Terms, Choice of Law and Forum, and Amendment. Minnesota State Purchase Orders are issued subject to the following terms and conditions, as may be updated or amended by Minnesota State from time to time. The Purchase Order, these terms and conditions, and exhibits attached or incorporated by reference are the entire agreement between Minnesota State and Seller (“Agreement”). Minnesota State rejects any different or additional terms suggested by Seller before or after this Agreement. Any performance hereunder is an acceptance of this Agreement. This Agreement, and amendments and supplements thereto, shall be governed by the laws of the state of Minnesota. Venue for all legal proceedings arising out of this Agreement, or breach thereof, shall be in the state or federal court with competent jurisdiction in Ramsey County, Minnesota.
Warranty. Seller warrants that all goods and services provided under this Agreement (“Goods and Services”) (a) are new, unused, and free from defects in material and workmanship; (b) are the quality and dimensions ordered; (c) comply with representations in Seller’s advertisement, correspondence, or solicitation response; (d) comply with applicable laws, regulations, or codes; and (e) are not restricted by rights of third parties. Seller represents that it is not excluded from participating in federal health care programs including Medicare and Medicaid, and is not debarred or suspended or listed on the General Services Administration’s List of Parties Excluded from Federal Procurement or Non-procurement Programs. Seller will notify Minnesota State if it becomes excluded, debarred, or suspended during the term of this Agreement, Seller will correct any breach of warranty at Seller’s sole expense. Minnesota State does not waive any warranty by acceptance of goods, services or payment, and reserves all rights and remedies.
Inspections and Improper Delivery. Minnesota State will have a reasonable time after receipt to inspect Goods and Services and reject any that are nonconforming or in excess of quantities ordered. Minnesota State may refuse Goods or Services or cancel all or any part of this Agreement if Seller fails to deliver all or any part of the Goods or Services in accordance with this Agreement. The failure of Minnesota State to inspect the Goods or Services will not relieve Seller of such responsibility. The acceptance of Minnesota State will not be deemed a waiver of any defect in Goods or Services.
Assignment and Amendment. The Seller shall neither assign nor transfer any rights or obligations under this Agreement without the prior written consent of Minnesota State. Any amendments to this Agreement shall be in writing.
Taxes. Minnesota State is exempt from paying Minnesota sales and use taxes. Seller will not charge Minnesota State for such taxes except as provided in Minnesota Statute, Section 297A.70, Subd. 2.
Delivery. If delivery is FOB origin, Seller will pay shipping and freight and will insure shipment for its full value, and prepay freight. In any case, Seller is responsible for packing, crating, marking, transporting, and loss or damage in transit. Risk of loss will pass to Minnesota State upon Minnesota State’s actual receipt and acceptance of Goods or Services.
Use of Minnesota State Name or Logo. Seller will not use the name, logo, or any other marks (including, but not limited to, colors and music) owned by or associated with Minnesota State, or the name of any representative of Minnesota State without the prior written approval of an authorized representative of Minnesota State in each instance.
Payment. Minnesota State will promptly pay after the Seller’s presentation of invoices for Goods or Services and acceptance of such Goods or Services by an authorized representative of Minnesota State. All Goods and Services provided by the Seller pursuant to this Agreement shall be to the satisfaction of Minnesota State, as determined at the sole discretion of its authorized representative, and in accordance with all applicable federal, state and local laws, ordinances, rules and regulations. The Seller shall not receive payment for Goods or Services found by Minnesota State to be unsatisfactory or performed in violation of any applicable federal, state or local law, ordinance, rule or regulation.If Seller has negotiated more favorable terms or conditions for the sale of goods or services to another customer, those terms and conditions will be applied to this Agreement. Supplier’s cash discount or other prompt payment discount period will commence on the later of Minnesota State’s receipt of all Goods and Services or Minnesota State’s receipt of Seller’s invoice.
Termination. This Agreement may be canceled by Minnesota State at any time, with or without cause, upon ten (10) days written notice to the Seller. Seller will immediately stop all work under this Agreement. In the event of such a cancellation, the Seller shall be entitled to payment, determined on a pro rata basis, for Goods or Services satisfactorily performed or provided.Late delivery of Goods or Services, or delivery of defective or non-conforming Goods or Services will, without limitation, be cause for termination. In the event of such termination, Minnesota State will not be liable for damages, and reserves all rights and remedies. If it is determined that Minnesota State improperly terminated this Agreement for cause, then such termination will be deemed to have been for Minnesota State's convenience.
Termination for Insufficient Funding. Minnesota State may immediately terminate this contract if it does not obtain funding from the Minnesota Legislature or other funding source, or if funding cannot be continued at a level sufficient to allow for the payment of the Goods and Services covered here. Termination must be by written or fax notice to the Seller within a reasonable time of Minnesota State receiving notice that sufficient funding is not available. Minnesota State is not obligated to pay for any Goods and Services that are provided after notice and effective date of termination. However, the Seller will be entitled to payment, determined on a pro rata basis, for Goods or Services satisfactorily performed to the extent that funds are available. Minnesota State will not be assessed any penalty if the contract is terminated because of the decision of the Minnesota Legislature or other funding source not to appropriate funds.
