General Terms and Conditions

Definitions

Purchase order

The document entitled “Purchase Order” that the Desert Community College District (“District”), issued to the Contractor for various Deliverables, as defined herein.

Contract

The terms and conditions set forth in this General Terms and Conditions, Purchase Order, together with any terms appearing on the cover page hereof.  “Contract” may also include, to the extent applicable, any quote, bid or proposal (including specifications or scopes of services), and amendments to that solicitation submitted by the Contractor in response to any District solicitation; and/or any other written contract entered into between the Contractor and District. If there are any inconsistencies among the documents listed above, these General Terms and Conditions shall govern and take precedence to any conflicting terms and conditions in documents that the Contractor provides.

District

The Desert Community College District / College of the Desert.

Deliverables

The tangible and/or intangible personal property, product, service, software, information technology, telecommunications technology, and other items to be delivered and/or provided pursuant to this Purchase Order, including any such items furnished that are incidental to the provision of services.

Contractor

The business entity designated on the Purchase Order that is supplying Deliverables to the District.  “Contractor” shall be synonymous with “vendor,” “supplier,” “seller,” or other similar term.

Acceptance of Proposal

Contractor proposals are subject to acceptance by the signing of a Contract and/or issuance of a Purchase Order at any time within 30 days after the receipt of quotes unless otherwise stipulated. District reserves the right to accept or reject any and all quotes and to waive any informality or irregularity in any quote. Contractor shall not begin work or supply Deliverables to District unless it has received a Purchase Order and/or Contract from District to do so.

Acceptance and Rejection of Goods

Regardless of any terms or conditions to the contrary in Contractor forms or documents, District shall have all the rights and remedies specified in this paragraph. District shall have a reasonable time after delivery of goods to inspect them. District is not obligated to pay for those goods until it has had the opportunity to inspect them, and has accepted them. District may reject goods if, prior to final acceptance, the goods are found to be defective or not as specified. In the case of services, District is not obligated to pay for them until it has finally accepted the services, in the case of construction, is occupying or otherwise using the facility where the construction has occurred. District is entitled to all other remedies under applicable law, including the right to revoke acceptance of nonconforming goods. Contractor shall reimburse District for all direct, indirect, incidentals, and consequential costs related to nonconforming goods or services. Notwithstanding final acceptance and payment, Contractor shall be liable for latent defects, fraud, or such gross mistakes as amount to fraud. Acceptance of performance shall not waive the right to claim damages for breach, negligence, product liability, or any other act or omission covered by the indemnity provisions of the Purchase Order Terms and Conditions.

Inspections

The Contractor agrees to permit access to its facilities, subcontractor facilities and the Contractor’s processes for producing the Deliverables, at reasonable times, for inspection of the Deliverables covered under this Contract. District shall also have the right to test at its own cost the Deliverables to be supplied under this Contract. Neither inspection at the Contractor’s facilities nor testing shall constitute final acceptance of the Deliverables. If District determines non-compliance of the Deliverables, the Contractor shall be responsible for the payment of all costs incurred by District for testing and inspection.

Title and Delivery

Unless stated otherwise in the Purchase Order, all prices shall be Freight on Board (F.O.B.) Destination and shall include all delivery and unloading at the destination identified in the Contract. Notwithstanding the foregoing, and subject to Section 31 below, for Deliverables sourced internationally, Contractor shall serve as the importer of record and shall be solely responsible for all associated importation obligations, including but not limited to the payment of any tariffs, customs duties, taxes, and related fees, regardless of whether the applicable shipping terms are F.O.B., Cost, Insurance, and Freight (C.I.F.), or otherwise.  Under no circumstances shall the District be designated as the importer of record.  Title to the Deliverables and supplies shall pass to District upon acceptance at the F.O.B. point specified, subject to the right of District to inspect and reject the Deliverables for any exception to the delivery date specified; Contractor shall give prior notification and obtain approval from District’s Purchasing Department to verify delivery date and location. Time is of the essence and the Contract is subject to termination for failure to deliver on time.

Changes

No Subject to Section 31 below, no changes to the Purchase Order or Contract shall be permitted without the prior written notice and approval of both Parties. Neither Party shall unreasonably withhold approval.

Equipment and Labor

Contractor shall furnish all tools, equipment, apparatus, facilities, transportation, labor, and material necessary to furnish the Deliverables herein described. The Deliverables shall be provided at such times and places as directed by and subject to the approval of the authorized District representative indicated.

