Purchase Order Terms & Conditions

Introduction. The following terms and conditions (“Terms”) govern the procurement of the products and services described in the accompanying Purchase Order (“Purchase Order”) issued by Duke University, Duke University Health System, or any of their affiliates (the Duke entity issuing the Purchase Order, “Duke”) to the vendor identified in the Purchase Order (“Vendor”). By accepting the Purchase Order or performing under it, Vendor hereby accepts these Terms. The Purchase Order and these Terms constitute the entire contract between Duke and Vendor, and supersede any and all prior written and oral agreements or understandings relating to their subject matter. The terms of the Purchase Order and these Terms supersede, and Duke expressly rejects, any additional or contrary terms, limitations or conditions, including those in any Purchase Order acknowledgement or acceptance, proposal, quote, invoice, or document issued by Vendor, and no additional or contrary terms, limitations or conditions apply. The Purchase Order and these Terms may be amended or modified only by a writing executed by both parties that specifically refers to the Purchase Order.
Invoices. All prices will be as listed in the Purchase Order, and invoiced by Vendor at the time or frequency as provided in the Purchase Order. Vendor shall email invoices to VendorInvoice@duke.edu. All invoices must be submitted with either a ten-digit SAP PO number (provided to Vendor by Duke) on the face of in the invoice. Failure to include the SAP PO number will delay payment. Vendor shall not include special handling instructions on any invoice transmittal or any invoice email message. Vendor shall not send any other communications other than current invoices to this email address. Past due invoices, vendor statements, questions, concerns, notifications, etc. are to be submitted to the Accounts Payable customer service email address: AccountsPayable@duke.edu. On an emergency basis or if Vendor’s request is time sensitive, complex, or urgent then Vendor should contact Procurement Services at 919-681-5900 or procurement@duke.edu during Duke’s normal business hours.
Payment Terms. Duke will pay all undisputed invoiced amounts within 45 calendar days of Duke’s receipt of invoice. Duke may withhold payment of any portion of an invoice that it disputes in good faith. Duke’s failure to dispute or withhold a payment will not operate as a waiver of the right to dispute and recover such amount. Duke may deduct from the amounts owed by Duke to Vendor any amount that should be reimbursed to Duke or is otherwise payable to Duke. Duke is not liable to pay, and Vendor waives the right to be paid, any amounts not invoiced within 90 days after Vendor was first entitled to invoice Duke for those amounts.
Tax Exempt. Duke is a tax-exempt corporation under Sections 501(a) and 501(c)(3) of the Internal Revenue Code of the United States, as amended, and under applicable laws of the State of North Carolina. A copy of the tax exemption certificate(s) for the appropriate Duke entity, issued by the Internal Revenue Service or the State of North Carolina, will be provided upon request. Pursuant to North Carolina Direct Pay Permit Number 00209 issued to Duke University or North Carolina Direct Pay Permit Number 00468 issued to Duke University Health System, Inc., which will be provided upon request, the North Carolina Department of Revenue has granted Duke permission to purchase tangible personal property without prepayment of the North Carolina sales or use tax. Accordingly, Vendor shall treat Duke’s purchases as tax-exempt transactions, and Vendor shall not add any State of North Carolina or local sales tax, and Duke is not responsible for any sales, use, property, gross receipts, or similar taxes levied against Duke or Vendor.
Product Shipment and Delivery. Vendor shall deliver all products FOB Destination (or, for international shipments, DDP (Incoterms 2020)), with shipping, handling, transit insurance, import duties, tariffs, and customs clearance costs paid by Vendor, no later than the delivery date indicated on the Purchase Order. Vendor will provide Duke with prompt notice of any backordered or out-of-stock inventory identified on a Purchase Order. No substitutions are allowed without Duke’s prior written consent. Vendor shall ship all products in their original packaging and Vendor will consolidate multiple orders in a single shipment, where feasible. Risk of loss and title to products pass to Duke upon Duke’s receipt at the “ship to” address on the Purchase Order. At Vendor’s cost, Duke may refuse or return shipments that exceed Duke’s ordered volume or are delivered in advance of scheduled delivery dates, or defer payment on early deliveries until their scheduled delivery dates.
