survive inspection, test, acceptance, and use.  Seller’s warranty shall run to Wake Forest, its successors, assigns and users of Goods or Services.

7. INSPECTION.  All products, supplies and materials ordered are subject to Wake Forest’s inspection. If defective or not as ordered, they shall be subject to return shipment at Wake Forest’s discretion, and Seller shall be fully responsible for any applicable postage, freight, and restocking charges. Invoices shall not be paid until Wake Forest verifies that the items ordered were received and were acceptable.

8. TITLE AND RISK OF LOSS. With respect to any Goods provided under this Order, title and risk of loss shall not pass to Wake Forest until such Goods have been received, inspected and accepted by Wake Forest in accordance with the terms and conditions set forth in this Order. Seller assumes full responsibility of packing, crating, marking, transporting, and liability for loss or damage in transit, notwithstanding any agreement in this Order by Wake Forest to pay reasonable freight, express or other transportation charges.

9. COMPLIANCE WITH DELIVERY SCHEDULE. Time is of the essence in fulfillment of the Purchase Order. Shipment and delivery shall be made in accordance with this Order; provided, that if not addressed in Seller’s Quote, delivery shall be made within ten (10) days of Wake Forest’s issuance of the Purchase Order. Wake Forest may, at its option, and without limitation of any of its other rights, cancel any unfilled part of this Order if complete, conforming delivery is not made within the times specified. Wake Forest is not required to accept partial or incomplete delivery. Acceptance of any part of this Order shall not bind Wake Forest to accept any future shipments.

10. INVOICE AND PAYMENT TERMS. Invoices showing the PO number, terms of payment and routing must be emailed to Procurement and Payment Services at ap-inv@wfu.edu upon completion of delivery. If the PO terms are “As Invoiced,” Wake Forest will pay the terms stated on the invoice. If no terms are specified on the invoice, Wake Forest’s payment system defaults to Net 45 days. Payment is generally made by Wake Forest electronically via virtual credit card (vCard) or Automated Clearing House (ACH) within forty-five (45) days upon Seller’s presentation of an undisputed invoice for Goods delivered or Services rendered in accordance with the terms of this Order.  Notwithstanding the foregoing, payment shall not be due until the later of:  a) forty-five (45) days from the date the invoice is received by Wake Forest, or b) forty-five (45) days from the date the Goods are delivered to Wake Forest, or c) forty-five (45) days from the date the Services have been completed.  Wake Forest may withhold payment in whole or in part for Goods or Services found by Wake Forest to be defective, untimely, or otherwise not conforming to this Order.  All amounts due and payable by Wake Forest to Seller shall be subject to deduction or set off by Wake Forest by reason of any claims Wake Forest may have against Seller whether arising out of this Order or any other transaction with Wake Forest.

11. CONFIDENTIALITY AND PERFORMANCE MATERIALS.

1. Seller will not at any time, either during the term of this Order or thereafter, use for its own benefit or divulge, furnish, or otherwise make available, either directly or indirectly, to any person or entity any information regarding Wake Forest and its operations, including but not limited to any faculty, staff, or student PII (Personally Identifiable Information) or PHI (Protected Health Information), and the terms and conditions of this Order, all of which, for purposes of this Order, are deemed to be confidential (“Confidential Information”). Seller shall keep all Confidential Information in strict confidence.
2. Seller hereby grants to Wake Forest all rights of ownership (including all intellectual property rights) in, and the complete and unrestricted use of, all drawings, documents, videotapes, CDs and other tangible items prepared or produced by Seller in connection with its performance under this Order, including but not limited to source code (“Performance Materials”). Seller agrees to use Performance Materials only in connection with the Services it provides under this Order.

12. INDEMNIFICATION. To the fullest extent permitted by law, Seller agrees to indemnify, defend, and hold harmless Wake Forest from any claims, damages, liabilities, injuries, costs and expenses, or losses (including legal fees) arising out of (a) Seller’s performance under this Order; and/or (b) the infringement, misappropriation, or violation of the Goods or Services of any United States patent, copyright, trademark, trade secret, or other intellectual property, except to the extent caused by the sole negligence of Wake Forest.

13. MEDIATION, JURISDICTION AND VENUE. Should a dispute between Seller and Wake Forest arise in connection with this Order, Seller and Wake Forest agree to use their best efforts to resolve the dispute through negotiation. If the dispute cannot be resolved through negotiation, Seller and Wake Forest agree to submit the dispute to mediation with a mediator chosen jointly and all costs of the mediation shared equally.  If the parties agree mutually to waive mediation, such dispute shall be adjudicated in the state or federal Courts of North Carolina, and both parties consent to the exclusive jurisdiction of such Courts.  Venue will lie only in Forsyth County, North Carolina, or the U.S. District Court for the Middle District of North Carolina.

14. INSURANCE. Seller will maintain workers’ compensation insurance as required by North Carolina law, and will maintain standard commercial general liability insurance with minimum coverage of $1,000,000 per occurrence and $3,000,000 annual aggregate and business automobile insurance for owned and non-owned vehicles with coverage of not less than $1,000,000 single limit. Seller shall provide to Wake Forest’s Authorized Representative a certificate of insurance evidencing the coverage required by this Agreement prior to performing any services under this Order.