Workers

Contractor shall at all times enforce strict discipline and good order among its workers and shall not employ on the Contract any unfit or unskilled person. In the event of any work on District property, no contact with District students is allowed, and proper attire including shirts and safety clothing is required at all time. Any worker whom the District may deem incompetent or unfit shall be dismissed from the work and shall not again be employed for the Contract without the District’s written consent.

Substitutions

No substitutions of Deliverables specified shall be made without the prior approval of the District.

Safety and Security

Contractor is responsible for knowing and following federal, state, local, and District rules and regulations pertaining to safety, security, and driving on the campus. To the extent applicable, Contractor is responsible for securing the work site and its materials, for the protection of its workers and the public, and for posting signs warning against hazards created by the work. In an emergency affecting life and safety of life or of work or of adjoining property, Contractor, without special instruction or authorization from District, is hereby permitted to act at its discretion to prevent such threatened loss or injury.

Payment

Contractor must submit an itemized invoice referencing a valid Purchase Order number for all Deliverables delivered and service(s) performed under this Contract. The invoice must specify the services, equipment goods, or materials provided, which must match the description in the purchase order; the dates of and work performed or the equipment, goods, or materials were provided; and the specific dollar amount owed. District shall make payment for satisfactorily delivered Deliverables and service(s) performed within 30 days after inspection and acceptance thereof by the authorized District representative in accordance with this Contract. 

Discounts

If prompt payment discounts apply to this Contract, any discount time will not begin until the Deliverables have been received and accepted and correct invoice received by the appropriate District department. In the event any testing and/or inspection is required prior to acceptance, the discount time shall begin upon completion of the tests and/or inspection.

Taxes

District is exempt from Federal Excise Tax. District pays out-of-state use tax directly to the State of California. For the avoidance of doubt, tariffs, customs duties, import surcharges, or similar governmental charges imposed in connection with the importation of goods are not considered taxes for which the District is exempt. Such charges shall be the sole responsibility of the Contractor and shall not be reimbursed by the District, except as expressly permitted under Section 31 and approved in writing by the District.

Termination

1. District may terminate this Contract for convenience by giving Contractor fifteen (15) days’ written notice of termination, and Contractor shall only be entitled to monies paid and/or owed for Deliverables delivered by Contractor and accepted by District up to the date of the termination notice.

2. A non-breaching party may immediately terminate this Contract upon default of this Contract and may withhold payments due on this Contract the amount necessary to procure Deliverables similar to those so terminated.

Standard of Care

Contractor’s Deliverables under this Contract shall be provided and/or performed consistent with that level of care and skill ordinarily exercised by reputable members of the same profession currently practicing in the same locality under similar conditions.  If any of its Deliverables fail to conform to this professional standard, or if property damage occurs (including damage to subsurface utilities or irrigation systems) as a direct result of Contractor’s operations, Contractor will, at its own expense, perform all necessary services to correct such defects or arrange for the necessary repairs or restoration.

Warranties

1. Condition of Deliverables

   Contractor warrants that Deliverables are new unless specifically approved by District in writing.  Items shall not be surplus, reconditioned, recovered, or remanufactured unless approved by the District in writing.

2. Deliverables Free from Defect

   Contractor further warrants that all Deliverables furnished hereunder will be free from defects in design, material, and workmanship, and will conform to applicable specifications, drawings, samples, and descriptions.  All warranties shall be in addition to any warranties available under law and any standard Contractor warranty.

3. No Violation of Third-Party Rights

   No Deliverable shall violate or infringe upon the rights of any third party, including, without limitation, any patent, copyright, trademark, trade secret, or other proprietary rights of any kind.  Contractor warrants that Contractor has no basis to believe there is an action, suit, proceeding, or material claim or investigation pending or threatened against Contractor that, if adversely determined, might affect any Deliverable or restrict the District’s right to use any Deliverable.

4. Title

   Contractor warrants that it has full title to the Deliverables and has the lawful right to grant the District the rights and licenses contemplated herein without first obtaining consent from any third party.

5. Guarantee of Workmanship

   Contractor shall guarantee the workmanship or service performed against defects or failures of Deliverables for a minimum of one (1) year from delivery of the goods or the final completion date for any services; except that for any and all furniture installation contracts, Contractor shall guarantee the workmanship or service performed against defects or failures of materials for a time period equal to the manufacturer warranty/guarantee period for the specific furniture item(s). All workmanship and materials for all projects must be warranted to be in compliance with applicable California energy, conservation, environmental, and educational standards. In the event that Contractor must perform work to fulfill this guarantee, the terms and conditions of this Contract will apply to such work.