Inspection. Products and services provided by Vendor are subject to Duke’s inspection. Hidden damage or latent defects remain Vendor’s responsibility to remedy at Vendor’s cost, regardless of when the hidden damage or latent defect is discovered. Duke at its option may reject all or any portion of the products and services that do not, in Duke’s sole discretion, comply with the Purchase Order and these Terms. Duke may elect to reject any or all products and services provided, even if only a portion is nonconforming. If Duke rejects nonconforming products and services, Vendor shall promptly, at Duke’s option, provide replacement products and services at Vendor’s cost (including shipping in both directions) and on an expedited basis. If Duke elects to accept nonconforming goods or services, Duke will be entitled to deduct a reasonable amount from the price to compensate Duke for the nonconformity. Any acceptance by Duke, even if unconditional, does not waive Duke’s warranty or other rights under these Terms.
Product Returns. Duke reserves the right to return purchased products to Vendor. Duke will return products freight prepaid by Duke. Duke is not obligated to pay any restocking charge or other administrative fee for product returns if the products are of a type or kind that Vendor normally stocks for sale in its business. If Duke purchased products on a special order or custom basis, Duke shall pay Vendor’s customary restocking charge, not to exceed 15% of the amount originally paid by Duke for the returned products. Upon Vendor’s receipt of returned products, Vendor shall issue a credit to Duke for the amount paid by Duke for the returned items, less any applicable restocking charge as provided in this Section.
Warranties for Products. If the Purchase Order includes the provision of products, Vendor warrants that the products: (a) are of merchantable quality and free from any defect in design, material, workmanship or title; (b) are fit for the particular needs and purposes of Duke as may be communicated to Vendor; (c) comply with the specifications and terms of the Purchase Order; (d) the products are manufactured in the country of origin designated in the Purchase Order, and if no country is designated, the United States; and (e) comply with all applicable laws, codes and regulations as published by any federal, state or local agency, association or group. At Duke’s option, Vendor shall replace, repair (or otherwise cure the defect), or provide a refund for any product that breaches any of the foregoing warranties.
Warranties for Services. If the Purchase Order includes the provision of services, Vendor warrants that: (a) Vendor will perform all services (i) in a timely, professional, diligent, and workmanlike manner, (ii) in compliance with the Purchase Order, these Terms, and comply with all applicable laws, codes and regulations as published by any federal, state or local agency, association or group, (iii) with a level of care, skill, practice and judgment consistent with generally recognized industry standards and practices for similar services, and (iv) using personnel with the requisite skill, experience and qualifications; and (b) the services, including any deliverables delivered, will conform to the specifications, requirements, samples or other descriptions included with the Purchase Order or other requirements document and be free from any defects in design, materials, or workmanship. At Duke’s option, Vendor shall replace, repair (or otherwise cure the defect), or provide a refund for any service or deliverable that breaches any of the foregoing warranties. Before any personnel or Vendor subcontractors enter a Duke facility, Vendor will require those individuals to be credentialed through the Duke approved web based system, available at www.procurement.duke.edu.
Recall. If recall or modification of any of the products is required by the FDA or any other state or federal agency or voluntarily recommended or required by the Vendor, then at Vendor’s cost, Vendor shall: (a) immediately notify Duke in writing of such recall or modification; (b) remove, package, and ship to Vendor the affected product(s); (c) reimburse Duke for its costs incurred in connection with notifying affected users of the recall; and (d) replace the recalled products with alternative products that have been evaluated and accepted by Duke as sufficiently comparable (including clinically comparable, where applicable). If no alternative products are available, Vendor shall provide Duke with a refund of all amounts paid for the affected products.