Data Disclosure. As a condition of this Agreement, the Seller is required by Minn. Stat. §270C.65 to provide a social security number, a federal tax identification number or Minnesota tax identification number. This information may be used in the enforcement of federal and state tax laws. These numbers will be available to federal and state tax authorities and state personnel involved in approving the contract and the payment of state obligations. Supplying these numbers could result in action to require the Seller to file state tax returns and pay delinquent state tax liabilities. This Agreement will not be approved unless these numbers are provided.
Non-Waiver. Waiver by a party of any default or nonperformance will not be a waiver of any subsequent default or nonperformance.
State Audits. The books, records, documents, and accounting procedures and practices of the Seller relevant to this Agreement shall be subject to examination by Minnesota State and the Legislative Auditor for a minimum of six (6) years from the end of the Agreement.
Liability. The Seller shall indemnify, save, and hold Minnesota State, its representatives and employees harmless from any and all claims or causes of action, including all attorney’s fees incurred by Minnesota State, arising from the performance of this Agreement by the Seller or Seller’s agents or employees. This clause shall not be construed to bar any legal remedies the Seller may have for the failure of Minnesota State to fulfill its obligations pursuant to this Agreement. To the maximum extent permitted by applicable law, in no event shall Minnesota State or its trustees, employees, agents or representatives be liable to the Seller for any incidental, consequential, indirect, special, or punitive damages (including, but not limited to, lost profits, business interruption, loss of business information, or other pecuniary loss) regardless of whether such liability is based on breach of contract, tort (including negligence), strict liability, breach of warranties, failure of essential purpose of otherwise and even if advised of the possibility of such damages. To the maximum extent permitted by applicable law, Minnesota State’s aggregate liability for direct damages under this Agreement shall be limited to the fees paid by Minnesota State during the twelve month period immediately preceding the date the claim giving rise to such liability for direct damages under this Agreement was first asserted. Minnesota State’s liability shall be governed by the Minnesota Tort Claims Act, Minnesota Statutes § 3.736, and other applicable laws.
Changes. At any time by a written notice, Minnesota State may change the drawings, designs, specifications, materials, packaging, and the time and place of delivery. Promptly upon receipt of such notice, Seller will either advise that the change will not affect its costs, or give notice of changes in costs, compensation, and the time of completion.
Government Data Practices Act. The requirements of Minnesota Statutes § 13.05, subd. 11 apply to this Agreement. The Seller and Minnesota State must comply with the Minnesota Government Data Practices Act, Minnesota Statutes Chapter 13, as it applies to all data provided by Minnesota State in accordance with this Agreement, and as it applies to all data, created, collected, received, stored, used, maintained, or disseminated by the Seller in accordance with this Agreement. The civil remedies of Minnesota Statutes §13.08 apply to the release of the data referred to in this clause by either the Seller or Minnesota State. In the event the Seller receives a request to release the data referred to in this clause, the Seller must immediately notify Minnesota State. Minnesota State will give the Seller instructions concerning the release of the data to the requesting party before the data is released.
Insurance. Unless more specific insurance provisions are attached, the following shall apply. At all times during its performance under this Agreement, Seller shall obtain and keep in force i) Commercial General Liability insurance, including coverage for bodily injury and property damage, products and completed operations, liability assumed under an insured contract, pollution liability (if requested by Minnesota State), with limits of not less than $2,000,000 each occurrence and $2,000,000 annual aggregate. Such insurance will be primary, non-contributory, and include a waiver of subrogation; ii) Automobile Liability with limits not less than $2,000,000 each occurrence CSL; iii) Workers Compensation to the extent required by law; including Employers Liability with limits not less than $100,000 each accident, $100,000 each employee/disease, $500,000 policy limit/disease; iv) Professional Liability/Errors & Omissions, if applicable, with limits not less than $2,000,000 each claim/annual aggregate. Prior to the commencement of work, Seller shall provide a certificate of insurance evidencing such insurance, shall name Minnesota State as an additional insured. Seller shall provide for notification to Minnesota State within at least thirty (30) days prior to expiration or cancellation of such insurance.
Environmental Compliance. "Hazardous Substance" means any substance regulated by any federal, state, local or other governmental statute, regulation, law or ordinance for the protection of human health, natural resources and/or the environment now or hereafter in effect, and as amended, including without limitation the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, the Superfund Amendments and Reauthorization Act of 1986, the Resource Conservation and Recovery Act, the Toxic Substances Control Act, the Minnesota Environmental Response and Liability Act, and Minnesota Statute, Section 116.70-.74 regarding chlorofluorocarbon. Seller will comply with all environmental laws. Seller will notify Minnesota State of every article ordered or supplied under this Agreement, or stored or used by Seller on Minnesota State property that contains Hazardous Substances or substances for which the law requires a Material Safety Data Sheet. Seller will give such notification prior to the shipment or introduction of such substances onto Minnesota State property and will include, at a minimum, information regarding the substance including but not limited to Material Safety Data Sheets. Minnesota State will have the right to inspect any Hazardous Substances that Seller has introduced or intends to introduce onto Minnesota State property at all times. In addition, if this Agreement is in excess of $100,000, Seller will comply with all applicable standards, orders or regulations issued pursuant to the Clean Air Act and the Federal Water Pollution Control Act as amended. Minnesota State will report all violations to the federal awarding agency and the Regional Office of the Environmental Protection Agency.