Property Rights

District shall, at all times, retain ownership in and the rights to any creative works, research data, reports, designs, recordings, graphical representations or works of similar nature (Works) to be delivered under this Contract. Contractor agrees that the Works are “works for hire” and assigns all the Contractor’s right, title and interest to District.

Permits/Licenses

Contractor and all its employees or agents shall secure and maintain such licenses and permits as are required by law in connection with the furnishing of Deliverables listed herein.

Certification

Contractor is an independent contractor, and not an officer, employee, or agent of the District, in the performance of this Contract. Contractor provides services to other customers; maintains insurance; sets its own priorities on time and hours of work; provides its own supplies; and determines the means of delivering services.

Insurance

Indemnification

Patent and Copyright Indemnity

Contractor shall indemnify District against all losses, liabilities, lawsuits, claims, expenses (including attorney’s fees), costs, and judgments incurred through third parties claims of infringement of any copyright, patent, trademark or other intellectual property rights.

Risk of Loss

Contractor shall bear all loss of conforming material covered under this Contract until received by authorized District personnel at the location designated in the Contract. Mere receipt does not constitute final acceptance. The risk of loss for nonconforming materials shall remain with the Contractor regardless of receipt.

Non-Discrimination

The Contractor shall comply with all  applicable Federal and State laws, rules and regulations regarding non-discrimination. Contractor also agrees to require like compliance by all subcontractors, if any, employed to perform under the Contract.

Assignment and Delegation

The Contractor shall not assign any right nor delegate any duty under this Contract without the prior written approval by the District. District shall not unreasonably withhold approval. In submitting a quote for these Deliverables, Contractor and/or any subcontractor agreeing to supply goods, services, or materials and entering a contract pursuant thereto, do offer and agree to assign to the District all rights, title, and interest in and to all causes of action it may have under Section 4 of the Clayton Act (15 U.S.C. Section 15) or under the Cartwright Act, Chapter 2 (commencing with Section 16700 of Part 2 of Division 7 of the Business and Professions Code), arising from purchases of goods, services, or materials pursuant to the Contract. This assignment shall be made and becomes effective when the District tenders final payment to the Contractor without further acknowledgement by the parties.

Advertising and Promotion

The Contractor shall not advertise or publish information for commercial benefit concerning this Contract without the prior written approval of District.

Governing Law

The Contract and any attachments or changes thereto represent the entire Contract and shall be governed by and construed in accordance with the laws of the State of California.

Compliance with Laws

Contractor shall give all notices and comply with all applicable federal, state, and local laws, ordinances and regulations, including but not limited to District policies and procedures related to COVID-19 or any other similar pandemic or epidemic, bearing on conduct or work as indicated or specified. If Contractor observes that any of the work is at variance with any such laws, ordinances or regulations, Contractor shall notify District in writing. At District’s sole option, any necessary changes to the Purchase Order shall be made and this Contract shall be amended or terminated effective upon Contractor’s receipt of District’s written notice. If Contractor performs any work knowing it to be in violation of such laws, ordinances or regulations and without first notifying the District, Contractor shall bear all costs arising therefrom.

Family Educational Rights and Privacy Act of 1974

If Contractor has access to students’ education records, Contractor shall limit its employees’ access to the records to those persons for whom access is essential to the performance of this contract. At all times during this contract, Contractor shall comply with the terms of the Family Educational Rights and Privacy Act (FERPA) of 1974 in all respects.

Force Majeure

Except for payment of sums due, neither party shall be liable to the other nor deemed in default under this Contract if and to the extent that such party’s performance of this Contract is prevented by reason of force majeure. The term “force majeure” means an occurrence that is beyond the control of the party affected and occurs without its fault or negligence. Without limited the foregoing, force majeure includes acts of God; acts of the public enemy; war; riots; strikes; pandemic; epidemic; quarantine; mobilization; labor dispute; civil disorders; fire; flood; lockouts; injections- intervention-acts; or failures or refusals to act by government authority; and other similar occurrences beyond the control of the party declaring force majeure which such party is unable to prevent by exercising reasonable diligence.