Termination. Duke, in its sole discretion and without cause, may terminate the Purchase Order, in whole or in part, at any time. If Duke terminates a Purchase Order for any reason, Duke shall pay only those amounts, if any, due and owing to Vendor for Products and Services actually delivered or rendered up to and including the date of termination, subject to Vendor’s timely submission of a final invoice and proof of the Vendor’s claims. Vendor’s warranties, and Vendor’s liability for defective or non-conforming products and services, as well as Sections 1, 3, 4, 6, 7, 8, 9, 10, 11, 13, 14, 15, 16, 18, 21, 24, and 28 of these Terms will survive termination and remain in effect.
Compliance with Laws. Vendor shall comply with all applicable federal, state, and local laws, rules, regulations and ordinances, and represents that has obtained all licenses and permits required by law to perform its obligations under this Agreement. Vendor hereby represents and warrants that all FDA-regulated products provided to Duke under these Terms have appropriate documentation in conjunction with FDA regulations. Vendor shall provide Duke with copies of the approval or clearance documentation issued to Vendor by the FDA upon request.
Intellectual Property. All work product, findings, documents, drawings, surveys, software (including object code and source code), deliverables, and other information, data and results, including those in electronic form, created, produced, developed, discovered, delivered, gathered, or prepared by or on behalf of Vendor in connection with the services, and all intellectual property rights therein (collectively, “Work Product”), are the property of Duke. Vendor hereby assigns, transfers, and conveys to Duke, exclusively and perpetually, all right, title, and interest throughout the world it may have or acquire in the Work Product.
Confidentiality. “Confidential Information” means all confidential, non-public, or proprietary information, materials, technical data, or know-how disclosed, either directly or indirectly, whether written, visual, oral, electronic or any other form, by either party. Each party shall hold the other party’s Confidential Information in confidence and will exercise the same degree of care to protect it from disclosure that it uses to protect its own Confidential Information of similar importance. Each party shall only use the other party’s Confidential Information as necessary to perform its obligations under the Purchase Order, and will return or destroy it at the request of the disclosing party or upon the termination or expiration of the Purchase Order. Confidential Information does not include information that: (a) is lawfully known by the recipient prior to the time of disclosure by the disclosing party; (b) is independently developed by the recipient or its employees or agents without any knowledge or use of the Confidential Information received from the disclosing party; (c) is or becomes generally available to the public without the wrongful act or breach by the recipient; or (d) is lawfully received by the recipient from a third party with no confidentiality obligations pertaining to that information. Each party shall not disclose the other party’s Confidential Information to any third party without prior written authorization of the disclosing party.
Records and Audit. Vendor shall keep proper records and books in connection with Duke’s account, detailing costs incurred on Duke’s behalf as well as all other information necessary to determine accurate invoicing for products and services and compliance with these Terms. Vendor shall retain these records and books for seven years or any longer period required by applicable law. Upon reasonable written notice, Duke or its representative may inspect and audit the books and records of Vendor, solely as related to Vendor’s compliance with these Terms and the Purchase Order, during Vendor’s normal hours of business operation. Upon discovery of any overpayment by Duke to Vendor, Vendor shall immediately return the full amount of that overpayment. Duke will bear its costs incurred in performing an audit in accordance with this Section; however, if the audit reveals an error in charges of more than 5% of the total amounts due during the audited period, Vendor shall promptly reimburse Duke for its reasonable audit costs.
Indemnification. Vendor shall defend, indemnify, and hold harmless Duke, its affiliates, and their respective officers, directors, trustees, employees, successors, and assigns from any damages, fines, liabilities, losses, costs and expenses (including reasonable attorneys’ fees and disbursements) incurred as a result of a third-party claim arising out of or relating to: (a) any breach by Vendor of the Purchase Order or Terms; (b) allegations that any products, services, or other materials provided by Vendor infringe or misappropriate any intellectual property right, or otherwise violate any right, of any third party; (c) allegations that the products, services, or data provided by Vendor caused damage to property, bodily injury, or death; and (d) Vendor’s negligence or more culpable conduct. Duke may assume control of the defense and settlement of such claim or action with counsel of its choosing, at Vendor’s cost, or participate in the defense and settlement of such claim or action with counsel of its choosing, at its own cost. Vendor must obtain Duke’s prior written consent to any judgment, settlement, or other disposition of any such claim in which the Vendor agrees to (or which contains or contemplates) any admission or finding of fault on the part of Duke or the imposition of any fine, penalty, liability, damage, expense, cost or other loss or obligation on Duke.