15. LIMITATION ON UNIVERSITY LIABILITY. IN NO EVENT SHALL WAKE FOREST BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, LOST PROFITS OR LIKE EXPECTANCY DAMAGES ARISING OUT OF THIS ORDER. WAKE FOREST’S TOTAL OBLIGATION UNDER THIS ORDER IS SET FORTH IN THE “TOTAL” FIELD SET FORTH ON THE FACE OF THIS ORDER.

16. ETHICAL STANDARDS OF CONDUCT. While at any Wake Forest location, Seller’s personnel, agents, and subcontractors shall comply with all reasonable requests, standard rules, and regulations of Wake Forest communicated to Seller regarding personal and professional conduct, including without limitation any security or privacy requirements, and shall otherwise conduct themselves in a businesslike manner.

17. FEDERAL AGENCY REGULATIONS. If this Order indicates on its face that it is placed under a United States Government Contract or Grant, then this Order is subject to all applicable requirements of 2 CFR § 215 “Uniform Administrative Requirements for Grants and Agreements with Institutions of Higher Education, Hospitals and Other Non-Profit Organizations,” Grant General Conditions (GC-1) 01/09, Federal Acquisition Regulations (FAR), and Defense Department Supplement to the Federal Acquisition Regulations (DFARS), each being incorporated in this Agreement by reference with the same effect as if they were fully set forth.

18. ASSIGNMENTS AND SUBCONTRACTING. Neither this Order nor any interest or claim under this Order may be assigned or delegated by Seller; nor may all or substantially all of this Order by further subcontracted by Seller without the prior written consent of Wake Forest. Notwithstanding the above, Seller may, without Wake Forest’s consent, assign monies due or to become due under this Order, provided that Wake Forest shall continue to have the right to exercise any and all of its rights as provided for under the terms of this Order, settle any and all claims arising out of, and enter into amendments to this Order, without notice to or consent of the assignee.  Wake Forest shall be given notice of any assignment and all invoices shall refer to the assignment.

19. FORCE MAJEURE. Neither party shall be liable or bear any responsibility for failure or inability to perform its obligations as provided for under the terms of this Order due to any contingency or cause beyond its reasonable control, including, but not limited to, fires, floods, storms, wars, accidents, epidemics, pandemics, quarantine restrictions, labor disputes or shortages, inability to obtain materials, equipment or transportation, acts of God, or any similar cause beyond the reasonable control of such party.

20. EVENT CONSIDERATIONS. To the extent this Order relates to an event taking place on property owned or operated by Wake Forest (or property owned or operated by a third party and made available to Wake Forest for purposes of the event in question), due to the unique health and safety concerns related to events and gatherings of people, Wake Forest reserves the right to modify, postpone, or cancel events when the University, in its discretion, believes it is prudent to do so for the safety and well-being of event staff, participants, and the community. The University will evaluate guidance from local, national, and global public health and law enforcement officials and other advisory sources in making reasonable decisions to modify, postpone, or cancel events. If, in the sole discretion of the University, an associated event is rescheduled or postponed, Seller agrees that event deposits and other similar advance payments will be applied to the future rescheduled meeting if the University is able to reschedule within the 12-month period following the original scheduled date. If the event is not rescheduled to occur within the 12-month period following the original scheduled date, the University will negotiate and may settle reasonable expenses actually incurred by Seller prior to notice of the event change being given by the University.

21. USE OF WAKE FOREST NAME, LOGOS, AND TRADEMARKS. Seller shall not use any of Wake Forest’s or its affiliates’ names, logos, or marks, nor the name of any faculty member, employee, of student of Wake Forest, in connection with any product, service, promotion, news release, or other publicity, or in any printed materials or any website or other communication without the advance review by and written consent of Wake Forest.

22. TAX EXEMPTION. Wake Forest is generally not exempt from state and local sales taxes for purchases shipped to North Carolina. Purchases made for resale may be tax exempt under Wake Forest’s tax exemption number. Seller may request Wake Forest’s tax exemption number by emailing ap@wfu.edu,

23. FREIGHT CHARGES. No charges of any kind, except sales tax and reasonable freight, not appearing on the Purchase Order will be accepted or paid by Wake Forest. It is Wake Forest’s discretion to accept items shipped in excess of the quantity ordered and any over-shipment may be returned at Seller’s expense.

24. RIGHT TO ENFORCE. The failure of Wake Forest to enforce any provision of this Order shall not constitute a waiver of any rights or remedies available to Wake Forest or its right to subsequently enforce such provision or any other provision of this Order.

25. EXCLUDED ENTITIES. Wake Forest’s policy is not to procure goods or services, make contract purchases, or make subrecipient awards with entities or individuals who are debarred, suspended, or otherwise excluded by governmentwide agencies. Seller is required to immediately stop performance and notify the University (contracts@wfu.edu) should its status become excluded by governmentwide agencies.

26. PAYMENT CARD COMPLIANCE. In the event Seller engages in payment card transactions as part of the Services provided to Wake Forest, Seller shall at all times remain in compliance with applicable data security rules and regulations, including the Payment Card Industry Data Security Standards (“PCI DSS”) and any amendments or restatements of the PCI DSS. Seller accepts responsibility for the security of customer card data that it processes or has in its possession, even if all or a portion of the Services to Wake Forest are subcontracted to third parties.  Seller shall, upon written request, furnish proof of PCI DSS compliance for itself and any subcontracted third parties within ten (10) business days of request