Tariffs and Government-Imposed Charges

Contractor agrees to hold all prices firm and fixed for the first twelve (12) months of the Term of the Contract (“Initial Period”).  No price increases, including those related to tariffs, duties, or supply chain costs, shall be permitted during this Initial Period.  After the Initial Period, Contractor shall not impose any additional surcharges or price increases, except in the event that a new tariff or similar governmental charge is imposed by formal government action and directly and materially increases the Contractor’s documented cost of the Deliverables provided under this Contract.  In such cases, Contractor may submit a written request to the District for a temporary price adjustment equal to the actual, demonstrable cost impact of the new tariff or charge.  Any such request must include detailed supporting documentation substantiating the tariff and its direct effect on the pricing of the applicable Deliverables.  The District shall have the right, in its reasonable discretion, to approve or reject any such request.  If approved, any surcharge or adjustment shall apply only while the tariff remains in effect and shall be removed immediately upon its expiration, repeal, or suspension.  Notwithstanding the foregoing, if the proposed adjustment would result in an increase of more than fifteen percent (15%) over the then-current pricing, the District reserves the right, in its sole discretion, to reject the increase and terminate the Contract without penalty.

Entire Agreement; Construction

This Contract constitutes the entire agreement between the parties and supersedes any prior or contemporaneous written or oral understanding or agreement and any contrary provisions on packing slips, invoices, or other documents submitted by the Contractor. Any conflict or inconsistency among the components of this Contract shall be resolved by giving precedence in the following order: (1) these Contract Terms and Conditions; (2) all other attachments incorporated into the Contract by reference; and (3) Contractor’s offer/quote made in response to the District’s solicitation for Deliverables for the District. For clarity and the avoidance of doubt, if there are other terms and conditions included in an attachment/exhibit to this Contract and such other terms and conditions conflict with the terms and conditions herein, the conflict shall be resolved by giving precedence to these terms and conditions.

Severability

Should any contract provision be held invalid, the remainder of this Contract shall remain in full force and effect.

Provisions Required by Law

Every provision of law and clause required to be inserted into this Contract shall be deemed to be inserted herein and this Contract shall be read and enforced as though it were included herein.

Time

Time is of the essence in the performance of this Contract.

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Supplemental Terms and Conditions

Information and Communication Technology

(If Purchase Order or Contract Involves Information and Communication Technology)

For purchase orders, including contracts, which procure information and communication technology, including but not limited to, software; operating systems; web-based intranet and internet information, documents and applications; electronic content including documents; telecommunications products; video or multimedia products; self-contained closed products such as copiers and computers, the Contractor hereby warrants that the products or services to be provided under this purchase comply with the accessibility requirements of Section 508 of the Rehabilitation Act of 1973, as amended, and its implementing regulations. Contractor agrees to provide the information as described in Desert Community College District Voluntary Product Accessibility Template and Accessibility Conformance Report Requirements. Contractor agrees to respond promptly to and resolve all reported issues regarding accessibility of its products or services that are brought to its attention. Contractor further agrees to indemnify and hold harmless the District from and against any claim arising out of its failure to comply with these requirements. Failure to comply with these requirements shall constitute a breach and be grounds for termination of this agreement.

Federally Funded Purchase Order/Contract

(If Purchase Order or Contract is Funded With Federal Funds)

Certification Regarding Debarment, Suspension or Other Ineligibility (Applicable to all agreements funded in part or whole with federal funds)

1. Supplier agrees to comply with applicable federal suspension and debarment regulations, including but not limited to, regulations implementing Executive Order 12549 (2 C.F.R. Part 200).

2. Supplier certified to the best of its knowledge, and belief that it and its principals:

   1. Are not presently debarred, suspended proposed for debarment, declared ineligible, or voluntarily excluded from covered transactions by any federal department or agency.

   2. Have not, within a three-year period preceding the receipt of this purchase order, been convicted of, or had a civil judgment rendered against them, for: (a) Commission of fraud or a criminal offense in connection with obtaining, attempting to obtain, or performing a public (federal, State or Local) or private transaction or contract; (b) Violation of Federal or State antitrust statutes; (c) Commission of embezzlement, theft, forgery, bribery, falsification or destruction or records, making false statements, tax evasion, receiving stolen property, making false claims, or obstruction of justice; or (d) commission of any other offense indicated a lack of business integrity or business honesty that seriously and directly affects Suppliers present responsibility;

   3. Are not presently indicated for, or otherwise criminally or civilly charged by any government entity (Federal, State or Local), with commission of any of the offenses enumerated in (b)(ii) above, of the Certification;

   4. Have not, within a three-year period preceding the receipt of this purchase order had one or more public transaction (Federal, State or Local) terminated for cause or default;

   5. Shall not, except as otherwise provided under applicable federal regulations, knowingly enter into any lower tier covered transaction with a person who is proposed for debarment, debarred, suspended, declared ineligible, or voluntarily excluded by and federal department or agency from participation in such transaction; and

   6. Include in all lower tier covered transactions and all solicitations for covered transactions, provisions substantially similar to those set forth herein.