Insurance. Vendor shall obtain and maintain the following forms of insurance coverage: (a) commercial general liability insurance, including products and completed operations and contractual liability coverage, with a limit of not less than $3 million per occurrence and $5 million aggregate; (b) workers’ compensation, or its local country equivalent, in amounts no less than required by applicable law; (c) employer’s liability insurance with limits of no less than $1 million per accident; (d) automobile liability insurance with limits of not less than $1 million per occurrence; and (e) if the Purchase Order contemplates services, professional liability (or errors and omissions) insurance with limits of no less than $1 million per claim. Duke University and Duke University Health System must be named as additional insured with respect to general liability coverage. Vendor’s policy must be primary as to any other valid and collectible insurance, but only as to acts of the named insured. The foregoing coverages and limits are to be considered as minimum requirements and in no way limits the liability of the Vendor. A certificate of insurance with the coverage as cited above and listing Duke as the certificate holder, must be submitted to Duke Procurement Services before work begins by Vendor. Coverage represented on the certificates of insurance must show policy numbers, effective dates and limits. All policies shall evidence insurance written by a carrier licensed or approved in the State of North Carolina and rated at least “A” in A.M. Best’s Key Rating Guide. Renewal certificates of insurance shall be provided annually until the work is completed and for three years following the completion of work for any claims made based coverages.
Governing Law; Venue. The Purchase Order and these Terms will be governed by the internal laws of the State of North Carolina, without regard to principles of conflict of laws. Any action based on or arising out of the Purchase Order or these Terms must be brought and maintained exclusively in any court of the State of North Carolina or any federal court of the United States, in each case located only in Durham County, North Carolina.
Code of Conduct. Vendor acknowledges that it has access to an electronic copy of Duke’s Code of Conduct, available at www.procurement.duke.edu, and that Vendor will abide by such Code of Conduct in the performance of the Purchase Order and these Terms.
Debarment and Suspension. Vendor represents and warrants that it, its officers, employees, and subcontractors: (a) have not been convicted of a criminal offense related to healthcare; (b) are not currently under sanction, suspension, debarment or exclusion, or under investigation (civil or criminal) by a federal or state enforcement, regulatory, administrative, or licensing agency, or otherwise ineligible for federal or state program participation; and (c) are not currently listed on the U.S. Department of Health and Human Services, Office of Inspector General List of Excluded Individuals and Entities or General Service Administration System for Award Management, US Treasury Non-SDN OFAC Consolidated Sanction List, US Treasury SDN & Blocked Persons, FDS List for Clinical Investigators or NC Iran Divestment Lists. Vendor hereby agrees to immediately notify Duke of any such sanctions, debarment, suspension, or exclusion by or from any of the above lists. Vendor will notify Duke promptly of any allegation of unethical behavior, wrongdoing, or violation of the Duke Health Code of Conduct or federal or state anti-corruption or health laws or regulations. Vendor further warrants that it is in compliance with the Copeland “Anti-Kickback” Act (18 U.S.C. 874) as supplemented in Department of Labor Regulations (29CFR, Part 3) and that it is not delinquent on the repayment of any federal debt as required under FAR 52.209-5 and FAR 52.209-60.
Federal Government Provisions. In addition to the other provisions in these Terms and the Purchase Order, all purchases by Duke under a Federal grant award are deemed to contain the provisions set forth in Appendix II to Part 200 – Contract Provision for Non-Federal Entity Contracts under Federal Awards, which is incorporated by reference and available on the eCRF website: Contract Provisions for Non-Federal Entity Contracts under Federal Awards or https://www.ecfr.gov/current/title-2/subtitle-A/chapter-II/part-200/appendix-Appendix%20II%20to%20Part%20200. Consistent with paragraph (K) of Appendix II, Vendor shall not provide to Duke, or cause Duke to use, covered telecommunications equipment or services as defined in section 889 of Pub. L. No. 115-232 in the performance of any contract, subcontract or other contractual instrument between Vendor and Duke, including any Purchase Order. If Vendor identifies, during contract performance, any covered telecommunications equipment or services as part of any product or service Vendor provides to Duke, then Vendor shall immediately notify Duke via email to procurement@duke.edu. All purchases by Duke of commercial products or commercial services under a Federal contract are deemed to contain the clause set forth in Federal Acquisition Regulation (FAR) 52.244-6.