If Goods or Services are for building construction or repair in the amount of $2,000 or more.
Seller will Comply with the Copeland “Anti-Kickback” Act and related regulations. Seller will not induce any person to give up any part of the compensation to which such person is otherwise entitled. By accepting this Agreement, Seller (a) certifies that it has not directly or indirectly paid kickbacks to Minnesota State for the purpose of obtaining this or other Minnesota State agreement; (b) agrees to cooperate fully with any investigation involving a possible violation of the Act; (c) agrees to report any suspected violations of the Act to Minnesota State; and (d) certifies that it has provided no fees, gifts, gratuities, compensation, or anything of value in violation of Minnesota Statute, §15.43.
Seller will comply with the Davis-Bacon Act and related regulations. Seller will pay wages to laborers and mechanics at a rate not less than the minimum wages specified in wage determinations made by the Secretary of Labor, and agrees that such wages will be paid not less than once a week.
Prevailing Wage Rates on Project Work Site. If this Agreement is for Goods or Services for building construction or repair for at least $2,500 if only one trade or occupation is required to complete the work, or at least $25,000 if more than one trade or occupation is required (“Project”), Seller and subcontractors at all tiers (“Firms”) will pay laborers, workers and mechanics performing work on a Project site (“Workers”) at least the applicable Prevailing Wage Rate determined by the Minnesota Department of Labor and Industry, including applicable overtime plus benefits contributions. Selleris responsible for compliance by all Firms. Seller will post and maintain a copy of the applicable Prevailing Wage Rate Schedules and Prevailing Hours of Labor in a conspicuous place accessible to all Workers. At University’s request, Firms will furnish copies of certified payroll records (U.S. Department of Labor form WH-347) for Workers to University Contract Agent (defined as the purchasing representative who issues the “Notice to Proceed” to the Contractor). Firms will submit the records to the Contract Agent within seven business days of the date of the request. If the request covers future pay periods, or is ongoing in nature, Firms will submit the records to the Contract Agent within seven business days of the last day of each pay period covered by the request. Firms should submit the records as a .pdf file. University will retain copies of the certified payroll records and make them available to the Minnesota Department of Labor and Industry at its request. Not complying with this section is a material breach of contract. Seller may cure the breach by immediatelycommencing payment at Prevailing Wage Rates and overtime, and promptly making restitution to laborers, workers, and mechanics who have been underpaid. If the breach is not cured, Seller will immediately pay University the total amount of the underpayment ofwages plus five percent. These damages are not a penalty but are specified so University may reimburse the underpaid. Seller will hold University harmless and indemnify University from all loss, cost or expense arising out of Seller’s or Firms’ failure to pay Prevailing Wage Rates or overtime.
MINNESOTA STATUTES §181.59. The Contractor will comply with the provisions of Minnesota Statutes §181.59 which require:Every contract for or on behalf of the State of Minnesota, or any county, city, town, township, school, school district, or any other district in the state, for materials, supplies, or construction shall contain provisions by which the Contractor agrees: (1) that, in the hiring of common or skilled labor for the performance of any work under any contract, or any subcontract, no contractor, material supplier, or vendor, shall, by reason or race, creed, or color, discriminate against the person or persons who are citizens of the United States or resident aliens who are qualified and available to perform the work to which the employment relates; (2) that no contractor, material supplier, or vendor, shall, in any manner, discriminate against, or intimidate, or prevent the employment of any person or persons identified in clause (1) of this section, or on being hired, prevent, or conspire to prevent, the person or persons from the performance of work under any contract on account of race, creed, or color; (3) that a violation of this section is a misdemeanor; and (4) that this contract may be canceled or terminated by the state, county, city, town, school board, or any other person authorized to grant the contracts for employment, and all money due, or to become due under the contract, may be forfeited for a second or any subsequent violation of the terms or conditions of this contract.
Antitrust. The Seller hereby assigns to the State of Minnesota any and all claims for overcharges as to goods or services provided in connection with this contract resulting from antitrust violations which arise under the antitrust laws of the United States or the antitrust laws of the State of Minnesota.
Minnesota State Order Number. Seller agrees to place Minnesota State Purchase Order Number shown on the face of this Agreement on all packages, invoices, packing slips, notices, and correspondence related to this Agreement.
Severability. If any provision of this Agreement is invalid or unenforceable, the remainder of the provisions, or the application of such provision to persons other than those as to which it is held invalid or unenforceable, will not be affected and the remainder of the provisions will be valid and enforceable to the fullest extent permitted by law.
Survivability. All of the terms and conditions of this Agreement will survive the delivery of goods, the provision of services, and the expiration or termination of this Agreement.