Export Compliance. Vendor shall provide the export control classification associated with the product or good being purchased, to the extent that this item is controlled either under the Export Administration Regulations (EAR) or the International Traffic in Arms Regulations (ITAR). For EAR-controlled items, Vendor will provide the correct ECCN classification based on the Commerce Control List for anything classified other than EAR99. For ITAR items, the correct USML Category will be provided. In both cases, to the extent that the item includes technical data such as operational manuals, that data must also be classified. If Vendor is unable to comply with this instruction, it will notify Duke within five days following its receipt of the Purchase Order, indicating the reason for non-compliance and recommended solution.
Conflict of Interest. Vendor affirms that to the best of its knowledge there is no actual or potential conflict of interest between Vendor’s personal, business, or financial interest and products or services provided under the Purchase Order. In the event of change in Vendor’s private interest or the products and services under the Purchase Order has potential for conflict of interest, Vendor will promptly notify Duke.
Publicity. Vendor shall not publicize or advertise the fact it is providing any products or services to Duke, or use or reference any name, trademark, service mark, service name or symbol of Duke or any of its affiliates, including in promotional materials, websites, press releases, client lists, public announcements, presentations or similar, without the express, advance written approval of Duke’s Office of Trademark and Licensing for each item of advertising or publicity. If permission is granted, Vendor shall comply with Duke’s trademark use guidelines.
Assignment and Subcontracting. Vendor shall not assign, delegate, or subcontract any of its rights or obligations under the Purchase Order or these Terms (including by operation of law or otherwise) without Duke’s express prior written consent, which consent shall not be unreasonably withheld. Duke may assign the Purchase Order or these Terms and any of its rights and obligations thereunder upon written notice to Vendor. Subject to the foregoing, the Purchase Order and these Terms inure to the benefit of and are binding upon the parties and their successors and permitted assigns. Duke reserves the right to approve any of Vendor’s subcontractors and to require Vendor to replace any subcontractors that Duke reasonably determines to be unacceptable. Vendor is responsible for the performance, acts, and omissions of its employees, contractors, and subcontractors.
Independent Contractor. Vendor is an independent contractor, and nothing in the Purchase Order or these Terms creates any partnership, joint venture, agency, joint employer, or employment relationship between the parties. Vendor does not have any authority to assume or create any obligation on behalf of Duke.
Remedies. Vendor shall continue performing its obligations while a dispute is being resolved except to the extent the issue in dispute precludes performance; however, disputes regarding fees will not be deemed to preclude performance. If there is a breach of this obligation, Duke will be entitled to seek and obtain injunctive relief, without posting bond or proving damages. All remedies provided for in this Agreement will be cumulative and in addition to, and not in lieu of, any other remedies available to either party at law, in equity or otherwise.
Nondiscrimination and Equal Employment Opportunity. Vendor understands and agrees that for purchases using North Carolina state funds or funds under a Federal contract or North Carolina state funds, Vendor is subject to compliance with applicable Federal and North Carolina state laws relating to nondiscrimination and equal employment opportunity.
General. The Purchase Order and these Terms may not be amended or modified except by a writing signed by duly authorized representatives of each of the parties to this Agreement. The failure to enforce or delay in enforcing a provision of this Agreement is not a waiver of that or any other term, nor does it give rise to any other equitable defenses, and waivers are only valid if in writing. The Purchase Order establishes a non-exclusive offer by Duke to purchase the goods and services identified in the Purchase Order from Vendor. Accordingly, Duke may enter into business relationships with third parties that involve products, services, or technologies that are similar or identical to, or compete with, the goods or services provided by Vendor.